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 firstname.lastname@example.org.
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, email@example.com (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.
Tuesday, May 20, 2014
Suzanne Mettler has written a new book, Degress of Inequality: How Higher Education Politics Sabotaged the American Dream. She argues that our higher education system, rather than creating a opportunity for the disadvantaged or leveling the field somewhat, skews it further. Her promotion materials summarize the book as follows:
America’s higher education system is failing its students. In the space of a generation, we have gone from being the best-educated society in the world to one surpassed by eleven other nations in college graduation rates. Higher education is evolving into a caste system with separate and unequal tiers that take in students from different socio-economic backgrounds and leave them more unequal than when they first enrolled.
Until the 1970s, the United States had a proud history of promoting higher education for its citizens. The Morrill Act, the G.I. Bill and Pell Grants enabled Americans from across the income spectrum to attend college and the nation led the world in the percentage of young adults with baccalaureate degrees. Yet since 1980, progress has stalled. Young adults from low to middle income families are not much more likely to graduate from college than four decades ago. When less advantaged students do attend, they are largely sequestered into inferior and often profit-driven institutions, from which many emerge without degrees—and shouldering crushing levels of debt.
In Degrees of Inequality, acclaimed political scientist Suzanne Mettler explains why the system has gone so horribly wrong and why the American Dream is increasingly out of reach for so many. In her eye-opening account, she illuminates how political partisanship has overshadowed America’s commitment to equal access to higher education. As politicians capitulate to corporate interests, owners of for-profit colleges benefit, but for far too many students, higher education leaves them with little besides crippling student loan debt. Meanwhile, the nation’s public universities have shifted the burden of rising costs onto students. In an era when a college degree is more linked than ever before to individual—and societal—well-being, these pressures conspire to make it increasingly difficult for students to stay in school long enough to graduate.
By abandoning their commitment to students, politicians are imperiling our highest ideals as a nation. Degrees of Inequality offers an impassioned call to reform a higher education system that has come to exacerbate, rather than mitigate, socioeconomic inequality in America.
For those of us teaching in higher education, the book will likely ring painfully true. The most obvious problem in law school, for instance, is the almost complete disappearance of need based aid. Those students least in need of aid more frequently go to law school for free, or near free, and tend to land higher paying jobs upon graduation. For these students, law school is an extremely great deal. Those students more in need get almost nothing and often secure lower paying jobs. None of this is to say that students receiving scholarships have not earned them, nor that law school fails to deliver substantial benefits to high need students. My only point is that students who "need" help rarely get it in law school today.
For an interview with Mettler, see here.
Monday, April 28, 2014
The Supreme Court’s recent decision in Schuette v. Coalition to Defend Affirmative Action affirmed the ability of states to ban the use of racial preferences in state institutions of higher education. Although those committed to diversity in higher education view this decision as further evidence of the erosion and eventual demise of affirmative action, this decision also should serve as a wake-up call that the nation must undertake a renewed effort to close the opportunity gap in elementary and secondary education.
The Supreme Court has been tolling the death knell for affirmative action for many years. The Schuette decision is merely further evidence that the end is not far off. In the 2003 decision in Grutter v. Bollinger, the court approved the consideration of race as one factor among many in creating a diverse class at the University of Michigan Law School. However, Justice Sandra Day O’Connor’s majority opinion noted that given the growing number of minority applicants who had earned high test scores and grades, “[w]e expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”
In the 2013 decision in Fisher v. University of Texas, the Supreme Court permitted colleges and universities to prove their continued need to sometimes consider the race of students to admit a diverse student body. Yet, the court’s constitutional analysis can trap many institutions between the Scylla of insufficient evidence on the racial composition needed to reap the benefits of diversity, and the Charybdis of specific evidence regarding how much diversity they seek, which the court is likely to label a quota.
Undoubtedly, Schuette’s approval of state bans on racial preferences will advance the eventual demise of affirmative action by removing all constitutional barriers to such bans. Schuette also will embolden supporters of those bans to seek similar bans in other states.
The erosion and impending demise of affirmative action must serve as a reminder that the continued need to use affirmative action is caused in substantial part by the nation’s failure to remedy the opportunity gap that continues to plague our nation’s elementary and secondary schools. Far too many minority students and poor students of all races continue to attend schools with the least effective teachers, inadequate resources and poorly maintained facilities when compared to their more affluent peers, as President Obama’s Equity and Excellence Commission report confirmed last year.
The need to end this deeply entrenched opportunity gap is a moral imperative for the foundation of a just and equitable society. Justice Anthony Kennedy acknowledged this when he stated that “[t]his Nation has a moral and ethical obligation to fulfill its historic commitment to creating an integrated society that ensures equal opportunity for all of its children” in his 2007 opinion in Parents Involved in Community Schools v. Seattle School District.
Moreover, both those who support affirmative action and those who seek to abolish it bear the heavy costs of the educational opportunity gap. Research establishes that the current failure to provide an adequate education to all schoolchildren costs the nation billions in lost taxes, public assistance, criminal justice support and health care costs. For instance, the nation forfeits $156 billion in income and tax revenues during the life span of each cohort of students who do not graduate from high school. (“The Price We Pay: Economic And Social Consequences Of Inadequate Education,” Clive R. Belfield & Henry M. Levin, eds. 2007). Furthermore, the cost of the opportunity gap will increasingly weaken our economy as the changing economy demands more workers with higher-level skills and the number of Hispanic and African-American children becomes an increasingly larger share of the school-age population.
Affirmative action is in part a bandage that seeks to reduce the hemorrhaging from our broken elementary and secondary school system. It is important to keep this bandage in place as long as possible or the hemorrhaging will increase. Therefore, those committed to diverse institutions of higher education and a diverse workforce must continue to push for race-sensitive approaches as well as race-neutral means to achieve diversity in higher education.
In addition to these critical efforts, the United States must wake up to the need for comprehensive reforms that close the educational opportunity gap. Scholars, activists, business leaders and ultimately the public must call on leaders in Congress and the White House, as well as in state legislatures and local school boards, to take action to close this gap. Ultimately, if the nation fails to take on this challenge now, it does so at its own peril.
Kimberly Jenkins Robinson is a professor at the University of Richmond School of Law and a senior fellow at the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School. Contact her at firstname.lastname@example.org.
Tuesday, March 18, 2014
The Department of Education announced new regulations Friday for-profit career institutions to show that they are preparing students for gainful employment. This is the Obama administration's second round of "gainful employment" rulemaking after a federal district court struck down the ED's first set of regulations, Program Integrity, in 2012. In Ass'n of Private Colleges & Univ. v. Duncan, 870 F.Supp.2d 133 (D.D.C. 2012), the U.S. District Court for the District of Columbia vacated the regulations as arbitrary because the ED had not given a “reasoned explanation” for its student debt repayment rate test that required that at least 35% of an institution's graduates had to be repaying their student loans for a for-profit to qualify for Title IV student aid. The Department said the 35% rate identified the lowest-performing quarter of for-profit institutions. The ED has set new metrics in its latest proposed regulations. From the ED's statement on Friday, the new regulations require that "the estimated annual loan payment of typical [career college] graduates does not exceed 20 percent of their discretionary earnings or 8 percent of their total earnings and the default rate for former students does not exceed 30 percent" and that "institutions must publicly disclose information about the program costs, debt, and performance of their gainful employment programs so that students can make informed decisions." The administration is targeting student outcomes in some of the nation's for-profit colleges, which represent about 13 percent of the total higher education population, but about 31 percent of all student loans and nearly half of all loan defaults. The administration says that 72% of for-profit gainful employment programs produced graduates that earned less than high school dropouts. Read the proposed regulations here.
Tuesday, March 11, 2014
I have long argued that once federal student loan debtors began to have their loan balances forgiven through the various income-based repayment options the whole narrative about student loans would change. All of a sudden, student loan debtors would go from being hapless victims of an exploitive system to being crafty beneficiaries of an exploitable system. It has been my prediction that this shift in narrative would result in political backlash against the forgiveness provisions that would result in a tightening of eligibility requirements—or the doing away with the provisions altogether.
We have seen this type of overreaction before. Up until the 1970s, student loan debt was dischargeable in bankruptcy to the same extent as other forms of unsecured debt. But sensationalized stories about doctors and lawyers receiving discharges just before embarking on lucrative careers prompted Congress to impose increasingly onerous restrictions on the discharge of student loan debt. And while the perceived impossibility of student loan discharge is overblown, there are undoubtedly debtors facing genuine hardships who are not afforded the benefit of a fresh start through bankruptcy, all because a few debtors abused the system.
Unfortunately, the Obama Administration’s newly-released budget proposal appears intent on forestalling any media backlash about the forgiveness provisions. One specific proposal calls for capping the eligibility for Public Service Loan Forgiveness (PSLF) at the maximum aggregate loan limit for independent undergraduate students—currently $57,500. The effect of such a cap would be to essentially render graduate and professional school loans ineligible for forgiveness through the PSLF program.
As it currently works, PSLF allows debtors who qualify for hardship, or income-based, payments to seek forgiveness of their student loan debts after making 120 monthly payments while employed in an eligible public or non-profit sector job. The program was signed into law during the waning days of the George W. Bush presidency, as part of the College Cost Reduction Act. The twin purposes of PSLF were 1) to provide relief for debtors struggling to make student loan payments and 2) to incentivize employment in the public and non-profit sectors, especially among those who may have more lucrative options in the private sector.
There are no caps on the amount of debt that is eligible for forgiveness, a logical omission given the high cost of higher education. But if the proposed changes are adopted, any amount above $57,500 would be subject to a 25-year window (300 monthly payments, with any forgiven amounts counted as income for the tax year in which they are forgiven). This cap would render the program ineffective at serving either of its original purposes—especially for individuals with graduate and professional school debt.
But once again, there is a theme here. In 2011, the President signed a bill ending student loan interest subsidies for needy graduate and professional school students. The ostensible reason was to shore up the need-based Pell Grant program, which was under fire by Republicans. Unfortunately, this political compromise is costing the typical needy graduate or professional school student thousands of dollars in additional accrued interest—an absurd proposition when you consider that the federal government generated $66 billion in profit from student loan debtors between 2007 and 2012.
The stated justification for capping PSLF is to keep schools from increasing tuition. In other words, the Administration wants to punish students for the “sins” of their schools. It seems that Georgetown Law School’s manipulation of its tuition rate to take full advantage of the PSLF program means that every student who pursues an educational path that ends up costing more than $57,500 will have to suffer. This is a wrongheaded and patently unfair approach.
There are perverse political forces lurking beneath the surface as well. There has always been suspicion of the federal student aid program. So "reforms" typically work against students. Additionally, this Administration seems to believe that graduate and professional school students are undeserving of support and hardship relief. The reality, however, is very different.
Not every graduate and professional school student is a trust fund baby or destined for a lucrative career, especially not early on. Many of these students struggle with the same types of hardships facing the neediest undergraduate students—and when it comes to student debt, these students are carrying the heaviest burdens. In higher education, the vast majority of students must pay to play. Unfortunately, the game is expensive—often much more than $57,500. Moreover, when you consider that student loans are often the only means of financing education for individuals from poor backgrounds, the effect of this proposal would be most severe on those who already have the least.
It is irresponsible to try to control college costs on the backs of students, not to mention baffling that this Administration would open budget negotiations with such a willingness to sacrifice needy students. The budget proposal has been characterized as “dead on arrival” (largely because of its attempts to expand the social safety net in other areas); we should all hope that provisions such as the PSLF cap are not selectively resurrected.