360 Degree Education, LLC v. U.S. Department of Education

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

360 DEGREES EDUCATION, LLC,

ET AL.,

Plaintiffs,

v. No. 4:24-cv-00508-P

U.S. DEPARTMENT OF EDUCATION,

ET AL.,

Defendants.

MEMORANDUM OPINION & ORDER

Before the Court is Plaintiffs’ Motion for Temporary Restraining

Order, Preliminary Injunction, and Stay. ECF No. 5. Having considered

the Motion, briefs, hearing arguments, and applicable law, the Court

concludes the Motion should be and hereby is GRANTED in part and

DENIED in part.

BACKGROUND

A new Department of Education (the “Department”) rule goes into

effect on July 1, 2024. The so-called “Bare Minimum Rule”1 will restrict

federal student aid to vocational programs that require the minimum

hours a state mandates for licensure in a given field. For instance, Texas

requires a minimum of 500 hours for licensure as a massage therapist.

If a massage therapy program requires 600 hours, students are free to

attend—but they won’t qualify for federal student aid. This represents

a sea-change from thirty years of established practice. Over the past

three decades, the Department has enforced a “150% Rule,” which

1 Plaintiffs call the rule the “Bare Minimum Rule” to elucidate its purpose.

See ECF No. 5. The Department calls it the “Revised Provision” because it was

one revised provision within broader Final Regulations issued last October. See

ECF No. 23 at 13. The Court adopts Plaintiffs’ nomenclature for clarity.

provides access to federal funds so long as a program does not exceed

150% of a state’s hours requirement. See 34 C.F.R. § 668.14(b)(26)(ii)(A).

Plaintiffs (“the Schools”) are a coalition of vocational schools with a

member-program in Arlington, Texas. The Schools argue the Bare

Minimum Rule exceeds the Department’s authority under the Higher

Education Act of 1965 (“HEA”) and violates the Administrative

Procedure Act (“APA”). Facing imminent enforcement of an allegedly

unlawful rule, the Schools sued the Department in federal court on May

31, 2024. To maintain the status quo pending their claim’s resolution,

the Schools subsequently sought preliminary injunctive relief. The

Court conducted a hearing on their request for injunctive relief earlier

this week. Having considered the arguments of counsel at that hearing,

along with the Parties’ briefs and applicable legal authorities, the Court

determines a limited preliminary injunction is warranted pending

resolution of the Schools’ lawsuit.

LEGAL STANDARD

Preliminary injunctions are a “drastic and extraordinary remedy.”

Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 165 (2010). A

movant must show four things to get one:

(1) a substantial likelihood of success on the merits, (2) a

substantial threat of irreparable harm if the injunction is

not issued, (3) that the threatened injury if the injunction

is denied outweighs any harm that will result if the

injunction is granted, and (4) that the grant of an

injunction will not disserve the public interest.

Mock v. Garland, 75 F.4th 563, 577 (5th Cir. 2023) (quoting Byrum v.

Landreth, 556 F.3d 442, 445 (5th Cir. 2009)). Given their “drastic”

nature, preliminary injunctions are awarded “only if the movant has

clearly carried the burden of persuasion with respect to all four factors.”

Allied Mktg. Grp., Inc. v. CDL Mktg., Inc., 878 F.2d 806, 809 (5th Cir.

1989).

ANALYSIS

As noted above, the Schools seek a temporary restraining order,

preliminary injunction, and stay. See ECF No. 5. For reasons further

explained below, the Court finds a limited preliminary injunction is

warranted and thus constrains this Order to legal frameworks germane

to preliminary injunctions. In doing so, the Court is mindful that

preliminary injunctions “preserve the status quo” while a lawsuit is

resolved. Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981). To obtain

such relief, the Schools must carry their burden for each injunctive-relief

factor enumerated above. See Allied Mktg., 878 F.2d at 809. As

explained below, they do.

A. The Schools demonstrate a substantial likelihood of

success on the merits.

The Schools must first demonstrate a “substantial likelihood of

success on the merits.” Mock, 75 F.4th at 577. While they don’t have to

prove “entitlement to summary judgment,” see Byrum, 566 F.3d at 446,

they must still “present a substantial case on the merits.” See Alliance

for Hippocratic Med. v. FDA, 78 F.4th 210, 242 (5th Cir. 2023) (cleaned

up) (collecting cases), reversed on other grounds, FDA v. Alliance for

Hippocratic Med., ___ U.S. ___, 2024 WL 2964140 (2024); see also

Jefferson Cmty. Health Care Ctrs., Inc. v. Jefferson Parish, 849 F.3d 615,

626 (5th Cir. 2017) (“Though there is no particular degree of likelihood

of success that is required in every case, the party seeking a preliminary

injunction must establish at least some likelihood of success on the

merits before the court may proceed to assess the remaining elements.”).

The Schools raise three arguments that the Bare Minimum Rule is

unlawful—one under the HEA and two under the APA. First, they argue

the Department exceeded its authority under the HEA in promulgating

the rule. See ECF No. 5 at 15–17. Specifically, they argue the

Department prescribes conduct for educational institutions in a manner

traditionally reserved for states. See id. at 16. Second, they argue the

Bare Minimum Rule is arbitrary and capricious under the APA. See id.

at 17–25. Third, they argue the Bare Minimum Rule violates the APA

because, as issued, the rule was not the “logical outgrowth” of the

Department’s Notice of Proposed Rulemaking (“NPRM”). See id. at 25–

29. The Court takes each in turn, careful to reiterate that any

determination on this factor is not a determination that the Schools will

or will not prevail at summary judgment for a given argument. See

Byrum, 556 F.3d at 445.

1. The Schools do not establish a substantial likelihood of success on

the merits for their challenge to the Department’s authority

under the HEA.

The Schools’ first argument hinges on the Department’s authority

under the HEA. The HEA empowers the Department to “exercise any

discretion, supervision, or control” over regulated entities “except to the

extent authorized by law.” See 20 U.S.C. § 3403(b). The Schools say the

Bare Minimum Rule “treats state minimums as federal maximums” and

thus “contradicts this limitation by setting a maximum program length”

for entities courting students who might receive federal student aid. See

ECF No. 5 at 15. At base, the Schools argue the feds are attempting to

usurp authority traditionally reserved for states—e.g., the hours

required for licensure of certain regulated vocations. See id.

As the Schools note, while federal law “includes an exception to

§ 3403(b) for ‘[s]ecretarial determinations made regarding the

appropriate length of instruction for programs measured in clock hours,’

20 U.S.C. § 1099c-1(e), the Bare Minimum Rule is not such a

determination.” Id. at 16. Thus, because the Bare Minimum Rule applies

to entities regardless of their time-registration model, the Schools argue

it exceeds the Department’s authority and encroaches on the turf of state

education regulators. See id. The Department doesn’t contest that the

Bare Minimum Rule is not a “secretarial determination” regarding

schools that measure time in clock-hours. See ECF No. 23 at 19. Rather,

the Department argues “even aside from § 1099c-1(e), States have never

had authority to determine under what circumstances schools may

participate in federal Title IV programs.” Id. at 20.

The Department is correct that the federal government may regulate

educational institutions by proxy by tethering federal funds to certain

requirements; indeed, they’ve done so for decades.2 One could imagine

2For an insightful discussion of this phenomenon’s federalism implications,

see Gail Sunderman & Jimmy Kim, Expansion of Federal Power in American

Education: Federal-State Relationships Under the No Child Left Behind Act,

Year One, HARVARD CIVIL RIGHTS PROJECT, 11–37 (2004).

school integration would have taken far longer in many Jim Crow states

had the federal government not had “regulation-by-incentivization” in

its arsenal. See Green v. Cnty. Sch. Bd. of New Kent County, Va., 391

U.S. 430, 431 & n.2 (1968). And the Bare Minimum Rule does not, on

its face, tell the Schools how they must conduct their massage-therapy

programs. See 88 Fed. Reg. at 74637.

Further, the Court should generally construe the Bare Minimum

Rule as the Department interprets, with reasonable deference to the

executive. Dougherty Cnty. Sch. Sys. v. Bell, 694 F.2d 78, 81 (5th Cir.

1982); see also Bennett v. Ky. Dep’t of Educ., 470 U.S. 656, 666 (1985)

(acknowledging State’s argument that “a reviewing court should simply

defer to the Secretary’s interpretation” of a contested provision, but

noting a determination “can be properly evaluated only against the

background of the actual operation of the [provision]”). Thus, more

fulsome briefing (and a more fulsome administrative record) would be

required for the Schools to prevail on this argument. Afterall, the

Schools don’t contest the power to regulate-by-incentivization per se, but

rather the procedural and substantive propriety with which the

Department did here.

Still, the Schools have an uphill battle to contest the Department’s

authority under the HEA when the contested action involved “the

authority to set forth conditions in Title IV program participation

agreements.” ECF No. 23 at 21. This is not to say the Schools cannot win

on this claim. Indeed, Congress expressly noted the HEA should “not

increase the authority of the Federal Government over education or

diminish the responsibility for education which is reserved to the States

and the local school systems and other instrumentalities of the States.”

20 U.S.C. § 3403(a). But the Schools must clearly carry their burden on

each injunctive-relief element. See Allied Mktg., 878 F.2d at 809.

Otherwise, the Court would lower the bar to such a “drastic and

extraordinary remedy.” Monsanto, 561 U.S. at 165. Considering the

deference due to the Department and the recognized authority for

similar agency actions, the Schools fail to carry their burden here.

2. The Schools establish a substantial likelihood of success on the

merits for their arbitrary-and-capricious arguments.

The Schools next contend the Bare Minimum Rule is arbitrary and

capricious under the APA. See ECF No. 5 at 17–25. This argument has

several moving parts, but basically asserts the provision is arbitrary and

capricious because (1) the Department didn’t explain its decision to treat

state minimums as federal maximums, (2) the Department acted

unreasonably in “converting a program intended to be a safe-harbor into

a strict-liability trap,” and (3) the Department failed to provide a

“reasoned justification” for changing the 150% Rule, “which has been in

place for 30 years.” See id.

As a starting point, it’s tough to prove an agency’s action was

arbitrary and capricious under the APA and relevant precedents. The

complexity of modern executive functionalities rightly warrants

deference from Article III judges. See, e.g., United States v. Mead Corp.,

533 U.S. 218, 227 (2001); United States v. Morton, 467 U.S. 822, 834

(1984); Chevron, USA, Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837,

843–44 (1984). But that deference is not unlimited, and plaintiffs can

show a “substantial case” by establishing “at least some likelihood of

success on the merits.” Jefferson Parish, 849 F.3d at 626. This does not

lighten the preliminary-injunction inquiry, it merely notes that the first

element is satisfied where a bona fide cause of action is presented. See

id. The burden of doing that is, of course, on the moving party. See Allied

Mktg., 878 F.2d at 809. The Schools carry their burden here.

The Schools first argue “the Bare Minimum Rule is arbitrary and

capricious because the Department failed to justify the reasonableness

of pegging the maximum hours for a program to the state-law

minimum.” ECF No. 5 at 18. Of course, the Court is not a tribunal for

policy grievances: even bad policies are lawful if the relevant agency

explained itself. In this way, the inquiry isn’t how the Department

explained its reasoning, but whether the Department explained its

reasoning. And the Department explained itself here. See 88 Fed. Reg.

at 74638; see generally ECF No. 23 at 22 (“States set minimum training

requirements because they deem a certain amount of training necessary

to take up certain occupations. The Revised Provision recognizes that

Title IV funding aimed at helping students complete the training needed

. . . for those occupations should align with States’ assessments of the

amount of training required.”). That undermines the Schools’

“substantial likelihood of success” for this argument.

The Schools’ second and third arguments fare much better for this

element. For their second, the Schools say “the Department acted

arbitrarily and capriciously by converting a program intended to be a

safe-harbor into a strict-liability trap.” ECF No. 5 at 20. For their third,

they say the Department failed to explain its “regulatory changes to the

longstanding 150% Rule, which has been in place for 30 years.” Id. The

Schools have plausible paths to victory on both arguments.

The Schools’ second argument accurately notes that the Bare

Minimum Rule is absolute in its applicability. See id.; see also FEDERAL

STUDENT AID, Implementation of Program Length Restrictions for

Gainful Employment (GE) Programs, GEN-24-06 (Apr. 15, 2024),

https://fsapartners.ed.gov/knowledge-center/library/dear-colleagues-

letters/2024-04-15/implementation-program-length-restrictions-

gainful-employment-ge-programs. Before the Bare Minimum Rule, a

hypothetical school could offer 200-hour barista programs even though

the state required 150 hours for licensure. Students attending that

school could then receive federal financial aid for the 150 hours, but they

would have to pay out-of-pocket for the remainder. Under the Bare

Minimum Rule, a school that offers one hour over the state’s

requirement is ineligible for such funds in its entirety. See id. That’s a

big change for covered entities. And while the administrative record is

still nascent, the Department has identified nothing that would explain

a rationale for this significant modification.

The record similarly reflects a dearth of justification for the

Department’s pivot on the 150% Rule. While the Department need not

present a justification that all covered entities agree with, the law is

clear that it must “show that there are good reasons for [these] new

polic[ies].” FCC v. Fox. Tele. Stations, Inc., 556 U.S. 502, 515 (2009).

Because it didn’t, the Schools have a “substantial likelihood of success

on the merits” for these APA arguments.

3. The Schools establish a substantial likelihood of success on the

merits for their “logical outgrowth” arguments.

The Schools similarly establish a substantial likelihood of success on

their “logical outgrowth” argument. For this argument, the Schools

contend the Department’s NPRM failed to provide “fair notice” as

required under the APA. See ECF No. 5 at 26; see generally Long Island

Care at Home, Ltd. v. Coke, 551 U.S. 158, 174 (2007). To be sure, the

Department complied with its NPRM requirements last spring. See 88

Fed. Reg. 32300 (NPRM issued May 19, 2023). But the issue isn’t if the

Department published an NPRM, but whether the NPRM apprised all

stakeholders that their rights may be impacted. While the Department

passingly referenced broader applicability for forthcoming rules and

cited relevant legal authority, its up for debate whether the Bare

Minimum Rule represents a “logical outgrowth” of the initial notice. And

“[a]n agency must defend its actions based on the reasons it gave when

it acted.” Dep’t of Homeland Sec. v. Regents of the Univ. of Cal., 591 U.S.

1, 24 (2020).

The Schools argue the Department’s NPRM deficiencies are “fatal”

because “accreditors are an important part of the regulatory triad.” ECF

No. 5 at 27. By imposing an absolute condition precedent to federal

funds, the current provisions effectively remove accreditors from the

equation. See id. Thus, the NPRM “failed to signal [that the

Department] was considering removing one leg of the triad, accreditors,

entirely from the process.” Id. at 27. And that’s just the low-hanging

fruit: the Court certainly understands why the Schools saw the Bare

Minimum Rule as a bait-and-switch when compared with the scantily-

articulated NPRM. Indeed, the Schools are correct that the Department

“never relied on § 1099c-1(e)’s clock-hour authority to justify the Bare

Minimum Rule.” ECF No. 5 at 17. While the NPRM passingly referenced

its authority on a different page of the register, the Court is unaware of

case law suggesting that would suffice.

At the end of the day, had the NPRM been clearer, the notice-and-

comment period would potentially look quite different. And that remains

true even though “procedural error alone is not sufficient to support a

finding of likelihood of success on the merits.” Second Amend. Found.,

Inc. v. ATF, No. 3:21-cv-0116-B, 2023 WL 7490149, at *6 (N.D. Tex. Nov.

13, 2023) (citing Mock, 75 F.4th at 586). The Department may ultimately

persuade that it provided fair notice, as it’s “required to provide only a

brief statement to justify its choices and overcome an APA challenge.”

See Texas v. United States, 524 F. Supp. 3d 598, 655–66 (S.D. Tex. 2021)

(Tipton, J.) (collecting cases). But because the Department’s alleged

procedural errors materially prejudiced societal stakeholders like the

Schools, the Schools establish a likelihood of success on this argument.

The Court now turns to irreparable injury.

B. The Schools will suffer an irreparable injury without

preliminary injunctive relief.

The Schools must next demonstrate an “irreparable injury” absent

the requested injunctive relief. Mock, 75 F.4th at 577. As noted,

preliminary injunctions are a “drastic and extraordinary remedy.”

Monsanto, 561 U.S. at 165. So federal courts will not award one unless

strictly necessary to avoid irreparable harm. Mock, 75 F.4th at 577. The

Schools say they will be irreparably harmed without a preliminary

injunction because the Bare Minimum Rule will force them to slash

program hours or face diminution in their enrollment. See ECF No. 5 at

28. Indeed, the Schools have already seen the Bare Minimum Rule’s

negative effects vis-à-vis their programming for veterans. Id. Simply

put, students will go elsewhere or defer their message-therapy

education if they cannot access federal student aid to attend the Schools.

See id. at 28–30. Thus, the Schools argue the Bare Minimum Rule would

“threaten the[ir] very existence” if enforced. Id. at 28 (citing Wisc. Gas

Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985)).

The Department says the Schools’ alleged harm is nothing more than

a doomsday hypothetical. See ECF No. 23 at 15–16. Indeed, the

Department says the Schools will not be harmed at all, for two reasons.3

3Though not fully briefed, the Department passingly suggests the Schools

lack an irreparable injury because their “standing is murky.” ECF No. 23 a 9.

This argument is predicated on the assertion that “Plaintiffs [] lack standing

to assert current students’ interests, much less the alleged interests of

unknown future students.” Id. at 17. The Supreme Court’s associational

standing precedents roundly reject the Department’s argument. See, e.g.,

Rumsfeld v. Forum for Acad. & Inst. Rights, 547 U.S. 47, 53 & n.2 (2006)

First, the Schools’ delay in bringing this action ostensibly indicates the

lack of irreparable injury. See ECF No. 23 at 14–15. Second, the Schools

allegedly lack an irreparable injury because “Texas law already imposes

a 500-hour maximum on such programs.” Id. at 16. Neither argument

persuades.

The Department’s first argument fails because it misconstrues

relevant case law. True, a delay in seeking injunctive relief often

“militates against the issuance of a preliminary injunction” because it

indicates “that there is no apparent urgency to the request.” Gonannies,

Inc. v. Goupair.Com, Inc., 464 F. Supp. 2d 603, 609 (N.D. Tex. 2006)

(Lindsay, J.); see also 11A CHARLES A. WRIGHT & ARTHUR R. MILLER,

FEDERAL PRACTICE & PROCEDURE § 2948.1 (3d ed.) (“A long delay by

plaintiff . . . may be taken as an indication that the harm would not be

serious enough to justify a preliminary injunction.”). But the

Department takes a practical consideration and articulates it like a

hard-and-fast rule. See ECF No. 23 at 14–15.

As Messrs. Wright and Miller plainly state, a “long delay by plaintiff

. . . may” undermine a request for injunctive relief. See 11A CHARLES A.

WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE & PROCEDURE § 2948.1

(emphasis added). But that’s only true “[a]bsent a good explanation.”

VanDerStok v. Garland, 625 F. Supp. 3d 570, 584 (N.D. Tex. 2022)

(O’Connor, J.) (citation omitted). In VanDerStok, the Court noted that

the plaintiffs actively sought to clarify their rights before asking the

Court to enjoin a new ATF rule. See id. Thus, their four-month delay did

not indicate the harm was irreparable, it merely indicated the plaintiffs

did their due diligence before filing suit. See id. at 585. “Considering

these circumstances, Plaintiffs’ delay [did] not undercut their showing

of irreparable harm.” Id.

Here, the Bare Minimum Rule was first publicly articulated on

October 31, 2023. See ECF No. 23 at 14. All else equal, such a delay

would strongly undermine the Schools’ assertion of irreparable harm.

See VanDerStok, 625 F. Supp. 3d at 584. But all else isn’t equal. Indeed,

(explicating the associational standing of coalition of law schools challenging

new Department of Defense rule).

it was not clear that the Bare Minimum Rule would apply to the Schools

until the Department issued a guidance document on May 16, 2024. See

ECF No. 26 at 8 & n.2; see also U.S. Dep’t of Educ., Certification

Procedures: Questions & Answers, GEPH-A2 (May 16, 2024),

https://www2.ed.gov/policy/highered/reg/hearulemaking/2024/certificati

on-q-and-a.html. The Schools sought preliminary injunctive relief a

mere two weeks later. See ECF No. 5. Thus, “under these circumstances,

[the Schools’] delay does not undercut their showing of irreparable

harm.” VanDerStok, 625 F. Supp. 3d at 585.

The Department’s second argument fails because even if Texas had

a hard 500-hour requirement for massage programs, the Schools don’t

violate that regulatory ceiling. The Parties dispute whether Texas

applies this rule as the Department suggests. See, e.g., ECF No. 26 at 13

(“The General Counsel of TDLR, however, confirmed that ‘TDLR does

not prohibit a massage school from providing a program is excess of 500

hours.’”). Indeed, there is a boilerplate form for this exact purpose. See

ECF No. 26-1 at 4–6 (email correspondence noting “a school offering

such a program [in excess of the statutory limit] must obtain a signed

‘massage student acknowledgement’”). But the Court understands how

one could read the statute and conclude, as the Department does, that

“Texas law already imposes a 500-hour maximum on such programs.”

ECF No. 23 at 16; see TEX. OCC. CODE ANN. §§ 455.156(b)(1), 455.205(b).

That’s because the law clearly states: “a message school . . . may not

require the successful completion of more course hours than the number

of hours required for licensing as a massage therapist.” Id. § 455.205(b).

And 500 is the magic number in Texas. See id. § 455.156(b)(1).

But just because the Schools’ curricula provides in excess of that

amount does not mean “[n]o Texas massage therapy program will incur

any harm whatsoever.” See ECF No. 23 at 15. As discussed above, there’s

a specific administrative process to facilitate programs above the 500-

hour ceiling. ECF No. 26-1 at 4–6. If a student completes the required

500 hours, the Schools will gladly certify as much to the relevant state

governance authority. See id.; see also ECF No. 26 at 14. And they

communicate this to students on the front end. See ECF No. 26-1 at 5.

Completion of curricula beyond that minimum is thus required for the

respective program, but not for the certification required for licensure.

See id.

* * *

Parties frequently confuse the magnitude of a harm with the

irreparability of a harm. See Winter v. Nat. Res. Def. Council, Inc., 555

U.S. 7, 18–20 (2008); see also Restaurant Law Ctr. v. U.S. Dep’t of Lab.,

66 F.4th 593, 597 (5th Cir. 2023) (citing Texas v. EPA, 829 F.3d 405, 433

(5th Cir. 2016)) (“In determining whether costs are irreparable, the key

inquiry is ‘not so much the magnitude but the irreparability.’”). Yet even

enormous harms can be compensable by money damages, thus failing to

justify injunctive relief. See Sampson v. Murray, 415 U.S. 61, 90 (1974)

(“The key word in this consideration is irreparable. Mere injuries,

however substantial, . . . are not enough. The possibility that adequate

compensatory or other relief will be available at a later date . . . weighs

heavily against a claim of irreparable harm.”). That’s off the table here,

as the Schools sue the federal government. Wages & White Lion Invs.,

LLC v. FDA, 16 F.4th 1130, 1136 (5th Cir. 2021). And “complying with

a regulation later held invalid almost always produces the irreparable

harm of nonrecoverable compliance costs.” Louisiana v. Biden, 55 F.4th

1017, 1034 (5th Cir. 2022) (citing Texas, 829 F.3d at 433); see generally

Restaurant Law Ctr., 66 F.4th at 433.

Still, without minimizing difficulties the Bare Minimum Rule will

impose upon regulated entities, it’s probably a stretch to say the Rule

would “threaten the[ir] very existence.” See ECF No. 5 at 28. For

instance, the Court is unsure why Cortiva, the largest member-school,

“will likely need either to discontinue its [massage therapy] Program,

which is its largest program, or to shut its doors in Arlington altogether,

if the Bare Minimum Rule goes into effect.” Id. Or why “other schools . .

. will be required to eliminate some of [their] programs completely.” Id.

The Bare Minimum Rule does not, on its face, require any of the above

actions. Rather, the Schools can choose between a potential diminution

in enrollment or simply trimming some fat to reduce their required

hours.

While the resulting loss would impact the Schools’ bottom line, it

hardly seems catastrophic. Nevertheless, the costs of doing so would still

be irreparable under Fifth Circuit case law. See Rest. Law Ctr., 66 F.4th

at 597 (“Under our precedent, the nonrecoverable costs of complying

with a putatively invalid regulation typically constitute irreparable

harm.” (collecting cases)). Thus, even if the magnitude of the Schools’

harm is debatable, the irreparability of that harm is not. See id. Because

the law doesn’t require the Schools to await enforcement of a potentially

invalid rule, and because the resulting compliance costs would be

irreparable, the Schools satisfy the first injunctive-relief requirement.

Mock, 75 F.4th at 577.

C. The balance of equities and public interests support

limited preliminary injunctive relief.

Finally, the Schools must show (3) that the threatened injury if the

injunction is denied outweighs any harm that will result if the injunction

is granted, and (4) that the grant of an injunction will not disserve the

public interest. Mock, 75 F.4th at 577. These factors “merge when the

Government is the opposing party.” Nken v. Holder, 556 U.S. 418, 435

(2009). On one hand, if the Department is enjoined, it “suffers the

irreparable harm of denying the public interest in enforcement of its

laws.” Veasey v. Abbott, 870 F.3d 387, 391 (5th Cir. 2017). On the other,

“it is always in the public interest” to stop enforcement of

unconstitutional or invalid laws. See Jackson Women’s Health Org. v.

Currier, 760 F.3d 448, 458 n.9 (5th Cir. 2014). As explained below, the

Schools carry their burden for both prongs of this merged interest.

For the private-interests component, the Court “looks to the relative

harm to both parties if the injunction is granted or denied.” Def. Distrib.

v. U.S. Dep’t of State, 838 F.3d 451, 460 (5th Cir. 2016). If an injunction

is granted here, the Schools will avoid subjection to a potentially

unlawful rule and the Department will be forced to delay its

enforcement. See ECF No. 5. As a result, the Schools will be saved from

an irreparable injury; the Department will merely face a longer

implementation timeframe. See id. Conversely, if an injunction is

denied, the Department will be able to proceed efficiently, but the

Schools will suffer an irreparable harm. See Louisiana, 55 F.4th at 1034

(citing Texas, 829 F.3d at 433). The disparity in these alternative

outcomes tips the private-interests analysis in the Schools’ favor. That

isn’t to say the Department lacks “a strong interest in implementing

rules on schedule according to the master calendar, 20 U.S.C. § 1089(a).”

ECF No. 23 at 30. Rather, it simply notes the practical ramifications of

a tardy rule are far less serious for the Department than the practical

ramifications of complying with a putatively invalid rule are for the

Schools. See Restaurant Law Ctr., 66 F.4th at 433.

For the public-interests component, the Court “pay[s] particular

regard for the public consequences in employing the extraordinary

remedy of injunction.” Weinbgerger v. Romero-Barcelo, 456 U.S. 305, 312

(1982). Both Parties hold strong convictions that public interests

support their position here. Without delving into complicated questions

of policy vis-à-vis the Bare Minimum Rule, the Court notes that “the

public is served when the law is followed.” Daniels Health Scis., LLC v.

Vascular Health Scis., LLC, 710 F.3d 579, 585 (5th Cir. 2013). While the

Schools don’t carry their summary judgment burden, see Byrum, 566

F.3d at 446, they do present a substantial merits case that the Bare

Minimum Rule is unlawful. See generally ECF No. 5 at 15–27. In short,

they “establish at least some likelihood of success on the merits” with

regard to the Bare Minimum Rule’s impropriety. See Jefferson Parish,

849 F.3d at 626. And the public has a strong interest in avoiding

unlawful rules and regulations, irrespective of the soundness of their

articulated policy rationale. See Daniels Health, 710 F.3d at 585.

Defendants’ brief on this point leaves a lot to be desired, but it notes

that public interests disfavor overbroad equitable remedies. See ECF

No. 23 at 30. The Court agrees. Thus, as noted, the Court constrains its

analysis to the Schools’ request for a preliminary injunction.

Preliminary injunctions, of course, “are to be treated as the exception

rather than the rule.” Miss. Power & Light Co. v. United Gas Pipe Line

Co., 760 F.2d 618, 621 (5th Cir. 1985). But the Schools carry their burden

of obtaining one here. Accordingly, the Court must determine the most

limited possible scope that will afford “complete relief.” See Califano v.

Yamasaki, 442 U.S. 682, 702 (1979). Having done so, the Court further

agrees with the Department that the injunction “should [] be limited to

the Revised Provision, which is only one among numerous provisions set

forth in the October 31, 2023 Final Regulations.” ECF No. 23 at 31.

Anything broader would be unnecessary to provide complete relief and

would needlessly hinder the Department’s programming. See id.

Accordingly, a limited preliminary injunction as to the Bare Minimum

Rule is properly “tailored to redress the plaintiff's particular injury”

here. See Gill v. Whitford, 585 U.S. 48, 72-738 (2018).

CONCLUSION

For the above reasons, the Schools carry their burden in establishing

the requisite grounds for a preliminary injunction. Accordingly, the

Court GRANTS the Schools’ Motion (ECF No. 5) with respect to its

request for preliminary injunctive relief, but the Court DENIES the

Motion with respect to all other equitable remedies. Thus, the Court

ORDERS that enforcement and implementation of the Bare Minimum

Rule, as described herein and contained in the Department of

Education’s October 31, 2023 Final Regulations, is hereby ENJOINED

pending resolution of this lawsuit.

SO ORDERED on this 21st day of June 2024.

MARK T. PITTMAN

UNITED STATES DISTRICT JUDGE

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