Trace Urdan
July 8, 2025
Yesterday in the Federal Register, the Department of Education rescinded a policy imposed by the Biden Administration limiting revenue from non-Title IV programs offered online from being counted as “10 revenue” to comply with the “90/10 Rule.” The 90/10 Rule is a federal regulation that applies to proprietary (for-profit) colleges. It requires these institutions to earn at least 10% of their revenue from non-federal sources, including Title IV grants and loans and GI Bill dollars. This action by the Department comes only after a failed attempt in the initial House version of the “One Big Beautiful Bill Act” (OBBBA) to rescind the 90/10 rule completely.
The rationale for this change was that since this policy was initially provided in a “preamble” to the rule and not adopted through formal rulemaking, it did not have the force of a rule itself. While the change does not prevent a future Democratic administration from attempting to recreate such a rule, the language in the notice, which explicitly observes that nothing in the law itself requires this nonsensical exclusion, should make any reimposition of this requirement difficult to defend in court following the Supreme Court’s Loper Bright decision limiting executive latitude in administrative rulemaking.
