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Boy, the javelinas had a turkey and pumpkin pie feast last night from our neighborhood’s trash day. Our street looked like a culinary war zone.
Following up on About That Congressional Letter.
Michael Horn wrote a valuable legal and historical context post on the topic of whether the 2011 Bundled Services Exception (BSE) that underpins OPM rev share models could be easily rescinded, particularly in the wake of the US Supreme Court ending Chevron Deference through LoperBright. It sounds wonky (and it is), but it is important.
Although the Court now has the final word on regulatory matters, one of its tools to do so is in looking at how a statute was understood at the outset.
In the case of a bundled services exception to incentive compensation, this arguably dates back to the 1990s.
Horn’s reading (augmented by his readers with “astute legal backgrounds”) argues forcefully that the BSE has decades of precedence behind it, and that the end of Chevron Deference, if anything, would actually help keep this safe harbor in place. Even if you disagree with the interpretation of the intent of 1992 HEA reauthorization / incentive compensation (as I know specific ppl do), the explanation and history are important.
Probably the best argument on the other side is Bob Shireman's IHE 2019 article: https://www.insidehighered.com/digital-learning/views/2019/10/30/shaky-legal-ground-revenue-sharing-agreements-student-recruitment.
