The above quotes from two of the primary players in the for-profit college industry highlight the industry’s polarizing and divisive regulatory issues. This industry has seen unprecedented growth in recent years, increasing enrollment by 225% from 1998-2008. In fact, for-profit colleges received $32 billion in federal grants and loans from 2009-2010. This number accounted for about 25% of all federal student aid distributed despite the industry enrolling only 10-13% of all college students (about 2.4 million students). The prominence and growth of for-profit colleges is highlighted by one for-profit college’s recent entry into a Division I athletic conference.

However, recent reports of fraudulent and deceptive recruiting, and high student default rates have plagued the industry, culminating in the release of a negative Senate report by the Health, Education, Labor, and Pensions Committee (“HELP Report”). One such report was an undercover U.S. Government Accountability Office (“GAO”) report of fifteen for-profit colleges that found that each school made questionable or deceptive recruiting statements. Additionally, the HELP Report found that the average tuition at for-profit colleges exceeds that of their respective public school counterparts (for certificate programs, associate’s degrees, and bachelor’s degrees). For example, a bachelor’s degree in business administration at the for-profit Alta College in Colorado costs $80,466 compared to $60,704 at the University of Colorado Boulder.” Moreover, the Education Department recently released the three-year cohort default rate from 2009, measured by the percentage of student borrowers who entered repayment and defaulted within the past three years for a given school. The three-year default rate was 22.7% in the for-profit college sector compared to only 11% in public colleges and 7.5% for nonprofit private colleges.

With these words, U.S. Secretary of Education Margaret Spellings expressed her belief that the progress of state public educational systems can only be trusted when supported by objective data. While the age-old adage, “numbers do not lie,” may hold true in other contexts, the results of recent investigations along with teacher and student allegations suggest that in the educational context, sometimes they do. In an effort to feign educational progress on state assessment tests in reading and mathematics, educators at state and local levels are targeting low performing students by excluding these students from state testing, providing them with the correct answers to test questions during their exams, and doctoring their answer sheets before submitting them for scoring.

What is driving educators to cheat? The answer: federal legislation known by four words that are striking fear into educators throughout the nation – “No Child Left Behind.” Few can argue with the Act’s admirable goals: (1) ensuring that all children, including those historically left behind, are held to the same academic achievement standards; (2) narrowing the achievement gap between our nation’s highest and lowest performing students; and (3) ensuring that all students reach grade-level proficiency by 2014. However, under No Child Left Behind (“NCLB”), states, school districts, and public schools are exposed to an escalating series of harsh sanctions when student test scores on state assessment tests in reading and mathematics do not reflect “adequate yearly progress.” Since NCLB’s inception, many of our nation’s school districts and public elementary and secondary schools have failed to make adequate yearly progress. These failures have coincided with reports indicating that teachers and administrators, whose jobs and professional reputations are at risk, are doing whatever it takes to portray progress.

Vanessa Shetler was shocked to learn what her eight-year-old son went through one seemingly ordinary day in his third-grade class.After coming home from school, Ms. Shetler’s son informed his mother that instead of spending the day learning math and reading, he was asked by the school how frequently he thought about having sex or touching other people’s “private parts.” Had these questions been presented as part of a routine sex and health education program for elementary school students, perhaps Ms. Shetler would not have been so upset. These questions, however, were not a part of such a program. Instead, the school, in collaboration with a mental health counselor, distributed a survey containing numerous sexually charged questions to some of its students. The survey asked students how often they thought about washing themselves because they felt dirty inside or if they ever had “sex feelings” in their bodies, for example. What is more, it asked if they ever thought that they touched their own “private parts” too much and if they ever could not stop thinking about sex.

Ms. Shetler was just one out of many parents who became outraged because of the survey and believed that the questions were “putting poison into kids’ minds” because it discussed sex and other subjects that third graders should not be learning about. The survey was not given solely to third graders, however – first and fifth graders were also asked to answer these same questions. The school claimed that the survey was designed to establish a baseline for measuring trauma in children, for the purpose of ascertaining any impediments to the students’ abilities to absorb material in school. Unpersuaded by the school’s rationale, parents claimed that the survey was inappropriate and, in response, filed suit against the school district.

As word of the decision in Hosty v. Carter spread in the summer of 2005, many college journalists were outraged. To them, it was the end of free speech as they knew it. In Hosty, the en banc Seventh Circuit became the first court to apply in a college the framework of the Supreme Court’s Hazelwood case, which for nearly twenty years had given high school administrators wide latitude to restrict the content of student-run newspapers. As a result, many college journalists believed they were powerless against university presidents and deans, who they believed could charge into their newsrooms, lock up their computers, and even stop their presses – all with the blessing of the First Amendment.

In truth, the outrage did not begin with Hosty. It began seventeen years earlier with the Supreme Court’s decision in Hazelwood School District v. Kuhlmeier. In Hazelwood, the Supreme Court held that in high schools, where school-sponsored student speech does not occur in a public forum, the school may regulate the content of that speech for reasons that are “reasonably related” to any of a range of “legitimate pedagogical concerns.” Thus, many people believed Hazelwood gave high school administrators near free reign to stop students from participating in one of our nation’s most sacred traditions – a free and independent press. And in Hazelwood, the Supreme Court explicitly left open the possibility that the case’s analytical framework might be applied to student publications in colleges too. But until June 2005, no court had dared to do so. Hosty was the first.