Thursday, August 11, 2016
A few days ago the New York Civil Rights Coalition sent a letter to Moraine Valley Community College to
call your immediate attention, and to request your formal response, to the Chicago Tribune August 4th piece, and in other media, about a college course at Moraine Valley Community College reportedly exclusively for black (African-American) students.
Especially concerning to us are quotes attributed to college publications and officials that explain and seemingly justify the racial restrictions on enrollment in the required college course, “College: Changes, Challenges, Choice.” According to published reports and the Chicago Tribune piece, a catalog of course listings Note specifies that registration to a section of the aforementioned course is “limited to African-American students.” The piece quotes the college’s assistant director of communications, Jessica Crotty, as explaining that the course, which meets for 8 weeks, is required to be taken by students in their first year. The catalog describes the course as one that “provides [the student] an opportunity to assess your purpose for college, assess your study strategies, set college and career goals, examine your values and decision-making skills, and develop an appreciation for diversity.”
In explaining and, arguably, defending racial restrictions on some sections of the course, Ms. Crotty is quoted as saying: “Sometimes we set aside sections for specific populations, including veterans and older students.” (Emphasis added). Ms. Crotty added, and I quote: “Students feel comfortable and are more likely to open up because they’re with other students who are like them.” (Emphasis added),
I find it strange indeed that a course that purports to guide and develop students’ “appreciation for diversity” employs racial separatism and segregation as acceptable and effective means for teaching that “appreciation” for diversity. Most shockingly, I find it incredible and disingenuous on the part of any educational institution and/or higher education official to equate offering courses in racially restrictive ways to that of clustering students in focus groups that are not themselves categories prohibited by law or regulation.
Worse, we are shocked and appalled by the notion that racial segregation can be argued for, much less justified, on the premise that statistical data or “social science evidence” may exist somewhere that allegedly supports the college’s policy and/or practice of restricting or conditioning enrollment in a course of study in any academic program by race or skin color. Such argumentation obscures and defies everything we know about the wrong-headedness of classifying and treating students differently by reason of their “race”, and separating them by race and/or skin color in the academy.
Separation or segregation by race defies state and federal laws, and Supreme Court decisions that prohibit differential treatment of black students or of other students because of their skin color or groupings that are premised and justified by stereotypes about their racial group.
Tell me, please, that these media reports are errant.
Tell me, please, that Moraine Valley Community College is not actually segregating students in academic courses by race and/or skin color, in ways that separate them from their peers of other skin colors and in ways that bar any student from enrolling in a course designated for students of a particular race only.
In explicit terms, it is not sufficient for the college to offer psychobabble rationalizations for reprehensible racial classifications and legally and morally suspect groupings. We find it especially abhorrent for a college to project and invoke the bogus argument that any principled or singular objection to classes and courses for blacks only is itself a manifestation of [whites’ and others’] hostility or racism towards blacks. That’s racial and sheer idiocy. Rather, the grouping of black students in a course designated only for “them” is the practice of racism; it is the same as the college decreeing that sections of a course will be restricted to students who are “white/Caucasian,” and, therein, justified in the guise that students of a certain skin color supposedly feel more comfortable in discussing sensitive matters with peers of ‘”their own kind.”
Classes for “whites only” and/or classes for “blacks only” are one and the same—sheer racism. Such racial restrictions violate every tenet of equal protection under the law, and of academic integrity—notably the open pursuit of knowledge. I need not recount here or remind you what the federal and state laws require and prohibit. Indeed, Moraine Valley Community College’s web site and mission statements make clear that its leadership and trustees are keenly aware of the legal framework and guidelines for avoiding discriminatory policies and practices: “It is the policy of Moraine Valley Community College not to discriminate on the basis of race, color…” or “conduct in its educational programs, activities or employment practices” discrimination based on race, color. Thus, we cannot abide the alibis and excuses offered by any official or spokesperson for a community college for registering students—or barring students’ registering or enrollment to any academic offering—on the basis of any student’s race or skin color.
The mocking of the law and the sheer arrogance implicit in decision-making based on race and skin color “differences” are at hand. Any policy or effort that restricts enrollment to a college course on such objectionable and prohibited racial grounds—is profoundly obvious and disturbing. Such racial discrimination raises troubling and substantial questions about the college’s commitment to state and federal law—indeed to the rule of law—and to its commitment to the open pursuit of knowledge which is a fundamental of the academic experience and mission. To defy the law and regulations and academic principles in such a flagrant fashion suggests the lowering if not outright abandonment of rigorous standards of the college’s accreditation. That is why we are addressing this open letter to the college’s president and to the president of the Higher Learning Commission, the college’s accrediting authority. We are also copying this letter to the Chair of the Board of Trustees, because it is our belief that the trustees share responsibility for upholding the law and for fulfilling the college’s academic mission without compromise with fads and racist shenanigans.
With confidence, we are of the opinion that a self-respecting board of trustees and Higher Learning Commission will promptly recognize and act on their duty to intervene and to correct any violations of law and public policy and to remedy any diminution of academic standards. The imposition of any racial qualification or restriction on any student, of any race, to enroll in any college course because of his/her race or skin color, cannot stand. The objection to such race-based restrictions must by definition take exception to any purported rationalization that the affected or excluded racial group will not contest the racial classification. Likewise, we are not impressed with the argument that the affected minority group or the excluded members of other racial groups may “opt” to enroll in alternate courses that do not have the racial restrictions.
Let us be clear; racial segregation as offered or practiced by a community college is objectionable on legal and educational grounds. That there are some blacks, and whites, who advocate such restrictions on course enrollment, matters not the least bit to us. In our view, racial restrictions and qualifications for a course are improper classifications and are evidence of discrimination per se, in purpose and effect. As my mentor, Dr. Kenneth B. Clark, the social psychologist, observed while he was alive—in objecting to the then fashion of separatist fads that were sweeping some college campuses, commented:
“In 1954 [when the U.S. Supreme Court outlawed enforced segregation in public education] it would have been the consensus in the black and white liberal communities that white racism would have gained its greatest triumph had it been able to persuade its black victims that segregation was not only acceptable but desirable in itself, and that the justification for this separatism was color alone.’
Segregation by race then and today is not acceptable; and it is not desirable.
Higher education leaders should express the strongest opposition and outrage over this latest fad and manifestation of racism—that of stereotyping, steering, and segregating students by their “race” and/or skin color into separate courses and classrooms.
If these reports that I have described to you have any ring of truth to them, we urge you to rethink and remove all racial restrictions and qualifications for course-taking at Moraine Valley Community College, forthwith.
The College President, Sylvia Jenkins, immediately recanted, indicating that the "decision has been made to remove all racial restrictions and qualifications for course-taking at Moraine Valley Community College." If winning were only that easy in other instances.
Thursday, May 12, 2016
Second Circuit Restores Class Certification Claim For Former Students Of Failed Vocational School Chain
The Second Circuit recently reversed the dismissal of a class action lawsuit by former students of a chain of cosmetology schools, even though the Department of Education (DOE) had discharged the student loans of the named plaintiffs, because the issue was likely to reoccur with other plaintiffs in the class. The Second Circuit held in Salazar v. King, Sec. of Education, No. 15-832 (2nd Cir. May 12, 2016), that the suit was not moot under an exception for “inherently transitory” class action claims that related back to the complaint's filing. Plaintiffs had alleged in the suit that the beauty school chain, Wilfred American Educational Corporation, fraudulently certified students' eligibility for federal student loans by telling the government that students without a GED or high school diploma had an “ability to benefit” from the program, which the Education Department required to certify eligibility for federal student loans. Wilfred did this by certifying that its students had passed an approved ATB test when they had not. Wilfred, which got nearly 90% of its revenue from student loan payments, eventually closed, leaving many of its attendees without the ability to complete their training. The U.S. government nevertheless required Wilfred students to repay their federal student loans for some years afterwards, some through tax refund seizures and wage garnishments. The Wilfred plaintiffs were never told that their student loans could be discharged by the Education Department if the school falsely certified their eligibility. The Second Circuit reversed the district court's finding that the DOE's actions were unreviewable under the agency discretion doctrine. The opinion is available here.
Tuesday, March 29, 2016
Matthew Bruckner has posted his new paper, Bankrupting Higher Education, to ssrn. He offers this abstract:
Many colleges and universities are in financial distress but lack an essential tool for responding to financial distress used by for-profit businesses: bankruptcy reorganization. This Article makes two primary contributions to the nascent literature on college bankruptcies by, first, unpacking the differences among the three primary governance structures of institutions of higher education, and, second, by considering the implications of those differences for determining whether and under what circumstances institutions of higher education should be allowed to reorganize in bankruptcy. This Article concludes that bankruptcy reorganization is the most necessary for for-profit colleges and least necessary for public colleges, but ultimately concludes that all colleges be allowed to reorganize in chapter 11.
Thursday, February 11, 2016
Monday, November 2, 2015
Prof. Jill C. Engle (Penn State) has posted Mandatory Reporting of Campus Sexual Assault and Domestic Violence: Moving to a Victim-Centric Protocol that Comports with Federal Law on ssrn. Thanks to CrimProf Blog for the tip. Excerpted from the introduction:
Interest in getting campus reactions to [sexual assault] "right" is at an elevated level nationwide in the wake of certain high profile allegations of sexual violence at numerous colleges, including Columbia, Vanderbilt, Yale, Florida State, and the University of Virginia. This Article describes the legal and social landscape of mandatory reporting and the attendant challenges, along with the policies and practices that colleges should adopt for faculty reporting to comply with federal law while still remaining sensitive to victim needs.
Wednesday, July 8, 2015
OCR's Dismissal of Asian Americans' Claim of Discrimination Against Harvard Is Much Ado About Nothing
Yesterday, a number of major new outlets, from the Wall Street Journal and the AP to the Bloomberg and US News & World Report, published stories on the fact that the Office for Civil Rights dismissed the complaint that Asian Americans recently filed against Harvard. The complaint alleged that Harvard systematically discriminates against them in the admissions process. The substance of the complaint and the prestige of the university against which it was filed are both significant. See my prior post on the complaint. That OCR dismissed the complaint, however, is not.
After filing the complaint, the plaintiffs had also filed a lawsuit in federal court. The federal court's jurisdiction exceeds and can preempt that of OCR's. Thus, even if OCR had left the complaint open, the final word would have belonged to the federal court. That OCR, which has a rapidly growing case load, would choose to avoid devoting resources to this complex case makes perfect sense. This not a substantive judgement on the merits of the complaint, as some headlines would leave readers to believe, but just good stewardship of federal dollars. Moreover, if there are issues the federal court does not address, the plaintiffs will be free to revive their complaint with OCR.
Tuesday, June 16, 2015
Yesterday's Los Angles Times offered a pretty bleak picture of the state of public higher education. The overall trend is a sharp increase in tuition since 2008 and a decrease in public funding for universities. In nine states, tuition has increased by more than 50%. The increase in Arizona is a whopping 83.6%. Only ten states managed to keep tuition growth below 15%, which would have amounted to an arguably reasonable set of annual increases (just over 2% a year during a time of non-existent inflation). The California Budget Project goes back further in time a traces the spending on prisons versus universities, finding that in 1980-81 California corrections accounted for 2.9% of the state budget and the state's university systems 9.6%. By 2014-2015, the proportions were reversed -- corrections were 9% of the state budget and the universities down to 5.1%.
The LA Times article does a good job of explaining the politics that is producing this result. But regardless of why it is happening, this declining state support and sharp increase in the cost of attendance also begs the question of how many of our state universities can be fairly characterized as "public" and how long they will continue to be?
Monday, June 8, 2015
This weekend the New York published an opinion piece by Lee Siegel in which he says he was confronted with the choice of "giv[ing] up what had become my vocation (in my case, being a writer) and [taking] a job that I didn't want in order to repay the huge debt I had accumulated in college and graduate school. Or I could take what I had been led to believe was both the morally and legally reprehensible step of defaulting on my loans, which was the only way I could survive without wasting my life in a job that had nothing to do with my particular usefulness to society." He "chose life" and defaulted on his loans. He, of course, then goes on to further support his choice.
Aaron Taylor offers this response:
I recently authored a post lamenting the effects of misinformation on the decision making and outlook of student loan debtors. My premise was that most of the commentary on student loans betokens a fundamental misunderstanding of the student loan system, particularly, the scope and extent of income-based repayment options. This misinformation is especially dangerous because much of it is peddled by individuals who position themselves as experts and publications that are viewed as trustworthy.
Thursday, June 4, 2015
The Department of Education reportedly plans to fund a $1.6 million study to review the effectiveness of online community education, following a number of smaller studies that have found that some students are less likely to complete or to do well in online courses. Last year, the Public Policy Institute of California's study of online community college courses found that student success rates in online courses are between 11 and 14 percentage points lower than in traditional courses. The PPIC's study was noteworthy as California has the nation's largest postsecondary education system. Some good news in the PPIC study found that students who take at least some online courses were more likely than those who take only traditional courses to earn an associate’s degree or to transfer to a four-year institution. More data is available in a 2013 study at Columbia University, Teachers College, Di Xu & Shanna Smith Jaggars, Examining the Effectiveness of Online Learning Within a Community College System: An Instrumental Variable Approach.
Wednesday, February 4, 2015
Mary C. Nicoletta's student note, Proposed Legal Constraints on Private Student Lenders, 68 Vand. L. Rev. 225 (Jan. 2015), is now available on westlaw. She offers this summary:
This Note considers regulatory methods for curbing the high and variable interest rates offered by private student lenders. Part II examines the mechanics of private student loans, describes existing regulations that govern private student lenders, and identifies recent disputes about government-lender relationships. Part III considers a number of methods for addressing high-cost student lending and draws upon the authority of the Consumer Financial Protection Bureau and its regulations governing other types of lending. Part IV proposes, in the short term, instituting enhanced disclosure for high-cost loans and incentivizing lender-school partnerships to help students find low-cost options before they commit to borrowing. In the long term, Part IV argues that lenders should be required to consider a student's projected ability to repay an educational loan before lending. Using ability-to-repay as a prerequisite could decrease overborrowing and default rates and allow students to enter the job market with debt loads that they realistically can repay. As described in Part III, this framework, along with a qualified-loan safe harbor for consumer-friendly mortgages, was implemented for mortgage lenders following the recent financial crisis. Part IV thus proposes that regulators formulate and test an ability-to-repay calculation and a qualified-loan structure that would provide students similar protections as mortgagors currently receive.
Tuesday, January 20, 2015
Monday, December 29, 2014
Title IX compliance will be a critical topic at Stetson University’s National Conference on Law and Higher Education Feb. 12-16, 2015, in Orlando, Florida. From the announcement:
Stetson’s definitive annual conference, now in its 36th year, will bring national leading experts in higher education to Orlando to discuss critical developments in higher education law and policy, particulary in Title IX compliance in the wake of campus rape and sexual assault scandals. Conference participants will participate in rigorous boot camps, workshops, intensive sessions and collaboration with peers and experts. “Every educator in America should be concerned with making college and university campuses safer learning environments, and protecting the campus community from sexual predators. Anyone who works in higher education can benefit from this year’s conference, focused on developing the tools to respond,” said conference chair and Professor of Law Peter F. Lake. Professor Lake is the Charles A. Dana Chair and director of Stetson’s Center for Excellence in Higher Education Law and Policy. For more information, call 727-562-7793 or email email@example.com.
Monday, November 24, 2014
This from the Economic Policy Institute:
On Friday, December 5, at 10:00 a.m. ET, the Economic Policy Institute will host a debate between noted scholars on affirmative action in American higher education, featuring Georgetown University Law Professor Sheryll Cashin and Richard Rothstein, a research associate at EPI. They will be joined by American University Law Professor Lia Epperson, and Catharine Bond Hill, president of Vassar College.
Monday, October 27, 2014
Last year, the district court in Maryland found the state's higher education system in violation of longstanding desegregation precedent. The state had duplicated several programs in the state that had led to the further racial stratification and segregation in the system. See here for me earlier post on the case.
The National Bar Association is sponsoring a panel on the continuing developments and issues in the case this Friday. Participants include Jay Augustine, Adjunct Professor, Southern University Law Center; John Brittain, Professor of Law, David A. Clarke School of Law, University of the District of Columbia; Dr. Ronald Mason, President, Southern University System, and Danielle R. Holley-Walker, Dean & Professor of Law, Howard University School of Law. Southern University Law Center is hosting the discussion. Contact Professor Tracie Woods, firstname.lastname@example.org (225) 771-4680, for more information.
Thursday, October 2, 2014
In a survey of 982 females at the University of Oregon, ten percent indicate having been raped during their time at the school. Very few, however, reported the incident to a university official. I can't say anything more than that those numbers are mind boggling, and the fact the University of Oregon was not on the Department of Education's list of 55 universities and colleges to investigate suggests that there was a flaw in the Department's identification method or Oregon's numbers are not as egregious as other schools. I tend toward the latter explanation, which is even more disturbing. More here.
Thursday, September 4, 2014
Twinette Johnson's new article, Going Back to the Drawing Board: Re-Entrenching the Higher Education Act to Restore Its Historical Policy of Access, 45 Tol. L. Rev. 545 (2014), is now in print and available electronically. She offers this summary in her abstract:
This article explores both the historical entrenchment of the Higher Education Act (“HEA” or “the Act”) and ongoing attempts to retrench it. In it, I argue that Congress should return the HEA to its historical roots and enact reauthorizing legislation that will set the course for re-entrenching the Act and its historical policy. This re-entrenching will properly set the focus of the Act on providing widespread higher education access by creating and implementing new pathways (funding and otherwise) to that access.
Tuesday, July 29, 2014
The Department of Education recently exempted three colleges from Title IX's provision prohibiting discrimination against transgender and gender-nonconforming students. George Fox University (Oregon), Simpson University (California), and Spring Arbor University (Michigan), The exemptions come just three months after the Department of Education's Office for Civil Rights issued a guidance letter to colleges on sexual violence that included transgender students as a protected group under Title IX. The colleges were controlled by a religious organization, a ED spokesperson told the Huffington Post yesterday, and Title IX exempts such organizations from compliance if admitting a student or allowing a student to remain at their institutions would be inconsistent with their religious tenets. While all three colleges requested exemptions from admissions and accomodations for transgender students, one of the schools, Spring Arbor, was also granted permission to discipline students for same-sex "activity," extramarital sex, single parent pregnancies, and having abortions. Professor Kristine E. Newhall (UMass Amherst) told the Huffington Post that the concern is not the statutory exemption, but Education Department's lack of clear criteria "about what a school must meet to show [that it is] controlled by a religious organization." Read more here.
Monday, July 28, 2014
AALS Section on Education Law Call for Papers, January 2015 Annual Meeting, Washington, DC
The Section on Education Law of the Association of American Law Schools issues this call for papers in connection with its program at the AALS annual meeting Jan. 2nd-5th, 2015 in Washington, DC. The program topic is “The Higher Education Act at 50.”
When President Lyndon Johnson signed the Higher Education Act in San Marcos, TX on November 8, 1965, he said to the assembled crowd, “And when you look into the faces of your students and your children and your grandchildren, tell them that you were there when it began. Tell them that a promise has been made to them. Tell them that the leadership of your country believes it is the obligation of your Nation to provide and permit and assist every child born in these borders to receive all the education that he can take.” This Program will take stock of that promise on the fiftieth anniversary of its making. A distinguished panel of higher education law professors and policy makers, to include Professor Michael Olivas of the University of Houston Law Center, Professor Philip Schrag of Georgetown University Law Center, and Catherine Lhamon, the Assistant Secretary of Education for the Office for Civil Rights, will consider and discuss the financial, educational, and civil rights aspects of the HEA and its subsequent amendments as we move into the second half-century of its existence.
Thursday, July 24, 2014
Professor Dan Subotnik (Touro Law) sent us An Anti-Rape Measure Too Far? analyzing a bill in the California legislature, which, if it becomes law, is likely to become as noteworthy as Antioch College’s Sexual Offense Prevention Policy. California SB 967 would require college students to secure “affirmative consent” from their partners before having sex. "Affirmative consent” is defined in the bill as “affirmative, conscious, and voluntary agreement to engage in sexual activity.” The bill’s author, California state senator Kevin de Leon, told the Washington Times that SB 967 “will change the equation so the system is not stacked against survivors by establishing an affirmative consent policy to make it clear that only ‘yes’ means ‘yes.’” The bill’s supporters describe SB 967 as providing “clearer guidance” on rape prevention and providing justice and adequate services to victims. Opponents criticize the bill as “unnecessary, misdirected and vague” and likely to “result in the unfair treatment of men,” as noted in its synopsis here. If the bill becomes law, colleges must use the legislature’s definition of consent in their sexual assault policies or risk losing state funding for student financial aid. Readers may recall the deep controversies that campus rape laws and sexual assault policies can engender, including concerns about privacy, due process, and the rights of victims and the accused.
In his piece, Prof. Subotnik concludes that the reality and psychology of sexual encounters confound attempts to regulate sex through campus affirmative consent laws. Read An Anti-Rape Measure Too Far after the jump.
Tuesday, July 22, 2014
Much of the federal government's interest in creating accountability standards for higher education focuses on the cost and student loan debt. The media has recently highlighted the rising amount of student debt. However, a recent report gives a different perspective to the student loan debate: that the rising interest in protecting students against substantial loan debt is a factor of more upper and middle class students needing to take out loans. A recent post at Brookings Institution states "findings [that] suggest that the recent surge in attention paid to student loans may
stem in part from increasing debt among high-income households." The author, Matthew M. Chingos, explains:
An era in which students from low-income families used loans to supplement grants has given way to a system dominated by the wealthiest Americans, many of whom were born to affluent parents. This trend supports the theory that the intensification of the public debate over student loans may be due in part to the increased prevalence of debt among more affluent households. Given the unlikely reversal of this trend, political pressure on policymakers to offer broad-based “relief” to borrowers, such as a reduction in interest rates, may continue to intensify. Absent credible evidence that such a policy would have a large “trickle-down” effect on the broader economy, policymakers should instead focus on the core mission of the federal loan program: promoting access to higher education on terms that are fair to both students and taxpayers.
Read Why Student Loan Rhetoric Doesn’t Match the Facts here.