A trio of challenges out of Washington confront higher ed administrators with regard to our lower-level employees

The term "Perfect Storm," since it entered the American language following the book and film of that name some 16 years ago (and referring to three weather patterns coming together to create the ultimate blow up), has been way overused and abused.

But the term fits our current situation perfectly.  Three forces --- not from three directions but all out of Washington --- have combined to make managing the hours and compensation of our part-timers and lower-level administrators very difficult indeed.

The first is the definition of full-time for purposes of healthcare coverage under the Affordable Care Act.  Thirty hours a week is all it takes to meet that definition, although 35-40 hours is the range of full-time employment we are all used to seeing.  This raises a particularly ambiguous issue with regard to adjunct faculty members, who may spend unspecified and uneven amounts of time prepping for classes.

Second is the NLRB's flip-flop last week in the Columbia University case in which the Board majority reverted to the NYU decision of 16 years ago in which the agency had held for the first time that GAs and TAs are primarily employees.

Number three is the set of new regulations regarding exempt employees under the Fair Labor Standards Act.  Executives, administrators and professionals, if they are to be exempt from the minimum wage and overtime provisions of the FLSA, had to receive an annual salary in the neighborhood of $23,000 minimally.  That now jumps to $47,000.  The result is that many coaches, admissions counselors and other low-level professional employees in higher education must either have their salaries increased or begin keeping time sheets in anticipation of receiving time-and-a-half for all hours over 40 worked in a week.

According to the Chronicle of Higher Education,  "Colleges are worried about how to cover the costs of overtime pay that dozens of coaches, counselors, and other employees may soon become entitled to under a new federal rule designed to ensure they're paid equitably."

I have yet to meet anyone in higher ed who is planning to vote for Trump.  I, too, will cast my vote for Mrs. Clinton.  But I confess to bending a bit under the weight of the regulatory activity that has come out of the eight years of the Obama Administration.  This trio of labor and employment developments is only the latest in a long line.  Particularly as we in the private sector of the higher education industry struggle with enrollment and budgetary challenges, a little easing of the pressure from the federal bureaucracy would not be unwelcome.

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September 8:  Contract Drafting, Part One

September 13: Student Handbooks

September 20:  Managing Your International Students

The NAACP is investigating the school district in Upper Darby (PA).

The organization wants to know why the district's superintendent, whose contract had been recently renewed for five years, was suddenly ousted in July.  According to Philly.com, Upper Darby --- home to one of the ten largest school districts in the state and the most diverse of Philly's suburban communities --- may also be the scene of racial segregation.  And that in turn, suggests the news story, may have a lot to do with the super's sudden exit.

At a time when race is a hot issue on many college campuses --- leading to the ouster or resignation of a number of senior administrators across the higher ed landscape --- this is a K-12 story that may be worth watching.

Herewith, an informative report on the impact that immigration has had in Germany...

The Week in Germany

Editorial Dear TWIG Readers, (©www.colourbox.com) At a time when mass immigration has created uncertainty for Germany's future, a new study brings some promising news. This month, the Bertelsmann Foundation - a nonprofit organization based in Germany - released a report that shows some of the positive effects that immigration can have on Germany. In 2005, entrepreneurs and small-business owners with foreign backgrounds created 947,000 new jobs in Germany, the report states. In 2014, the number of immigrants in Germany rose by 9 percent - but the number of jobs they created rose by 36 percent to 1.3 million. The data shows that workers with foreign backgrounds have created an increasing number of jobs over the years, which is promising news considering Germany's aging working-age population. "We show with our study that people with a migrant background in Germany do not take away jobs from anyone - quite the opposite," Aart de Geus, chairman of the Bertelsmann Foundation, said in a statement. Another result that is perhaps surprising is the type of jobs that were created. A common stereotype is that migrant workers predominantly open Döner Kebab restaurants and corner stores. This, however, is a misconception: only 28 percent of business owners with foreign roots work in the restaurant and retail industries, with the remaining 72 percent working in other industries (such as manufacturing and construction). Although the report did not include data from 2015 (the year that Syrian refugees came to Germany in large numbers), it does demonstrate the positive impacts that workers with foreign backgrounds can have on an economy.  "People with a migrant background are not only working as self-employed persons, but they also create jobs and allow many people the chance to participate on the job market," De Geus said. Nicole Glass Editor, The Week in Germany Webteam, Germany.info

My alma mater is tearing down silos in Cleveland, Ohio.

My first encounter with Case Western Reserve University was in January 1974, nearly a year after I was released from active duty by the United States Coast Guard.  I had three years of experience as a Public Information Officer for Charlie Gulf's Great Lakes region (followed by a year of travel and freelancing), which got me an entry level editor/writer position with CWRU's Office of University Communication.  During the next five years I got two promotions, ending up running the whole shop, and completed the course work toward my PHD in American Studies.  I then moved across campus to become a law student for the next three years.

CWRU is the 1967 amalgamation of Case Institute of Technology, where the famous Michelson- Morley experiments, which provided empirical support for Einstein's theories of relativity, took place, and Western Reserve University, which in the 1950s had been ranked as having a top-ten medical school.

Now Case is poised to be a top-ten healthcare entity once again.  As reported on NPR this morning, Case and the Cleveland Clinic are combining resources to create a new facility in which medical, dental and nursing student all will train together.  In the Fifties, Western Reserve's med school achieved its high ranking by an innovative curriculum that put med students in contact with patients from the very start of their education to be doctors.  Now, ripping down the silos that separate the three predominant healthcare professions is likely to catapult successor CWRU into the very top tier yet again some sixty years later.

What Case and the Clinic are doing is a guidepost for what all of us in higher education must do, if we are to thrive.  This advice goes double for the private sector.  Silos must go if we are going to maximize our resources.

A good book on this topic is Silos, Politics and Turf Wars by Partrick Lencioni.  It's a slim volume and quick read, but worth the investment of a little time and money.  The provost at my home institution had her deans read and discuss it at a retreat.  You could do a lot worse than that.  You might try combining it with the CWRU/Cleveland Clinic venture as a case study on point.

Bang v. Bang in the Austin City Limits

As the debate over concealed carry heats up in the Lone Star State, sex-shop proprietors are weighing in with a campaign entitled "Cocks Not Glocks."

Students, too, are joining in this sexy protest movement, reportedly attaching dildos to their backpacks to highlight the claim that, while guns are now allowed on public college campuses, apparently sex toys are not.

The motto of the new movement is "fighting absurdity with absurdity."  So far it all seems good natured.

On a more serious note, as I reported in an earlier post this week, a group of UT-Austin profs lost their bid for a preliminary injunction in federal court.  They hoped for a court order to keep concealed weapons out of their classrooms when classes start next month.  I assume they will appeal to the Fifth Circuit.

All I can say is: 2016 keeps getting more and more interesting.

Alternatives to guns?

My high school chum, Bob Marzen of Jim Thorpe (PA) sent me the following information:

Never thought about this before but important to  know!  I know some of you own GUNS but this is something to think about...   If you don't have a gun, here's a more humane way to wreck someone's evil plans for you. Did you know this? I didn't. I never really thought of it before. I guess I can get rid of the baseball bat.    Wasp Spray - A friend who is a receptionist in a church in a high risk area was concerned about someone coming into the office on Monday to rob them when they were counting the  collection. She asked the local police department about using pepper spray and they recommended to her that  she get a can of wasp spray instead.   The wasp spray, they told her, can shoot up to twenty feet away and is a lot more accurate, while with the pepper spray, they have to get too close to you and could overpower you. The wasp spray temporarily blinds an attacker until they get to the hospital for an antidote. She keeps a can on her desk in the office and it doesn't attract attention from people like a can of pepper spray would. She also keeps one nearby at home for home protection. Thought this was interesting and might be of use.    On the heels of a break in and beating that left an elderly woman in Toledo dead, self defense experts have a tip that could save your life..  Val Glinka teaches self-defense to students at Sylvania Southview High School. For decades, he's suggested putting a can of wasp and hornet spray near your door or bed.  Glinka says, "This is better than anything I can teach them."   Glinka considers it inexpensive, easy to find, and more effective than mace or pepper spray. The cans typically shoot 20 to 30 feet; so if someone tries to break into your home, Glinka says "spray the culprit in the eyes". It's a tip he's given to students for decades.  It's also one he wants everyone to hear If you're looking for protection, Glinka says look to the spray. "That's going to give you a chance to call the police; maybe get out." Maybe even save a life.  Please share this with  all the people who are precious to your  life   Did you also know that wasp spray will kill a snake? And a mouse! It will!  Good to know, huh? It will also kill a wasp!!

Two new court decisions worth noting:

1.  A federal judge in Austin has ruled that academic freedom does not trump the Lone Star State's concealed-carry law.  His Honor denied  the plaintiffs' motion for a preliminary injunction in this challenge to the new law, brought by university professors who want to keep concealed weapons out of their college classrooms.  Here is the court's ruling.

2.  Meanwhile, in Philadelphia the U.S. Court of Appeals for the Third Circuit has ruled that alumni of Widener University Law School, accusing the school of fraudulently inducing them to attend with promises of great jobs on graduation, do not meet the criteria for class certification:

Synopsis

Background: Graduates of private law school brought putative class action against the school alleging it posted to its website, and disseminated to third-party law school evaluators, misleading and incomplete graduate employment rates in violation of New Jersey and Delaware Consumer Fraud Acts. The United States District Court for the District of New Jersey, William H. Walls, Senior District Judge, 2015 WL 4064647, denied graduates' motion for class certification and, 2015 WL 4647930, denied motion for reconsideration. Graduates filed interlocutory appeal.

Holding: The Court of Appeals, Chagares, Circuit Judge, held that proposed class did not meet predominance requirement for class certification.

Affirmed.

This is a big setback for the plaintiffs in this four-year-old litigation.  The suit was first filed around the same time as a spate of other such suits, targeting the bottom-feeders in the law-school arena.  To the best of my knowledge, all the other actions were dismissed early on.  Here's a report of a typical case outcome from 2012.  On the other hand, new suits are still being filed by disgruntled grads who claim they can't find full-time law jobs.

Neither with concealed-carry laws nor with law school fraud accusations are we likely to have seen the last of these litigations.  With regard to the latter, my prediction is that we will see increasing numbers of suits brought by graduates and other former students in this consumer-driven environment.  For instance, a law suit was brought last year by former UNC athletes who claim that the sham classes, so prominent in the news, cheated them of the real education they deserved.  Students and parents increasingly consider that they are buying a product, when they pay their tuition bills, and that product must perform as promised.  

With respect to the former issue, as this bloody summer comes mercifully to a close and students and faculty return to our campuses, firearms will continue to be a matter of high concern to administrators, public safety officers, faculty, students and parents alike... and not just in Texas.

A New Breed of "Gun Violence" Researchers has emerged

... according to the Chronicle of Higher Education.  "Academics who study gun violence and gun policy occupy an unusual position in public discourse. Few other topics provoke such extreme responses from advocates on both sides of the conversation. That takes getting used to."

Nowhere is that debate more visible and visceral than in the Lone Star State, where the new concealed-carry law is taking effect just as students are returning to their campuses.  Faculty at public universities, which are mandated to permit students to come into classrooms armed, are thinking long and hard about the potential consequences of this reality.  Antagonizing students for the sake of stimulating the clash of ideas may be imprudent, when that clash could become a cross fire.

What "concealed carry" can mean is well illustrated in the new Jeff Bridges movie, which I saw over the weekend.  In "Hell or High Water," Bridges is a Texas Ranger pursuing Chris Pine, a neophyte bank robber and his heavily armed, ex-con brother.  When Pine and his bro enter one of the busier banks around the lunch hour, customers go for their concealed weapons.  The shoot out moves from inside the lobby onto the highway, where armed citizens take out after the brothers in their SUVs and Jeeps.

A good thing or a bad one?  Go see the film and judge for yourselves.  It happens to be one of Bridges's best acting jobs ever in my humble opinion.  The story is a tad slow but very well written.  The characters are three dimensional and sympathetic.  And the climax is potent, if also tentative.

http://www.imdb.com/title/tt2582782/

Would your university recognize this student organization?

Students for Concealed Carry reportedly has grown from a Facebook focal point to a significant organization.  It's founder is a Texan and Texas has been in the news this year for its concealed-carry law.  The law, among other things, requires public universities in the Lone Star State to permit students to carry concealed firearms into their classroom (though not their dorms).

The founder reportedly grew up a gun lover.  That's easy to understand.  As a boy, I and my friends played soldiers all the time in the words surrounding our Pennsylvania hometown.  "LIttle men" for me and my best friend (who later did three tours as a Screaming Eagle in Vietnam) meant playing with our toy soldiers.  "Big men" meant playing at soldiers ourselves.  Every kid whose dad had served in WWII had memorabilia from the war.  My brother and I had a (disarmed) Japanese mortar shell, our father's campaign knife, and assorted other mementoes, which we supplemented with toy guns.  These included cap pistols that ignited little dots of gun powder that came on rolls of red paper that were fed through the toy guns, and BB guns that fired little brass pellets (think of the film "A Christmas Story",  in which Robbie is told by the department store Santa, "You're gonna shoot your eye out, kid.")

Later we had 22 caliber rifles.  A good Sunday started with mass and ended with Sunday dinner.  What made it good was the trip in between to the town dump (not a landfill, mind you), where we shot rats for an hour or so.  No wonder we grew up loving guns.

Students for Concealed Carry isn't the only anti-PC organization challenging the dominant college culture today.  FIRE is also out there making waves.  The Foundation for Individual Rights in Education presents itself this way:

The mission of FIRE is to defend and sustain individual rights at America’s colleges and universities. These rights include freedom of speech, legal equality, due process, religious liberty, and sanctity of conscience—the essential qualities of individual liberty and dignity. FIRE’s core mission is to protect the unprotected and to educate the public and communities of concerned Americans about the threats to these rights on our campuses and about the means to preserve them.

FIRE was founded in 1999 by University of Pennsylvania professor Alan Charles Kors and Boston civil liberties attorney Harvey Silverglate after the overwhelming response to their 1998 book The Shadow University: The Betrayal Of Liberty On America’s Campuses.

The website goes on to say:

Freedom of speech is a fundamental American freedom and a human right, and there’s no place that this right should be more valued and protected than America’s colleges and universities. A university exists to educate students and advance the frontiers of human knowledge, and does so by acting as a “marketplace of ideas” where ideas compete. The intellectual vitality of a university depends on this competition—something that cannot happen properly when students or faculty members fear punishment for expressing views that might be unpopular with the public at large or disfavored by university administrators.

Nevertheless, freedom of speech is under continuous threat at many of America’s campuses, pushed aside in favor of politics, comfort, or simply a desire to avoid controversy. As a result, speech codes dictating what may or may not be said, “free speech zones” confining free speech to tiny areas of campus, and administrative attempts to punish or repress speech on a case-by-case basis are common today in academia.

Both Students for Concealed Carry and FIRE  are intriguing contre temps to the stereotypical image of the overwhelming liberal college campus.  Both are worth keeping an eye on.

The transition from for-profit to non-profit status: A legitimate transition or a shell game?

The Center for Excellence in Higher Education is an interesting case study related to this questions.  According to the Chronicle of Higher Education, the organization has been denied non-profit status by the US Department of Education.  The DOE says:

The U.S. Department of Education today denied a request from the Center for Excellence in Higher Education (CEHE), a Utah-based chain of for-profit career colleges, to convert to non-profit status for purposes of federal financial student aid. The denial means that the colleges’ programs must continue to meet requirements under the federal Gainful Employment regulations.
“This should send a clear message to anyone who thinks converting to non-profit status is a way to avoid oversight while hanging onto the financial benefits: Don’t waste your time,” said U.S. Education Secretary John B. King Jr.
The letter to CEHE is online here.
This denial does not directly affect the approximately 12,000 students who attend the four institutions owned by CEHE - Stevens-Henager in Utah and Idaho, CollegeAmerica Denver, CollegeAmerica Arizona, California College San Diego and CollegeAmerica Services - but it does mean that the Department will continue to limit the colleges to getting no more than 90 percent their revenue from Title IV federal student aid. It also means that the institutions must meet all federal regulations for for-profit colleges.
CEHE first applied for non-profit status with the Department in the fall of 2012. In reviewing that request, the Department determined that CEHE, which had been a small educational non-profit that did not provide educational services, acquired four for-profit college companies owned by the Carl Barney Living Trust. CEHE promised to pay the Trust more than $400 million dollars, and the colleges were merged into CEHE. When that happened, Mr. Barney became the board chairman of CEHE, and because of the way the transaction was structured, retained significant control of the colleges, despite the change in ownership to CEHE.
While CEHE is recognized by the Internal Revenue Service as a non-profit company, the colleges’ tuition revenue continues to flow to Mr. Barney through the Trust to pay off the debt that CEHE owes from acquiring the colleges, and through the rent that some of Mr. Barney’s other companies receive as landlords for several of the college campuses. Under 34 C.F.R. § 600.2 of the Higher Education Act regulations, non-profit institutions must be owned and operated by a non-profit where no part of the net earnings benefit any private shareholder or individual.
“Schools that want to convert to non-profit status need to benefit the public,” said U.S. Under Secretary of Education Ted Mitchell. “If the primary beneficiary of the conversion is the owner of the for-profit school, that doesn’t meet the bar. It's not even close.”
Since 2012, the four institutions have continued participating in the Title IV financial aid programs on month-to-month agreements as for-profit institutions. In a letter to the company’s CEO, Eric Juhlin, the Department approved the change in ownership that CEHE requested but continues to recognize Mr. Barney as maintaining significant control of the institutions and the Title IV revenue they produce.
During the review of the change in ownership request, the Department requested additional documentation from CEHE. The company provided information to the Department but marked much of it as confidential, and that information has been removed from copies of the letter made available for public review. Documents subject to CEHE’s confidentiality designation would have to be requested for public review under the Freedom of Information Act.
During the time the applications were under review, risk factors identified in CEHE’s financial statements - including a lawsuit against one of the institutions filed by the Colorado Attorney General - led the Department to require CEHE to provide a $42.9 million surety, which is 30 percent of the annual federal student aid funding for 2013 for the four institutions. That surety remains in place but is subject to adjustment based on CEHE’s financial condition and other risks.
To qualify for federal student aid, the law requires that most for-profit programs and certificate programs at private non-profit and public institutions prepare students for gainful employment in a recognized occupation.

Comments the Chronicle, "For-profit colleges that do make the switch to nonprofit status are freed from regulations that prohibit for-profits from getting more than 90 percent of their revenue from Title IV federal student aid. But a report published last year by the Century Foundation found that some of these colleges act like 'covert for-profits,' and that their board members profit in ways they would not at typical nonprofits."

For many for-profits, the business model has looked something like this:  Recruit a student, admit her, and help her get federal aid.  Collect that federal aid as tuition, thus converting a portion of it into net profit for your shareholders.  Meanwhile, if the student flunks out and defaults on her federal loans, we the taxpayers cover the debt.

As the Chronicle notes, there is a limit on how much of a for-profits revenues can come in this way.  So... if you can convert your corporation to a non-profit entity and still find a way to channel its revenues into your coffers... well, there it is.

It's going up to 95 today here in Philadelphia...

... where a University of Pennsylvania student has been studying the issue we in higher ed call summer melt.

     The term is applied to those admitted students, who have deposited, but who fail to show up for orientation or move-in day.  What happens between the time when they commit to coming to our colleges and the start of the autumn semester?  We'd all like the answer.

     This student's research led her to conclude, "Institutional characteristics were really big determinants, at least anecdotally, when I spoke to admissions officers, of what sorts of solutions are going to be relevant or doable. For example large institutions — meaning land-grant publics — might have a much more difficult time with back-end solutions, mainly because their staff might not scale up to allow admissions officers to be able to personally call people who don’t register for classes. Pretty much all institutions are able to rely upon front-end solutions. They’re much more mass-outreach oriented, and also a lot of the work for the front-end solutions, like establishing a brand identity, is done before students even commit to the university. So I think everyone should pay attention to front-end solutions, but the back-end solutions are important as well, because the admissions officers I spoke to seemed to think it was the more effective way of mitigating summer melt. You’re literally stopping melt from occurring if you’re talking to students who might have just ended up not coming because no one reached out to them."

      Undoubtedly, if the resources can be mustered, this "back-end" effort can pay off.  The same is true with regard to retention.  When continuing students fail to register, having their faculty advisers reach out to them can make a real difference, too.  That call can ferret out issues such as a family financial crisis.  The student then might be referred to the financial services folks, for instance.

      Today, when every student counts, especially at smaller private schools such as my own, effective preventative measures against summer melt are a critical piece of the overall enrollment-management strategy.

   

Bang, Bang: This summer has been a shoot 'em up horror show... and at Texas universities the Autumn may be even worse.

For example, at UT-Austin --- where once upon a time I was a biz law prof --- and Texas A&M, faculty are wondering if they can require their students to check their firearms at the office door.

According to the Chronicle of Higher Ed, some faculty are posting "No Forearms Allowed" signs on their office doors, as they brace for the first semester in which concealed-carry is the new order of the day.

According to the article, "The new law allows people age 21 and over who have concealed-carry licenses to bring guns into most buildings on public-college campuses. Individual institutions were given some leeway to carve out exclusion zones; the University of Texas at Austin, for instance, generally bans weapons from dormitories, while Texas A&M University does not."

I think we are all still reeling from all the "Cop v. Minorities' shootings of June and July, as well as the images of assault-rifle toting Ohioans at the GOP convention in Cleveland, where open-carry is the rule of law.  And we still have nearly four more weeks of August to get through, before we wrap up this bloody, mad summer on Labor Day Weekend.

Speaking as a university administrator of some 25 years' experience, who has seen his fair share of disturbed students, concealed-carry would make me a little nervous.  I wonder if grade inflation will be evident in the Texas public-university system this coming academic year.