Posted on February 5, 2010 by Todd Sorensen

Court Rules Washington State Failed To Comply With Constitutional Mandate on Education

On February 4, 2010, in a remarkable decision regarded as the “biggest education-finance lawsuit in three decades,” King County Superior Court Judge John P. Erlick declared that the Washington State Legislature has failed to satisfy the State Constitutional mandate to provide ample education, and ordered the State to remedy its failure.

The litigation started over three years ago, when a collection of parents, students, school districts and community organizations filed suit against the State of Washington, alleging that the State had failed to make ample provision for the education of its children as required by the State Constitution. Article IX, Section 1 of the Washington State Constitution provides: “It is the paramount duty of the state to make ample provision for the education of all children within its borders, without distinction or preference on account of race, color, caste or sex.”

In its decision, the Court carefully defined the terms “paramount,” “ample” and “education” as used in Article IX, Section 1 of the State Constitution. The word “‘paramount’ means that the state must fully comply with its duty under Article IX, §1 as its first priority before all others.” “Ample” means “considerably more than just adequate or merely sufficient . . . so no public school has to turn to or rely upon local levies, PTA fundraisers, private donations, or other non-State sources to provide all of its children the ‘education’ specified in Article IX, § 1.” The term “Education,” the court found, includes a myriad of competencies, as well as skills and knowledge specifically identified in existing state legislation.

The Court recognized that “Washington’s crisis in education is a microcosm of that of the nation.” Nonetheless, the State Legislature’s failure to satisfy the unique Constitutional mandate could not be brushed aside: “The Respondent State has no discretion in whether or not it will comply with the duties mandated by the Washington State Constitution.”

At the end of an exhaustive 73-page analysis, the Court concluded that “[t]he Respondent State is not currently complying with its legal duty under Article IX, § 1 of the Washington Constitution.” The Court ordered the State to: “(1) establish the actual cost of amply providing all Washington children with the education mandated by this court’s interpretation of Article IX, §1, and (2) establish how the Respondent State will fully fund that actual cost with stable and dependable State sources.”

An appeal may very well follow, and it remains unclear from the Court’s opinion whether the State may already be on its way to complying with the order by virtue of House Bill 2261, passed last year.
 

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Posted on January 29, 2010 by Rachel Robinson

Oregon Legislative Update-Part 4

SB 113A–Exempting Certain Schools from Oregon’s Degree Granting Statutes

SB 113A exempts certain schools and specially-accredited school campuses from Oregon’s degree granting statutes set forth at ORS 348.594 to ORS 348.615. The degree granting statutes regulate post-secondary education in Oregon by, among other things, granting the Oregon Student Assistance Commission Office of Degree Authorization the power to authorize approved schools to offer academic degree programs and non-degree programs leading to certificates or diplomas, to validate claims of degree possession, to terminate substandard and fraudulent degree activities, and to terminate activities of diploma mills. See ORS 348.603. SB 113A exempts schools and specially-accredited school campuses from meeting the requirements of the degree granting statutes as long as the school or specially-accredited campus (1) is a non-profit school under § 501(c)(3) of the IRS code, (2) has conferred degrees in Oregon for at least five consecutive years, and (3) is accredited by a regional accrediting association or its national successor. Schools meeting these non-profit, degree conferral, and accreditation requirements are exempt from the degree granting statutes because they do not generate many complaints and are not the source of many enforcement issues encountered by the Office of Degree Authorization. Rather, most of the complaints and enforcement issues relate to for-profit colleges and colleges lacking regional accreditation.

SB 113A became effective on January 1, 2010. It is codified at 2009 Oregon Laws Advance Sheets, Chapter 172, § 1.
 

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Posted on January 27, 2010 by Rachel Robinson

Oregon Legislative Update-Part 3

HB 2109–Changing Terminology to Keep Oregon Law Consistent with the Carl D. Perkins Career and Technical Education Improvement Act of 2006

HB 2109 replaces the terms “professional technical education” and “professional technical training” with “career and technical education” and “career and technical training” throughout various Oregon statutes. The change in terminology aligns Oregon law with the Carl D. Perkins Career and Technical Improvement Act of 2006. Thus, HB 2109 updates Oregon law and makes technical changes in language to keep Oregon law consistent with federal law.

HB 2109 became effective January 1, 2010. HB 2109 is codified at 2009 Oregon Laws Advance Sheets, Chapter 94, §§ 1-27.
 

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Posted on January 25, 2010 by Rachel Robinson

Oregon Legislative Update-Part 2

HB 2061–Exempting Certain Students From Increased High School Graduation Requirements

HB 2061 exempts certain students from meeting the increased graduation requirements in ORS 329.451. In 2005, the Oregon legislature increased the overall number of credits required for high school graduation from 22 to 24. At that time, the number of individual math and English credits required also were raised. The increased requirements took effect July 1, 2007, and apply to any student receiving a high school diploma after June 30, 2009. The 2005 law did not, however, contain any provision addressing students who entered high school before July 1, 2007 but graduate after June 30, 2009. HB 2061 fills that gap by exempting students from the increased requirements if they (1) entered the ninth grade during the 2005-2006 school year, (2) attended school during the 2006-2007, 2007-2008, and 2008-2009 academic years, and (3) receive a high school diploma before July 1, 2010. Essentially, the new law exempts students who did not graduate on time from being held to the increased graduation requirements.

HB 2061 became effective on June 30, 2009. HB 2061 is codified at 2009 Oregon Laws Advance Sheets, Chapter 55, §§ 1, 2.
 

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Posted on January 22, 2010 by Rachel Robinson

Oregon Legislative Update-Part 1

In its last regular session, the Oregon legislature passed four education-related bills, all of which were signed into law by Oregon’s governor. The scope and aim of each of these laws is varied, with some making minor technical changes to terminology in Oregon statutes and others exempting certain students from increased high school graduation requirements. Throughout the next week, we will feature each of these bills and offer a brief description of the effects of the new laws.

SB 595–Expanding Scope of Students Who Are Eligible for Tuition Waivers at Oregon Universities

SB 595 expands the scope of students who are eligible to receive tuition waivers under the tuition waiver program, codified at 2008 Oregon Laws, Chapter 39, § 9. The program allows certain students to obtain tuition waivers for courses which may lead to a bachelors or master’s degree at University of Oregon, Oregon State University, Portland State University, Oregon Institute of Technology, Western Oregon University, Southern Oregon University, Eastern Oregon University, and Oregon Health and Sciences University. Under the 2008 version of the program, tuition waivers only were available to children, spouses, and unremarried surviving spouses of members of the US Armed Forces who died on active duty after September 11, 2001, died as a result of military service connected disability sustained after September 11, 2001, or were 100 percent disabled as a result of military service connected disability sustained after September 11, 2001. SB 595 expands the scope of students who are eligible to receive the tuition waivers by removing the September 11, 2001 death or disability date restriction. Thus, under the new law, tuition waivers are available to any child, spouse, or unremarried surviving spouse of a member of the US Armed Forces who died on active duty, died as a result of a military service connected disability, or was 100 percent disabled as a result of a military service connected disability, regardless of the date of the US Armed Forces member’s death or disability.

SB 595 became effective on June 4, 2009 and operative on July 1, 2009. It is codified at 2009 Oregon Laws Advance Sheets, Chapter 236, §§ 1, 3.
 

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Posted on January 14, 2010 by Lisa Williams

Part Three of Webinar Series a Hit!

Continuing Williams Kastner's webinar series, KoKo Huang presented yesterday on hiring and firing. Power point slides from Ms. Huang's presentation can be accessed here. Feel free to email Ms. Huang at khuang@williamskastner.com if you have any questions or would like additional information.

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Posted on January 6, 2010 by Lisa Williams

Part Three of Webinar Series Set for January 13

Hiring and Terminations–Proceed With Caution

In the current economic climate, many educational institutions may be contemplating terminations at the same time as hiring new employees. Both scenarios raise complex legal issues which will be addressed in this presentation, designed to assist those dealing with these issues.

Join Williams Kastner attorney KoKo Huang, in conjunction with the Northwest Career Colleges Federation, on January 13, 2010 for an overview on how to hire and terminate employees with confidence. Among other topics, Ms. Huang’s presentation will cover pre-employment precautions such as initial hiring background investigations, the termination process, and post-termination protocol.

To RSVP, please e-mail seminars@williamskastner.com. An online meeting confirmation complete with instructions on how to join the webinar will be sent to all registrants.

 

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Posted on December 15, 2009 by Todd Sorensen

University of Phoenix Reaches $67.5 Million False Claims Act Settlement

The U.S. Department of Justice reports today that the University of Phoenix reached a $67.5 million settlement in a False Claims Act (“FCA”) qui tam lawsuit in which the plaintiffs claimed the University unlawfully accepted federal funds while in violation laws which prohibit post-secondary institutions from providing their admissions representatives incentive-based compensation tied to the number of students recruited. The two former University of Phoenix employees who initiated the action on behalf of the government will receive $19 million from the settlement.

The FCA creates liability for any person who knowingly attempts to defraud the United States Government. Moore v. Cal. Institute, 275 F.3d 838 (9th Cir. 2002). The risk for employers frequently arises when they contract to provide services to the federal government or, for educational institutions, when they accept government-subsidized student aid, exposing themselves to the potential for FCA liability. One unique feature of the FCA is a mechanism which allows private individuals to bring an action on the government’s behalf and earn some portion of the judgment that is ultimately obtained. Such an action is known as a “qui tam” action, and its effect on employers is clear: private citizens, including employees and former employees, have a financial incentive to discover and reveal alleged deception of the federal government.

Nationwide, recovery under the FCA has increased dramatically in recent years. According to the Department of Justice, there were over $2.4 billion in settlements and judgments under the FCA in fiscal year 2009 alone, $2 billion of which was recovered in qui tam lawsuits.
 

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Posted on December 14, 2009 by Lisa Williams

A Violent Shift

The protests over budget cuts to higher education in California have repeatedly featured civil disobedience in recent weeks, with numerous building takeovers and sit-ins. But the protests took a more violent turn Friday night with an attack on the home of the chancellor of the University of California at Berkeley.

Dozens of protesters -- apparently a mix of students and non-students -- rushed the home, smashed planters, and threw various objects, some of them aflame, at windows in the home.

Authorities arrested eight people, including two identified as Berkeley students, and charged them with rioting, threatening an education official, attempted burglary, attempted arson of an occupied building, felony vandalism, and assault with a deadly weapon on a police officer. Many others who were present ran away.

The attack on the Berkeley chancellor's home comes amid a wave of protests at California's public colleges not only over budget cuts dictated by a collapsing state budget, but very much directed at college administrators, who are being accused of not doing enough to minimize the cuts or to reallocate resources to minimize their impact. [Inside Higher Ed]

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Posted on December 14, 2009 by Lisa Williams

New Measure of Student-Loan Defaults Could Threaten Hundreds of Colleges

More than 220 colleges have long-term student loan default rates so high that they would lose all federal student financial assistance under the terms of a new law that eventually will measure those rates over a three-year time scale, according to new Education Department figures.

Student-loan defaults are more common at for-profit colleges and other institutions that serve lower-income populations, and the move toward a stiffer default-rate measure has left many of those institutions warning of a growing harm to the students most in need.  "The only thing that explains default rate is the socioeconomic background" of the student, said Harris N. Miller, president of the Career College Association, which represents for-profit institutions. "By using that as the metric of quality, you will always be discriminating against low-income students."

Most students are required to begin paying back federally subsidized loans six months after they graduate or otherwise leave school. A college can lose eligibility for both grants and loans if its default rate exceeds 40 percent among its former students in the first year after they're due to begin repayment. Colleges also can lose eligibility if the rate of borrowers defaulting within two years of their scheduled start of repayment is 25 percent or greater for three consecutive years.

A new law, the Higher Education Opportunity Act (HR 4137), approved last year by Congress, will change that last measure, effective in 2012, to begin counting borrowers who default within three years of their scheduled repayment. Using that three-year window, colleges would be ineligible if their borrower default rate is 30 percent or greater for three consecutive years. [Chronicle of Higher Education]

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