Case 1:11-cv-01314-RC Document 31 Filed 09/24/12 Page 1 of 3

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ASSOCIATION OF PRIVATE SECTOR COLLEGES AND UNIVERSITIES, Plaintiff, v. ARNE DUNCAN, in his official capacity as Secretary of the Department of Education, and UNITED STATES DEPARTMENT OF EDUCATION, Defendants.

Civil Action 11-1314 (RC)

ORDER The Department of Education and its Secretary have moved the court to amend its judgment, which vacated 34 C.F.R. 600.10(c), 600.20(d), 668.6(a), and 668.7. The Department argues that the disclosures required by 34 C.F.R. 668.6(b)(1)(v), which the court upheld, cannot be fully effective without both the vacated reporting requirements, 34 C.F.R. 668.6(a), and portions of the vacated debt measures, 34 C.F.R. 668.7(a)(2), (b)(f). To assist in its disposition of this motion, the court orders the Department to submit supplemental briefing on the following questions: 1) Under 20 U.S.C. 1015c(b)(1), the Department cannot maintain a database of personally identifiable information about students at post-secondary institutions unless that system is necessary for the operation of programs authorized by Titles II, IV, or VII of the Higher Education Act. When the Department adds information to a pre-existing database, must the additional

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information be independently necessary for the operation of a covered program, or does that statutory requirement only apply to entire databases? 2) Congress has prohibited the creation of a new student unit record system or education bar code system. 20 U.S.C. 1015c(a). What do those terms mean? Do they refer to proposals put forward by the Department of Education in the middle of the last decade?1 In 20 U.S.C. 1015c(b)(2), Congress also prohibited the Department from maintaining any database of personally identifiable information about students at post-secondary institutions, unless that database was in use by the Secretary, directly or through a contractor, as of the day before August 14, 2008. Does this provision place any limit on the Departments ability to alter or expand an existing database? If so, how should a reviewing court determine whether additions or alterations have transformed an existing database into one which effectively was not in use by August 13, 2008? Should the ban on new student unit record systems inform this analysisand if so, how? How much deference, if any, should the Department receive for its interpretation of 20 U.S.C. 1015c? Prior to the reporting requirements, did the NSLDS contain personally identifiable information about students who had never participated in any Title IV program? Did the reporting requirements add to the NSLDS personally identifiable information about all students who were enrolled in a gainful employment program, including those who had not received any Title IV aid? Does the administrative record contain this information? Aside from its limitation to students enrolled in gainful employment programs, what, if anything, distinguishes the information collected by the reporting requirements from the information that would have been stored in a student unit record system? If the court amended its judgment to restore only the reporting requirements, would the Department have the authority to calculate a programs repayment

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See, e.g., ALISA F. CUNNINGHAM ET AL., NATL CTR. FOR EDUC. STATISTICS, U.S. DEPT OF EDUC., FEASIBILITY OF A STUDENT UNIT RECORD SYSTEM WITHIN THE INTEGRATED POSTSECONDARY EDUCATION DATA SYSTEM (2005); A National Dialogue: The Secretary of Educations Commission on the Future of Higher Education 3132 (Dec. 8, 2005) (testimony of Russ Whitehurst, discussing the feasibility of an education bar code system), available at http://www2.ed.gov/about/bdscomm/list/hiedfuture/2nd-meeting/transcripts-1.pdf. 2

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rate and debt-to-income ratios by reference to the formulas contained in the vacated 34 C.F.R. 668.7(a)(2), (b)(f), and then to require that institutions disclose that information pursuant to 34 C.F.R. 668.6(b)(1)(v)? The Department is ordered to submit a supplemental brief addressing each of these questions no later than October 12, 2012. The Association of Private Sector Colleges and Universities may submit a brief addressing these questions and the Departments response to them no later than October 26, 2012. Neither brief may exceed twenty-five pages. The Department may file a reply brief, not to exceed twenty pages, no later than November 2, 2012. SO ORDERED this 24th day of September, 2012. Rudolph Contreras United States District Judge