are not fraudulent, but the department treats colleges seeking a profit as inherently suspect. Through the burdens of proof imposed by the new rule, the department nearly makes these colleges guilty until proven innocent.
For instance, the plaintiffs argued that by putting contract disputes into the regulation, the department took upon itself an authority to decide disputes that are supposed to be reserved for a jury or at least a judge to decide. The Supreme Court recently agreed to hear a case challenging the constitutionality of these practices this fall inand its decision there could have serious ramifications for Career Colleges and Schools’ challenge to the department’s rule.
In enjoining the department’s rule, the 5th Circuit cited a single 2018 decision in which the U.S. Chamber of Commerce successfully sued the Department of Labor. In that case, a different panel of the 5th Circuitthat “only Congress may create privately enforceable rights, and agencies are empowered only to enforce the rights Congress creates.”
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