Saturday, April 20, 2019

Dicent v. Kaplan University: An unhappy student sues a for-profit university, but the Third Circuit forces her to arbitrate her claims

Maria Dicent enrolled in an online legal studies program at Kaplan University in 2014. She did not have a good experience. In 2017, she sued Kaplan in a federal court, accusing the for-profit university of making false claims and disseminating false advertisements.

According to Ms. Dicent, Kaplan lured her into enrolling in Kaplan's online program by using deceptive tactics. She said she had not been informed that she would need 180 hours to graduate, far more hours than a typical four-year degree program requires and that she had not been able to keep her eBooks, which she apparently paid to use. She also said Kaplan's financial aid office retaliated against her because she refused to allow her photo to be used to promote Kaplan.

Unfortunately for Ms. Dicent. she signed an arbitration agreement when she enrolled at Kaplan back in 2014. In that agreement, Dicent promised not to sue Kaplan and to arbitrate any claims she might have against the for-profit. She also agreed to waive her right to a jury trial.

Based on the arbitration agreement, a federal trial court threw out Dicent's suit and ordered her to arbitrate her clam. Dicent, who pursued her case without a lawyer, then appealed to the Third Circuit Court of Appeals, which sided with the trial court.

Dicent argued on appeal that she was not aware of the arbitration agreement, but the Third Circuit did not buy her argument. A clearly labeled Arbitration Agreement was included in Dicent's enrollment packet, the court noted; and Dicent admitted having signed the packet with an e-signature.

Dicent v. Kaplan University is an unfortunate decision. The Obama administration recognized that for-profit colleges were using arbitration agreements to prevent students from suing them for fraud or other misconduct. Obama's Department of Education adopted a regulation forbidding the for-profits from forcing their students to sign arbitration agreements.

 Betsy DeVos, President Trump's Secretary of Education, scuttled the Obama ruled shortly after taking office, but a federal court ordered her to implement it. In light of that ruling, Secretary DeVos released new guidance to the for-profit colleges, instructing them to drop enforcement of mandatory arbitration agreements.

In recent years, a few courts have invalidated arbitration agreements on various grounds. Some courts have labeled them adhesion contracts--agreements which a stronger party forces a weaker party to sign on unfavorable terms. Other courts have looked at the inherent unfairness in some of these agreements. For example, a California court refused to enforce an arbitration agreement that required California students to arbitrate their disputes against a medical-training school in Indiana.

Poor Ms. Dicent. Acting without an attorney, she was probably unaware of the legal arguments that can be made against arbitration agreements that for-profit colleges require students to sign as a condition of enrollment. She may not have known that the Obama administration recognized these agreements for what they are--a shyster tactic to protect for-profit colleges from being sued for fraud.

I feel quite certain that Ms. Dicent was telling the truth when she said she did not know about the mandatory arbitration agreement until Kaplan submitted it in district court. Almost all students sign long, turgid documents as a condition of enrollment, and most of them sign without reading. What would be the point? When students enroll at a for-profit college, they are enrolling on the college's terms, and they realize they have no power to negotiate.

What is so bad about arbitration agreements? First of all, the complaining party is usually required to pay half the arbitrator's fees, so arbitration may be more expensive for the student than a lawsuit. Second, arbitration agreements often bar students from banding together to file class actions suits, which is virtually the only way students can obtain justice against the well-funded for-profits with their battalions of lawyers.

Finally, it is well known that arbitration generally favors the corporate party. That is why banks, financial-services institutions, and for-profit colleges force their customers to sign them. The arbitrators know they will see a defrauded student only once, but they will see the corporate party again and again. If they get a reputation for siding with the underdog, the corporations won't choose them to arbitrate their disputes.

The for-profits know they will repeatedly be accused of defrauding their students. The best way to deal with this constant threat is to get the students to promise not to sue before allowing them to enroll. Then when students get defrauded--as many of them will--there will be damn little they can do about it.


References

Dicent v. Kaplan University, Civil Action No. 3:17-cv-01488 (M.D. Pa. June 15, 2018), aff,d No-18-2982 (3d Cir. Jan. 3, 2019).

Dicent v. Kaplan University, WL 158083, No-18-2982 (3d Cir. Jan. 3, 2019) (unpublished opinion).

Kreighbaum, Andrew (2019, March 18).  DeVos Tells Colleges to Drop Arbitration Agreements, Inside Higher Ed.


Tuesday, April 16, 2019

More than a thousand college campuses closed over the past five years: The for-profit scourge

Earlier this month, Chronicle of Higher Education reported that 1,200 college campuses have closed over the last five years, displacing nearly half a million students. As Chronicle reporters Michael Vasquez and Dan Bauman explained, most of these campuses were operated by for-profit colleges, which often have campuses in multiple locations.

For example,Vatterot College, Education Corporation of America, and Dream Center Education Holdings closed their doors during the last six months, and together these colleges operated 126 campuses.

As the Chronicle article pointed out, college closures can be traumatic events for students, who are forced to interrupt their studies and search for replacement colleges. Low-income and minority students are disproportionately affected. Seventy percent of the students who attended the closed institutions received Pell Grant aid, and 57 percent are black or Hispanic.

Betsy DeVos's Department of Education is doing everything it can to prop up the venal for-profit college industry, and yet this sleazy sector continues to be under stress. The for-profits are facing increased competition from public universities, which are rolling out their own online degree programs and encroaching on the for-profit colleges' target population. Arizona State University and Purdue University, both public institutions, now have big online footprints.

In addition, more and more Americans have figured out that a degree from a for-profit college almost always costs more than a comparable degree from a public institution and rarely leads to a good job. No wonder the student-loan default rate among for-profit-college students is so high. More than half of the students who borrow money to attend a for-profit college default within 12 years after beginning repayment--four times the default rate of students who attended community colleges.

It is regrettable that so many for-profit college students are having their lives disrupted by the closure of their institutions, but these shutdowns are a blessing in disguise.  Some students will transfer to low-cost community colleges, which will allow them to take out smaller student loans or avoid student loans altogether.  Those that transfer to public institutions are likely to  have more rewarding educational experiences than they were getting at these dodgy for-profit outfits.

In short, it may seem shocking that so many for-profit colleges are closing, but it is undoubtedly a good thing. In spite of everything that Trump's Department of Education has done to aid the for-profit college racket, this industry is in trouble. The for-profit colleges are a blight on American higher education. Let us look forward to the day when they are extinct.


Friday, April 12, 2019

Democrats are "woke" about Public Service Loan Forgiveness: Senators Kaine and Gillibrand file legislation to overhaul PSLF

The Trump Administration hates the Public Service Loan Forgiveness Program (PSLF). Signed into law by President George W. Bush in 2007, PSLF allows student-loan debtors who work in public-service jobs to have their student loans forgiven if they make 120 student-loan payments in a qualified repayment plan.

The first PSLF participants to have accumulated 120 student-loan payments became eligible for debt relief in 2017--10 years after the program was introduced. As has been widely reported, the Department of Education approved less than 1 percent of the applications for PSLF forgiveness that it had processed as of  September 2018.  In fact, DOE said 70 percent of the applicants were not eligible for PSLF participation.

So far, over one million student-loan borrowers have applied to DOE to have their employment certified as PSLF eligible, and millions more are counting on PSLF for debt relief but haven't applied yet. It's a mess.

And it is especially a mess for people who borrowed $100,000 or more to get a law degree or other graduate degree. According to the American Bar Association, the average debt load for people who attended a private law school is $122,000. For many of the people who accumulated six-figure student-loan debt to finance their graduate studies, PSLF is the only viable option for debt relief.

Betsy DeVos, Trump's Secretary of Education, apparently does not care that her agency has frightened or angered millions of people who are counting on PSLF to manage their student loans. According to a news report, a senior DOE official said that DOE does not support PSLF and would not implement it if it were not legally obligated to do so.

But the Democrats are "woke" about this problem. This week, Senators Tim Kaine and Kirsten Gillibrand introduced a bill to overhaul the PSLF program. Thirteen Democratic senators signed on as co-sponsors, including all the U.S. Senators running for President (Elizabeth Warren, Kamala Harris, Bernie Sanders, Amy Klobuchar and Cory Booker).

The Kaine-Gillibrand proposal defines eligible public-service organizations broadly to include all federal, state, and local government agencies and all charitable organizations that qualify  for tax-exempt status under 501(c)(3) of the tax code. As Jason Delisle pointed out in a 2016 analysis of PSLF, that definition applies to one quarter of the American workforce.

In fact, the bill's definition of public service differs markedly from the one developed by DeVos's DOE. DOE defines a public service organization as one that is primarily involved in public service,thus excluding organizations like the American Bar Association, which is primarily devoted to serving the legal profession, although it engages in some public service work.

The Kaine-Gillibrand bill also specifies that all student-loan debtors qualify for PSLF, regardless of the federal loan program or repayment plan they are in. This provision also expands eligibility for PSLF participation far beyond what the DeVos DOE permits.

I support passage of the Kaine-Gillibrand bill, and I hope it is enacted by Congress. But we should not deceive ourselves about the cost of PSLF. Thousands of people seeking debt relief under PSLF owe $100,000 or more. Most of these people are making income-based monthly payments on their loans that are not large enough to cover accruing interest. Their debt load is increasing month by month as accrued interest gets capitalized and added to their loan balances. If these people's student-loan debts are forgiven after 10 years, the government will essentially be forgiving the entire amount that was borrowed plus a lot more due to the accrued interest that will also be forgiven.

Remember Josh Mitchell's story in Wall Street Journal about Mike Meru, who borrowed $400,000 to go to dental school? Dr. Meru is making payments of about $2,000 a month in an income-based repayment plan, but his debt has grown to $1 million due to accrued interest. If Meru gets a qualified public-service job and holds it for ten years, DOE will forgive the entire $1 million plus additional interest!

This is a huge problem, and the Kaine-Gillibrand bill won't solve it. Under the GRAD Plus program, graduate students can borrow the total cost of their graduate education--tuition, books, and living expenses--no matter what the cost. It is not surprising then that graduate-school tuition prices went up dramatically after the GRAD Plus program was enacted.

If the bill becomes law, the Kaine-Gillibrand proposal will give relief to millions of student-loan borrowers. But the bill is just a stop-gap measure. As I have said, the only solution to the student-loan crisis is bankruptcy relief for honest debtors who can't pay back their student loans.  More than 45 million Americans have outstanding student loans. I think most of them would vote for a presidential candidate who endorses bankruptcy relief for distressed student-loan debtors.




Thursday, April 11, 2019

Rep. Maxine Waters didn't ask mega-bank executives a stupid question at a congressional hearing; She asked them the wrong question

Congresswoman Maxine Waters, Chair of the House Financial Services Committee, asked seven big-bank executives an ignorant question when she had them appear before her committee earlier this week.

“What are you guys doing to help us with this student loan debt?" Waters asked the bankers.  Three of them  separately informed Waters that their banks have been out of the federal student-loan business since 2010, when the federal government began dispersing student loans directly. 

Ms. Waters apparently didn't know that, which must have been embarrassing to her. Nevertheless, Waters did not ask a stupid question. She asked the wrong question. In fact, several banks are involved in the private student-loan market: Wells Fargo, Citizens Bank, Suntrust, and Sallie Mae--to name a few. 

And it is a dirty business. Several banks are bundling their private student loans and selling them to investors as student-loan backed securities called SLABS, very much like the mortgage-backed securities that went south during the 2008 home-mortgage crisis. 

Moreover, most banks require student borrowers to find co-signers for their private student loans, which usually means Mom and Dad.  If a student defaults on a private student loans, the co-signer is on the hook to pay back the debt.  Can a co-signer discharge a child's student loan in bankruptcy? Probably not.  When Congress passed the so-called Bankruptcy Reform Act in 2005, it inserted a clause in the Bankruptcy Code making private student loans nondischargeable in the absence of "undue hardship."

So this is the question Congresswoman Maxine Waters should have asked the bankers who were arrayed before her at the Financial Services Committee hearing yesterday. "Do you support a change in the Bankruptcy Code that would make student loans dischargeable in bankruptcy like any other consumer debt?"

Put another way, she might have asked the bankers if they support Representative John Katko's bill to remove the "undue hardship" language from the Bankruptcy Code, which would allow destitute debtors to shed burdensome student-loan debts in the bankruptcy courts. How would the bankers have answered if Maxine Waters had asked them the right question? 

And here are a two questions for Congressman Waters:

Do you support Congressman Katko bill, which calls for taking the "undue hardship" language out of the Bankruptcy Code? 

Will you agree to be a co-sponsor of Representative Katko's bill, even though Mr. Katko is a Republican?

Megabank CEOs: "We don't know nothin' bout no student loan program."





Thursday, April 4, 2019

Commercial student-housing securities have high delinquency rates: Student slums on the Mississippi River flood plain south of LSU:

I live on LSU Avenue about two blocks from Louisiana State University. I also live about a block from Highland Road, an old thoroughfare dating back to the early 19th century. Highland Road received its name because it is above the Mississippi River flood plain--on high land.

Over the past few years, I have seen a frenzy in the construction of private student-housing apartment complexes in the flood plain not far from my house. Literally thousands of units stretch for several miles south of the LSU campus.

How are they financed? A lot of them are financed through Commercial Mortgage Backed Securities (CMBS), which are securities made up of student-housing commercial mortgages. They are very similar to the ABS (asset backed securities) that went belly up during the 2008 housing crisis as overpriced homes went into foreclosure by the thousands.

Now here is an interesting development. According to Commercial Real Estate Direct, delinquency rates for CMBS investments in student housing have "skyrocketed" by 144 percent over the past 12 months. This source reports that the delinquency rate for CMBS investments in student housing has increased nearly three-old to 9.11 percent.

Another source in the CMBS industry reported that student-housing delinquencies in CMBS 2.0 investments (CMBS entities created since the 2008 housing crisis) are 7 times the delinquency rate of the overall CMBS market.

Why the spike in delinquencies in the student housing sector? I can think of only one reason: oversupply. All over the United States, we see private, student-targeted apartment complexes springing up around college campuses.

There are simply too many apartments for the student housing market.  I see this first-hand in Baton Rouge. I'm guessing that delinquencies are ticking upward all across the country because a lot of these student-targeted apartment complexes have too many empty units.

The investors who are financing the student-housing frenzy around college campuses don't care if they are contributing to oversupply. They build the apartment complexes and then bundle them into mortgage-backed securities, which are sold to investors. It is the investors who bought the securities who will take the hit when delinquency rates go up.

 Oversupply hurts the older apartment complexes the most. Students naturally move from older units to newer units, which often have more amenities, like club houses and swimming pools  Many of the older  student-housing complexes were shoddily constructed and soon develop a tawdry appearance. As vacancy rates rise, less money is spent on maintenance and repair.

In my town, the glut in student housing around LSU is slowly creating one big slum. Massive overdevelopment of student housing has overtaxed the road system as thousands of young people travel in and out of the flood plain to get to the LSU campus or to their part-time jobs.

The city of Baton Rouge appears to be doing nothing to regulate the student-housing market or to limit the number of apartment complexes that can be squeezed into the flood plain. I suspect the real estate developers are making strategic campaign contributions to our elected officials to look the other way while the speculators trash the city.

College students are a massive population of young people with money to spend. They all have access to about $50,000 in federal student-loan money during their undergraduate years and an almost unlimited amount of new student-loan money if they go to graduate school. The students have the cash to live in near-luxury level apartments. 

But if the levees fail east of the Mississippi River, the flood plain will be inundated in about ten minutes. All this slum housing will be swept away and thousands of people will drown. But of course the levees won't fail. We can count on the Corps of Engineers to keep our college students safe.








Monday, April 1, 2019

University of Kentucky college students go on hunger strike over food insecurity. UK President Eli Capilouto makes $790,000 per year.

More than sixty students at the University of Kentucky began a hunger strike this week. Some will go cold turkey (so to speak) and take nothing but water and edibles required by medical necessity--which I presume will not include Snickers. Others will restrict themselves to one meal a day.

Why are they refusing to eat? Are they calling attention to the student loan crisis, which has destroyed the lives of millions? Are they calling for student-debt relief? Are they asking for student-loan debt forgiveness?

No, they are going on a hunger strike because they might get hungry! Well--that's not quite accurate. Actually, the strikers are protesting what they say is the university's inadequate response to students' food and housing insecurity.

These are the strikers specific demands as reported by a local newspaper:

1) They want UK to establish a Basic Needs Health Center "focused on helping students with housing and food-related challenges."

2) They want the University to establish a Basic Needs Fund, which would distribute small cash grants to students with food or housing issues.

3) Finally, the strikers want the university to hire a full-time person dedicated to helping students meet their food and housing needs.

UK's president, Eli Capilouto, roused his public relations staffers from their slumbers, and the PR team pumped out a suitably sensitive and vapid public response. Here is a sample:

"[W]hile we may disagree in some of our specific approaches [to hunger]," Capilouto purred sympathetically, "we will never disrespect the concerns that have been raised or those who have raised them."  So--no tear gas or pepper spray. That's a relief! No one wants to get tear gassed on an empty stomach.

Capilouto went on to say that UK had cut the cost of its most popular meal plan and expanded the operating hours for the university food pantry. He also said the university was raising money for an emergency fund.

"These next steps are a beginning, not an end," Capilouto assured the strikers. "This is a journey we are on--as a campus community and as compassionate, caring citizens in a larger world."  Don't you love that journey bullshit?

And then President Capilouto concluded his feeble statement with a flourish: "After all, we share the same goal--a commitment to making progress  in ways that ensure the health and wellness of our students as we prepare them for lives of meaning and purpose."

Wow! I give President Capilouto and his PR hacks an A minus for producing a hunger-strike response that is as flavorless and boring as the ramen noodles his students are eating.  (I deducted a few points from his grade because he didn't include the words "transparent" and "inclusive.")

I don't mean to make light of food insecurity on college campuses. In spite of the fact that students borrow on average about $37,000 to get their college degrees, they sometimes fall short on grocery money. But isn't  that what the UK food pantry is for?

Let's take a closer look at what the UK hunger strikers are demanding: "A Basic Needs Center focused on helping students with housing and "food-related challenges." But UK has a student-housing staff and people in charge of the campus dining halls. That's not enough?

And the strikers want small financials grants--apparently to meet food and housing emergencies. But isn't that what the federal student loan program is designed for? And part-time jobs, for that matter.

But the strikers' last demand is truly ludicrous. The strikers, delusional perhaps due to lack of protein, want UK to hire ANOTHER ADMINISTRATOR who will be dedicated to "addressing students' food and housing needs."

I'm sure UK will be happy to comply. Heck, it might hire a half dozen new administrators to staff a Basic Needs Center.  Sure it will cost money, but UK can always raise its tuition; and students will simply take out bigger student loans to absorb the cost.

Why do you suppose the UK protesters didn't call a hunger strike to protest the student-loan crisis and the outrageous cost of going to college? You know why. UK would probably turn the fire hoses on them.

And here's a footnote. President Capilouto--Mr. Sensitive--makes $790,000 a year. That will buy a lot of ramen noodles.

President Capilouto--Mr. Sensitive--makes $790,000 per year.


Saturday, March 23, 2019

Don't want no stinkin' Louisiana driver's license: Andrea Ballinger, LSU administrator with six-figure salary, quits her job rather than get Louisiana driver's license

Louisiana law requires unclassified state employees who earn salaries over $100,000 per year to obtain Louisiana drivers licenses and register their cars in Louisiana.

A few days ago, four LSU administrators, all making six figures, quit their jobs rather than comply with the law. All four claim Illinois as their primary residence, and three of them worked for LSU at least part of the time from Illinois.

Who are these jokers?

Andrea Ballinger, LSU's Chief Technology Officer, makes $268,000 a year. She left Illinois State University in 2017, where she made $193,424.  Apparently, LSU was so desperate to hire Ballinger that it gave her a $20,000 moving stipend.

Matthew Helm, LSU's assistant vice president in information technology services, draws a salary of $202,085.

Susan Flanagin, director in information technology services, makes $149,000.

Thomas Glenn, LSU's director of information technology services, gets paid $144,000 a year.

If I were making more than a quarter of a million dollars to work at a Louisiana university, I would damn well get a Louisiana driver's license and put a Louisiana license plate on my humble Subaru.

So why would these knuckleheads quit their jobs rather than register their cars in Louisiana?  Their lame explanation: Getting Louisiana driver's licenses and registering their cars in Louisiana would violate Illinois law!

I doubt we will ever know the full story, but here is my guess: All four of these characters have some sort of financial tie to Illinois that would be jeopardized if they established legal residence in Louisiana. If so, those ties must be substantial for them to give up their high-paying gigs at LSU.

Apparently, all four former LSU employees are leaving the Pelican State and heading back to the Land of Lincoln. I say good riddance!

Andrea Ballinger, LSU's former chief technology officer