Less than two weeks after it was slammed with stiff new sanctions by the Department of Education, and just days before its fall semester was scheduled to start, giant for-profit college chain ITT Tech has closed its doors.

ITT announced the shutdown in a blistering statement, released early this morning, in which it called last month’s sanctions “unwarranted . . . inappropriate and unconstitutional.” The statement described “the damage done to our students and employees, as well as to our shareholders and the American taxpayers” as “irrevocable.”

The Department’s actions, however, reflected ITT’s ongoing corporate malfeasance. The chain is currently the subject of lawsuits and investigations by a long list of state and federal agencies, and it has been out of compliance with Department of Education oversight mandates for months.

And ITT Tech’s misbehavior was of particular concern to the Department because the company’s revenue came overwhelmingly from the American taxpayer. Since 2010, some $5 billion in federal money has flowed to ITT in the form of grants and loans, outlays for which the chain had steadfastly refused to be held accountable.

Last month’s sanctions were designed to rectify that. Limits were placed on ITT’s ability to divert revenue to its management and investors. Enrollment of new students using federal loans and grants was paused. And crucially, ITT’s letter of credit was hiked dramatically.

This last provision is worth explaining in more detail, because it clarifies both why ITT failed and what will happen next. When the Department requires that an educational institution post a letter of credit, that institution essentially places a specific amount of money in escrow, setting it aside so that it will be available to use to, for instance, compensate students if the company fails while their studies are ongoing. It’s an insurance policy, in essence, imposed to ensure that the taxpayer isn’t left holding the bag in the event that a college collapses.

If a company is healthy, a letter of credit will be a straightforward cost of doing business—either they’ll be able to cover it themselves, or someone will be happy to lend them cash to do so. If a company is already failing, securing a substantial letter of credit becomes more crucial (because the risk of inaction on the part of the Department is greater) but also more dangerous (because more robust oversight could expose and compound structural weaknesses).

In the past, the Department of Education has often delayed taking action against predatory and mismanaged for-profit colleges until they were in such dire straits that any attempt to impose even mild sanctions would lead to disaster. (Chris Hicks and I discussed this problem, and proposed ways of fixing it, in a report we released this summer.) Thus, when the Department announced in the summer of 2014 that it was placing a three-week delay on disbursements of federal financial aid to Corinthian Colleges, it sent that chain into a tailspin. Corinthian imploded in the months that followed, taking an additional $35 million in emergency taxpayer funding with it.

In some ways, the fall of ITT Tech seems to mirror that of Corinthian—after years of gentle treatment by the Department of Education, a crackdown was followed almost immediately by a collapse. In other ways, however, the Department’s actions in regard to ITT reflect lessons learned from Corinthian, suggesting that the ITT crackdown is less Corinthian II than a first step toward a new model of for-profit college oversight.

I’ll be discussing the similarities and differences between Corinthian and ITT, and what the Corinthian debacle tells us about how the Department should handle the ITT aftermath, in a later post.

 

A point I’ve often made in response to sky-is-falling critics of classroom trigger warnings is that there’s no substantial movement afoot to make them mandatory. Where trigger warnings have been adopted, it’s been voluntarily by professors.

Indeed, even activists who’ve pushed for their use haven’t typically attempted to have them made a requirement. Last year’s notorious Columbia University op-ed on the subject merely “proposed that [the university’s Center for the Core Curriculum] issue a letter to faculty about potential trigger warnings and suggestions for how to support triggered students,” while 2014’s Oberlin College document on the subject—since withdrawn—was explicitly framed as advisory rather than directive. (A student government resolution passed at UC Santa Barbara in February 2014 did call for mandatory trigger warnings, but it had no formal authority and was essentially ignored by the university.)

Today, however, FIRE reports that “there are several colleges and universities that, as part of their sexual misconduct policies and procedures, require professors to use trigger warnings in the classroom,” citing a passage from Drexel University’s sexual misconduct policy—replicated in the policies of at least four other colleges—that reads as follows:

“[i]t is expected that instructors will offer appropriate warning and accommodation regarding the introduction of explicit and triggering materials used.”

This is closer to a mandate than anything I’ve seen or heard of before, and as policy it definitely takes the trigger warning debate in a new direction, but it’s not quite as clear as FIRE suggests that it amounts to a mandate.

For starters, the FIRE extract leaves out important context for the quote. Here’s the full text of the relevant passage:

Examples of behavior that might be considered sexual or gender-based harassment or misconduct include, but are not limited to:

[. . .]

Non-academic display or circulation of written materials or pictures degrading to an individual(s) or gender group (It is expected that instructors will offer appropriate warning and accommodation regarding the introduction of explicit and triggering materials used.).

Note that the list that this entry appears on is a list of actions that “might be considered” misconduct rather than a list of prohibited acts. Note also that the non-use of trigger warnings does not appear as a main entry on the list but as a parenthetical.

In context, then, the statement about trigger warnings is an aside about “expected” behavior rather than a formal directive. And while one could certainly read “expect” as a veiled mandate, other instances of the word in the same document clearly refer to behavior that is hoped-for but not compelled. Consider the following examples:

“Not every individual will be prepared to make a report to the University or to law enforcement, and individuals are not expected or required to pursue a specific course of action.”

“The University expects all community members to take reasonable and prudent actions to prevent or stop an act of sexual harassment or misconduct. Taking action may include direct intervention, calling law enforcement, or seeking assistance from a person in authority. Community members who choose to exercise this positive moral obligation will be supported by the University and protected from retaliation.”

In the first of these quotes the word “expected” is explicitly distinguished from “required,” and in the second an expectation is characterized as reflecting a moral obligation rather than an institutional requirement.

Is it possible that a professor at Drexel (or one of these other colleges) could be disciplined for, say, screening hardcore porn in a classroom setting without warning? Definitely. But that would be possible even in the absence of this policy. Given that, it’s not immediately obvious to me how much of a change this represents.

As I said above, these policies certainly strike me as a significant development in the national debate over trigger warnings. To my knowledge, they’re the only formal, college-wide policies in the country to even recommend the use of trigger warnings in the classroom. And the fact that they’ve flown under the radar until now suggests that there may well be more—and perhaps more explicit—policies in place that haven’t yet attracted notice. I’ll be following up on this, both in respect to the five campuses that have adopted this policy and more generally.

In the absence of more information about how this language is being interpreted and implemented, to describe them as explicit mandates strikes me as unwarranted. If I were an anti-trigger-warning professor on one of these campuses, though? I’d certainly be asking my administration some pointed questions.

More soon.

By now, most people who read this blog have seen the letter that the Dean of Students of the University of Chicago sent to incoming students this week:

The crucial paragraph of the letter was the third:

Our commitment to academic freedom means that we do not support so-called “trigger warnings,” we do not cancel invited speakers because their topics might prove controversial, and we do not condone the creation of intellectual “safe spaces” where individuals can retreat from ideas and perspectives at odds with their own.

There’s a lot to say, and a lot that’s been said, about this passage—Jeet Heer wrote a short piece at the New Republic (using some of my tweets as a jumping-off point) arguing that it was an attack on academic freedom, for instance, while the former president of the U of C student government unleashed a devastating tweetstorm addressing the various ways in which the college’s administration had, during his time on campus, ducked its obligations to engage in open and constructive dialogue. (Link is to his Twitter feed. Scroll back.)

What I want to talk about today, though, is an essay by Jesse Singal of New York magazine, a writer whose views on campus issues I often share.

Singal is no huge fan of the letter’s framing, it’s important to note. Many of the criticisms I’ll be raising here are ones that he himself makes. But his core premise is that while the letter was perhaps over-aggressive and over-simplified, it was nonetheless a useful and justified intervention because it addressed a real problem on the contemporary campus—attacks on free speech.

Free speech is under threat on campus, he believes, and so, in taking a forthrightly pro-free-speech, pro-academic-freedom stand, the letter “could be a useful nudge to help get other, more timorous university administrators to stand up and do their jobs.”

Singal is right that there’s a real culture clash happening in American higher ed right now, but he’s wrong to portray it as a clash between supporters and opponents of free expression. To understand why, let’s examine the letter’s core positions one at a time.

“Our commitment to academic freedom means that we do not support so-called ‘trigger warnings…'”

The college has already had to walk this one back a bit, because of course one may support trigger warnings and also be committed to academic freedom. Indeed, as a college professor who uses trigger warnings in my own classes, I’d interpret a statement like this from administrators at my college as a denigration of my pedagogical choices, and perhaps even a not-too-subtle suggestion that I revise my syllabi.

A university truly committed to academic freedom will allow its professors to decide for themselves whether to use trigger warnings, and will foster open and unfettered discussion as to whether they should so. It will also recognize that students who choose to agitate for the adoption of such warnings are themselves engaging in acts of free speech and deserving of the protections afforded by the principles of academic freedom.

The letter, sadly, acknowledges none of this.

“…we do not cancel invited speakers because their topics might prove controversial…”

Here too the letter reduces a complex, multifaceted question to a fatuous soundbite. Are there many people really arguing that a university should “cancel invited speakers because their topics might prove controversial”? Not in my experience, and I pay quite a bit of attention to this stuff. No, the letter is here misrepresenting the position it argues against, and in so doing it papers over the most interesting questions it raises.

Here are some of those more interesting questions:

Should a university invite speakers who are bigots? If so, under what circumstances? Who should decide who is invited to speak on campus, and who should determine how student money is allocated to bring such speakers? Does a student club have an obligation to go forward with an invitation it has extended if it later comes to regret it? What are the proper limits of dissent and protest and disruption when an obnoxious speaker appears?

These are all questions on which people committed to free speech can vigorously disagree. (They’re all questions on which I’d happily argue one of several contradictory positions, for starters, if you’re buying the beer.) But there’s no hint of that vitality and complexity here.

“…and we do not condone the creation of intellectual ‘safe spaces’ where individuals can retreat from ideas and perspectives at odds with their own.”

Again the letter elides the most interesting, and most important, issues at hand. Should a campus Atheist Club be required to accept a fundamentalist Christian as a vocal participant in its meetings, and vice versa? Must a Women’s Center open its discussion group for sexual assault survivors to men? Are all spaces on campus sites of perpetual intellectual combat, open to all comers, or might students reasonably choose to affiliate only with like-minded friends and allies on occasion? The letter presupposes one answer to each of those questions, and to any other that could be asked from similar premises. But there is a strong civil libertarian case to be made for the opposite stance on each.

In fact, on each of the topics mooted in the letter—trigger warnings, campus speakers, and safe spaces—it could be argued that the principles of free speech and academic freedom demand the opposite conclusion from the one the letter reaches. Both the professor guarding her freedom to use trigger warnings and her colleague who opposes them may be civil libertarians, as may the reviled speaker and the student protesting at their talk and the atheist who demands a voice and the Christian who asserts her right to converse with those she chooses.

Again: There is no single pro-free-speech position on on any of these questions.

And so while Singal is right that there are major divisions on the contemporary American campus around issues of freedom of speech and academic freedom, he fails to recognize that those divisions are so deep and so contentious in large part because each side in each of those the debates can legitimately lay claim to the mantle of free expression.

The positions that the letter takes are not more civil libertarian than the ones that I, for instance—a supporter of trigger warnings and agitation against obnoxious speakers and safe spaces—take. In fact they are, I’d argue, in each case a less civil libertarian position.

And that is why we will never, despite what the University of Chicago might hope, and despite what Singal suggests, resolve these disputes via appeals to first principles.

Now maybe I’m wrong. Maybe my views on one or more of these questions is unsustainable from a civil libertarian perspective. But if so, we’ll figure that out not by fiat, but through robust, unfettered debate and by real-world experimentation. That debate is necessary, and it is not advanced be pre-emptive deployment of “we do not supports” and “we do not condones.” (Particularly when many members of the campus community emphatically do support and do condone precisely the positions that are repudiated by the dean’s letter.)

I stand with Singal in his advocacy for freedom of expression on campus, and I share some (though not all) of his concerns about contemporary campus climate. But the authors of the University of Chicago letter are not my allies in that fight, and I suspect that they’re mostly not Singal’s, either.

The Department of Education yesterday imposed massive sanctions on for-profit college chain ITT Tech, giving the predatory college thirty days to place $153 million in escrow to protect students and taxpayers from potential costs associated with the company’s malfeasance. At the same time, the Department banned ITT from enrolling new students using federal financial aid money.

ITT 5-day stock price chart from Google.ITT’s stock fell 35% in half an hour after yesterday’s announcement before trading was halted to stop the slide. It opened down another 50% this morning, leaving the total stock value of the company at less than ten million dollars.

This is almost certainly the end of the road for ITT Tech, until recently one of the biggest players in the for-profit college world. The company has little hope of raising the cash it needs to provide the funds the Department has demanded, particularly given its dependence on federal financial aid for revenue — last year 80% of its income came from Department-administered financial aid programs. (Adding to ITT’s woes, the escrow requirement puts the company in violation of the terms of a $100 million loan it received from a private equity firm in 2014. Oops.)

The Department’s crackdown on ITT is a welcome, if overdue, development. For years, the D0E has allowed the chain to operate with near-impunity as it defrauded students and flouted federal regulations, and yesterday’s actions represent a decisive — and potentially historic — break with that history.

In a particularly heartening move, the Department imposed a wide variety of sanctions on ITT, each designed to ensure that the company, its management, and its investors are held accountable for ITT’s misdeeds. In addition to the escrow requirement and the ban on extension of financial aid to new enrollees, the department:

  • Mandated notice to current ITT students that the institution is in violation of accreditation requirements.
  • Forbade ITT from issuing any “bonuses, severance payments, raises, or retention payments to any of its Management or Directors.”
  • Prohibited ITT from paying dividends to its investors.

Each of these sanctions, as it happens, are ones that Chris Hicks of the AFT and I urged the Department to impose on predatory for-profit colleges in our June report, Regulating Too-Big-to-Fail Education: Next Steps for the Department of Education.

For too long, the Department of Education has failed to act aggressively in using its oversight and enforcement powers to rein in for-profit education companies that prey on students and divert taxpayer money to programs that offer little or no benefit to enrollees. The Department’s decisive action against ITT yesterday gives reason for hope that the entire for-profit sector will soon be subjected to the kind of robust, common-sense regulation that it so desperately needs.

It’s been summer, and I’ve been busy with other work, so I haven’t posted in a while. This started as a Facebook thing, but I figured I’d put it up here to knock the cobwebs out.

•          •          •

I’ve read a few things recently on how things would go with the election, logistically, if Trump dropped out, but none of them put the whole story together.

So I’m gonna.

This is going to be long. Here goes.

If Trump withdraws from the presidential race, the responsibility for choosing his replacement will fall to the RNC. (That’s the Republican National Committee, made up of about two hundred party leaders, not the Republican National Convention, made up of thousands of delegates. The Committee could theoretically reconvene the Convention to hold the vote, but they won’t.)

So the Republican National Committee would get together somewhere, and elect a new nominee. This would likely be Mike Pence, since he’s the veep nominee—picking anyone else would divide the party further, and that’s the last thing they’ll want in the wake of a Trump schism. Pence isn’t widely hated, and putting him in the slot could be framed as a pro-forma thing, so that’s what they’d be most likely to do.

So Pence, let’s say, becomes the nominee. Presumably he picks a new veep choice, likely in consultation with party leaders, and the RNC rubber-stamps that pic right after picking him. But that’s not the end of it.

Because it turns out that every state has its own rules for taking someone’s name off the ballot and replacing it with someone else’s, and the earliest deadlines for doing that are coming up soon. Unless Trump drops out in the next couple of weeks, there are going to be states where he’s going to be listed no matter what.

Which means that if Trump drops out in, say, mid-September, there will be some states where GOP voters will be pulling a lever next to his name, and some where they’re voting for Pence. And as it turns out that matters too, because…

Every state also has its own laws about who Electoral College electors are allowed to vote for. In some states, they’re legally bound to vote for the candidate who was on the ballot in their state. The laws vary a lot, and some of them are pretty vague, so what to do about it would have to be hashed out multiple times all over the country.

If Clinton wins, of course, none of this will matter much. Electors on the losing side have voted in ways they weren’t supposed to in the past, and if Pence’s ticket gets, say, 180 Electoral Votes, nobody is going to care if some of them are cast for Donald Trump. But what if Clinton loses? What happens then?

Well, then it gets weird.

Let’s say that the Republicans wind up with 280 Electoral Votes, of which fifty or so are the fruit of states where (1) Trump was still on the ballot on election day, and (2) state law mandates that electors vote for the person on the ballot. In that case, if everyone votes according to their legal duties, nobody gets a majority in the Electoral College and the election goes to the House of Representatives.

That “everyone votes according to their legal duties” thing is a big if, though. Assuming the Trump electors are good Republicans who want a Pence victory, some or all of them would likely vote their conscience rather than the law, or file suit to get the law nullified before the vote. Even if they didn’t, the RNC would have good reason to try to get around the state laws.

The constitution seems to grant electors the right to vote for who they want, and even if it didn’t, the Supreme Court would likely reject the idea that the EC wouldn’t be able to seat a duly-elected president because North Carolina treated the guy who quit two months ago as the candidate, so I’d expect SCOTUS to allow GOP electors to vote for Pence, giving him the presidency without having to go through the House.

Unless.

What if some of the GOP electors wanted to vote for Trump? What if they were die-hard Trump supporters who believed the Republican Party had betrayed them, and they weren’t willing to fall in line—or, alternatively, they were local politicians in Trump-heavy districts who were worried about voter backlash? What if they vote Trump not because they have to but because they want to, and the Electoral College deadlocks as a result?

In that case, I suspect SCOTUS would stay out of it, and the election would go to the House of Representatives, with each state delegation getting a single vote. In such situations the GOP is considered to have a structural advantage, given the composition of the House, with Pence again likely to emerge the winner. Unless, again, some House members cast votes for Trump, gumming up the works enough to keep the election deadlocked and allowing whoever the Senate chose for vice president to assume the presidency on an acting basis.

Which is a subplot from the most recent season of the HBO comedy Veep.

Most of this probably won’t happen, of course. If Trump pulls out, the GOP ticket most likely loses, and if it somehow wins, the Electoral College stuff most likely sorts itself out in the courts.

But if Trump does quit, expect everyone on your Twitter feed to become immediate experts on the Twelfth and Twentieth Amendments.

About This Blog

n7772graysmall
StudentActivism.net is the work of Angus Johnston, a historian and advocate of American student organizing.

To contact Angus, click here. For more about him, check out AngusJohnston.com.

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