Student Lending

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In a case of first impression, the United States District Court for the Western District of Michigan held that direct-to-voicemail messages qualify as a “call” under the Telephone Consumer Protection Act.  The Court’s opinion thus subjects another modern technology to the requirements of express consent and other strictures of the TCPA.

Defendant debt collector Dyck-O’Neal, Inc. delivered 30 messages to plaintiff consumer Karen Saunders’ voicemail using VoApp’s “DirectDROP” voicemail service.  The service did what it was supposed to do by delivering the voicemail messages through the telephone service provider’s voicemail server without actually calling Saunders’ phone number.  Saunders sued under the TCPA, and Dyck-O’Neal filed for summary judgment on the grounds that “ringless voicemails” are not subject to the TCPA.

The Court began its analysis by drawing predictable parallels to traditional voicemails and text messages which are subject to the TCPA.  The Court quoted from the FCC’s infamous 2015 Order, stating that Congress intended to protect consumers from “unwanted robocalls as new technologies emerge” (emphasis added).  The Court examined the technology behind the ringless voicemails, which included the fact that the technology did not call a telephone number assigned to a cell phone account – the statutory prerequisite for applying the TCPA provision at issue.  Nevertheless, the Court gave credence to the calls’ “effect on Saunders” rather than the fact that no call was made to a cell phone number.  According to the Court, that effect was “the same whether the phone rang with a call before the voicemail is left, or whether the voicemail is left directly in her voicemail box.”  The Court reasoned that Dyck-O’Neal did nothing other than reach Saunders on her cell phone through a “back door,” and failure to regulate this “back door” through application of the TCPA would be an “absurd result.”

Many collection agencies and marketing companies have been successfully using the direct-to-voicemail messages, and many others have considered following suit.  The Court’s decision is part of the risk-benefit analysis but, in the age of a quickly-evolving TCPA jurisprudence, another court may reach a different result.  This decision, facially at odds with the statutory text, could turn out to be an outlier or could mark the beginning of a trend.  Troutman Sanders will continue to monitor this line of cases.

As designed and envisioned, student loan ombudsmen are government officials tasked with helping borrowers struggling with repaying their student loans.  Among other varied means, they are designed to protect consumers from unfair debt collection practices and help them understand their repayment options. In recent years, a growing number of jurisdictions, including Connecticut, Illinois, and the District of Columbia, have established such officers. Via legislation proposed on January 10, 2018, and approved by Governor Ralph Northam on April 4, 2018, Virginia is set to join this group on July 1.

Per this now codified bill, the State Council of Higher Education for Virginia, a 13-member state commission, will establish the Office of the Qualified Education Loan Ombudsman (the “Ombudsman”). Intended to work as an advocate for borrowers, this office will:

(1)    “[r]eceive, review, and attempt to resolve any complaints from qualified education loan borrowers, including attempts to resolve such complaints in collaboration with institutions of higher education, qualified education loan servicers, and any other participants in qualified education loan lending”;

(2)    “[c]ompile and analyze data on qualified education loan borrower complaints”;

(3)    “[a]ssist qualified education loan borrowers to understand their rights and responsibilities under the terms of qualified education loans”;

(4)    “[p]rovide information to the public, state agencies, legislators, and other persons regarding the problems and concerns of qualified education loan borrowers and make recommendations for resolving those problems and concerns”;

(5)    “[a]nalyze and monitor the development and implementation of federal and state laws and policies relating to qualified education loan borrowers and recommend any changes . . .”;

(6)    “[r]eview the complete qualified education loan history of any qualified education loan borrower who has provided written consent for such review”

(7)    “[d]isseminate information concerning the availability of the Office of the Qualified Education Loan Ombudsman to assist qualified education loan borrowers and potential qualified education loan borrow”; and

(8)    “[t]ake any other actions necessary to fulfill . . . [its] duties . . . .”

In addition, this law requires the Ombudsman to create and maintain a qualified education loan borrower education course that shall include educational presentations and materials regarding qualified education loans on or before December 1, 2019, and submit a report to the relevant state legislative committees regarding its effectiveness and the state of implementation of this law every year on January 1.  In general, the Ombudsman will strive to help borrowers by renegotiating their loan terms, asking servicers to delay payments, and helping borrowers get into careers where student loan forgiveness is an option, such as in public service.

In defending this enactment, Virginia’s leaders pointed to the state’s worsening student loan problem. Even as student loan debt topped $1.5 trillion by March 31, 2018, more than one million Virginians owed more than $30 billion in student loan debt in 2017. Depressing anecdotes, meanwhile, have come from all corners of the Old Dominion. “Virginians owe more on student loans than we do on credit cards or car loans, but only student loans lack consumer protections,” said Anna Scholl, executive director of Progress Virginia, a liberal advocacy group, when the ombudsman bill was first announced. Scholl continued: “Student loan borrowers should be treated just like everyone else and afforded basic protections to ensure the cost of education doesn’t ruin their financial future.”

This past May, alums of a for-profit program run by the now-defunct Corinthian Colleges, Inc. won a stunning, albeit temporary and partial, victory against the Department of Education: the grant of their motion for a temporary restraining order and preliminary injunction by a magistrate judge sitting on the United States District Court for the Northern District of California.

Background

Under former President Barack H. Obama, the DOE adopted a program of blanket forgiveness of federal student loans taken out by Corinthian alums frequently referred to as the “Corinthian Job Placement Rate Rule.” All that the Obama-era DOE required to ensure full cancellation of any outstanding educational debt was the submission of a short and simple form attesting to a borrower’s enrollment in certain specific programs, during specified periods of time and at specified campuses, whose job placement rates had been misrepresented by the company. Pursuant to this Corinthian Job Placement Rate Rule, the DOE granted complete forgiveness to nearly 27,000 former Corinthian students.

In December 2017, the DOE, now led by Elisabeth “Betsy” DeVos, opted to abandon this expansive formula. With little apparent public input, high-level officials crafted a more individualized approach soon known as “the Average Earnings Rule” that resulted in a denial of any relief to those alums whose “average earnings” were not less than half of the “average earnings” of some unspecified group of students who went to a different, non-Corinthian school. In coming up with these numbers, the DOE turned to the Social Security Administration and invoked an information sharing agreement originally intended to measure and publish “gainful employment” metrics for students’ use. So as to assess the earnings from Corinthian programs to “comparable” ones, the DOE thereupon grouped 61,717 former students who applied to have their loans cancelled by 79 Corinthian programs they attended and received these students’ earnings data from the SSA. The SSA, in turn, provided the DOE with the “mean and median incomes” for each program group based on 2014 data. Per the Average Earnings Rule, those borrowers who enrolled in programs for which the average Corinthian applicants’ earnings were more than half of the “comparable” programs were denied complete loan relief by the DOE under DeVos.

This haphazardly disclosed shift, revealed primarily via individual rejection letters rather than any official public release, piqued the interest of newspapers, and the concern of state officials already suspicious of the Trump Administration, soon thereafter.

Lawsuit Launched

With notice spreading, the inevitable came to pass: on December 20, 2017, three plaintiffs—Martin Calvillo Manriquez, Jamal Cornelius, and Rthwan Dobashi, represented by the Project on Predatory Student Lending, a legal services clinic at Harvard Law School, and Housing and Economic Rights Advocates, a California statewide, not-for-profit legal service and advocacy organization—filed a class action complaint for declaratory and injunctive relief aimed at securing the preservation and application of the Corinthian Job Placement Rate Rule. In their exhaustive pleading, the plaintiffs slammed the new policy as arbitrary, capricious, and therefore illegal pursuant to the Administrative Procedures Act (“APA”) for its violations of the Privacy Act. Enacted in 1974, the Privacy Act prohibits one government agency from sharing individuals’ information with other federal agencies, as the SSA and DOE had done prior to the latter’s creation of the Average Earnings Rule, without meeting certain procedural safeguards and being subject to certain expressly defined exceptions.

Summary of Ruling: A Partial and Tentative Victory at Best

On May 25, the Court agreed, granting these borrowers’ motion for a preliminary injunction. In particular, it ordered the DOE to stop both using the Average Earnings Rule immediately and collecting the loans of certain Corinthian borrowers. “When the . . . [DOE] disclosed to the . . . [SSA] information about the applicants’ Social Security numbers and dates of birth from . . . [the former’s] files, that disclosure violated the Privacy Act,” the Court stated in its 38-page ruling. The Court offered up an unambiguous rejoinder to the DOE’s assertion that its use of SSA data was consistent with the relevant agreement: even if true, privacy laws like the Privacy Act still bar the use of aggregate statistical data to make decisions concerning the “rights, benefits or privileges of specific individuals.”

Despite the huzzah that greeted this ruling, however, the Court’s order was, in fact, rather narrow. Even though the Court granted the motion, it did so purely due to the DOE’s failure to follow the procedures set forth in the APA. Indeed, the ruling explicitly acknowledged DOE’s (mostly) untrammeled statutory and administrative “power to determine the amount of relief a borrower can obtain.” No other law, including the Due Process Clause of the Fifth Amendment, bequeathed a protected interest in the application of the more generous Corinthian Job Placement Rate Rule unto a single one of Corinthian’s encumbered graduates. For that reason, if the DOE readopted its rule in accordance with the strictures of the APA, the Court strongly implied, the Average Earnings Rule would likely be safe from invalidation. Naturally enough, a Department spokesperson promptly touted this implicit recognition in an email to The Washington Post.

 

The Federal Trade Commission recently reached a settlement agreement with a Los Angeles-based company purporting to offer student loan debt relief services for alleged violations of the FTC Act and the Telemarketing Sales Rule.

The FTC filed a complaint against defendants Salar Tahour and his companies, M&T Financial Group and American Counseling Center Corp., as part of an initiative known as “Operation Game of Loans”, a coordinated effort between the FTC and numerous state attorneys general intended to crack down on deceptive student loan debt relief scams. The defendants, who operated as Student Debt Relief Group, SDRG, Student Loan Relief Counselors, SLRC, StuDebt, and Capital Advocates Group, marketed themselves as student loan debt relief servicers. However, according to the FTC the companies engaged in a scheme that defrauded consumers out of $7.3 million.

In its complaint, the FTC alleged that the defendants operated an unlawful student loan debt relief service and engaged in illegal and deceptive practices. These included violating the Telemarketing Sales Rule by contacting consumers on the National Do Not Call Registry and charging advanced fees for their debt relief services.  They were also charged with violating the FTC Act by misrepresenting to consumers that they were affiliated with the U.S. Department of Education. The FTC also alleged that the companies told consumers they were operating under the Federal Student Loan Forgiveness Act of 2012 – an act that was proposed during former President Obama’s administration but was never signed into law.

Per the terms of the settlement order, the defendants are permanently banned from offering any type of debt relief product or service and must pay a monetary judgement of over $12 million –  $11,694,347.49 of the judgment representing the estimated amount of injury caused to consumers by the defendants’ actions.

In mid-May 2018, per multiple reports, John Michael “Mick” Mulvaney, the acting director of the Consumer Financial Protection Bureau, announced plans to fold the CFPB’s Office of Students and Young Consumers into its preexisting Office of Financial Education, itself a part of this agency’s Consumer Education and Engagement Division. During this reorganization, the Office of Financial Education will also subsume the Student Loan Ombudsman, a position created by the Dodd-Frank Act. Because of this rejiggering, to be effectuated concurrently with the hiring of more political appointees and the creation of an office of cost-benefit analysis set to report to Mulvaney alone, the current staff of the Office of Students and Young Consumers will be reassigned to yet unknown positions.

Critics have pounced on and decried this development. As some noted, this proposal would end the Office of Students and Young Consumers’ participation in all investigations that could potentially result in supervisory or enforcement actions against student loan lenders and servicers. The CFPB may still pursue such investigations, many promptly acknowledged. Nonetheless, many fear that Mulvaney’s change may muzzle one of the CFPB’s most aggressive units – the only one exclusively focused on purported misdeeds within the student loan field and solely dedicated to protecting student loan borrowers. Giving voice to these concerns, Senator Patty Murray (D-Wash.), the ranking Democrat on the Senate Health, Education, Labor and Pensions Committee, thundered on May 9: “President Trump is giving student loan corporations the green light to take advantage of students without fear of repercussion and sending a clear message to students that this administration is not interested in their best interests when it gets in the way of corporate profits.”

To close observers, this latest decision was neither unusual nor surprising. Rather, it fit the general pattern of regulatory retreat characteristic of the CFPB since Mulvaney’s still-unconfirmed appointment as director, as two other recent examples aptly show:

  • In February 2018, Mulvaney transferred the CFPB’s Office of Fair Lending from the Supervision, Enforcement, and Fair Lending Division (“SEFL”) to the Director’s Office, thereby making it a part of the Office of Equal Opportunity and Fairness and stripping it of its enforcement powers. “The Fair Lending Office will continue to focus on advocacy, coordination, and education, while its current supervision and enforcement functions will remain in SEFL,” Mulvaney explained in an internal memo. In response, Senator Elizabeth Warren (D-Mass.) accused Mulvaney of “putting the Office of Fair Lending under his control so that he can weaken it” and, as a result, “leaving neighborhoods and consumers across the country more vulnerable to bias.”
  • In the spring of 2018, Mulvaney revealed, via a request for information published in The Federal Register on April 17, that he is mulling ending the public availability of the CFPB’s consumer complaint reporting database. In a frank baring of his position, Mulvaney mused at a banking industry conference, with a copy of the 2010 Dodd-Frank legislation that established the CFPB in hand: “I don’t see anything in here that says I have to run a Yelp for financial services sponsored by the federal government.” For now, the period for comment is scheduled to close on July 16, 2018.

As the student loan total keeps climbing and Congress keeps debating what to do, advice from all corners keeps bombarding the nation’s desperate borrowers. Some tout the use of crowdfunding via sites like GoFundMe and Zero Bound; others encourage borrowers to leverage rebate programs; and in some cases, cryptocurrencies have been hyped as a student loan hack. Most, of course, repeat the old saws—avoid excessive amounts, pay more than the minimum, pay while in school, and sign up for auto-debit, and more—to enrollees and alums alike. Even as these proposals, some madder than others, swirl, a handful of schools and a smattering of employers have attempted to help their students and employees deal with the omnipresent financial specter looming over America’s higher education landscape.  

Not surprisingly, graduates from America’s medical schools often leave with gargantuan debts. According to the Association of American Medical Colleges, 75% of medical students who graduated in 2017 incurred educational loans, with the mean debt standing at $190,694. To alleviate this problem, medical schools have begun experimenting with solutions.  

In April 2018, the Vagelos College of Physicians and Surgeons at Columbia University announced that it would eliminate student loans with scholarships for all students who qualify for financial aid. A second institution—the University of Puerto Rico’s Ponce School of Medicine—has digitized parts of its curriculum, curbing costs in the absence of a large endowment. Tufts University now offers a university-wide loan repayment assistance program, referred to as LRAP, that provides funds to graduates from its college and graduate and professional schools to help qualifying grads with monthly student loan payments. Additionally, the medical school at the University of California—Riverside recently announced the planned launch of the Dean’s Mission Award in the fall of 2018, which will provide two years of free medical education to those who agree to practice in the region. 

Meanwhile, employers from all fields have started offering student loan repayment programs in an effort to target millennial workers saddled with student debt. According to a Forbes article, approximately 4% of employers adopted student loan repayment assistance as part of their benefits package as of August 2016. In recent years, well-known corporate behemoths Staples, PricewaterhouseCoopers, and Aetna have joined this list. Gradifi, the leading provider of student loan repayment and college savings benefit programs to U.S. employers and one of a flurry of new startups in recent years designed to facilitate student loan repayment benefits (including FutureFuel.io, Tuition.io, and Student Loan Genius) today has more than 300 corporate clients, up from 50 in 2016. 

For the most part, these programs are neither unduly complicated for employees nor outlandishly expensive for employers. Generally, an employer makes a regular contribution to an employee’s loan balance, typically $100 a month, even as the employee continues to make their regular monthly payment. Although the employer’s contributions (unlike tuition reimbursement benefits) constitute taxable income, employees still save money on both the balance and the interest assessed for a longer loan term. According to a study commissioned by Gradifi, on a $26,500 student loan with 4% interest, employer assistance of $100 a month can cut down the length of a 10-year loan by about three years, saving employees around $10,000, which not only earns employee loyalty and boosts morale but can attract the latest crop of burdened graduates. 

On May 31, the Fourth Circuit Court of Appeals affirmed a $150,000 sanctions award against three consumer attorneys and their law firms for bad faith conduct and misrepresentations.

The opinion reads like a detective story and lays out, in the Court’s own words, “a mosaic of half-truths, inconsistencies, mischaracterizations, exaggerations, omissions, evasions, and failures to correct known misimpressions created by [consumer attorneys’] own conduct that, in their totality, evince lack of candor to the court and disrespect for the judicial process.”

The litigation arose from a payday loan that plaintiff James Dillon obtained from online lender Western Sky.  Later, Dillon engaged attorneys Stephen Six and Austin Moore of Stueve Siegel Hanson LLP and Darren Kaplan of Kaplan Law Firm, PC who filed a putative class action against several non-lender banks that processed loan-related transactions through the Automatic Clearing House network.  Defendant Generations Community Federal Credit Union promptly moved to dismiss Dillon’s lawsuit on the basis of the loan agreement’s arbitration clause.  In response, Dillon challenged authenticity of the loan agreement and a two-year-long dispute ensued during which the district court refused to send the case to arbitration based on Dillon’s authenticity challenge; Generations appealed the district court’s decision; and the Fourth Circuit vacated it and remanded the case for further proceedings on the arbitration issue.  Significantly, when questioned by both the district court and the Fourth Circuit, Six maintained authenticity challenge and represented that he had drafted the complaint without the loan agreement and that Dillon’s claims do not rely on the loan agreement.

Six’s representations regarding the contents of the complaint were problematic given the complaint specifically referenced the loan agreement and its terms.  Evidence uncovered during arbitration-related discovery showed that Dillon possessed the loan agreement all along and, crucially, that he supplied his counsel with a copy of the agreement a week before the complaint was filed.  The latter piece of evidence was discovered only as a result of forensic examination of Dillon’s computer.  Once this evidence came to light, Dillon responded to Generations’ requests for admissions that the loan agreement was authentic.

Generations moved for sanctions against Dillon’s attorneys.  Instead of admitting their wrongdoing, Kaplan argued that there was never any challenge to authenticity, and Six argued that he still doubted authenticity even though he signed Dillon’s admissions that the loan agreement was authentic.  Invoking its inherent authority to punish bad faith behavior, the district court sanctioned Six, Kaplan, and their law firms jointly, ordering them to pay the defendants $150,000 in attorneys’ fees.  Moore was held liable jointly for only $100,000 of the total amount due to his lesser role in the bad-faith conduct.  The lawyers appealed.

The Fourth Circuit summarily rejected their arguments that neither the rules of ethics nor the Federal Rules of Civil Procedure required them to disclose the copy of the loan agreement before discovery commenced.  “These arguments miss the point.  Counsel are not being sanctioned for their failure to disclose the Dillon copy of the Western Sky loan agreement.  Rather, counsel are being sanctioned for raising objections in bad faith—simultaneously questioning (and encouraging the district court to question) the authenticity of a loan agreement without disclosing that the Plaintiff provided them a copy of that loan agreement before the complaint was filed.”

Discovery in consumer litigation is often asymmetrical and focuses on defendants’ obligations.  This opinion is a good reminder that the rules apply to plaintiffs too and that the courts will not condone a “crusade to suppress the truth to gain a tactical advantage.”

On March 31, 2018 the United States crossed a milestone. As of that date, Americans’ student loan debt topped $1.5 trillion, exceeding the share of consumer debt held by auto loans ($1.1 trillion) and credit cards ($988 billion), and jumping by more than $521 billion in roughly six years.

A report released in May by the Board of Governors of the Federal Reserve System laid bare the grim details behind this headline:

  • 42% of people who have gone to college took out debt. While a majority of this percentage took out student loans, 30% had some other form of debt, like card credit debt or a home equity line of credit. Additionally, a larger percentage of recent graduates have taken on student debt.  Still, borrowing has declined since its peak during the 2010-11 school year.
  • Students who obtained a bachelor’s degree in 2016 owed an average of $28,400 – up from $22,100 in 2001.  This number does not include those students who attended or graduated from for-profit schools.
  • In 2017, 20% of borrowers fell behind on their payments, up slightly from 19% in 2016 and 18% in 2015. Notably, those who never completed their education or secured any kind of degree encountered the most persistent trouble. The delinquency rates stood at only 11% for borrowers with bachelor’s degrees and at a minuscule 5% for those with graduate degrees. This gap in delinquency rates explained the fact that those with more debt often encounter fewer repayment difficulties.
  • Meanwhile, a publication released by the American Association of University Women (“AAUW”) exposed the worrisome persistence of a large gender gap. According to the AAUW, as of May 2018, women hold nearly two-thirds of all student debt in the United States. In addition, the average woman with a bachelor’s degree owes $2,740 more than her male contemporary, while African-American women assume more student debt on average than do members of any population segment.

As disclosed in a notification filed on May 3, in FMS Investment Corp. v. United States (“the Notice”), the Department of Education (“DOE”) will soon stop using private debt collectors to handle overdue student loan payments.  

In this post-award bid protest filed on February 9, 2018, in the United States Court of Federal Claims, twenty plaintiffs challenged the DOE’s decision to award contracts for collection of defaulted student loans to just two entities. In the Notice, submitted in the midst of the parties’ extensive motion practice, the DOE revealed its plan “to significantly enhance its engagement at the 90-day delinquency mark in an effort to help borrowers more effectively manage their [f]ederal student loan debt.”  

As the Notice explained, the parties “under contract with . . . [the DOE]” enjoy “sufficient capacity to absorb the number of accounts expected to need debt collection while the process for transitioning to th[is] new approach is developed and implemented,” thereby eliminating any actual need “for additional” private collection agencies. Thus, the DOE promised to cancel the challenged solicitation in general and terminate the specific awards to two entities on the basis of convenience, thereby rendering the bid protest entirely moot. The DOE then filed a motion to dismiss the case entirely, which was granted on May 25. 

So far, the finer details of the DOE’s proposal remain under wraps. Apparently, the DOE ultimately intends to authorize the same companies that service federal student loans to collect on any overdue payments. These “enhanced outreach efforts” are expected to “reduce the volume of borrowers that default, improve customer service to delinquent borrowers, and lower overall delinquency levels,” eventually enabling borrowers to strike other arrangements in lieu of default.  

Still, the likely savings may be considerable, as the federal government spent over $700 million to collect the loans of less than seven million defaulted borrowers, equivalent to what it pays to service 33 million borrowers who pay their loans every month. This move by the DOE is part of its bigger plan to overhaul student loan servicing. For example, its Office of Federal Student Aid is currently working on “Next Gen,” an attempt to modernize the processing and repayment of this ever-expanding slice of consumer debt.

Even before it succeeded in finally quashing a civil investigative demand (“CID”) issued by the Consumer Financial Protection Bureau on April 21, 2017, the Accrediting Council for Independent Colleges and Schools (“ACICS”) notched a second victory against a federal adversary in April 2018.

Background 

Established in 1912, upon the request of Benjamin Franklin Williams, President of Capital City Commercial College of Des Moines, Iowa, ACICS at one point accredited 245 institutions of higher education offering undergraduate and graduate diplomas and degrees in both traditional formats and through distance education throughout the United States. The Secretary of Education (“Secretary”), the head of the United States Department of Education (“DOE”), first recognized ACICS, then known as the Accrediting Commission for Business Schools, in 1956. In 1985, ACICS requested and won an expansion of its scope to include the accreditation of master’s degree programs; in 2006, ACICS sought another expansion of scope so as to accredit institutions that offer programs via distance education, one soon granted by the Secretary. In sum, for over fifty years, the Secretary periodically assessed and consistently granted recognition to ACICS, thereby empowering it to provide schools with the seals of approval necessary to establishing their right to participate in federal student aid programs.

ACICS’ Obama-Era Travails 

The pattern changed in 2015.

In that year, ACICS fell under sudden scrutiny with the collapse of Corinthian Colleges, a for-profit institution accredited by ACICS until its final days. Naturally enough, a subcommittee of the United States Senate requested information from ACICS in November 2015. Within five months, thirteen state attorneys general requested that the DOE withdraw recognition from ACICS as a federally-recognized accreditor. Unfortunately, this negative publicity only intensified with the failure of one more chain of for-profit institutions accredited by ACICS, ITT Technical Institute. As its opponents never tired arguing, from 2013 through 2016, 52% of federal financial aid dollars received by ACICS-approved schools went to institutions that have faced some sort of state or federal investigation, including Westwood College, FastTrain College, and the Career Education Corporation’s Sanford Brown chain. For these reasons, in spite of its reforms, ACICS would become a “highly visible” target in the Obama Administration’s multiyear crackdown on for-profit higher education.

Impelled by these pressures, DOE staff recommended the termination of ACICS’ status as a federally recognized accrediting agency in the summer of 2016. As their lengthy report concluded, ACICS’ “monitoring regime appears insufficient to deter widespread misconduct regarding placement, recruiting and admissions.” A week later, an 18-member panel, one appointed by the United States Congress and the DOE, known as the National Advisory Committee on Institutional Quality and Integrity (“NACIQI”) endorsed this recommendation by a vote of ten-to-three. (NACIQI is charged with “provid[ing] recommendations regarding accrediting agencies that monitor the academic quality of postsecondary institutions and educational programs for federal purposes.”) With NACIQI’s ratification in hand, the senior department official (“SDO”) charged with its review terminated “the department’s recognition of ACICS as a national recognized accrediting agency” on September 22, 2016. The following December, after considering ACICS’ October appeal, the Secretary upheld this expulsion.

In the ensuing months, DOE directed ACICS-accredited institutions to find a new accrediting agency by June 12, 2018. Under the terms of Provisional Program Participation Agreements, ACICS-accredited institutions were required to submit an application to a new accrediting agency by June 12, 2017, and host a site visit by the new agency by February 28, 2018. Per these contracts, DOE possessed the authority to (1) terminate federal student aid funding for new students if an institution failed to meet either deadline and (2) require a letter of credit or other financial guarantee if an institution failed to meet the second deadline or obtain an extension.

ACICS’ Lasting Victory?  

While these agreements were struck, in accordance with the Administrative Procedures Act, ACICS promptly appealed the Secretary’s decision to the United States District Court for the District of Columbia. On March 23, 2018, this trial court granted ACICS’ motion for summary judgment “with respect to . . . [its] claims that the Secretary had violated the Administrative Procedure Act by failing to consider certain evidence submitted by . . . [ACICS] in the administrative proceeding.” In particular, it faulted the Secretary for his failure to consider both all available and relevant information, including 36,000 pages of evidence submitted by ACICS in response to a specific request from the Office of the Under Secretary, and the substantial evidence that ACICS provided of its placement verification and data integrity programs. As a result, the case was remanded back to the Secretary, and no final decision as to ACICS existed.

On remand, the DOE’s current Secretary, Elisabeth Dee DeVos, responded with two orders. First, she initiated further review of ACICS’ original petition and supporting materials. She gave the relevant SDO until July 30, 2018, to do so. Second, DeVos restored ACICS’ status as a federally recognized accrediting agency effective as of December 12, 2016, the date that her predecessor terminated its recognition. Consequently, at least until the summer doldrums, ACICS and the institutions that it has previously accredited can breathe a little easier, even though the latter must now decide whether to pursue applications to other accreditors or await the DOE’s final decision.