There is absolutely no truth to the rumor that the U.S. Education Department's Hal Plotkin will appear at a protest on textbook prices today dressed in a 10-foot-tall mascot costume as "Textbook Rebel."
WASHINGTON -- Higher education hates the U.S. Education Department's recently enacted regulation requiring institutions to seek and gain approval from any state in which they operate, and has fought it on multiple fronts. Late Tuesday colleges and universities got at least a temporary reprieve from the part of the rule to which they most object -- its application to online programs in which even one student from a state enrolls.
WASHINGTON -- Weeks after the U.S. Education Department issued softened regulations designed to ensure that vocational programs prepare graduates for "gainful employment," House Republicans made abundantly clear Friday that, in their view, the rules had not been eased nearly enough, and that they would continue to oppose them.
Two weeks ago, the referee in an ongoing contest between girls and boys made the game much more fair. But the U.S. Department of Education’s new guidelines for Title IX of the Education Amendments of 1972, which requires colleges to offer gender equity in intercollegiate athletics, has met with nothing but jeers from fans of the old rules.
At least on paper, the guidelines for complying with the student participation element of Title IX are pretty clear. Universities need to meet one of three prongs to be in compliance: They must either (1) ensure women are represented in athletics in numbers proportionate to their presence in the student body; (2) demonstrate continued efforts to expand athletic opportunities for the underrepresented sex; or (3) show they are fully accommodating women’s athletic interests.
The third prong is at the center of the current debate. How does a school show it is providing intercollegiate athletic opportunity on par with women’s interest?
The answer, one would think, is obvious: You ask them. In practice, though, it has been far from that simple. Guidance from the Department of Education over the years has been unclear, and colleges have faced a constant threat of litigation for falling short of anything less than "proportionality."
With its new guidance, the Department of Education is finally trying to let schools to use the common sense solution, enabling them to comply with Title IX by e-mailing a survey to all students asking them about their interest in participating in intercollegiate athletics, and judging schools by how closely what they offer matches what women want. It makes sense. So what’s the problem?
Like a home crowd whose team just had a touchdown called back, Title IX’s proponents pounced on the department’s new rules. In an Inside Higher Ed commentary last week, for instance, Nancy Hogshead-Makar, an Olympic gold-medal swimmer and an assistant professor at Florida Coastal School of Law, and Donna Lopiano, executive director of the Women’s Sports Foundation, ripped into the new guidance, saying the department is “thumbing its nose at the law and the female athletes it is charged with protecting.”
Of course, home crowds are typically biased -- they want their team to win, after all -- so it’s little surprise that Title IX’s fans are raising questionable objections to the new guidance. Among the weakest, but most important, is the assertion that surveys can’t gauge women’s interest in athletics relative to men because, according to Hogshead-Makar and Lopiano, "culturally, men are simply more likely than women to profess interest in a sport ... women are less likely to profess an interest in sports, even if they are interested!"
Apparently, we’re supposed to give activists like Hogshead-Makar and Lopiano the policies they demand because they say women want to play sports at the same rate as men, but just won’t admit it. Were such logic applied on the playing field rather than in the policy world, it would be like awarding a team points for invisible shots they say only they can see go in the goal.
But let’s suppose women really are unwilling to state their true interest in athletics. Let’s believe Hogshead-Makar and Lopiano when they write that “professing interest in a sport does not predict behavior...." If that’s true, we should find that while lower percentages of women than men profess an interest in putting on their cleats, when it actually comes time to play, women are just as likely to lace ‘em up.
It turns out that contrary to what Title IX activists tell us, what women say does indeed translate into what they do. For instance, according to the Higher Education Research Institute’s report "The American Freshman: National Norms for Fall 2004," between 2.7 and 5 percent of men (depending on the type of college in which they were enrolled) participated in no exercise or sports in a typical week of their senior year in high school.
In contrast, between 4.7 and 16.1 percent of women participated in no sports or exercise.On the high end, between 11.6 and 17 percent of men reported having spent more than 20 hours participating in exercise or sports as high schools seniors, while only between 5.5 and 7.6 percent of females spent that much time.
The findings of "The American Freshman" are corroborated in Taking Sex Differences Seriously, by the University of Virginia’s Steven Rhoads. Rhoads reports that despite the fact that anyone who wants to can play on college intramural teams, typically three to four times more men participate than women.
Surprisingly, the “women want to play as much as men, they just won’t say it” argument might not be the weakest objection to surveys. In a recent Inside Higher Ed article, Neena Chaudhry, senior counsel at the National Women’s Law Center, argued that sending e-mail surveys to students, in which a non-response indicates no interest in sports, is unfair because "a lot of those e-mails won’t even be opened."
Apparently, the women who are supposedly dying to play sports aren’t even sufficiently motivated to keep an eye out for an interest survey, or to open it when it comes. What coach would even want players with so little enthusiasm for their sport on their team?
Perhaps the one argument with which Title IX defenders score a legitimate point is that a survey will fail to capture the athletic interest of incoming students. Hogshead-Makar and Lopiano argue, for instance, that colleges need to examine the interests not only of current students, but of prospective students, who are often recruited by schools based on their athletic abilities.
It’s a decent argument, but it’s ultimately a losing proposition for Title IX supporters. Because women’s interest in athletics really isn’t proportionate to that of men, sooner or later women’s athletic slots might be offered, but no one will be there to fill them. It's one of the reasons colleges have been forced to cut men’s sports, rather than increase women’s sports, to achieve proportionality.
Unfortunately, as long as government is involved, college sports will continue to revolve around political, rather than athletic, contests, and only the most politically skilled will win. Until now, that’s been supporters of Title IX, who have succeeded in persuading policymakers to require that colleges accommodate a demand for women’s athletics opportunities that can’t even be shown to exist. It’s a game Title IX supporters have liked because the referee -- the government -- has usually been on their side.
But real fairness requires a neutral referee, which political solutions simply can’t provide. Take the government out of the game, though, and colleges and students -- not politicians -- will decide the winner. In other words, abolish Title IX, and let supply and demand take over the referee job.
Importantly, in such a system women will almost always control the ball. They can choose the schools that offer what they want -- athletic opportunities, artistic outlets, good academics, or anything else -- and can run past those that don’t.
Schools that discriminate will be penalized not by the government, but by prospective students who choose to enroll in competing institutions. It’s a competition that will be stacked against sexist institutions: According to the National Center for Education Statistics, 56 percent of college students are women, and their majority status has been growing. Women are a powerful market force.
Unless they really are as incapable of acting on their desires as supporters of the status quo seem to suggest, women will get what they want out of their colleges. But if they continue to cede power to special interests and government, while some women will still win, most everyone else will lose.
Neal McCluskey is an education policy analyst at the Cato Institute’s Center for Educational Freedom.
Normally I would be averse to going public with the internal affairs of the Flat Earth Society. But this is not the time for silence or misguided diplomacy. The failure of our leadership to throw the Society's full support behind the Academic Bill of Rights is little short of scandalous.
It is time to put an end to the constant stream of indoctrination in America's college classrooms on the part of "scholars" only too willing to serve the interests of the globe-manufacturing lobby. Students should be given a chance to use their own rationality and powers of observation. Remember, the so-called "theory" of spherical-earthism is just that -- a theory. (I mean, come on! It's just a matter of common sense. The world can't be round. The people in Australia would fall off.)
At the same time, the Society has nearly liquidated its treasury in placing a bulk order for a new book by Thomas Friedman, the New York Times foreign affairs columnist, called The World is Flat. The cover is, to be sure, very impressive. It portrays two ships and a small boat sailing dangerously close to the edge of the earth. However, I am now reading the book, and am sorry to report it is not nearly as good as we all had hoped.
Friedman argues that the rapid spread of high-speed digital communication has created conditions in which skilled labor in now-impoverished countries can be integrated into a new economic order that will end extreme disparities in wealth and development. The world will be less uneven, and in that sense more "flat."
It's a book about globalization, in other words. Which makes the title (not to mention the artwork, which has given me nightmares) very sneaky indeed.
To be honest, I'm not entirely sure that the Flat Earth Society is still active. (It has a Web page, though that doesn't mean much.) But a recent reading of Martin Gardner's classic Fads and Fallacies in the Name of Science is a reminder that it was in 1905 that the Rev. Wilbur Glenn Voliva became General Overseer of Zion, Illinois -- a town in which church and state were, at the time, pretty much identical. Voliva ministered to the Christ Community Church and enforced strict blue laws, while also carrying on the scientific research necessary to prove that (as Gardner puts it) "the earth is shaped like a flapjack, with the North Pole at the center and the South Pole distributed around the circumference."
He offered a reward of $5,000 to anyone who could prove otherwise, and never had to part with what any of his money. It is good to know that, 100 years later, Voliva's scholarly efforts may yet win a hearing in the American academic life -- thanks to the tireless efforts of David Horowitz.
As for Thomas Friedman .... well, his version of flat-earth doctrine is bound to have an impact on academe, even if no professor ever opens his latest volume. The people flying in business class read Friedman's books -- and that includes plenty of university administrators, those acting CEOs of the knowledge economy.
Nor will it hurt that The World is Flat is, in effect, one long plea to corporations, government officials, and any other policy-makers who might be reading to invest in higher education as the nation's top priority for the future. In a world where more and more jobs can be done more cheaply, in new places, people need constantly to update, refine, or change entirely their toolkit of knowledge and skills.
Friedman has a knack for harvesting the information, opinions, and gut instincts of some of the most powerful people in the world. He boils it all down into some catchy slogans, and voila! You've got a bouillon cube of the conventional wisdom for the next two or three years.
He is bullish on the long-term benefits of the global market -- with that congenital optimism tempered (occasionally, and just a little) by the experience of having served as a Middle East correspondent. And he shows a faith in the power of corporations to become good global citizens that is either inspiring or willfully obtuse -- depending on whether or not you are annoyed by the fact that The World is Flat contains exactly zero interviews with labor leaders.
It is his instinct towards globalization boosterism that gives the edge, so to speak, to Friedman's thesis on what he calls "flatism." In short, his argument is that the technological infrastructure now exists to make it economically rational for more and more kinds of business to be conducted in a way that is dispersed over networks that span the entire world. Outsourcing no longer means shifting manufacturing offshore -- or even having the less-skilled kinds of service-sector jobs (data keypunching, for example) done in another country.
Work requiring more sophisticated cognitive skills -- bookkeeping, computer programming, or the analysis of medical test results, for example -- can be done in India or China at much less expense. Jobs thus become more mobile than the people who do them.
Friedman's main point is that this is not a trend that will take shape at some point in the future. It is happening right now; the trend will not reverse. And the American political parties and the cable news programs are not telling the public what is happening. They are, as Friedman puts it, "actively working to make people stupid."
Instead, "companies should be encouraged, with government subsidies or tax incentives, to offer as wide an array as possible of in-house learning opportunities," thereby "widening the skill base of their own workforce and fulfilling a moral obligation to workers whose jobs are outsourced to see to it that they leave more employable than they came."
Friedman also favors "an immigration policy that gives a five-year work visa to any foreign student who completes a Ph.D. at an accredited American university in any subject. I don't care if it's Greek mythology or mathematics. If we cream off the first-round intellectual draft choices from around the world, it will always end up a net plus for America."
I n a way, Friedman has come to his own version of some of the ideas that Manuel Castells developed some years ago in the three large volumes of The Information Age. There, the sociologist worked out an account of how the "space of flows" between parts of a dispersed economic network would transform the "space of places" (that is, the real-world geography) in which people dwell.
As with Friedman's notion of "flatism," the increased productivity and ceaseless disruption of network society were basic to the picture that Castells drew. But he also stressed something that Friedman -- with his abiding cheerfulness -- tends to downplay: Skills, knowledge, and wealth accumulate at the dispersed nodes of an economic network, but some parts of the world fall outside the network more or less entirely.
Most of Africa, for example. Last year, a study found that 96 percent of the continent's population had no access to telecommunications of any kind. Given the unavailability of drinking water and medical supplies, that is probably the least of anyone's worries. But even with the recent increase in wireless access in Africa -- thereby potentially getting around the scarcity and unreliability of more traditional landline telecommunication -- it is unlikely that part of the world will be "flattening" anytime soon. (Some might see the glass as 96 percent empty, but I suppose someone encouraged by Friedman's book would consider it 4 percent full.)
Meanwhile, it is difficult to feel much optimism about Friedman's proposal for beefing up the resources for increasing the educational opportunities of the American workforce. At least for now, the public discourse on higher education is caught in a particularly narrow and regressive set of undercurrents.
It's possible to joke about how the Rev. Voliva's scholarship in flat-earth studies might finally start getting their due. But matters are serious when scientists are forced to resort to references to Lysenkoism to describe the government's science policy. And higher education itself is the focus of a barrage of ideologues who seem to have confused The Authoritarian Personality with a manual for self-improvement.
It would be good to think that the national agenda could change -- that the notion of "flatism," whatever its limitations, might help spur increased public commitment to continuing education. But then, as Friedman also says, certain politicians and media outlets are "actively working to make people stupid." With that part, at least, he's being realistic.
Scot McLemee writes Intellectual Affairs on Tuesdays and Thursdays.
In my work as Oregon’s college evaluator, I am often asked why state approval is not "as good as accreditation" or "equivalent to accreditation."
We may be about to find out, to our sorrow: One version of the Higher Education Act reauthorization legislation moving through Congress quietly allows states to become federally recognized accreditors. A senior official in the U.S. Department of Education has confirmed that one part of the legislation would eliminate an existing provision that says state agencies can be recognized as federally approved accreditors only if they were recognized by the education secretary before October 1, 1991. Only one, the New York State Board of Regents, met the grandfather provision. By striking the grandfather provision, any state agency would be eligible to seek recognition.
If such a provision becomes law, we will see exactly why some states refuse to recognize degrees issued under the authority of other states: It is quite possible to be state-approved and a low-quality degree provider.Which states allow poor institutions to be approved to issue degrees?
Here are the Seven Sorry Sisters: Alabama (split authority for assessing and recognizing degrees), Hawaii (poor standards, excellent enforcement of what little there is), Idaho (poor standards, split authority), Mississippi (poor standards, political interference), Missouri (poor standards, political interference), New Mexico (grandfathered some mystery degree suppliers) and of course the now infamous Wyoming (poor standards, political indifference or active support of poor schools).
Wyoming considers degree mills and other bottom-feeders to be a source of economic development. You’d think that oil prices would relieve their need to support degree mills. Even the Japanese television network NHK sent a crew to Wyoming to warn Japanese citizens about the cluster of supposed colleges there: Does the state care so little for foreign trade it does not care that 10 percent of the households in Japan saw that program? You’d think that Vice President Dick Cheney and U.S. Senator Mike Enzi, who now chairs the committee responsible for education, would care more about the appalling reputation of their home state. Where is Alan Simpson when we need him?
In the world of college evaluation, these seven state names ring out like George Carlin’s “Seven Words You Can’t Say On Television,” and those of us responsible for safeguarding the quality of degrees in other states often apply some of those words to so-called “colleges” approved to operate in these states -- so-called “colleges” like Breyer State University in Alabama and Idaho (which “State” does this for-profit represent, anyway?).
There are some dishonorable mentions, too, such as California, where the standards are not bad but enforcement has been lax and the process awash in well-heeled lobbyists. The new director of California’s approval agency, Barbara Ward, seems much tougher than recent placeholders -- trust someone trained as a nurse to carry a big needle and be prepared to use it.
The obverse of this coin is that in some states, regulatory standards are higher than the standards of national accreditors, as Oregon discovered when we came across an accredited college with two senior officials sporting fake degrees. The national accreditors, the Accrediting Commission of Career Schools and Colleges of Technology and the Accrediting Bureau of Health Education Schools, had not noticed this until we mentioned it to them. What exactly do they review, if they completely ignore people’s qualifications?
The notion that membership in an accrediting association is voluntary is, of course, one of the polite fictions that higher education officials sometimes say out loud when they are too far from most listeners to inspire a round of laughter. In fact, losing accreditation is not far removed from a death sentence for almost any college, because without accreditation, students are not eligible for federal financial aid, and without such aid, most of them can’t go to school – at least to that school.
For this reason, if Congress ever decoupled aid eligibility from accreditation by one of the existing accreditors -- for example, by allowing state governments to become accreditors -- the “national” accreditors of schools would dry up and blow away by dawn the next day: They serve no purpose except as trade associations and milking machines for federal aid dollars.
The Libertarian View of Degrees
One view of the purpose and function of college degrees suggests that the government need not concern itself with whether a degree is issued by an accredited college or even a real college. This might be considered the classic libertarian view: that employers, clients and other people should come to their own conclusions, based on their own research, regarding whether a credential called a “degree” by the entity that issued (or printed) it is appropriate for a particular job or need. This view is universally propounded by the owners of degree mills, who become wealthy by selling degrees to people who think they can get away with using them this way.
The libertarian view is tempting, but presupposes a capacity and inclination to evaluate that most employers have always lacked and always will, while of course an average private citizen is even more removed from that ability and inclination. Who will actually do the research that the hypothetical perfect employer should do?
Consider the complexities of the U.S. accreditation system, the proliferation of fake accreditors complete with names nearly identical to real ones (there were at least two fake DETCs, imitating the real Distance Education Training Council, in 2005), phone numbers, carefully falsified lists of approved schools, Web sites showing buildings far from where the owners had ever been and other accoutrements.
To the morass of bogus accreditors in the U.S., add the world. Hundreds of jurisdictions, mostly not English-speaking, issuing a bewildering array of credentials under regimens not quite like American postsecondary education. Add a layer of corruption in some states and countries, a genial indifference in others, a nearly universal lack of enforcement capacity and you have a recipe for academic goulash that even governments are hard-pressed to render into proper compartments. In the past 10 days my office has worked with national officials in England, Sweden, The Netherlands, Canada and Australia to sort out suspicious degree validations. Very few businesses and almost no private citizens are capable of doing this without an exhausting allocation of time and resources. It does not and will not happen.
Should state governments accredit colleges?
State governments, not accreditors or the federal government, are the best potential guarantors of degree program quality at all but the major research universities, but only if they take their duty seriously, set and maintain high standards and keep politicians from yanking on the strings of approval as happens routinely in some states. Today, fewer than a dozen states have truly solid standards, most are mediocre and several, including the Seven Sorry Sisters, are quite poor.
If Congress is serious about allowing states to become accreditors, there must be a reason. I can think of at least two reasons. First, such an action would kill off many existing accreditors without having their work added to the U.S. Department of Education (which no one in their right mind, Democrat, Republican or Martian, wants to enlarge). This would count as devolutionary federalism (acceptable to both parties under the right conditions).
The second reason is the one that is never spoken aloud. There will be enormous, irresistible pressure on many state governments to accredit small religious schools that could never get accredited even by specialized religious accreditors today. The potential bounty in financial aid dollars for all of those church-basement colleges is incalculable.
Remember that another provision of the same proposed statute would prohibit even regionally accredited universities from screening out transfer course work based on the nature of the accreditor. Follow the bread crumbs and the net result will be a huge bubble of low-end courses being hosed through the academic pipeline, with the current Congressional leadership cranking the nozzle.
The possibility of such an outcome should provide impetus to the discussions that have gone on for many years regarding the need for some uniformity (presumably at a level higher than that of the Seven Sorry Sister states) in standards for state approval of colleges. We need a “model code” for state college approvals, something that leading states can agree to (with interstate recognition of degrees) and that states with poor standards can aspire to.
The universe of 50 state laws, some excellent and some abysmal, allows poor schools to venue-shop and then claim that their state approval makes them good schools when they are little better than diploma mills. We must do better.
Should states accredit colleges? Only if they can do it well. Today’s record is mixed, and Congress should not give states the power to accredit (or allow the Department of Education to give states the power) until they have proven that their own houses are in order. That day has not yet come.
Alan L. Contreras
Alan L. Contreras has been administrator of the Oregon Office of Degree Authorization, a unit of the Oregon Student Assistance Commission, since 1999. His views do not necessarily represent those of the commission.
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.
The secretary of education’s Commission on the Future of Higher Education unequivocally advances the notion that the “business” of colleges and universities -- defined primarily in the final report as “preparation for the work force” -- is best advanced by the disclosure of data allowing institutions to be compared to one another, particularly in measurements of student learning. Standardized testing of all college students would be required to produce those comparative quantitative data. Such universal application of testing is forwarded as the guarantee of accountability for what this American democracy requires most essentially from its higher-education institutions. In other words, what has already been applied with mixed success to pre-collegiate education is now to be applied to higher education. In addition to the No Child Left Behind Act, we are to have what might be called No College Left Behind.
In the nation’s current zeal to account for all transfer of teaching and insight through quantitative, standardized testing, perhaps we should advance quantitative measurement into other areas of human meaning and definition. Why leave work undone?
I suggest, for example, that a federal commission propose an accountability initiative for those of faith (not such a wild notion as an increasing number of politicians are calling the traditional separation of church and state unhealthy for the nation). This effort should be titled No God Left Behind. The federal government would demand that places of worship, in order to be deemed successful, efficient and worthy of federal, state and local tax-support exemption, provide quantitative evidence of the effectiveness of their “teaching.” (Places of worship are not unlike colleges and universities in that they are increasing their fund-raising expectations -- their form of “price” -- because of increasing costs.) The faithful, in turn, would be required to provide quantitative evidence of the concrete influence of their respective God upon behaviors within a few years of exposure -- say four years.
And in keeping with the Commission on the Future of Higher Education’s suggestion that one test would be appropriate for all types of higher-education institutions regardless of mission -- liberal-arts colleges, private research universities, public research universities, community colleges, for-profit-online universities, vocational schools -- a standardized test would be applied to a person of faith, whether Christian, Jew, Muslim, Hindi or other “approved” religions. Additionally, a pre-test would be given to the faithful upon initial engagement with their respective God and place of worship, and would be followed by a post-test after four years to assess “value added.”
Of course, I really don’t think No God Left Behind is a good idea. The reasons why also are applicable to No College Left Behind and No Child Left Behind. Most people of faith, I believe, would argue that this quality lies beyond mere human quantitative measurement to validate its worth, that it exists in a variety of forms (only the most radical would argue for the exclusion of faiths that fail a test), and that its effects on human beings may not be immediately evident. None of these assertions, of course, makes faith for believers any less real as a source of improving the quality of human life.
My case for faith continuing to flourish for those who wish it, without proof through standardized testing, shares critical affinities with my argument for higher education not being universally subject to quantitative assessment. There are at least four inter-related issues that confound the Commission’s absolutism towards quantitative measurement to solve the imagined knowledge deficit and lack of contribution to the nation by American higher education.
First, quantitative testing, to be of application, must have as its subject that which can be empirically assessed. Such limitation leaves out critical areas of human knowledge, meaning and definition that are not readily subject to immediate empirical assessment during the course of instruction but are, nevertheless, very real: the development of character thorough trial and error in a residential setting, an appreciation of the arts and aesthetics; a literary and poetic sensibility; a recognition of the responsibilities of citizenship; an appreciation of liberty and freedom; a spirit of business entrepreneurialism; and creativity and inventiveness in the sciences (and I am not talking solely about the short-term acquisition of cultural, historical and political “fact” in these areas).
The commission’s recommendations -- with their focus on workforce preparation -- might well reduce the scope of what is taught and discussed in those institutions to only those areas that can be indisputably measured by a test. An abiding respect for learning, which is not so obviously technical and thus not measurable through standardized assessment, is rooted deeply in the intentions for a distinctively American higher education by our country’s founders. Indeed, Benjamin Rush, a patriot, signer of the Declaration of Independence and founder of several colleges, to include Dickinson, proclaimed this distinctive American relationship among advanced knowledge, abstract concepts and the future well-being of the nation when he said, “Freedom can exist only in a society of knowledge. Without learning, men are incapable of knowing their rights.” The intent of a liberal education is thus defined.
Both propositions are based not on the quantitative assessment of the merely technical, but rather the confidently ambiguous power of existing in a “society of knowledge,” one that would influence learners to a much desired and critically important ideal -- democracy and the diversity of perspective that it secures. There exists in Rush and his co-conspirators, in founding a distinctively American higher education after the end of the revolution, a mature appreciation of the complexity and variety of the instruction necessary to advance a democracy.
Second, and closely related to the perspective of Rush, is that education in America was not intended solely to provide young people for “the work force” through the empirically demonstrated mastery of a limited set of practical skills. Fundamental literacy, numeracy and scientific knowledge were more properly the task of the grammar schools and the academies (high schools). American higher education historically builds on this “technical” accomplishment and engages students in a democratic way of life through both advanced technical and speculative (creative) learning.
Third, students in the United States at all levels of formal education already are the most “tested” by standardized measurement in the world. Yet, we still seem to be in a position of deficit in improving what students actually know and need to know to function productively in society. Do we truly believe that more testing will lead to improved teaching and learning? Are we so convinced that “to test is to learn” despite so much evidence to the contrary?
Fourth, are we oblivious to the fact that, like the flourishing of spirituality only in societies that are generously supportive, the acquisition of knowledge only advances in political entities for which this activity is esteemed and generally valued? A society and government in which only practical, technical knowledge is lauded and that which is more abstract is derided -- such as the long-term, arduous education for the appreciation of democracy, liberty and freedom -- have little chance of moving a people to take the enterprise seriously.
I have no doubt that Secretary Spellings, the Commission members and the chairman, Charles Miller, intend an American higher education that offers the nation and the world graduates who can confront, with knowledge, skill, creativity and an entrepreneurial spirit, the challenges and the opportunities that the world demands. My caution -- and it is a pointed one -- is that in our rush to secure excellence thorough the simplistic and misguided notion of increased quantitative assessment of workforce skills, we will destroy the historic distinctiveness of American higher education.
Derek Bok, in Our Underachieving Colleges, cites numerous commentators over the last few decades alarmed at the perversion of American higher education as it progressively leans to practical and technical knowledge at the expense of more generous, less immediately focused ambitions. For example, Diane Ravitch, an education analyst who has frequently criticized the college establishment, states, “American higher education has remade itself into a vast job-training program in which the liberal arts are no longer central.” And Eric Gould in 2003 observes negatively that, “What we now mean by knowledge is information effective in action, information focused on results. We tend to promote the need for a productive [emphasis added] citizenry rather than a critical, socially responsive, reflective individualism.”
We must never forget that a distinctively American higher education, using a wide variety of internal and external assessments already in place, aims to increase competencies and literacies established prior to college (although far greater public transparency is certainly needed). This ambition the United States shares with the rest of the world. American education, however, infuses this globally shared agenda with something extra, something that has secured its distinction for centuries -- to extend beyond factual and technical knowledge and to introduce its students to what Derek Bok describes as, “more ethically discerning … more knowledgeable and active in civic affairs” -- and that cannot be captured through standardized testing at the moment of introduction, for it unfolds over time and with experience.
Lose this ambition and American higher education has lost permanently its distinction as a democratic society of knowledge.
William G. Durden
William G. Durden is president of Dickinson College.
Of all the ideas to come out of Margaret Spellings's Commission on the Future of Higher Education, the final report proposal that has been the most contentious inside the DC Beltway is the proposal for a unit-records database. There are plenty of other controversial ideas floated in the commission's hearings, briefing papers, and report drafts, but the one bureaucratic detail that most vexed private colleges and student associations over the past year is the idea that the federal government would keep track of every student enrolled in every college and university in the country. Given reports this year about the Pentagon hiring a marketing firm to collect data on teens and college students, the possibility that Big Brother would know every student's grades and financial aid package has worried privacy advocates.
Fortunately, privacy and accountability do not need to be at odds.
The proposal for a unit-records database was floated in a 2005 report that the U.S. Department of Education commissioned. Advocates have argued that the current system of reporting graduation data through the Integrated Postsecondary Education Data System (IPEDS) only captures the experiences of first-time, full-time students who stay in a single college or university for their undergraduate education. How do we capture the experiences of those who transfer, or those who accumulate credits from more than one institution? Theoretically, we could trace such educational paths by tracking individuals, including your Social Security Number or another identifier to link records.
Charles Miller, who led the Spellings commission, was one of the unit-records database advocates and pushed it through the commission's deliberations. Community-college organizations liked the idea, because it would allow them to gain credit for the degrees earned by their alumni. But the National Association of Independent Colleges and Universities, the U.S. Student Association, and other organizations opposed the unit-records database, and in its current form the proposal is certainly dead on arrival as far as Congress is concerned.
There are three problems with a unit records database. The first problem is privacy. I just don't believe that the federal government would keep my children's college student records secure. An October report by the House Committee on Government Reform documents data losses by 19 agencies, including financial aid records that the U.S. Department of Education is responsible for. Who trusts that the federal Department of Education could keep records safe?
The second problem is accuracy. I have worked with the individual-level records of Florida, which has had a student-level database in elementary and secondary education since the early 1990s. If any state could have worked the kinks out, Florida should have. But the database is not perfectly accurate. I have seen records of first graders who are in their 30s (or 40s) and records of other students whose birthdays (as recorded in the database) are in 2008 and 2010. The problem is not that the shepherds of the database system are incompetent but that the management task is overwhelming, and there are insufficient resources to maintain the database. Poorly-paid data entry clerks spend their time entering students into the rolls, entering grades, withdrawals, and dozens of other small bits of information. We probably could have a nearly perfect unit-records database system, if we are willing to spend billions of dollars on maintenance, editing, and auditing. In all likelihood, a unit-records database system for all higher education in the U.S. would push most of the costs onto colleges and universities, with insufficient resources to ensure their complete accuracy.
The third problem with such a database is that the structure and size would be unwieldy. Florida and some other states have extensive experience with unit records, and very few researchers use the data that exist in such states. The structures of the data sets are complicated, and beyond the fact that using the data taxes the resources of even the fastest computers, the expertise needed to understand and work with the structures is specialized. Such experts live in Florida's universities and produce reports because they are the experts. But few others are. There would be no huge bonanza of research that would come from a national unit-records database.
A Solution: Anonymous Diploma Registration
Most of the problems with the unit-records database proposal can be solved if we follow the advice of statistician Steven Banks (from The Bristol Observatory) and change the fundamental orientation away from the question, Who graduated? and toward the question, How many graduated? The first question requires an invasion of privacy, expensive efforts to build and maintain a database, and a complex structure for data that few will use. But the second question -- how many graduated? -- is the one to answer for accountability purposes. It's the question that community colleges want answered for their alumni. And it does not require keeping track of enrollment, course-taking, or financial aid every semester for every student in the country.
All that we need is the post-graduation reporting of diploma recipients by institutions, with birthdates, sex, and some other information but without personal identifiers that would allow easy record linkage. Such a diploma registration system would fit with the process colleges and universities already go through in processing graduations. An anonymous diploma registration system could also identify prior institutions -- high schools where they graduated and other colleges where students earned credits that transferred and were used for graduation. Such an additional part of the system could be phased in, so that colleges and universities record the information when they evaluate transcripts of transfer students and other admissions. The recording of prior institutions would address the need of community colleges to find out where their alumni went and how many graduated with baccalaureate degrees.
Under such a system, any college or university could calculate how many students graduated and the average time to degree (as my institution in Florida already can). Any college or university could also count how many students who transferred to other institutions eventually graduated. High schools would be able to identify how many of their own graduates finished college from either in-state and out-of-state institutions. Institutions could figure out what types of programs helped students graduate, and the public would have information that is more accurate and fairer than the current IPEDS graduation statistics. All of these benefits would happen without having to identify a single student in a new database.
A short column is not the place to describe the complete structure for such a system or to address the inevitable questions. I am presenting the idea in more depth this afternoon at the Minnesota Population Center, and I have established an online tutorial describing the idea of anonymous diploma registration in more detail. But I am convinced that the unit-records database idea is wasteful, dangerous, and unnecessary. Anonymous diploma registration is sufficient to address the most critical questions of how many graduate from institutions, and it does not threaten privacy.