CAPPS - Avocacy and Communication Professional Development

California Association of Private Postsecondary Schools

Judge Compels TICAS Emails

03/24/2014

Inside Higher Ed. Mar 20, 2014.

A federal judge on Wednesday ordered a college access advocacy group to turn over emails and other documents to government investigators, who are probing whether a former Education Department official violated ethics laws during the Obama administration’s first push to more tightly regulate for-profit colleges.

U.S. District Judge Amy B. Jackson ruled that the Institute for College Access & Success, known as TICAS, must provide the Education Department’s Office of Inspector General with emails and documents relating to Robert Shireman, a former deputy under secretary of education. Jackson’s decision reverses an earlier ruling by a magistrate judge, who sided with TICAS in blocking the government’s formal demand for the group’s documents.

Investigators are looking into whether Shireman’s communication with TICAS between February 2009 and February 2011 violated conflict-of-interest rules and other ethics laws. During that time, Shireman was a key official involved in the administration’s push to enact tougher rules on for-profit colleges.

Shireman is the founder of TICAS and was the group’s president before he joined the Obama administration in 2009.

TICAS is not the subject of the inspector general’s investigation, but it has aggressively fought the subpoena for its documents. The group supplied some emails to investigators last year before it went to court to block the subpoena. TICAS argued in court that the government’s demand was an overly broad “fishing expedition” that would also infringe on the group's First Amendment rights.

On Wednesday, the court rejected those arguments, ruling that the “documents requested are plainly relevant to the ongoing investigation.” The court also said that even if the subpoena encroaches on TICAS’s First Amendment rights, the government’s compelling interest in pursuing the investigation overrides those concerns.

In a statement Wednesday, TICAS said it was not pleased with the decision but did not indicate whether it would appeal the court’s decision.

“We’re disappointed in the judge’s ruling and are reviewing the opinion carefully and considering our options,” the group said.

The inspector general’s investigation of Shireman, which began in December 2011, according to court filings, is related to a broader inquiry of how the Education Department handled the contentious fight over the administration’s “gainful employment regulations” governing vocational programs at for-profit and community colleges.  

In June 2012, the inspector general issued a report that largely cleared the department of accusations that it had improperly leaked market-moving information about its “gainful employment” rules to outsiders, especially Wall Street investors. Still, it found that the department’s process was not sufficiently transparent and, separately, noted that it was investigating a former official for possible ethics violations.

The two Republican Senators -- Richard Burr of North Carolina and Tom A. Coburn of Oklahoma -- who had pushed for those investigations said that the report was incomplete and sent a letter calling on the inspector general to expand the inquiry to include a focus on a broader timeframe and more forms of communication.

The 2011 gainful employment rules were largely invalidated by a federal judge. The Education Department last week proposed a new version of those regulations, which is likely to set off another round of intense political fights and intense lobbying.