INSIDE HIGHER ED. MARCH 26, 2013. An unusual legal feud between a student advocacy group and the U.S. Department of Education has heated up. The Institute for College Access and Success (TICAS) is going to the mat in its refusal to turn over a trove of e-mails to the feds, calling the request unreasonable and a violation of the First Amendment.
The dispute has its roots in the regulatory battles over for-profit higher education, particularly the run-up to creation of “gainful employment” rules, which were finalized in 2011. Those regulations are also tied up in court, and face an uncertain future after the department suffered a second legal setback last week.
TICAS is active on student debt issues and seeks to make higher education more affordable. The nonprofit group has been a high-profile advocate for gainful employment and other efforts to crack down on for-profits. Its founder, Robert Shireman, served as gainful employment’s chief shepherd from his former perch as the department’s deputy under secretary.
Shireman left TICAS in 2009 and headed to the department for a two-year stint. He appears to be the focus of the department’s inquiry, which is being led by its Office of Inspector General.
Federal regulation of for-profits tends to get the attention of people who don’t usually follow higher ed policy, including Wall Street investment managers. That’s because the share prices of publicly traded chains can bounce around based on what the department does.
Gainful employment was a market-moving affair, which raised the stakes for department officials and their handling of sensitive information about the rule-making process. Congressional Republicans demanded an investigation into possible leaks. But a subsequent audit largely cleared the department.
One outstanding thread, however, was whether Shireman had any improper contact with TICAS. He had signed a standard ethics pledge that bars government officials from contact with their former employers on regulatory matters.
As part of that ongoing investigation, the Office of Inspector General said it learned of e-mails between Shireman and TICAS about the federal rule-making process, which were sent during his time with the department. Some of Shireman’s e-mails were sent from his old TICAS account, according to investigators. Last June the inspector general issued a subpoena asking the group to turn over documentation of any communications with Shireman from that period.
Investigators have not said what, exactly, they are looking for in the e-mails. And the inquiry itself does not imply wrongdoing by Shireman or TICAS, other than Shireman’s possible violation of his ethics pledge.
Both TICAS and the Office of Inspector General declined to discuss the matter. And Shireman was not immediately available for comment on Monday.
Despite its objections, TICAS has submitted a few e-mail transcripts in response to the investigation, some of which were redacted. But the group has largely refused to comply, claiming that the request is overly broad and burdensome and that it exceeds the department’s authority. So investigators turned up the heat in February with another subpoena seeking judicial enforcement.
The latest salvo came Friday from TICAS. In a filing in a federal court, the group asked that the inquiry be dropped. It also reiterated claims that the investigation “is unprecedented in its reach, and extraordinary in its chilling effect.”
The group’s most prominent work is its Project on Student Debt, which tracks average debt levels. It argues that complying with the subpoena would require a labor-intensive and costly process of turning over a massive number of documents on issues not related to the for-profit fight, including notes, drafts, grant reports and e-mails with the news media -- in short, a “significant portion of TICAS’s core work product for that time period.” By doing so, the group said it would be revealing private conversations with students and whistleblowers, among others.
Autonomy from the federal government is part of TICAS’s argument. The group receives no federal funding and has no government contracts.
“This case is not about an Inspector General’s legitimate effort to investigate fraud, waste or abuse in federal programs or the expenditure of federal dollars,” TICAS said in the filing. “Instead, it presents an effort to assert power well beyond any statutory or judicial authorization that will trample upon important rights guaranteed by the Constitution.”
TICAS also said investigators are barking up the wrong tree. The inquiry hinges on Shireman’s e-mails, yet the Office of Inspector General has not sought documents directly from him, TICAS said it was told by investigators.
The Office of Inspector General, however, said TICAS was holding up an inquiry that is “directly relevant” to the broader investigation of “possible fraud, waste or abuse” within the Education Department.
What happens next is unclear. But neither side appears willing to blink.
Robert M. O'Neil, former executive director of the Thomas Jefferson Center for the Protection of Free Expression and an expert on higher education law, called the dispute fascinating. He said a judge might side with TICAS and throw out the subpoena. But the group may have hurt its argument by initially complying and submitting a few e-mails. That action makes the First Amendment claim somewhat trickier, O’Neil said.
“If they had drawn that line earlier and clearer,” he said, “I think that case would be stronger.”