Not With a Bang But With a Whimper: For-Profit Corinthian Colleges May Close Some Campuses

Yesterday's New York Times carried a story in its Business Section about Corinthian Colleges, a for-profit company that operates under the names of Heald, Everest and WyoTech.  Corinthian has 72,000 students on more than 100 campuses.

Recently, Corinthian announced that it did have enough operating cash to stay in business after the end of this month, and it persuaded the federal government to release some federal student aid money in spite of the fact that it admitted fraud in the reporting of student grades and job placements.  Corinthian has also been sued by the California Attorney General based on allegations that it used high-pressure tactics to recruit vulnerable students--including single mothers.

Like most for-profit colleges, Corinthian relies on the federal student aid program to stay in business. It gets about 90 percent of its revenue from the federal government--about $1.4 billion a year.  DOE's emergency cash infusion (about $16 million, according to the New York Times) may be enough to stave off closing for awhile at least. But that might not be a good thing for students.

As the Times article stated:

If, as critics contend, many Corinthian students are going deeper into debt to gain useless educations, some of those students might have been better off is the Education Department had stuck to its guns and forced Corinthian to close. Federal student loan rules do not require students to repay loans that were canceled while they were enrolled, leaving them unable to graduate.

In most instances, we should not be happy to see a college close, but the for-profit industry is a special case. As Senator Tom Harkin's Committee outlined in its report on for-profit colleges, this sector of higher education only educates about 11 percent of postsecondary students but collects about 25 percent of federal student aid money.  The for-profits have the highest student-loan default rate in the higher education industry; according to DOE, one in five for-profit college students default within three years of beginning repayment. 

And there is ample evidence that for-profit colleges have exploited low-income individuals, encouraging them to take out loans to pay for programs that don't lead to well-paying jobs.  Even if they believe they have been defrauded, these students often have no recourse to the courts, because many of the for-profits require students to sign agreements to arbitrate disputes rather than sue.

Indeed, the Ninth Circuit ruled last year that Corinthian students were compelled to arbitrate their misrepresentation claims against Corinthian--claims that were brought under California's unfair competition law, false advertising law, and California's Consumer Legal Remedies Act. 

To its credit, the Obama administration has been trying to impose regulations on the for-profits, but it suffered a setback in the courts when the for-profits were successful in getting some of the Department of Education's regulations thrown out.  Recently, DOE issued a second set of proposed regulations, but these new regulations will probably just lead to more litigation.

So we should not be sorry to see Corinthian Colleges close--if that event comes to pass. In fact, we should hope this whole unseemly industry collapses.  So far,  the federal government has not been successful in effectively regulating the for-profit college industry.  But perhaps students will gradually wake up to the fact that they would probably be better off enrolling in low-cost community colleges, where they might not need to take out student loans, than to matriculate at high-cost for-profit institutions that have a very poor track record regarding job placement, degree completion, and student-loan defaults.


References

Ferguson v. Corinthian Colleges, 733 F.3d 928 (9th Cir. 2013).

Floyd Norris. A For-Profit College Falters as Federal Cash Wanes. New York Times, June 27, 2014.

U.S. Senate Committee on Health, Education, Labor and Pensions. For Profit Higher Education: The Failure to Safeguard the Federal Investment and Ensure Student Success. 112 Congress, 2d Session, July 30, 2012.

Yet another injustice: For-profit colleges force ripped-off students to arbitrate their claims rather than seek relief in the courts

The federal student loan program is a metaphorical train wreck--the wreck of a passenger train crowded with hapless commuters. The injured are strewn all over the landscape waiting to be treated.

The federal student loan program is a metaphorical train wreck.

If President Obama were a compassionate man, he would introduce legislation to assist the people who have been hurt by their participation in the federal student loan program. But he's not doing that. To extend the train-wreck metaphor further, Obama wants to close his eyes to the carnage on the railroad tracks and focus all his attention on designing a safer railroad car.

The President has done nothing to ease the plight of millions of young people who are burdened by student-loan debt and can't find decent jobs. Instead, he is pushing a college rating system that supposedly will help students make better choices about where to attend college. And he also wants more students to sign up for long-term student-loan repayment plans.

 

Of course, everyone knows that the most egregious student-loan abuses involve the for-profit colleges, which have been accused of high-pressure recruiting tactics and misrepresentations about students' job prospects. From time to time former students have sued for-profit colleges under state consumer protection laws, seeking damages based on claims that they'd been ripped off.

 

But the for-profits have figured out a clever way to stop lawsuits against them. Many of them force students to sign arbitration agreements when they enroll. Under these agreements, students waive their right to sue the college, even if they later believe they were induced to enroll based on misrepresentations. Instead, students are forced to submit their claims to arbitration, which most often benefits the college, not the student. More on this later.

Ferguson v. Corinthian Colleges: Students at for-profit colleges are denied right to a jury trial

Here's a recent example. In Ferguson v. Corinthian Colleges, Inc., decided last August by the Ninth Circuit Court of Appeals, Kevin Ferguson and Sandra Muniz, former students at schools operated by Corinthian Colleges, Inc., sought to bring a class action law suit against Corinthian based on alleged misrepresentations. These were their claims, as outlined by the court:

The thrust of [the former students'] complaint was that Corinthian systematically misled prospective students in order to entice enrollment. Corinth allegedly misrepresented the quality of its education, its accreditation, the career prospects for its graduates, and the actual cost of education at one of its schools. Students were also allegedly misinformed about financial aid, which resulted in student loans that many could not repay. Corinthian also allegedly targeted veterans and military personnel specifically, so that it could receive funding through federal financial aid programs available to those people.

Unfortunately for Ferguson and Muniz, both had signed arbitration agreements with Corinthian or one of its subsidiaries as part of the admission process. Under these agreements, they waived the right to sue Corinthian and agreed to arbitrate any claims under the Federal Arbitration Act (FAA).

When Ferguson and Muniz sued in federal court, Corinthian moved to dismiss their case on the grounds that they were compelled to arbitrate. A federal judge granted Corinthian's motion in part but allowed the former students to seek an injunction against Corinthian in federal court.

On appeal, the Ninth Circuit reversed, ruling that all claims against Corinthian must be arbitrated, including any request for injunctive relief. The Federal Arbitration Act "reflects an 'emphatic federal policy' in favor of arbitration," the court said. Under the Supremacy Clause of the United States Constitution, "the FAA preempts contrary state law" and prevents the states from allowing a party to go to court to resolve claims that the party had previously agreed to submit to arbitration.

Why is Ferguson v. Corinthian Colleges, Inc. a bad decision for students?

Why do the for-profits require students to sign arbitration agreements as a condition of enrolling? Forcing dissatisfied students to arbitrate their claims is advantageous to the corporate universities because students must pay a part of the arbitrator's cost, something many students can't afford to do. In addition, the for-profits prefer to go before an arbitrator rather than a jury, which might be quite sympathetic to a student's claim that he or she was induced to enroll in a for-profit college based on false promises and misrepresentations.

 

Moreover, arbitrators generally do not award punitive damages, their power to grant injunctive relief is limited if not non-existent, and an arbitrator's decision is usually private and not subject to public inspection. No wonder the for-profits require their students to sign agreements promising to arbitrate their complaints and not file lawsuits.

Congress should pass a law barring for-profit colleges from forcing students to sign arbitration agreements

Under the Federal Arbitration Act, as interpreted by the U.S. Supreme Court, states do not have the authority to allow ripped-off students to sue for-profit colleges under state consumer-protection laws if those students signed arbitration agreements, which many of them are forced to do as a condition of enrolling in a for-profit college. This is wrong.

 

President Obama should introduce legislation that prohibits for-profit colleges from forcing students to sign arbitration agreements and specifically permits students to sue for-profit colleges for fraud or misrepresentation under appropriate state consumer-protection laws. The legislation should give students the right to a jury trial, and prevailing students should receive attorney fees and punitive damages when appropriate.

 

Of course, President Obama will never introduce such legislation, and Congress would never pass it if he did. The for-profits are too politically powerful for such a law ever to be adopted.
 

Rather than tackle the abuses in the for-profit college industry, President Obama prefers to introduce a complicated and toothless rating system for colleges--a rating system that will do nothing to reduce the harm so many students suffer when they borrow money to attend a for-profit college or university.

References
 

Ferguson v. Corinthian Colleges, Inc., 733 F.3d 928 (9th Cir. 2013).