Northwest Education Law Blog : Northwest Education Lawyer & Attorney : Williams Kastner Law Firm : Tacoma, Seattle, Portland

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On June 29, 2010, the Department of Justice and Department of Education issued a joint warning letter regarding the use of “dedicated electronic readers” in colleges and universities. The term “dedicated electronic readers” encompasses a number of new handheld devices which allow students to download and read books, such as Amazon’s Kindle, Sony’s Reader Daily Edition, and Barnes & Nobles’ Nook.

The DOJ and DOE’s concern with electronic readers is that most are not accessible to students who are blind or have limited vision because they lack “an accessible text-to-speech function.” As a result, according to the DOJ and DOE, use of such devices may violate the Americans with Disabilities Act (“ADA”): 

Requiring use of an emerging technology in a classroom environment when the technology is inaccessible to an entire population of individuals with disabilities – individuals with visual disabilities – is discrimination prohibited by the Americans with Disabilities Act of 1990 (ADA) and Section 504 of the Rehabilitation Act of 1973 (Section 504) unless those individuals are provided accommodations or modifications that permit them to receive all the educational benefits provided by the technology in an equally effective and equally integrated manner.

The ADA requires that places of public accommodation—which under 28 C.F.R. 36.104(10) expressly includes private educational institutions—must provide full and equal access to disabled individuals as detailed in 28 C.F.R. 36.201-204. 

The warning from the DOJ and DOE comes on the heels of the DOJ’s January 2010 settlement with Case Western Reserve University, Pace University, and Reed College, resolving the DOJ’s claims against those institutions arising out of their use of Amazon’s Kindle DX. Under the terms of that settlement, the institutions agreed not to “purchase, recommend or promote” the use of electronic book readers “unless the devices are fully accessible to students who are blind and have low vision.”

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On March 22, 2010, the Ninth Circuit Court of Appeals affirmed a Hawaii District Court order upholding the denial of National Career College, Inc.’s request for eligibility to participate in Title IV federal financial aid programs.

National Career College, Inc. had operated under the name “Hawaii Business College.” When Allen Mirzaei and his two sons secured 100% control of National Career College, Inc. in 2006, the change in control required the company to reapply for eligibility to participate in Title IV federal financial aid programs. The Department of Education (“DOE”) rejected the company’s new application, based on Mr. Mirzaei’s alleged breach of fiduciary duties in his prior operation of a different college. In support of its decision to deny the application, the DOE cited 34 C.F.R. § 668.15 Part 688, Subpart L, setting forth standards of financial responsibility, and 34 C.F.R. § 668.16, setting forth standards for administrative capability.

Reviewing the DOE’s decision, the Ninth Circuit rejected National Career College’s argument that the DOE’s rejection of its application constituted an improper disbarment without due process. According to the Ninth Circuit, disbarment occurs only where a party is prohibited from seeking to engage in any contract with any federal agency. The Ninth Circuit further concluded that the DOE’s rejection of National Career College’s application based on Mirzaei’s alleged prior conduct was proper, emphasizing that the DOE acts as a gatekeeper of federal funds: “the DOE is charged with making sure the college and the people managing that college will fulfill their fiduciary duties in handling many thousands of dollars of the public’s money.”

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Following the second quarterly reports by American Recovery and Reinvestment Act of 2009 (“ARRA”) stimulus grant recipients, which came due December 31, 2009, the Department of Education indicates that ARRA has supported the creation of approximately 400,000 education jobs. ARRA allocated approximately $100 billion to the Department of Education. To date, $69 billion of those funds have been distributed to recipients under several programs, which the Department of Education summarized as follows:

For additional data on the ARRA and reporting by grant recipients, visit Recovery.gov.

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President Obama and his administration need to get more involved if the United States is to meet his goal of having the world's highest proportion of college graduates by 2020, panelists said at the annual meeting of the Association of Public and Land-Grant Universities here on Monday.

Panelists pointed out that the United States has rallied before and increased college enrollment, especially after World War II, following the Soviet Union's launch of Sputnik, and with the advent of community colleges. So there is history to assume that the president's goal can be reached, they said.

Among the challenges in meeting the president's goal identified by members are the large number of students in the pipeline—mostly minorities who are not prepared for college work—the lack of stronger credit-transfer agreements between two-year and four-year colleges in some states, and the country's current economic difficulties. [The Chronicle of Higher Education]

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The U.S. Education Department published final regulations Wednesday laying out the requirements for what states must report to the federal government to receive money in 2010 through the State Fiscal Stabilization Fund created by the American Recovery and Reinvestment Act, which provided tens of billions of dollars of economic stimulus funds. The rules, which were published in the Federal Register, focus mostly on elementary and secondary education, but they mandate that states be able to collect (from colleges) and publicly report data regarding student enrollment and credit completion. [Inside Higher Education]
 

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A change in the way the federal government will report race and ethnicity data for educational institutions is making it necessary for the university to collect new information from students, faculty and staff.

Beginning in 2010, the U.S. Department of Education is moving away from the practice of classifying individuals by one racial category, and it is changing the way institutions report their data.

The most notable change in the Integrated Post-secondary Educational Data System (IPEDS) is a two-part question that first asks individuals to indicate if their ethnicity is Hispanic or Latino, before moving on to a second part that allows them to identify as more than one race.

While the new survey allows individuals to indicate more than one racial category, students applying for admissions under a revised application no longer will be able to self-identify using multi-ethnic or multi-racial labels of their own choosing, such as Burmese, Comanche or Jewish.

IPEDS tracks aggregate information about enrollment, program completion, graduation rates, faculty and staff, finances, institutional prices, and student financial aid from every college, university, and technical and vocational institution in the United States and other jurisdictions (such as Puerto Rico) that participate in the federal student financial aid programs. [EnerPub]

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Rep. John Kline of Minnesota, the top Republican on the House education committee, is accusing the Education Department of improperly lobbying colleges to support legislation to overhaul student loans. He says the department has pressed institutions to switch to its direct-loan system before Congress votes to terminate the bank-based system of student lending. [The Chronicle of Higher Education]

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NEW YORK — Shares of for-profit education companies tumbled Wednesday a day after Apollo Group Inc., one of the largest and oldest of the companies, said the Securities and Exchange Commission had launched an "informal inquiry" into its revenue accounting practices, its second SEC probe this year.

"We are confident that the SEC's accounting issue is specific to (Apollo)," wrote RBC Capital Markets analyst Robert Wetenhall in a note to investors Wednesday. DeVry Inc., another of the more-established higher education providers, said on its Tuesday evening earnings conference call that it had not been contacted by the SEC and was not concerned. But the rest of the sector will likely be under pressure "until the dust settles."

SEC inquiries often end without finding harm done by the company. Still, the probe comes at a time when the Department of Education is keeping an eye on the sector at large. In a Congressional hearing earlier this month, Mary Mitchelson, an inspector general of the Education Department, described investigations of different schools' attendance-tracking and financial aid practices. She said the government would continue to pursue cases of "diploma mills" and eligibility exams.

The Government Accountability Office in September released a report critical of the for-profit schools' student loan default rates. The GAO said many proprietary schools admitted unqualified students who had a greater tendency than other students to drop out, let students stay enrolled despite a lack of academic progress and also misrepresented themselves to prospective students. That prompted the Congressional hearing on Oct. 14 at which Mitchelson testified, along with other GAO and Education Department officials. [The Associated Press]
 

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Education Department officials have been insisting for months that, despite the warnings of some Wall Street analysts to the contrary, the federal government is not intent on intensifying its regulation of for-profit higher education.

That assertion got a little harder to believe on Friday, when the department announced the composition of a committee charged with negotiating a set of new federal regulations related to the integrity of federal financial aid programs. Given the issues on the panel's agenda, its membership leans notably toward critics of the for-profit sector of higher education, and decidedly short on representatives of the colleges.

As is typically the case in the federal negotiated rule making process (which is explained here), the department's September 9 announcement inviting nominations for the committees said it would populate the panels with people who "represent the interests significantly affected by the topics proposed for negotiations."

In this case, the topics under the overall rubric of the integrity of federal financial aid programs include such things as incentive compensation for college recruiters and the use of tests to gauge students' "ability to benefit" from a higher education, which are heavily used by for-profit universities, community colleges, and other open-access institutions.

What's more unexpected, perhaps, is that the group gathered by the department to negotiate a set of issues that relate heavily to for-profit institutions contains so many other members with a clearly stated antipathy toward the sector, and so few members from for-profit institutions themselves. [Inside Higher Ed]

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The nation's colleges of education are doing a "mediocre job" of preparing teachers for "the realities of the 21st-century classroom" and need "revolutionary change—not evolutionary tinkering," Secretary of Education Arne Duncan will say in a speech on Thursday at Columbia University's Teachers College.

He also criticizes states and the federal government for approving weak teacher-training programs and licensing examinations for teachers, and for failing to provide enough support for programs that provide mentors for teachers.

The secretary's remarks echo criticism leveled by a former president of Teachers College, Arthur Levine, in a series of reports produced by the Education Schools Project. [The Chronicle of Higher Education]

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An audit of the U.S. Department of Education's information systems for managing the federal student-aid programs is calling for increased security, saying several vulnerabilities could compromise the confidentiality and availability of financial and personal data in the systems. The report, by the department's Office of Inspector General, gives no indication that the flaws have led to a security breach, but it says the department needs to improve security controls over the certification and accreditation process for the systems. [The Chronicle of Higher Education]

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The Education Department is stepping up its oversight of the basic-skills tests that students without a high-school diploma or GED can use to qualify for federal student aid, a top official told members of Congress on Wednesday.

Testifying before a U.S. House of Representatives education subcommittee, Robert M. Shireman, deputy under secretary of education, said the department has put in place systems to better monitor publishers of the assessments, known as "ability to benefit" tests, and will revisit regulations governing the tests during a rule-making session that starts in November. The department will also consider publishing lists of legitimate institutions and diploma mills to help for-profit colleges differentiate between valid and invalid degrees, he said.

Wednesday's hearing came less than a month after the Government Accountability Office reported it had found that officials administering an ability-to-benefit test at a for-profit college had given out answers and had changed answer sheets so that students would be eligible for federal funds. In its report, the GAO also found that officials at two proprietary schools had helped prospective students obtain invalid high-school diplomas from diploma mills.

The report, "Proprietary Schools: Stronger Department of Education Oversight Needed to Help Ensure Only Eligible Students Receive Federal Student Aid," got the attention of the chairman of the House education committee, who called its findings "extremely troubling." In an e-mail message to Bloomberg News last month, the chairman, Rep. George Miller, Democrat of California, said he would hold hearings on whether for-profit colleges were "gaming the system" to enroll "students who may not be fully ready for college and may be more likely to default" on loans.

Wednesday's hearing did little to answer those questions, though it did give the Education Department and for-profit colleges an opportunity to defend themselves. In his testimony, Harris N. Miller, president of the Career College Association, argued that most of his members "play by the rules" and stressed that the report had not uncovered any "pattern of abuse." [The Chronicle of Higher Education]

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The U.S. Department of Education today awarded $11.3-million in grants to 29 projects in 20 states that will benefit working adults and displaced workers pursuing degrees or credentials at community colleges. The projects encompass a wide range of activities, including remediation, tutoring, counseling, and support services. Some projects will use distance learning to reach out to adult learners. The grants, which range from $200,000 to $500,000, are administered by the Fund for the Improvement of Postsecondary Education. [The Chronicle of Higher Education]

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As the Obama administration and Congress consider new legislation that could dramatically reshape the federal student aid programs, the Education Department is putting the finishing touches on carrying out the last set of major changes to federal laws governing higher education. The department on Friday proposed a set of regulations for a broad range of provisions -- on such topics as campus safety, illegal sharing of digital files, and educating students with disabilities -- that Congress enacted as part of last year's renewal of the Higher Education Act.

The regulations proposed Friday resulted from one of five negotiating teams that the Education Department established last winter to negotiate regulations to implement the Higher Education Opportunity Act. Two others related to loan issues, one to grants, and one to accreditation. This one, the fifth, was described by college lobbyists as the "cats and dogs committee," as it dealt with a wide array of issues -- many of them narrow -- of the sort that the Higher Education Act has increasingly come to be filled with. Depending on one's perspective, those issues are seen either as piling regulations on colleges or seeking to hold them increasingly accountable.

The designated negotiating team of college officials and others for this set of issues reached agreement on proposed regulatory language for all but 2 of the 31 issues they debated. But under federal guidelines, that failure meant that the agency in question (in this case the Education Department) had essentially free rein to propose whatever rules it wanted.

Comments on the proposed regulations may be submitted until September 21; final rules are due by November 1. [Inside Higher Ed]

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The push to simplify the process of applying for federal financial aid has been steadily building momentum, with federal officials (in both of the last two administrations) joining advocates for students and financial aid experts in a show of near unanimity on the idea that procedures and documents (like the Free Application for Federal Student Aid) should not be discouraging students from seeking financial help for college.

The National Association of State Student Grant and Aid Programs, which represents officials who oversee the awarding of state-based financial aid, released a survey of its members on Tuesday that might be seen, at the extreme, as trying to put the brakes on the simplification runaway train; at the least, it's a call for their needs and those of their students to be considered as policies evolve.

But problems emerge in the eyes of state aid officers when talk turns -- as it has in proposals from financial aid experts and a College Board-organized panel of researchers and policy makers -- to dramatically altering the types of financial information collected about aid applicants. The most aggressive simplification proposals have recommended basing the awarding of federal Pell Grants on adjusted gross income and family size, wiping out other aspects of the current federal methodology used to calculate a student's expected family contribution.

Going that direction "would have financial, administrative, statutory and regulatory consequences to state need-based financial aid programs," because almost all states use the expected family contribution to allocate their own need-based aid, the state aid group says in its survey.

"A technological solution that reduces appropriately the basic FAFSA to a minimum, but also provides a means for obtaining data needed by individual states, would be ideal," the NASSGAP report concludes.  [Inside Higher Ed]

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Posted by Jonathan Kaplan, president of Walden University: A few weeks ago, the U.S. Department of Education released a report that looked at 12 years' worth of education studies, and found that online learning has clear advantages over face-to-face instruction.

The study, "An Evaluation of Evidence-Based Practices in Online Learning: A Meta-Analysis and Review of Online Learning Studies," stated that “students who took all or part of their class online performed better, on average, than those taking the same course through traditional face-to-face instruction.” Except for one article, on this Web site, you probably didn’t hear about it -- and neither did anyone else.

But imagine for a moment that the report came to the opposite conclusion. I’m sure that if the U.S. Department of Education had published a report showing that students in online learning environments performed worse, there would have been a major outcry in higher education with calls to shut down distance-learning programs and close virtual campuses.

I believe the reason that the recent study elicited so little commentary is due to the fact that it flies in the face of the biases held by some across the higher education landscape. Yet this study confirms what those of us working in distance education have witnessed for years: Good teaching helps students achieve, and good teaching comes in many forms.

Recently, we examined the successes of Walden graduates who are teachers in the Tacoma, Wash., public school system, and found that students in Walden teachers’ classes tested with higher literacy rates than did students taught by teachers who earned their master’s from other universities. There could be many reasons for this, but, especially in light of the U.S. Department of Education study, it seems that online learning has contributed meaningfully to their becoming better teachers.

Recently, President Obama remarked, “I think there’s a possibility that online education can provide, especially for people who are already in the workforce and want to retrain, the chance to upgrade their skills without having to quit their job.” As the U.S. Department of Education study concluded, online education can do that and much more. [Inside Higher Ed]
 

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Logan Stark's classmates scramble for courses with professors who top instructor-rating Web sites. But when the California Polytechnic State University student enrolled in a biochemistry class on the San Luis Obispo campus, he didn't need to sweat getting the best.
It was practically guaranteed.

That's because much of the class was built by national specialists, not one Cal Poly professor. It's a hybrid of online and in-person instruction. When Mr. Stark logs in to the course Web site at midnight, a bowl of cereal beside his laptop, he clicks through animated cells and virtual tutors, a digital domain designed by faculty experts and software engineers.

By the time Mr. Stark steps into the actual lecture hall, the Web site has alerted his professor to what parts of the latest lesson gave students trouble. That lets her focus class time on where they need the most help.

Mr. Stark's class is one of about 300 around the world to use online course material—both the content and the software that delivers it—developed by Carnegie Mellon University's Open Learning Initiative. If the Obama administration pulls off a $500-million-dollar online-education plan, proposed in July as one piece of a sweeping community-college aid package, this type of course could become part of a free library available to colleges nationwide.

The government would pay to develop these "open" classes, taking up the mantle of a movement that has unlocked lecture halls at universities nationwide in recent years—a great course giveaway popularized by the OpenCourseWare project's free publication of 1,900 courses at the Massachusetts Institute of Technology. Millions worldwide have used these online materials. But the publication cost—at MIT, about $10,000 a course—has impeded progress at the community-college level, says Stephen E. Carson, external-relations director for MIT OpenCourseWare.

The plan coincides with Mr. Obama's goal for the United States to have the highest proportion of college graduates in the world by 2020. But Marshall S. (Mike) Smith, senior counselor to Secretary of Education Arne Duncan, feels that won't happen simply by moving middle- and high-school students further through the system. Higher education also needs to rope in older students who never went beyond high school, or who abandoned college before finishing a degree, he says. [The Chronicle of Higher Education]

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Washington — The U.S. Education Department’s Internet-security features fail to protect confidential, personal information held on its Web sites, says the department’s Office of Inspector General in an audit report released today.

The portion of the report that is available to the public does not name specific departmental Web sites, so it is unclear whether those holding confidential student information are properly secured. For instance, the student-aid Web site has password-protected records of student finances that are used to determine eligibility for federal grants. [The Chronicle of Higher Education]