Predatory Lending/Consumer Protection Clinic

How It Feels When Students Stand Up to the Department of Education and Win

Meaghan Bauer knew something was wrong, so she stood up and fought back. As a result, she’s helping protect thousands of other students’ rights to borrower defense.

Meaghan Bauer and Stephen Del Rose, former students of EDMC-owned New England Institute of Art, were cheated by their school and left with a massive pile of debt.

Like the hundreds of thousands of students who were cheated by predatory for-profit colleges, they trusted in institutions like their school and their government. Their school not only let them down, but actively misled, cheated and harmed them. Then, the Department of Education doubled down on that harm. Under Betsy DeVos, the Department repeatedly delayed the implementation of a new Borrower Defense rule, which offered critical protections for students and would have allowed them to bring their case against their school to court on behalf of a class.

Meaghan and Stephen fought back. They filed a lawsuit against the Secretary of Education for illegally delaying a rule intended to protect borrowers’ rights. And this month, a federal judge agreed – ruling that the Department of Education broke the law when it delayed the rule.

When she learned of the ruling, Meaghan Bauer was elated. But despite her happiness about winning a major victory for students, Meaghan was still angry. She said:

“We are supposed to be able to trust our government and know that when they make a new policy it is with our best interests in mind. It is really sad that the government dragged this out for so long and acted so childishly that they needed a judge to tell them that what they are doing is illegal. I hope this ruling reminds the government of its obligation to care for its citizens who are the future of this country, instead of focusing on lining the pockets of for profit institutions. They should admit they were wrong and take the necessary actions to remedy their policies and reestablish some of the faith in our government that has been lost.”

Meaghan and Stephen are represented by the Project on Predatory Student Lending and Public Citizen. Click here to read more about their case.

Judge Rules for Project’s Clients; Strikes Down Department of Education Illegal Delay of 2016 Borrower Defense Rule

In another major rebuke to DeVos, the Project wins Bauer v. DeVos case

Judge rules that the Department of Education’s delays in implementing 2016 borrower defense rule were illegal and caused serious harm to borrowers

In a victory for student borrowers, and another massive rebuke to Betsy DeVos, a court this week ruled that the Department of Education’s delays in implementing the 2016 borrower defense rule were illegal. The ruling also rejects the Department’s attempts to do whatever it wants with impunity.

This is an incredibly important win for student borrowers, and really anyone who cares about having a government that operates under the rule of law, rather than as a pawn of the for-profit college industry.

The case, Bauer v. DeVos, was brought by the Project on Predatory Student Lending and Public Citizen in 2017 on behalf of two former students of the New England Institute of Art, which was owned by Education Management Corporation (EDMC).

The ruling establishes that all three of the actions the Department took to thwart the 2016 borrower defense rule were illegal, and that the Department failed to weigh the harm that its delay imposed on student borrowers. The court also found that Department offered a plainly inadequate justification for changing its mind just months after it concluded, in 2016, that the use of forced arbitration by schools was a risk to the integrity of the federal student loan program and unfair to borrowers.

The 2016 borrower defense rule offers far more protection to borrowers, federal student aid programs and taxpayers than the Department’s recent proposal, in ways including:

  • It prevents schools from forcing students to give up their right to go to court;
  • It uses the preponderance of the evidence standard;
  • It offers a fair process for student borrowers to assert school misconduct in defense of their loan obligations, without requiring them to default on their loan obligations first, and allows for an efficient group-based process; and
  • It protects taxpayers by requiring risky schools to post letters of credit as insurance against borrower claims.

This ruling exposes even more flaws in the Department’s recent proposed rulemaking on borrower defense.

The Court explains in many different ways that the Department is entitled to change its conclusions, but it cannot do so without acknowledging its prior conclusions and offering an explanation for its fundamental change in course. And as we documented, the 2018 proposed rule contains serious misrepresentations and fundamental lies.

Today, the judge held a hearing today to consider next steps, including whether the 2016 borrower defense rule should take effect right away. The judge has taken the question under advisement and will issue a further ruling in the coming weeks. We were encouraged that the judge focused on the harm that these significant delays have caused student borrowers, and continue to be outraged that the Department continues to ignore this harm.

The judge also set a very speedy briefing schedule for CAPPS, an industry group of for-profit schools in California, to renew its efforts to get rid of the 2016 rule. CAPPS’s first brief is due on September 24, and the Department, the students, and states have two weeks to respond. In handling this part of the case, the Department will—finally—have to say why it thinks the 2016 rule should not take effect.

We will continue to fight alongside students who are standing up to the Department’s unfair and illegal attempts to delay and eliminate their rights in order to protect a predatory industry.

The ruling has been covered extensively the media, including in the New York Times, Associated Press, MarketWatch, and NPR.

Click here to read more about this and other Project cases.

Comments on Borrower Defense Call Out Betsy DeVos’ Lies

Public comments from leaders across the country cite the Project’s revelation that the proposed borrower defense rule is based on fundamental lies

The public comment period for the Department of Education’s proposed new Borrower Defense rule came to a close this week, ending the thirty-day window in which the public had the opportunity to weigh in on the new proposed rules.

But what happens when the government proposes a rule that is based on fundamental lies and misleads the public? The comment period becomes meaningless. That is exactly what has happened this month with the Department of Education’s proposed changes to the Borrower Defense rule, and it is why dozens of elected leaders have called for it to be withdrawn, citing the Project on Predatory Student Lending’s initial comment.

As soon as the comment period opened, the Project submitted an initial comment showing that the Department was lying about how it has historically interpreted the Borrower Defense rule, and that this lie infects the Department’s estimates of how much the rule will cost. We attached the Department’s own documents proving our point. Following this revelation, others began speaking out and citing these inaccuracies as a reason that this disaster of a proposal should be rescinded immediately.

California Attorney General Xavier Becerra was one of the first to speak out. In his letter to the Department of Education, he cited the Project’s comment and said:

 “Secretary Betsy DeVos has proven yet again that she’s out of touch with the long-standing practice of allowing borrowers to submit claims when they suspect fraud. I urge the Department of Education to withdraw its proposed rule immediately. If the Department proceeds with this flawed, harmful and erroneously justified regulation, it should extend the comment period to a minimum of 60 days to allow for the submission of detailed comments from the public.”

Massachusetts Representative Joseph Kennedy III called on the Department to withdraw the rule, citing in his letter its egregious harm to students and the misinformation revealed by the Project.

“The proposed rule contains significant misrepresentations and incorporates those misrepresentations into its calculation of the cost of the rule, preventing the public from understanding and commenting on an accurate explanation. The Department erroneously asserts that it will return to the Department’s original practice of only accepting claims from borrowers facing coercive collection practices that it says “persisted for 20 years.” This is entirely inaccurate. Borrowers have been able to present claims outside of collections for the entire tenure of the rule proceeding prior to 2015. Stating that the Department only processed defensive claims prior to 2015 is not only false, it is misleading to the public. The Department’s own documents, as submitted by the Project on Predatory Student Lending, reflect the historical practice of the Department accepting claims outside of coercive collection proceedings. Because of these flaws, the proposed rule should be withdrawn and corrected immediately.”

Massachusetts Senator Elizabeth Warren called the proposed rule a “gross betrayal of the Department’s mission to serve students” in her letter to Betsy DeVos, which also cited the Project’s comment findings that the rule is based on fundamental lies.

“The Department’s willingness to mislead the public in this NPRM is appalling. And, the Department’s reliance on inaccurate information in order to restrict and virtually eliminate debt relief for defrauded borrowers is a gross betrayal of the Department’s mission to serve students.”

45 Senate Democrats, including Senator Warren, also submitted a letter highlighting these falsehoods, and the multitude of other reasons why this rule harms students and helps predatory for-profit schools.

“Not only is this proposal poor public policy, but it also breaks from previous practices adopted by both Democratic and Republican administrations. The Department has inaccurately asserted that “affirmative” claims were not permitted until the Obama Administration reinterpreted the 1995 borrower defense regulations. Yet, as the Legal Services Center of Harvard Law School makes clear, the Department accepted “affirmative” borrower defense claims well before 2015, including numerous cases between 1998 and 2003. The Department’s reliance on inaccurate information makes clear its motives are political, rather than the best interests of students.”

Massachusetts Attorney General Maura Healey joined AG Becerra and 18 other Attorneys General in submitting a comment, calling the rule “a license to cheat students and taxpayers.”

“The proposed regulations accordingly would be disastrous for students and taxpayers, and a windfall for the exclusive benefit of law-breaking schools. We urge the Department to rescind this misguided proposed rulemaking.”

House Committee on Education and Workforce Democrats submitted their own joint letter, expressing their strong opposition to the Department’s proposed rule.

“Throughout the NPRM, the Department wrongly declares that prior to the 2016 final borrower defense rule, the agency only accepted claims from borrowers who were in post-default collection proceedings (i.e., defensive claims). As seen in the evidence submitted by the Legal Services Center of Harvard Law School on August 2, 2018, the Department has been accepting claims from borrowers who were in good standing on their loans dating back to 1998. 2 This mischaracterization of history should be enough to consider withdrawing this proposed rule.”

Click here to learn more about the proposed Borrower Defense rule.

Resignation of Seth Frotman Reinforces The Trump Administration’s Failure To Protect Student Borrowers And Taxpayers

Today, Seth Frotman, the student loan ombudsman at the Consumer Financial Protection Bureau, announced his resignation in a letter stating that the bureau has “abandoned the very consumers it is tasked by Congress with protecting.”

The Consumer Financial Protection Bureau can play an important role in protecting student borrowers, having helped hold predatory schools like ITT and Corinthian Colleges accountable for their illegal business practices. Current CFPB leadership is thwarting any and all efforts to enforce student and consumer protection, and obstructing the work of those, like Seth, who would protect students. Seth’s resignation reflects this administration’s alignment with for-profit colleges and predatory corporations rather than the students and taxpayers it is supposed to protect.

The Project on Predatory Student Lending is the leading legal advocate for students cheated by for-profit colleges, representing hundreds of thousands of students in class action lawsuits, including ITT and Corinthian Colleges.

Several advocates and elected officials also voiced concerns about the the Bureau’s unwillingness to fulfill its obligation to students and taxpayers.

Delay. Delay. Delay. The Department of Education Appeals Preliminary Injunction Order and Moves to Stay Litigation Pending Appeal: What it Means and What Happens Next?

On May 25, 2018, a federal court in San Francisco granted former Corinthian borrowers’ motion for a preliminary injunction in Calvillo Manriquez v. DeVosordering the Department of Education to stop using its “average rulings rule” immediately, and to stop collecting the loans of certain Corinthian borrowers. The judge found that the Department of Education had violated federal law by secretly and illegally using data from the Social Security Administration to partially deny individual borrower defense applications for thousands of Corinthian borrowers. On June 19, 2018, the Court clarified that that the order stops all collection efforts on all Direct Loans that are infected with Corinthian’s fraud. The Order will last until the Department proposes, and the Court approves, a new policy for loan relief.

On July 24, 2018, the Department informed the Court that it was appealing this decision to a higher court for review: the Ninth Circuit Court of Appeals. Two days later, the Department filed a motion requesting a “stay pending appeal.” In other words, they’re asking that the Judge hold off on any further litigation until the Circuit Court reviews the preliminary injunction order. We’ve opposed that request and are awaiting a decision from the Judge.

The Department’s decision to appeal and its attempts to delay this case harms the very borrowers it should be protecting. The Department’s violation of the law is clear and its only strategy is to try to delay this case. We hope that the Department will eventually come to its senses and cancel all Corinthian borrowers’ debt. Until then, we will highlight the Department’s unlawful conduct on appeal and attempt to move the litigation forward.

What is this case about?

Calvillo Manriquez v. DeVos is a class action filed in December 2017 challenging the Department of Education’s unexplained, irrational, and abrupt change of course with respected to former students of collapsed for-profit Corinthian Colleges. Under the Department of Education’s watch, Corinthian took in billions in taxpayer money and used boiler-room-style high-pressure tactics and racially-targeted advertising to build its business, all while producing outcomes for students so terrible that it had to lie about them. Corinthian filed bankruptcy and its debts disappeared, but the students it cheated were left thousands of dollars in debt for an education they never received.

After previously acknowledging that Corinthian’s widespread wrongdoing entitled at least some former students to complete cancellation of their federal student loans, the Department stopped granting any cancellation at all, and then used data from the Social Security Administration and announced that it would cancel only a portion of these bogus debts.

Who are the plaintiffs in this case?

 The proposed class in this case is Corinthian borrowers who are covered by Department of Education findings that Corinthian violated the law by lying to them about the chain’s job placement rates. As the Department already decided, because the company lied to get them to enroll, their loans are invalid and unenforceable. There are several named plaintiffs representing the class. Read about them here. You can also find out if you are a member of the class by clicking here.

What is an appeal?

The federal court system is made up of several different layers: trial courts that initially hear a case, a regional appellate court that reviews the trial court’s decision, and the U.S. Supreme Court. The preliminary injunction order in this case was issued by a trial court. The Department of Education has asked that the regional court of appeals that covers California (the Ninth Circuit Court of Appeals) review the trial court’s order on the preliminary injunction. A three-judge panel will review the decision on appeal and could take anywhere from 6-months to a year to do so. Once they issue their decision (either agreeing or disagreeing with the trial court Judge), the case will return to the trial court for further proceedings.

What is a stay of litigation pending appeal and does it impact the preliminary injunction?

A stay of litigation pending appeal stops the litigation from moving forward while the appeal is ongoing. A stay of litigation pending appeal will not impact the preliminary injunction order. Here, the Department has asked the Court to halt all further litigation until the appellate court weighs in, but it is still required to comply with the preliminary injunction order during the appeal.

What happens next?

At the trial court level, we’re going to fight to try to keep the case moving forward so that we can quickly resolve the case after the appeal is resolved. If we succeed, the court will decide whether Plaintiffs can pursue the matter as a class action and whether the Department has to turn over certain documents. If we don’t succeed, the litigation will be on hold pending the higher court’s decision on the preliminary injunction.

Regardless of what happens at the trial court, the appeal will move forward. On appeal, the Department will file its initial brief in early September, we’ll respond in early October, and the government will file a reply brief three weeks later. The Court will then set a hearing date and will issue a written opinion at any point after the oral argument.

Project on Predatory Student Lending Partners with Lawyers’ Committee on Harvard Law Review Blog Post

Project attorneys Toby Merrill, Eileen Connor, and Josh Rovenger, along with Brenda Shum and Genevieve Bonadies of the Educational Opportunities Project at the Lawyers’ Committee for Civil Rights Under Law, recently published an article on the Harvard Law Review Blog. “For-Profit Schools’ Predatory Practices and Students of Color: A Mission to Enroll Rather than Educate” details the deceptive tactics for-profit colleges use to target students based on race, and the harm caused to those students after they enroll.

For more information about racial justice and for-profit colleges, visit our racial justice page.

Department of Education’s Proposed New Borrower Defense Rule Enables Predatory For-Profit Colleges and Harms Students

Yesterday, the Department of Education proposed a new borrower defense rule that strips away borrower rights, encourages the predatory behaviors of bad actors in higher education, and once again, benefits the for-profit college industry instead of students.

This proposed rule is a clear attempt to stop cheated students from asserting their legal rights. It encourages abusive and predatory institutions to continue to rip off students with impunity, while slamming the door on the debt relief that Congress has instructed the Department to provide to cheated students.

The Department’s proposal reflects its unfounded belief that the interests of institutions, taxpayers, and borrowers are opposed to one another. In fact, when institutions are not trying to profit off of federal student aid, those groups have shared interests. Instead of punishing students for supposed failures of personal accountability, the Department ought to look in the mirror. The Department alone has the power and ability to prevent predatory actors from cheating students and stealing taxpayer money.

The Project on Predatory Student Lending is the leading legal advocate for students cheated by for-profit colleges. In ITT’s bankruptcy in Indianapolis, the Project represents 750,000 former ITT students whose claims the Department has largely ignored. In a California federal court, the Project stopped the Department from using its illegal “partial denial” rule, which limited the relief for Corinthian students with approved borrower defense claims. And in D.C., the Project has challenged the Department’s illegal delay of the 2016 borrower defense regulations.

Information About Art Institutes Closures and Bankruptcies

Posted July 4, updated July 13, 2018

The Project on Predatory Student Lending is monitoring Dream Center’s recently-announced closure of 30 of the Art Institutes, Argosy University, and South University campuses that it owns and operates. We will update this page with the most current information available to us about the closures, the school’s previous owner’s bankruptcy, and Dream Center’s plan for enrolled students.

THE BASICS

Until several years ago, EDMC was one of the biggest for-profit school companies, and owned chains including the Art Institutes, Argosy University, and South University. It targeted low-income students, promising a quality education and career opportunities, and charged them high tuitions for sub-standard programs. After years of declining profits and trouble maintaining accreditation, EDMC began to sell its schools.

In 2017, EDMC sold most of its schools for $60 million to Dream Center Education Holdings, LLC, a subsidiary of a LA-based religious organization, the Dream Center Foundation. Dream Center is in the process of converting the schools from for-profit to non-profit status. Dream Center’s application to the Department of Education to approve the non-profit conversion is pending. If the conversion is approved, Dream Center-operated schools will be subject to even less federal oversight than they are currently. You can read more about the sale and proposed conversion in an earlier post here.

On Friday, June 29, 2018, Education Management Corporation (EDMC) and 58 related companies filed for bankruptcy. The bankruptcy filings include some of the campuses that EDMC sold and also some that it didn’t sell.

The bankruptcy filings say that EDMC does not expect to have any funds to distribute to “unsecured creditors.” In other words, it won’t have any money left at the end of the bankruptcy. In fact, EDMC says that it has between $0 and $50,000 in assets, but owes between $500 million and $1 billion. Its list of people and companies it owes money to is 1,500 pages long, and includes political campaigns, copy companies, and financial institutions. It will file more financial information in the coming weeks.

One of EDMC’s lawyers for the bankruptcy is Jay Jaffe, from the firm Faegre Baker Daniels LLP. Mr. Jaffe and Faegre Baker Daniels are also representing the estate of ITT Educational Services, Inc. (ITT Tech), in its bankruptcy, which was filed in September 2016. You can read more about the ITT bankruptcy and the Project’s representation of former ITT students here.

At the same time that EDMC filed for bankruptcy, Dream Center announced in an internal memo that it will close 30 of the campuses that it bought from EDMC just last year, including several Art Institutes campusesDream Center has since confirmed these plans, and blames declining enrollment and an increased demand for online education for the closures.

Although we’re not yet sure what, if any, connection exists between EDMC’s filings and the Dream Center’s closures, it is clear that both corporations are acting to protect their own interest while further harming their former and current students.

Dream Center has provided limited information about the closures, but it has shared its plan for affected students. We have summarized its plan below. At the bottom of this post is a list of campuses that Dream Center has said it will close.

INFORMATION ABOUT SCHOOL CLOSURES

HOW THE CLOSURES WILL AFFECT STUDENTS WHO ARE CURRENTLY ENROLLED

Through leaked Dream Center memos and accounts and forms shared by current students, the Project on Predatory Student Lending has learned that Dream Center is giving students at closing campuses 5 options. Here is what we’ve learned, some information about loan cancellation, and important things to keep in mind until we learn more. A full list of affected schools is at the end of this post.

Options For Students at Closing Schools

Dream Center announced that students may choose from the following 5 options for how to continue their education:

-Complete your degree at your current campus by the end of 2018, when the campus will close

-Complete your degree via the Art Institutes Online

-Complete your degree at another Art Institutes campus

-Complete your degree at another Dream Center school, either Argosy University or South University

-Transfer to another, unspecified university outside the Dream Center network of schools

Dream Center is trying to convince students to accept these options by offering a 50% tuition reduction to students who remain at a Dream Center school and a $5,000 tuition grant to students who transfer to one the unspecified other schools.

We have not been able to determine what will happen to students who choose not to accept these options, but it is likely that they will be automatically withdrawn from their program.

Students should not let Dream Center trick them into accepting these offers before they have all the information they need to make an informed decision! Only accept an offer once you have all the information and if it’s the best option for you.

As part of these offers, Dream Center will make students sign acknowledge forms and waivers that will relieve it of any responsibility it owes to students and may prevent students from receiving relief from their federal loans in the future.

Students should not sign anything until they have read it carefully, had all of their questions answered, and decided that what the best decision is for them!

Dream Center is Trying to Deprive Students of Their Right to Loan Cancellation

The federal government has a program called the Closed School Discharge program that will cancel federal student loans when students’ schools close. It is only available to students who are enrolled when the school closes or who had withdrawn within 120 days of the school closure. Students who accept an offer to continue their education somewhere else when their school closes do not qualify for Closed School Discharges.

In a public disclosure, the Higher Learning Commission, an accrediting agency that oversees two Dream Center campuses in Illinois and Colorado, recognizes that these schools are “at risk of closing” and urges students to be aware of Closed School Discharges. Dream Center does not want its students to get Closed School Discharges! That’s because they will have to pay back the government for each loan that is cancelled from its schools.

Dream Center timed its closings so that anyone who withdraws will do so more than 120 from the closing, and is using tuition discounts to convince students to stay enrolled. These are both ways to prevent students from qualifying for a Closed School Discharge. This is not right!

Important Information for Students

There’s still a lot that we don’t know about Dream Center’s plan to close its school, and how that will affect students’ rights. While we wait to learn more, it is important for affected students to ask questions, share information, and protect themselves. Here are a few specific things you can do:

-Ask your school for to be placed on a formal leave of absence. Dream Center schools may not agree to give leaves of absence, but if they do it may help buy some time and maintain students’ eligibility for Closed School Discharges

-Do not sign anything without reading it completely, getting all of your questions answered, and understanding how it affects your right to a Closed School Discharge or to enforce your rights against your school. Dream Center might try to have you waive your rights. Do not do that without understanding the full impact of that decision, which will vary student by student.

-Share your experience and information!! There are 1000s of students across the country that are affected by this. Join Facebook groups. If you receive information from your school, share it!

-Visit the Debt Collective website and learn how borrowers across the country are fighting back against bad schools and unfair and illegal debt.

-Continue to visit this blog for updates.

-Contact your U.S. representative or senator and let them know what’s happening! Demand that they pressure the Department of Education to declare that all students affected by these closures are eligible for Closed School Discharges unless they WANT to accept Dream Center’s offers.

EDMC’s Bankruptcy May Limit Students’ Ability To Recover From Their Schools

For former students of EDMC-operated schools, EDMC’s bankruptcy may limit their ability to seek recovery directly from their school, even in arbitration. Former students may wish to file claims in one or more of the bankruptcy cases; more information will follow in the coming days.

Please visit the Federal Student Aid website, the Debt Collective, or contact the Project on Predatory Student Lending (that’s us!) to learn more.

The Project on Predatory Student Lending is fighting for and with students who have been cheated by the predatory federally-funded colleges. We are monitoring the EDMC filings and Dream Center closures and will provide updates for affected students as soon as possible.

List of Affected Schools

ART INSTITUTES

CAMPUSES SOLD TO THE DREAM CENTER

The Dream Center will cease enrollment at the following 18 Art Institutes campuses:

Arizona: Phoenix
California: Inland Empire/San Bernardino, Orange County/Santa Ana, Sacramento, San Francisco
Colorado: Denver
Florida: Fort Lauderdale
Illinois: Chicago, Schaumburg
Indiana: Indianapolis
Michigan: Detroit
North Carolina: Charlotte, Raleigh-Durham
Oregon: Portland
Pennsylvania: Philadelphia
South Carolina: Charleston
Tennessee: Nashville
Virginia: Arlington

The Dream Center will continue to operate the following 12 Art Institutes campuses:

California: Hollywood, San Diego
Florida: Tampa
Georgia: Atlanta
Nevada: Las Vegas
Pennsylvania: Pittsburgh
Texas: Austin, Dallas, Houston, San Antonio
Virginia: Virginia Beach
Washington: Seattle

All other Art Institutes were not sold to Dream Center and have closed.

Argosy

THE DREAM CENTER WILL CEASE ENROLLMENT AT THE FOLLOWING 10 ARGOSY CAMPUSES:

California: Inland Empire, San Diego, San Francisco
Colorado: Denver
Florida: Sarasota
Illinois: Schaumberg
Tennessee: Nashville
Texas: Dallas
Utah: Salt Lake City
Washington: Seattle

South

THE DREAM CENTER WILL CEASE ENROLLMENT AT THE FOLLOWING 3 SOUTH CAMPUSES:

Michigan: Novi
North Carolina: High Point
Ohio: Cleveland

Injunction Against Department of Education: What it Means and What Happens Next

UPDATED – On May 25, 2018, a federal court in San Francisco granted former Corinthian borrowers’ motion for a preliminary injunction in Calvillo Manriquez v. DeVosordering the Department of Education to stop using its “average rulings rule” immediately, and to stop collecting the loans of certain Corinthian borrowers. The judge found that the Department of Education had violated federal law by secretly and illegally using data from the Social Security Administration to partially deny individual borrower defense applications for thousands of Corinthian borrowers. On June 19, 2018, the Court clarified that that the order stops all collection efforts on all Direct Loans that are infected with Corinthian’s fraud. The Order will last until the Department proposes, and the Court approves, a new policy for loan relief.

The judge issued this Order after finding that the Department of Education had violated federal law by secretly and illegally using data from the Social Security Administration to partially deny individual borrower defense applications for thousands of Corinthian borrowers. The court also recognized the extraordinary harm that Corinthian borrowers are suffering at the hands of the government.

This preliminary injunction is a landmark decision, and it represents significant progress in the long fight to force the Department to recognize that it cannot continue to collect on predatory and fraudulent student loan debts. It also recognizes the extraordinarily lawlessness of the Department of Education, and finds that the Corinthian borrowers are likely to ultimately win their case that the Department of Education violated their rights in partially denying their claims. We hope that the Department will ultimately abandon its ill-advised policy of partial relief and return to the prior established policy that recognized that Corinthian loans are not valid obligations.

Read the decision here (pdf) and the clarified order here. Read coverage of this case and this ruling here.

What is this case about?

Calvillo Manriquez v. DeVos is a class action filed in December 2017 challenging the Department of Education’s unexplained, irrational, and abrupt change of course with respected to former students of collapsed for-profit Corinthian Colleges. Under the Department of Education’s watch, Corinthian took in billions in taxpayer money and used boiler-room-style high-pressure tactics and racially-targeted advertising to build its business, all while producing outcomes for students so terrible that it had to lie about them. Corinthian filed bankruptcy and its debts disappeared, but the students it cheated were left thousands of dollars in debt for an education they never received.

After previously acknowledging that Corinthian’s widespread wrongdoing entitled at least some former students to complete cancellation of their federal student loans, the Department stopped granting any cancellation at all, and then used data from the Social Security Administration and announced that it would cancel only a portion of these bogus debts.

What is the average earnings rule?

In March, years after deciding that these Corinthian borrowers deserve complete loan cancellation, the Department started partially denying loan cancellation to former students because their “average earnings” were not less than half of the “average earnings” of some unspecified group of students who went to a different, non-Corinthian school. In coming up with its murky and convoluted calculation, the Department secretly and illegally gathered information about borrowers’ earnings from the Social Security Administration (SSA). Perversely, the Department got this information from SSA by using an information sharing agreement intended to protect the public from predatory companies like Corinthian by measuring and publishing “gainful employment” metrics.

To compare the earnings from Corinthian programs to “comparable” programs that had passing gainful employment scores, the Department grouped 61,717 former students who applied to have their loans cancelled by 79 Corinthian programs they attended. The Department submitted identifying information (names, dates of birth, Social Security Numbers) from their loan cancellation applications to the Social Security Administration to obtain the data regarding the earnings of those students. In return, the Social Security Administration provided the Department with the “mean and median incomes” for each program group, based on data from 2014. The Department compared these mean and median incomes to unidentified “comparable” programs that had passing gainful employment scores.

Borrowers in programs for which the average Corinthian applicants’ earnings were more than half of the “comparable” programs were denied complete loan relief. Between 10% and 50% of their loans were cancelled. Because their applications for loan cancellation were partially denied, the Department told them, they must now start repaying their bogus loans.

What is the Privacy Act?

The Privacy Act is a federal law from 1974 intended to protect people when the government collects and uses their information. It prohibits one government agency from sharing individuals’ information with other federal agencies without meeting procedural safeguards that the Department of Education undisputedly ignored. Moreover, federal agencies may not use data matching programs of the type the Department of Education undertook to make decisions concerning the “rights, benefits or privileges of specific individuals.” Here, the information the Department of Education disclosed to the Social Security Administration was used to make a determination about a specific individual – how much of the borrower’s loan the Department would forgive.

How does the Department’s average earnings rule violate the Privacy Act?

The court found that the Department had clearly violated the Privacy Act by gathering applicants’ information from the Social Security Administration and using it to partially deny Corinthian borrowers’ requests for loan discharge. The decision is a significant blow to the Department’s attempts to backtrack on the complete loan cancellation due to Corinthian borrowers.

Who are the plaintiffs in this case?

The proposed class in this case is Corinthian borrowers who are covered by Department of Education findings that Corinthian violated the law by lying to them about the chain’s job placement rates. As the Department already decided, because the company lied to get them to enroll, their loans are invalid and unenforceable. There are several named plaintiffs representing the class. Read about them here.

What is a preliminary injunction?

A preliminary injunction is a tool to stop an illegal action or condition while the lawsuit is litigated, instead of waiting for the end of the lawsuit to get relief. The plaintiffs had to show that they are likely to succeed on the merits of their claim, that they would suffer irreparable harm if the court did not stop the Department, and that an injunction is in the public interest.

The court rejected the Department’s arguments that the plaintiffs were not suffering from the Department’s actions, finding them “meaningless given the dire financial circumstances that Plaintiffs describe. Given their financial situations, any additional dollar they are required to repay takes away from basic need for food and shelter.”

The court also rejected the Department’s arguments that “the relief Plaintiffs seek will divert resources from other educational programs, and that there is a strong public interest in saving funds.” To the contrary, “there is a strong public interest in ensuring that agencies comply with the law in enacting rules and regulations. ” Moreover, in a clear rebuke, the court responded to the Department, “Saving money does not justify a violation of the law.”

What is enjoined, and what happens next?

The court ordered the Department of Education to stop all use of the Average Earnings Rule immediately. The court also ordered immediate cessation of all attempts to collect Plaintiffs’ debt.

The Court clarified that this order is not limited to the Named Plaintiffs, but applies to all Direct Loans that are infected by Corinthian’s fraud. The Court put the Department on a short leash, banning these collections until the Department presents and the Court approves a new procedure.

The Department has not indicated whether it will immediately appeal this decision. If the Department does appeal, Plaintiffs are confident that the Ninth Circuit will also find the Department’s unlawful data experiment illogical, and its continued attempts to harm Corinthian borrowers egregious.  The case will also now move forward to determine whether Plaintiffs can pursue the matter as a class action. A hearing on that motion will occur in San Francisco on September 17, 2018.

Students Help Challenge the Exorbitant Cost of Calling from Jail

When does a simple 10 minute phone call from one spot in Massachusetts to another cost nearly $5?

When you are in the county lock-up in Bristol County in the southeast corner of the state.

These exorbitant fees can mount quickly and are a huge burden for families of people awaiting trial or serving sentences. They are now also the focus of a class action lawsuit that has given a pair of Harvard Law School students the opportunity to help frame both the legal and media strategies for prosecuting a high profile case to upend a lucrative prison telephone company contract that exploits inmates while enriching one county sheriff’s coffers.

Kelly Ganon,’19, Dylan Herts ’19 and Roger Bertling, Harvard Lecturer on Law.

The case was filed in May against Bristol County (Massachusetts) Sheriff Thomas M. Hodgson and Securus Technologies, Inc., a Texas-based company that provides phone services for inmates across the country. Brought by four named plaintiffs – two of them inmates—the case alleges that the contract between the sherrif’s office and Securus represents an illegal kickback scheme that nearly doubles the cost of calls made from the county jail.

Organizations filing the litigation on behalf of the plaintiffs were the Consumer Protection Clinic at the Legal Services Center of Harvard Law School, the National Consumer Law Center, Prisoners’ Legal Services, and Bailey & Glasser. The lawsuit seeks an injunction to halt the payment scheme and monetary relief to return the money extracted from class members.

Which legal arguments to use

“We are representing a group of people who are caught between a rock and a hard place,” says Kelly Ganon ’19, who was a paralegal in the Economic Crimes Unit at the U.S. Attorney’s Office in Boston before coming to law school. Ganon also worked in the Massachusetts Attorney General’s Office the summer after her first year in law school. “It was fascinating to work with seasoned attorneys to strategize about how to put the best foot forward on a case,” Ganon said.

Ganon and fellow student Dylan Herts ’19 researched a range of legal arguments that they or the attorneys posited could be used. “I’d never been involved in a civil case from the beginning, looking critically at all the various ways the case can be taken, the legal arguments that can be made, and making decisions about what will stand up best,” said Herts.

Herts, who prior to coming to HLS worked as an economic litigation consultant providing expert witnesses to firms defending clients in securities and antitrust litigation, observed: “This was my first experience coming from the plaintiff side. It was amazing to have the whole universe available to consider in terms of how to frame the litigation. What can we bring up? What should we bring up?”

The ability to take Securus to court only arose when the company moved over the past few years to be viewed as an internet service provider rather than a phone utility. “As a traditional phone utility, it could not be sued on these claims, but as an internet company providing phone calls over the internet it could be,” says Harvard Law School Lecturer on Law Roger Bertling, who leads the Consumer Protection Clinic at LSC and is the lead attorney from Harvard on the case.

Fees and kickbacks

Massachusetts law prohibits sheriffs from charging prisoners fees to subsidize the cost of their incarceration unless such fees are authorized by the legislature. Rather than attempt to assess unauthorized fees directly, the BCSO arranges for Securus, a private vendor, to extract revenues from individuals like family members, friends and attorneys, who accept collect phone calls from prisoners which are unrelated to the cost of providing the phone service. Those revenues, called “commissions,” are then redirected to the sheriff’s office pursuant to the contract between the County and the company, thus circumventing the legal prohibition, Bertling explains.

Between August 2011 and June 2013, Securus paid the Bristol County Sheriff’s office $1.7 million in exchange for an exclusive contract to provide inmate phone services. It paid the sheriff’s office $200,00 per year plus a lump sum of $820,000 to cover 2016 to 2020. To offset these costs, Securus charged inmates, their families and friends and attorneys exorbitant fees for phone calls. Inmates had no choice but to use Securus. Bertling adds: “We are not challenging a filed rate already agreed to by the Commonwealth, but rather commissions that have not been authorized by the legislature.”

Fees for calls in Bristol include $3.16 for the first minute and 16 cents for each additional minute. If calls are disconnected – a common complaint from inmates – reconnecting results in a recurrence of the $3.16 charge for the first minute. A simple 10 minute phone call can cost $4.76.

Statewide and nationwide impact

If the case is ultimately successful, it could have an impact on thousands of inmates in Massachusetts. It could also impact numerous inmates in other states whose correction facilities have entered into similar telephone servicer provider agreements. Securus provides phone and video calling services for jails in 10 of the 14 counties in Massachusetts, as well as for the state’s prisons. Contract terms vary widely among jurisdictions. In the Massachusetts state prisons, for example, phone calls are 10 cents per minute with no special fee for the first minute.

Impact litigation and media

“When you are doing impact litigation like this case, the lawyers are doing a lot that is not litigation,” notes Herts, who says he is hoping to do consumer protection antitrust work with the government in the future. “Media coverage was an extremely important facet of this case. When the litigation was filed, I saw an article about it online in the Boston Globe. Then a few days later the Globe also did an editorial,” he said.

The editorial sided with the arguments being made in the lawsuit and against the practices of Securus and the Bristol Country Sheriff’s department. It also called for legislative reforms that would prevent similar price-gouging practices.

“An immense amount of discussion among the groups working on this suit were focused on how are we going to tell this story,” Ganon says. “We focused a lot of time on the narrative that sets the stage for the legal arguments in the filing.”

Consumer protection offers great experience

As students in the Consumer Protection clinic course, Ganon and Herts began their semesters helping individual consumers facing credit card debt cases in state district court, which was equally rewarding.

“At the beginning of the semester, Professor Bertling asked each student what they wanted to do after graduation and I told him I wanted to be a trial attorney,” Ganon says. She was given the opportunity to represent clients in state district court and work on a case requesting a stay for a client who was battling nine lawsuits related to student loan debt.

Herts, who also had the opportunity to represent clients in state district court as well as working on the prison phone call case, says he hopes to stay involved with the case next semester by either taking an advanced level course with the Consumer Protection Clinic, or through another route. “The experience is teaching me a lot – and the issue is really important.”

— Julie Rafferty

Photo credit: Martha Stewart