Kennedy-Western lawsuit

If it's a First Amendment issue (1st claim) then my ULC doctorate is just as good as a Kennedy-Western doctorate. Calloo Callay!

 

" "We as a society treat the idea of a college degree as though it means something," he said. "If everybody's got a Ph.D., then where are you? We all run around calling each doctor. But the effect on society is profoundly negative." "

Alan,

Can clarify your meaning in this statement. I hardly believe that all members of society holding legitimate doctorates can be negative. Especially in light of the fact that a new, original contribution is made by each in the attainment of the PhD. In fact, one of the hallmarks of advanced civilization is education.

I certainly value well presented opinons but there is more to be gained from the college degree than the diploma, including the maturation process and cognate skills that should be developed along the way. If everyone has a PhD, it is academia that is to be blamed for lowering the bar not the student for capturing the opportunity.

 

Actually, you are absolutely correct. Your (and my bulldogs) ULC Doctorate IS just as good as a K-W Doctorate. And in fact, the ULC Doctorate may turn out to be more legal due to the Religious Exemption clause.

 

I believe that a line for bogus degrees must be drawn somewhere. I believe that the proper place to draw that line is equal to an accredited degree. That is the assumption of the general population when someone claims to hold a degree. They assume that the person has a degree that's equal to an accredited degree. If you don't draw the line there then the next logical place to draw the line, from a legal definition point of view, is at least a small amount of work. Doing any work at all would make a Hamilton University degree legal or any place that requires a written paper or even a silly online test like SRU. So trying to draw the line at the low level still seems rather ambiguous, to me.

KWU apparently doesn't even follow their own inadequate admittance rules when accepting "students" (really victims) "tuition". There have been plenty of examples of this testified to.

 

Hmmmm... Not many web links for the law firm. Any one familiar with them? Is K-W a public or private company? Who owns it? I would love to see the Plaintiff's discovery requests!

 

I don't believe that the owner of KWU has tried to hide any of those details. IIRC, John Bear has posted the details of who the owner is. I'm convinced that the owner believes that he has little to fear from law enforcement. His cooperation with the recent Senate investigation and the recent lawsuit against the ODA, I believe, is evidence of that.

In that way I believe that KWU is similar to MIGS.

 

It’s not the best drafted complaint I’ve ever seen but I believe KW has a better than 50% chance of being successful.

Anyway you look at it, the Oregon law is a government restriction of speech. Of course not all restrictions on speech are unconstitutional. But in this case an argument could be made that the state could protect its interests in a less restrictive manner.

For example, rather than banning outright the use of degrees that have not been approved by Oregon, the state could require that all such degrees (and advertising) contain qualifying language. (“This degree is from an unaccredited institution and has not been reviewed by the State of Oregon.”)

 

The First Amendment is not a magic pill or bullet. Free speech is not as universally guaranteed in this country as one might think (or like or hope or wish). Governmental restrictions of speech are common and often come in the form of licensing or zoning laws. Such regulatory schemes, when constructed carefully and narrowly, are quite constitutional.

Oregon's approach to stopping diploma mills bears constitutional similarity to licensing regulatory laws. I'm not saying that Oregon is issuing licenses. I'm merely saying that the constitutional issues are very much the same as those argued in licensing cases. And licensing, believe me, is the single most effective tool that any government can use to eliminate certain classes of business which masquerade as one thing, but are, in fact, something else more sinister and harmful. Licensing schemes end-up regulating the legitimate businesses -- most of whom are the loudest criers of foul. But licensing laws' one-two punch of a side effect is that they cull fakers from the herd and make it impossible for them to legally exist.

The establishment of criteria -- fair, reasonable, and fairly reasonably achievable criteria -- that is equally applied to all, for a reasonable fee (if applicable), and which doesn't exclude anyone except for those whose interests are demonstrably harmful to the public good, are at the core of licensing regulations. Licensing schemes, when sufficiently narrowly focused and written in a manner clearly mindful of the First, Fourth, Fifth (when criminal sanctions are at play), Sixth and Fourteenth Amendment rights of those being regulated, will always withstand constitutional scrutiny.

Sadly, from my observation, those who drafted Oregon's statutes, which the ODA is trying to enforce and which are now the subject of KWU's lawsuit, should have paid closer attention to the constitutional issues. Their failure to do so may now come around to bite them in the hindquarters.

I think a 12(b)(6) motion doesn't stand a chance, here. Do not underestimate KWU's counsel, or the job they have done drafting the complaint. They have utilized in their complaint many of the right catch-phrases and legal concepts that, when applied to what are effectively licensing issues, tend to get the attention of federal judges in a big way -- phrases like, for example, "narrowly tailored" as applies to overly-broad and, by definition, therefore, ambiguous regulatory language which manifestly affects First Amendment rights. While such a phrase might be mere boilerplate in other causes of action, they are powerful stuff in this type of situation.

That having been said, the Judge may or may not agree that the First Amendment issues alleged in the complaint's first of three claims for relief are sufficiently compelling... noteworthy, perhaps, but possibly not compelling.

I'm also not so sure of the merits of their commerce clause argument, as alleged in the complaint's second claim for relief. I suspect the defendant will prevail on that one.

But the due process arguments in the complaint's third claim for relief may ultimately be what tips it in for KWU, depending on the judge. Those arguments are compelling. The manner in which Oregon's law tends to run roughshod over constitutional due process rights is something I've been talking about in these forums for some time, now. Items 39 thru 41 on page 8 of the complaint, specifically, are quite likely to get the judge's attention.

It would be a shame if KWU prevailed in this case because they would hail it as their vindication and an indication of their validity as an educational institution. Clearly KWU is not a valid educational institution and even if it won this case that is not what the Court's ruling, no doubt, will say. But that's the spin they'll put on it, nevertheless. Most reading said spin either won't know the details of the case or wouldn't understand it if they did (nor, I dare say, would most of them even want to).

In fact, the problem is, as I've tried and tried and tried to explain and warn in other threads here (and in private email communications to Alan Contreras), that Oregon's statute is poorly-written and approaches the problem in the wrong way, generally. What the regulatory language clearly seeks to accomplish, overall, is worthwhile and is, indeed, what needs to be accomplished. But those who crafted the language were (unintentionally) reckless and didn't really do their constitutional homework.

Regulatory language that restricts what amounts to free speech (which is what most regulatory language ends-up doing, even if it wasn't foreseen at the time of its creation) must be mindful of several fairly sophisticated constitutional schools of thought. Oregon's language, I have always said, fails miserably in these areas. KWU's lawsuit, while weak, generally, may nevertheless sufficiently attack these weaknesses and the judge may very well rule in its favor on at least one of the complaint's claims for relief.

That would be tragic because it would effectively chill the attempts of states to stop diploma mills by means of the regulation of legitimate educational institutions.

Of course I want Oregon to win. But a part of me wants it to lose, too, so that maybe it will finally start listening to the likes of me when it is warned that its statutory language won't feed the bulldog. History shows us that this sort of thing is a process, often punctuated by numerous state's failures which then become learning experiences for their legislators. Eventually the states end-up getting it right, but it can take a long time.

What Oregon seeks to accomplish, generally, is a worthy cause. But there's a right and a wrong way to do it. Sadly, Oregon chose the wrong way, as I've been saying here for some time. If it loses this case (as I fear it might on at least one count) it should not give up but, rather, it should seek out those who know the right way to do it and enlist them to draft the next round of its regulatory language in such a way that it really will withstand constitutional scrutiny.

It will, indeed, be interesting to watch.

 

You are right, David. That is the same simple but effective argument raised in all three counts.

Absent a showing by the state that these are outright fake degrees, Oregon can't justify making criminals out of people holding college degrees that are otherwise legit in every other state in the 9th Circuit.

Contreras ought to cut a deal while he's still in a position to deal.

 

Thank you for the analysis, Gregg! Excellent as always!

Cheers,
Tony Maranto

 

That's not, categorically, true. The state can regulate, as it's trying to do... but just not, in my opinion, in the precise manner, and authorized by the current statute in its present form, that it is relying on right now.

 

I am not a lawyer, and I do not claim to know much about law. What I do not seem to understand is where any school is being denied its constitutional rights with this statute. I am not saying that I am either for or against the ODA statute, but I would think Oregon has the right to demand certain standards for schools and their degree programs to be legal and licensed. If another state issues a license that they do not agree with does that state automatically have to accept it? If Massachusetts allows gays to become licensed to marry does Texas have to accept that license? If a foreign medical doctor becomes licensed to practice medicine in Kentucky does New York have to accept that license if he decides to move? If a builder becomes licensed in Mississippi does he also have the right to be builder in California?

Rules are different from state to state. I am a licensed contractor in more than one state, and many states have reciprocity agreements where you use the qualifying exams and credentials from the one to become licensed in the other. But, some states use different building codes and standards, so if you want to be licensed in a state where there is no reciprocity agreement then you have to take that states exams and meet its standards. It seems to me that Oregon has the right to set the standards for itself. If Oregon was making it criminal for all unaccredited schools I would think it would be unconstitutional, but since all unaccredited schools have two avenues to become legal in Oregon then I do not see any school being denied constitutional rights. Unaccredited schools whether online or B & M can either become accredited or go through Oregon’s approval process to become legal in Oregon.

It seems it would be much cheaper and easier to meet the criteria and apply for approval than to try to change the law. Where is the victory if the law is changed? If everyone can claim and use a degree in Oregon whether it is from SRU, Hamilton, or Degrees-R-Us is that a victory? Will that change all of the negative press that continues to come out as a result of the KWU investigations? Will that increase the academic integrity, acceptance, or the reputation of KWU? If anything I see this as further causing KWU to be lumped in with diploma mills because most will see this as KWU continuing buck any academic approval or oversight.

I am glad to see KWU doing something rather than just being silent, but I do wish they would turn the rudder and set sail with the wind rather than against it. Sailing against the wind did not do some of the other similar schools that I have read about much good.

 

Without addressing every issue you raise, plscott, the constitutional issues arise not so much from what Oregon is trying to do, generally -- which, by your thesis, you clearly support... as do I -- but, rather, by the very specific means by which it is doing it.

My argument has never been against what Oregon is doing and, in fact, I'm quite probably its biggest fan for trying (contrary to what Alan may have felt while reading my words in these forums from time to time). But I've always been troubled by the precise regulatory language employed in Oregon's statute, and the practical application thereof as we've seen thus far.

To be legal, regulatory language must be so narrowly focused and so sensitive in its wording to the possibility that it will inadvertently step on someone's constitutional rights, that if one just charges in and slaps onto paper the words which, by hook or by crook, accomplish one's goals, one can find one's law invalidated by the court for purely technical constitutional reasons, and not because there is anything inherently illegal about the law's overall intended purpose. Courts frequently agree with and applaud the state's desire to regulate something for the common good of the people, but strike it down anyway because the regulatory language was worded such that someone's constitutional rights accidentally got trampled on somehow.

When that happens, the court is not saying, "don't try to regulate that matter." Rather, the court is simply saying, "nice try, but not good enough... go back and re-draft the language so that it withstands constitutional scrutiny," which is what I fear will happen here... and, if so, I hope Oregon goes back and tries again (and again and again and again, if that's what it takes) until it gets it right (which which I'd be willing to help, incidentally, though no one's asked me yet -- nor, I suspect, are they likely to... and that's okay... I'm not trying to drum-up business, here).

That's sort of what's at issue in this case -- more the form, and not so much the content (although there are certainly content issues in play, as well).

 

As a matter of fact this is, categorically, true. On the other hand your statement is, categorically, false. Do you seriously think the state can draft a law "in a precise manner" that turns people with legally issued degrees into criminals? That is like saying a state can authorize slavery as long as it does so "in a precise manner." It's obvious you've never studied constitutional law, which is probably a good thing because you would make your prof puke.

 

I'm not an attorney, but then I'm not an anonymous Kennedy-Western supporter either, so...

The wording you're talking about, plc, is Article IV, section 2 of the U.S. Constitution (usually called the "full faith and credit" clause):

Just to illustrate the point (and, of course, connect this thread to politics), the reason conservatives support a marriage amendment is because the U.S. Supreme Court could conceivably interpret the full faith and credit clause as applicable towards marriage licenses issued in Massachusetts, which would force other states to accept those licenses regardless of whether they themselves perform gay marriages, or even have a state constitutional amendment prohibiting recognition of same. The Supreme Court will probably rule on this in a year or two, as a lesbian couple recently got married in Massachusetts, moved to Florida, and challenged the state in court to recognize their license. (And good for them, I say.)

Now, you may be thinking "Okay, so where does Oregon come off saying that other state's degrees are not valid?" Well, hold on a second, I don't think that's what Oregon is saying--I believe they're saying that degrees issued by private entities approved by other states may not legally be used in Oregon, but the ODA does not have any state universities on its list, nor does it make judgments about the schools themselves (just their degrees--a technicality but an important one), nor does it suggest that degrees conferred by schools on its list are necessarily invalid or non-approved. So the issue before the court, as I see it, is whether state approval of an institution that grants credentials makes the credentials themselves into "public acts, records, [or] judicial proceedings" which must then be protected under the full faith and credit clause. Or at least that's my interpretation, as a liberal arts major.

If that's the line of reasoning KWU is using, then I don't really see how things could work out in their favor; if state-approved degrees were granted official state endorsement by approval, then it would be unconstitutional for any state to recognize pervasively sectarian colleges under the First Amendment's establishment clause. But that's just my opinion; I'm sure the Oregon courts will be able to figure this issue out on their own.

Carry on, folks. I'm going back to the off-topic forum.


Cheers,

 

Yes... depending on how you define "legally." And, really... now that I re-think it... pretty much no matter how you define "legally."

No, it's not, and the fact that you cannot easily see why, given your derisive claim that you are a veritable master at constitutional law (my paraphrase, mind you), is, indeed, telling.

Mmmm.... not so obvious, I think... nor is it to anyone else reading this thread, I dare say. It's clearly and obvious, however, that you don't know me and/or have never read anything I've posted here or anywhere else, or anything I've ever published. I assure you: I've forgotten more about constitutional law than I dare say you'll ever know. And I'll take that one step further: I dare say that that would still be true if I died tomorrow and you lived to be a hundred. (Think about it... it'll kick-in in a second.)

So... hmm... lemmee ask you somethin', there, Sparky: Are you, like... 15, or what?

Do you always reply with this kind of immature vitriol to perfectly friendly, matter-of-fact, unemotional postings, like the one I made, above, to wit:

"That's not, categorically, true. The state can regulate, as it's trying to do... but just not, in my opinion, in the precise manner, and authorized by the current statute in its present form, that it is relying on right now."

What is it about those two simple, perfectly non-confrontational, non-ridiculing, clearly-an-attempt-at-being-helpful sentences of mine that sent you into such a rage that you would write such outrageously, inappropriately, and intentionally hurtful things to someone whom don't know nor know anything about, who's probably a lot older and far more experienced (and I dare say wiser) than you are, and who so obviously knows more about the subject at hand than you either do or likely ever will?

Have you never heard of the noble art of discourse? Do you just naturally respond to every posting which takes ever-so-slight issue with something you wrote -- howsoever patient and kind said posting might happen to be -- and attack it, ne, it's author, so viciously and with the most immature and angry blather that you can possibly think of to write?

Do you really think others reading this thread will marvel at your wit? Do you really think anyone reading here will see you as quick? Or smart? Or admirable?

So... like... tell the truth... I'm right, aren't I? You're maybe... what... 15? 17? 20, at the most? You're... like... waiting for one of your little friends from online-college.info to chime-in, now, and write something bolstering like, "Ooooo, maris61*, you really got him, good, dude! Hee, hee, hee."

Now that you've made your little drive-by posting, do you have a strong sense of self-satisfaction and victory -- like a gang member in old Chevy has after he's put a hollow-point bullet into the chest of someone who dared to dis' him in school that day? It's the same sort of brain-damaged, insecure, travel-in-a-pack mentality, you know.

You could use a few civility lessons, there, Mr. Still-wet-behind-the-ears; and a strong dose of maturity. Or, like most sociopaths, do you think it's okay to just behave any ol' way you want, at any ol' time you want, appropriateness pretty much be damned? Hmm?


Watch what happens, now, everyone.

 

I have argued full faith and credit elsewhere in these forums; and I believe it's fully in play, as an issue, in the larger Oregon situation. I'm not sure that it will play an important role in the KWU lawsuit just filed, however.

 

The "full faith and credit" issue has been argued before, but Oregon may be on solid ground here, at least in cases where professional licensing is required. A blanket non-acceptance of degrees approved by other states may not pass constitutional muster, but they can certainly require some sort of "Equivalency to Oregon Standards" for it to be acceptable in Oregon for professional purposes.
I know that most states do not accept even drivers licenses from other states without the applicant passing some sort of test. In Oregon's case, when I moved to Oregon, they took my California drivers license and issued me a Learners Permit. I then had to attend a class before I could take the test. Moving to California from Louisiana was easier, I just had to take written and drive test.
This same principle applies to most other fields. Real State and Plumbers come to mind, for example. State requirements vary, and each state has the right to set their own standards.
See: Constitution, U.S., Article 10 ; "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people. "

I'm not an Attorney, this is just based on my own personal experience.

 

Bobblehead perhaps?