What are the legal arguments and precedents for challenging the Department of Education’s definition of 'professional degree'?
Executive summary
The Department of Education’s recent attempt to narrowly define “professional degree” invites several predictable legal attacks: claims that the agency’s rule is inconsistent with statutory text and existing regulations, arbitrary and capricious under the Administrative Procedure Act (APA), and procedurally vulnerable because of negotiated-rulemaking and reliance interests from institutions and students [1] [2] [3]. The Education Department counters that its language “aligns with historical precedent” and followed negotiated-rulemaking processes, but critics point to decades of broader practice and statutory signals that the agency’s constriction may not survive judicial review [4] [5] [6].
1. Textual and regulatory-conflict argument: law vs. narrow rule
Challengers can point to the plain text of the Higher Education Act and existing Department regulations—most notably the long-standing regulatory definition in 34 C.F.R. 668.2(b)—to argue the new rule improperly narrows a category Congress left open-ended, since prior statutory and regulatory materials treated listed fields as examples rather than an exhaustive list [7] [1] [2]. The Department’s memo itself flags that the proposed long-term limitation “is, on its face, inconsistent with a plain-text reading of the law and referenced regulations” and warns the approach is “unlikely to survive a legal challenge” [1].
2. APA “arbitrary and capricious” claim: ignoring reliance and reasoned explanation
Under the APA, courts will set aside agency action that is arbitrary, capricious, or involves a clear error of judgment; plaintiffs would emphasize that the Department failed to adequately explain departures from decades of prior practice and ignored reliance interests—students, professional schools, and states that planned programs based on longstanding classifications—making an APA claim strong on the record [3] [2]. Multiple stakeholders and associations argued during negotiated rulemaking that the department’s narrowing could create inconsistencies and practical harms to workforce pipelines—evidence challengers would use to show the agency did not meaningfully grapple with consequences [8] [9] [10].
3. Procedural challenges tied to negotiated rulemaking and “consensus”
Negotiated rulemaking played a central role: industry groups point out that where the RISE committee reached consensus on language, the Department is “legally required to formally propose” that definition in rulemaking, which both cuts two ways—binding the Department to disclose and pursue the consensus text but also creating an administrative-record pathway for challengers to argue process failures or misapplication of consensus [11] [12]. Critics and institutional negotiators raised concerns during meetings that the department’s drafted language would be applied inconsistently across HEA provisions, a procedural hook for lawsuits alleging arbitrary application [13] [12].
4. Precedent and political-administrative context: why courts may care
Courts reviewing agency interpretations often consider historical practice and whether Congress delegated the precise question; the Department insists its rule “aligns with historical precedent” [4] [14], but commentators and union/association briefs note decades of broader inclusion of fields like public health, nursing and allied health as professional in aid contexts—material that a court could view as evidence the agency departed from an established interpretation without sufficient justification [8] [9] [6]. Analysts also predict litigation as likely and plausible, with legal observers already flagging inconsistencies that make legal challenge probable [2] [3].
5. Practical remedies plaintiffs will seek and likely defenses
Litigants would seek vacatur or remand of the rule and preliminary injunctions to protect students and programs during litigation, grounding relief in APA defects, statutory conflict, and reliance harms documented in the negotiated-rulemaking record [1] [11]. The Department’s chief defense — that its interpretation is consistent with regulations and developed through negotiated rulemaking — is solid procedurally on its face [5] [4], but the reported internal critiques and statutory-text arguments create a credible path for courts to find the rule unlawful or require a more reasoned explanation [1] [2].