Home Legal and Regulatory Issues Practical Strategies That Harden Your Admissions Process to Avoid Being a Soft Target
Practical Strategies That Harden Your Admissions Process to Avoid Being a Soft Target

Practical Strategies That Harden Your Admissions Process to Avoid Being a Soft Target

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By Edward Cramp, Partner, Higher Education Practice Group, Duane Morris LLP

Introduction: Admissions is a soft target

In national security terms, a “soft” target is one with weak or non-existent defenses that encourage enemies to attack. A “hard” target is one with thoughtfully constructed defenses that act as a deterrent. Hard target defenses need not be complicated or expensive. They just have to be smartly selected and deployed.

Most colleges’ admissions processes are soft targets. This article outlines some simple and effective strategies colleges can employ for protection. A smart, defensive approach to admissions will deter most baseless student claims and defeat the few that get made. It will convert the admissions process into a hard target.

A. Why do frivolous student claims always target admissions?

Alleged misrepresentation in admissions has always formed the basis of any claim by a student against a career college. In this context “admissions” refers to everything a prospective student sees or hears before starting. This includes external processes, such as lead generation, as well as internal processes, such as the admissions interviews, college tours and the like.

Plaintiffs lawyers, consumer advocates, and others who hate our sector always concentrate their attacks on this part of the student lifecycle.

Why admissions and not education where students spend the majority of their time? Because claims of educational malpractice are – rightly – not recognized under the law in the United States. Therefore, student-claimants and their advocates must allege they were lied to before they enrolled to have a chance of making a legally sufficient claim. Consequently, most all student claims are framed in terms of misrepresentations allegedly made in the admissions process. A student simply cannot establish a claim unless it is tied to a front-end misrepresentation.

B. The Department of Education federalizes misrepresentation in admissions.

This approach came more sharply into focus several years ago. In 2010, the U.S. Department of Education promulgated the “Program Integrity” rules as part of the first round of attacks by the Obama administration against career colleges. Part of these regulations was the oddly named “substantial misrepresentation” rule, which prohibited colleges from making a “substantial misrepresentation” to students.

Those rules introduced few genuinely new concepts. They repeated what already existed in federal law under the Federal Trade Commission’s rules and state consumer protection laws. But, they represented a significant new enforcement role for the Department. The Obama administration doubled down on this federalization of student fraud claims when it incorporated the “substantial misrepresentation” rule into the now halted borrower defense to repayment rule (BDTR).

Career colleges have always been focused on compliance issues in this area. The new federal rules brought the issue more into focus. Many rightly doubled down on efforts to ensure that admissions documents and processes did not have a “likelihood or tendency to deceive” students. Sadly, those efforts were not enough to immunize many colleges against baseless and unsubstantiated claims. More must be done.

This article will not attempt to restate or analyze the existing rules in this area. That has been done before. Instead, it will focus on what’s missing: a more holistic approach that builds a “defense to claims” attitude into the admissions and post-admissions process. The goal is to convert the career college admissions processes from a soft target into a hard target.

Four strategies to change admissions into a hard target

The obvious stuff is easy. Everyone agrees that it is important to provide truthful information that students can rely on when deciding where and whether to enroll in college. Institutions in our sector don’t rely on lies or false statements to convince students to enroll. Career colleges exist to give our students the education they need to start a new career.

Enrolling students based on false promises is antithetical to this mission: it creates false hopes and outsized expectations that ultimately lead to disappointment and bad outcomes for all.

Nevertheless, career colleges spend copious amounts of time and effort ensuring that all of our student facing materials and admissions processes are truthful and not misleading.

Where colleges frequently fall short is in the down-stream execution. Colleges simply don’t think through what practical safeguards are needed. Colleges must focus beyond the obvious and look to four main areas of the process that can be improved. These include: training staff to answer questions that arise in admissions, ensuring that the admissions process is slow and thoughtful, designing smart disclosures and waivers in admissions documents, and requiring all students to sign pre-dispute arbitration agreements as a condition of enrollment in the college.

C. Prepare admissions with specific answers to common questions.

First, colleges must train staff. All colleges provide some form of training. Surprisingly, few train specifically on how to respond to simple, challenging questions that prospective students ask. These questions routinely come up in the admissions process and occasionally arise after enrollment. They include questions such as: How much will I make? Will I be certified? Will I get a job? Admissions teams should be prepared to answer these kinds of questions with specific answers.

Left alone admissions staff will come up with answers, but they will be unsatisfying and likely problematic. The answers will be unsatisfying because they will not address the underlying concern of the student – “Why should I go to this college?” A response that cites government statistics on wages is superficial. It misses the “Why?” question.

The answers will also be problematic because the admissions staff will not have data that is sufficiently specific to the program offered. For example, in response to the question of “How much will I make?,” admissions personnel often turn to wage data from the U.S. Department of Labor. This data fails to account for the actual outcomes of the program. It is regionalized and aggregated over a large area with many types of institutions. It becomes meaningless and will be weaponized in the hands of advocates trying to take down the college.

Colleges should not leave staff to find the answers on their own. They should train staff on specific answers. These should focus on the value proposition of higher education and not specific outcomes.

After all, the real reason a student wants to pursue higher education is for the transformative effect: to go from working in a job to having a career. The amount of wages a graduate may earn is a positive, but secondary to this transformation.

Another example is with credentialing. Prospective students often want a guarantee that a particular program will automatically qualify them for a specialized credential. It is predictable that they will ask questions about this. The truth is that there’s no simple answer here and getting the answer requires the applicant to do their homework. Most credentials have multiple paths to qualify, including advanced education and work experience. If a person considering admission to a specialized medical program asks, “Will I qualify for this specialized medical credential when I graduate?,” the admissions representative should respond with, “That’s really up to you. Our program qualifies you for entry level employment. It lays the foundation for your career and starts you on the path to success. If you want more information about how to qualify for a specific credential, you should check with the credentialing agency.”

Trained admissions personnel should be required to respond to these questions with the answers prescribed. The bookend to this training is enforcement. Those who deviate from the prescribed responses must be disciplined and removed as necessary. This ensures the college maintains consistency and control over the admissions process.

With the admissions staff thoughtfully (and defensively) trained, it is time to think about documents. As much time as colleges spend making sure that student facing documents are truthful, it is remarkable how little time most spend thinking through how those documents will help us prevent or defeat a claim made. Defensive, smartly drafted documents and disclosures discussed with students during the enrollment process can largely immunize colleges here.

Colleges should start with examining the areas where claims most frequently arise. A good starting point would be the list of things that the Department of Education included in the definition of a substantial misrepresentation. These can be found in the 2015-1016 Negotiated Rulemaking for Higher Education on the Department of Education’s website. Other sources might include the cookie-cutter law suits filed by state attorneys general in various cases brought against colleges. A quick Google search of settlement agreements with state attorneys generals will yield several exhaustive examples.

D. Deploy smart and defensive documents and policies in admissions.

Colleges should craft documents to address and protect against these concerns. Colleges should expressly disclaim verbal promises. Colleges should also include a detailed waiver of specific claims relating to alleged misrepresentations in the admissions process, including promises related to financial aid, educational quality, externships, advertising, career services, placement, transferability of credits and wages.

These waivers should be tied to a cancellation period following enrollment. A student invoking this provision during the cancellation period will receive a full refund. Once the cancellation period expires, then the policy should provide that student will waive the claims forever. Prior to the end of the cancellation period, students should be encouraged to re-verify their understanding of these provisions. It is unlikely that a student would ever invoke this provision because it’s unlikely he or she will have a real reason to complain. Recall that nearly all student claims are manufactured after the fact. This kind of combined waiver and cancellation provision has the potential to profoundly immunize the college against later (fabricated) claims.

E. Slow down the admissions process.

All of this training and documentation will help, but if the enrollment process is flawed, the college remains exposed. An effective admissions process is one that both effectively converts leads to starts and avoids claims of misrepresentation. Converting the enrollment process into a “hard target” will do both.

This requires colleges to put the brakes on the admissions process to make it slow and deliberative. Prospective students should not be enrolled on their first visit, but required to go home to consider the opportunity and decision to enroll. They should also be urged to bring in the “buy-in committee,” i.e., parents, spouses, and others who are important to their decision-making process.

Slowing down enrollment leads to a positive impact on the college and brings obvious compliance benefits. The positive impact on the college comes from the increase in effective conversion of interviews to “sits.” The College has spent virtually all of the cost of getting the student in the door by the time he or she comes to an admissions meeting. A failure to convert at this stage is very costly. Slowing down the enrollment process increases the number of sits that stick. The student will be more committed to the program, more likely to attend college, and more likely to complete with a positive outcome. It also reduces the risk of a quick, hard sell process that harms a college’s compliance goals.

A slower process serves the compliance goals of the college by allowing students time to consider their decision.

A student who enrolls on a first visit will always be vulnerable to the claim that he or she was rushed into a decision.

A college immunizes itself against this claim by building more time into the process. It also avoids the “buyers regret” phenomenon that begets lower attendance and completion rates.

F. Require arbitration agreements as a condition of enrollment.

Finally, even with all these changes, colleges should keep in mind that some claims will seep through these barriers. Colleges that follow the suggestions above will be in the best position possible to defend those claims. To cement itself as a hard target, colleges should adopt mandatory arbitration agreements as a condition of enrollment.

Arbitration offers colleges and students many benefits over litigating claims in court. For example, claims in arbitration can be adjudicated on an individual basis. This allows for individualized treatment of students and avoids group claims which always lead to bad outcomes. From the student’s perspective, a claim asserted as part of a group, even if successful, will always lead to a less-than-total resolution of the claim. For the college, a group claim leads to certain assumptions regarding elements of the claim that are simply unfair. It is also overwhelmingly expensive to defend, which is why colleges are often simply choosing not to defend the claim. Arbitration allows the college and the student to agree that claims will be resolved on an individual, fair and affordable basis.

Conclusion

Using mandatory arbitration agreements in conjunction with an effective training of personnel, defensively oriented agreements, and a slowed down admissions process will place our institutions in the best position possible to prevent and win misrepresentation claims related to admissions. In short, it will convert the admissions process into a hard target, deter claims, and ultimately protect the college as a whole.

Disclaimer: The contents of this article do not constitute legal or regulatory advice or counsel. No person or entity should act, or refrain from acting, on the basis of the information discussed herein without seeking individualized, professional counsel as appropriate.


Edward Camp

EDWARD CRAMP is a partner in the Higher Education Practice Group at Duane Morris LLP, where he also serves as the Managing Partner of the firm’s San Diego office. Edward exclusively represents higher education institutions. He advises his clients in all areas of operations, including the federal and state law, accreditation standards, civil rights matters, and the defense of claims by students and employees.

Edward is active in the private postsecondary education community. He serves as general counsel to the American Association of Cosmetology Schools (AACS), the Beauty Changes Lives Foundation, and the Andrew Gomez Dream Foundation. As the general counsel for AACS, Edward also served as lead counsel in AACS v. DeVos, in which a U.S. District Court enjoined the U.S. Department of Education from enforcing the Gainful Employment Rule against AACS member schools. The case led to substantial revisions in the Gainful Employment Rule for all privately owned colleges.

Edward served on active duty and in the reserves as a judge advocate in the United States Navy, where he was appointed to the rank of Lieutenant Commander. During his time in the services, he defended numerous matters before courts-martial convened in the United States Armed Forces.

Edward is a strong advocate of diversity and inclusion in the workplace and LGBT rights. He serves on the steering committee of the firm’s Diversity & Inclusion program. He regularly represents members of the LGBT community in civil rights matters on a pro bono basis and is active in the local LGBT community.



Contact Information: Edward Cramp // Partner // Duane Morris LLP // 750 B Street, Suite 2900 // San Diego, CA 92101-4681 // 619-744-2223 // 619-923-2653 // EMCramp@duanemorris.com // https://www.duanemorris.com

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