On Tuesday -- as the republic awaited the formal launch of the latest Supreme Court nomination death-match -- Stanley Fish appeared in The New York Times with a short article titled "Intentional Neglect." Its thesis is sharp, bold, and deceptively straightforward.
As we enter the inescapable squall of debate over who shall take the place of Sandra Day O'Connor, announces Fish, we need to be clear on some basic things. Interpreting the Constitution is a matter of determining its authors' intent. Talk of "a living constitution" that must remain open to the changing times -- that, in short, is not interpretation, but a roundabout means of rewriting the Constitution.
The response in some quarters has involved gestures of shock -- and from one or two conservatives, anyway, of gratified astonishment. How sensible the man is! What a voice for sweet reason! Is this Stanley Fish not the same man who turned the English department at Duke into a training camp for left-wing theoretical guerillas? Has he perhaps had a change of heart?
Fish is widely recognized, even outside academe, as a celebrity and a power broker. He is the one person at the annual convention of the Modern Language Association who does not wear a name tag. And he has a well-established profile as the champion of the anti-foundationalism that non-academic civilians understand to be the, well, foundation of contemporary academic radicalism.
So when he goes on "The O'Reilly Show" -- or weighs in with an op-ed in the Times -- many people naturally assume that Fish is speaking as some kind of leftist. Hence the surprise at his latest article, which at least some readers might take as an application to join the Federalist Society.
All of which underscores the difference between being well-known and being well-understood.
There is nothing in Tuesday's op-ed that Fish hasn't argued many times over the years. Many, many times, over many, many years. (Whatever debate may exist over his other virtues, the man is a stickler for consistency.) But he is so famous that his ideas have long since been dwarfed by his reputation.
His current stress on the framers' intent as the necessary focus of interpreting the Constitution sound paradoxical, coming from a literary theorist who came into prominence, in the 1970s, as the most dogged champion of reader-response criticism. Actually, there is a pretty direct line of march from one position to the next.
One modest claim in favor of the reader-response school might be that its very name was a case of truth in advertising. (I speak of it in the past tense because it's been some while since the movement was at its peak. No doubt there are still a few partisans still fighting for the cause, like those stray Japanese soldiers from World War Two who used to turn up on islands in the Pacific.) Reader-response analysis involved looking at how the audience of a literary work interacted with it -- how, in a sense, the meaning of a text was produced at the moment the reader was consuming it.
That sounds like a recipe for, well, just making stuff up. Mix one part epistemological relativism and one part narcissism, and you get the sophomore's hermeneutic: "That's what the book means to me." Add a dash of paranoia, and you get: "I think Shakespeare was a Freemason, and my reading is as good as any other."
But you can't judge a method by its most inane or implausible applications. In the case of Fish's version of reader-response analysis, there was a sort of hermeneutic shock-absorber built right in. He called it "the interpretive community." An individual reader might come up with some bizarre personal meaning for a work. For the most part, however, reading is conditioned by one's membership in groups, and those groups tend to create something like a consensus about what counts as the range of sound understanding. There are rules for what counts as good evidence, or a well-made argument.
Normally those rules aren't written down someplace. They exist at the level of tacit knowledge; you either absorb them and read accordingly, or you aren't really part of that particular community. And the rules can change over time. A work's meaning isn't fixed for all time, like a face sculpted in marble. Nor does it change at random, like a kaleidoscope image. It's more like the various productions of a play -- varying over time depending on who's directing, who's acting, and how big the stage is.
Fish's later writings on law and on current issues are, in effect, an expansion of the idea of the interpretive community to the world beyond the printed page. We participate in institutions and in civic life in the same sense that we read and understand a work of literature -- as people who always find ourselves embedded in a structure of rules, assumptions, traditions, etc., that implicitly govern what counts as acceptable.
From Fish's perspective, it is the mistake of a certain kind of fundamentalism (religious or secular) to think that we can get to the level of bedrock truths that aren't so conditioned. Or to think that, by reasoning, we can ascend to lofty heights of abstraction, far above all the diverse and squabbling micro-communities. You never get outside of some kind of interpretive community, following rules that are socially constructed.
But that doesn't mean they are imaginary -- that anything goes.
Fish's often uses the game of baseball as his example of something that is both socially constructed and real. Does a baseball or bat exist in nature? Does "three strikes and you're out" follow from any law known to the sciences? The answer, in each case, is "no." Are baseballs and bats real? Does the three-strikes rule have predictable effects on the course of the game? Likewise, the answer is "yes." So the game of baseball is both socially constructed and real. It is the product of human activity, but not subject to anybody's whim. (The umpire's eyesight, yes. But that doesn't gainsay Fish's basic point.)
Now, talk of social construction always sounds like it might have a radical agenda. To anyone who thinks in terms of natural law, it reeks of Jacobinism. After all, if something is socially constructed, that means that it might be re-constructed, right? And that means it probably should be, at some point.... The next thing you know, there are guillotines.
But actually, if you look at them closely, Fish's ideas seem a bit closer to the counter-Enlightenment doctrines that emerged following the French revolution. The binding force of community, the subordination of reason to the implicit code of tradition, the sense that our freedom is limited (or at least conditioned) by rules that can't be redrawn all at once ... this sounds a little bit like something from Edmund Burke, or at least from Russell Kirk's The Conservative Mind.
Not to go overboard with this. When he gives voice to political opinions (in favor of affirmative action, say, or in defense of speech codes) he tends to sound like a garden-variety liberal. But Fish has been very skeptical of the academic left, on the grounds that radical professors tend to blur the distinction between scholarship and political activity. As he argued in Professional Correctness, published 10 years ago by Harvard University Press, "queering Shakespeare" isn't political in the same sense as mobilizing to increase AIDS funding; rather, it's a matter of making certain moves in the interpretive community that is interested in Elizabethan literature.
In Fish's own words: "There are no regular routes by which the accomplishments of academics in general and literary academics in particular can be transformed into the currency of politics." And the effort to bring his ideas to bear on legal theory, over the years, have not really disproved that point.
In effect, Fish's writings have been a way of minimizing the possible interaction between law and literature. He has argued -- with exhausting, even wearying consistency -- that the conduct of legal affairs is ultimately a matter of the legal interpretive community following its own codes, traditions, and methods.
A case in point is Fish's seemingly straightforward claim that "interpreting the Constitution" means "trying to figure out what the framers had in mind." That sounds like a directive -- as if Fish is saying that we'd just need to find the right quotation from The Federalist Paper, perhaps, to understand how to apply the Constitution to legislation regarding stem-cell research. And there is, then, a strong tendency to assume that such an interpretation would then tilt toward the conservative side.
But not so fast. As Fish noted in a discussion of the Bork nomination, it is a mistake to cede "original intent" arguments to the right, just because some conservative jurists frame their arguments in those terms.
"It is perfectly possible," wrote Fish, "to be in favor of abortion rights and also to label oneself as an originalist, as someone who hews to the intention of the framers. It would just be a matter of characterizing those intentions so that the right to abortion would seem obviously to follow from them.
One might, for example, argue (as many have) that even though the Fourteenth Amendment nowhere mentions abortion rights, a correct understanding of its authors' more general intention requires that such rights be protected." Likewise, one could argue against abortion rights on grounds that aren't anchored in claims about original intent.
"In short, there is no necessary relationship between declaring oneself an originalist and coming out on one side or the other of a particular issue."
Putting it another way, the effort to define "original intent" is both a basic part of the work of the legal interpretive community and a product of rules specific to that community. Some sharp-eyed person may well put my head on a platter for saying this, but what the hell: It sure looks as if Stanley Fish has reinvented legal positivism by way of a kind of roll-with-the-punches pragmatism.
Speaking of punches ... they should start flying any minute now. What does Fish have to say about the debates that are about to ensue? How should the issues of the nomination fight be understood by those of us who are mere citizens of the Republic, rather than members of the legal interpretive community? His advice, in short, is to recognize that it's not a question of whether or not the nominee is an originalist, but rather, of what kind.
"So," as he put it on Tuesday, " if you want to know how someone is likely to act on the bench, you will have to set all the labels aside and pay attention to the nominee's reasoning in response to the posing of hypothetical situations.... Does he or she construe intention narrowly and limit it to possibilities the framers could have foreseen, or is intention considered more broadly and extended to the positions the framers would likely have taken if they knew then what we know now? ... And then, if after having made that calculation you decide you are for this person, you can hope that the performance you see today predicts the performances of years to come. But don't bet on it."
There may be a certain amount of insight in Fish's thoughts. Still, it seems like the kind of wisdom that doesn't really do anybody much good.
When the American Association for Higher Education shut down this spring, many of its files went to Clara M. Lovett, its last president. She recently found a speech given in 1948 at the annual meeting of the higher education division of the National Education Association, which helped create the AAHE. Lovett thought the speech -- about challenges facing higher education as the U.S. confronted the Cold War -- had relevance today. With thanks to Lovett for the find and to the NEA for permission to reprint the text, we offer the following thoughts from an earlier generation.
Universities are among our oldest social institutions. Speaking generally they have characteristically been indifferent to their social responsibilities. They have often looked down their noses at modern problems and modern cultural development. They have been slow to change and slow to assume new social or educational responsibilities. Not infrequently have they viewed questions of social policy as practical matters which lie outside of the rightful concern of the university. The events of the last three decades have, however, shaken the complacency of many university faculty members and plunged a few of our leaders into a study of the ways and means whereby the university can make its appropriate contribution to the building of a decent and peaceful world.
There are several major developments which have been responsible for the change in the typical attitude of the university. Experience in Germany and other totalitarian countries proves conclusively that no true university is possible in a police state. This being so, every university has a stake in the preservation of freedom. Even though a university looks upon itself as an ivory tower, its staff members know that no ivory tower is even a remote possibility in anything but a free society. In the realm of the sciences, many leaders have looked in on the processes of nature in the area of atomic fission. What they have seen has so frightened them that they have become our most articulate and effective protagonists for the types of social change designed to insure a peaceful world. Thinking university people know that broad forms of adult education are the only means whereby social change can be sufficiently accelerated to head off worldwide catastrophe in the form of atomic war. Thus for the first time in academic history it now seems feasible to interest the academic world in the problems of world peace and the problems of social reconstruction upon which any enduring peace must be built.
In universities our characteristic response to a new responsibility is the addition of a new course, a new curriculum, or at leaset some proposal for the acquisition of new knowledge on the part of our students. We have every reason to doubt the wisdom of our past responses in such situations. It is going to take something more than knowledge of new facts to brings about a peaceful world. New courses can teach new facts, but they do not necessarily give our students and graduates the will to build a peaceful world or the social effectiveness for bringing such a world into being.
The plain fact is, we do not as a people understand the problem of world peace. We do not have a sufficient determination to build a peaceful world. We do not sense our own individual and collective responsibilities in relation to world peace. As a people we lack the consecration to human values and the devotion to human brotherhood that must of necessity be a foundation for a peaceful world. Perhaps most important of all we fail to realize that it is the success of free institutions inside our own country and other countries that is the primary requisite for the success of any international organization any effort at the maintenance of an enduring peace. If we are interested in examining the role of the university in building world peace, we should examine the course which has been followed by our own country in both the international and domestic scene since V-J Day. Through such an examination we can discover our major errors and identify the elements of unsoundness in our domestic and world leadership. From a study of these errors we can, I believe, map a sound emphasis for the university as it seeks to make a contribution to enduring world peace.
We have seen our country disappoint liberty-loving peoples the world over. Our international role has been characterized by confusion, uncertainty, vacillation, and, on occasion, downright dishonesty. While we have faltered in the international scene, we have stumbled about ineffectively at home. As of the present moment there is more fear in the heart of the average American than there has been at any time in the history of our country. This fear is not easily explained. It is an oversimplification to say that we are afraid of Russia. Our fears cannot be connected primarily with the rise of communism; nor is our state of mind due entirely to the development of the atomic bomb. While we may not be able to explain our fears, their results in our national and international behavior are plain to be observed. We carry on or propose witch hunts after communists. We send billions of dollars abroad in an effort to stop communism, and we order a draft of our young men on the chance that we may have to fight our ideological enemies....
We have, it seems to me, made four major errors in charting the domestic and international course of our country and the entire democratic world. If the university is to play its proper role in the building of world peace, it must give its students a type of experience and equipment which will help us as a nation and as a world to correct these errors and chart a sound course in the direction of world peace.
In the first place, we in the Western world in general and in America in particular have failed to realize that human freedom is our most priceless asset. In one way or another we have been willing to compromise this freedom, sometimes in search of economic security, at other times in what we think is a battle to preserve this freedom. In this discussion I am taking the position that of all of the components of our culture and our heritage, our freedom is our greatest trust and our greatest hope for the future. With every passing year I am less willing to surrender any part of that freedom, regardless of the pretext upon which I am asked to make the surrender. I am thus wary of loss of individual freedom through over-centralization of government, through dictatorial organizations of labor and industry, through over-concentration of wealth and economic power, or through excessive controls of local affairs on the part of state and federal government.
Similarly, I am not only fearful of losing our freedom through a war, through a fascist or communist coup, but I am equally fearful of losing it through the adoption on our part of the police-state methods of the totalitarian world. I am accordingly extremely skeptical that the present much talked-of efforts to ferret out the Communists can actually be carried through without the loss of freedom for us all. And if through panic and fear of communism we lose our freedom, we have lost it just as truly as if it had been taken away from us by a foreign power.
Tragic as it may be, even our university graduates do not understand the meaning of our freedoms; nor do they realize the ways and means whereby these freedoms can be preserved. Therefore, teaching the meaning of human freedom is the first responsibility of the university in building world peace. We should, however, hasten to add that no perfunctory subject matter approach to the problem of freedom will be effective. For years our college students have studied our history. They have read our Constitution. They have read the Declaration of Independence and other documents, but these and other materials have become stereotypes. They have been viewed in terms of political freedom alone. No organized and concerted attempt has been made to develop democratic principles in the area of economics, or of human relations, or in the field of the fine arts. As a result, a large proportion of our college graduates see no conflict between our great historic documents of freedom and segregation of whites and Negroes, poor housing, periodic unemployment, and lack of educational opportunities. Had our colleges and universities properly taught the meaning of human freedom, we would have had federal aid to education decades ago in this country. Had all the educational institutions in our nation really believed in our freedoms and taught them effectively, our country would today be vastly more democratic than it is.
But as a nation we have made a second tragic error since V-J Day. Somehow we have assumed that the problem of world peace can be solved through a world organization such as the United Nations, regardless of the success of our free institutions at home.... Our failure to see the relationship between the problems of our domestic society and the difficulties of our world leadership grows out of our tendency to compartmentalize world problems, to blame our difficulties on other countries and on the weaknesses of governmental machinery and other forms of democratic implementation. We blame the machinery and we blame other countries when it is our own lack of moral conviction and sense of duty and responsibility that is to blame.
Clearly in this area the university has a large responsibility. It is not, however, enough for colleges and universities to convince the students of the inter-relatedness of our national and international problems. Something far deeper and more vital is demanded. The plain fact is, the whole Western democratic world has suffered a moral relapse in recent decades. The church has lost its hold on millions of our people. No substitute moral influence has come into our life. Opportunism, gross selfishness, and unbridled greed have had their unexampled innings. Irresponsible self-seeking has not only invaded business and labor but has made deep inroads into the profession of education itself. If freedom is to be saved and if world peace is to be achieved, the university must meet its responsibility in the realm of ethical and moral education.
In state-supported institutions, we cannot use the fact of legal restrictions on religious education as an alibi for failing to teach ethical and moral standards to our young people. Our own heritage of democracy is rich in ethical and moral content. Our literature presents enormous opportunities that can be exploited in many directions. The fine arts have a great potential contribution, and -- most important of all -- human relationships of the college and university campus can make an outstanding contribution if only we appreciate their importance and plan their programs and activities intelligently.
The third misconception which has undermined many of our domestic and international post-war policies has been the assumption that good can be accomplished through the doing of evil. We seem to think freedom can be saved for ourselves through a sacrifice of freedom for minorities and small nations and that we can further freedom for our own country by playing fast and loose with the welfare of small and less powerful countries and groups. Looking back over the period since V-J Day it seems almost impossible to understand how we can as a nation have been led into so many embarrassing and ambiguous positions. The most charitable way we can account for our blunders is to assume that we simply did not understand the processes whereby human freedom can be saved. There is in this connection a very simple principle. Freedom will not live unless it works. If it does not work, no amount of defense of freedom through persecution of its opponents, through spending money for relief, through propaganda, or through military efforts will avail....
If our universities are to play their appropriate role in the building of world peace, they must be the instrumentalities for making human freedom a working reality. As long as there are despotic, dictatorial police-state governments in the world there will be threats to peace. As long as there are social injustice, lack of educational opportunity, racial subordination, and discrimination, there will be threats to world peace. The problem of world peace has a unity and integrity which we in the academic world have failed to sense. We cannot preserve freedom for ourselves without doing all we can at all times to extend freedom to others. We cannot achieve prosperity for ourselves unless we do all we can to contribute to the prosperity of others. We cannot hope to enjoy uninterrupted liberty at home without honestly seeking liberty for the human spirit in all parts of the world, and we shall never sense this inter-relatedness until we come to understand the true foundation of our free institutions.
Freedom is not a mere accidental human aspiration. It is not only a philosophical conception; it is not only a theory or a hypothesis. On the contrary, free institutions are deeply rooted in the findings of those sciences which throw light on the nature of the human organism and on human behavior. Biology teaches us that all human individuals are different. Each person is unique, and it is out of this uniqueness that all creative power comes. We need a free society, therefore, in an effort to release the greatest creative powers of all individuals and through this release to enhance the achievements of society as a whole. We learn that personal and emotional security is essential to the greatest personal and intellectual growth. Thus respect for personality and for the worth and dignity of the individual has a sound foundation in the findings of science. It is essential that a university education should establish this scientific foundation for human freedom in the mind and heart of the student. With such understandings our citizens will be less vulnerable to propaganda, more effective in the defense of their heritage, and more zealous in the efforts to preserve it.
Our fourth serious error grows out of our tendency to feel that we have achieved the fruits of freedom merely through talking about it. Fourth of July speeches, political convention oratory, and speeches of educational philosophers are examples. We have in fact become so skillful in mouthing the beautiful phrases of our democratic heritage that the mere sound of the words themselves seems somehow to have brought a democratic society into being. In our saner moments we know that nothing is further from the truth, and here we, in the university, must hang our heads in shame. With all our talk about teaching the principles of human freedom and democracy we must openly confess that our universities are not democratic in organization, in administration, or in the conduct of their educational activities or campus affairs.
My own experience in university life is now of sufficient length and in a sufficient number of different institutions that I feel I have some experiential basis for the observations I am about to make. It is my honest conviction that the universities of this country will not become major factors in teaching human freedom and democratic ideals until they begin seriously to practice these ideals in their own organization and administration. Let us, however, be more specific in treating this issue. I refer to such specific and mundane things as the determination of faculty salaries. It is my observation that no single item of expenditure in a university is as difficult to increase as the salary of a professor. One can get money for new buildings, for new equipment, for research, for public relations, yes, for almost anything you can think of before one can get money for improved salaries. I have never read any religious or ethical document which held that increasing a professor's salary is a sin, but when I observe the attitude of university administrators toward salary increases I am almost led to the conclusion that they must view such increases as a dreadful sin. If we really believed in educational democracy, we would see to it that every possible dollar is spent on good faculty salaries in order to bring the finest teaching talent to our students and put our staff members in position to render the very finest and most creative service. My experience is that we operate on almost the direct opposite of this policy.
But it is not only in matters of salary that we are undemocratic. I have now seen successive generations of young men enter academic life with great enthusiasms, high hopes for the future, and commendable consecration to the welfare of their students. I have observed them five or ten years later only to see that they have become cynical, discouraged, embittered, and resigned to the doing of a routine job, the drawing of meager salaries, and the achievement of a tenuous security. It is the most distressing and painful observation of my entire academic experience. Primarily, it grows out of the way in which a university organization functions to restrict the individual in the exercise and development of his creative talent. Here it is not only the presidents and deans who are in error. Department chairmen, full professors, and perhaps even an occasional instructor are at fault.
Excessive regimentation on the part of administrators, on the part of faculty committees, and through faculty regulations plays its part. Here we are, of course, primarily concerned with the impact of the university on the problem of saving our freedom, preserving our democratic heritage, and building a peaceful world. Certainly we shall not achieve these far-flung and difficult objectives through a program of mealy-mouthed utterances concerning the glories of freedom. If we are really serious about teaching these human values, we must see to it that the institutions in which we teach are themselves fine examples of the democratic principles and concepts of freedom we are seeking to teach. As things are, much of what goes on in a university does not teach the student the meaning and glory of freedom, but gives him a cynical notion that freedom is something you talk about but probably never will enjoy.
Clearly we shall not give our college students the understandings of the problems of world peace through a few specialized courses in the social sciences, or through occasional lectures, or through any single pedagogical or curricular device. The meaning of human freedom, the devotion to human values, the understanding of human brotherhood, and the required social effectiveness for the practice of all of these are all too involved, too subtle, too difficult to come by, for any such lick-and-promise treatment. If universities are to be successful in their efforts to preserve human freedom, they must themselves believe in our free institutions. They cannot teach without a great faith.
It is the building of this great faith that is the major task of higher education. The progress made in human freedom to date has been made by those leaders who possess a great faith in the common man and in the processes of a free society. But the problem of building a great faith is not essentially or primarily a verbal undertaking. As human beings we believe in those principles and institutions which, over a period of time, serve mankind by bringing widespread human well-being. If we want our people to believe in democracy, we must make it a working democracy which delivers well-being to the masses of our people.
We tend also to maintain our faith in those principles and processes to which we can ourselves make a contribution. It is hard for an individual to continue to believe in a process that is for him remote, external, and detached. The individual citizen will keep his faith in those processes in which he can participate and to which he can contribute. We must find more ways whereby the average citizen can participate in the affairs of the community. In our universities we must discover more ways in which students can share in the improvement of university life. We must give our students an opportunity to experience the benefits of democracy in the source of their college education.
If freedom is to live, the world needs an honest and forthright America, an America that practices her freedoms at home and defends them abroad. Such an America must have citizens that have deep faith in freedom and a new consecration to human service -- citizens who courageously practice the ethical and moral principles of democracy. Universities will play their proper role in building world peace when they give us a citizenry with these qualities.
Ernest O. Melby
The late Ernest O. Melby was dean of the School of Education at New York University when he gave this talk.
A federal appeals court’s recent decision demonstrates how even an eminent jurist can be confused by the complex regulatory system established by the Higher Education Act, with potentially significant negative consequences for colleges and universities.
In United States ex rel. Main v. Oakland City University, Judge Frank Easterbrook of the U.S. Court of Appeals for the Seventh Circuit authored an opinion for a three-judge panel that reversed a District Court decision and permitted a qui tam action to proceed under the False Claims Act. In that action, a former director of admissions for a university contended that the institution had violated the prohibition in the HEA and the U.S. Department of Education’s implementing regulations against paying incentives for enrolling students.
The False Claims Act is aimed at obtaining restitution to the government of money taken from it by fraud, and liability under that Act occurs when someone presents to the government a false or fraudulent claim for payment. In a qui tam action, a private individual -- the “relator” -- files a lawsuit seeking this restitution. The government may decide to take over the case, and the relator may obtain a financial reward if the action is successful.
Qui tam cases are a mixed bag. On the one hand, the government obtains the assistance of private individuals to extend its investigative and litigation resources to protect the integrity of government programs. On the other hand, given the vast array of federal programs and the volumes of requirements that result from them, qui tam actions offer fertile ground for trial lawyers seeking a supply of new business and a potent weapon to force settlements from organizations that participate in government programs. The key, of course, is for the courts to scrutinize these actions carefully and to circumscribe them to achieve the purposes of the False Claims Act.
This is what Judge Easterbrook’s opinion failed to do. His failure is all the more surprising in light of his reputation not only as a highly capable jurist, but as a conservative one presumably skeptical of broad constructions of federal law that fuel the litigiousness of the plaintiffs’ bar.
Fundamentally, Judge Easterbrook’s opinion simply got wrong crucial aspects of the regulatory structure established by the HEA. The opinion failed to understand the distinction between eligibility and participation in the student aid programs.
An institution establishes its eligibility under the HEA by filing an application with the Department of Education. However, an institution need not actually seek participation in the HEA student aid programs in this application. It may simply wish to be designated as eligible to participate because that status has significance apart from gaining access to the financial aid funding available to its students under Title IV of the HEA.
Furthermore, the application does not require the institution to certify its compliance with all HEA requirements. The eligibility requirements are more limited and, as pertinent to the Oakland City case, nowhere include any certification by a college that it complies with the incentive compensation prohibition.
Only when an institution seeks to be certified to participate in the student aid programs does it agree to comply with the many participation requirements applicable to those programs. It does so by signing the Program Participation Agreement (PPA), which does include a representation that it will not violate the incentive compensation prohibition. Even then, however, the institution has made no actual claim for federal funds. That may occur only when it helps students apply for Title IV loans and grants.
Judge Easterbrook dismissed this structure as “paperwork,” and this led him into error. Thus, early in the opinion, he stated that the university had assured the Department of Education in its eligibility application -- what he calls the “phase one application” -- that it would comply with the rule against incentive compensation. But, as noted above, that is simply wrong -- a college does not agree to comply with the incentive compensation rules until it formally seeks certification to participate in the program.
Easterbrook then went on more critically to state that the “phase two” application -- presumably the PPA and subsequent student applications for Title IV funds -- depended on the finding that the university was eligible and that the university could not be eligible if it knowingly violated the incentive compensation rule.
That too is wrong. The Department of Education has the discretion to use a variety of remedies in the event that it believes an institution violated a participation requirement like the incentive compensation rule. These include placing an institution on the reimbursement method of receiving Title IV funds, or requiring repayment of funds, fines, and provisional certification. To be sure, the department may also seek to revoke the institution’s eligibility, but it is not compelled to do so. In contrast, the department must revoke eligibility if a true statutory condition of eligibility is no longer met, such as accreditation by a recognized accrediting agency or state licensure.
Yet, Judge Easterbrook stated that “[i]f a false statement is integral to a causal chain leading to payment, it is irrelevant how the federal bureaucracy has apportioned the statements among the layers of paperwork.” This conflation of the requirements in a complex regulatory structure like the HEA can only fuel False Claims Act qui tam litigation, since now, based on Judge Easterbrook’s erroneous understanding of how the HEA works, any alleged violation can serve as the basis for relators and, more realistically, their enterprising counsel to sue.
By failing to grasp the distinction between eligibility and participation, his opinion, on behalf of one of the leading federal Courts of Appeals, may dramatically increase the vulnerability of institutions of higher education to a whole new species of lawsuits: False Claims Act qui tam actions alleging knowing violations of one of the myriad requirements in the HEA and implementing regulations. The danger of such litigation will be heightened by the threat of treble damages under the False Claims Act.
It was precisely this danger that another federal court recognized in a qui tam case involving the same incentive compensation requirement ( United States ex rel. Graves v. ITT Educational Services, Inc.). That court, following the teaching of the Supreme Court and five U.S. Courts of Appeals in an extensive and well-reasoned decision that recognized the relevant distinctions in the HEA structure, understood that False Claims Act liability attaches not to the underlying allegedly fraudulent activity, but to the claim for payment. Judge Easterbrook’s opinion noted this case, which was squarely on point to the case before him, toward the end of his brief opinion. However, he gave it short shrift because it was decided by a district court judge (it was affirmed without opinion by the Fifth Circuit).
Judge Easterbrook seems to have had some inkling of the flood of litigation that his opinion may cause. In discussing the ITT case and Oakland City University’s protests that any purported regulatory violation in a funding program could require litigation in a False Claims Act suit, he took refuge in the requirement that the violation must be “knowing.”
As he stated, “[t]ripping up on a regulatory violation does not entail a knowingly false representation.” That is no bulwark against abusive plaintiffs’ attorneys. It will not be hard to plead a knowing violation, survive a motion to dismiss, and subject institutions to extensive discovery aimed at determining whether someone acting on their behalf “knew” that they planned to violate one of the many requirements of doubtful specificity in the HEA and the voluminous Department regulations.
Judge Easterbrook’s bland assurances that they will ultimately prevail will be cold comfort later after thousands of dollars of legal fees, extensive distractions from their missions of educating students, and smears against their reputations in the news media. Unless Oakland City is reversed, it is Judge Easterbrook and the Seventh Circuit who have unfortunately tripped up.
Mark L. Pelesh
Mark L. Pelesh is executive vice president for legislative and regulatory affairs for Corinthian Colleges, Inc. He was formerly the head of the Education Law Group at Drinker Biddle & Reath in Washington, and specialized in the Higher Education Act and U.S. Department of Education regulations.
Somehow I missed the meeting where the nation decided to exit public higher education. I was, after all, chief financial officer of a public university.
This is no fantasy. This drama is under way across the nation.
The story line so far is that healthcare and public safety costs finally have squeezed out higher education. Institutions will always find ways to survive. The casualties are the poor students, with the ability but neither the money nor the savvy to navigate falling student aid and rising tuition.
The meeting we need, which no one has called, has this agenda: Why aren’t we discussing the fact that scrambled state and federal priorities are shutting down public higher education and strangling access? And preventing creation of a decent work force?
Some of the leading scholars of higher education – people like Mike McPherson, Morton Owen Schapiro, and Tom Kane, participants in the Forum for the Future of Higher Education -- have clearly shown how soaring costs of Medicaid and infrastructure are pushing higher education out of the food chain of state general funds. Those forces are colliding to shut down the public university system in this nation, preventing thousands and thousands from leading self-supporting lives. We all know this and yet no one has a plan to respond.
I learned this the hard way when I was CFO of the University of Hawaii system, an $800 million, 45,000-student, 10-campus public system for a few years, during a notorious hurricane between the president, the governor and the Board of Regents.
The funding issues were the underlying driver of the tensions there. And all 50 states had the same issues. Yet no one state was talking to the other. Or to the federal government. Not for lack of interest. The avoidance arose from fatigue, from lack of skill and, to a large degree, lack of courage.
No one seems to be focusing on this crisis or crafting a plan to deal with it. The higher education associations are busy fighting for every dollar in current reauthorization bills. Although this is a national problem, it plays itself out most intensely in individual states, And the tension involving Medicaid and state general funds and tuition becomes another zero-sum games at the state houses, where there is no more money.
My goal is to pose a few irreverent questions to shake loose better thinking. Here goes.
Point: Who among us is accountable for those who are not now in college but who ought to be? Those who have the ability but not the money or the savvy to navigate the system? No one. Why not? In education discussions, a balanced institutional budget, public or private, is the operating metric. If the institutions are operating and solvent, no one asks who is not enrolled. As a society, shouldn’t a measure include those able students who are shut out?
Point: Some say, looking to the Founding Fathers who left education out of the Constitution, that the U.S. shouldn’t have a national higher education policy. I’d say we already do.
I’ll illustrate by picking on Williams College and on Yale. My schools. I know they can take it. The implied federal subsidy per student at Williams and Yale is somewhere between $25,000 and $35,000 per year. I get that figure from conservative estimates of the tax-exempt endowment returns and of the tax-deductible donations each year. I am a CFO. Those are the numbers. This is at least twice the cost for a student at any community college.
Our national policy, then, is that the indoor golf-driving nets at Williams, built by tax-deducted dollars, are more important than Pell Grants for community college students working a night shift and going to school. No one has changed the federal tax policy here lately. In federal debate, Pell Grants are always at risk and eligibility changes often.
Point: Commercial-bank interest subsidies for student loans are also more important than Pell Grants for those community college students. That’s our current national policy.
Point: Our national policy is that we can’t find more money for student aid. Yet billions appear for Katrina overnight. This may be deficit spending and raises all sorts of questions to debate. It is our policy that Katrina is more important than creating a work force to sustain the nation.
Point: What about indirect-cost reimbursement for federal research? This varies from 36.5 percent at the University of Hawaii to 60 percent at many fancier schools. This means that the MIT Stata Center, designed by Frank Gehry at who knows what per square foot, is more important than a Pell Grant for community college student. Why not a more modest building in exchange for a few more $350 single-mother childcare Pell Grant payments? So the single mother can stay in school. I wish I were making this up.
Next point: This is about money. The debate within higher education is to justify the costs, not to examine the cost fundamentals.
The drivers, higher education leaders say, are health insurance, wireless Internet fees, premium dining plans. While funding drops, the argument goes, costs have to rise. What, though, is the fundamental cost driver of higher education? Isn’t that the unexamined assumption that a degree must be four years worth of credits? Which most students cannot complete even in five years? Why must a college degree be four academic years and 32 credits, one semester at a time? That model is from the 14th century at the University of Bologna. The pedagogical design constraint in that era was the shortage of books. Would we send an injured or sick child today to a 14th century hospital? Is that what we are doing in higher education?
Point: The past 50 years have produced what scientists and educators call the cognitive revolution. We know so much more about learning. How could we use that knowledge to show young people all that excites our best scientists and scholars in their research every day? Why do we ignore what we know about knowing?
Point. Politics. I’ve yet to meet a college president with a plan to improve national funding for higher education. Meetings in Washington are often about specific earmarks (read: pork) for one institution. Higher education leaders, I believe, underestimate what they can accomplish to the good, for everyone. I can cite no better example than from conversations that I’ve had as part of a Federal Reserve of Chicago project. Many of the Midwest’s leaders have expressed concern that there is nothing they can do. The problems are just too huge. I disagree, I’ve said. Look at their Congressional delegation: Michigan. Illinois. Wisconsin. Indiana. Iowa. Even presidential hopefuls among your senators.
Good ideas count. Help these senators and members of Congress. Give them something to propose. Other states are missing the same chance to lead.
Point: As a society, we know how to educate people. But we don’t need a Manhattan Project or all sorts of high-risk research to start. We know what to do. Why not take a swing at it?
Point -- or question. Have university CFOs, myself included, failed? Miserably so, I’d say. It’s our job to attract sufficient capital to the work. That’s not happening. Operating or long-term.
Why can’t we CFOs demonstrate the value of higher education in a way that leads to investment? Isn’t this our job? I’ve never met a finer group than those CFO colleagues. As a profession, we have let the job become budget triage, not capital formation. I don’t know why, but I can’t interest the National Association of College and University Business Officers in a talk on why we’ve failed. As a profession, we have to face down this failure. These funding issues are our problem.
Point: Do we know our customer? If there are any Gallup-type surveys on what students want in education, I haven’t seen them. I do not mean dropping standards or giving away the store. How can providers, colleges and universities, help? Why do we know more about how much caffeine students want in what form each day than we do about learning preferences? Look at what this young population has done to the music industry. No more albums. They want the music song by song.
Point: What about innovation? Strong economies need innovators. Educators must set the example. I don’t mean to replace faculty. Again, what’s the opportunity here? Look at the iPod and education. My daughter carries her language lab for Arabic with her. Look at the new short books, No-Nonsense Guides or The Oxford series A Very Short Introduction to dozens of topics, from A -- Ancient Philosophy to W – Wittgenstein, with stops at Darwin, Descartes, Design, Intelligence, Music, Shakespeare and Socrates. What about the Quick Study Bar Charts? At least the new dean of my Yale School of Management ought to be alarmed at how good that $4.95 Management guide is. Why does so much curriculum restate what’s available elsewhere? What about all the new skills we need?
These tools are not a substitute for a degree. They are not the quality of a seminar with a great teacher. These tools are excellent sources to topics once available by the semester only. What is the opportunity for liberating faculty here?
Point: Where are the students? They don’t seem even to vote. To every student who came to my office with a complaint, always justified, I asked, “Are you registered to vote?” Never. Puzzled looks at what difference that made. No one has greater direct, immediate interest in voting than a public college and university student, I would explain. A few hundred postcards to the statehouse can get the money for repairs. A few thousand would change the world. Whatever I said was wrong. Only one listened. And he did, after a year, end up with a million dollar earmark from the governor for dormitory work.
Point: And this one troubles me most of all. Are we talking about education or about politics? Do we really want everyone to have a great education? Cynics might say that as a society we’d rather pay welfare and Medicaid than for an education. This is less competition for the rest of us. Is that where we are? Even a cynic would have to admit that education is cheaper (read: lower taxes) than social services.
We are stuck. I can’t describe the U.S. higher ed situation better than my colleague Adam Kahane, in his excellent, slim and readable book Solving Tough Problems – An Open Way of Talking, Listening, and Creating New Realities (Berrett-Koehler Publishers, Inc., 2004).
Problems are tough because they are complex in three ways. They are dynamically complex, which means that cause and effect are far apart in space and time, and so are hard to grasp from firsthand experience. They are generatively complex, which means they are unfolding in unfamiliar and unpredictable ways. And they are socially complex, which means that the people, and so the problems, become polarized and stuck.
Point: Last one. So what? Why does it matter if we support national policies that shut out poor students? How can we not support the typical student at a state college and community college? We all know these students. They are 25. They have families. They work the night shift at McDonald's to contribute to the rent for their parents and grandparents. And then still, these students get to school. Every day they display motivation beyond the imagination of anyone at any of my schools. How can we hold them back?
I know well that my passion can run ahead of the data. I test myself wherever I go. I’ve found that the person serving coffee or pumping gas or bagging groceries is usually a student, regardless of their age. I mean the airport van driver who wants to go to school but hasn’t heard of a Pell Grant. Ask these people. That’s why we have to do better.
Wick Sloane is Chief Operating Officer of Generon Consulting in Massachusetts and a visiting fellow on higher education finance at the Federal Reserve Bank of Chicago. This essay is adapted from a speech he gave at a meeting sponsored by the bank in November. The views expressed here are his own. Â
To: Secretary of State Condoleezza Rice, Secretary of Education Margaret Spellings
Re: University Presidents Summit on International Education
A week or so ago, at the University Presidents Summit on International Education, you honored us with an event delivered with class and style uncommon in executive branch engagements with university presidents and chancellors. As I’m sure you noticed, we enjoyed the attention, respected the intent, and appreciated your personal and effective participation, as well as your mobilization of key actors including the President and First Lady. As we all returned to our campuses to reflect on the messages, themes, and programs discussed, and you return to the critical business of government, a reality check on our conversation seems in order.
International education in all its many forms has been a major agenda item in American higher education forever, and over the most recent 30 years or so, colleges and universities have conducted a constant conversation about internationalizing the curriculum and improving the campuses’ ability to bring the world home.
This agenda, which reappeared in many of the comments by the university and college presidents in attendance, is really not a federal obligation. The task of internationalizing or globalizing our campuses belongs to the institutions. If internationalizing is a major campus concern, like teaching chemistry, the campus will find a way to do it because it will be central to the campus’s academic and student programs. If a campus requires federal money to support a major change to its curriculum or to rethink its purposes, the campus is not likely to be effective anyway. I would recommend that you thank us for such insights, and return to the main purpose of the summit: language skills.
Success in this proposed joint venture requires that both the federal government and the universities speak clearly and precisely about what you want and what we can do.
We in the universities and colleges have much experience in taking tightly focused government programs and diffusing their intent to flow money into activities more central to our interests. If you fund language and area studies, we will leverage the language effort to get more resources for area studies, literature studies and culture studies. These are good things, but they do not address the national need you articulated at the summit, learning language.
Further, we in the colleges and universities are expert at avoiding effective performance measurement. If the nation needs college educated graduates functionally literate in a number of less commonly taught languages, the only way to get this result is to fund programs that will test the graduates. If you want us to graduate students with a command of spoken and written Arabic, Urdu or Mandarin, you need to fund a program that delivers money to institutions that demonstrate the functional literacy of its graduates in these languages through standardized tests. Otherwise, we will train people for you who can read some things in some languages, have traveled and lived in the countries where some of these languages are spoken, but who may or may not have functional usable literacy.
We are good at redefining objectives. If the federal government wants to help create college graduates who have high quality skills related to living and working within other languages, it must fund specific programs in specific countries focused on the acquisition of testable specific language skills. If we go to India, and live primarily with English speaking communities, we will return with cultural awareness and many good stories to tell about our experiences, but we will not have acquired functional competency in a foreign language or culture. You must be specific about what you want, specific about how you will know when you get it, and specific about the test you will apply to validate the learning accomplished. This is difficult in cultural studies, but it is not at all hard in language acquisition.
If we struggle with clarity and effectiveness in our international objectives and programs, our counterparts in the federal government -- especially the State Department, the Defense Department, and some of the intelligence agencies -- send conflicting messages about the importance of language and area studies expertise. While we hear that in-depth knowledge of countries and languages is essential to the defense and prosperity of the nation, we also know that the State Department and the Defense establishment tend to rotate their employees from place to place, country to country, language region to language region, devaluing in the process true expertise in either language or culture.
We also know that the career track to high level assignments in both State and Defense place a premium on generalist experience and knowledge and little emphasis on high levels of expertise in any particular language or culture. We are also unsure whether language competency is of any particular advantage for positions within the Department of Education.
You could do some things to improve the incentives for students to think of language related skills as major assets for careers in State, Education or Defense. For example, you might institute a language competency premium for mid to high level employees in the executive branch, a bonus addition to salary for those capable of maintaining a high level of language competency throughout their careers (tested on a periodic basis). You might consider longer term assignments overseas or in region specific offices or agencies as premium assignments with enhancements to salary or other benefits that would demonstrate that the enthusiasm for functional language skills is highly valued, much in the same way combat duty and other difficult assignments carry a premium.
These comments speak to the task of making the skills associated with uncommonly taught languages valued in the real world that our students watch with clear-eyed intensity. They know that in the great American Midwest, for example, the daily need to know someone else’s language is minimal. We can travel for days without needing to speak anything but English. We see corporations hire language experts and culture brokers from among the nationals of countries where they trade and work, not from among the language fluent American college graduates.
Students see that only a few individuals in high government positions speak another language fluently, and almost none speak uncommonly taught languages. They see no premium for acquiring and maintaining a competency in difficulty to learn languages, and so they leave the language skills to native speakers, language and literature experts, and some area studies specialists.
To achieve your goals, you will need to help us focus on testable language skills, incentives for careers that use functional language skills, and support for overseas experiences that produce high levels of language performance.
We had a wonderful time at your summit, and the two of you are to be congratulated for what you are doing to improve education in the K-12 arena, facilitate the visa process, and address the constant challenge of encouraging the exchange of scholars without compromising national security. We are grateful for the respect reflected in the quality of our treatment during the Summit, and we are all eager to work with you.
Accountability, not access, has been the central concern of this Congress in its fitful efforts to reauthorize the Higher Education Act. The House of Representatives has especially shown itself deaf to constructive arguments for improving access to higher education for the next generation of young Americans, and dizzy about what sensible accountability measures should look like. The version of the legislation approved last week by House members has merit only because it lacks some of the strange and ugly accountability provisions proposed during the past three years, though a few vestiges of these bad ideas remain.
Why should colleges and universities be subject to any scheme of accountability? Because the Higher Education Act authorizes billions of dollars in grants and loans for lower-income students as it aims to make college accessible for all. This aid goes directly to students selecting from among a very broad array of institutions: private, public and proprietary; small and large; residential, commuter and on-line. Not unreasonably, the federal government wants to ensure that the resources being provided are used only at credible institutions. Hence, its insistence on accountability.
The financial limits on student aid were largely set in February when Congress hacked $12 billion from loan funds available to many of those same low-income students. With that action, the federal government shifted even more of the burden of access onto families and institutions of higher education, despite knowing that the next generation of college aspirants will be both significantly more numerous and significantly less affluent.
Now the Congress is at work on the legislation’s accountability provisions, and regardless of allocating far fewer dollars members of both chambers are considering still more intrusive forms of accountability. They appear to have been guided by no defensible conception of what is appropriate accountability.
Colleges and universities serve an especially important role for the nation -- a public purpose -- and they do so whether they are public or private or proprietary in status. The nation has a keen interest in their success. And in an era of heightened economic competition from the European Union, China, India and elsewhere, never has that interest been stronger.
In parallel with other kinds of institutions that serve the public interest, colleges and universities should make themselves publicly accountable for their performance in four dimensions: Are they honest, safe, fair, and effective? These are legitimate questions we ask about a wide variety of businesses: food and drug companies, banks, insurance and investment firms, nursing homes and hospitals, and many more.
Are they honest? Is it possible to read the financial accounts of colleges and universities to see that they conduct their business affairs honestly and transparently? Do they use the funds they receive from the federal government for the intended purposes?
Are they safe? Colleges and universities can be intense environments. Especially with regard to residential colleges and universities, do students face unacceptable risks due to fire, crime, sexual harassment or other preventable hazards?
Are they fair? Do colleges and universities make their programs genuinely available to all, without discrimination on grounds irrelevant to their missions? Given this nation’s checkered history with regard to race, sex, and disability, this is a kind of scrutiny that should be faced by any public-serving institution.
Existing federal laws quite appropriately govern measures dealing with all of these issues already. For the most part, accountability in each area can best be accomplished by asking colleges and universities to disclose information about their performance in a common and, hopefully, simple manner. No doubt measures for dealing with this required disclosure could be improved. But these three questions have not been the focus of debate during this reauthorization.
On the other hand, Congress has devoted considerable attention to a question that, while completely legitimate, has been poorly understood:
Are they effective? Do students who enroll really learn what colleges and universities claim to teach? This question should certainly be front and center in the debate over accountability.
Institutions of higher education deserve sharp criticism for past failure to design and carry out measures of effectiveness. Broadly speaking, the accreditation process has been our approach to asking and answering this question. For too long, accreditation focused on whether a college or university had adequate resources to accomplish its mission. This was later supplanted by a focus on whether an institution had appropriate processes. But over the past decade, accreditation has finally come to focus on what it should -- assessment of learning.
An appropriate approach to the question of effectiveness must be multiple, independent and professionally grounded. We need multiple measures of whether students are learning because of the wide variety of kinds of missions in American higher education; institutions do not all have identical purposes. Whichever standards a college or university chooses to demonstrate effectiveness, they should not be a creation of the institution itself -- nor of government officials -- but rather the independent development of professional educators joined in widely recognized and accepted associations.
Earlham College has used the National Survey of Student Engagement since its inception. We have made significant use of its findings both for re-accreditation and for improvement of what we do. We are also now using the Collegiate Learning Assessment. I believe these are the best new measures of effectiveness, but we need many more such instruments so that colleges and universities and choose the ones most appropriate to assessing fulfillment of learning in the scope of their particular missions.
Until the 11th hour, the House version of the Higher Education Act contained a provision that would have allowed states to become accreditors, a role they are ill equipped to play. Happily, that provision now has been eliminated. Meanwhile, however, the Commission on the Future of Higher Education, appointed by U.S. Secretary of Education Margaret Spellings, is flirting with the idea of proposing a mandatory one-size-fits-all national test.
Much of the drama of the accountability debate has focused on a fifth and inappropriate issue: affordability. Again until the 11th hour, the House version of the bill contained price control provisions. While these largely have been removed, the bill still requires some institutions that increase their price more rapidly than inflation to appoint a special committee that must include outsiders to review their finances. This is an inappropriate intrusion on autonomy, especially for private institutions.
Why is affordability an inappropriate aspect of accountability? Because in the United States we look to the market to “get the prices right,” not heavy-handed regulation or accountability provisions. Any student looking to attend a college or university has thousands of choices available to him or her at a range of tuition rates. Most have dozens of choices within close commuting distance. There is plenty of competition among higher education institutions.
Let’s keep the accountability debate focused on these four key issues: honesty, safety, fairness, and effectiveness. With regard to the last and most important of these, let’s put our best efforts into developing multiple, independent, professionally grounded measures. And let’s get back to the other key issue, which is: How do we provide access to higher education for the next generation of Americans?
Douglas C. Bennett is president and professor of politics at Earlham College, in Indiana.
The heated rhetoric surrounding immigration reform legislation in Congress threatens to drown out an important, bipartisan effort to resolve a decades-old inconsistency in federal immigration law concerning postsecondary tuition costs for undocumented students who have graduated from high schools in the United States.
The “DREAM Act,” which was incorporated into the Senate Judiciary Committee’s immigration reform bill last week, would allow states to provide in-state tuition for postsecondary education to undocumented students who have attended (for at least three years) and graduated from high school in their states.
Federal immigration law now prohibits them from doing so, though that has not stopped several states, including “red” states like Utah, Kansas, and Texas, from adopting such legislation in recognition of the fact that there are more than 50,000 of these students each year that graduate from high school as -- in nearly every way -- children of the American dream.
Of the DREAM Act, Sen. Jeff Sessions (R-Ala.) stated, “I find it inconceivable that we would provide greater benefits to persons who are here illegally than to American citizens. It makes a mockery of the rule of law."
However, Congress must ensure the debate over the education of undocumented students is actually grounded in the law, rather than rhetoric. Federal law related to this issue was interpreted more than 20 years ago by the United States Supreme Court’s 1982 Plyler v. Doe decision.
Plyler v. Doe involved a Texas law that effectively banned undocumented minor children from participating in public elementary and secondary education. The Court heard arguments that sounded quite similar to those used to deny in-state college tuition for the same students: that providing K-12 education rewards illegal immigration, that we should not give public benefits to those in the country illegally. The significance of this case is not that it settled once and for all the ideological arguments surrounding immigration. Rather, the Court created protective legal precedent for minor undocumented students by carefully examining the intersection of immigration law, the distribution of public goods, and individual rights as protected by the Constitution of the United States.
The Supreme Court’s decision addressed the question: Did a child break the law because the parents brought the child into the country illegally as a minor? The Supreme Court said “no.”
The Court ruled that such children, in fact, were entitled to equal protection under the law, one of America’s most cherished legal principles. As cited in the Court’s opinion, the Fourteenth Amendment to the Constitution provides that “[n]o State shall…deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
As a population within the state’s jurisdiction, undocumented students were, therefore, entitled to equal treatment under the law. In the opinion of the Court, Associate Justice William J. Brennan Jr., wrote, “To permit a state … to identify subclasses of persons whom it would define as beyond its jurisdiction, thereby relieving itself of the obligation to assure that its laws are designed and applied equally to those persons, would undermine the principal purpose for which the Equal Protection Clause was incorporated in the Fourteenth Amendment.”
The Court further argued that federal immigration law, despite “sheer incapability or lax enforcement,” was not a justification for denying children equal protection and access to education.
In recognition of this principle, several state legislatures have passed laws to allow in-state postsecondary tuition for undocumented students who have attended public high schools in state for more than three years. They realize the legal “no-man’s land” these students occupy, and have sought to remedy it under the law.
The central relevance of the Supreme Court’s case to this debate over in-state tuition for undocumented students is that we cannot simply ignore what Justice Brennan called the “shadow population” of students who go about their daily lives and contribute to our society in the same way that we all strive to contribute. Moreover, we cannot deprive these students of the equal protection that our Constitution provides simply because they graduate from the high school setting where the Supreme Court has decided that it applies.
Though the issue is easy to weigh down with heated rhetoric, we hope that the law will, in fact, prevail, and that Congress will pass the DREAM Act. As Justice Brennan concluded, “[W]hatever savings might be achieved by denying these children an education, they are wholly insubstantial in light of the costs involved to these children, the State, and the Nation.”
In the wake of the Sarbanes-Oxley Act, the 2002 federal law aimed at reforming the governance of public companies, corporate trustees have been on the hot seat to ensure greater transparency and accountability. While Sarbanes-Oxley does not apply to nonprofits yet, the U.S. Senate Finance Committee has been hard at work analyzing whether nonprofits merit more scrutiny and similar rules. The recent string of events at American University -- involving a president who needed a strong board to protect him from himself – has, for better or for worse, drawn attention to the challenges of higher education trusteeship. And Congress’s continuing interest underscores the pressing need for college and university boards to get their house in order – before someone does it for them.
But the existing culture of university trusteeship is one that promotes the status quo and discourages active and informed trustees. By custom and practice, trustees are not trained or encouraged to ask questions and do their job responsibly. Based on more than a decade of service as an elected regent of the University of Nebraska, and my involvement with the American Council of Trustees and Alumni and the Institute for Effective Governance, I have found a number of reasons this is the case, and identified some antidotes to these unhealthy practices.
For starters, when I was elected regent I was amazed at the number of parties, dinners and social functions that board members attend. The benefit of these events from the university administrator’s perspective is very clear: a trustee who becomes friends with administrators is going to be more likely to cheerlead than to challenge policies and practices. As I delved into my work with my fellow regents, I was amazed at how willing regents were to let administrators make all the decisions. I soon realized that the “social side” of trustee life was only part of the problem.
The University of Nebraska has very good, decent people in its administration and on its Board of Regents. Yet the standard practice of public university administration, like so many other parts of our system of government, promotes agency interests first, often with results that fail to enhance the public interest. For example, the board voted 6 to 2 to spend over $3 million to build a storage facility for seldom-used books. These are not rare books, but standard texts available in libraries across the country. Now they will be stored in better conditions than the books in the University’s regular collection.
The board approved $3 million for a “hydraulically banked indoor running track system” so that the University of Nebraska at Lincoln’s sports center could boast a state-of-the-art, world-class indoor track. This at a time when the university was increasing tuition and student fees and lobbying the legislature for more money claiming we do not have enough to pay faculty.
The list goes on. Trustees who realize that their responsibility is to make decisions that serve the public (not always the university) would never approve these proposals. But the prevailing culture on university boards is one of routinely succumbing to administration demands. A significant part of the reason boards behave this way is that most university administrators contract with the Association of Governing Boards of Colleges and Universities to train new board members. AGB training follows a single model, which emphasizes following the administrators’ lead and not “micromanaging” -- in other words, not asking tough questions.
But if our universities are to be well managed, we need trustees who promote responsible policies and serve in a responsible manner -- which means asking tough, challenging questions, advancing public understanding of the trade-offs and costs of public programs, promoting responsible behaviors and often voting No for programs that do not meet cost-benefit standards.
Having criticized my fellow board members for voting irresponsibly, let me offer a brief case study in which the University of Nebraska Board of Regents took a very courageous and responsible stand in the face of extreme pressures. In 2000, the University of Nebraska Medical Center (UNMC) came under attack for conducting fetal tissue research using tissue from aborted babies. UNMC is prohibited from performing abortions, but it accepted tissue donations from a doctor who had been awarded “honorary faculty” status.
UNMC had not been doing fetal tissue research in secret; faculty had published more than 50 papers based on the research. But UNMC did deliberately keep the source of the tissue quiet -- and this proved to be a big mistake. When the news media picked up the issue, it was described as “secret research using tissue from aborted babies.”
Nebraska pro-life groups condemned the research as immoral. Several vowed to defeat any regent running for re-election who supported this research. Political watchers predicted that the Board of Regents would quickly cave. The board thoroughly studied and debated the topic, and made the responsible decision. We weighed the overall public costs and benefits, thought through the moral questions, and, against significant threats and pressures, voted 12 to 0 to approve continuing fetal tissue research at UNMC. Recognizing the sensitivities of certain citizens on the issue, the board also directed the Medical Center to try to develop an alternative supply of tissue. UNMC did eventually develop some alternative sources for some of the cells needed, but to this day, it continues to use fetal tissue from abortions for some of the cell types since no other source can be found.
We need elected officials and university trustees who will make the tough and sometimes unpleasant decisions that result in responsible policy. Making tough calls, saying No, voting against programs that are recommended by administrators or government officials who are your personal friends, is very hard for an elected or appointed governing board member to do. But it is the responsible course. The public interest is clearly served by weighing all the costs and benefits to the public, debating alternatives openly and honestly, and then choosing the best option. The administration will be advocating what is best for the university from its perspective -- at a public university, it is the trustee’s job to champion the public’s perspective.
What are we to do to enhance the performance and responsible decision making by college and university governing boards in an environment that is dominated by administrators controlling the information and a board culture that promotes cheerleading rather than responsible governance? Here are 10 proposals:
1. Board members must subject major spending and policy decisions to cost/benefit analysis. It is a simple and extremely useful analysis because it forces trustees to consider disadvantages and trade-offs. While simple to do, the fact is, cost-benefit discussions are rare at governing board meetings. Unfortunately, since administrators have the resources to do analysis and do not like trustees to “micromanage,” the normal practice for board members is no cost/benefit analysis, listen and nod as administrators speak, vote yes, and let the full-time officials explain the policies and decisions.
2. The board secretary should be hired and rewarded by and responsible only to the board. If the board wants to have serious staff work done and someone who can collect information and be responsive to the board, a staff person responsible only to the board is best. Board employees who work for the administration will understandably end up being less than supportive if there is a request for information the administration doesn’t like, or a serious disagreement in policy. Beware: A request to hire a board secretary is often viewed (incorrectly) as an insult and great threat to the president, and most likely will be opposed.
3. Responsible trustees should insist on real committees and meaningful committee meetings, sessions that truly tackle issues. Administrators often favor minimal board meetings and a maximum of socializing. Similarly, administrators do not like the board breaking down into committees where they can do even more analysis and work. Trustees must take charge of their board, organize into committees to get into budget and policies in far more detail than is possible in the full board meetings, and limit the amount of time lost to unimportant university “show” presentations and social events.
4. Boards should insist on having major “strategic issue” discussions at each meeting. Another way to avoid the tendency to respond to administrator-set agendas and engage in end-of-the-process yes/no votes is to set aside a big block of time at each meeting to discuss key strategic issues in order to set policy to direct the university. Dedicating the bulk of a full board meeting to tuition policy, recruiting, and other major economic issues has been very effective at the University of Nebraska.
5. Board members should insist on the right to “have the floor” so that they can delve into issues and get all their follow-up questions addressed. The standard practice at board meetings is to have trustees wait in a queue to ask a question, with no opportunity for follow-up discussion and real debate. This needs to end.
6. To promote better accountability, trustees should insist on and help develop good “outcome measures” and “key performance indicators” for the university. It would be great for students and taxpayers if public universities required all graduates to complete the GRE or some other relevant professional exam as a condition for graduation. We need this kind of national standard and outcome measure to enable us to judge how well we do in educating our students and compare the value added by our school relative to other schools. This data would allow evaluation of programs and professors -- great information for students and those working to improve the university.
7. After new programs are approved, accompanied by promises of great results, boards should at some later date compare the program’s actual results and outcomes against the initial promises and projections. I visited Missouri's top board and found that its members followed this practice. For example, they approved a Ph.D. in Applied Mathematics and, in a board review several years later, presented facts showing that annual student enrollments had fallend far short of those projected. The natural tendency is to hide bad results like this. But a board needs to ensure that problems are disclosed and dealt with, and reviews like this can help.
8. Every few years, the board and administration should convene a committee to review administrative costs and champion efforts to undertake cost cutting. Reducing administrative costs is a “continuous improvement” effort that will often involve personnel reductions and changes to longstanding practice. An active, responsible board can help provide the impetus to make these needed changes. In Colorado, one board working closely with the president was able to reduce the administrative layers and re-direct the savings to instruction. This is a story that should inspire us all.
9. Trustees must demand an issues/requests tracking system, so when information is requested or an action is agreed to by the board, the request actually gets done. This is often not the case -- especially if the board secretary is responsible to the administration, not the board.
10. Finally, I recommend that university boards join the Institute for Effective Governance. I have attended sessions conducted by the Association of Governing Boards (the only other organization for trustees besides ACTA, which founded the institute) and read their materials, and the overwhelming message of AGB is for trustees to cheerlead for the campus administration. It has been my experience that AGB too often adopts the proposition that any disagreement with the administration is micromanaging or intolerable failure to support the president. If there were any doubt, recent problems at American University, where the board essentially gave a blank check to the president, should surely settle the matter: American University has been a member of the AGB for decades. The best way to adopt better practices is to visit other university boards, attend their meetings and talk with them about differences in practice. The Institute for Effective Governance (a group of trustees, not administrators) is a great source of best board practices and the most helpful resource I know for boards of trustees.
While I have great admiration for Nebraska’s current and past presidents, and have supported them on the vast majority of issues, I would never trust anyone with the freedom and blank check that trustees almost universally give to their top administrator. Nationwide, university boards simply do not scrutinize the budget the way city councils, county boards and legislatures do. We have great people on university governing boards, but the system is stacked against change and efforts to cut back spending or say no to new policies that continually lift the burden of responsibility from individuals.
To be a responsible board member, one must ask hard questions, do research, and frequently question and oppose college administrators who, understandably, often focus on the narrower interests of the college or university rather than the broader public interest.
In serving as a trustee, if you are not periodically voting “no” at meetings, or preventing some good-for-the-school-but-bad-for-the-public proposals from making it to the board for a vote, then you are not doing the job properly. If you have become such good friends with the school administrators that you find it too uncomfortable to oppose them on a vote, then you are not serving the public interest. If you are spending more time attending the athletic events, parties, and dinners with administrators rather than researching and questioning, then you are not serving as a responsible trustee.
Drew Miller is a member of the University of Nebraska Board of Regents, member of two public company boards of directors, and adviser to the Institute for Effective Governance. He is the president of Heartland Management Consulting Group and a colonel in the U.S. Air Force Reserve.
In 2004, the U.S. Department of Education proposed to modernize its system of gathering information from the nation's colleges. Among other provisions, it would have required colleges to begin submitting privacy-protected data about individual students' academic progress. The goal was straightforward: replace a cumbersome series of surveys about discrete topics (enrollment, graduation rates, finance, etc.) with a single survey that would ultimately yield far more accurate information about institutions.
This "unit record" system would have provided much more accurate information about individual colleges. The current federal graduation rate measure, for example, doesn't give colleges credit for students who transfer and graduate elsewhere -- a problem in an era of increasing mobility. By matching student records from multiple institutions, the system would give colleges full credit for students who start or finish their careers elsewhere. Colleges with a transfer mission, like community colleges, would benefit most. The system would also show "net price" -- student costs after institutional financial aid packages are taken into account, which often runs thousands of dollars less than the sticker prices commonly reported by the press. In other words, the unit record system would make most colleges look more successful and less expensive than current data suggest. And these are only a few of the informational benefits the system would bring.
Yet the reaction to the proposal from parts of the higher education community was nothing short of apoplexy. While the public university and community college associations were generally supportive, lobbyists from organizations like the National Association of Independent Colleges and Universities began throwing around words like "Orwellian" with abandon. Public opinion surveys filled with leading questions were commissioned, op-eds were placed in The Washington Post, and meetings were convened with members of Congress. The very idea of thousands of colleges and universities sending electronic files bulging with Social Security numbers, diploma information, and other potentially sensitive data about millions of students to a single repository in Washington -- one presumably full of huge, ominously buzzing computer servers where the data would be analyzed without students' consent -- was said to be dangerous and downright un-American. It would also be a terrible financial burden, institutions said, another unfunded mandate sucking funds away from students and education.
So awful was this idea that higher education lobbyists had language inserted in proposed versions of the federal Higher Education Act to ban the system outright, language that is now being considered in final negotiations over the bill. When the Spellings Commission on the Future of Higher Education released a draft report endorsing the system in late June 2006, the president of NAICU, David Warren, called it "an assault on Americans' privacy and security in the shadow of the fourth of July."
All of which is strange, given that just such a centralized, DC-based system -- complete with the big computers, social security numbers, and all the rest -- already exists. The same institutions that are busy denouncing the hypothetical federal system happily send individual student data to this very real system, several times a year. It's called the National Student Clearinghouse, and it's located one of those indistinguishable suburban office buildings off the highway in Herndon, Va., about 25 miles from the halls of Congress, where it's run by a non-profit organization founded by the student loan industry. I've been there, twice.
The fact that some higher education leaders are waging war against the federal system while simultaneously supporting the lender-enabled system does much to separate rhetoric from reality when it comes to questions of information systems, student privacy and higher education. It turns out to be perfectly possible to gather and organize massive amounts of potentially sensitive information about college students in a safe, responsible way. And most colleges are more than willing to participate -- as long as it's in their financial best interest to do so.
The Clearinghouse was founded in 1993, and was originally named the National Student Loan Clearinghouse, because that's exactly what it was, and is: a solution to a student loan information problem. America is a big country; there are thousands of colleges and universities, along with thousands of financial institutions that provide student loans. Most students don't start paying off their loans until after they leave college. That means that lenders have a vested interest in knowing exactly when students leave, so they can start sending them polite (and eventually less polite) letters asking them to repay. Lenders can't really rely on students for this information. ("Yeah bro, still in school. Majoring in, um, art history now. It's my, you know, personal calling.") They have to get it from the colleges themselves. Historically, that meant that each lender had to maintain some kind of ongoing information reporting relationship with hundreds or thousands of colleges, while each college had to do the same with hundreds or thousands of lenders. It was a hassle, and the Clearinghouse provided a better way.
The Clearinghouse is basically a gigantic nexus and storage facility for information about college enrollment. Every month or two, participating colleges send an electronic file to Herndon with a list of all the students currently enrolled. Lenders send a list of all the students to whom they've lent money. The Clearinghouse puts the lists together, and sends a third list back to each lender, detailing which of their borrowers are still enrolled and which are not. Instead of colleges dealing with thousands of lenders and lenders dealing with thousands of colleges, everyone just deals with one organization, the Clearinghouse.
Actually doing this is harder than it sounds. The student loan industry invested millions of dollars in getting the organization off the ground, and it currently employs nearly 100 full-time people to manage the process, which involves a lot of matching algorithms, data protocols, and the afore-mentioned large computers. But the important thing to understand is that it works. As of today, over 91 percent of all the college students in America are enrolled at one of the 3,100 colleges and universities that send individual information about them to the Clearinghouse, whether or not they took out a student loan. The Clearinghouse employs elaborate security procedures that have never been breached, and is fully compliant with the Family and Educational Rights and Privacy Act (FERPA).
While the Clearinghouse was originally created to fulfill a specific purpose, it has gradually branched out into other areas, including providing degree verification for employers and information for researchers and K–12 school systems. It was Clearinghouse data that allowed Chicago Public Schools to learn that less than half of its graduates who went on to college were earning a bachelor's degree within six years, and at some local institutions success rates were lower than 20 percent. The Clearinghouse also provides reports and analyses to colleges, letting them find out, for example, where all the students they accepted but didn't enroll chose to enroll instead.
It's all perfectly logical and above-board. Which is the point -- colleges and universities have no principled objection to centralized databases of student information. They're happily sending unit-record data to one right now. There are, for example, 43 private colleges and universities represented on NAICU's board of directors. Of them, 38 were enrolled in the Clearinghouse system as of April 21, 2008.
The controversy around the proposed federal unit record database is a power struggle masquerading as a fight for student privacy. Colleges don't mind sharing information with lenders because they have a mutually beneficial relationship, each providing a market for each other's services. By contrast, colleges are deeply suspicious of any new entanglements with the federal government. Throughout the nation's history, Uncle Sam has adopted a hands-off approach to higher education, providing no direct operating support and asking for little or no say in the conduct of universities in return. That appears to be changing, as federal lawmakers are increasingly asking tough questions about price and quality, suggesting that the former is too high and the latter is too low.
There is an important discussion to be had about the federalism and the proper relationship between the academy and the state. The U.S. Department of Education doesn't have an unlimited claim on student information, and the benefits of any system should be weighed against the costs of compliance for institutions. More broadly, the need for public accountability must be balanced with the American higher education's traditional strengths of diversity and autonomy. And the need for stringent privacy protections for students goes without saying. Of course, the National Center for Education Statistics, where higher education data is held, already collects large amounts of student-level data through its extensive series of longitudinal surveys. And like the Clearinghouse, its security record is unblemished.
But the private college lobby doesn't want to have a serious conversation about these issues. Instead, they've built an argument on hypocrisy and misrepresentation, arguing on Capitol Hill against student information systems even as they help build one just a short drive away.
Submitted by Kevin Carey on September 23, 2008 - 4:00am
In 1992, college diploma fresh in hand, I decided to take a year off before going to graduate school. (By "decided" I mean "forgot to take the GRE.") A friend suggested that, in terms of good places to squander 12 months of one's youth, it was hard to beat Chapel Hill, N.C. So we found a cheap apartment near the UNC campus and got jobs waiting tables at a barbecue restaurant. (Want to out yourself as a damn Yankee? Use the word "barbecue" as a verb.) Slinging pulled pork sandwiches paid just enough to cover rent, gas, drinks, and music. For the latter, I spent a great deal of time in Schoolkids Records, one of those iconic stores where every aisle held the promise of a long-sought European bootleg and the girl behind the counter was unattainably cool.
Earlier this year, upon returning to Chapel Hill for the first time, I walked up Franklin Street looking for some new music and perhaps a few fond memories -- only to discover that Schoolkids was closed, shut down just a few months prior, after 30 years in business. Apparently, in 2008 you can't make money selling compact discs on the main drag of a music-soaked college town, one block from a campus of 30,000 students.
For me, it was a reminder that times change. Unfortunately, the entertainment industry seems to have drawn a different conclusion, namely that that it has no choice but to wage a futile war against colleges and students that could threaten the essential purpose of higher education.
By now we're all familiar with the Recording Industry Association of America's dogged campaign of responding to a sea change in the way music is distributed and sold by suing 12-year olds and senior citizens for hundreds of thousands of dollars because they made $50 worth of songs available on a filing-sharing network. Truly there is no industry that hates its customers more.
The "haul grandma into court" strategy proved to be somewhat of a PR debacle. So the RIAA took aim at a less sympathetic target: college students, who are often assumed to be spoiled, amoral, and in need of some kind of comeuppance or another. There was, however, a complication: music companies can locate the Internet Protocol (IP) address of copyright infringers on their own. But they have to ask the Internet Service Provider (ISP) for the name of the actual person who "lives" at that address. And at most universities, the ISP is the university itself.
So the music industry began deputizing colleges in the hunt for music thieves, asking them to pass along "settlement letters" which offer students the chance to pay a few thousand dollars in order to forestall a ruinous lawsuit. (Since most undergrads don't have that kind of money lying around, the industry even created a convenient Web site where students can charge the fine to one of those credit cards bearing usurious interest rates that you get after filling out an application in exchange for a free T-shirt.)
Some colleges refused to participate. Many others, wanting to cut down on illegal activity and wary of losing their legal immunity under the 1998 Digital Millennium Copyright Act, agreed. That's increasingly looking like a bad decision. The suits have done nothing to stem the tide of illegal file-sharing. Now the industry is pursuing a much more intrusive and dangerous strategy: trying to require universities to create an electronic infrastructure for snooping, privacy violation, and censorship that runs wholly counter to what an institution of higher learning should be. And in doing so, they're using colleges' past good-faith cooperation against them.
The technical term is "deep packet inspection," a process by which universities can examine the contents of electronic files that pass back and forth on their networks to see if they contain copyrighted material like the latest M.I.A. single or an episode of Gossip Girl. It's the equivalent of requiring institutions to steam open and read every letter that passes through the campus mail. It's also expensive, slows down the entire network, and won't actually work, because the small number of students who are responsible for the most egregious piracy also tend to be the students with the technical know-how needed to stay three steps ahead of whatever new filtering mechanisms the university might devise.
The entertainment industry insists that it doesn't necessarily want to go this way, but that's obviously a lie. Earlier this year, it supported legislation in Illinois and Tennessee that would have required colleges to implement "technology-based deterrents" to piracy if they received more than a certain number of infringement notices. Around the same time, colleges across the country began seeing a 20-fold increase in the number of infringement notices they received.. When colleges protested the new burden, the RIAA said their past voluntary cooperation meant they were legally obligated to comply in the future.
Then a blanket requirement to develop "technology-based deterrents" was included in the new version of the federal Higher Education Act enacted in August. It's a safe bet that when the meaning of that phrase is inevitably litigated, industry lawyers will argue that only deep packet inspection will suffice. Perhaps they'll cite as evidence the technology's widespread use by censors in the Chinese government.
Why, one might ask, are colleges being forced to bear the brunt of the entertainment industry's campaign, when (flawed industry studies notwithstanding) most piracy occurs far outside of campus walls? Simple: In the world of ISPs, colleges are small potatoes. They also receive direct state and federal funding, making them vulnerable to legislative pressure. The big content providers don't actually care that much if undergraduates steal music -- they know as well as anyone that students form tastes and preferences in college that generate lots of money down the road. This is simply a way to establish precedent, an opening skirmish in a larger, longer war with their real enemy: big ISPs like Verizon, Comcast, and AT&T. Universities are Lilliputs compared to these corporate giants, which have money, lawyers, and political clout that matches the content providers and more. The entertainment industry is trying to soften up the legal ground so it can eventually require all ISPs to automatically spy on their customers. If privacy and academic freedom suffer along the way, well, you know what they say about collateral damage.
To be clear, I'm no apologist for stealing music. There are 10,000 songs on my iPod and I paid for every one of them. Information may want to be free, but that doesn't mean we have to do what it wants or expect musicians to make a living as itinerant troubadours who sell memorabilia on the side. I get paid to write occasionally and I'd be pretty cheesed if someone published my words without permission or compensation. But if that happened, it would be my problem -- not the problem of whichever ISP happened to carry the digital words to and fro.
For half a millennium, universities have stood as places where knowledge is created, stored, and exchanged. The storage function is eroding as digital information can be housed anywhere and accessed everywhere. But the role of universities as centers of knowledge exchange has become all the more vital. Higher education allows communities of scholars and students to engage with one another in deep, sustained ways. At their best, universities also welcome political and cultural views that are far outside of the mainstream. It's not an easy role to play, requiring strong institutions that are committed to values of inquiry and openness. As the speed and volume of communication are constantly amplified by new technologies, colleges and universities will be irreplaceable as places that nurture and sustain these kinds of substantive dialogues, free from the threat of censorship and intrusion.
It's easy to be nostalgic for days gone by. But I'm not getting my early 20s back and the music industry will never return to the glory days when people bought millions of copies of a single physical CD full of songs, some of which they wanted to buy and some of which they didn't, because that was the only choice they had. We're witnessing a desperate industry shackled to a 20th century business model try to undermine one of the foundational purposes of higher education by forcing colleges to create an infrastructure for electronic spying that potentially would be available for any corporate interest with enough money to hire a lobbyist. It's unacceptable, and an issue on which all colleges and universities should take a stand.