"Your results may vary": Protecting students and taxpayers through tighter regulation of proprietary school representations

Administrative Law Review

Volumn 62, Issue 3, 2010, Pages 729-782

  Taylor, Aaron N ^a  

^a UNIVERSITY OF ARKANSAS   (United States)

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EID: 79959472538     PISSN: 00018368     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (427)

1. Monroe College, About Monroe, http://www.monroecollege.edu/aboutmonroe (last visited Aug. 3, 2010).
2. Trina also earned an Associate's degree from Monroe in December 2006. Complaint at 3, Thompson v. Monroe Coll., No. 251896-09 (N. Y. Sup. Ct. July 24, 2009).
3. See id. (stating that Trina is suing because Monroe has not helped her to secure a job).
4. Jason Kessler, Alumna Sues College Because She Hasn't Found a Job, CNN. COM, Aug. 4, 2009, http://www.cnn.com/2009/US/08/03/new.york.jobless.graduate/ index.html.
5. See id. (noting that Trina seeks $2, 000 for stress induced by her failed job search).
6. See, e.g., LAURA G. KNAPP ET AL., NAT'L CTR. FOR EDUC. STATISTICS, U. S. DEP'T OF EDUC., NCES 2009-155, ENROLLMENT IN POSTSECONDARY INSTITUTIONS, FALL 2007;
7. GRADUATION RATES, 2001 & 2004 COHORTS; AND FINANCIAL STATISTICS, FISCAL YEAR 2007 12 (2009), http://nces.ed.gov/pubs2009/2009155.pdf (listing the low graduation rates for proprietary school students).
8. Patrick F. Linehan, Dreams Protected: A New Approach to Policing Proprietary Schools' Misrepresentations, 89 GEO. L. J. 753, 754 (2001) ("Unfortunately, existing legal doctrine and regulatory regimes are ill-suited to protect proprietary school students from such predatory marketing practices.").
9. See id. at 764-65 (describing how the academic abstention doctrine raises "a significant obstacle" to students seeking to recover against proprietary schools under tort law).
10. Id. at 783 ("Federal law envisions a highly complex and comprehensive bureaucratic 'triad,' with state licensing systems and accrediting agencies playing a significant complementary role alongside federal eligibility and certification requirements.").
11. Enforcement of Federal Anti-Fraud Laws in For-Prqfit Education: Hearing Before the H. Comm. on Education and the Workforce, 109th Cong. 52 (2005) [hereinafter Anti-Fraud Hearings] (statement of Rep. Maxine Waters, Member, H. Comm. on Education and the Workforce).
12. See id. at 8 (providing a quote from an admissions counselor stating that her former employer enrolled students who were ill-prepared to complete the program).
13. See id. at 46 (statement of Nick Glakas, President, Career College Association) ("[Seventy percent of proprietary school students] are the first in their families to attend college....").
14. See U. S. GOV'T ACCOUNTABILITY OFFICE, GAO-09-600, PROPRIETARY SCHOOLS: STRONGER DEPARTMENT OF EDUCATION OVERSIGHT NEEDED TO HELP ENSURE ONLY ELIGIBLE STUDENTS RECEIVE FEDERAL STUDENT AID 7 (2009), available at http://www.gao.gov/ new.items/d09600.pdf [hereinafter GAO, STRONGER OVERSIGHT] ("[OJver half of the student population at proprietary schools is comprised of 'nontraditional' students, such as students who are 25 years old and older.").
15. See Linehan, supra note 7, at 756 ("Most [proprietary school] enrollees... have previously experienced educational failure.").
16. See Anti-Fraud Hearings, supra note 10, at 22 (statement of Rep. Maxine Waters) (arguing that victims of proprietary schools' misrepresentations "are less likely to complain, and when they do they are less effective, because they don't know where to complain, or how to articulate their complaint, as they do not know the requirements of the law").
17. GAO, STRONGER OVERSIGHT, supra note 13, at 19-20.
18. Id. at 12 ("When students do not make payments on their federal loans and the loans are in default, the federal government and taxpayers assume nearly all the risk and are left with the costs.").
19. Katharine Gibbs School consisted of two campuses in New York and one in Pennsylvania that were owned by Career Education Corporation (CEC). After an unsuccessful attempt to sell the campuses, CEC announced on February 15, 2008, that it would close one of its Katharine Gibbs campuses and convert the other to another brand within its corporation. Press Release, Career Educ. Corp., Career Education Corporation Announces Plans to Teach-Out Programs at Selected Schools Held for Sale (Feb. 15, 2008), http://phx.corporate-ir.net/phoenix.zhtml?c= 87390&p=irolnewsArticle-print&ID=1108811&highlight= [hereinafter CEC, Teach-Out].
20. Brooks College consisted of two campuses in California that were owned by CEC. Press Release, Career Educ. Corp., Career Education Corporation Announces Plans for Strategic Divestitures of Selected Schools (Nov. 15, 2006), http://media.corporateir.net/media-files/irol/87/87390/ CECSchoolSalesandClosingPressReleasewithExhibitsl11506.pdf [hereinafter CEC, Divestitures]. After an unsuccessful attempt to sell the campuses, CEC announced on June 28, 2007, that it would be closing both Brooks campuses. CEC, Teach-Out
21. supra note 18.
22. Rebecca Leung, For-Profit College: Costly Lesson, 60 MINUTES, Jan. 30, 2005, http://www.cbsnews.com/stories/2005/01/31/60minutes/main670479.shtml ("The admission counselors told 60 Minutes they were expected to enroll three high school graduates a week, regardless of their ability to complete the coursework. And if they didn't meet those quotas, they were out of a job.... They all say the pressure produced some very aggressive sales tactics.").
23. See id. (interviewing unemployed and underemployed graduates of Brooks College who stated that admission counselors induced their enrollment with promises of prestigious employment in the fashion industry upon graduation).
24. See U. S. GEN. ACCOUNTING OFFICE, GAO/HEHS-97-104, PROPRIETARY SCHOOLS: MILLIONS SPENT TO TRAIN STUDENTS FOR OVERSUPPUED OCCUPATIONS 5 (1997), available at http://www.gao.gov/archive/1997/he97104.pdf [hereinafter GAO, OVERSUPPUED OCCUPATIONS] ("Proprietary schools contribute to the nation's competitiveness by providing occupational training to traditionally noncollege-bound individuals.").
25. See LISA K. FOSTER, CAL. STATE LIBRARY, CRB 04-010, FOR-PROFIT POSTSECONDARY EDUCATIONAL INSTITUTIONS: OVERVIEW OF ACCREDITATION AND STATE AND FEDERAL OVERSIGHT 14 (2004) ("During the 1970s and 80s, institutions operated with little or no oversight and few constraints in recruiting and training students. A large number of institutions did not provide the training advertised, did not comply with fair consumer practices, and mismanaged finances.").
26. See Linehan, supra note 7, at 760 ("[A]lthough proprietary schools compose onethird of the approximately 6, 000 schools eligible for federal student grants and loans, they recently accounted for three-fourths of the Department [of Education]'s student loan fraud and abuse investigations.").
27. See Catherine Elton, Degrees of Difficulty: The Truth About Online Universities, CONSUMERS DIG., Mar./Apr. 2009, at 20-21 (describing "a disturbing pattern" of aggressive recruiting tactics by for-profit schools that ensnare unqualified students who ultimately fail out or qualified students who receive little benefit from the noncompetitive learning environment).
28. See Linehan, supra note 7, at 757 (discussing how proprietary schools place "advertisements on daytime and late night television to reach the unemployed and those seeking new jobs");
29. see also FOSTER, supra note 23, at 12 (describing placement rates as "[t]he ultimate outcome measure").
30. See Anti-Fraud Hearings, supra note 10, at 15 (statement of Rep. Maxine Waters) ("The biggest misrepresentations made to students that convince them to enroll are anticipated starting salary... and the placement rate.... The starting salaries that prospective students are told are seldom true. Many schools tout a 90% plus placement rate. But these are self reported rates and not necessarily accurate.");
31. see also Linehan, supra note 7, at 759 (discussing the pressure that oversupplied labor markets place on proprietary schools);
32. U. S. GEN. ACCOUNTING OFFICE, GAO/T-HEHS-96-158, HIGHER EDUCATION: ENSURING QUALITY EDUCATION FROM PROPRIETARY INSTITUTIONS 11-12 (1996), [hereinafter GAO, ENSURING QUALITY] (statement of Cornelia M. Blanchette), available at http://www.gao.gov/archive/1996/he96158t.pdf (discussing the financial ramifications of students incurring debt in order to train for jobs for which little demand exists).
33. But cf. GAO, OVERSUPPLIED OCCUPATIONS, supra note 22, at 11 (discussing benefits conferred upon students who trained in oversupplied fields).
34. See, e.g., Leung, supra note 20 (reporting that representatives from the Katharine Gibbs School in New York lied about the school's graduation rate).
35. See DEANNE LOONIN & JULIA DEVANTHERY, NAT'L CONSUMER LAW CTR., MAKING THE NUMBERS COUNT: WHY PROPRIETARY SCHOOL PERFORMANCE DATA DOESN'T ADD UP AND WHAT CAN BE DONE ABOUT IT 27-31 (2005), available at http://www. studentloanborrowerassistance.org/uploads/File/ProprietarySchoolsReport.pdf (describing the difficulty of obtaining completion data directly from proprietary schools included in its investigation).
36. Leung, supra note 20.
37. Anti-Fraud Hearings, supra note 10, at 8-9.
38. See, e.g., Till v. Delta Sch. of Commerce, Inc., 487 So. 2d 180, 182 (La. Ct. App. 1986) (alleging a breach of contract for several misrepresentations the school used to induce plaintiff to enroll, including the ability to transfer credits to other institutions).
39. See, e.g., Phillips Colls. of Ala., Inc. "v. Lester, 622 So. 2d 308, 309 (Ala. 1993) (alleging that the school misrepresented the nature of its instruction).
40. See, e.g., Malone v. Acad. of Court Reporting, 582 N. E.2d 54, 55-56 (Ohio Ct. App. 1990) (suing for false claims of accreditation).
41. See, e.g., Doug Lederman, Jury Orders U. of Phoenix Parent to Pay $277 Million, INSIDE HIGHER ED, Jan. 17, 2008, http://www.insidehighered. com/news/2008/01/17/apollo (discussing a large damages award issued against the University of Phoenix for failing to disclose a critical Department of Education [DOE] report in a filing with the Securities and Exchange Commission).
42. Title IV of the Higher Education Act governs the provision of federal financial aid funds for higher education. The statute governs mostly need-based programs, such as Federal Pell Grants, supplemental educational opportunity grants, payments to the States and institutions for need-based financial aid, and other special programs and projects.
43. U. S. C. § 1070 (a) (2006).
44. See 34 C. F. R. § 668.14 (b) (22) (i) (2009) (requiring that "an institution agrees that... [i]t will not provide any commission, bonus, or other incentive payment based directly or indirectly upon success in securing enrollments or financial aid to any person or entity engaged in any student recruiting or admission activities....").
45. But see id. § 668.14 (b) (22) (ii) (listing exceptions to this prohibition).
46. H. R. 1992, The Internet Equity and Education Act of 2001: Hearing Before the Subcomm. on 21st Century Competitiveness of the H. Comm. on Education and the Workforce, 107th Cong. 14 (2001) (statement of Lorraine Lewis, Inspector General of the United States), available at http://frwebgate.access.gpo.gov/cgi- bin/getdoc.cgi?dbname=107-house-hearing&samp;docid=f:77908.pdf ("The prohibition was designed to protect students from the high pressure tactics used by recruiters to enroll students in programs for which they may not have been prepared or did not want. The students were saddled with unwanted debt at increased cost to the taxpayers.").
47. NAT'L ASS'N FOR COLL. ADMISSION COUNSEUNG, TESTIMONY OF THE NATIONAL ASSOCIATION FOR COLLEGE ADMISSION COUNSEUNG (NACAC): HIGHER EDUCATION ACT STATUTORY BAN ON INCENTIVE COMPENSATION FOR ADMISSION AND FINANCIAL AID OFFICERS 1-2 (2009), available at http://www.nacacnet.org/LegislativeAction/ LegislativeNews/Documents/NACACTestimonylncentiveCompensation.pdf [hereinafter NACAC TESTIMONY] (discussing the ban in terms of the "information asymmetry" that exists between recruiters and prospective students).
48. See, e.g., LOONIN & DEVANTHERY, supra note 29, at 1 (summarizing these accusations).
49. University of Phoenix (UOP) is "the nation's largest private university, offering undergraduate and graduate degree programs at more than 200 locations, as well as online in most countries around the world." University of Phoenix, History, http://www.phoenix.edu/about-us/about- university-of-phoenix/history.html (last visited Aug. 3, 2010).
50. U. S. DEP'T OF EDUC, PRCN 200340922254, PROGRAM REVIEW REPORT: UNIVERSITY OF PHOENIX 7-8 (2004), available at http://s3.amazonaws.com/propublica/assets/ higher-ed/doe-report-uop.pdf [hereinafter UOP PROGRAM REVIEW REPORT].
51. The audit also referenced "butts in seats."
52. Id. at 10.
53. See, e.g., id. at 7-8 (listing a salary schedule showing that UOP recruiters could make upwards of $120, 000 per year and discussing how the potential for high salaries often prompted employees in other departments to seek recruiter positions).
54. Id. at 12 (quoting a UOP enrollment director saying in a recruiter meeting: "My job is on the line. And I need you guys to perform.... if you're not doing your job, you're going to lose your job. And if you're not hitting your goals, that's how we're going to measure if you're doing the job. And... I don't mean applications in. I mean starts.").
55. Even when recruiters felt other educational options, such as community colleges, would be better for individual prospects, they were forbidden from making such recommendations.
56. Id. at 24.
57. Recruiters were expected to complete financial aid documentation for students, and the forging of signatures by recruiters was commonplace.
58. Id. at 25;
59. see also Anti-Fraud Hearings, supra note 10, at 41 (statement of Paula L. Dorsey, former Director of Admissions, Bryman College) (discussing recruiters pressuring students to "improperly obtain social security numbers and signatures of other family members by whatever means necessary for the hopes of getting a 'better' financial aid package").
60. See UOP PROGRAM REVIEW REPORT, supra note 42, at 24 (illustrating how, to be considered enrolled for purposes of calculating recruiter salary, students had to "attend three nights of the first five-week course of a bachelors' program or, for graduate students, attend two nights... and be scheduled to attend a second class. After the student has met these criteria... UOP requires [recruiters] to pursue new enrollments....").
61. See Apollo Group, Inc., The February 2004 Program Review Report Relating to the University of Phoenix was Fundamentally Flawed, http://www.apollolegal. com/prrCritique.html (last visited July 31, 2010) ("[W]e believe that the terms of the Settlement Agreement between UOP and [the DOE] constitute a clear, albeit implicit, rejection of the [audit] and its alleged findings. The simple fact is that if the alleged findings in the [audit] had any merit-which they do not-[the DOE] would not and could not have settled the issues raised in the [audit] on the terms that it did. The terms of the Settlement Agreement are very favorable to UOP.").
62. See, e.g., Timothy J. Hatch & Bryan Arnold, The Growing Threat of False-Claims Lawsuits, CHRON. HIGHER EDUC., July 14, 2006, at B16, available at http://chronicle.com/article/The-Growing-Threat-of-False/10310/ (describing a recent Seventh Circuit decision allowing a plaintiff to bring a claim under the False Claims Act (FCA) against a private school).
63. "Qui tam is short for the Latin phrase... 'who pursues this action on our Lord the King's behalf as well as his own. '"
64. Vt. Agency of Natural Res. v. United States ex rel. Stevens, 529 U. S. 765, 768 n. 7 (2000).
65. -31 U. S. C. § 3730 (b) (1) (2006) ("A person may bring a civil action for a violation of section 3729 for the person and for the United States Government. The action shall be brought in the name of the Government.").
66. Defendants found to have committed fraud under the FCA are assessed a fine ranging from $5, 000 to $10, 000 and must pay three times the government's damages arising from the fraud. § 3729 (a) (7). Plaintiffs can recover between 25% and 30% of the latter assessment.
67. Id. § 3730 (d) (2).
68. See, e.g., Constitutionality of the Qui Tarn Provisions of the False Claims Act, 109 Op. Att'y Gen. 4-5 (1989) (stating that the 1986 Amendments to the FCA were the result of Congress being "dissatisfied with the way the executive branch was enforcing government procurement laws" and therefore desiring to "'deputize' private citizens to ensure effective law enforcement").
69. See Sara Hebel, Supreme Court Blocks Suits Against Public Colleges Under U. S. Whislle-Bloiver Law, CHRON. HIGHER EDUC., June 2, 2000, at A38, available at http://chronicle.com/article/Supreme-Court-Blocks-Suits-/35130/ (detailing how private individuals are barred from suing public, but not private, colleges).
70. See generally Hatch & Arnold, supra note 50, at B16 (providing an overview of FCA lawsuits brought against educational institutions).
71. Elizabeth Quill, University Will Pay $5.3-Million to Settle Whistle-Blower's Lawsuit, CHRON. HIGHER EDUC., Aug. 40, 2007, at A20, available at http://chronicle.com/article/University-Will-Pay-53-Mi/5344/.
72. Press Release, Apollo Group, Inc., Apollo Group, Inc. Resolves University of Phoenix False Claims Act Case (Dec. 14, 2009), http://phx.corporateir.net/ phoenix.zhtml?c=79624&p=irol-newsArticle&ID=1365655 ("Under the terms of the agreement, the Company will pay $67.5 million to the United States. A separate agreement provides for the payment by the Company of $11 million in attorneys fees to the plaintiffs, as required by the False Claims Act.").
73. GAO, STRONGER OVERSIGHT, supra note 13, at 9.
74. Id. at 22.
75. Her initial score was seven out of fifty. Upon retaking the test, the admissions recruiter said she got fourteen out of fifty answers correct, which was sufficient for enrollment.
76. Leung, supra note 20.
77. See Anti-Fraud Hearings, supra note 10, at 41 (statement of Paula L. Dorsey, former Director of Admissions, Bryman College) ("There were students that had never taken the exams or who had failed the exams, sitting in class. I was instructed to clean up the files by whatever means necessary even if it meant backdating things.").
78. See ITT Educational Services, Inc., Investor Relations Overview, http://www.ittesi.com/phoenix.zhtml?c=94519&p=irol-IRHome ("ITT Educational Services, Inc.... provides accredited, technology-oriented undergraduate and graduate degree programs... to help students develop skills and knowledge they need to pursue career opportunities in a variety of fields. It owns and operates more than 120 ITT Technical Institutes and Daniel Webster College. [It] serves approximately 80, 000 students at its campuses in 38 states and online.").
79. See Press Release, ITT Educational Services, Inc., ITT Educational Services, Inc. Reports that It Has Been Served with a Search Warrant and Related Subpoenas from the U. S. District Court in Texas (Feb. 25, 2004), http://www.ittesi.com/phoenix.zhtml?c=94519&p=irol-newsArticle&ID= 498922&highlight= (reporting that agents sought information pertaining to "placement figures and rates, retention figures and rates, graduation figures and rates, attendance figures and rates, recruitment and admissions materials, student grades, graduate salaries [,] and transferability of credits to other institutions").
80. Press Release, ITT Educational Services, Inc., ITT Educational Services, Inc. No Longer Subject of U. S. Department of Justice Investigation (June 24, 2005), http://www.ittesi.com/phoenix.zhtml?c=94519&p=irol- newsArticle&ID=723775&highlight=;
81. see also Letter from Chuck Rosenberg, U. S. Attorney, to Thomas E. Holliday & Lawrence D. Finder (June 24, 2005), http://media.corporateir.net/ media-files/NYS/ESI/DOJLet.pdf (informing counsel for ITT that the U. S. Attorney's investigation "has not revealed evidence sufficient" to find wrongdoing on the parts of company executives).
82. John L. Pulley, Justice Department Ends Inquiry into ITT Educational Services, CHRON. HIGHER EDUC., July 8, 2005, at A23, available at http://chronicle.com/article/Justice-Department-Ends-Inq/7707/.
83. See GAO, STRONGER OVERSIGHT, supra note 13, at 10 ("[DOE] computes default rates for all schools with students who receive Title IV loans... by tracking whether borrowers in a cohort-a group of students who begin repaying their loans in a given fiscal year-at each school default on their federal student loans over a 2-year period.").
84. "Defaulted federal student loans cost taxpayers money. Cohort default rate sanctions and benefits provide an incentive to schools to work with their borrowers to reduce default-[C]ohort default rates help save taxpayers money." U. S. DEP'T OF EDUC., COHORT DEFAULT RATE GUIDE, 2.4-1 (2006), http://ifap.ed.gov/DefaultManagement/guide/attachments/CDRGuideMasterSept06.pdf.
85. Schools with default rates of 25% or above for three years or above 40% for one year lose federal student loan eligibility for the remainder of the year after notification and for the subsequent two years, pending appeals and adjustments.
86. See id. at 2.4-2 to-3 (discussing benefits conferred upon schools with default rates of less than 5% or 10%).
87. GAO, STRONGER OVERSIGHT, supra note 13, at 13, 15-17.
88. See, e.g., Linehan, supra note 7, at 760 (noting that the closures have resulted from "fraudulent misrepresentations and deceptive marketing").
89. Id. But see Justin Pope, AP IMPACT: For-Profit Colleges Boost Lending, ASSOCIATED PRESS, Aug.14, 2009, available at http://abcnews.go.com/US/wireStory? id=8330001 (detailing increased loan making by proprietary schools to financially strapped students, many of whom would not qualify for traditional student loans).
90. See, e.g., Doug Lederman, Unusual (and Improper) Way to Lower Default Rates, INSIDE HIGHER ED, May 21, 2008, http://www.insidehighered.com/layout/set/ print/news/2008/05/21/default (discussing the particularities of ITT's lending practices and their negative impact on students).
91. See, e.g., GAO, STRONGER OVERSIGHT, supra note 13, at 20 (providing an overview of six different research studies that showcase trends in students' default rates).
92. Lederman, supra note 73.
93. Id.
94. See NACAC TESTIMONY, supra note 39, at 16 (summarizing a lawsuit against UOP filed by former students whose loans were paid by UOP without their permission).
95. U. S. DEP'T OF EDUC, OFFICE OF INSPECTOR GEN., ED-OIG/A02H0007, FINAL AUDIT REPORT: TECHNICAL CAREER INSTITUTES, INC.'S ADMINISTRATION OF THE FEDERAL PELL GRANT AND FEDERAL FAMILY EDUCATION LOAN PROGRAMS 3 (2008), http://www2.ed.gov/about/offices/list/oig/auditreports/fy2008/a02h0007.pdf.
96. Id. at 4.
97. Id.
98. See, e.g., David D. Dill, Allowing the Market to Rule: The Case of the United States, 57 HIGHER EDUC Q. 136, 137 (2003) (discussing the increased "marketization" of higher education and its impact on the public interest).
99. See, e.g., Martin Trow, Federalism in American Higher Education, in HIGHER LEARNING IN AMERICA: 1980-2000 39, 39 (Arthur Levine ed., 1993) (observing the minimal direct influence of the federal government on the United States' higher education system).
100. But see, e.g., Lawrence E. Gladieux & Jacqueline E. King, The Federal Government And Higher Education, in AMERICAN HIGHER EDUCATION IN THE TWENTY-FIRST CENTURY 151, 151 (Philip G. Altbach, Robert O. Berdahl & Patricia J. Gumport eds., 1999) (arguing that federal influence has been pervasive).
101. See, e.g., CHRISTOPHER J. LUCAS, AMERICAN HIGHER EDUCATION 116-19 (2006) (discussing the proliferation of colleges in the early to mid-nineteenth century United States).
102. Id at 117.
103. See id. at 108 (arguing that republican ideals in the young nation's history contributed to liberalization of higher education in the United States).
104. See, e.g., Trow, supra note 82, at 57 (calling the federal government's approach to disbursing land grants under the Morrill Acts "extraordinarily permissive").
105. See DAVID L. KIRP, SHAKESPEARE, EINSTEIN, AND THE BOTTOM LINE: THE MARKETING OF HIGHER EDUCATION 2 (2003) ("For better or worse-for better and worse, really-American higher education is being transformed by both the power and the ethic of the marketplace.").
106. See, e.g., SHEILA SLAUGHTER & GARY RHOADES, ACADEMIC CAPITALISM AND THE NEW ECONOMY: MARKETS, STATE, AND HIGHER EDUCATION 1 (2004).
107. Id.
108. See id. at 24 (providing examples of organizations and networks that act as intermediaries between the public and private sectors).
109. Id. at 1.
110. Id.
111. See id. at 11 (defining academic capitalism as "the pursuit of market and marketlike [sic] activities [by colleges and universities] to generate external revenues").
112. See JAMES C. HEARN, AM. COUNCIL ON EDUC, DIVERSIFYING CAMPUS REVENUE STREAMS: OPPORTUNITIES AND RISKS 1 (2003) (identifying "alternative revenue streams" as those from sources other than state appropriations or tuition and fees).
113. Cf. id. at 5 (stating that institutions are being forced "to seek additional revenue sources" to meet the demands of "increased expectations" and the threats of "new providers and technologies").
114. See SLAUGHTER & RHOADES, supra note 88, at 15 ("[K]nowledge is a raw material to be converted to products, processes, or service.").
115. Id.
116. ORG. FOR ECON. CO-OPERATION & DEV., EDUCATION POLICY ANALYSIS: FOCUS ON HIGHER EDUCATION; 2005-2006 12 (2006) [hereinafter OECD POLICY ANALYSIS].
117. See PATRICK M. CALLAN ET AL., THE NAT'L CTR. FOR PUB. POLICY & HIGHER EDUC, GOOD POLICY, GOOD PRACTICE: IMPROVING OUTCOMES AND PRODUCTIVITY IN HIGHER EDUCATION; A GUIDE FOR POLICYMAKERS 1 (2007), http://www.highereducation.org/ reports/Policy-Practice/index.shtml (asserting that opportunities for higher education are not "as widespread as they need to be to place Americans in good jobs, fuel economic growth, promote social mobility and social justice, and sustain the country's democratic ideals").
118. THE NAT'L CTR. FOR PUB. POLICY & HIGHER EDUC, MEASURING UP 2006: THE NATIONAL REPORT CARD ON HIGHER EDUCATION 20 (2006), http://measuringup. highereducation.org/-docs/2006/NationalReport-2006.pdf.
119. See, e.g., SLAUGHTER & RHOADES, supra note 88, at 12 ("[R]aising tuition... has heightened students' and parents' consumer consciousness about what they expect in terms of their educational experience.... These changed expectations reshape student identity from that of learner to that of consumer.").
120. Id. at 1-2 (discussing how students "increasingly choose majors linked to the new economy, such as business, communications, [and] media arts").
121. See, e.g., id. at 42-43 ("By the 1980s and 1990s, higher education was construed less as a necessary public or social good and more as an individual or private good, justifying 'user pays' policies.") (citation omitted).
122. THOMAS J. KANE, THE PRICE OF ADMISSION: RETHINKING HOW AMERICANS PAY FOR COLLEGE 1 (1999) (noting that the difference in earnings between a high school graduate and a college graduate increased from 19% in 1980 to 52% in 1995).
123. But see MICHAEL S. MCPHERSON & MORTON OWEN SCHAPIRO, THE STUDENT AID GAME: MEETING NEED AND REWARDING TALENT IN AMERICAN HIGHER EDUCATION 40 (1998) (arguing that much of the increased economic differentiation between levels of education is mostly attributable to a decline in the value of a high school education, rather than an increase in the value of a college education).
124. Eric J. Anctil, Selling Higher Education: Marketing and Advertising America's Colleges and Universities 3, in 34 ASHE HIGHER EDUC. REPORT (Kelly Ward et al. eds., 2008).
125. Patricia J. Gumport & Barbara Sporn, Institutional Adaptation: Demands For Management Reform and University Administration, in 14 HIGHER EDUCATION: HANDBOOK OF THEORY AND RESEARCH 103, 109 (John C. Smart & William G. Tiemey eds., 1999).
126. See OECD POLICY ANALYSIS, supra note 98, at 18 (describing the impact of new digital technologies on higher education).
127. Marvin W. Peterson & David D. Dill, Understanding the Competitive Environment of the Postsecondary Knowledge Industry, in PLANNING AND MANAGEMENT FOR A CHANGING ENVIRONMENT: A HANDBOOK ON REDESIGNING POSTSECONDARY INSTITUTIONS 3, 13-25 (1997).
128. See, e.g., CAROL A. TWIGG, THE NAT'L CTR. FOR PUB. POLICY & HIGHER EDUC., COURSE REDESIGN IMPROVES LEARNING AND REDUCES COST 1 (2005), available at http://www.highereducation.org/reports/pa-core/core.pdf (discussing a technology-based course redesign project that reduced the costs of offering these courses by an average of 37% for the participants).
129. See generally RICHARD S. RUCH, HIGHER ED, INC.: THE RISE OF THE FOR-PROFIT UNIVERSITY (2001) (discussing the effect of proprietary schools' close attention to operational efficiencies).
130. UNITED NATIONS EDUC, SCIENTIFIC & CULTURAL ORG., HIGHER EDUCATION IN A GLOBALIZED SOCIETY 6 (2004), http://unesdoc.unesco.org/images/0013/001362/ 136247e.pdf [hereinafter UNESCO, GLOBALIZED SOCIETY] (quotation omitted).
131. See id. ("Globalization affects each country in a different way due to each nation's individual history, traditions, cultures, resources [,] and priorities.") (quotation omitted).
132. See OECD POLICY ANALYSIS, supra note 98, at 103 ("There is growing interest in ways to build cumulative knowledge across the profession....").
133. N. V. VARGHESE, UNITED NATIONS EDUC, SCIENTIFIC & CULTURAL ORG., GLOBALIZATION OF HIGHER EDUCATION AND CROSS-BORDER STUDENT MOBILITY 9 (2008), http://www.unesco.org/iiep/PDF/pubs/2008/Globalization-HE.pdf.
134. See id. at 11 ("In 2006, there were 2.7 million students studying abroad.... [P]rojections... indicate that the demand... will increase to 7.2 million by 2025.").
135. See UNITED NATIONS EDUC, SCIENTIFIC & CULTURAL ORG., MEETING OF HIGHER EDUCATION PARTNERS: SYNTHESIS REPORT ON TRENDS AND DEVELOPMENTS IN HIGHER EDUCATION SINCE THE WORLD CONFERENCE ON HIGHER EDUCATION (1998-2003) 23 (2003), http://portal.unesco.org/education/en/files/20031/10561417481synthesis-report. pdf/synthesis-report.pdf (estimating that in 2003 proprietary education generated $365 billion worldwide).
136. See VARGHESE, supra note 114, at 9 (noting that although economic growth depends on numerous factors, "human capital" has become an increasingly important economic driver).
137. See id. at 11 (explaining that cross-border education is mutually beneficial for providers and beneficiaries of education).
138. See, e.g., UNESCO, GLOBALIZED SOCIETY, supra note 111, at 8 (discussing the increased movement of students and scholars between countries "for commercial and forprofit purposes").
139. See, e.g., OECD POLICY ANALYSIS, supra note 98, at 24 ("As the cost and multidisciplinary nature of research at the scientific frontier increase, countries will also increasingly need to draw on ideas generated abroad.").
140. See VARGHESE, supra note 114, at 11 ("The GATS [General Agreement on Trade in Services]... represents a set of multilateral rules governing international trade in services.").
141. Id. at 11-12.
142. UNESCO, GLOBALIZED SOCIETY, supra note 111, at 8 (listing new developments that globalization has helped facilitate in higher education).
143. See, e.g., SLAUGHTER & RHOADES, supra note 88, at 20 ("The neoliberal state focuses not on social welfare for the citizenry as a whole but on enabling individuals as economic actors. To that end, neoliberal states move resources away from social welfare functions toward production functions.").
144. Id. at 21.
145. See, e.g., Trow, supra note 82, at 59 (asserting that the 1972 education amendments "established higher education as a national priority in its own right").
146. See id. at 60 (explaining that student aid had previously been awarded directly to institutions in the form of block grants).
147. Peterson & Dill, supra note 108, at 5-6.
148. Id. at 6.
149. SLAUGHTER & RHOADES, supra note 88, at 35.
150. See id. at 21 (discussing the effects of the Bayh-Doyle Act, which allows institutions to claim ownership of patents that are based on research conducted with federal funds).
151. See COUNCIL FOR ADULT & EXPERIENTIAL LEARNING, SERVING ADULT LEARNERS IN HIGHER EDUCATION: FINDINGS FROM CAEL'S BENCHMARKING STUDY 1 (1999), http://www.cael.org/pdf/publication-pdf/ CAEL%20Benchmarking%20Findings%20Executive%20Summary.pdf (defining the adult learner as financially independent, with major responsibilities outside of school, and "whose principal identities have evolved beyond the role of full-time student").
152. See Michael Kirst, Secondary and Postsecondary Linkages, in ECONOMIC INEQUALITY AND HIGHER EDUCATION: ACCESS, PERSISTENCE, AND SUCCESS 44, 44-46, 56 (Stacy Dickert-Conlin & Ross Rubenstein eds., 2007) (noting the substantial rise in college enrollment, especially in community colleges, and the fact that 80% of postsecondaty students "attend postsecondary institutions that either accept all qualified applicants or are open enrollment").
153. BRYAN J. COOK & DIANA I. CÓRDOVA, AM. COUNCIL ON EDUC, MINORITIES IN HIGHER EDUCATION: TWENTY-SECOND ANNUAL STATUS REPORT 3 (Supp. 2007), http://www.acenet.edu/AM/Template.cfm?Section=CAREE&Template=/CM/ ContentDisplay.cfm&ContentID=23716.
154. OFFICE OF POLICY DEV. & RESEARCH, U. S. DEP'T OF LABOR, ADULT LEARNERS IN HIGHER EDUCATION: BARRIERS TO SUCCESS AND STRATEGIES TO IMPROVE RESULTS 3 (2007), http://wdr.doleta.gov/research/FullText-Documents/ Adult%20Learners%20in%20Higher%20Education1.pdf.
155. See id. (discussing how economic volatility has fueled a "growing demand for continual learning and skill enhancement").
156. Id. (identifying the "typical college student" of the past as a "financially dependent, 18-year-old high school graduate who enrolls full time").
157. See, e.g., Peterson & Dill, supra note 108, at 18-19 (discussing how the rising popularity of non-degree and continuing education programs among adult learners has forced institutions to reassess their programmatic offerings).
158. See, e.g., SLAUGHTER & RHOADES, supra note 88, at 13 (noting that this trend occurred during the 1970s, 80s, and 90s).
159. ANCTIL, supra note 105, at 4 ("[M]arket income has increasingly substituted for public appropriations in higher education....").
160. See, e.g., SLAUGHTER & RHOADES, supra note 88, at 12 (explaining that increasing tuition has led in turn to higher expectations from parents and students on the quality of education received).
161. See, e.g., Bridget Terry Long & Erin Riley, Financial Aid: A Broken Bridge to College Access?, 77 HARV. EDUC. REV. 39, 40 (2007) (noting that median family income only increased by 23% during the same period).
162. See, e.g., id. at 45 (noting that the maximum Pell Grant has decreased by 20% from 1975-1976 to 2005-2006 after accounting for inflation).
163. COLLEGE BOARD. COM, TOTAL PELL GRANT FUNDING DECLINES FOR FIRST TIME IN Six YEARS (2006), http://www.collegeboard.com/prod-downloads/press/cost06/pell- grants-06.pdf.
164. See, e.g., KANE, supra note 104, at 65-66, 69-70 (illustrating an association between increases in state Medicare spending and increases in public four-year tuitions, and discussing the manner in which entitlement spending has affected federal spending on education, particularly grant programs such as Pell).
165. Long & Riley, supra note 142, at 47.
166. Id. at 47-48.
167. See, e.g., SLAUGHTER & RHOADES, supra note 88, at 283 (noting that this trend has ignored the beneficial externalities of higher education).
168. Robert Ball & Jalil Halwachi, Performance Indicators in Higher Education, 16 HIGHER EDUC. 393, 393 (1987).
169. Marilyn G. Kameen & Manuel J. Justiz, Using Assessment in Higher Education to Improve Success for Minority Students, 66 PEABODY J. EDUC. 46, 47 (1988) (asserting that state assessment of student outcomes "emerged as a remarkable new feature in American higher education" as far back as 1985).
170. Alicia C. Dowd, From Access to Outcome Equity: Revitalizing the Democratic Mission of the Community College, 586 ANNALS AM. ACAD. POL. & SOC. SCI. 92, 93 (2003) (quotation omitted).
171. See generally JOSEPH D. CREECH, S. REG'L EDUC. BD., LINKING HIGHER EDUCATION PERFORMANCE INDICATORS TO GOALS (2000), http://eric.ed.gov/PDFS/ ED451781.pdf.
172. See Gary Rhoades & Barbara Sporn, Quality Assurance in Europe and the U. S.: Professional and Political Economic Framing of Higher Education Policy, 43 HIGHER EDUC. 355, 366 (2002) (explaining how accountability models "arrive at higher education's doorstep" after initial trials in business that lead to these models being "discarded") (quotation omitted).
173. See Dowd, supra note 151, at 109-10 (noting that by 2000, almost three-quarters of the states had performance funding systems in place and that the shift away from inputbased funding to funding based on outcomes betokened a new emphasis on accountability).
174. Robert Ball & Rob Wilkinson, The use and Abuse of Performance Indicators in UK Higher Education, 27 HIGHER EDUC. 417, 418 (1994) (defining performance indicators as "[n]umerical values which provide a measurement for assessing the quantitative performance of a system").
175. Ball & Halwachi, supra note 149, at 401;
176. see also Bob Barnetson & Marc Cutright, Performance Indicators as Conceptual Technologies, 40 HIGHER EDUC. 277, 278-79 (2000) (classifying indicators in terms of five organizational elements to which performance indicators are applied: (1) Inputs, e.g., faculty, facilities;
177. -(2) processes, e.g., teaching;
178. -(3) products, e.g., courses completed;
179. -(4) outputs, e.g., degrees awarded, grants secured; and (5) outcomes, e.g., employment rates).
180. See FOSTER, supra note 23, at 8 (referring to these schools as "super systems").
181. See, e.g., ANCTIL, supra note 105, at 22.
182. The student enrollments of the five largest proprietary schools are as follows: Apollo Group (Parent Company of UOP), 420, 700;
183. Education Management Corporation, 112, 700;
184. Kaplan Higher Education, 103, 300;
185. Career Education Corporation;, 93, 100;
186. and DeVry, 90, 365.
187. Erica R. Hendry, For-Prqfit Colleges See Large Increases in Enrollment and Revenue, CHRON. HIGHER EDUC., Aug. 25, 2009, http://chronicle.com/article/ For-Profit-Colleges-See-Lar/48173/.
188. FOSTER, supra note 23, at 13.
189. RUCH, supra note 110, at 52 (chronicling how student interest prompted early proprietary schools to expand their curricula to include courses that taught "skills that were in high demand by employers").
190. Id.
191. Id. at 57 (discussing how proprietary schools were among the first institutions to educate former slaves and Native Americans).
192. U. S. GEN. ACCOUNTING OFFICE, GAO/HEHS-97-103, PROPRIETARY SCHOOLS: POORER STUDENT OUTCOMES AT SCHOOLS THAT RELY MORE ON FEDERAL STUDENT AID 3 (1997), available at http://www.gao.gov/archive/1997/he97103.pdf [hereinafter GAO, POORER OUTCOMES].
193. See e.g., GAO, OVERSUPPLIED OCCUPATIONS, supra note 22, at 7.
194. See, e.g., FOSTER, supra note 23, at 14.
195. Id. ("During the 1970s and 80s, institutions operated with little or no oversight and few constraints in recruiting and training students. A large number of institutions did not provide the training advertised, did not comply with fair consumer practices, and mismanaged finances.").
196. See, e.g., id.
197. Linehan, supra note 7, at 760.
198. See, e.g., Anti-Fraud Hearings, supra note 10, at 2 (statement of Rep. John Boehner, Chairman, H. Comm. on Educ. and the Workforce) ("Proprietary schools... are playing a critical role in providing college access for some of our Nation's most vulnerable students. And thus, they are playing a critical role in carrying out the mission of the Higher Education Act.").
199. FOSTER, supra note 23, at 10 (quotation omitted).
200. See GAO, STRONGER OVERSIGHT, supra note 13, at 20 (listing the 2004 annual median family income for proprietary school students as $24, 300, compared to $40, 400 and $49, 200 for students at public and private nonprofit schools, respectively).
201. See id. at 7 (finding that 56% of students at proprietary schools are age twenty-five and older, compared to 35% and 38% at public and private nonprofit schools respectively).
202. See id. at 20 (finding that 63% of proprietary school students' parents lack a college degree, compared to 48% and 39% at public and private nonprofit schools, respectively).
203. See id. at 7 (finding that 63% of students at proprietary schools are females, compared to 54% and 56% at public and private nonprofit schools respectively);
204. see also Anti-Fraud Hearings, supra note 10, at 46 (statement of Nick Glakas, President, Career College Association) (stating that proprietary schools enroll a large percentage of single parents).
205. See GAO, STRONGER OVERSIGHT, supra note 13, at 8 (finding that 50% of students at proprietary schools are non-white, compared to 34% and 30% for students at public and private nonprofit schools, respectively).
206. Proprietary schools award 25% of the associate's degrees, 7% of the bachelor's degrees, and 6% of the master's degree earned by Hispanic students. Walden University, an online proprietary school, ranks among the top ten of doctoral degree-granters to black students.
207. And-Fraud Hearings, supra note 10, at 47.
208. Id. at 46 ("On average, students attending career colleges earn their associates degree [s] eleven months sooner than students at community colleges.").
209. See KIRP, supra note 87, at 253 (stating that proprietary schools "have no commitment to the idea of public service, no sense of their mission as tied to the good of the commonwealth").
210. GAO, POORER OUTCOMES, supra note 164, at 5.
211. KNAPP et AL., supra note 6, at 12.
212. LOONIN & DEVANTHÉRY, supra note 29, at 38 ("The reliability of the numbers in IPEDS is based solely on the reporting done by the institutions themselves. This is extremely problematic as it leaves nearly absolute discretion in the hands of schools that have every incentive to inflate the numbers.").
213. See GAO, POORER OUTCOMES, supra note 164, at 9.
214. See GAO, STRONGER OVERSIGHT, supra note 13, at 14-15 (listing proprietary school default rates that are as much as 250% higher than the next highest rate-that of public schools).
215. See id. at 13-14 ("[T]he rate captures only a small portion of all student loan defaults at schools.").
216. See GAO, POORER OUTCOMES, supra note 164, at 24-25 (demonstrating that increased reliance by schools on Title IV revenue leads to lower completion and graduation rates, and higher default rates).
217. See Long & Riley, supra note 142, at 40 (explaining that only 43% of students from families making less than $30, 000 per year "immediately entered a post-secondary institution" compared to 75% of students whose families make more than $50, 000).
218. See, e.g., id. at 58 (concluding that the Pell Grant will provide more access to higher education for low-income students).
219. See GAO, POORER OUTCOMES, supra note 164, at 20 ("We believe knowing a school's completion rate helps predict its placement rate and knowing both completion and placement rates helps predict its default rate.").
220. See KIRP, supra note 87, at 250 ("We accept students who, on paper, aren't likely to make it....") (quotations omitted).
221. See Anti-Fraud Hearings, supra note 10, at 22 (statement of Rep. Maxine Waters) ("[T]he real motive behind wanting to enroll more minority and low income students is that they are the most profitable students since they qualify for the highest amounts of federal financial aid and the smallest expected family contribution, or none at all.").
222. See Hendry, supra note 159.
223. LAURA G. KNAPP ET AL., NAT'L CTR. FOR EDUC. STATISTICS, U. S. DEP'T OF EDUC, NCES 2009-165, POSTSECONDARY INSTITUTIONS AND PRICE OF ATTENDANCE IN THE UNITED STATES: FALL 2008, DEGREES AND OTHER AWARDS CONFERRED 2007-08, AND 12-MONTH ENROLLMENT: 2007-08 7 (2009), http://eric.ed.gov/PDFS/ED506744.pdf.
224. See FOSTER, supra note 23, at 8 ("The primary purpose of for-profit postsecondary institutions is preparing graduates for jobs or career advancement. as a result, these institutions generally offer a small, focused range of programs limited to high-demand occupational or professional fields.").
225. But see generally GAO, OVERSUPPUED OCCUPATIONS, supra note 22, at 4-5 (discussing the amount of federal financial aid used by students training for low-demand fields).
226. See KIRP, supra note 87, at 242 (listing the MBA program as an example of a predominant niche of proprietary education).
227. See Anti-Fraud Hearings, supra note 10, at 46 (statement of Nick Glakas, President, Career College Association) ("For-profit institutions are pioneering a wide array of innovative program delivery methodologies such as on-line, modular, and weekend programs to complement their traditional classroom offerings.").
228. See id. ("Students choose to attend for-profit colleges because these delivery methods meet their time and geographical needs, allowing them to achieve their postsecondary education goals while continuing to meet the demands of their every day lives. On average, students attending career colleges earn their associates degree eleven months sooner than students at community colleges.").
229. See Hendry, supra note 159 ("The recession has left nonprofit colleges and universities across the country struggling with budget cuts and uncertainties over enrollment, but many for-profit institutions are reporting record increases in student numbers and revenue-a sign that the recession is prompting more adults and nontraditional students to seek career training.").
230. HOWARD M. BLOCK, BANK OF AM. SEC. LLC, STATEMENT BEFORE THE SECRETARY OF EDUCATION'S COMMISSION ON THE FUTURE OF HIGHER EDUCATION 10 (2006), http://www.ed.gov/about/bdscomm/list/hiedfuture/3rd-meeting/block2.pdf.
231. On January 3, 1995, Apollo and ITT stock were priced at $0.79 and $2.22, respectively. New York Stock Exchange Composite Transactions, WALL ST. J., Jan. 3, 1995, at 23, available at http://www.bigcharts.com/custom/ wsjie/wsjbb-historical.asp?symb=APOL&close-date=1%2F3%2F1995&x=0&y= 0;
232. NSDAQ National Market Issues, WALL ST. J., Jan. 3, 1995, at 25, http://www.bigcharts.com/custom/wsjie/wsjbbhistorical.asp?symb= esi&close-date=1%2F3%2F1995&x=0&y=0. By late 2009, they were trading at around $60 and $90 respectively.
233. Biggest 1, 000 Stocks, WALL ST. J., Nov. 13, 2009, at C8, available at http://www.bigcharts.com/custom/wsjie/wsjbbhistorical.asp?symb= apol&close-date=11%2F13%2F2009&x=0&y=0;
234. WSJ.com, Historical Quotes, ITT Educational Services, Inc, http://www.bigcharts.com/custom/wsjie/wsjbbhistorical.asp?symb= esi&close-date=11%2F13%2F2009&x=0&y=0 (last visited Aug. 4, 2010)
235. DeVry stock price has risen more than 3, 200% since 1991. Compare Biggest 1, 000 Stocks, WALL ST. J., Nov. 13, 2009, at C7, available at http://www.bigcharts.com/custom/wsjie/wsjbbhistorical.asp?symb= apol&close-date=11%2F13%2F2009&x=0&y=0
236. with WSJ.com, Historical Quotes, DeVry Inc, http://www.bigcharts.com/ custom/wsjie/wsjbbhistorical.asp?symb=DV&close-date=12%2F10%2F1991&x= 19&y=10 (last visited Aug. 4, 2010).
237. Career Education Corporation stock price has risen more than 750% since 1998. Compare NASDAQ National Market Issues, WALL ST. J., Dec. 10, 1998, at C9, available at http://www.bigcharts.com/custom/wsjie/wsjbb-historical.asp?symb= CECO&close-date=12%2F10%2F1998&x=0&y=0
238. with WSJ.com, Historical Quotes, Career Education Corp, http://www.bigcharts.com/custom/wsjie/wsjbbhistorical.asp?symb= ceco&close-date=11%2F13%2F2009&x=0&y=0 (last visited Aug. 4, 2010).
239. RUCH, supra note 110, at 76 (citing "Scale Economies and Operating Efficiencies" as one of seven "Ingredients for Profitability" for proprietary schools).
240. Id. at 88.
241. See id. at 118-19 (stating that although the faculty "are the center of academic life", the president is expected to maintain managerial control over decision making).
242. See id. at 119 (noting the apparent "lack of a tenure system at for-profit universities").
243. Goldie Blumenstyk, Lessons from For-Prqfit Institutions About Cutting College Costs, CHRON. HIGHER EDUC., June 5, 2008, http://chronicle.com/article/ For-Profit-Colleges-Share-L/867/.
244. See, e.g., Jeffrey Selingo, U. of Phoenix Owes Rapid Growth to use of Technology, Its President Says, CHRON. HIGHER EDUC., June 17, 2005, at A23, available at http://chronicle.com/article/U-of-Phoenix-Owes-Rapid-Gr/3394/ (reporting that 40% of all admissions decisions by the University of Phoenix are "made without human intervention").
245. Facility costs are the second largest expense incurred by proprietary schools, behind salaries.
246. Blumenstyk, supra note 206.
247. This approach to managing space differs somewhat from that of most nonprofit schools, as these schools are often incentivized to own their facilities and expand such holdings.
248. Id.
249. See RUCH, supra note 110, at 88 (discussing how proprietary schools track class enrollments closely and make adjustments accordingly).
250. See, e.g., KIRP, supra note 87, at 242 ("Increasing enrollment has to be the paramount concern for any for-profit university, especially one whose stock is publicly traded.").
251. See id. at 242, 247 (claiming that for-profit universities, such as DeVry, have higher tuition and must use aggressive marketing and recruiting to bring in prospective students).
252. See id. at 247 (explaining that for schools with multiple campuses, these individuals are often responsible for recruiting on behalf of all schools within a particular region).
253. Anti-Fraud Hearings, supra note 10, at 8 (statement of Rep. Maxine Waters).
254. Id.
255. Id. ("The amount spent on advertising, lead creation, recruiting, and admissions representatives far exceeds the salaries paid to faculty.").
256. See KIRP, supra note 87, at 242 (admitting that because recruiters are expected to meet enrollment quotas, that they sometimes oversell the school and "skirt [] the border of misrepresentation").
257. See, e.g., id. at 245.
258. See Linehan, supra note 7, at 757-58 ("Students generally view proprietary schools as the gatekeepers to their trade of choice....").
259. YouTube.com, Education Connection "Get Connected" TV Commercial, http://www.youtube.com/watch?v=7a0wat0C2dM (last visited Aug. 4, 2010).
260. Id.
261. Id.
262. See, e.g., Linehan, supra note 7, at 757 (explaining the types of advertising that proprietary schools use when focusing on certain demographics).
263. See, e.g., id. at 757-58.
264. Anti-Fraud Hearings, supra note 10, at 46 (statement of Nick Glakas, President, Career College Association).
265. See, e.g., GAO, STRONGER OVERSIGHT, supra note 13, at 28.
266. See, e.g., FOSTER, supra note 23, at 24.
267. See Linehan, supra note 7, at 754 (alleging that the current legal doctrine fails to protect students from the schools' predatory practices).
268. KNAPP et AL., supra note 193, at 6.
269. Id.
270. See CHRISTINA CHANG WEI ET AL., NAT'L CTR. FOR EDUC. STATISTICS, U. S. DEP'T OF EDUC, NCES 2008-179REV, TRENDS IN UNDERGRADUATE BORROWING II: FEDERAL STUDENT LOANS IN 1995-96, 1999-2000, and 2003-04 19 (2008), http://nces.ed.gov/ pubs2008/2008179rev.pdf (listing borrowing percentages for public two-year, public four-year, and private institutions in 2003-04 as 11%, 42%, and 53% respectively).
271. Id. at 20 (listing average loan amounts for public two-year, public four-year, and private not-for-profit institutions in 2003-2004 as $3, 400, $4, 900, and $5, 100 respectively).
272. Id. at 21.
273. GAO, POORER OUTCOMES, supra note 164, at 5.
274. GAO, STRONGER OVERSIGHT, supra note 13, at 13 (stating that the public and private nonprofit sectors had rates of 4.7% and 3% respectively).
275. See id. at 15 (providing a four-year default rate of 23.3% for proprietary school borrowers and 9.5% and 6.5% for public and private school borrowers, respectively).
276. Eg., id. at 12.
277. Id.
278. See, e.g., U. S. Dep't of Educ, Federal Student Aid, Common Disputes Involving Defaulted Student Loans, http://www.ed.gOv/ofiices/OSFAP/DCS/disputes. html#Bankruptcy (last visited Aug. 4, 2010) ("Whether a bankruptcy discharge relieves an individual of his or her obligation to repay a student loan or grant overpayment is now determined by whether a court has ruled that repayment would impose an undue hardship on the borrower and his or her dependents.").
279. See Oversight Hearing on the Department of Education: Hearings Before the Subcomm. on Human Resources and Intergovernmental Relations of the H. Comm. on Government Reform and Oversight, 104th Cong. 15 (1995) (statement of Richard W. Riley, Secretary of Education).
280. See FOSTER, supra note 23, at 24 ("[L]egal aid attorneys believe that most students who have been misled by institutions do not complain; and, as a result, the number of complaints is not an adequate indication of the level of fraud and abuse perpetuated by some for-profit institutions.").
281. Linehan, supra note 7, at 764.
282. See id. ("[T]he doctrine of academic abstention reflects courts'... reluctance to delve into the operation of educational institutions....").
283. -454 N. Y. S.2d 868 (App. Div. 1982).
284. Id. at 873.
285. Id. at 872.
286. RESTATEMENT (SECOND) OF TORTS § 526 (1977).
287. Id. §537.
288. Id. § 538 (2) (a).
289. Id. § 538 (2) (b).
290. See, e.g., Linehan, supra note 7, at 770 (discussing the heightened pleading requirements for complaints alleging intentional fraud).
291. Id.
292. Id.
293. Schwitters v. des Moines Commercial Coll., 203 N. W. 265, 265 (Iowa 1925).
294. See Linehan, supra note 7, at 768 ("By promising outcomes which in some way depend on student ability, labor demand, or other factors outside the control of the school, the school can employ deceptively persuasive statements about the benefits to be reaped from their program with little threat of liability under a fraudulent misrepresentation tort action. ").
295. Generally, negligent conduct can be found where (a) an act which the actor as a reasonable man should recognize as involving an unreasonable risk of causing an invasion of an interest of another, or (b) a failure to do an act which is necessary for the protection or assistance of another and which the actor is under a duty to do.
296. RESTATEMENT (SECOND) OF TORTS § 284 (1965). Negligence lawsuits against proprietary schools usually allege that the school failed to provide training or education it had a duty to provide.
297. See, e.g., Amaral v. Am. Sch. of Correspondence, 107 F. App'x. 497, 498-99 (6th Cir. 2004).
298. See, e.g., Ross v. Creighton Univ., 957 F.2d 410, 412 (7th Cir. 1992).
299. -851 P.2d 203 (Colo. App. 1992).
300. Specifically, the claims alleged negligence in informing plaintiffs of the type of education they would receive, negligence of a specialist in technical education, and negligence based on defendants' failure to avoid false or misleading advertising.
301. Id. at 204-05.
302. Id. at 205.
303. Id.
304. Ross, 957 F.2d at 412, 414, 416 (characterizing educational malpractice claims as "beloved of commentators, but not of courts", and identifying Montana as the only state that allows educational malpractice claims to go forward).
305. See, e.g., id. at 414 (discussing reasons courts have rejected educational malpractice as a cause of action, including the lack of a standard of care, uncertainty about the cause and nature of damages, the potential for mass litigation, and the possibility that courts would be forced to oversee the operations of schools).
306. Linehan, supra note 7, at 771.
307. Wickstrom v. N. Idaho Coll., 725 P.2d 155, 157 (Idaho 1986) ("There seems to be almost no dissent from the proposition that the relationship [between institution and student] is contractual in nature.").
308. CenCor, Inc. v. Tolman, 868 P.2d 396, 399 (Colo. 1994).
309. Ross, 957 F.2d at 416.
310. Id. at 417.
311. Ross was a basketball player who entered Creighton with known academic deficiencies. In his complaint he averred that Creighton breached its promise to provide Ross "an opportunity to participate, in a meaningful way, in the academic program of the University despite his academic background" in return for his promise to play basketball. The breach arose from Creighton's alleged failure to provide Ross with tutoring services, an opportunity and directive to take advantage of those services, an athletic redshirt that would allow him to better focus on academics, and funds to attain a college degree.
312. Id. at 416.
313. Id. at 417.
314. Id.
315. See id. (dismissing the plaintiff's negligence claims while preserving his contract claims).
316. Sheila B. Scheuerman, The Consumer Fraud Class Action: Reining in Abuse by Requiring Plaintiffs to Allege Reliance as an Essential Element, 43 HARV. J. ON LEGIS. 1, 23 (2006);
317. see also Jon Mize, Comment, Fencing Off the Path of Least Resistance: Re-Examining the Role of Little FTC Act Actions in the Law of False Advertising, 72 TENN. L. REV. 653, 660 (2005) (listing "treble damages, punitive damages, statutory minimum damages, and attorney's fees" as the most common damages allowed by state consumer fraud statutes).
318. See, e.g., Utah Div. of Consumer Prot., Postsecondary Proprietary Schools, http://consumerprotection.utah.gov/registrations/schools.html (last visited Aug. 4, 2010).
319. Linehan, supra note 7, at 776.
320. But see Mize, supra note 274, at 661 (characterizing state consumer fraud statutes as "the path of least resistance" in suits alleging false advertising).
321. See, e.g., Rizzo v. Michener, 584 A.2d 973, 980 (Pa. Super. Ct. 1990) ("Actual fraud has five elements which must coalesce. There must be (1) misrepresentation of a material fact;
322. -(2) scienter;
323. -(3) intention by the declarant to induce action;
324. -(4) justifiable reliance by the party defrauded upon the misrepresentation;
325. and (5) damage to the party defrauded as a proximate result.").
326. See, e.g., FLA. STAT. § 501.2105 (1) (1998) (placing the awarding of attorney's fees within the discretion of the trial judge).
327. GAO, ENSURING QUALITY, supra note 27, at 4.
328. An example of this function is DOE's tracking of cohort default rates.
329. Id. at 4.
330. See id. at 4-5 (noting that DOE "certifies that such agencies are reliable authorities as to what constitutes quality education or training provided by postsecondary institutions").
331. See id. at 5 (stating that these agencies are often responsible for establishing standards for regulation of higher education institutions).
332. See id. ("Other state agencies define certain consumer protection measures, such as refund policies. In the normal course of regulating commerce, all states require postsecondary institutions to have a license to operate within their borders.").
333. See id. at 5-6 ("Accrediting agencies adopt criteria they consider to reflect the qualities of a sound educational program and develop procedures for evaluating institutions to determine whether they operate at basic levels of quality.").
334. See id. at 4-6 (describing the accreditation process).
335. See Anti-Fraud Hearings, supra note 10, at 23-24 (statement of Rep. Maxine Waters) ("[T]he Department does not investigate charges made by students regarding misrepresentations made to influence students to enroll...[;] these federal regulations have no private right of action, and can only be enforced by the Department, which does not do its job.").
336. See Linehan, supra note 7, at 788 (noting that "nothing is done to compensate the victim").
337. See, e.g., Anti-Fraud Hearings, supra note 10, at 21 (statement of Rep. Maxine Waters) ("[T]he school doing the defrauding may be allowed to pay a few cents on the dollar to settle claims with the Department, or placed on reimbursement status so that they have to wait 45 days for payment of financial aid.").
338. See id. at 17 ("|T]here is a built-in conflict of interest with respect to accrediting agencies, because they have no incentive to revoke accreditation since their income-stream is directly determined by the number of schools they accredit.").
339. See, e.g., GAO, STRONGER OVERSIGHT, supra note 13, at 9-11 (stating that the DOE is "responsible for overseeing test publishers" and setting standards).
340. U. S. Dep't of Educ., Office of Inspector Gen., OIG Hotline, http://www.ed.gov/about/offices/list/oig/hotline.html (last visited Aug. 4, 2010).
341. See Patricia P. Bailey, Unfair Competition and Misleading Advertising: How Advertising is Regulated in the United States, 54 ANTITRUST L. J. 31, 532 (1985) ("Congress authorized the agency... to challenge 'unfair or deceptive acts or practices' to promote truth in advertising and fair merchandising practices. The Commission's goal is... to ensure that consumers receive both the information necessary to make informed choices in the marketplace and the opportunity to use that information effectively....").
342. See id. ("[T]he Commission investigates commercial behavior that may be deceptive or unfair, including advertising....").
343. Over the last two decades, the Federal Trade Commission (FTC) has gradually shifted away from rulemaking, focusing instead on enforcement. The reason for this shift is that rulemaking is seen as labor-intensive and controversial. Rulemaking is now typically undertaken at the behest of Congress. Today, the FTC's primary method of rulemaking is the public workshop conference, where industry stakeholders (e.g., business entities, consumer groups, other federal agencies, and state law enforcement officials) are brought together to discuss proposed rules changes. The input provided in these conferences help inform the rules promulgated by the FTC.
344. See generally Lydia B. Parnes & Carol Jennings, Through the Looking Glass: A Perspective on Regulatory Reform at the Federal Trade Commission, 49 ADMIN. L. REV. 989, 998-99 (1997) (describing the role of workshop conferences).
345. Id. at 992 n. 14 (noting that industry guides provide "an interpretation of the underlying statute, but [do not afford] an independent basis for enforcement action").
346. Guides for Private Vocational and Distance Education Schools, 16 C. F. R. pt. 254 (2010).
347. See, e.g., Bailey, supra note 292.
348. Id. at 533.
349. For example, the North Carolina Office of Proprietary Schools is a division of the State Board of Community Colleges. N. C. Community Colleges, Proprietary Schools, http://www.ncccs.cc.nc.us/Proprietary-Schools/ (last visited Aug. 4, 2010).
350. See, e.g., UTAH CODE ANN. § 13-34-108 (2009) (requiring fair and accurate marketing practices and full disclosure of relevant institutional information before any applicant enrolls in a Utah proprietary school).
351. See, e.g., Scheuerman, supra note 274, at 23 & nn. 161-62.
352. See, e.g., Utah Div. of Consumer Prot., supra note 275 (providing instructions for postsecondary proprietary schools to complete registration with the Utah Division of Consumer Protection, as required by state law).
353. In most countries, accreditation is a governmental function. However, concerns about federalism have prompted Congress to place the responsibility of institutional quality assessment in the hands of these private entities. There are about 3, 500 accredited institutions nationwide, and the vast majority of them are for-profit.
354. FOSTER, supra note 23, at 18.
355. GAO, ENSURING QUALITY, supra note 27, at 5-6.
356. See, e.g., FOSTER, supra note 23, at 19.
357. -20 U. S. C. § 1099b (a) (5) (A) (2006) ("[T]he standards for accreditation of the agency or association assess the institution's success with respect to student achievement in relation to the institution's mission..." which may include different standards for different institutions or programs, as established by the institution.).
358. DRINKER BIDDLE & REATH LLP, EDUCATION LAW ALERT: HIGHER EDUCATION OPPORTUNITY ACT FINAL RULE-ACCREDITING AGENCY RECOGNITION 1 (2009), http://www.drinkerbiddle.com/files/Publication/88e5ba42-9a12-4632-b416- 09b3a1510d27/Presentation/PublicationAttachment/43c2b066-fc38-48e7-bbfe- 0a27dle85586/Higher-Education-Opportunit.pdf.
359. See, FOSTER, supra note 23, at 2, 4.
360. See generally Bailey, supra note 292.
361. INT'L CTR. FOR ALCOHOL POLICIES, ICAP REPORTS 9, SELF-REGULATION OF BEVERAGE ALCOHOL ADVERTISING 1 (2001), http://www.icap.org/portals/0/download/ all-pdfs/ICAP-Reports-English/report9.pdf [hereinafter ICAP REPORTS].
362. See, e.g., Bailey, supra note 292, at 537 ("An often-stated goal of the self-regulatory apparatus is to protect consumers from deceptive advertising; there is no doubt in my mind, however, that another important goal served by it is to protect-if not necessarily to promote-fair competition. ").
363. See id. (describing how the National Advertising Division of the Council of Better Business Bureaus, Inc. and the National Advertising Review Board serve as valuable components to state and federal oversight of advertising).
364. Goldie Blumenstyk, Economic Downturn is a Boon for For-Prqfit Colleges, CHRON. HIGHER EDUC., Dec. 10, 2008, http://chronicle.com/article/Economic- Downturn-Is-a-Boon/1400/.
365. UOP alone is the seventh biggest online advertiser.
366. Goldie Blumenstyk, Marketing, the For-Prqfit Way, CHRON. HIGHER EDUC., Dec. 1, 2006, at A20, available at http://chronicle.com/article/Marketing-the- For-Profit-Way/6212/.
367. See, e.g., ANCTIL, supra note 105, at 31 ("Among the greatest challenges to successfully marketing higher education is the inherently intangible nature of the very thing that is being marketed.").
368. Id. at 17 (arguing that in seeking market differentiation, "[c]olleges and universities are reduced to boasting of their multimillion-dollar student recreation centers, [and] their nouveau chic dining residence halls").
369. ITT often features graduates discussing how receiving their degrees positively affected not only their careers, but also their family life.
370. See, e.g., MySpace.com, ITT Tech Commercial: "If I Want to Do Something I Will Do My Best to Accomplish It", http://vids.myspace.com/ index.cfm?fuseaction=vids.individual&VideoID=691408 (last visited June 27, 2010). However, this is not to suggest that proprietary school ads only focus on careers and jobs. Proprietary school ads take a variety of approaches. In addition to ads that focus on end results, other ads tout components of an institution's suite of services, such as those relating to student support. UOP's "I Am a Phoenix" campaign provides examples of this approach.
371. See, e.g., University of Phoenix, UOPX on Television: I Am a Phoenix, http://www.phoenix.edu/about-us/ad-campaigns.html (last visited Aug. 4, 2010).
372. Pauline M. Ippolito, What Can We Learn from Food Advertising Policy over the Last 25 Years, 12 GEO. MASON L. REV. 939, 959 (2004) ("The ability of firms to speak to potential consumers about important product characteristics is an essential element of competition-it informs consumers and pushes firms to offer better products.").
373. Bolger v. Youngs Drug Prods. Corp., 463 U. S. 60, 66 (1983) (specifying that speech is commercial in nature when (1) it is a paid-for advertisement (2) that refers to a specific product, and (3) is published in the economic interest of the speaker; however
374. the Court indicated that not all three characteristics are necessary for speech to be considered commercial);
375. Va. State Bd. of Pharm. v. Va. Citizens Consumer Council, 425 U. S. 748, 761 (1976) ("[S]peech does not lose its First Amendment protection because money is spent to project it, as in a paid advertisement of one form or another.").
376. Va. State Bd. of Pharm., 425 U. S. at 748.
377. Id. at 765 ("So long as we preserve a predominantly free enterprise economy, the allocation of our resources in large measure will be made through numerous private economic decisions. It is a matter of public interest that those decisions... be intelligent and well informed. To this end, the free flow of commercial information is indispensable.").
378. Id at 758.
379. Id. at 771 ("Untruthful speech, commercial or otherwise, has never been protected for its own sake.");
380. see also In re Int'l Harvester Co., 104 F. T. C. 949, 1056 (1984) (noting that deceptive advertising "is harmful to consumers, undermines the rational functioning of the marketplace, and... never offers increased efficiency or other countervailing benefits that must be considered").
381. -447 U. S. 557 (1980).
382. Id. at 566 ("For commercial speech to come within [First Amendment protection], it at least must concern lawful activity and not be misleading. Next, we ask whether the asserted governmental interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest.").
383. Id. at 602.
384. Tom Valuck, Note, Keeping Dietary Supplement Regulations Slim and Fit: Finding a Healthy Balance Between Paternalism and Consumer Choice, 2 GEO. J. L. & PUB. POL'Y 285, 300 (2004).
385. -433 U. S. 350, 372 (1976).
386. Id. at 374-75.
387. Id. at 375.
388. Ippolito, supra note 318, at 950 ("[R]equiring [disclaimers] raises the firm's cost of making the claims, and the 'clutter' of the added requirements may make the claims less effective as a marketing tool. If these effects are significant, they reduce firms' incentives to make the claims at all.").
389. See, e.g., U. S. Dep't of Labor, Bureau of Labor Statistics, Education Pays in Higher Earnings and Lower Unemployment Rates, http://www.bls.gov/emp/ep- chart-001.htm (last visited Aug. 4, 2010).
390. See, e.g., In re la Salle Extension Univ., 78 F. T. C. 1272, 1284 (1971) ("Where... the mere offering of the product or service leads to deception... we believe that it is reasonable and necessary to demand that a disclosure required to dispel the deception be given equal prominence with the offer.").
391. BUREAU OF CONSUMER PROT., FED. TRADE COMM'N, DIETARY SUPPLEMENTS: AN ADVERTISING GUIDE FOR INDUSTRY 6 (2001), http://www.ftc.gov/bcp/edu/pubs/ business/adv/bus09.pdf.
392. -78 F. T. C. at 1272-73.
393. Id. at 1280-81.
394. Id. (requiring disclaimers to be placed "on the front page or cover and on each page of any promotional material or descriptive brochure wherein respondent's law courses or law degrees are mentioned in type the same size and appearance as the advertising claims appearing thereon").
395. Id. at 1281 (requiring disclaimers to state that "courses are not recognized or accepted as sufficient education or legal training to qualify the student to become a candidate for admission to the profession of law in any of the States in the United States or the District of Columbia").
396. A recent Remington College commercial airing in the Nashville, Tennessee area displayed two disclaimers, including one stating, "Individual results may vary." The disclaimers were displayed in very small font and only appeared for ten seconds of the sixtysecond commercial. Vimeo.com, Remington College Commercials, http://www.vimeo.com/2901500 (last visited Aug. 4, 2010).
397. FTC Guides Concerning use of Endorsements and Testimonials in Advertising, Consumer Endorsements, 16 C. F. R. § 255.2 (b) (2010).
398. See John E. Villafranco & Andrew B. Lustigman, Regulation of Dietary Supplement Advertising: Current Claims of Interest to the Federal Trade Commission, Food and Drug Administration and National Advertising Division, 62 FOOD & DRUG L. J. 709, 723-24 (2007) (noting that "the degree of sophistication of the target audience is a significant factor in determining the reasonable message conveyed by the advertising" and explaining that the FTC has assessed both higher and lower standards of reasonableness).
399. -16 C. F. R. § 254 (2010).
400. Private Vocational and Distance Education Schools, Request for Public Comments, 74 Fed. Reg. 37, 973, 37, 973 (July 30, 2009).
401. These misrepresentations concern the description of the school, its accreditation, the transferability of credits, the content of ads and testimonials, teacher qualifications, courses offered, the availability of employment and financial aid, and enrollment qualifications.
402. Id. at 37, 973-74.
403. -16 C. F. R. § 254 (a) ("These Guides do not apply to resident primary or secondary schools or institutions of higher education offering at least a 2-year program of accredited college level studies generally acceptable for credit toward a bachelor's degree.").
404. See GAO, STRONGER OVERSIGHT, supra note 13, at 1 ("In recent years, the scale and scope of proprietary schools have changed considerably.... Traditionally focused on certificate and associate programs ranging from cosmetology to medical assistance and business administration, proprietary institutions have expanded their offerings to include bachelors, masters, and doctoral level programs.").
405. See KIRP, supra note 87, at 241 (describing a "new breed" of proprietary schools where the majority of students are enrolled "in degree programs for everything from the associate degree to the Ph. D.").
406. In July, 2009, the FTC requested public comments on the Guides "as part of its systematic review of [agency] guides and regulations." In the request, the FTC presented eighteen questions relating to how the Guides can be made more effective. None of the questions directly related to expanding the scope of the Guides, though question three asks about possible modifications.
407. Fed. Reg. at 37, 973-75.
408. See Better Bus. Bureaus, Advertising Review Services, http://www.bbb.org/us/Advertising-Review-Services/ (last visited Aug. 4, 2010) ("An alliance of the Association of National Advertisers, the American Association of Advertising Agencies, the American Advertising Federation and the Council of Better Business Bureaus. The National Advertising Review Council's (NARC) mission is to foster truth and accuracy in national advertising through voluntary self-regulation. ").
409. See Better Bus. Bureaus, Electronic Retailing Self-Regulation Program, http://www.bbb.org/us/electronic-retailing-self-regulation-program/ (last visited Aug. 4, 2010) ("[The Electronic Retailing Self-Regulation Program]'s mission is to enhance consumer confidence in electronic retailing. ERSP provides a quick and effective mechanism for evaluating, investigating, analyzing[,] and resolving inquiries regarding the truthfulness and accuracy of the primary or core efficacy or performance claims that are communicated in national direct response advertising.").
410. See Better Bus. Bureaus, Children's Advertising Review Unit, http://www.bbb.org/us/children-advertising-review-unit/ (last visited Aug. 4, 2010) ("[The Children's Advertising Review Unit (CARU) of the Council of Better Business Bureaus] is the children's arm of the advertising industry's self-regulation system and evaluates childdirected advertising and promotional material in all media to advance truthfulness, accuracy and consistency with its Self-Regulatory Program for Children's Advertising and relevant laws.");
411. Better Bus. Bureaus, Children's Food and Beverage Advertising Initiative, http://www.bbb.org/us/children-food-beverage-advertising-initiative/ (last visited Aug. 4, 2010) ("The Initiative is a voluntary self-regulation program with many of the nation's largest food and beverage companies as participants. The Initiative is designed to shift the mix of advertising messaging to children to encourage healthier dietary choices and healthy lifestyles.").
412. See Better Bus. Bureaus, National Advertising Division, http://www.bbb.org/us/us/national-advertising-division/ (last visited Aug. 4, 2010) ("The mission of the National Advertising Division (NAD) of the Council of Better Business Bureaus (CBBB) is to review national advertising for truthfulness and accuracy and foster public confidence in the credibility of advertising.").
413. Nat'l Advertising Review Bd., http://www.narbreview.org/ (last visited Aug. 4, 2010) ("NARB is the appeal division of the advertising industry's self-regulatory system.").
414. Bailey, supra note 292, at 537 (noting that the advertising industry "has established two quasi-judicial regulatory bodies to review advertising", and that these agencies are "a valuable complement to federal and state efforts to police against deceptive advertising").
415. Cf. ICAP REPORTS, supra note 310, at 1 ("Impartiality is seen to be key to an effective [self-regulatory] code and public trust in it.").
416. -20 U. S. C. § 1092 (2006).
417. Id. § 1092 (a) (1).
418. Id.
419. Id. § 1092 (e) (2).
420. But see id. § 1092 (e) (6) (waiving these requirements "for any institution of higher education that is a member of an athletic association or athletic conference that has voluntarily published completion or graduation rate data or has agreed to publish data that... is substantially comparable to the information required under this subsection").
421. UTAH CODE ANN. § 13-34-108 (2009).
422. This proposal is based on a recommendation made by the GAO.
423. See GAO, OVERSUPPLIED OCCUPATIONS, supra note 22, at 13-14.
424. See id. at 8 ("The surplus of qualified job candidates, including proprietary school graduates, for some occupations occasionally reached dramatic proportions in some states, exceeding demand by ratios of 10 to 1 or more.").
425. See Anti-Fraud Hearings, supra note 10, at 5 (statement of Honorable George Miller) ("[C]ertain colleges... misrepresented graduation rates, promised inflated salaries to prospective enrollees, [and] enrolled students who did not have the ability to complete casework....").
426. GAO, OVERSUPPLIED OCCUPATIONS, supra note 22, at 5 ("Using labor market projections provides a rational basis for making training investment decisions....").
427. But see id. (warning that labor market projections are "inherently imprecise").