This past week, U.S. District Judge Rudolph Contreras ruled against the Department of Education and its Secretary in a request that was filed asking the Court to amend the June 2012 judgment that set aside new rules associated with what is called Gainful Employment.  The Gainful Employment Rule from the Department was designed to motivate for-profit colleges and universities to reduce loan default rates among graduates by insisting on higher levels of post-graduation, successful employment.

The Court’s ruling may well have unintended, but positive consequences if it provides an avenue to improve college graduation rates.  This surprising potential outcome of the ruling comes from the possibility that Congress could use the ruling as a rationale to alter the Higher Education Act’s restrictions on data collection, the basis for the Court’s ruling against the Department of Education.  Those restrictions now limit the collection of student data that could be used to mitigate low graduation rates in our public institutions as well as for-profit ones.

A little background is essential.  The U.S. continues to lag many countries in the percentage of its population that receives a college degree, and low graduation rates impede our economic development.  With the best colleges and universities in the world in the U.S., this sad state of affairs seems inexplicable.  Confounding the problem of understanding and mitigating our low college graduation rates is the increasingly complex attendance patterns of college students.  Those patterns are marked by lower than desired persistence of freshmen students from their first year to second year of college, relatively high transfer rates between community colleges and four-year institutions, dual enrollments in community college and a university, and the inability to track students across those enrollment patterns.

In the middle of the past decade many of us had hoped for the data necessary to track those complex enrollment patterns so that we could analyze them and address the problem.  The assumption is that collecting data and analyzing them are essential to an understanding of the problem and the creation of interventions to mitigate the problem and improve college graduation rates.  Many of us had thought that a universal student unit record was the foundation for intervention that might address the problem.  This form of data could have come from requiring colleges and universities to report student data that would allow us to follow a student through the complex enrollment behavior that has become characteristic in the U.S..

The problem, however, with this solution was one that Americans understand in our commitment to protecting our privacy.  Universal practices of collection of student data represented a threat to the privacy of students.  Therefore, Congress imposed restrictions on the collection of student data that led to the end of hope for a universal student unit record and to the ruling of the Court against the Department of Education’s Gainful Employment Rule.  The basis of the Court’s ruling is embedded in the Higher Education Act which prohibits:

the development, implementation, or maintenance of a Federal database of personally identifiable information on individuals receiving assistance under this chapter’ unless that information ‘is necessary for the operation of programs authorized by’ Title IV.

What is needed now is a careful rewriting of the restriction quoted above and along with its being embedded in the Higher Education Act.  That rewriting should protect students’ privacy but it could also permit tracking of student enrollment patterns for purposes of improving graduation rates.  Whether we should use data to apply rules like the Department’s Gainful Employment Rule is quite another question that this blog has already addressed.