Higher education irreparable harm and taxpayer waste: A 50-state study of nonfeasance

I have been a registered Republican for the past 40 years. The party of Lincoln and Teddy Roosevelt has eight underlying principles: family values, personal responsibility, law and order, opportunity for our youth, no excessive debt passed onto our children, respect for veterans, prudent public spending, and regulation only where necessary (e.g., where failure would visit irreparable harm onto others).   

I have been reconsidering my support because of the betrayal of those values. That contradiction is most evident in current federal policy toward private, for-profit colleges — a policy that contradicts not just of one of those eight pillars, but all of them.   

{mosads}An administration committed to “draining the swamp” has, at least in this subject area, brought to the fetid water’s edge many lethal crocodiles. President Trump’s Education Secretary Betsy DeVos has appointed former lobbyists and executives previously employed by for-profit colleges that have been investigated by federal and state authorities for fraud, and the Department of Education has been solicitous to industry advocates.  

Providing the opportunity to pursue higher education, especially for our veterans, should be a sacrosanct principle. The GI Bill, which provides tuition and housing grants for returning vets,  manifests our commitment to them. Ideally, we would withhold public education financing for college programs that do not lead to “gainful employment” for their students, and we would strengthen consumer protections from fraud-contaminated loans. But just the opposite is happening.

With the federal government abdicating its responsibility to provide basic consumer protections for these students, the last line of defense is state oversight. Now, attorney Melanie Delgado of our Children’s Advocacy Institute, of which I am executive director, has compiled a report analyzing the statutes and preventive protections in all 50 states to address this abuse. We found this last line of defense is virtually non-existent.

Only one state gets a grade above C and 43 get an F. There are virtually no multi-member bodies to provide public oversight, few performance qualifications for public monies, no reviews, little monitoring of sales techniques (including “commissions” that incentivize lying), and no student complaint process. Each state has the authority to address this issue and can replicate the high score jurisdiction to stop deceptions and assure some beneficial outcome (rather than a life of intractable debt). Laws can be enacted that do not involve red tape bureaucracy but instead basic qualification to ensure “law and order” compliance with promised outcomes and public accountability for the spending of our tax dollars.

To their credit, a number of state public prosecutors have pursued action against Corinthian, ITT and several other major violators. But these laudable cases have left hundreds of thousands of students in midstream and $ billion in federal money wasted. The Federal Trade Commission has acted against one major violator. Relying on public prosecutors able to police only a small percentage of violators post hoc, after much damage is done, is not ideal.

The profit motive is an important part of a creative and democratic market, but it best exists consistent with the eight enumerated Republican values above. Instead, a large number of these for-profit schools engage in chicanery to mislead students into enrolling — sometimes driven by commissions per student. They capture billions of dollars in federal and state public money, and then fail to provide promised benefit to their students. They spend much of their money on marketing, not instruction.

This is not an episodic problem, it is endemic, with some schools enrolling hundreds of thousands of students. It has been exhaustively documented. The end result is, increasingly, no employment in the area of training and the acquisition of loans from the schools or others beyond public subsidy. The failure to pay these instruments — commonly not even dischargeable in bankruptcy — can mean credit ruination.   

This is one area where the federal government should properly intervene under Republican values. We make the school qualify for the $ billion we offer and for the trust of our youth, especially our veterans. The qualification should be on point and achievable, and not involve unnecessary bureaucracy. But there is a reason we license brain surgeons and others on whom consumers rely.  

Instead of this leadership federally, we have the “Trump University” — which is more than symbolic. More poignantly, we have a Department of Education with the lethal crocodiles whose contempt for the eight values of my political party have no equivalent precedent. They are not draining the swamp, but infesting it.  

The evidence is substantial. Given the nature of the current, actual anti-Republican and un-American swamp federally, these states are the only reliable avenue for reform. And after all, do not we Republicans believe in state sovereignty? Time to exercise it.

Robert C. Fellmeth is the tenured Price Professor of Public Interest Law at the University of San Diego School of Law. He is founder and executive director of the Center for Public Interest Law and the Children’s Advocacy Institute at the USD Law School, which provides funding for both institutes.