Education Industry Reporter

Case Notes: Supreme Court Declines to Hear University Free Speech Cases

Posted in Case Notes, First Amendment, Higher Education News, Litigation News

CONTRIBUTED BY
Kimberly Mitchell

The Supreme Court recently denied certification in two free speech cases involving decisions made by public universities, Dixon v. University of Toledo and Ed Ray v. OSU Student Alliance.

In Dixon, a former interim Associate Vice President for Human Resources at the University of Toledo petitioned the Court to determine whether the Sixth Circuit properly held that the  University did not violate her First Amendment rights when it fired her for publishing an opinion editorial on gay rights and the denial of certain health benefits to University employees in same-sex relationships.  Dixon argued that she wrote the editorial as a private citizen addressing a public concern and, therefore, the Sixth Circuit erred by upholding the University’s action under the “policymaker exception,” which favors the employer when a policymaking employee engages in speech on a policy issue related to his/her position.  The Supreme Court denied certification, leaving a split amongst the circuits over who qualifies as a policymaker for the purpose of resolving conflicts between a government employee’s free speech rights and a government employer’s right to terminate employment.

In Ed Ray, Oregon State University (OSU) petitioned the Court for review of the Ninth Circuit opinion holding that university officials may be individually liable for violating the constitutional rights of a group of student journalists.  In this case, unknown university employees confiscated news bins distributing a conservative student newspaper.  The Ninth Circuit held that the student journalists adequately pled that the University violated their Free Speech, Equal Protection and Due Process rights. The Court also held that the complaint properly tied theses violations to the four individual defendants, who were senior University officials, despite that the students did not know the identities of the employees who threw the news bins into the trash or who gave the order to confiscate the bins.  The University’s petition challenged whether a government official can be held liable under 42 U.S.C. § 1983 if he/she had knowledge of unlawful conduct or action, or whether the government official must have themselves engaged in some unlawful conduct or action.  The Supreme Court declined to clarify this issue, which originated from language in the Supreme Court’s pleading standard case, Ashcroft v. Iqbal, 556 U.S. 662 (2009).

Department of Education Announces Negotiators for Rulemaking Concerning the Violence Against Women Reauthorization Act of 2013

Posted in Clery Act, Department of Education, Higher Education News, Higher Education Policy

CONTRIBUTED BY
Dennis Cariello

Following up on our prior coverage of this rulemaking session, late last week, the U.S. Department of Education (Department) announced the negotiators for the rulemaking session seeking to “prepare proposed regulations to address the changes to the campus safety and security reporting requirements in the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act, made by the Violence Against Women Reauthorization Act of 2013 (VAWA).”  The negotiations sessions, which start on January 13-14, 2014 (and continue on February 24-25, and then end on March 31-April 1), run from 9:00 a.m. to 5:00 p.m. and will be held at the Department’s office at 1990 K Street, N.W., Eighth Floor Conference Center, Washington, DC 20006.  Gail McLarnon was named the Department’s negotiator.

Additional information, including the original Federal Register Notice, can be found on the Department’s VAWA Negotiated Rulemaking web site.  This will be an interesting session and will attempt top answer a number of difficult questions.  My presentation on the changes required by VAWA tries to highlight a few of the more thorny topics.

 

Final Gainful Employment Rulemaking Session Scheduled for Friday, December 13

Posted in Department of Education, Education Data & Statistics, Gainful Employment, Higher Education News, Higher Education Policy

CONTRIBUTED BY
Dennis Cariello

Politico’s Libby Nelson, in today’s “Morning Education” email (and in a tweet on Black Friday) reports that the U.S. Department of Education “has scheduled its third session of negotiated rule-making on the ‘gainful employment’ rule for Dec. 13 from 9 a.m. to 5 p.m. at the Education Department’s 1990 K St. offices, according to an email sent to negotiators Friday.”  This is also the last day of the next NACIQI meeting (the Department’s advisory committee on accreditation).  In case you are curious, 1990 K Street is no where near 415 New Jersey Ave. NW. (where the NACIQI sessions will be held).

As you may recall from our past reporting, one of the purposes of this session is to review data on the anticipated effect of the proposed rules.  It will be interesting to see how these various rules shake out and if there are a number of programs that would pass the debt metrics proposed in September, but would fail the new measures proposed by the Department before the last session.

UPDATE (8:23 PM): The Federal Register has the pre-publication notice for the new session.  Nothing else of note in the notice.

Some Thoughts on the Latest Round of Gainful Employment Negotiated Rulemaking Part 2

Posted in Department of Education, Gainful Employment, Higher Education News, Higher Education Policy

CONTRIBUTED BY
Dennis Cariello

Something that seems clear after two rounds of negotiated rulemaking is the lack of trust those aligned with consumer advocates have for proprietary schools.  As I recall, one negotiator suggested they needed to think “deviously” when considering how a proprietary school would game the rules.  I understand these folks hear some very sad and angering stories from students that have been legitimately harmed – and we need to protect those students that are treated unfairly at any institution.  But, as one negotiator said, “the plural of anecdote is not data.”  The vast majority of schools are attempting, in good faith, to help their students improve their lives through education and, in fact, are doing a pretty good job providing students with the skills and education sought.  Even the NY Federal Reserve – in a report I will discuss in another post – noted that proprietary schools offering two-year degrees and certificates have completion rates that are “reasonably good” (57% graduate in 150% of normal time for two-year degrees, 66% graduate in 150% of normal time for degrees under two years).  Indeed, the proprietary school negotiators selected by the Department are sterling examples of my point.

The issue came to a head, I think, as related to Marc Jerome’s proposal to, in essence, be able to supplant student borrowing with institutional aid if that program has failed for one year to meet the debt-to-income or debt-to-discretionary income test.  As I see it, this is a very pro student proposal; in essence, he wants the ability to give away money to students to keep them from borrowing.  It would be done with the knowing consent of the students (they’d have to sign a document, presumably showing how much they could have borrowed and that they are not going to take out a loan for that amount and will instead get funds from the school).  The questioning however, was as intense as it’s been about anything else.  Concerns were expressed about letting a failing program have a “second bite at the apple,” and how schools would use this to game the rules – including finding ways to raise tuition and use this to reset the bar at the upper limit of the metric set by the Department.  It seemed, amidst these attempts to figure out how some school could leverage this proposal to ”game” the rule, that the proposal at issue was one in which an institution could request the ability to provide free money to students to lower student debt.  To the Department’s credit, it embraced this idea (John Kolotos called it the “most proactive” idea negotiators put forth related to student debt). It seems, however, everyone should rally around such a pro-student measure, notwithstanding their opposition to each other on other issues.

Some Thoughts on the Latest Round of Gainful Employment Negotiated Rulemaking Part 1

Posted in Department of Education, Gainful Employment, Higher Education News, Higher Education Policy

CONTRIBUTED BY
Dennis Cariello

I will apologize upfront for the length of this post.  Or that there will be multiple posts on this.  There’s just a lot to say after this latest session of gainful employment negotiated rulemaking.

For those of you that have missed the news, the Department of Education requested, and the negotiation committee agreed, to hold one more round of negotiations.  The sessions will last one or two days and happen somewhere between December 9-20.  If the goal is to achieve consensus around the proposal – or at least reach some agreement on some ideas – this is a good move.  I thought the Department made a mistake in not planning on holding three sessions in the first place.  While I understood the rationale – the Department has, after all, already held three sessions on this rule in the past, so everyone knows the issues – I thought not holding the last session failed to respect the normal process: the first session negotiators meet each other and talk philosophy; the second session they discuss actual proposals and coalesce; and the third session they negotiate over actual language.  Although many negotiators had a fairly solid grounding in the issues this time around, the process still remained the same, and wasn’t appreciably advanced by the Department’s release of proposed rule language prior to the first session.  I would, however, be remiss in not acknowledging that the Department’s dramatic revision to that first proposal prior to the second session also likely played a role in the failure to complete in two sessions.  By adding two new metrics, making schools comply with three of four of the proposed metrics, and not having data regarding how the two metrics would affect school programs, it may have been too much to expect negotiators to be in a position to vote on consensus this round.  Nonetheless, the Department deserves kudos for recognizing all of this and proposing to hold another session.

That said, I am curious how this final session will go.  Ostensibly, the purpose was to provide data to the negotiators on the effect of the new metrics.  What is unclear to me is whether the data will make any difference to the Department.  Indeed, the Department seemed to suggest that the main policy proposal (the four metrics) wasn’t going to change.  While we don’t have a transcript of the proceedings (the committee voted not to transcribe the proceedings on the first day of the first session), Ben Miller of the New America Foundation has done a live blogging of the sessions that squares with my recollection of the discussion:

Jones from Strayer says he appreciates the attempt to get data. He asks about the process going forward. He notes that some of the ideas the Department has put forward lies in the impact of the data. He asks if the terms of the rule appear to be set, what is the point of the data if there isn’t openness to using that data to find some critical underlying points. He says if the Department is going to have the data would it be used to revisit core components of the rule. Kolotos says it will give the data and we can discuss the metrics, but it must be done in one day and not have session after session. Jones says he in particular is concerned about the impact of complying with one of three metrics versus having to comply with all three metrics.

. . . .

Kolotos responds to Jones. He says he believes the Department put forward the right policy. The data should inform the policy, but it should not drive it. That seems to suggest that the policy should not be driven by the outcomes estimates but by what makes sense from a policy standpoint. (Italics in original).

I see this as an overreaction – perhaps an understandable one – to the court’s decision dealing with the last gainful employment rule.  As you may recall, the court in that case upheld the debt-to-income measures as the product of reasoned rulemaking but struck down the loan repayment metric.  While the court found that the Department based the debt metrics on “expert studies and industry practice,” which resulted in a “rational connection to the facts found tand the choice made,” the loan repayment metric was said to be based on an outcomes driven analysis:

The debt repayment standard, by contrast, was not based upon any facts at all. No expert study or industry standard suggested that the rate selected by the Department would appropriately measure whether a particular program adequately prepared its students. Instead, the Department simply explained that the chosen rate would identify the worst-performing quarter of programs. Why the bottom quarter? Because failing fewer programs would suggest that the test was not “meaningful” while failing more would make for too large a “subset of programs that could potentially lose eligibility.”  That this explanation could be used to justify any rate at all demonstrates its arbitrariness. If the Department had chosen to disqualify the bottom ten percent of programs, or the bottom half, it would have offered the same rationale: the rate chosen disqualified the percentage of programs that it was intended to disqualify, and to have disqualified fewer would have made the test too lenient while disqualifying more would have made the requirement too stringent. This is not reasoned decisionmaking. “As an expert agency, [the Department’s] job is to make rational and informed decisions on the record before it in order to achieve the principles set by Congress. Merely . . . picking a compromise figure is not rational decisionmaking.” In setting the debt repayment rate, the Department picked a palatable figure. Because the Department has not provided a reasonable explanation of that figure, the court must conclude that it was chosen arbitrarily.  (Decision, at page 31 (citations omitted).

As I read this case, the Department need not ignore what the data shows in coming up with the rule – the court only held that the data can’t be the sole basis for a rule.  Indeed, if a given rule would eliminate all or substantially all of a certain type of program, that should be a good reason to go back to the drawing board.  Now, I may be reading the Department incorrectly here; the folks I know at the Department are reasonable and would want that data so they could see the effect of the rule before they publish the rule.  I just hope the court’s decision hasn’t gotten the Department thinking otherwise.

The Department of Education Announces More Negotiated Rulemaking

Posted in Credit Hour, Department of Education, Financial Aid (Loans & Grants), Higher Education News, Higher Education Policy, State Authorization

CONTRIBUTED BY
Dennis Cariello

It will be a very busy year for the U.S. Department of Education (Department).  Already engaged in a controversial negotiated rulemaking on “gainful employment,” and having announced a rulemaking on the implementation of the Violence Against Women Reauthorization Act of 2013, the Department published a notice in the Federal Register of its Intention To Establish a negotiated rulemaking committee to discuss topics for “Program Integrity and Improvement.”  The committee meetings will be held at the Department’s offices at 1990 K Street NW., Eighth Floor Conference Center, Washington, DC 20006.  The committee will meet from 9am -5 pm on the following days:

  • Session 1: February 19-21, 2014
  • Session 2: March 26-28, 2014
  • Session 3: April 23-25, 2014

The “Program Integrity and Improvement” rulemaking will likely focus on six topics:

  • Cash management of funds provided under the title IV Federal Student Aid programs, including the use of debit cards and the handling of title IV credit balances.
  • State authorization for programs offered through distance education or correspondence education.
  • State authorization for foreign locations of institutions located in a State.
  • Clock to credit hour conversion.
  • The definition of “adverse credit” for borrowers in the Federal Direct PLUS Loan Program.
  • The application of the repeat coursework provisions to graduate and undergraduate programs.

The Department is seeking nominations for this committee.  All nominations should be received by December 20, 2013.  The nominees  should fill one of the following constituencies that “are significantly affected by the topics proposed for negotiations”:

  • Students.
  • Legal assistance organizations that represent students.
  • Consumer advocacy organizations.
  • State higher education executive officers.
  • State attorneys general and other appropriate State officials.
  • Business and industry.
  • Institutions of higher education eligible to receive Federal assistance under title III, Parts A, B, and F, and title V of the HEA, which include Historically Black Colleges and Universities, Hispanic-Serving Institutions, American Indian Tribally Controlled Colleges and Universities, Alaska Native and Native Hawaiian-Serving Institutions, Predominantly Black Institutions, and other institutions with a substantial enrollment of needy students as defined in title III of the HEA.
  • Two-year public institutions of higher education.
  • Four-year public institutions of higher education.
  • Private, non-profit institutions of higher education.
  • Private, for-profit institutions of higher education.
  • Regional accrediting agencies.
  • National accrediting agencies.
  • Specialized accrediting agencies.
  • Financial aid administrators at postsecondary institutions.
  • Business officers and bursars at postsecondary institutions.
  • Admissions officers at postsecondary institutions.
  • Institutional third-party servicers who perform functions related to the title IV Federal Student Aid programs (including collection agencies).
  • State approval agencies.
  • Lenders, community banks, and credit unions.

 

Senate Forms Task Force to Review Higher Ed Regulations and Reporting Requirements

Posted in Higher Education News, Higher Education Policy, News from the Hill

CONTRIBUTED BY
Dennis Cariello

In an statement earlier today, Senate education committee Ranking Member Senator Lamar Alexander (R-Tenn.), and members Barbara Mikulski (D-Md.), Richard Burr (R-N.C.), and Michael Bennet (D-Colo.) “announced the formation of a task force to examine burdens on institutions of higher education.”  The “Task Force on Government Regulation of Higher Education” will review federal regulations and reporting requirements affecting colleges and universities and “make recommendations to reduce and streamline regulations.”

The task force is to be co-chaired by Nicholas Zeppos, chancellor of Vanderbilt University, and William Kirwan, chancellor of the University System of Maryland.  It will comprise 14 college and university presidents and higher education experts. Also, the American Council on Education will provide organizational assistance.

Department of Education Publishes Change to NACIQI Schedule

Posted in Accreditor News, Department of Education, Higher Education News, Higher Education Policy

CONTRIBUTED BY
Dennis Cariello

Earlier today, the Department of Education published a notice in the Federal Register (78 FR 68832) announcing revisions to the agenda for the December 12-13, 2013 meeting of the National Advisory Committee on Institutional Quality and Integrity (NACIQI).  This is a follow up to meeting notices published on August 19, 2013 (78 FR 50401), and October 30, 2013 (78 FR 64929).

This notice removes the petition for initial recognition submitted by the Association of Institutions for Jewish Studies (AIJS) from the agenda.  In addition, the election of a NACIQI Chairperson and a Vice Chairperson will precede the Committee’s review of agencies scheduled for review.

As a reminder, the NACIQI meeting will be held on December 12-13, 2013, from 8 a.m. to 5:30 p.m. at the Liaison Capitol Hill Hotel, 415 New Jersey Ave. NW., Washington, DC 20001.  NACIQI will be considering the following actions:

Petitions for Continued Recognition Accrediting Agencies
1. Council on Accreditation of Nurse Anesthesia Educational Programs (COANAEP)
2. Council on Education for Public Health (CEPH)
3. Northwest Commission on Colleges and Universities (NWCCU) (regional accreditor – covers Alaska,
Idaho, Montana, Nevada, Oregon, Utah, and Washington)
4. Western Association of Schools and Colleges, Accrediting Commission for Community and Junior Colleges (WASC–ACCJC) (regional accredior – covers  associate degree-granting at schools in California,
Hawaii, the United States territories of Guam and American Samoa, the Republic of Palau, the Federated States of Micronesia, the Commonwealth of the Northern Mariana Islands, and the Republic of the Marshall Islands)

State Approval Agency for Nurse Education
1. North Dakota Board of Nursing (NDBN)

Petitions for Recognition Based on a Compliance Report
1. American Podiatric Medical Association (APMA)
2. Association for Clinical Pastoral Education, Inc. (ACPEI)
3. Commission on English Language Program Accreditation (CEA)
4. Council on Chiropractic Education (CCE)
5. Joint Review Committee on Education in Radiologic Technology (JRCERT)
6. Montessori Accreditation Council for Teacher Education (MACTE)

State Approval Agency for Nurse Education
1. New York State Board of Regents, State Education Department, Office of the Professions (Nursing Education) (NYBRN)

State Approval Agencies for Vocational Education
1. New York State Board of Regents, State Education Department, Office of the Professions (Public Postsecondary Vocational Education, Practical Nursing)
2. Oklahoma Board of Career and Technology Education (OBCTE)
3. Pennsylvania State Board of Vocational Education, Bureau of Career and Technical Education (PSVBE/BCTE)

Appeals Court Limits Ability of In-House Counsel to Serve as Relator in False Claims Act/Qui Tam Case

Posted in False Claims Act, Litigation News, Qui tam

CONTRIBUTED BY
David P. Lewis

The United States Court of Appeals for the Second Circuit recently issued an important ruling restricting in-house counsel from acting as whistleblowers in litigation against their current or former employers.  The decision, in United States ex. rel. Fair Laboratory Practices Associates v. Quest Diagnostics Inc., comes at a time of increased concern that lawyers serving as in-house counsel or compliance officers may “switch sides” and act as whistleblowers against their employers.

While the Second Circuit case involved a company in the health care industry, the decision has application to whistleblower claims involving companies in any industry that is subject to the False Claims Act, including education. Our DLA Piper colleagues Mark Nadeau, Laura Kam, and Cole Schlabach, who recently defended a similar case on behalf of an education company, have written this article analyzing the Second Circuit decision.