Federal Regulation

The following letter was sent to all the participants in the now cancelled meeting on the problem of diploma mills. Any comments on the pros and cons of federal regulation?

Law Offices of
David L. Boyd and Associates
Attorneys at Law
201 East Sandpointe Avenue, Suite 400
Santa Ana, California 92707-5703
(714) 708-0723

September 29, 2001

It is my understanding you will be participants in a meeting next month sponsored by the Council for Higher Education intended to address the problems of diploma mills, accreditation mills and issues of state regulation.

Over the past two decades, I have had the opportunity to represent numerous educational institutions, both accredited and unaccredited. I have had some contact with regulatory bodies from a least 27 states. (In the interests of full disclosure, in addition to my practice of law, I am the president and dean of the School of Law of William Howard Taft University Council. I also am a major investor in The Boyer Graduate School of Education.

No person is better qualified to present an overview of the current problems with diploma mills and state regulatory systems than Dr. John Bear. However, I feel the necessity to bring to your attention an issue that might not be adequately addressed at the meeting and was important in arriving at my conclusion that regulation of private postsecondary institutions should be a federal rather than a state function.

I assume at the conclusion of the meeting everyone will concur that recent developments in technology make it impossible for states to effectively regulate private postsecondary institutions. But an equally disturbing problem is the corrupting effect some state bureaucrats and politicians have on private postsecondary education.

I will present below as an example the situation currently existing in the state of Illinois. Illinois was selected because I have first hand knowledge of the Illinois problem and I understand a representative of the Illinois State Board of Higher Education is scheduled to attend the meeting and will be in a position to respond to my comments. However, other states have similar approval systems.

The Illinois Problem

The Illinois Board of Higher Education (IBHE) regulates private postsecondary education in the state. All members of the IBHE are political appointees. The majority have no background in education. As such, they rely heavily on the recommendations of the IBHE staff.

Fortunately, the great majority of bureaucrats I've worked with over the years were ethical individuals who believed their only obligation was to enforce the law. Unfortunately, on occasion institutions face bureaucrats who are hostile to any innovation and/or influenced by political contributions. Below I will give two examples of the situation in Illinois.

The University of Phoenix

In his recently published autobiography, "Rebel with a Cause," John Sperling comments on the University of Phoenix's relationship with the Illinois Board of Higher Education.

Quoting from the book, Dr. Sperling, the founder of the University of Phoenix stated UOP "submitted an application for Illinois licensure and, thus, began a year dealing with what Dickens would have called a "circumlocution office" - no matter how carefully drafted was UOP's application, it was always insufficient. Because the criteria for licensure contained such precise words as "quality," "high quality," "high caliber," "adequate breadth and depth," it gave the staff total discretion, which they used to circumlocute the applicant."

Marcia Langsjoen, an IBHE staff member, has on more than one occasion expressed her disdain for the University of Phoenix and stated UOP would never be approved to operate in Illinois. I was told that no institution which expected to be approved to operate in Illinois should use the UOP as any form of model.

In the 1990's, the University of Phoenix hired Charles Seigel, the former press officer of the Democratic Congressional Caucus to run a national lobbying effort. Sperling stated that Seigel breathed new life into the UOP's quest for new state licenses.

Since hiring Mr. Seigel, Dr. Sperling in his autobiography stated "we had the happy experience of being welcomed with open arms by several state commissioners of higher education - Oklahoma, Texas, Massachusetts, Alabama, Illinois (surprise, surprise), and Ohio." (The "surprise, surprise" is a direct quote, not the editorial opinion of this writer.)

On October 2, 2001 Marcia Langsjoen is on the agenda of the meeting of the Illinois Board of Higher Education to recommend the University of Phoenix be granted the authority to operate as a postsecondary degree-granting institution in Illinois' North Suburban and West Suburban regions. (Surprise, surprise!) We will never know if UOP gained this recommendation based on the quality of its operations or the size of its political contributions. I will comment more on the impact of political contributions below.

The above comments should not be considered a criticism of the University of Phoenix. I am not making any allegation any crime has been committed. In my opinion, the University of Phoenix programs are well designed and they should have the opportunity to operate in any state they choose. My point is that private postsecondary institutions should be evaluated based on academic quality, not political considerations.

William Howard Taft University of Illinois (Taft-Illinois)

Taft-Illinois filed an Application for Operating Authority with the Illinois Board of Higher Education in February, 1997. The application was withdrawn in April, 1999. Taft-Illinois was a strongly capitalized organization with an excellent business plan and Governing Board which would have brought many jobs and tax revenues to the State of Illinois.

During this period of time, IBHE staff unreasonably delayed reviewing the application and offered virtually no assistance in identifying or addressing issues associated with the application.

Dr. Keith Sanders, Executive Director of the IBHE, was quoted in an article by the Copley News Service as claiming, "We (the IBHE staff) have spent hundreds of staff hours in telephone conversations with them (Taft-Illinois) in giving them questions that they needed to answer in order to receive the board's approval." In fact, Taft-Illinois was given no substantive assistance from the IBHE staff. This was made abundantly clear when a Freedom of Information request documented that only 25 telephone conversations totaling 72 minutes took place from the date the application was filed until the staff report was submitted to the board. This was slightly over three minutes per month.

Rather than prepare a report on a new applicant for consideration by the IBHE, a common strategy of the staff is to simply not act on applications. In January, 1999 on the expectation that the Taft-Illinois application would again not be submitted for IBHE action, I requested permission to address the IBHE on the issue of due process. Ms. Langsjoen then proceeded to prepare a report which was illegally provided to the members of the IBHE at the February, 1999 meeting. (While ignored, Illinois law does contain certain due process protections which allow an institution to respond to staff reports before they are submitted to the board.)

The detailed issues between Taft-Illinois and the IBHE staff are too lengthy for this correspondence and don't relate to the issues to be discussed in your meeting. However, a few actions are worthy of note.

Among the major criticisms in the IBHE staff report was the institution had "an inadequate number of qualified faculty." Yet, Taft-Illinois was able to produce a letter from Ms. Langsjoen, dated months before her staff report, stating "it is certainly inadvisable to hire faculty and other employees prior to receiving approval." First Taft-Illinois was advised not to hire faculty and later they were criticized for not having adequate faculty.

Taft-Illinois was so confident in the quality of its application, in March, 1999 it offered to contribute $100,000 of computer equipment and software (new and in the boxes and licensed for educational use) to Illinois inner-city schools if Dr. Sanders would simply agree to retain an independent consultant to review the Application for Operating Authority. The IBHE would still have been free to accept or reject the consultant's comments. The offer was rejected by Dr. Sanders.

The IBHE staff requires higher standards of private postsecondary institutions than public institutions. While this was denied by the staff of the IBHE during the Taft-Illinois application process, Ms. Langsjoen, admitted this was the case in her presentation to the IBHE on June 5, 2001. ("It's very difficult for us to tell a private institution in this state that what they are doing is not consistent with common practice and is substandard when there are public institutions in the state that are doing exactly the same thing.")

Just as we were about to put the Illinois experience behind us and move on to other opportunities, I received a telephone call from an individual who stated he was calling on behalf of Philip Rock. Mr. Rock is Chairman of the IBHE, a former Illinois Senate President, and apparently a major fundraiser for the Illinois Democratic Party. This call was received on a weekend approximately two weeks prior to the November, 2000 election. The caller indicated Mr. Rock was a reasonable person and was willing to let bygones-be-bygones and could help us with our "problems" with the IBHE in return for contributions to certain political candidates. The language used in the offer was very vague and accordingly probably legal. But disdainful nonetheless. I stated we were not interested in any such arrangement and we never had to "buy" our operating approval in California.

What was particularly disturbing was the fact I received this call on my unlisted home telephone. I rarely give this number to individuals outside of my family and immediate friends. I did, however, give this number to Ms. Langsjoen at a time when she indicated she would be working on our application over the next weekend. I don't know what staff member gave this number to Mr. Rock but it clearly came from the IBHE staff.

When we contacted Mr. Rock he said he would investigate the matter. We never received any further comment.

Conclusion

State regulation has been ineffective in controlling the growth of diploma mills and insuring new institutions are given the opportunity to develop quality programs free of political influences. Federal regulation of private postsecondary institutions pre-empting the individual state approval procedures is the best available alternative to protect the integrity of education in the United States.

Very truly yours,


David L. Boyd
Member of the Firm

cc: Dr. Keith Sanders, IBHE
Selected Members of the United States Senate and House of Representatives
Selected Members of the Illinois Legislature

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This is outrageous! Before we ask the feds to regulate online learning institutions, I think they should look at state bureaucracies like the one in Illinois that Mr. Boyle presented in his letter. Maybe if I can just muster up enough money I can by myself a school approval. Hey, Mr. Rock, how much for a university with a football and basketball team?




[Note: This message has been edited by tcnixon]

 

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Rich Douglas

 

"State regulation has been ineffective in controlling the growth of diploma mills and insuring new institutions are given the opportunity to develop quality programs free of political influences. Federal regulation of private postsecondary institutions pre-empting the individual state approval procedures is the best available alternative to protect the integrity of education in the United States."


Federal control would not automatically free us from the "political influence" problem or the "degree/diploma mill" problem. Politicians are politicians, whether local or national; and degree/diploma mill operators could, as they already often do, simply move outside our national boundaries. Solutions to these problems are going to be difficult.

Federal control may not be possible anyway. I am not a lawyer, but I do know that education is considered a state matter under previous and current interpretations of the federal constitution.

Tom Rogers

 

I would hope that they would refuse such an offer of a bribe. I am amazed, though, that you would readily admit offering one. Offering to exchange (donate, what have you) $100,000 in goods for special attention from a governmental agency is most assuredly a bribe.

People never cease to amaze me. "Gee, I'm mad because they didn't accept my bribe." You should be thankful that they didn't report you to the relevant law enforcement agency.


Tom Nixon

 

I'd like to respond to Mr. Rogers and Mr. Nixon. Mr. Rogers, you indicated that education is a state matter...however, when you have politicians like those in Illinois who appear to be soliciting bribes for favors, then the whole thing becomes a federal issue. Education departments like the one described that operate in Illinois are a bigger problem than diploma mills. Perhaps if we cut the head off of the snake we could eliminate the problem completely. And to Mr. Nixon, how could you possibly think a donation to inner city schools was a bribe?


[Note: This message has been edited by tcnixon]

 

Long account of Mr. Boyd's client's beef with the state of Illinois deleted.

Your conclusion is a non-sequitur. You didn't demonstrate that state regulation is ineffective and the topic of federal regulation was not even mentioned until your concluding sentence.

 

Bill,

The purpose of the proposed meeting was to discuss the diploma mill problem which only exists in the United States because of the weak laws in some states. Given the experience of the invitees, I didn't think it was necessary to make this case.

Do you think state regulation has been effective? Hawaii? South Dakota? Montana? Idaho? It seems every time a state recognizes a problem exists with diploma mills the operators simply move across a state border. With Federal regulation this would not be possible.

I am generally no fan of the Federal bureaucracy, but in this situation I seen no other alternative. With Federal regulation, all private postsecondary institutions would operate under the same standards regardless of the state they claim as their home.

Diploma mills could (and likely would) move off-shore. But at least then they would not be tarnishing the image of American institutions.

I would be interested in how you suggest the problem of diploma mills be addressed.

As was pointed out in an earlier comment, the problem of undue political influence could continue at the Federal level. But Federal disclosure laws are generally greater than many states.

Dave

 

Any comments on the pros and cons of federal regulation?

This is NOT a function of the Federal government specifically provided for in the U.S. Constitution! The government cannot even deliver the mail on time, cannot keep drugs out of Federal prisons and...cannot even provide adequate national security as we all learned 9-11-01.

 

Jimmy:
Who would you rather have regulating higher education? States bureaus like Illinois, who according the this account from Taft "charge" for approval or the feds?

Nick

 

Jimmy:
Who would you rather have regulating higher education? States bureaus like Illinois, who according the this account from Taft "charge" for approval or the feds?
Nick

Hi, Nick,

A thorough review of how American educational standards how ACT and SAT scores have declined since the Federal government's progressive and continous intrusion should answer your question.

 

If you want to interpret the Constitution to the letter, about 99% of the Federal government is not mentioned in the document, and is therefore illegal under the Tenth Amendment. Goodbye, Departments of Education, H&HS, Commerce, Energy, Agriculture, and *every* Federal law enforcement agency, just for starters.

Being more realistic, the only effective way to drive mills out of business (or at least out of the country) is for the Feds to step in. Unlike state law enforcement & regulatory agencies who lose interest at the state line, the Feds can and will pursue the mills across state borders until they disappear or go out of the country.

Bruce

 

In general, yes.

Hawaii has been cleaning up its act with vigor, as we all know. South Dakota threw out Trinity C&U on its ear. Louisiana enacted a tough new law. Montana apparently has been quietly addressing Columbia Commonwealth. I think that domestic degree-mill havens are becoming harder and harder to find.

That would depend on the nature of the federal regulations and on how they were enforced in actual practice. It would also depend on what loopholes the courts were able to drill into the laws.

What's more, federalizing control of American higher education would have no impact at all on St. Kitts and Nevis. American states are not the only places that degree mills congregate.

So by this logic, we probably should turn control of world higher education over to the United Nations.

What about those few states with inadaquate laws enacting stronger legislation, and those states that don't effectively enforce the laws that they already have on their books giving the problem a higher priority?

Is that a good thing?

I don't have much problem with the current system.

As I said above, I would like to see the lax states enact stricter legislation to outlaw degree-mills. And I would like to see those states with laws that are not being enforced wake up to the problem and give this form of fraud a higher priority. I think that's gradually happening.

But I also approve of the idea of individual states running their own higher education systems. State university systems are far more responsive to local needs than a federal university system would ever be.

I also like some variety in state school-approval laws. Personally, I'm rather a fan of the California-approved university sector. A number of these schools are fascinating and quite attractive. But while they reflect the experimental and avant-garde culture of California, they probably aren't for everyone.

While I like the California bar admitting graduates of CA-approved law schools to the state bar exam, I don't think that this should replace the ABA-accreditation system used in most states. Nor would I like to see California's unique system suppressed by Washington. I would make similar arguments in other fields like psychological and counseling licensing.

If people want more nationwide uniformity, they already have it in the regional accreditation system. Just consider RA schools and reject anything else. There you have it: the equivalent of a nationwide system of standards. It's already in place.

Bottom line: Prevent out-and-out fraudulent degree mills. Then allow the states some freedom to experiment and innovate concerning their local professional licensing standards and the kinds of higher education institutions that they would like to have in their particular state.

On one model the federal government creates a definition of what higher education institutions must be and allows no deviation. On the decentralized model you allow variant definitions to coexist, and then let the academic and professional communities themselves choose among them by means of the accrediting associations that they create.

 

Can anyone on here name EVEN ONE entitiy that is regulated by the Federal government where fraud, shams, mismanagement, scandals, corruption, etc. have NOT occurred? If you can, and can prove it, I will write ALL 435 members of Congress asking for Federal regulation of degree mills.

Jimmy

 

Can anyone on here name EVEN ONE entitiy that is regulated by the Federal government where fraud, shams, mismanagement, scandals, corruption, etc. have NOT occurred? If you can, and can prove it, I will write ALL 535 members of Congress asking for Federal regulation of degree mills.

Jimmy

 

I'd also like to see stricter legislation and stricter enforcement by states. I think this is happening in some states, but not so much as I'd like.

For example, Louisiana's "tough new law" may not be so tough in its application.

American Coastline University, Fairfax University and Summit University were all granted religious exemptions. (Fairfax after some back-and-forth of unsuccessfully applying for DETC accreditation)

In September 2000, the Board of Regents approved operating licenses for Bienville, Columbus, Glenford, LaCrosse, LaSalle, St. John's and Southwest University, with stipulations that the schools apply for and gain USDOE-recognized accreditation "within a reasonable time frame" -- I've been unable to find anything on the Regents website with information about any followup within the past year.

Columbus and LaCrosse tout WAUC "accreditation" -- I'm astounded that they were granted licenses at all.

For more info, see the Board of Regents minutes:

June 22, 2000 (exemption of ACU) http://webserv.regents.state.la.us/board/minutes/2000/mi062200.htm
August 23, 2000 (exemption of Summit) http://webserv.regents.state.la.us/board/minutes/2000/mi082400.htm
September 28, 2000 (approval of licenses and exemption of Fairfax) http://webserv.regents.state.la.us/board/minutes/2000/mi092800.htm

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Kristin Evenson Hirst
DistanceLearn.About.com

 

Can anyone name even one entity of a state, county, city, or town government where the same has not occurred?

One of the prices we pay for a democratic republic is the possibility of abuse of power in government. It's not a perfect system, but I have yet to see one better.

Bruce

 

Hi Kristin.

Concerning religious exemptions, I expect that any imaginable federal higher education system would include them as well. They have been mandated by a number of courts and I believe that there are Constitutional church-state issues. So a federal system would probably still have religious degree mills.

But yes, schools like American Coastline do seem to just be secular schools hiding behind a phony claim to be some kind of seminary or something. In this case, the regents seem to actually be thwarting the intent of the legislation.

 

I don't have any problem with a religious exemption per se, but with how carelessly it seems to be applied. For example, why give "Fairfax University" a religious exemption rather than "Fairfax School of Theology and Religious Studies"? -- especially when Fairfax itself states that "it maintains its School of Theology and Religious Studies in Louisiana and its additional programs in South Dakota." (see http://www.fairfaxu.edu/Prospectues%202001/PGeneralInformation.html )

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Kristin Evenson Hirst
DistanceLearn.About.com