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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA __________________________________________ ) ) ) ) Plaintiff, ) ) v. ) ) ARNE DUNCAN, in his official capacity as ) Secretary of the Department of Education; and ) UNITED STATES DEPARTMENT OF ) EDUCATION, ) ) Defendants. ) __________________________________________) ASSOCIATION OF PRIVATE SECTOR COLLEGES AND UNIVERSITIES,

Civil Action 11-1314 (RC)

DEFENDANTS’ REPLY IN SUPPORT OF THEIR SUPPLEMENTAL BRIEFING In its supplemental brief, which reads more like a sur-reply on the pending Motion to Alter or Amend the Judgment than a response to the Court’s seven discrete questions , plaintiff accuses the Department of Education of seeking to create a vast exception to 20 U.S.C. § 1015c(a)’s prohibition on a federal database of personally identifiable student information. But Congress has already created such an exception, and the information the Department seeks to collect and maintain fits comfortably within it. In 20 U.S.C. § 1015c(b), Congress excepted preexisting databases necessary to the operation of Title IV programs, which indisputably includes the National Student Loan Data System (“NSLDS”). The information the Department has added to the NSLDS to implement the gainful employment regulations, and that it seeks to use to carry out the disclosure regulations that this Court has upheld, is the same type of information collected and maintained in the exempted NSLDS. In arguing that there is no Title IV need for the gainful employment information, plaintiff ignores the fact that the Court upheld the disclosure regulations as a valid means of ensuring that

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“prospective students [are] better informed about the programs they are considering,” Slip Op., ECF No. 25, at 36, and upheld the validity of the debt measures that are part of the disclosures. Under the guise of protecting students’ privacy, plaintiff argues against full disclosure to students of a program’s median loan debt, repayment rate, and debt-to-income ratios. Plaintiffs’ position is contrary to the Court’s opinion and the interests of students, and it should be rejected. 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 information be independently necessary for the operation of a covered program, or does that statutory requirement only apply to entire databases? Plaintiff agrees with the Department, as it must in light of the plain statutory language, that the exception in 20 U.S.C. § 1015c(b)(1), requiring that a system or a successor system be necessary for the operation of Title II, IV, or VII programs, applies to entire databases, not to individual pieces of information added to a database. Thus, plaintiff agrees with the Department that the answer to the Court’s question whether information added to a pre-existing database needs to be independently necessary for the operation of Title IV programs, is no. See Pl.’s Supp. Brief at 4. The parties are also in agreement that the exception in § 1015c(b)(1) does not allow the Department to add new data points to a pre-existing database whenever it desires, without any need for the information. Id. Nothing in the Department’s supplemental briefing or briefing on its motion to alter or amend the judgment suggests that the Department thinks it can add information to the NSLDS whenever it wants to, merely because it thinks the additional information is desirable. Nor does this describe the addition of information to the NSLDS under the gainful employment regulations. The Department added 23 data fields to the NSLDS to

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calculate median loan debt, repayment rates, and debt-to-income ratios by program, all of which are necessary to carry out the disclosure regulations that the Court upheld as a valid means of ensuring that “prospective students [are] better informed about the programs they are considering.” Slip Op., ECF No. 25, at 36. The Court also upheld the Department’s authority to measure whether a program prepares students for gainful employment in a recognized occupation – a statutory requirement for for-profit programs’ participation in the Title IV federal student aid programs – by looking at the program’s repayment rate and debt-to-income ratios, id. at 17-22, and further upheld the formulas the Department used to calculate these debt measures. Id. at 24-28. Providing prospective students with information about whether a program’s students are repaying their loans, the amount of debt incurred by students in a program, and whether students earn sufficient income after graduating to be able to repay their debt, is not just information the Department desires to collect. See Pl.’s Supp. Brief at 6. Rather, it is information critical to students’ ability to make meaningful comparisons between programs in order to steer clear of “inadequate programs and unscrupulous institutions” and to protect their own and Title IV’s fiscal soundness. Slip Op., ECF No. 25, at 21. Plaintiff argues that the information the Department seeks to collect under the reporting requirements is materially different from the information in the NSLDS “and is therefore not necessary to the operation of the programs the NSLDS was intended to support.” Pl.’s Supp. Brief at 6. In making this argument, plaintiff focuses on the reporting regulations’ collection of non-federal, private lending information and income of schools’ former students (a small part of the additional information plaintiff challenges). Id. at 6, 10, 12. The disclosure regulations require schools to disclose a program’s median loan debt, repayment rate, and debt-to-income ratios. In order to calculate the median debt levels for all enrolled students, the Department must

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have data concerning not only those students who borrowed loans or received grants under Title IV programs, but also those students who borrowed from other sources. Thus, collecting data on students enrolled in gainful employment programs who are not receiving Title IV funds is necessary to implement the disclosure regulations for the operation of Title IV programs. See Pl.’s Supp. Brief at 6, 9. Maintaining information on private loans also fits within the overall purpose of the NSLDS, which is exempt from § 1015c’s prohibition. Congress established the NSLDS to contain varied information regarding Title IV loans and set out a non-exhaustive list of the types of information the NSLDS should contain. 20 U.S.C. § 1092b(a). Congress further directed the Department to add to the NSLDS the databases related to the Pell Grant program and any other databases containing information on participation in Title IV programs. Id. § 1092b(h). And in subsection (b) of 1092b, Congress required the Department to obtain additional data, including “information concerning other student financial assistance received by the borrower.” Id. § 1092b(b)(3). Plaintiff’s reference to a definition for “Federal and State student financial assistance,” Pl.’s Supp. Brief at 7, is of no moment, because the operative phrase in § 1092b(b)(3) is “other student financial assistance.” (Emphasis added). Graduates’ income information, which the Department obtains from the Social Security Administration, not the schools, is reported in the NSLDS only at aggregate levels, not at the individual student level. See 76 Fed. Reg. 37,095, 37,097 at subsection 3 of Categories of Records in the System (June 24, 2011) (showing categories of records in the NSLDS postgainful employment regulations; subsection 3 includes “aggregated income information on graduates of the particular gainful employment program); 34 C.F.R. § 668.7(c)(3) (Secretary obtains from SSA only “mean and median annual earnings of the students who completed the

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program”). Since the mean and median earnings obtained from SSA of borrowers grouped by gainful employment programs is not information about individual students, it is not personally identifiable information on students subject to the restrictions in § 1015c(a). Plaintiff contends the Department is only authorized to collect information in the NSLDS concerning the income of the “borrower,” not the “graduate.” Pl.’s Supp. Brief at 6. This is a distinction without a difference, as an individual remains a borrower until his or her loan is repaid. See 34 C.F.R. § 682.200(b). The Department’s information gathering authority permits it to gather a variety of information about “borrowers,” which allows for information collection until a loan is fully repaid. See 20 U.S.C. § 1092b(a)(7) – (11). 1 Plaintiff responds to the example the Department provided in its supplemental briefing, concerning a new provision added to the HEA limiting the amount of time for which a student may obtain a subsidized federal student loan, by claiming that there is no comparable HEA collection requirement at issue here. As an initial matter, the information at issue here is being collected pursuant to the HEA requirement that for-profit programs prepare students for gainful employment in a recognized occupation, and the Department’s authority to ensure meaningful disclosures to prospective students regarding those programs. The example provided by the Department was offered to show that the student information the Department may collect and maintain in a database is not fixed. This does not mean, however, that a statutory requirement is the only means by which other types of information may become necessary for the operation of the Title IV programs. Moreover, plaintiff’s proposed test for determining when new

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The HEA also requires the Department to collect information that allows for annual publication of a report identifying cohort default data for institutions of higher education, including proprietary institutions. 20 U.S.C. § 1085(m)(4). To prepare this report, the Department must collect information from each subject institution about current and former students who entered repayment on a federal loan during the latest fiscal year. 34 C.F.R. § 668.183(b). 5

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information may be added to an existing database would essentially require a new statutory provision that mandates (rather than generally permitting, as is the case here) the Department to make some new calculation. But that is clearly not what Congress had in mind when it enacted § 1015c(b)(1), because Congress rejected language limiting the exemption to information required to be collected by the HEA. See H.R. Rep. No. 110-803, 110th Cong. 2d Sess. (2008) at 459. 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? Contrary to plaintiff’s argument, nothing about the Department’s response to this question “confirm[s] that 20 U.S.C. § 1015c prevents the implementation of the [gainful employment] Reporting regulations.” Pl.’s Supp. Brief at 10. The limited information institutions must report under the gainful employment reporting regulations is markedly different from the comprehensive, highly detailed, personal information that would have been collected and stored under the proposed postsecondary student unit record system that Congress banned under § 1015c. See Defendants’ Supplemental Briefing in Support of their Motion to Alter or Amend the Judgment, ECF No. 32, at 9-10 (“Defs.’ Supp. Brief”). It is in fact similar to the other types of information contained in the NSLDS, which Congress explicitly exempted from § 1015c. The gainful employment reporting requirements merely add 23 data fields of individuallevel data to the NSLDS database that already contains more than 900 data fields of individuallevel information. 2 See 76 Fed. Reg. at 37,097, subsection 3 of Categories of Records in the System. Congress recognized the need to maintain individual-level data in some databases when it exempted the NSLDS from § 1015c’s prohibition. Thus, plaintiff is wrong when it asserts that
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The Department has long had in place a number of protections for students’ privacy when it comes to information stored in the NSLDS. See http://www.nslds.ed.gov/nslds_SA/SaFaqDetail.do?faqpage=faq4#faq4.ques.3. 6

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the Department seeks to use the reporting regulations to collect and maintain the same type of information Congress prohibited the Department from collecting. Nor is the limited information reported under the reporting regulations used to “track[] individual students over time.” 20 U.S.C. § 1015c(a). Instead, the Department proposes to use it to achieve accountability in higher education “by placing more information about colleges and universities into the hands of students” to enable them to assess programs’ ability to achieve stated goals, a purpose consistent with § 1015c. H.R. Rep. 109-231, 109th Cong., 1st Sess. (2005), at 163 (discussing a prior version of the bill enacted as § 1015c). 3. 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 Department’s 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 analysis—and if so, how? Plaintiff does not take issue with the fact that by applying to a “system” or a “successor system,” § 1015c(b) authorizes the Department to alter or expand an existing database to meet the changing needs and requirements of Title IV programs. Plaintiff’s response to this question largely repeats arguments made in response to the Court’s first and second questions, which largely repeat arguments made in their opposition to the Department’s motion to alter or amend the judgment. In its supplemental brief, the Department argued that it may, consistent with § 1015c(b)(2), alter or expand an existing database so long as there is a legitimate need to maintain the new information in the existing database, the new information fits within the overall purpose of the existing database, and the data stored in the database is, as a whole, necessary for the

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operation of a covered program. In response to plaintiff’s argument that this test is meaningless, the Department provides the following examples of situations in which it would not be able to add information under its test: • HEA section 485(e) requires institutions to report to the Department aggregate data on academic performance of athletes receiving scholarships. 20 U.S.C. § 1092(e). The data must be aggregated by sport, and by race, sex, and academic performance of the athletes. The Department is required to publish reports of the data submitted by the schools, but is not required to use the data for any other purpose. Id. § 1092(e)(5). The Department therefore has no operational need for personally identifiable information on the athletes whose data is submitted by the institutions, and 20 U.S.C. §§ 1015c(a) and (b) together would prohibit inclusion and retention of such individual data in an existing database such as the NSLDS. • HEA section 485(f), commonly called the “Clery Act,” requires institutions to gather and disseminate to current students and employees, and to applicants for enrollment or employment on request, statistics on crimes committed on or off campus, including the number and type of offenses reported to local police or campus security, and to maintain a publicly-available “daily log” that lists and describes the crimes reported and their disposition. 20 U.S.C. § 1092(f); see 34 C.F.R. § 668.46(c). The Department is directed to report the statistics to Congress and make them available to the public, but the HEA mandates no other specified duties with respect to the data. 20 U.S.C. § 1092(f)(5). The Department therefore has no operational need for personally identifiable information on the perpetrators included in the statistics submitted by the institutions, and 20 U.S.C. §§ 1015c(a) and (b) together would

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prohibit inclusion and retention of such individual data in an existing database such as the NSLDS. 4. How much deference, if any, should the Department receive for its interpretation of 20 U.S.C. § 1015c? In response to the Court’s fourth question, the Department described how commenters during rulemaking raised questions about the validity of the regulations in light of 20 U.S.C. § 1015c. Defs.’ Supp. Brief at 6-7. The Department responded to those concerns by discussing the contours of the provision and explaining why information collected pursuant to the regulations did not run afoul of it. Such an interpretation of the statute merits Chevron deference. Id. In response, plaintiff maintains that the Department is not entitled to Chevron deference because the Department’s interpretation is found in a regulatory preamble. Pl.’s Supp. Brief at 13 (quoting Wyeth v. Levine, 129 S. Ct. 1187, 1201 (2009)). This is not the law. Agency interpretations contained in preambles routinely merit Chevron deference. See, e.g., Nat’l Mining Assoc. v. Kempthorne, 512 F.3d 702, 709-10 (D.C. Cir. 2008); Am. Fed’n of Gov’t Emps. v. Gates, 486 F.3d 1316, 1326-27 (D.C. Cir. 2007). The cases plaintiff cites are not to the contrary. See Farina v. Nokia, Inc., 625 F.3d 97, 127 n.27 (3d Cir. 2010) (rejecting theory that deference is inappropriate when statutory interpretation is “expressed in a preamble” and explaining that deference was not extended in Wyeth because there was “a defect in the thoroughness of the [agency’s] views”). Indeed, preambles to regulations are quite often where agency interpretations are articulated, rather than in the text of the regulation itself. The Department’s interpretation of § 1015c, a statute it is entrusted to administer, benefited from notice and comment and is thorough; it merits deference under Chevron.

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Plaintiff further asserts that the Department did not interpret § 1015c to “authorize the collection of information about students’ non-federal, private borrowing.” Pl.’s Supp. Brief at 14 n.6. This is simply incorrect, as the Department identified and responded to this interpretive question during rulemaking: “Another commenter cited [§ 1015c] as a reason why an institution should not be required to provide information on private or institutional loans.” 75 Fed. Reg. 66832, 66842 (Oct. 29, 2010). The Department’s conclusion that § 1015c did not prohibit the reporting rules shows that it considered and rejected the very position plaintiff puts forth now. The balance of plaintiff’s argument is devoted to its opinion that the Department’s interpretation is unreasonable, Pl.’s Supp. Brief at 14, but this is not an argument against the application of Chevron; it is an argument to strike down the agency’s interpretation under Chevron. The Department’s interpretation of § 1015c is reasonable and should not be rejected. See Defs.’ Cross-Mot. for Summ. Judgment and Opp’n to Pl.’s Mot. for Summ. Judgment, ECF No. 16, at 46-47; Defs.’ Reply in Supp. of their Cross-Mot. for Summ. Judgment, ECF No. 20, at 24-25; Defs.’ Mot. to Alter or Amend the Judgment, ECF No. 27-1, at 11-14; Defs.’ Reply in Supp. of their Mot. to Alter or Amend the Judgment, ECF No. 30, at 13-15. 5. Prior to the [gainful employment] 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? The Department answered the Court’s fifth question by explaining that the NSLDS did not previously contain personally identifiable information about students who never applied for federal student aid, but that it now does, in order to better equip current and prospective students with meaningful information to evaluate programs they are attending or considering attending.

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Defs.’ Supp. Brief at 7-8. The Department also showed where the public was notified of this change. Id. at 8-9. Plaintiff’s response that the Department has not “offered any valid justification” for collecting information concerning students who do not receive federal aid is simply untrue. Pl.’s Supp. Brief at 15-16. The Department has indeed offered a valid justification, one that finds support in the Court’s summary judgment opinion. As noted above, data about students’ private loans is needed to calculate median loan debt, which is ultimately disclosed to students to help them determine whether a program is preparing students for gainful employment in a recognized occupation. As the Court noted, the Department “desire[s] to see prospective students better informed about the programs they are considering,” Slip Op., ECF No. 25, at 36, and plaintiff itself acknowledges that Congress intended “accountability in higher education [to] be achieved by disclosures.” Pl.’s Supp. Brief at 3. By collecting a limited amount of data that was not previously collected (at least not in the detailed form that permits the Department to associate it with particular programs offered by individual institutions), the Department helps ensure that prospective students are presented with the median loan debt of enrollees, which is an important part of the Department’s efforts to achieve accountability through disclosures. 3 6. Aside from its limitations 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? Plaintiff claims that the information collected under the gainful employment reporting requirements is the same type of information that would have been collected in the proposed The Department regularly collects data on private loans and individuals who did not receive Title IV financial assistance from institutions at the aggregate level through the Integrated Postsecondary Education Data System (IPEDS) surveys. However, data provided at that aggregate institution-wide level cannot generate the program-level assessments needed to give a meaningful disclosure to consumers. 11
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postsecondary student unit record system prohibited by 20 U.S.C. § 1015c(a). But the Department showed that the reporting regulations information is far more limited and less intrusive in terms of students’ personal privacy. It is also more limited and less intrusive than other information already in the NSLDS, which, again, is exempt from § 1015c. See 76 Fed. Reg. at 37,097; 75 Fed. Reg. 54,331, 54,332-54,333 (Sept. 7, 2010). 4 Whereas the Department discussed specific examples of the reporting requirements information and how it differs from specific information that was to be included in the proposed student unit record system, plaintiff simply declares that the information is the same type of information. The only specific information to be collected under the reporting requirements that plaintiff identifies as “intensely” private is the matter of students’ personal finances, but Congress required the collection of this type of information in the NSLDS, which was specifically exempted from 20 U.S.C. § 1015c. Again wrapping itself in the mantle of protector of student privacy (rather than corporate profits), plaintiff goes on to argue that the reporting regulations raise more concerns about student privacy than did the student unit record system proposed in 2006 because the latter included privacy protections. This argument purposely ignores the fact that the NSLDS, the system to which the gainful employment information is added, contains privacy protections. See n.2, infra. Plaintiff’s additional argument that the Department will use the gainful employment information to track individual students, in violation of § 1015c, is baseless. There is no evidence that the information will be used “for the purpose of student tracking,” H.R. Rep. No. 110-803, at 459, akin to what was contemplated in 2006, or that its mere collection somehow

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For example, the NSLDS includes student demographic information, such as dependency status, citizenship, veteran status, marital status, expected family contribution; and spousal income and asset information for certain married borrowers. Id. 12

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tracks individual students. The Department’s motion to alter or amend the judgment only proposes to use the information to arm students with the information they need to evaluate whether programs actually prepare students for gainful employment in a recognized occupation. 7. If the court amended its judgment to restore only the reporting requirements, would the Department have the authority to calculate a program’s repayment 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)? In response to the Court’s seventh question, the Department explained that, if the Court were to only restore the reporting requirements but not certain provisions of § 668.7, the Department would still have the authority to calculate a program’s repayment rate and debt-toincome ratios by using the formulas contained in the vacated provisions, for the limited purpose of effectuating the disclosure regulations. Defs.’ Supp. Brief at 10-12. The Department understood this to be the crux of this question. Once the Department conducts the calculations, it would then require that institutions disclose the figures to students pursuant to the disclosure regulations, which the Court has upheld, so that students could make more informed educational choices. Defs.’ Supp. Brief at 10. Plaintiff responds by criticizing the Department for failing to note explicitly that it has the authority to rely on the upheld disclosure regulations to require schools to make the disclosures. In so doing, plaintiff imagines that “the Department has asked the Court to bless” a “distinct regulatory regime” by which the Department “intends to publicize schools’ performance on the metrics itself.” Pl.’s Supp. Brief at 18. But the Department has done no such thing; it intends to employ the disclosure regulations upheld by this Court to ensure that institutions provide students with valuable information concerning their programs.

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Moving closer to what the Department actually said, plaintiff asserts that the Department cannot conduct the calculations as intended because “[r]equiring schools to report information to the Department is certainly a substantive change to the regulatory regime.” Id. at 21 (emphasis added); see also id. at 22 n.12 (“[C]ollecting the information is at most desirable, and thus not necessary, to the operation of any Title IV program.”). But the Court was not asking about the Department’s ability to collect the information; in fact, the Court’s question assumes, for purposes of the question, that institutions will have to report the information because it assumes the restoration of the reporting regulations. Plaintiff’s discussion about the ability of the Department to collect the information therefore has no bearing on the Court’s question. Besides, the reporting regulations went through notice and comment rulemaking, so to the extent the Court restores those provisions, the Department is free to rely on them, even if they constitute a substantive change to the regulatory environment. Plaintiff further argues that forcing schools to disclose certain data would impose “new substantive obligations.” Id. at 21; see also id. at 19 n.9 (on whether “the Department could force schools to disclose the Gainful Employment regulations’ metrics absent reinstatement of the formulas created by those regulations”). This argument fails to appreciate that the disclosure regulations went through notice and comment rulemaking (and were upheld). Thus, even if the disclosure rules do impose new substantive obligations on institutions, they remain lawful. Plaintiff also maintains that, because the gainful employment regulations went through notice and comment rulemaking, any use of the formulas must also go through notice and comment rulemaking. Pl.’s Supp. Brief at 20-21. This position cannot be squared with the Department’s core point: with the sanctions provisions vacated, and absent further rulemaking, the mere calculation of the measures would have no legal effect. See Defs.’ Supp. Brief at 11

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(noting that the Department would not use the formulas “for any eligibility purposes, absent a new rulemaking”); id. at 12 (contrasting the calculations it would make with “formulas that could result in sanctions to entities it regulates”). The Department, therefore, can conduct its calculations pursuant to the formulas found in the vacated provisions without notice and comment rulemaking. Finally, plaintiff argues that requiring schools to disclose their repayment rates and debtto-income ratios pursuant to the upheld disclosure regulations would violate schools’ First Amendment rights against compelled speech because this information is not factual and uncontroversial. Pl.’s Supp. Brief at 19 n.9 (citing Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 651 (1985)). This is an entirely new argument, made for the first time in response to the Department’s supplemental briefing as ordered by the Court, not in any briefing on the Department’s motion to alter or amend the judgment, and advanced in a footnote, no less. 5 Plaintiff has therefore waived this argument, which is meritless in any event. The Court rejected plaintiff’s many challenges to the validity of the debt measures and upheld the disclosure regulations. The debt measures are factual and uncontroversial measures of whether students are repaying their loans after they graduate from a particular program, and how their incomes compare to their debt burdens. They measure what they say they measure, are not subject to misinterpretation by students, and have no other message attached to them. Plaintiff’s schools’ This is a different First Amendment argument than the one advanced by plaintiff in its complaint and summary judgment motion. Complaint at ¶ 117; Plaintiff’s Motion for Summary Judgment, ECF No. 15, at 33-36. Plaintiff’s previous argument was that the requirement that programs that fail the debt measure test in two out of three years must disclose that a student who enrolls or continues to enroll in the program should expect to have difficulty repaying his or her student loans, and must disclose that the collegenavigator.gov website is a resource available to students, constituted unconstitutional compelled speech. The Court vacated this requirement when it vacated the gainful employment regulations. See Slip Op., ECF No. 25, at 32 n.7. Plaintiff is now arguing that merely requiring the disclosure of a program’s repayment rate and debt-to-income ratios compels speech in violation of the First Amendment. 15
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lucrative participation in the Title IV program is voluntary, and the Department compels no speech in violation of the First Amendment by requiring schools to inform students and prospective students about the objective debt measures. Dated: November 2, 2012 Respectfully Submitted, STUART F. DELERY Acting Assistant Attorney General RONALD C. MACHEN JR. United States Attorney SHEILA M. LIEBER Deputy Director, Federal Programs Branch _/s/ Marcia Berman_____________________ MARCIA BERMAN Senior Trial Counsel (PA Bar No. 66168) MICHELLE R. BENNETT Trial Attorney (CO Bar No. 37050) GREGORY DWORKOWITZ Trial Attorney (N.Y. Bar Registration No. 4796041) United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue N.W. Room 7132 Washington, D.C. 20530 Tel.: (202) 514-2205; Fax: (202) 616-8470 Email: marcia.berman@usdoj.gov Attorneys for Defendants.

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