Update: Law Schools Defeating Most Fraud Claims So Far

Bruce Alper
Vedder Price
Chicago, IL

In 2011 and 2012, fifteen law schools were sued by former students who alleged that their alma maters had disseminated misleading post-graduate employment and salary statistics.  Relying on common law fraud and state consumer protection laws, the plaintiffs contended that the schools failed to differentiate full-time law industry jobs from other jobs, which misled the plaintiffs into believing that attending and graduating from their law school would give them a better chance of getting a job upon graduation. The first suit was brought in California against Thomas Jefferson Law School, but soon a group of lawyers in New York City jumped on the bandwagon and began to sue law schools all over the country on this theory.  After first suing in Michigan and New York in 2011, the New York lawyers sued another group of law schools in early 2012 in California, Illinois, New Jersey and Florida.   All together, the New York lawyers have sued 14 law schools.

Six cases in federal and state courts in New York, Michigan, and Illinois have been dismissed on motions.  The rulings in favor of the schools revolve around the common themes that, although the law schools could have been more forthcoming, the employment statistics were literally true and reasonable law students would not have been misled.  Some judges ruled that the plaintiffs could never prove that the employment statistics affected their individual job prospects and any damages would be speculative.  The only case to reach an appellate court (in New York) has affirmed the lower court’s dismissal.  Three of the California cases survived motions to dismiss while all of the other cases are awaiting rulings.

The higher education community has been watching these cases closely.  One development is that the ABA has changed the way law schools report employment statistics to make those numbers more detailed and transparent.  Although only law schools have been targeted thus far, it is not a stretch to anticipate that similar suits might be brought against colleges and other graduate schools which publish post-graduation employment and salary data.

With most cases being dismissed so far, the threat of new litigation has been reduced but colleges and universities should take this opportunity to ensure that the post-graduation employment statistics they publish are accurate and do not paint an overly optimistic employment picture.

(Bruce R. Alper of Vedder Price P.C. represents one of the Chicago defendants.)

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The Evolving Definition of Mandated Reporters in Higher Education

Natasha Baker
Hirschfeld Kraemer LLP
San Francisco, CA

In the wake of Penn State, we examined various state laws around the U.S. in order to determine the scope of the definition of mandated reporters (those who have an obligation to report suspected child abuse).  In general, it was not always clear whether this obligation applied to institutions of higher education.

For example, the California Child Abuse and Neglect Reporting Act, requires a mandated reporter, to report whenever he or she, in his or her professional capacity or within the scope of his or her employment, has knowledge of or observed a child whom the mandated reporter knows or reasonably suspects has been the victim of child abuse or neglect.  Failure to report an incident is a crime punishable by imprisonment in a county jail for a period of 6 months, a fine of up to $1,000, or by both that imprisonment and fine.  Previously, the Act, which encompasses “school” employees, did not define “school,” thereby leaving an open question as to its applicability outside the K-12 context.

Effective January 1, 2013, the definition of mandated reporter in California was expanded to explicitly include employees and administrators of a public or private postsecondary institution, whose duties bring the administrator or employee into contact with children on a regular basis or who supervises those whose duties bring the administrator or employee into contact with children on a regular basis.  The scope of the reporting obligation is limited to suspected or actual child abuse or neglect occurring on that institution’s premises or at an official activity of, or program conducted by, the institution.

Recommended Training
Under the Act, California employers are strongly encouraged to provide their employees who are mandated reporters with training on their responsibilities under the Act.  Per the Legislature, this training should include training in child abuse and neglect identification and training in child abuse and neglect reporting.  In order to encourage compliance with the Act, we also recommend that the training include a discussion of the legal obligations and consequences for failing to report and the available legal protections for mandated reporters. We further recommend that institutions in all jurisdictions examine the applicable mandated reporting law and assess whether training should be conducted.

Required Mandatory Reporter Disclosure to Employees
Whether or not employers provide their employees with training in child abuse and neglect identification and reporting, the Act requires that California employers provide their employees who are mandated reporters with the information and disclosure statement required pursuant to Penal Code Section 11166.5(a).

Recommended Actions
California institutions of higher education should review their employees’ obligations under this Act and ensure that those who qualify as mandated reporters are apprised of their obligations in accordance with the requirements of Penal Code Section 11166.5(a).  Institutions outside of California would be well-advised to take this step as well.

A written policy governing the duties and responsibilities of these mandated reporters is also advisable.

Finally, we recommend ensuring that all employees who satisfy the definition of mandated reporter receive the recommended training.  Our office currently offers this training on-site and via webcast.