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SEMINARY v. BENNETT

December 19, 1985

BETH ROCHEL SEMINARY, Plaintiff
v.
WILLIAM J. BENNETT, et al., Defendants, UNITED STATES OF AMERICA Intervenor-Defendant



The opinion of the court was delivered by: GREEN

 Plaintiff brings this action seeking a declaratory judgment that the United States Department of Education ("ED") acted without authority when it determined that plaintiff did not satisfy the statutory definition of an institution of higher education pursuant to section 1201(a) of the Higher Education Act of 1965, as amended ("HEA"), 20 U.S.C. § 1141(a) (1985), *fn1" for the period of November 1980 through December 1981. Plaintiff also seeks an injunction barring the ED from requiring plaintiff to repay student aid funds disbursed to plaintiff under the Pell Grant Program, 20 U.S.C. § 1070a (1985), for the 1980-81 academic year. Intervenor-defendant United States of America counterclaims against plaintiff for the $52,268.00 disbursed to the plaintiff under the Pell Grant Program for the 1980-81 academic year, plus interest. Before the Court are cross-motions for summary judgment. For the reasons stated below, the Court grants defendants' motion for summary judgment and denies plaintiff's motion for summary judgment.

 I. Statement of Facts

 Beth Rochel Seminary ("Beth Rochel") is a private, not-for-profit educational institution for Jewish women located in Monsey, New York. Since 1973, Beth Rochel has offered postsecondary education in Judiac studies and currently has certificate programs in Religious Education and Teachers Education. Plaintiff's Statement of Material Facts Not in Dispute ("Plaintiff's Statement") paras. 1, 2.

 In order for a student attending Beth Rochel to receive student financial assistance under the student financial assistance programs authorized by Title IV of the HEA, sections 1070 et seq. (1985), Beth Rochel must qualify as an eligible "institution of higher education." That term, for a private nonprofit educational institution, is defined in section 1141(a) (1985).

 Beth Rochel is not accredited by an agency or association recognized by the ED. Plaintiff's Statement para. 3. However, if an institution satisfies the requirements of the provisions of section 1141(a)(1) through (a)(4), it may still qualify as an eligible institution of higher education if it can meet the requirements of section 1141(a)(5)(B). That section provides:

 
The term "institution of higher education" means an educational institution in any State which
 
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[if not accredited,] is an institution whose credits are accepted on transfer, by not less than three institutions which are so accredited, for credit on the same basis as if transferred from an institution so accredited.

 The statutory definition was carried forward in the duly promulgated regulations published in the Code of Federal Regulations. The regulation defines an eligible institution under the 3IC method as:

 
An institution whose credits are determined by at least three accredited institutions on the same basis as transfer credits from fully accredited institutions.

 34 C.F.R. § 668.2(a)(5)(iv). This alternative to accreditation is known as the "three-institutional-certification method alternative to accreditation" or the "3IC method."

 The Office of Education of the Department of Health, Education, and Welfare (the predecessor of the ED) published a rule in the Federal Register of August 20, 1970, 35 Fed. Reg. 13324 ("August 20, 1970, rule"), setting forth the procedures that an unaccredited institution must follow to qualify as an eligible institution of higher education under the above statutory provision. The rule provides in pertinent part:

 
The U.S. Commissioner of Education hereby adopts the following procedure by which an unaccredited institution may meet the alternative requirement . . . of being an institution whose credits are accepted on transfer by not fewer than three institutions which are accredited by a nationally recognized accrediting agency or association on the same basis as if transferred from an accredited institution. This alternative is referred to as "three-institutional-certification."
 
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Procedure for institutional qualification under three-institutional-certification method. (a) To initiate the procedure an applicant unaccredited institution must submit to the U.S. Commissioner of Education: (1) The names and addresses of not fewer than three institutions of higher education accredited by an accrediting agency or association currently listed in the FEDERAL REGISTER as being nationally recognized agencies or associations, each of which while so accredited and not more than 5 years prior to such submission has accepted the transfer credits (and continues to accept such credits) earned at such unaccredited institution; and (2) the names and dates of transfer of their credits, of at least three students or graduates of the applicant unaccredited institution who have subsequently been enrolled in each of such accredited institutions.

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