New College Regs: Accusation = Sentence

It’s no secret that war has been declared on for-profit colleges. The question is whether the war is justifiable. I don’t think it is—the evidence strongly suggests that all of higher ed is broken—but I also think it is very hard for the public, in any individual case, to know whether a college accused of wrongdoing is really awful, or the target of politicians trying to make names for themselves. But just accusing a school of predatory behavior hurts it, generating lots of bad press, encouraging more suits and investigations, and usually resulting in schools settling with government accusers without admitting guilt, maybe to stop the PR and financial bleeding, maybe because they think they’re guilty and that’s the best they can get. Regardless, there is clearly an imbalance of power between taxpayer-funded accusers and the accused.

New federal regulations look like they’ll make the problem of accusation-equals-sentence worse. The Wall Street Journal has a lengthy piece looking at the broad potential ramifications of the regs, but one part of the US Department of Education regulation summary caught my eye: Schools would have to automatically “put up funds, in the form of letters of credit (LOCs), that total at least 10 percent of the amount of Title IV funds received by the school over the previous year” if “a state or federal government entity such as an attorney general, the CFPB, or the FTC brings a major suit against the school.” In other words, the moment any government entity, including the unchained Consumer Financial Protection Bureau, accuses a school of wrongdoing, the punishment begins.

This punishment could easily trigger a cascade of trouble, with the need for a letter of credit scaring off investors, bad publicity scaring off students, and a school suffering financially as a result. That school could then be targeted by the Department of Education for being even more of a financial risk, and the death spiral would become inescapable. This is not too far off from what seems to have happened to Corinthian College. Corinthian was, importantly, ultimately found guilty of fraud, but that rare guilty verdict was rendered after Corinthian was no more and had no one to defend it in court.

It is, to be sure, hard to feel too sorry for the for-profit sector. It does have poor outcomes, and is heavily dependent on students paying with government dough. That said, there is also a good bit of evidence that it is no worse, controlling for student challenges, than other higher ed sectors. And it is very easy to imagine politicians—human beings likely as self-interested as the average for-profit school owner or employee—going after for-profit schools because it is politically easy.

These proposed regulations look like they will stack the deck even more against for-profit colleges.