Monday, October 26, 2015

The Campus Crusade against Sexual Assault in the Context of the Ongoing Erosion of the Rights of the Accused

We have witnessed in the United States a steady, if  in some ways subtle, erosion of the rights of the accused in the past 35 years.  To wit:

1.  The so-called War on Drugs has resulted in the highest incarceration rate among all the Western democracies.

2.  The plea bargain has become the procedure of choice in some nine of ten criminal cases.  Combined with the piling on of charges by prosecutors and the prohibitive cost of mounting an effective defense, this trend has replaced the Sixth Amendment right to a speedy trial as the mechanism for moving cases quickly through the creaking criminal justice system.

3.  The so-called War on Terror has resulted in the militarization of state and local police forces.  Meanwhile, the expansion of Americans' rights under the Second Amendment --- proceeding virtually hand-in-hand with the contraction of rights under the Sixth Amendment --- has resulted in battle lines being drawn between our law enforcement agencies on one side and the nearly-as-well-armed organized criminals, radical paramilitary organizations and lone-wolf madmen on the other.

4.  The erosion of America's middle class and the widening gap between the super-rich and the rest of us --- driven by numerous factors, including the decline of manufacturing and the powerful labor unions that had secured workers' fair share of industrial profits; the automating of millions of jobs, now even in the service and retail industries; the reduction of taxes on the rich and super-rich together with Citizen United's lifting of limits on the use of their ever-increasing stockpiles of dollars to buy public offices --- is leading inexorably to a permanent proletarian underbelly.  This divide along economic, and to a large degree racial and ethnic, fault lines can only exacerbate the trends identified in 1 through 3, above.

Enter the (probably well-intentioned) crusade to eradicate sexual assault on America's college campuses, begun by President Obama in a June 2014 speech and taken up with vigor by his Department of Education.   Consider this statement by a university administrator with whom I am acquainted: "In order to remedy the lack of quick and effective resolution of sexual assault cases in our courts, the Department of Education wants colleges and universities to do what the justice system can't... by lowering the standard of proof from 'beyond a reasonable doubt' to 'more likely than not,' and requiring that sexual-assault investigations plus adjudications be completed in 60 days."

Now, consider this comment in the context of my comments on the erosion of the rights of the accused.  Just as the proliferation of the plea bargain has largely supplanted the Constitutional right to a speedy trial, and the militarization of our police poses an unprecedented threat to our Fourth and Fifth Amendment rights, so too does the new DOE regime for the "War on Campus Sexual Assault" erode the rights of the accused in the context of this latest American criminal 'justice' crusade. 

Mind you... much, perhaps most, of what I have described above has occurred with the best of intentions:

1.  The proliferation of drugs and drug trafficking led to the War on Drugs.

2.  The Nine/11 attacks led to the militarization of our police.

3.  The flood of accused in our criminal courts led to the dominance of the plea bargain.

4.  Respect for First and Second Amendment rights by the conservative Justices who control our Supreme Court led to the lifting of limits on campaign contributions and on the prolific possession of fire arms by private citizens.

So, too, does a sincere desire to eradicate sexual assault in those venues where America's young adults are concentrated in their greatest numbers drive the current campus crusade.

In McCarthy's day, the Cold War justified witch hunts for reds in our government, entertainment industry and media.  During the Nixon administration, national security justified Watergate.  We now see how wrong-headed and dangerous these crusades were.

In every era, there is an issue --- drugs, terror, sexual assault - that is seen by its proponents to be so significant as to justify the erosion of our civil liberties.  And, so far, in every era, the arguments favoring these causes ultimately have been discredited.

So too, I predict, will be the current campus crusade.  But this will take some time.  As I discovered earlier this year, when I dared, during supervisory training at a university, to criticize the due-process flaws in the campus-based system imposed by the DOE on sexual-assault investigations/adjudications, the attack dogs remain ready to slip their leashes against anyone with the temerity to come out openly against this latest American domestic 'war.'  But the pendulum, I further predict, will swing in the opposite direction, as the unsoundness of the legal principles underlying the campus investigation/adjudication process are revealed with increasing clarity.

Monday, October 19, 2015

As federal policy turns campuses into court rooms, the statute of limitations becomes an issue.

At the University of California, the former head of the Department of Homeland Security, now the prez, ponders whether there ought to be a time limit on when sex harassment charges can be brought against a prof. 
In this case, a well-known astronomer stepped down from his professorship, after the investigation of belated charges leaked and became international news. Napolitano says there should be a statute of limitations on such charges.  But critics counter that it's hard to charge when you're still a student.

The bigger issue in my mind is how far the fed will push colleges to become courts.  We now must investigate and adjudicate sexual assault charges.  This is "damned if you do, damned if you don't" task... one side or the other will be disappointed with a high likelihood of a lawsuit to follow.  

The lightning rod for much of this storm is the dean of students.  It once must have been fun to be the head of the student-life division of a college.  No longer... now the dean is the likely target of a suit, along with her institution, when for example an accused male student cries "foul" and files a defamation claim.

Being a campus cop, likewise, is no pleasure.  This is brought out in a story today in the Chronicle of Higher Education.

Without a doubt:
  • Too much drinking takes place on college campuses
  • Sexual assault is a shameful fact of life at too many schools
  • Sexual harassment by faculty and staff should never be tolerated, and
  • Violence and crime must be deterred constantly, as in any other town or small city

All this being said, and accepting that the burden is not likely to be lifted from our shoulders anytime soon, we in higher education need to become a lot more savvy on the ways of law enforcement and adjudication... as well as the best practices in risk management to avoid subsequent litigation.

Friday, October 16, 2015

The great experiment is underway: will allowing guns on campus end the slaughter?

Wisconsin seems to be poised as the next state to give it a go:

While, as they say, the jury is still out, the National Review has just posted an article arguing that concealed-carry licensees are less likely to commit a crime than even police officers on average.  The article adds ten instances in which such citizens did indeed prevent a potential mass shooting.

The prestigious Washington Post is the source of this latter claim.

In my hate-crimes class last night, most students seemed skeptical about this idea as a solution.  And at first blush "The solution to bad guns is more guns" hardly seems equivalent to "The solution to bad speech is more speech."  

Still, one of the central ideas of federalism is that every state is a little laboratory where the citizens can experiment with new, even radical, ideas.

As one of my students noted last night, there are just so many guns in this country now that you will never be able to get rid of them.  And, so, to borrow another cliche, perhaps fighting fire with fire (no pun intended) is the best way our of our present quagmire involving the nuts and the lonewolves with their guns.

Thursday, October 15, 2015

The cowboy culture comes to campus at UT-Austin. Will it work?

I'm of an age when everything is now 50 years ago.  For instance, this weekend, my wife and I will celebrate the 50th anniversary of our first date.  A couple of years ago I taught a Law & Justice course inspired by the 50th anniversary of the Kennedy assassination.  And 50 years ago a nut named Whitman went up into the tower at the University of Texas in Austin and shot dozens of people.

The Lone Star State is marking that anniversary with a new "concealed carry" law that allows concealed weapons on the campus. 
As this story attests, lots of people are upset with the new statute.

Here's the chapter from my book, "Al Qaeda Goes to College," that includes the story of the Texas Tower Massacre:

The endless string of mass shootings that occurs in this country, often aimed at schools and colleges, leaves us all scratching our heads.  The concealed-carry laws are one attempt to meet the issue head on.  There is precedent for them in Israel.  Also, I guess, in the Old West, including Austin, Texas.
 As I've noted in this space on other occasions, the American problem is not the number of guns in our country.  Canada can match us on a per capita basis, yet rarely experiences such shootings.  

The number of nuts who can get guns is certainly problematic and tougher laws involving background checks might help.  

It was no help that Congress enacted a law a few years ago that protects retailers from lawsuits for selling the guns to the killers.  That, it seems to me, was a step in the wrong direction.

But the bottom-line issue is our culture.  Fifty years ago (naturally), media guru Marshall McLuhan said that Americans view the world through a rear view mirror  He said we lived in "Bonanzaland," referencing a popular cowboy show on TV at the time.

He was right then and it hasn't changed now.   The myth of the rugged individual permeates our national mindset.  It's one reason we worship the wealthy and famous, while working three jobs to make ends meet, instead of flocking to labor unions to force a more equitable distribution of wealth.  It's why Donald Trump can preach hate and be applauded.

Until that mindset changes --- and remember, it took two world wars and a Holocaust to change the Europeans' warlike mindset --- the shootings won't stop.

That being the case, maybe arming more "good guys" actually is the way to go.  As another guru once said, "We'll see...".

Wednesday, October 14, 2015

Administrators like technology, while faculty don't, says Gallup and "Inside Higher Ed"

Here's where you can get the full survey: 

No surprise here.  Technology threatens faculty's perceived centrality in the educational process.  Nearly 20 years ago a faculty union leader explained to me how the earliest European universities were started by faculty, who then hired administrators to do the grunt work for them.  This is a lovely fairy tale, if you are a faculty member.  But my own research later revealed that the University of Bologna, usually credited as Europe's first and the namesake of the Bologna Accords as a consequence, was in fact founded by students, who then went out and hired the faculty they wanted.

 Tenured faculty often act as if they are the shareholders of their institutions.  But in fact the taxpayers, we the public, are the central stakeholders of higher education.  For-profit corporations aside, universities either were created by taxpayer dollars, if public, or enabled by tax-free status, if private non-profit.  Once again, as with Bologna: student founded and student centered.

That being said, all that matters is that we the public are served by these institutions of higher learning... whether by face-to-face faculty encounters or by technology on line.

Clay Christiansen of Harvard's B-School argued a couple of years ago that his theory of innovation by disruption applies to higher ed and that the disrupter was online tech.  His "disruption" theory has been under attack of late.  See:
His prediction that half of all universities will be bankrupt in 15 years seems unlikely to come true.

Still, a revolution is in the wind in this, the Fifth Great Wave of American higher education.  And faculty will no longer enjoy the favored status they did during the previous half century.  No wonder many dislike technology.

Read more about the new wave here:


Tuesday, October 13, 2015

Everybody has a sad story.

That's what Rick told Ilsa in "Casablanca."  And it's the point I made 11 years ago in an op-ed published in the St. Paul Pioneer Press at one of those times when some African-American organizations were making their periodic plea for reparations for slavery. 
The Jews have their Holocaust, the Cambodians their Killing Fields, the Russians their Gulags.  The Armenians can point a finger at the Turks.  Japanese-Americans can blame Earl Warren for their ancestors' internment during WWII; after all, he was the California governor who signed the order.  Should we, therefore, expunge Warren's name from our history books?

Of course, no one would suggest that.  It seems silly.  But a growing number of people don't seem to find it silly when, each October 12th, there are cries to tear down statues of Christopher Columbus... as if he were the equivalent of Stalin or Hitler.

The genocide of Native Americans is a tragedy and a crime.  No fair white man can deny that.  It is, as I suggest above, one of many notable tragedies in the tragic-comic history of the human race.

Rick, though he was referring to prostitutes, was right in a much broader sense.  Everybody has a sad story.  My father, whose birthday also fell in early October, was one of 16 children of Italian immigrants.  Only seven ever grew to adulthood.  What killed them?  I could name Spanish Flu and whooping cough and other maladies.  Or I can sum it up in a word: poverty.  That was my Old Man's sad story.  But he never dwelled on it.  He looked to the future and his hopes for his own two sons.  I like to think my brother Leo, a bank VP, and I have in our way fulfilled his dreams.

So... for those who want to expunge American history of Columbus and pay reparations to the descendants Indians and Africans, I say, let's get past these divisive notions.  Let's look to the future and try together to take on its daunting challenges.  If our country was built on blood, it was also built on rights and hopes and dreams.  Nursing history's sore teeth serves neither our nation nor ourselves.

Just get over it.

Thursday, October 8, 2015

Who would have thunk it?

I never thought that a school as prestigious as MIT would become the leader in credentialing the masses.  But the Cambridge super-U, which led the way into the land of MOOCs is now offering a Mini-Masters for those who complete those MOOCs but choose to stop short of earning the full-fledged credential.  Additionally, stacking career experiences onto those MOOCs may now be enough to gain a full-fledged MIT Master's degree. 
 This comes at a time when college students increasingly are concluding that, as  the BA becomes the 21st century equivalent of a high school diploma in the last century, they must amass as many certifications and internships as possible, and even do a 4+1 master's program to stand out.

Tuesday, October 6, 2015

Guns, Isis, Oil... a Tuesday morning rant...

Let's start with this outstanding op-ed by retired Supreme Court Justice Stevens about how we could cure the Second Amendment's ambiguity with just five little words:
Then let's take a moment to remember John Lennon, who would be 75 this month, if he hadn't been murdered by a crazy fan 35 years ago.
 And lastly this morning, let's ask what we ought to be doing in the Middle East.  My view:  let the Russians have at it.  With our energy reserves, we Americans no longer need the Middle East.  I have always believed that the Iraq War was about oil, not terror.  The U.S. made a complete hash of it.  Only Dick Cheney and his Haliburton friends made out on the adventure.   Now we no longer need to support the hopelessly corrupt regime in Iraq.  Nor do we need to care what happens to Syria.  Fortress Israel can remain our foothold in the region, should we need a base camp from which to act in the future.  Let's turn inward and solve the seemingly intractable problems we have here at home.

Then let's stop wasting energy (quite literally) and focus on the real problems confronting us domestically.  Laws alone won't solve the gun problem.  We need a sea change in American culture from the Wild, Wild West mentality that still dominates our society to a 21st century view that more closely resembles the civilizations of Europe.  The Europeans had to endure two world wars and a holocaust in order to achieve genuine, compassionate civil societies.  Having suffered none of that agony, and in fact having profited mightily in wealth and power from the wars of the last century, ours has remained a violent, reckless Dodge City of a society.  It's a long pull, so we should start now to change hearts and minds.  (But, meanwhile, it wouldn't hurt to do what we can to separate the nuts from the guns.)

More and better jobs for more Americans and a more equitable distribution of the nation's vast wealth might go a long way to quelling some of the endemic violence in our cities.  I often wonder when my fellow citizens on the right will wake up and realize that every Republican president in my lifetime has favored tax breaks for the rich.  How can you not get that?  Why aren't you people with your crappy retail jobs sans benefits flocking to unions?  Do you really think Jesus is going to take care of everything for you?

As for climate change, I doubt anything we do will make a major difference... not while Asia and Africa are developing and demanding the same rights to development that we in Europe and America enjoyed.  So let's develop solutions aimed at dealing with the effects of climate change... whole new industries with thousands of jobs could be the outcome of such an effort.

Meanwhile, energy independence could get us out of the overseas-adventure cycle and enable us to deal with the problems that beset us here at home and block us from being the Great Society (don't knock it) we could have been and still could be.


Friday, October 2, 2015

My daughter wrote to me this morning:

Did you guys watch Obama's speech on the most recent shooting? I thought it was really excellent, if not infuriating (because it really is all so damn obvious).

Obama and my daughter are not alone in their frustration.  I'm sure million share it and I certainly am one.  

But what is the solution... when the chances of getting the guns out of circulation approach zero?  I have been wrestling with this for years:

Jim Castagnera: The Firearms Dilemma

Roundup: Media's Take 

 0  0  0 

[Jim Castagnera is the Associate Provost and Associate Counsel at Rider University.]

After the U.S. Constitution was completed, some of the founders felt that the document --- devised after the predecessor Articles of Confederation failed to provide sufficient central authority to keep the newly liberated colonies from one another’s throats --- gave the federal government too much power. The upshot of this fear was the Bill of Rights, i.e., the first ten amendments. During the ensuing 200-plus years, each of the ten has produced volumes of court decisions and scholarly comments. The Second Amendment is no exception.

Amendment number two says, “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” What these few words really mean has been the source of considerable controversy, most recently on June 26, 2008, when a majority of U.S. Supreme Court justices declared a District of Columbia gun-control law unconstitutional. Justice Antonin Scalia, writing for the majority, stated, "In sum, we hold that the District’s ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense....”

One of the dissenting justices in this 5-4 decision, Justice John Paul Stevens, retorted that the court's judgment was "a strained and unpersuasive reading" which overturned longstanding precedent, and that the court had "bestowed a dramatic upheaval in the law." Stevens added that the Second Amendment was notable for the "omission of any statement of purpose related to the right to use firearms for hunting or personal self-defense,” such as is present in the Declaration of Rights in Pennsylvania.

Observers on both sides of the gun-control debate contend that the decision will stimulate a lot more legislation and litigation. Some prosecutors express concern that wily defense attorneys will find ways of reopening cases, where personal possession of weapons was an important issue. Gun-control advocates predict that the decision will energize gun-rights advocates to challenge more and more federal and state gun-control laws. One police officer commented on NPR that with this decision America has entered the Age of Rambo.

The National Rifle Association argues that “guns don’t kill; people do.” True… but most people who kill, kill with guns. Living on the edge of a city which logs some 400 homicides a year, mostly deaths by gunshot, I often wish that Philadelphia had the laws in place to somehow get the guns off the streets. But, like every attorney worth his salt, I see the other side of the case.

Since Nine-Eleven, America has become increasingly more security conscious. In the face of the excesses of Abu Ghraib and Guantanimo, the Supremes have shown themselves to be on the side of due process of law, handing the Bush Administration one defeat after another regarding prisoners’ rights to fair and speedy trials. Meanwhile, airports have become fortresses and boarding a plane can involve stripping oneself of laptop, liquid toiletries, belt, shoes, jacket, metal prosthesis, and pocket change. The federal government has begun the building of a billion-dollar fence along our southwestern border to keep the Mexicans out. And we are embroiled in two wars, one of which undoubtedly was entered in the midst of a fog of lies, e.g., that Hussein had weapons of mass destruction and was in league with Al Qaeda. Last but not least, Congress appears about to enact legislation giving retroactive immunity to phone companies that cooperated in federal wiretaps since Nine-Eleven. All of the above suggest that on the scales of justice, civil liberties concerns currently are outweighed by national security considerations, and the Supreme Court may be the individual’s only true champion.

In “Casablanca” a German officer asks Rick if he can imagine the German army in New York City. Rick replies that there are some New York neighborhoods that are too dangerous for the Nazis to dare to invade. In “Armageddon: A Novel of Berlin” (1963), novelist Leon Uris made a similar point. He had one of his characters wonder out loud about how long the round up of Germany’s Jews by the Gestapo would have persisted had every Jewish man met his oppressors at the front door, pistol in hand, and taken at least one down with him. Echoing this point, some commentators on last year’s massacre at Virginia Tech have suggested that students and faculty should be encouraged to arm themselves.

While I don’t endorse that latter view, I can’t dismiss the Humphrey Bogart/Leon Uris argument that an armed populace might be a potent counterforce against government abuse of civil liberties, as well as --- ala Justice Scalia’s majority opinion in District of Columbia v. Heller --- a source of self-defense against criminals.
- See more at:

Wednesday, September 30, 2015

"Mankind," "Chairman" and "Freshman" are all taboo words in the world of gender studies.

If a student uses them she or he is liable to be admonished.

This drives some conservatives nutty.

Sunday, September 27, 2015

My October and November Webinars are now available for registration

October 7th - Castagnera's Labor and Employment   Law Update

October 22nd - Cheating & Plagiarism

October 29th - Student Disciplinary Policies

November 18th - Maintaining Student Records

November 19th - Students with Disabilities

Read more here:

Tuesday, September 22, 2015

"Five to one, baby. One in five. No one here gets out alive." --- The Doors

One in five has been the claim made by crusaders against sexual assault.  Now a new survey by the American Association of Universities says that the figure is more like one in four.  That is, the number of college students reporting themselves to be victims of sexual assault. 

The survey stirred controversy before it ever got underway and it is stirring up still more now that the results have been announced.

Campaigners against campus sexual assault complain that the data should not be aggregated, but should be released on a campus by campus or college by college breakdown.

Opponents complain that:

1.  The definition of sexual assault is too broad.

2.  Not enough experts were involved in the study.

3.  The sample is flawed.

Without doubt, the survey will keep the controversy over the DOE's crusade at center stage in higher education for the foreseeable future.

Monday, September 14, 2015

House of Representatives Committee on Education and the Workforce is considering a bill that would require alleged rape victims to go to the police...

... or else, the college couldn't punish the accused. 

Naturally, the bill's critics claim that, if enacted, the measure would chill victims' willingness to come forward.   They have a point.

On the other hand, along lines that I have argued repeatedly in this space, the proposal might be a step in the right direction, moving the sexual-assault pendulum closer to being back in balance.

Since President Obama's speech in June 2014, calling for an end to sexual assaults on college campuses and the DOE's subsequent crusade to put that mandate into effect, a number of abuses have become apparent to those of us in the legal community who care about due process of law:

1.  Labeling the accuser "the victim" from the get-go immediately creates a presumption of guilt, rather than innocence, with respect to the accused.

2.  The typical standard for determining guilt --- more likely than not --- is a far cry from "beyond a resonable doubt."

3.  When the case is close, adjudicators are 'more likely than not' to side with "the victim" and dismiss or suspend the accused, rather than risk liability by leaving a potential repeat offender at large on the campus.

Of course, the worst case of all was the Rolling Stone debacle at the University of Virginia, where the magazine decided to allow the "victim" to tell her side of the story, while honoring her request that its reporter not even contact the accused frat boys.  Several lawsuits against the magazine have resulted from that travesty of journalistic integrity.

What should we learn from it?  Well, perhaps that an accuser who is unwilling to avail herself of the criminal justice system ought to be viewed with extreme caution. Yes, as critics of the proposed legislation correctly contend, it's darn tough for a rape victim to deal with the scrutiny that will result from a criminal complaint.  But isn't that precisely the point?  If the defendant is going to be branded as a sex offender for the rest of his young life, shouldn't the evidence against him meet the higher standard required by the law?

And let's not be naive.  Even though the worst that can happen to the accused in a college adjudication is expulsion, the stigma of "sex offender" is branded on that student's forehead for keeps.  That's why so many of these young men are subsequently suing their institutions:

To my mind, only when you have already embraced the presumption that the accuser is always a victim do you value her potential discomfort over the devastating harm that an incorrect finding of guilt under the "more likely than not"  standard against the accused can visit upon him.

Friday, September 11, 2015

Echoes of the Obamacare "mandate" debate.

This writer argues that college us not a commodity.

This brings to my mind the argument raised by the government in defending the Obamacare mandate, namely, that health care is not a commodity analogous to other things on which one might spend money.  Thus, the counter-argument, that we might one day be ordered by Congress to "buy broccoli" was not a valid fear.

You may recall that the Supremes rejected that argument, holding that the Congressional commerce-clause power did not extend to mandating the purchase of health insurance.  However, Chief Justice Roberts retrieved the mandate by finding that it was a tax that could be enacted by the Congress under its Constitutional taxing power.

In point of fact, I think the government's argument that health care is special has greater validity than the Court was prepared to afford it.

I also am sympathetic with this writer's point of view.  Consumerism now permeates higher education, as  students and parents increasingly act as if they are buying a credential and nothing more.  One might well wince when hearing students referred to as customers.

We pass judgment on these so-called customers at the application stage and throughout their college careers.  When they fall short of expectations, we suspend and dismiss them, in essence refusing to sell them the product they covet.  If not unique in the world of commerce, it must come close.

And we in higher ed serve a broader role, educating citizens and conducting research for the benefit of the nation and its people as a whole.  That's why we are either state supported or at least tax exempt... because in return for these advantages, we  provide vital service to the state and society.

That's why, as I have argued repeatedly in this space.  there is no legitimate place for for-profit corporations in higher ed.  Not because they so often engage in fraud;  this is being successfully attacked by the DOE and DOJ.  Not because they are low quality; frankly not all of them are.  No... they have no place because they are selling commodities for profits, while we public and non-profit privates are not.  This distinction will became even more stark if the Clinton plan for free community college and debt-free public four-year education becomes the reality.

Thursday, September 10, 2015

Is competency based credentialling the next big thing in higher education?

Some 600 schools, said to be developing such programs, apparently think so. 

What's the down side?

Well, for universities that make most of their money selling credits, rooms and meal plans, this could cut into their budgets even more than what's happening in private-sector higher ed right now.

But maybe we are talking about a population that is of non-traditional age and unlikely to become campus-dwelling full-time students anyway.

 The US high school graduation rate hit a record high of 81 % last year.
Many crowed about that.  But are you kidding?  That means 19% of our young people didn't get high school diplomas on time.

Less than 30% of the US adult population has a bachelor's degree... which I would argue is the functional equivalent of a high school diploma 100 or even 50 years ago.

So, if credentialing via competency is a way to improve those numbers, and if the process is legit, I'm on board.


Tuesday, September 8, 2015

A for-profit college in Kentucky will pay students $1.4 million dollars in damages for alleged fraud.

The students via the state attorney general accused the college of overstating its job-placement track record when it recruited them.

Kentucky's AG brought the suit on their behalf.

A few years ago, there was a rash of cases brought by law school alums making similar claims.  Most of these cases were tossed out, although one such suit against Delaware's Widener Law School survived the motion to dismiss.

Students and grads trying to establish fraud in admissions advertising have an uphill fight at best.  That's why this settlement seems to me to be a significant sign that the fraud-in-the-inducement theory isn't the dead letter we might have thought it was, where inflated job-placement claims are concerned.

Friday, September 4, 2015

Register now for my 9/17 webinar on "The Marijuana Revolution"

Marijuana Revolution: How Higher Education Is Adjusting to a Shifting Landscape


Date: 9/17/2015, 1 PM Eastern
Duration: Scheduled for 90 minutes including question and answer session.
Presenter(s): James Ottavio Castagnera, Ph.D. and attorney at law
Price: $299.00 webinar, $349.00 CD, $399.00 webinar and CD. Each option may be viewed by an unlimited number of attendees in one room using one unique login. CD includes full audio presentation, question and answer session and presentation slides.
Who Should Attend? College and university administrators, department chairs, legal counsel
Best For: Higher education
Attitudes and laws relating to the use of marijuana for both recreational and medicinal purposes are changing around the country, leaving college administrators questioning whether the time has come to reconsider their institutions' policies and practices concerning marijuana use by their students. The changing marijuana landscape that college and university administrators see is characterized by a new reality which includes:
  • Twenty-three states and the District of Columbia, which currently have laws legalizing marijuana
  • A handful of states that have already legalized the recreational use of marijuana
  • Decriminalization of the possession of small amounts of marijuana by a growing number of states and municipalities
  • Nearly two-dozen states, which have medical marijuana laws allowing for the limited use of marijuana
  • Courts that have begun wrestling with what all these new laws may in fact mean
  • Last, but hardly least, the U.S. Department of Justice, which has issued a series of memoranda outlining its revamped approach to enforcement of federal drug laws where marijuana is concerned.
How should colleges and universities respond to this revolution? Should they be reexamining their drug and alcohol policies? Should student marijuana use be treated the same as alcohol violations or as a federal crime? Does the Americans with Disabilities Act impact how to deal with students with disabilities, who may wish to use medicinal marijuana? What role do FERPA and the Clery Act play in the mix?
Please join Dr. James Ottavio Castagnera as he offers guidance on these and other questions that university administrators need to consider when reviewing their policies and practices concerning the student use of marijuana. In addition Dr. Castagnera will also examine the myths and realities of drug-driving, the academic impact of marijuana use, medical effects and health impacts, and the relationship between recreational use and drug-dealing on our campuses.


Just a sampling of what this webinar will cover:
  • The states that have legalized marijuana for recreational use and/or medical use; and what these new laws really mean
  • A review of the current policies of the U.S. Department of Justice and the U.S. Department of Education
  • How the Americans with Disabilities Act figures into the equation
  • Consideration of what happened to the Drug Free Workplace Act
  • Evolving university policies in states that have legalized recreational marijuana use; in states that have legalized medical use; in states with no legalization
  • Safety and health issues involving marijuana use including: drug driving; campus drug dealing and related crimes; health & medical effects; academic impacts
  • FERPA and parental notification issues
  • CLERY Act implications


Your conference leader for “Marijuana Revolution: How Higher Education Is Adjusting to a Shifting Landscape” is Dr. James Ottavio Castagnera. Dr. Castagnera holds a law degree and a Ph.D. in American studies from Case Western Reserve University. Jim brings three decades of experience in higher education to this webinar. Prior to law school he served Case Western Reserve as director of university communication. He went on to teach as a full-time faculty member at the University of Texas-Austin and the Widener University Law School, and as a lecturer at the University of Pennsylvania, Wharton Business School. Currently, and for the past 19 years, he has been Rider University’s associate provost and legal counsel. His diverse duties include risk management, regulatory matters, faculty and student disciplinary cases, international student and study abroad programs, intellectual property, litigation management, governance and institutional policies. He is the author of 19 books, including the Handbook for Student Law for Higher Education Administrators (Peter Lang, 2010, revised edition 2014).
His teaching experience includes continuing legal education courses, webinars and presentations at numerous national forums, including the Annual Conference of the National Center for the Study of Collective Bargaining in Higher Education and the Annual Homeland Defense and Security Higher Education Summit sponsored by the Naval Postgraduate School. QUALITY COMMITMENT

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College education is a major issue in the looming national elections, and Denver is carving its own path to solving tuition costs.

As the three Democratic front runners all propose to provide free community college and debt-free public four-year educations, the Colorado city will be offering voters the chance to enact a modest tax that is intended to raise $10 million a year in scholarship funds.  Eligible students could qualify for up to $4000 a year under the proposal, if it's passed next year.

Education — Civil Rights of the 21st Century

By James Castagnera

From John McCain’s acceptance speech, the line that stuck out for me was, “Education is the civil rights issue of the 21st century.”
He went on to explain that for him that meant offering parents and students a choice among public, private and charter schools. That choice, of course, only has meaning if parents and students have a variety of schools from which to choose and the financial ability to buy into their schools of choice. More broadly, while the GOP presidential candidate is right about education’s central significance in the new century, his simplistic solution hardly scratches the surface.
In many major cities, high school graduation rates hover around 50%. In a few they dip below the .500 mark. This dismal fact ensures the perpetuation of what Karl Marx called the lumpenproletariat, which is to say, the ragged or rabble lower class. And this, in its turn, ensures perpetuation of the drug wars, gang wars and random killings that characterize our inner cities.
Meanwhile out in the land of suburban sprawl, teen obesity, drug and alcohol abuse, and the random shootings that periodically plague our schools all suggest that affluence alone does not ensure successful students. Taken in this context, the issue of education expands to include family issues, such as divorce rates.
Labor policy, likewise, must be included in the mix. One of the great ironies of our new century is that, while millionaire professional athletes have strong labor unions, workers on the bottom rungs of our economy are often as exploited as their 19th century counterparts. Labor organizations, such as the Service Employees International Union, have a hard time organizing these folks, given the lopsided way in which our National Labor Relations Act is interpreted by the federal courts and bureaucrats. Union prevention and union busting are only another cost of doing business for many major corporations, which also outsource what were once the better-paying positions to Asian and Latin American sweatshops.
Immigration policy also must be addressed in any comprehensive approach to American education. The Supreme Court has said that the children of illegal aliens are entitled to attend public schools. The law remains unsettled as to whether or not such students are also entitled to attend public colleges and universities and, if so, whether they are also entitled to in-state residents’ tuition breaks.
More broadly, are immigrants filling jobs that Americans don’t want to do? Or are Americans declining those jobs because of the low wages, lack of benefits, and miserable working conditions? The use of immigrant labor, legal and illegal, at the bottom of the economic barrel perpetuates the conditions that make these jobs unattractive to anyone but immigrant and migrant workers.
Last but not least is the rising cost of a college education. Too many of our young people are graduating with “mortgages” on their diplomas. Inefficiencies plague the higher education industry. Despite being the only major sector of the economy that can call on its past customers —- its alumni—to continue supporting its operations, and despite substantial gifts and grants from donors and foundations, higher education’s tuition rates continue to outpace inflation significantly. Thus, the proliferation of large student-loan debts.
Yes, Sen. McCain (and Sen. Obama), “Education IS the civil rights issue of the 2ist century.” And it is a complex issue, entangled with equally complex and challenging issues of family, labor, and immigration policy.

From The Progressive Populist, October 1, 2008