The Associated Press - Oregon clamps down on phony degrees

The Associated Press

Oregon clamps down on phony degrees
7/4/2005, 1:48 p.m. PT
The Associated Press

SALEM, Ore. (AP) — In an effort to discourage bogus degrees, Oregon lawmakers want students to be required to include a disclaimer on their resume if their degree is from a nonaccredited institution.

The bill passed by the Oregon Senate last week is part of an effort by legislators to combat degrees from less-than-reputable institutions, which require a fraction of the coursework required at accredited colleges.

###

To avoid a legal tangle, Oregon officials have agreed to stop making it illegal to mention the degree on a resume, so long as it is accompanied by the required disclaimer.

###

He said (Alan Contreras) that the fact that students will have to place the disclaimer on their resume and letterhead will act as a "scarlet letter on their forehead," discouraging others from taking the same shortcut.

 

...

What if the degree granting institution is accredited by "bogus" accreditation?

Is this ODA policy a constitutional violation of freedom of speech?

Personally I think it is up to the human resource departments to find out if the degree is bogus or not. The people hiring need to do their due diligence before hiring people with bogus degrees or shame on them!

I guess Oregon thinks that American corporations are not smart enough to take care of their own corporate affairs.

 

Re: ...

Maybe this is a way to bring the HR awareness.
But more to protect the students and the employers and universities.

If to many will go the wrong path this will reflect on real university atendance and education of future generations.

So extra protection mechanism is not bad.

 

"So extra protection mechanism is not bad." quoted by Lerner

You proved my point! Government believes it knows what is best for its people.

I agree that diploma mills are bogus!

Not all unaccredited institutions of learning are diploma mills. This legislation is a violation of freedom of speech!

I don't agree that a person has to write on his or her resume that they obtained their degree from an unaccredited institution that the ODA doesn't like, blah, blah ,blah! If it has to do with licensure or applying for a government position within Oregon, then that is Oregon's right to have a standard.
But don't dictate to anyone who applies for an employment position with a non-governmental entity what they have to put on their resume! In my opinion it is non of governments business!

 

One might argue that there is a public interest at stake, one not necessarily being managed by employers. If so, it is government's natural role to manage this as representatives of the people. Whether or not that mandate exists here, or whether or not the ODA is managing it correctly is, of course, open to debate. But government being involved with such matters is a common thing.

 

Advertising is subject to regulation

Oregon’s previous policy was to ban any advertisement of unaccredited degrees. This policy arguably did violate free speech rights, because it prevented someone who held a legally-obtained unaccredited degree from stating the truth.

The state-licensed, but unaccredited, Kennedy-Western University filed a lawsuit over this policy, and Oregon agreed to change it. It is now legal to advertise an unaccredited degree in Oregon, so long as it is accompanied by a disclaimer. The current Oregon policy does not violate free speech rights, and this point was implicitly acknowledged by KW, because KW agreed to settle the lawsuit on this basis.

When you publicize your credentials, you are basically advertising. Everyone knows that governments can regulate advertisements; ads routinely contain fine-print legal disclaimers ("Warning: The Surgeon General Has Determined That Cigarette Smoking Is Dangerous to Your Health)". We may or may not agree on the need for mandated disclaimers on advertisements, but it’s clear that governments can and do impose them.

 

Oh, free speech, schrmee speech!

Stop it, Lerner! If you start writing things with which I'm either forced to agree; or which are at least credible in some way (like, for example, is your post, above), then I'm pretty sure something really bad will happen... like a tear in the time/space continuum, or the beginning of the apocalypse, or something like that. Knock it off, will ya'! You're weirdin' me out, here.

(Just screwin' around. Good post.)

Now you're dabbling in an area about which I know much. Governmental restriction of speech under certain circumstances to ensure that no harm is done to the citizenry by the actions of a few is both appropriate and constitutional. That's what licensing of political rallies or parades or adult bookstores or any of a number of other entities and/or endeavors is all about. So don't get your knickers in a twist over a general notion that's been reviewed by the US Supreme Court I can't even count how many times, and has been found to be within both the letter and spirit of what our founding fathers had in mind when they wrote the First Amendment to the Constitution of the United States... and several other relevant amendments, too, I might add.

Let me ask you, after a paragraph of set up, a hypothetical question, Delta:

• It's well known -- in fact, it's Constitutional Law 101 -- that a person cannot yell "Fire!" in a crowded theater if there is, in fact, no fire... and expect his/her 1st Amendment free speech rights to protect him/her from being prosecuted for whatever bad happens as a result. Preventing harm to the citizenry is more compelling and necessary than protecting the yeller's right to say just any ol' thing s/he wants, just any ol' time s/he wants. At the same time, because the 1st Amendment ensures that pretty much everyone should be able to say pretty much any ol' thing they want, pretty much any ol' time they want, the state's reasonable (and upheld by the courts as constitutional) option to mediate, and resolve to the benefit of all, those conflicting needs is regulation. As long as said regulation is crafted in a way that ensures that virtually any person can do or say pretty much whatever s/he wants to do or say, but only after taking certain (but not onerous) state-required, equally-accessible-to-all steps that can be shown to be necessary to prevent harm to the citizenry by what said person wants to do or say, then it's constitutional.
  
  So, Delta, knowing all that, are you saying, then, that if the state passed a law which permitted persons to yell "Fire!" in crowded theaters with impunity when, in fact, there was no fire... but only as long as they first yelled, "What I'm about to yell is a joke! Please don't take it seriously," then said law would be a violation of the yeller's 1st Amendment free speech rights?
  
  Would not the state's interest in protecting the citizenry, in that case, be more compelling and necessary than allowing the yeller to yell his/her lie without appropriate and harm-preventing discliamer?

People who despise the Oregon ODA (with some of the policies of which, by the way, I have some issues as well; but of which ODA I'm still a strong supporter, nevertheless), and who know about the Kennedy-Western lawsuit and its free speech claim; and who are impressed by the fact that Oregon settled rather than fought (ostensibly because it determined that doing so would not be the best stewardship of its limited funds), have the wrong idea in their heads that if the matter had gone to trial the plaintiff would have prevailed. I read the complaint. I think the plaintiff made some seriously good points against which it really would have been tough for Oregon to prevail. But prevail it still might have. And if it hadn't, it wouldn't have been because Oregon wasn't on the right track in the first place. Rather, it would have been because the fundamentally flawed legislation Oregon used to try to thwart the diploma mill problem in that state could not have withstood constitutional scrutiny precisely as written... and argument I've made here several times.

But that's the way nearly all good regulatory language gets crafted: By trial-and-error... that is, if the state has the funds to withstand (and participate in) that arduous and time-consuming process. Good regulatory language gets drafted, then challenged in court, then struck down by said court, then re-drafted to repair whatever defects caused it to be struck down, then challenged again in court... and so on and so on until the state finally gets it right and the regulatory language can then settle into its unassailable place as the permanent law of the land.

However, when a state has no money -- as is now the case with most states in this country (and as, I dare say, will continue to be the case, along with a raft of other problems, for as long as this country keeps electing Republicans... but I digress) -- then it (the state) sometimes backs down and takes what it perceives is a more expeditious route... a route which, sadly, is sometimes worse and less effective than what was originally tried (but which could not, for lack of funds, be perfected through trial-and-error).

I believe Oregon, because it just doesn't have the wherewithal to do it right, has now done it more wrong than ever. But that's just my opinion. That said, it doesn't mean that Oregon doesn't have the right to regulate speech in the name of the common good of its citizenry in precisely the way it now has. The harm to the citizenry of bogus credentials can be shown. The inability of the citizenry to easily determine if an unaccredited credential is bogus, and the potential harm of that; combined with the the ease with which the citizenry can be spared said potential harm by allowing it to simply rely on the time-worn and observably reliable accreditation process, makes the state's drawing a line in the sand at "accreditation" perfectly constitutional. The state's ability to show that requiring those who hold unaccredited -- and, therefore, possibly bogus -- degrees to, in the name of preventing potential harm to the citizenry, declare said degrees as "unaccredited" is, therefore, also constitutional.

 

...

Is yelling fire in a crowded theatre equivalent to listing an unaccredited degree on a resume? Maybe but not always.

What about those who have graduated from highly respected unaccredited institutions? They now are obliged to tarnish their resumes with extra verbage? So that they can wear, "a scarlet letter on their forehead."

One thing is for certain, this piece of legislation is certainly going to cause debate.

 

Re: Advertising is subject to regulation

Arguably, maybe. But highly assailable. I'm not sure that assessment would have held up.

Far be it from me to take Kennedy-Western's side on anything, but just as a point of order: A party's agreement to a settlement does not mean that said party also agrees with the underlying arguments of the opposing party as set forth in its original complaints, subsequent motions, or evidence as presented at hearings or trial. Just wanted to make that point.

Advertising really has nothing to do with it... or, it's at least not a special class of speech that imbues it with 1st Amendment protections that private speech does not also enjoy. In fact, to the contrary: Because commercial speech is commercial -- because of the pound of silver involved -- commercial speech is often denied certain 1st Amendment protections that private political (and other kinds of) speech quite easily enjoy. Again, just wanted to make that point, too.

Your thesis, generally, however -- sans the commercial "advertising" spin on it -- is fundamentally correct: The state's right to regulate speech to protect the citizenry, as I explained in my previous post, has been upheld by the Supreme Court over and over and over again. And when it hasn't, it has nearly never (although, as I think about it, it actually has at least a few times) been because the state didn't have the right to regulate the speech or activity in question at all. Rather, when state regulatory schemes are overturned at the appellate or Supreme Court levels, it's usually because the regulatory scheme was somehow onerous or unfair or not easily equally accessible by all; or was clearly intended, by its difficulty or expense, to impede anyone from easily complying therewith; or because it discriminated in some other way; or because said scheme could be shown to not directly and/or appropriately protect the citizenry from whatever it was from which the state was trying to protect it in the first place, etc., etc.

Drafting regulatory schemes that will hold-up in the trial court and then, also, on appeal, can be very tricky. The Kennedy-Western suit did not even make it to trial... and for the economic reasons, I believe, that I've set forth above.

I've consulted with several legislators in my career regarding the fine points of crafting regulatory language that will withstand constitutional scrutiny, and let me tell you: It's not easy!. Becoming expert in at least four constitutional amendments -- the first amendment, which is a field of study unto itself, being just the starting point -- and the growing (and often painfully boring) body of case law which surrounds them, is a minimum requirement. But it doesn't end there. Any state that attempts to regulate pretty much anything these days -- especially something as lucrative as selling bogus degrees -- had better be prepared to stand behind it when it's challenged... as it most certainly will be, especially if it potentially involves a free speech issue (which, believe it or not, nearly all licensure and other forms of regulatory legislation ultimately do).

I've always wanted to help Oregon get this right. So interested in, and passionate about, this subject am I that I'd even have done it for free, I think. Still would, I'm pretty sure. I guess maybe I should have made a formal offer or something. The key to this game is to draft language that's so reflective (or what some call "aware") of both the letter and the spirit of all prior appellate and Supreme Court rulings that it's pretty much constitutionally sound -- ne, bulletproof -- when it first hits the lawbooks. Thereafter, if it's done right, the state will probably only have to fund one big challenge in court (which could include subsequent challenges to appellate and the Supreme courts) whereupon -- again, if it's done right the first time -- it will be upheld, thereby dissuading future challengers from trying a second time. I believe I could have helped Oregon draft just such language... ego notwithstanding. Thereafter, if Oregon had had the financial wherewithal to defend it, I believe it would have ended there.

Oregon drafted fundamentally flawed regulatory language in the first place; then had it challenged by the Kennedy-Western suit; and then, unable to fund a defense (or, unlikely, to prevail in any case, perhaps), it caved. The salient feature of the settlement (the disclaimer) then served as a guide to Oregon legislators to craft new legislation which -- surprise, surprise -- requires a disclaimer of unaccredited degree holders. It's expeditious and economical, but it's the kind of shortcutting that ultimately doesn't really accomplish what everyone (except, of course, the mills and those who hold their "degrees") wants to accomplish: The effective thwarting of the sale or use of bogus credentials.

But, alas, it's all moot now. Oregon couldn't care less, at this moment, what someone like me thinks... or you... or anyone, for that matter. It believes it has fixed the problem with its new, silly disclaimer legislation. Only time will tell if it actually has.

ADDENDUM: Actually, I shouldn't call the disclaimer legislation "silly." It's not. The problem is, it's not enough. It's a little like a local municipality trying to fix the massage parlor or adult bookstore or strip club problem with zoning alone. While zoning is an effective and necessary part of fixing the massage parlor problem, for example, the licensing of legitimate massage establishments and requiring of them things that bogus massage establishments (which are also fronts for prostitution) would never do, is a necessary second tool. It's got to be a multi-pronged approach. A disclaimer, alone, though an appropriate tool to aid in the thwarting diploma mills and those who hold their bogus "credentials," is inadequate without other regulatory schemes to assist it.

Or so says me. And what do I know!

 

You're not standing your ground, Delta. Yelling "Fire!" in a crowded theater is probably never equivalent to listing an unaccredited degree on a resume. But it needn't be. The potential harm to the citizenry needn't be directly and immediately potentially life-threatening in order for it to still be compelling and necessary. Merely "life-affecting" -- or potentially harmful in any of a variety of less-dramatic ways -- is enough.

Well, I think you have a very valid point, there... sound, even. And it helps to make my point that the disclaimer is not enough; that it's an important tool, but is inadequate to both mitigate the harm to the citizenry that bogus credtials and their purveyors cause, while still protecting the rights of said citizenry. Additional regulatory language that, for example, permits an unaccredited degree holder to have the disclaimer requirement waived in his/her case if s/he takes certain state-prescribed, cost-free and easy-to-comply-with (but still effective) steps to prove the legitimacy of the unaccredited institution which issued the degree would certainly remedy that problem, wouldn't it?

No more than the previous Oregon legislation did, I think. They're both inadequate and, by themselves, therefore, the wrong approach.

 

This topic goes to the heart of an area that I have been grappling with; basically, where does the responsibility lay to validate a credential?

I recently was on a jury, and much of the trial was spent discussing each expert’s credentials, with one side attempting to build up, and one side attempting to down play the credentials of each expert witness.

Many of the arguments for accreditation follow to a representation of the quality of some one’s degree as a credential. Who should be responsible for the quality of the credential and its verification?

Oregon, it would seem, suggests the individual. I wonder in today’s self service society if that is the correct place to put this burden, as the liability, it would seem to me, is equal to both the presenting and accepting party regarding the quality of a credential. More so possibly on the accepting party, as it would seem to me that the acceptance of a credential speaks to its quality more so than its presentation.

If this thinking were expended to include other types of credentials, like say the PMP certification, is Oregon suggesting that all credentials require an accrediting body?

 

Responses to DesElms

 

Personally I despise this legislation. Now, if OR was going to institute a degree mill task force and list known institutions that give bogus degrees and require that you state "This degree has been afforded to me by an institution designated as a degree mill by the state of OR," then I might not have a problem. However, I suspect that perfectly good applicants who have unaccredited degrees are going to experience unfair hiring practices because human resources won't know the difference between an unaccredited degree and one conferred by a degree mill. I think they are doing more harm than good. JMO

 

...

What about Libel? In essence the government of Oregon is requiring a person to make a statement that their degree is not accredited and doesn't meet Oregon standards. Alan Contreraras has stated that this puts a "scarlet letter on their forehead."

Essentially the Oregon government is making a libelous statement about ones academic credentials. The bizarre thing is that the individual has to make it for them by law.

I don't know about you but I consider the statement, "a scarlet letter on my forehead", to be libelous and cause damage to ones reputation.

I also agree this legislation will cause unfair hiring practices.

 

I believe the state has a legal interest in the use of degrees, and that this wasn't a First Amendment issue. But I'm not an attorney, nor am I pretending to be one.

That said, I rather like the settlement. The "Scarlet Letter" approach is a deterring one--if enforced. That the nature of one's degree has to be described in a disclaimer raises such red flags--I just don't see how such a degree would be of use, even if the disclaimer was couched in other language.

Best yet is the publicity this is receiving. Kennedy-Western must not like it, and is surely hoping this will all blow over, like it always does. Boy, that's a school to be proud of, huh?

 

...

Actually a verbal statement would be slander.

However in this case, an official representative of Oregon is interpreting the written policy or piece of legislation.

 

Re: ...

Actually, as I work in Oregon, there seems to be a growing feeling that these on-again off-again disclaimers will soon have the same effect as saying "This product made by non-union labor." Employers, at least some of those I have dealt with locally, tend to treat a lot of diplomas/certifications the same as they treat some sort of "Journeyman Mechanic" certification that everybody who can change oil in your car seems to have hanging on the wall lately. Of course, the company I'm at now distributes products that say "Made in China" on the label.

 

Under what circumstances? And what type of credential?

Accreditation speaks more to the validity, not so much the quality, of a degree.

The issuer.

An accreditor.

How so?

How so?

Okay. I actually get that. That point definitely has something to it.

No. It's talking about degrees. Period. For everything else, everyone's on his/her own. Though it's impractical, one could make an argument that it should, however. I mean, let's not forget what a credential even is. How can it even be a credential, one could argue, if just anyone can issue it? After all, don't both the words "credential" and "credible" have the same latin root meaning "to believe" or "to trust" or "giving authority," depending upon at which variation of the root one is looking?

Understood. And that's a reasonable interpretation. I'm not arguing with that. I'm only saying that there's a difference between what it may be obvious (but what cannot actually be known) a party believes, versus that with which said party may or may not be agreeing. Anyway, we're starting to split hairs. Your point is well taken.

Well... okay. I mean that's one way to look at it, I guess. But the case wasn't turning on commercial versus private/personal speech and/or whether either was protected under these circumstances. Both certainly can be and routinely are. I mean... I get what you're saying. I guess all I'm saying is that, in this case, it wasn't really a truth in advertising issue. But I mean, look... I see what you're saying; and I'm not really taking issue with it to speak of. It's a perfectly fine point, as points go.

That's precisely what it shouldn't do. Trying to keep-up a list of bogus institutions is folly. The target moves too much. It's much better to describe/define what kind of credential the state will accept and that's that. Each institution either meets said definition or it doesn't.

I think you need to consider the possibility that that's precisely the trouble that the state is trying to give to those whose degrees are not accredited by an agency approved by the US Department of Eduation (USDE) and/or its Council for Higher Education Accreditation (CHEA). Oregon has always drawn its line in the sand at accreditation. It seems it is not losing a minute of sleep over the trouble it will now give those whose degrees aren't accredited. The near ubiquity of accreditation; and that fact that it has long been the defacto standard certainly makes the state within its right to do that.

Okay, that's one statement. Where's the libel in it? It's provably true, is it not? And is not truth an absolute defense to libel? Anyway, the state's making the degree holder make the statement about his own degree couldn't possibly be a libel case, even if it weren't true. Defamation -- either form of it (slander or libel) -- is inapplicable here.

Okay, that's a completely different statement... one which Contreras issued as a clearly personal opinion, and one not directed at any identifiable party or parties. Where's the defamation in that (as a matter of law, I mean)?

It's that interpretation that's bizarre. You seem to be saying that Contreras, as a representative of Oregon government; and through him, therefore, Oregon government itself, is calling having to put the disclaimer on one's resume, etc. the equivalent of "a scarlet letter." Further, you seem to be saying, every time the government forces the degree holder to issue said disclaimer, it's effectively forcing him/her to wear said "scarlet letter." Is that what you're saying? If so, forget it. There is no way that that connection can be made in a court of law. It's not even a connection, in fact. Forget it.

Well, it's not... at least not in this case, given the facts. And, other than what I've already written, I'm not going to go into why. Go read-up on defamation law. You'll then quickly see why.

No, he's not... at least not as you're saying he is.

Nor am I, just in case that remark was aimed at me. At the legislative stage is where my expertise in this particular matter lies. If it were a requirement that all legislators (or their advisors or assistants) be lawyers, congress would be a decidedly different (and worse) place.

And regulatory legislative language -- no matter what kind -- nearly always ends-up being a First Amendment issue somehow. It was tough for me to get my mind wrapped around that, too, at first. But once I started reading cases -- many, many, many cases... 'til my eyes glazed over -- and understanding the sometimes delicate legal principles, I began to get it. Trust me, at least one of the things that's always been an issue in this case is protected speech. It's just one of the issues, mind you; but it's a potentially big one.

I agree; and, sadly, that's precisely what may get it overturned some day. Oregon has now moved from one piece of regulatory language that was screwed-up for a variety of reasons (and risked being struck down for First Amendment -- among other amendment -- reasons; to a completely different kind of regulatory language that's just as screwed-up, but for completely different reasons. And in this case, one of those reasons might just end-up being that what it requires of the citizens upon whom it imposes action may be seen as punitive -- something which the courts have ruled that any action, or the direct result of any action, which is compelled by a regulatory scheme cannot be. Making that particular kind of argument is a stretch, at this point, mind you. Then again, the more people who have that opinion, and who can be shown by the unaccredited degree holder to be depriving said degree holders of opportunities because of it, the more likely it is that an argument like that will be made.

 

Since the vast majority of unaccredited degrees are bogus, we'll just have to try to be sympathetic to the very few that have real unaccredited degrees. My sympathy is limited however by the fact that the holder of said unaccredited degree can still ask the ODA to approve their unaccredited degree, then they don't have to use the disclaimer. The bottom line is that I don't buy your doing more harm than good statement.

 

My question is, who would be upset if the law stated that all degree holders had to state whether their degrees are accredited or not accredited?

I would certainly have no problem whatsoever with adding a proviso to any document, listing my degrees, that all my degrees are legitimately accredited.