NACAC VOTES TO OVERHAUL ETHICAL CODE 

NACAC VOTES TO REMOVE PARTS OF ETHICAL CODE

It’s already old news but over the weekend, NACAC delegates and members voted almost unanimously to remove several key sections from the association’s Code of Ethics and Professional Practices bringing sweeping changes to the admissions and enrollment management landscape in higher ed. The vote was called to attempt to bring NACAC’s SPGP/CEPP into compliance with United States antitrust laws following a two-year investigation by the United Stated Department of Justice. NACAC hopes the changes, eliminating parts of their ethics code and made effective immediately will help bring the investigation to a conclusion and stem the threat of possible litigation in the future.

Competition is typically good for consumers because it gives them choices, options and keeps prices in check. Not to mention that it incentivizes businesses and institutions to offer higher quality products and services. The gist of the NACAC problem lies not only in the coordination undertaken by its members, but also in the ways that they prevented competition.

NACAC required its members to agree to use only certain prescribed application plans such as Early Decision, Regular Decision, Early Action and Rolling Admissions, and prevented them from circumventing those plans by recruiting out of the prescribed cycles. Their rationale was that this would ensure that high school students would benefit from a closely coordinated process that might be otherwise complex or confusing to prospective students and their families and colleges would be afforded some simple protection through a common admissions cycle and procedure.

NACAC built in protections for students so that they wouldn’t be coerced or pressured from other colleges to enroll or pay a deposit before the agreed upon deadline for each application plan, and colleges couldn’t offer special incentives to students to secure enrollment. According to NACAC, that gave students a reasonable amount of time to identify their college choices, complete applications of admission, compare financial aid offers and then make an informed decision.

Although NACAC’s primary concern is for students in the high school to college pipeline, they also prescribed rules for members related to transfer student recruitment. Given that it would be impractical to establish universal dates and deadlines for transfer students, NACAC members agreed not to solicit transfer students from each other and to keep their hands off previous years applicant and prospective student pools unless a student initiated contact first. As a result of the vote, all of these provisions have been removed.

Although NACAC voted to eliminate these rules from their CEPP, the Department of Justice is still expected to file a formal complaint and issue a consent decree which will ultimately require a federal court to decide how to proceed. Although this is a step in the right direction, there’s no guarantee that this situation is completely resolved. NACAC was keen to point out to its members that “Any agreement or understanding among separate institutions to continue the conduct prohibited by the consent decree may result in an antitrust investigation of those institutions.”

The last few days have left many who work in college admissions reeling as they began coming to grips with the gravity of the changes and the new landscape before them. Many expressed feelings of anger at the DOJ, while some expressed outright denial that anything will change on their campus. Still others have already begun to accept the changes and are actively seeking ways to realign their recruiting philosophies and strategies with the new rules of the game. While it’s natural to fear and even resist change, it’s important to recognize when a change has already occurred and to adjust accordingly. As Ken Blanchard wrote in “Who Moved My Cheese”, You can hem and haw, or sniff and scurry.

For context, here are the sections of NACAC’s CEPP which are expected to be deleted. *Note this is from the most recent CEPP dated September 2018 which does not include the revisions. NACAC has not yet published an updated CEPP since voting on September 28, 2019. Retrieved from: https://www.nacacnet.org/globalassets/documents/advocacy-and-ethics/statement-of-principles-of-good-practice/nacacs-code-of-ethics–professional-practices.pdf

Section II. The Responsible Practice of College Admission
A – Application Plans for First Time Undergraduates
vi – Early Decision
“Colleges must not offer incentives exclusive to students applying or admitted under an Early Decision application plan. Examples of incentives include the promise of special housing, enhanced financial aid packages, and special scholarships for Early Decision admits. Colleges may, however, disclose how admission rates for Early Decision differ from those for other admission plans.”

Section II. The Responsible Practice of College Admission
B – Admissions Cycle Dates, Deadlines and Procedures
“Once students have committed themselves to a college, other colleges must respect that choice and cease recruiting them. Similarly, colleges need protection when other institutions pressure students to submit applications or enrollment deposits before established deadlines or when they continue to solicit applications or enrollments after students have finalized their college decisions”.

Section II. The Responsible Practice of College Admission
B – Professional Conduct
5: “Colleges will not knowingly recruit or offer enrollment incentives to students who have already enrolled, registered, have declared their intent, or submitted contractual deposits to other institutions. May 1 is the point at which commitments to enroll become final, and colleges must respect that. The recognized exceptions are when students are admitted from a wait list, students initiate inquiries themselves, or cooperation is sought by institutions that provide transfer programs. These statements capture the spirit and intent of this requirement.
a. Whether before or after May 1, colleges may at any time respond to a student-initiated request to reconsider an offer or reinstate an application.
b. Once students have declined an offer of admission, colleges may no longer offer them incentives to change or revisit their college decision. Before May 1, however, colleges may ask whether candidates would like a review of their financial aid package or other incentives before their admission is canceled, so long as the question is asked at the time that the admitted students first notify them of their intent to cancel their admission.
c. After May 1, colleges may contact students who have neither deposited nor withdrawn their applications to let them know that they have not received a response from them. Colleges may neither offer nor imply additional financial aid or other incentives unless student have affirmed that they have not deposited elsewhere and are still interested in discussing fall enrollment.”

Section II. The Responsible Practice of College Admission
D Transfer Admission
5: “Colleges must not solicit transfer applications from a previous year’s applicant or prospect pool unless the students themselves initiated a transfer inquiry or the college has verified prior to contacting the student that they are either enrolled at a college that allows transfer recruitment from other colleges or are not currently enrolled in college.”

COMING COMPETITION IN COLLEGE ADMISSIONS

National Association for College Admission Counseling’s NACAC Code of Ethics.

It’s been almost two years since the Department of Justice’s Antitrust Division began an inquiry into the National Association for College Admission Counseling’s (NACAC) Code of Ethics. The Statement of Principles of Good Practice: Code of Ethics and Professional Practice (SPGP – CEPP) is followed by nearly 8000 NACAC members from colleges and universities. Among enrollment management professionals, the SPGP isn’t just a code of ethics. Instead, it’s a matrix upon which all of admissions operates, and there’s the rub. Is a system that’s arranged with as much pomp and circumstance as college admissions rigged to be anti-competitive? The Department of Justice seems to think so.

Earlier this week, NACAC’s Board of Directors recommended changing course to help the association avoid litigation and trial and to show good-faith and compliance with the DOJ investigation. In a memo to their Assembly leadership and delegates who will be meeting next month, NACAC’s Board and legal counsel recommended that delegates “seriously consider deleting statements within the Code of Ethics and Professional Practices assumed to violate antitrust laws.”

NACAC’s board is recommending that their leadership approve a motion to suspend procedural rules of the Assembly prohibiting amendments to the CEPP, except those recommended by their legal counsel.

Additionally, they’ve proposed a moratorium on enforcing the rules outlined in the of the Code of Ethics and Professional Practices which govern everything from admissions cycle dates, deadlines and procedures to transfer admission and of course early and regular decision. According to NACAC, these are the four main areas that Department of Justice considers to be potentially anti-competitive under anti-trust laws .

Early Decision

NACAC’s guidelines have long prohibited colleges from offering special incentives to students applying or admitted for Early Decision. NACAC proposes removing language that would prohibit colleges from doing so, which in theory will allow colleges to lure students to their campus with offers of preferential housing, better financial aid packages and even special scholarships.

Responsible Practice of College Admission

NACAC member institutions have an agreement that they won’t poach each other’s students. Once a student has committed themselves to a college, institutions simply stop trying to recruit them. This has insulated colleges from competition by members. By striking this language from the CEPP, it seems that colleges may be able to recruit whomever they want , whenever they want, even before or after NACAC’s deadlines.

Admission Cycle Dates, Deadlines and Procedures for First-Time Fall Entry Undergraduates

May 1st is a big day in admissions. That’s when students are expected to commit to a college under regular decision and that’s also when college admission offices have to stop trying to recruit students who have committed to other institutions. NACAC is proposing to remove the language preventing colleges from trying to get students to change their college decision.

Transfer Admission

Under existing NACAC rules, colleges can’t contact applicants or prospective students from prior years unless that contact was initiated by the student themselves. This prevents colleges from recruiting transfer students. If the Assembly indeed votes to remove this provision, colleges will be able to contact students at other colleges and offer incentives for them to transfer.

It’s quite likely that NACAC’s Assembly leadership and delegates will adopt these changes when they meet next month and that means that college admissions is about to change.

Absent the protections provided by NACAC SPGP-CEPP institutions are going to have to work smarter, harder and most of all compete to attract students to their campus. What remains to be seen is whether these changes if adopted will appease the Department of Justice and what repercussions if any will be felt by individual institutions (or even individuals at institutions) who have operated under NACAC’s admissions principals.

NY BUREAU OF PROPRIETARY SCHOOL SERVICES BANS ARBITRATION AGREEMENTS

ICYMI – The New York Education Department Bureau of Proprietary School Supervision has issued a ruling banning, arbitration clauses on proprietary and career training school enrollment agreements as well as financing plans extended by schools. The ruling includes conditions under which “permissive, post-dispute arbitration may be approved.”

DOJ INVESTIGATES NACAC FOR POSSIBLE ANTITRUST

Higher Ed Consultant

The Department of Justice’s Antitrust Division began an inquiry into the National Association for College Admission Counseling’s (NACAC) Code of Ethics. The Statement of Principles of Good Practice: Code of Ethics and Professional Practice (SPGP) is followed by nearly 8000 members from colleges and universities. Among enrollment management professionals, the SPGP isn’t just a code of ethics. Instead, it’s a matrix upon which all of admissions operates, and there’s the rub. Is a system that’s arranged with as much pomp and circumstance as college admissions rigged to be anti-competitive? We can only speculate at this point and in a statement on the NACAC’s website, the Association says it is cooperating with DOJ investigators, but still “know(s) little about the scope and intent of the inquiry”. NACAC also said that members of the former Steering Committee on Admission Practices have requests from the DOJ to provide some records. For an interesting take, check out this piece by Eric Hoover at the Chronicle of Higher Education featuring one of my favorite Enrollment Management Bloggers Jon Boeckenstedt, associate vice president for enrollment management and marketing at DePaul University.

ESTABLISHING A CAREER PATHWAYS PROGRAM

Every year more than 1.2 million students drop out of High School. They lack the most basic credentials for securing employment, a High School Diploma. Students who don’t possess a High School Diploma or its equivalent generally can’t attend postsecondary schools or access Title IV Federal Student Aid funds, however; for almost two years now, Ability-to-Benefit (ATB) testing has been restored for students without a high school diploma who are enrolled in a career pathways program. A career pathways program includes two components; a Title IV eligible postsecondary program component as well as a component that enables a student to attain a high school diploma or its recognized equivalent. Sadly, too few of these programs exist to fill the massive need of increasing High School and GED completion. Fortunately, recently Public Law amended the definition of an eligible career pathway program and as a result, the program requirements have gotten much simpler and clearer. If you’re considering adding a Career Pathways program at your school, your timing couldn’t be better.

Career Pathways Basics

A Career Pathways Program must:

  • Align with the skill needs of industries in the economy of the State or regional economy involved;
  • Prepare an individual to be successful in any of a full range of secondary or postsecondary education options, including apprenticeships registered under the Act of August 16, 1937 (commonly known as the ‘National Apprenticeship Act’; 50 Stat. 664, chapter 663; 29 U.S.C. 50 et seq.);
  • Include counseling to support an individual in achieving the individual’s education and career goals;
  • Include, as appropriate, education offered concurrently with and in the same context as workforce preparation activities and training for a specific occupation or occupational cluster;
  • Organize education, training, and other services to meet the particular needs of an individual in a manner that accelerates the educational and career advancement of the individual to the extent practicable;
  • Enable an individual to attain a high school diploma or its recognized equivalent, and at least one recognized postsecondary credential; and
  • Help an individual enter or advance within a specific occupation or occupational cluster.

The amendments struck down a requirement that students had to be enrolled in both the secondary and post-secondary education components of a career pathways program for at least, the entire length of the Title IV eligible post-secondary program for students to be eligible for aid. The amendments also removed the requirements mandating the use of the alternative Pell grant chart used in packaging eligible career pathways students and as a result, student eligibility can now be determined using the regular Pell Chart. Schools with current career pathways programs should note that this will likely result in increased retroactive eligibility for certain students, particularly those still in a current Title IV payment period that is part of the 2015-2016 award year and for the current 2016-2017 award year.

For questions pertaining to Career Pathways programs, please contact our office.

COLLEGES AND THE TELEMARKETING CONSUMER PROTECTION ACT

New school owners and college and university directors may not be aware of the Telephone Consumer Protection Act. Under the act, unsolicited telemarketing calls made using Autodialed and/or, Robocalls, as well as SMS Text messages will now require prior express written consent from each consumer you contact though these means as of October 16th 2013. Simply having an established business relationship no longer exempts your school from the written consent requirements. Calls that are manually dialed and do not contain a pre-recorded message are exempt from the TCPA’s new requirements.

Failure to comply with the TCPA could make your school a target of government and private litigants. The TCPA provides for either actual damages or statutory damages ranging from $500.00 to $1,500.00 per unsolicited call/message. In determining the final amount of statutory damages to award, courts analyze whether the defendant “willfully” or “knowingly” violated the TCPA.  Considering that telemarketing campaigns often involve hundreds to thousands of calls, potential damages under the TCPA can be quite high.

Schools using third party lead generating services as well as those who rely on leads generated through their own website should review their policies for compliance with the new TCPA rules, specifically to ensure that their website contains the necessary voluntary consent language.

 

Clarification of Regulations Related to Incentive Compensation

The U.S. Department of Education issued updated guidance on incentive compensation last week after APSCU v. Duncan led the court to find that that the Department had not  adequately explained or supported its decision to ban compensation to an educational institution’s recruiters of students based on the students’ graduation from or completion of educational programs offered by the institution.

The regulations at 34 CFR §668.14(b)(22),implementing the statutory ban on enrollment-based compensation to recruiters of students, 20 U.S.C. 1094(a)(20), do not contain a ban on graduation – based or completion-based compensation.

The Department has changed its interpretation because, at this time, it lacks sufficient evidence to demonstrate that schools are using graduation-based or completion-based compensation as a proxy for enrollment-based compensation. In assessing the legality of a compensation structure, the Department will focus on the substance of the structure rather than on the label given the structure by an institution.

Thus, although compensation based on students’ graduation from, or completion of, educational programs is not per se prohibited, the Department reserves

the right to take enforcement action against institutions if compensation labeled by an institution as graduation-based or completion-based compensation is merely a guise for enrollment-based compensation, which is prohibited. Compensation that is based upon success in securing enrollments, even if one or more other permissible factors are also considered, remains prohibited.

You can read the full Federal Register here: http://bit.ly/1Uq1PDR

Eligible Career Pathway Programs – Questions and Answers

A student who does not have a high school diploma or its recognized equivalent, or who did not complete a secondary school education in a homeschool setting, may be eligible for Title IV, HEA student assistance through one of the ability-to-benefit (ATB) alternatives, but only if the student is enrolled in an eligible career pathway program.

Recently the U.S. Department of Education provided the following Questions and Answers to the Postsecondary Ed community. Continue reading Eligible Career Pathway Programs – Questions and Answers