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Open Letter
Concord (Online) School of Law Experiment

American Bar Association
Section of Legal Education Admissions
321 N. Clark Street 21st Floor
Chicago, IL. 60610

United States Department of Justice
Civil Rights Division
10th Street and Constitution Avenue, N.W., Room 5643
Washington, DC 20530

Toby D. Slawsky, Esq.
Circuit Executive
United States Court of Appeals
For The Third Circuit
22409 U.S. Courthouse
601 Market Street
Philadelphia, Pa 19106-1790

Gayle Murphy
Director for Administration
The State Bar of California
180 Howard Street
San Francisco, CA 94105-1639

Michael P. Lambert
Executive Secretary
Distance Education and Training Council
1601 18th Street, NW
Washington, DC 20009

RE: REQUEST FOR ASSISTANCE

Dear All:

I. BACKGROUND

In 1977, Kaplan Education LTD was sued by the Federal Trade Commission at Federal Trade Commission v. Kaplan Education, LTD, et al, 433 F. Supp. 989, *; 1977 U.S. Dist. LEXIS 15398, **; 1977-2 Trade Cas (CCH) P61, 541, for false, misleading, and deceptive representations. Thereafter, the company was sold to the Washington Post Company (NYSE: WPO) and now operates as Kaplan, Inc., Kaplan Higher Education Corporation, Kaplan University, Kaplan College, Concord University School of Law, Kaplan Educational Center, Inc., and other.

Of particular interest to my issue is Concord University School of Law, the first online law school approved as a degree-granting institution by the State of California, Bureau of Private Postsecondary and Vocation Education. It is registered as a correspondence school with the State Bar of California. Interesting however, according to correspondence I received in 2003 from John W. Barth, Director, United States Department of Education, Office of Post Secondary Education, in 2000/2001 when I enrolled, the law school didn’t have authority to grant a Juris Doctorate degree. In short, Kaplan, Inc.’s ownership of a tiny 500 student school/campus (Kaplan College, Davenport, Iowa) in 2000/2001 was Concord’s only means and legal authority to grant postsecondary degrees.

Students who earned a Juris Doctorate degree from a correspondence law school registered with the State Bar of California are eligible to sit for the California General Bar Exam. And, once a graduate receives a California license he becomes subject to the reciprocity rules for state license in the other jurisdictions. The online law school is required by its regulators to keep copies of all academic files in its administrative offices.

II. MY PERSONAL ACCOUNT OF THE FIRST ONLINE LAW SCHOOL

I am an African American living in Pennsylvania. In 2000, I made application to Kaplan College (Concord School of Law), scored 14 of 15 correct on the entrance examination, passed the “psychological testing,” and was advised by Mathew McClenahan, Director of Enrollment, that I was accepted as a 2000 “third-year” transfer.

However, a week or two later, representatives from the law school started expressing an unusual concern about my race and ethnicity. Although I had refused to provide the information on my application, school representatives now were asking bizarre questions: “Your surname is German, but your wife sounds black?” “What race are your kids?” So we told them we’re black. And, almost immediately, Mr. McClenahan would announce, “The administration changed its mind about your enrollment, your race (African American) doesn’t fit the planned demographic for the inaugural group of students.”

We complained and hired a Pittsburgh attorney. The attorney’s evaluation of the situation is well documented. But, nonetheless, the issue appeared to quickly resolve itself. Mr. McClenahan would later call, apologize, and although it was too late for a 2000 enrollment offer a January 2001 start.

January 2001 arrived, but Concord didn’t communicate any additional information, and/or grant me access to their online campus. I guess they were hoping I would somehow go away. So I complained again in writing. This time, Mr. McClenahan resolved things by explaining “things were delayed” because he had to rush together a “third-year” program for my enrollment. He added: “We didn’t have any ‘third-year’ courses.” In short, Mr. McClenahan said he “combined ‘second-year’ electives with a new ‘third-year’ evidence course” he rushed together (created just for my enrollment).

I did start in the second or third week of January 2001. A few weeks behind, I was excited and wanted to immediately get involved with my new law school and course work. Unfortunately, I would soon discovered that the online law school didn’t have a “highly interactive” campus, with the 600 to 1000 students, as advertised. In fact, I could find no more than 25 to 30 “first” and “second” year students. In addition, there were no “professor-led group chats” and no “chat archives” to memorialize actual participation. I was only online with nothing to do. I immediately wrote the administration. Mr. McClenahan, in response on January 18, 2001, wrote: “I have the answer to the situation, however, I will need another day or two to implement.”

However, the problems didn’t get corrected. Mr. McClenahan did eventually facilitated access to “second-year” chats, but explained that there wasn’t any “third-year” evidence chats and no “chat archives.” He reminded me that there wasn’t a “third-year” program. To curb my enthusiasm, almost immediately thereafter, I received an unannounced “pop” quiz in the “third-year” evidence course. Such appeared strange because there really wasn’t any assignments to be tested on. Nonetheless, I scored 8 out of 10 correct.

A couple more weeks, maybe a month, had passed before the first actual group classroom activity. Because there wasn’t a “third-year” program, “professor-led” group chats were limited to constitutional law, civil procedure, and criminal procedure. What Mr. McClenahan said were “second year electives.” During the group chats we covered material in a hasty superficial manner. Students were permitted to submitted comments to online professors who screened any and all student information before it was posted for others to view. But in all the activity served more as only an introduction to one or two cases, and maybe a quick 20 minute “rush through” of the remaining material. Other than that there was nothing more to the first online law school.

Yes we were required to read the material on our own, take a quiz or do a writing assignment every other month, and submit the materials to the administration for grading. But quickly I noticed that anything I submitted, course questions and the like (to the alleged assigned professors), were in fact always answered by the administrative office. It appeared there was one person at the California administrative office who did everything (grade assignments, correspond with students, and the like).

Needing more, I began researching the assigned material and cases on my own. That is, I looked beyond the text books, beyond the uninhibited online campus, to the actual cases (and treatment given by the appellate courts). I began approaching the material in a manner similar to how students at the “bricks and mortar” law schools research the law. Such did helped me acquire a better understanding of things. But, the school administration didn’t appear receptive. That is, I received very bizarre comments from the administration, “It’s impossible for you to have cover so much information in the allotted time.”

As my own experiment, I submitted “model answers” that the law school provided for factual situations they often repeated. And, as I surmised, the administrative office scored their own model answer very low. At wits end, I memorialized my concerns in a complaint. However, this time I contacted directly the dean of students. Her response, “ignore the administrative (Cassandra Colchagoff) office. She told me that I only needed to complete 24 modules to complete each course to get to a fourth year and graduation. She said that modules 25 through 30 were extra credit, “go for it!”

But, the road to the 24th module would involved unexplained (apparently intentional conduct) activity just before the deadline designed to obstruct my progress. That is, denial to quizzes and writing assignments; denial of access to the online law school; denial of access to course lectures; and even an unexpected shutdown of the parent company’s subsidiary’s Pittsburgh’s internet service. And, that wasn’t the end of it. Once the final exams started, more bizarre activities occurred: a denial of the required final exams password; a pattern of exam software closing prematurely to deny access to the majority of test questions; and exam software that just wouldn’t load. It appeared the flaws were intentionally placed to delay available exam time. For example, the administrative office waited until just minutes before the start of the evidence final to announce the exam time.

As interesting, just before finals, the administrative office posted a news bulletin that announced it had held a “fourth-year” forum at the Los Angeles Airport, Marriott, 5855 West Century Boulevard, on October 20, 2001. But, they didn’t invite me. Moreover, the news bulletin said that these students would do clinical work as a “fourth-year.” But, as a resident of Pennsylvania, I couldn’t participate in the clinical program. That is, the State Bar of California, Rule VII, Section 2 & 3 (Correspondence Study) mandated that any and all clinical work was to be done in California under the guidance of a member of the California Bar. In fact, I had been previously advised by the State Bar of California that “you can’t combine correspondence study and clinical work.” The program Concord announced was directed by Bill Weston who wasn’t a member of the California Bar and as correspondence students the clinical work was to be done outside of California in violation of Rule VII, Section 2 &3.

At issue was the clear violation of Rule VII. In addition, the “law study plan” created by Mr. McClenahan in 2000 and approved by the California State Bar, didn’t afford me the luxury of a 12-month clinical program. I had to take specific courses that Concord had promised with the study plan. I had already requested registration information for 2002 courses on November 15, 2001, but the administrative office failed to forward any information. Now the picture was clear: my race (African American) didn’t fit the planned demographic for the inaugural group of students.

Concord had a written policy that final exam grades and results (what marked correct and/or incorrect) were to be forwarded to each student within 21 days. But, the 2002 academic year started without Concord providing my grades, final exam results, and/or any 2002 course registration information. They didn’t even contact me. So, I immediately contacted the school. But, I couldn’t get a responsible answer. First, Cassandra Colchagoff, Associate Dean, said that there was a problem with one of my courses (evidence), without going into any further detail. I responded, by pointing out that the academic policy would allow me to continue no matter my scores (if necessary on academic probation), “I need the 2002 course registration information!” She said she would have to call me back, but never did.

Because, I couldn’t get my grades, final exam results, 2002 registration information, and/or a responsible explanation, I posted the following inquiry to the public “student-to-student only” bulletin board on January 5, 2002:

“Did any 4th year (2002) student have Evidence last year. I just completed the course but did so without a group chat. The Concord Model says that there will be ‘professor-led’ group chats. I am also not aware of any other student who was enrolled in the Evidence course. If there was in fact a third year group of students (last year), what happened to the Evidence chats? Concord says that it has a 4th year class that just started in 2002. How come I didn’t find any other students during the 3rd year Evidence course? I also notices names of students listed as enrolled in my other courses, but never witnessed the student participating as required by others. When I first came to Concord the Administration expressed a concern that Concord wasn’t prepared to offer the 3rd year courses I needed. It said it could only offer me Evidence. Concord just recently posted a news report that it will have its first 4th year group of students this year (2002). It also qualified that the 4th year group will do work-study in 2002. Where was this group of students during the Evidence course last year (2001)? Lastly, I did notice that the Evidence final was scheduled for December 10, 2001. If you had 3rd year Evidence last year (2001) and/or took the final on December 10th or December 20th please let me know A.S.A.P.: (e-mail address removed). The school refuses to explain why despite several questions I directed specifically to Cassandra Colchagoff, Associate Dean, and/or submitted as per an administrative question. Reasonable law schools wouldn’t hesitate to specifically explain apparent absentee students and/or unequal treatment.”

On January 6, 2002, Joseph Terrell, posted a reply acknowledging that he witnessed non African Americans students given “professor-led” group chats for the 2001 evidence course twice a month. Such didn’t make sense. I was supposed to have been the only third year student. I immediately filed a Title VI discrimination complaint alleging specific unequal treatment.

On January 8, 2002, when the law school failed for a second time to forward my grades and final exam results (what was marked correct and/or incorrect), despite promising to do so, I posted the following inquiry to the “student to student only” bulletin board:

“Concord written policy mandates that students are to receive their grades and test results within 21 days. That administration has withheld my grades and test results for more than 21 days without explaining why. If there are any other students having such a problem with the administration, please advise. I think something appears inappropriate when a law school does not want you to know your grade and/or refuses to return your test results without explaining. Further, I am scheduled for a 4th year. Concord provided me a contract (study plan) that was approved by the State Bar of California. However, it appears Concord doesn’t have the courses it told me it would have when I enrolled under the study plan. That is, courses I need for graduation. If there are other 4th year students enrolled, please share the specific 4th year courses you’re taking in 2002.”

I also sent an another e-mail (complaint) to the administrative office:

“Your e-mail says that you will forward my test results and grades by e-mail.

You have failed to forward that you promised.

It has been more than 21 days and I’m still not able to review my scores and/or test results. Why?”

The school failed to reply. But, they immediately terminated my access to the campus. Later, I was advised by other students that the school also removed all of my writings from the “student to student only” bulletin board.

On January 11, 2002, in retaliation, Cassandra Colchagoff, Associate Dean, suspended me without cause. She wrote the following to explain Concord’s retaliatory motive;

“After our first contact, you placed several posting to the Student Discussion Boards that question whether there are, in fact, other upper level students at Concord and course curriculum. You also stated that Concord had failed to provide you with your course and final exam grades, when that was untrue. Most glaringly, you disrupted students engaged in their studies in the Concord Chat rooms with messages stating ‘important message – Concord is a Sham’ suggesting that Concord’s FYLSE results were inaccurate and that there were no upper level students. These clearly go to your allegations to me that we were engaged in fraud and misrepresentation of the school and, in fact, had fabricated our third and fourth year students.”

The 12 month suspension and denial of protective speech clearly violated Title VI, the Equal Protection Clause of the Fourteenth Amendment, the First Amendment, and the Pennsylvania Constitution Article 1 and 7.

Title VI provides that:

“No person in the United States shall, on the ground of race, color or national origin, be excluded from participation in, be denied the benefit of, or be subjected to discrimination under any program or activity receiving federal financial assistance.”

42 U.S.C. Section 2000d.

Discrimination that violates the Equal Protection Clause of the Fourteenth Amendment committed by an institution that accepts federal funds also constitutes a violation of Title VI. See Alexander v. Sandoval, 532 U.S. 275, 281, 149 L.Ed. 2d 517, 121 S.Ct. 1511 (2001).

Flaherty v. Keystone Oaks School District, 247 F. Supp. 2d 698 (W.D. Pa. 2003); and, Killon v. Franklin Regional, 136 F. Supp. 2d 446 (W.D. Pa. 2001) are recent authorities concerning “free speech.”

On January 17, 2003, I filed a formal grievance:

“It appears that your most recent action demonstrates further retaliation. You have disciplined me for discussions that you alleged without providing names, the times of any alleged discussion, etc. You asked me to respond to things that are vague and not specifically stated. Further, you have disciplined me despite knowing that you had blocked all of my communications on a day and time prior to the alleged conduct. You are aware of such because I e-mailed you immediately following each time the school violated my first amendment rights.”

The law school failed to reply to my grievance and have also failed to reply to my “petition for readmission” following the 12 month suspension. See Fellheimer v. Middle College, 869 F. Supp. 238, 242 (D. V.T. 1994); and, Clayton v. Trustees of Princeton Univ., 608 F. Supp. 413, 435 (D. N.J. 1985) concerning the emerging general rule that both private and public universities must substantially comply with procedural protections they established.

In order to satisfy the foundation pleading requirements for a suit under 42 U.S.C. Section 1981, I’m only required to allege that I was actually denied the ability to make, perform, enforce, modify or terminate a contract, or to enjoy the fruits of a contractual relationship, by reasons of race-based animus. Garrett v. Tandy Corp., 295 F. 3d 94, 100-01 (1st Cir. 2002); citing Morris v. Dillard Dep’t Stores, Inc., 277 F.3d 743, 752 (5th Cir. 2001); Hampton v. Dillard Dep’t Store, Inc., 247 F.3d 1091, 1118 (10th Cir. 2001); Morris v. Office Max, Inc., 89 F.3d 411, 414. Purposeful discrimination that violates the Equal Protection Clause of the Fourteenth Amendment will also violate Section 1981. See General Building Contractors Assn., Inc., v Pennsylvania, 458 U.S. 375, 389-390, 73 L.Ed. 2d 835, 102 S.Ct. 3141 (1982).

Finally, retaliation claims are also actionable under 42 U.S.C. Section 1981. See Patterson v. Augat Wiring Sys., Inc., 944 F. Supp. 1509, 1519-21 (M.D. AK 1996). See also Freeman v. Atlantic Ref. 7 Mktg. Corp., 1944 U.S. Dist. LEXIS 5345, No. CIV. A. 92-7029, 1994 WL 15673, at *8 (E.D. Pa. Apr. 28, 1994).

III. OCR’S ABDICATION (5TH AMENDMENT CONCERNS)

The United States Department of Education has abdicated important procedural and substantive due process rights and the equal protection clause.

In short, I filed a Title VI complaint beginning as early as January 2002. On May 30, 2002, the administrative issue was finally docketed at OCR Reference No. 09022116 by the San Francisco District.

On June 11, 2002, Shane Dunne, U.S. Department of Education, Office of Federal Student Aid, Case Management and Oversight (San Francisco Team) sent Patricia G. Shelton (San Francisco OCR District Office) an e-mailthat explained in writing OCR’s jurisdiction over my issue. That is, Mr. Dunne specifically said the Postsecondary Education Participant System identified Kaplan, Inc., and Quest, Concord School of Law’s parent corporations, as a participant of programs authorized by the Higher Education Act of 1965. But, for unexplained reasons, thereafter, the matter was given to the Seattle OCR District Office, and immediately dismissed by the Seattle Office for lack of jurisdiction.

The Seattle OCR District Office, in fact, failed to disclose Mr. Dunne’s June 11, 2002, determination of jurisdiction until I filed a FOIA request in 2004. Rather, they forced me to prove (submit independent substantive evidence) Kaplan’s link to federal funding.

In short, the Seattle OCR District Office knowingly delayed and obstructed an investigation for more than seven months.

In February 2003, the Seattle OCR District Office finally did issued a “notice of allegations” letter but conveniently attempted to limited the scope of the investigation to four nominal things it believed Kaplan could defend against.

In April 2003, the Seattle OCR District Office announced Kaplan’s response but didn’t disclosed any supporting substantive evidence (verified answer, sworn statements, etc.). And, despite the response amounting to an admission of the four allegations, the Seattle OCR District Office refused to issue any findings.

In May of 2003, the Seattle OCR District Office, began searching for an alternative (defense for Kaplan) reason not to rule in my favor. They announced that they wanted to investigate the issue further. Nonetheless, they still continued to refuse to investigate key facts (allegations) I claimed as important to the issue (retaliation, suspension, etc.)

And, on September 16, 2003, the Seattle District, wrote to the following to “cover-up” the absentee student allegation:

“With regard to the allegation that Concord failed to provide the complainant with chats for his Evidence class, the investigation established that the chats occurred and the method used by Concord to provide notice of the chats did not afford the complainant with notice of the chats. Concord’s stated reason for the problem of notice to the complainant was that there was a technological flaw in the notification system that affected students with nonstandard schedules.”

In support of their Sept. 16, 2003, conclusion, the OCR record refers to two e-mails it said Concord submitted. Interestingly, the e-mails are, in fact, my own January 2001 e-mails that Concord knowingly redacted to remove my identification. That is, Kaplan used my January 2001 e-mails to suggest that another student had complained about technological problems with chat schedules, that were allegedly corrected by the law school. Because the emails are redacted, OCR accepted the information and ruled that I had never complained about the home page technological flaw.

However, to corroborate the information I had submitted, I also provided the 2001 Evidence Course Syllabus as an independent source of course information (chat schedules). That is, Kaplan/Concord’s theory was that there was a problem with notification involving the student’s home pages. However, the Evidence Corse Syllabus wasn’t a part of the flawed home page notification system. The syllabus should have unequivocally proved that no professor-led group chats were scheduled for any month in 2001. But, the Seattle OCR District Office doesn’t include any discussion of the Evidence Course Syllabus in its September 16, 2003 report.

And, because the matter is now filed in court, On November 23, 2004, Gary Jackson, Director, The United States Department of Education, Office of Civil Rights, Western Division, Seattle Office, wrote:

“First, you have requested that OCR vacate the September 16, 2003, investigative report and findings in the above-reference case. OCR interprets this as a request for reconsideration of the findings. We are not processing your request for reconsideration at this time because litigation has been filed raising the same allegations….
Additionally, you have requested that OCR conduct a criminal investigation of allegations regarding activities in your federal court action. OCR does not conduct criminal investigations….
Finally, OCR does not have jurisdiction over your request for an investigation of your allegation that Concord Law School is a diploma mill.”

See OCR Case File Reference No. 09022116.

IV. ABSENTEE STUDENTS

In September 2001, the online law school communicated with Gayle Murphy, Director of Administration and Manager, Educational Standards, The Committee of Bar Examiners of the State Bar of California and the Subcommittee on Educational Standards, requesting a “Waiver of Maximum Clinical Hour Limit for Correspondence Law Study.”

State Bar of California Rule VII, Section 2 & 3 (Correspondence Study) specifically requires that any clinical work was to be done in the State of California under the guidance of a member of the California Bar. Concord University School of Law’s 2002, 12-month clinical program, is run by Bill Weston who wasn’t a member of the California Bar. The alleged 10 inaugural group of students are said to have combined correspondence study with clinical work outside of California. But, on February 21, 2002, Professor Weston posted information on a public online chat board (Counsel.Net), only acknowledging five students actually participating in 2002 clinical program.

That is, somehow 10 students were given credit for 2002 clinical study, despite it not logically possible for 5 of the students to have completed the mandated 48 weeks (required hours), anytime following the February 21 posting and their Fall 2002 graduation.

To avoid the “Diploma Mill” allegation the Western District Court of Pennsylvania, at 03-cv-1400, used the following language on May 14, 2004:

“Excluding inappropriate argument and irrelevant information apparently contained to create unwarranted inferences, plaintiff’s complaint sets forth…”

Additionally, On November 23, 2004, a three judge panel of the United States Court of Appeals for the Third Circuit (Alito, Fuentes and Chertoff), filed a per curiam unreported and not precedential opinion at No. 04-3605, that says:

“(petitioners name removed) has not shown that he lacks an adequate alternative means to obtain his desired relief by taking an appeal from a final judgment, should the District Court enter an adverse final judgment against him.”

V. PERJURY

For more than a year, Concord placed all of its resources in an OCR Report “preclusive effect” argument rather than presenting a facially meritorious defense (substantive answer to the complaint or amended complaint) as required. However, the purely investigative and fact-finding process of the United States Department of Education Office of Civil Rights isn’t an adjudication or binding determination.

Suitability of estoppel will vary according to the specific context of the rights at stake, the power of the agency, and the relative adequacy of agency procedures. Alexander v. Gardner-Denver Co, 415 U.S. 36, 57-58, 39 L.Ed. 2d 147, 94 S.Ct. 1011 (1974); Pearson v. Williams, 202 U.S. 281, 285, 50 L.Ed. 1029, 26 S.Ct. 608 (1906).

In order for administrative proceedings to have preclusion effect the administrative proceeding must properly resolved all disputed issues of fact and the parties must have had an adequate opportunity to litigate. See Astoria Fed. Sav. & Loan Ass’n v. Solimino, 501 U.S. 104, 107, 115 L.Ed. 2d 96, 111 S.Ct. 2166 (1991) (quoting United States v. Utah Constr. & Mining Co., 384 U.S. 394, 422, 16 L.Ed. 2d 642, 86 S.Ct. 1545 (1966)).

The OCR conducts interviews reviews relevant documentation, and issue investigative reports. However, OCR proceedings do not offer “adequate opportunity to litigate.” I didn’t have an opportunity to present and cross-examine witnesses, to submit evidence, or to be represented by counsel. Therefore, OCR didn’t act in a “judicial capacity” as contemplated by Astoria. Moreover, OCR’s complaint resolution procedures specifically refers to the right to file a separate court action.

Courts do not have free rein to impose rules preclusion, as a matter of policy, when the interpretation of a statute is at hand. The relevant question is not whether administrative estoppel is wise but whether it is intended by the legislature. See Briscoe v. La Hue, 460 U.S. 325, 75 L. Ed. 2d 96, 103 S.Ct. 1108 (1983); United States v. Turley, 352 U.S. 407, 411, 1 L. Ed. 2d 430, 77 S. Ct. 397 (1957). It is well settled that there is an implied private right of action to enforce Section 601 of Title VI of the Civil Rights Act of 1964. Guardians Ass’n v. Civil Serv. Comm’n, 463 U.S. 582, 610-611, 77 L. Ed. 2d 866, 103 S. Ct. 3221 (1993).

Now realizing its mistake, Concord submitted a second Cassandra Colchagoff affidavit, an alternative theory to their defense.

However, Federal Rules of Civil Procedure, Rule 11(b)(1) Representations to Court: provides:

“By presenting to the court (whether by signing, filing, submitting, or later advocating) a pleading, written motion, or other paper, an attorney or unrepresented party is certifying that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, it is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.”

The new information Concord submitted to the District Court sheds further light on the previous perjury that has delayed and obstructed this issue. In short, Cassandra Colchagoff, Associate Dean, while under oath (or in declaration, certification, verification or statement under penalty of perjury – Section 1746 Title 28, United States Code), knowingly deposed and made false material declaration to a court knowing the affidavit was a false material declaration subscribed as true to intentionally delay, impede, and/or obstruct prompt resolution of this issue.

The District Court specifically identified Ms. Colchagoff’s (false) material declaration (no link to KHEC “Kaplan College” and no link to federal funding), as its reason for dismissing the claims against defendant KHEC (Kaplan Higher Education Corporation/Kaplan College). In addition, because of Ms. Colochagoff’s (false) affidavit the court also dismissed: my Petition for a Temporary Restraining Order; my constitutional claims; and, prohibited me from thereafter arguing Title VI jurisdiction and “free speech/retaliatory suspension” issue.

Now there’s a second affidavit dated November 10, 2004. The only difference between the two material declarations is the 2004 affidavit doesn’t contain any reference to (1) no link to KHEC “Kaplan College” and (2) no link to federal funding. Likewise Concord’s attorneys, have “changed” their representations to the court. They now acknowledge the October 15, 2000, Kaplan College enrollment letter (e-mail) link and admit the federal funding link with footnote 2 (“certain colleges operated by Kaplan Higher Education Corporation (‘KHEC’) , such as Kaplan College, receive federal funding”). Both Cassandra Colchagoff and defense counsel conduct clearly violates 18 U.S.C. Sections 1621 and 1623.1.

But, they still don’t come completely clean. They attempt to avoid “fatal language” and paraphrase to limit the impact of the United States Department of Education Office of Civil Rights’ determination. However, OCR specifically said on September 16, 2003, as follows:

“OCR has jurisdiction in this matter based on the Civil Rights Restoration Act of 1987 (CRRA). Concord is a division of Kaplan, Inc., which is a New York corporation that is principally engaged in the business of providing education; and a part of Kaplan, Inc. (Kaplan College in Iowa and other Kaplan, Inc. Institutions receiving federal student financial aid) receives financial assistance from the Department.”

Please note: The Washington Post Company’s March 17, 2000 SEC 10-K Report identifies Concord’s inclusion in Kaplan College as Kaplancollege.com, and a Kaplan College January 22, 2003, press release admits “Kaplan College is a subsidiary of Kaplan Higher Education Corporation.”

VI. NO MERITORIOUS DEFENSE

The record at 03-cv-1400 (Western District Pennsylvania) is devoid of any substantive evidence to support the defendant’s excuse for its retaliatory 12 months suspension that violated my right to “free speech.” See Flaherty v. Keystone Oaks School District, 247 F. Supp. 2d 698 (W.D. Pa 2003). See also Killion v. Franklin Regional, 136 F. Supp. 2d 446 (W.D. Pa. 2001).

I filed a Petition for a Temporary Restraining Order. In support of my Petition I argued that a loss of first amendment freedoms for even minimal periods of time unquestionably constitutes irreparable injury. See Elrod v. Burns, 437 U.S. 347. 373, 49 l.Ed.2d 547 (1976). See also Abu-Jamal v. Price, 154 F.3d 128, 136 (3d Cir. 1988). The Restraining Order should have been granted, but the courts are protecting Kaplan/Concord.

In addition, the inability during the allotted discovery period to obtain information from a defendant regarding pertinent issues is obviously prejudicial to a plaintiff in his attempt to prosecute his claims and obtain prompt resolution of his lawsuit. See Adams v. Trustees, N.J. Brewery Trust Fund, 29 F. 3d 863, 874 (3d Cir. 1994) (prejudice encompasses deprivation of information from non-cooperation with discovery as well as the need to expend resources to compel discovery). The District Court has denied all of my discovery request.

The meritoriousness of a claim or defense is to be determined from the face of the pleadings. See C.T. Bedwell Sons v. international Fidelity, Ins. Co., 843 F. 2d 683, 696 (3d Cir. 1988). Poulis v. State Farm Fire and Cas.Co, 747 F.2d 863, 870 (3d Cir. 1984). Interestingly, the District Court has allowed this matter to proceed without Kaplan/Concord filing an Answer to my Amended Complaint.

A. DISREGARD FOR LEGAL PRECEDENT

This issue involves Rule 15(a) of the Federal Rules of Civil Procedure which states, in relevant part, that:

“[a] party may amend the party’s pleading once as a matter of course at any time before a responsive pleading is served….”

A motion to dismiss is not “a responsive pleading.” See Centifanti v. nix, 865 F.2d 1422, 1431 n.9 (3d Cir. 1989) (holding that a plaintiff is entitled to amend his complaint because neither a motion to dismiss nor a motion for summary judgment is a responsive pleading under Rule 15(a)). See also Washington v. James, 782 F.2d 1143, 1138-39 (2d Cir. 1986) (stating that a party may amend the complaint while a motion to dismiss is pending); and Vernell v. United States Postal Service, 819 F.2d 108, 110 (5th Cir. 1987) (noting that “[a] motion to dismiss is not a responsive pleading and therefore does not extinguish the right to amend an initial pleading”).

The Western District on at least four other occasions followed Gonzalez v. Paine, Webber, Jackson & Curtis, Inc., 493 F. Supp. 499, 501 (S.D. N.Y. 1980) and Taylor v. Abate, 1995 WL 362488 (E.D. N.Y. June 8, 1995) (stating that a motion to dismiss is mooted upon the filing of an amended complaint). See: Harford County v. Mid-State Bank and Trust, Docket No. 98-817 (West Dist. Pa. Sept. 23, 1998); Ceiriog Hughes v. Halbach & Braun Industries, LTD, et al., Docket No. 97-1348 (Western Dist Pa. March 3, 1989); Allegheny Environmental Action, Coalition, et al, v. Westinghouse Electric Corporation, et al., Docket No. 96-2178 (West. Dist. Pa. June 5, 1997); and Christopher Allen M.D., et al, v. Washington Hospital, et al., Docket No. 96-1950 (West. Dist. Pa. Feb. 20. 1997).

To protect Kaplan/Concord the District Court has ignored legal precedent.

B. FACTS AND LAW WEIGHS IN FAVOR

Concord contends that there was an alleged “disruption” of the online classrooms, and alleged inappropriate language (says I called the school a sham) in my public postings. However, they failed to proffer any substantive evidence to support their theory. They failed to identify what specifically was inappropriate about the language and/or how such created a disruption. And, they failed to produce any posting that included the word sham.

As provided above, when the 2002 academic year started without Concord forwarding any information (final exam grades, exam results, course grades, registration information, and the like), I posted the following inquiry to the public “student-to-student only” bulletin board on January 5, 2002:

“Did any 4th year (2002) student have Evidence last year. I just completed the course but did so without a group chat. The Concord Model says that there will be ‘professor-led’ group chats. I am also not aware of any other student who was enrolled in the Evidence course. If there was in fact a third year group of students (last year), what happened to the Evidence chats? Concord says that it has a 4th year class that just started in 2002. How come I didn’t find any other students during the 3rd year Evidence course? I also notices names of students listed as enrolled in my other courses, but never witnessed the student participating as required by others. When I first came to Concord the Administration expressed a concern that Concord wasn’t prepared to offer the 3rd year courses I needed. It said it could only offer me Evidence. Concord just recently posted a news report that it will have its first 4th year group of students this year (2002). It also qualified that the 4th year group will do work-study in 2002. Where was this group of students during the Evidence course last year (2001)? Lastly, I did notice that the Evidence final was scheduled for December 10, 2001. If you had 3rd year Evidence last year (2001) and/or took the final on December 10th or December 20th please let me know A.S.A.P.: (e-mail address removed). The school refuses to explain why despite several questions I directed specifically to Cassandra Colchagoff, Associate Dean, and/or submitted as per an administrative question. Reasonable law schools wouldn’t hesitate to specifically explain apparent absentee students and/or unequal treatment.”

Please note: Both my original complaint and amended complaint provides that this issue doesn’t involved an academic dismissal. Even the defendant admitted that the stated academic policy, clearly allowed matriculation to the 2002 fourth year. See paragraph 24, Colchagoff November 10, 2004 affidavit.

Having provided the appropriate caveat, we can now discuss Concord’s second theory, that there was an alleged academic “probation” and alleged conduct (posting) directly linked to receipt of (bad) grades and (poor) test results. Contrary to Concord’s belief, the record provides plain and clear unequivocal proof that the adverse action (12 month suspension) taken on January 8, 2002, contemporaneously followed a lawful “triggering event.”

The record is devoid of any substantive evidence to support Concord’s second theory. As provided above, at 12 noon on January 8, 2002, I posted the following inquiry:

“Concord written policy mandates that students are to receive their grades and test results within 21 days. That administration has withheld my grades and test results for more than 21 days without explaining why. If there are any other students having such a problem with the administration, please advise. I think something appears inappropriate when a law school does not want you to know your grade and/or refuses to return your test results without explaining. Further, I am scheduled for a 4th year. Concord provided me a contract (study plan) that was approved by the State Bar of California. However, it appears Concord doesn’t have the courses it told me it would have when I enrolled under the study plan. That is, courses I need for graduation. If there are other 4th year students enrolled, please share the specific 4th year courses you’re taking in 2002.”

I also sent Concord an e-mail at 3:33 the requested my grades and final exam test results (what was mark correct and/or incorrect):

“Your e-mail says that you will forward my test results and grades by e-mail.

You have failed to forward that you promised.

It has been more than 21 days and I’m still not able to review my scores and/or test results. Why?”

Important facts “fatal” to the Concord’s second theory:

1. My January 8, 2002, email that questioning the defendant’s failure to forward his grades and “final exam” grades and test results;

2. the innocent language of the my 2002 (January 5 and writings posted to the “student-to-student only” public bulletin boards;

3. date of the “free speech” violation/adverse action (January 8, 2002);

4. date I filed a grievance (January 17, 2002);

5. Concord’s continued cover-up (failure to this date, despite plaintiff’s repeated demands, to forward the actual final exam test result, i.e., what was marked correct and what was marked incorrect).

What Concord doesn’t attempt to explain is the language of the October 15, 2000, Kaplan College enrollment letter (e-mail) that list October 14, 2000 as a start date. Not only does the enrollment letter prove a link to Kaplan Higher Education Corporation (Kaplan College) and Title VI, it also substantiates the allegation that there was a 2000 acceptance that was rescinded after the law school discovered my race.

The October 16, 2000 Advance Standing Voucher and the September 28, 2000 Westlaw password authorization further corroborates a 2000 start that was rescinded for race.

C. CONCLUSION

It is clear, that as part of Concord’s apparent attempt to get rid me (because of my suspicion of absentee students and their 2002 fourth year curriculum changed to clinical activities), Ms. Colchagoff did suggest probation and an “ex post facto” attendance policy, in October 2001, the 10 month of a 12 month program. But Martha Siegal, Dean of Students told me to disregard Ms. Colchagoff. Both the OCR case file and the District Court record substantiates that Dean Siegal told me:

“one only needed to complete 24 modules to complete each course. That modules 24 through 30 were extra credit.”

And, as early as December 2, 2003, I had submitted to the court an exhibit proving that there wasn’t a “probation status.” See December 2, 2002, Motion to Strike.

Ms. Colchagoff’s January 11, 2002, “after-the-fact”letter just doesn’t make any sense, other than further proof of their desire to get rid of me. Concord’s written policy mandated that I was allowed to continued into the 2002 year (i.e., if necessary, on academic probation). She admits this at paragraph 24, of her November 10, 2004 affidavit. Thus, the only probative value of the January 11, 2002 writing is that it establishes Concord’s culpability.

“After our first contact, you placed several posting on the Student Discussion Boards that question whether there are, in fact, other upper level students at Concord and course curriculum. You also stated that Concord had failed to provide you with your course and final exam grades, when that was unture. Most glaringly, you disrupted students engaged in their studies in the Concord Chat Rooms with messages stating ‘important message – Concord is a Sham’ suggesting that Concord’s FYLSE results were inaccurate and that there were no upper level students. These Clearly go to your allegations to me that we were engaged in fraud and misrepresentation of the school and, in fact, had fabricated our third and fourth year students.”

What’s interesting, the January 11, 2002, letter proves that Ms. Colchagoff (mistakenly) subtracted points for modules 24 through 30, in every one of my courses but Constitutional Law. After I complained, a February 4, 2002, second explanation (new math) for grades would follow that attempted to distance the law school from Ms. Colchagoff’s January 11, 2002 original calculations.

To summarize things:

A jury could find for me that Mr. McClenahan designed the law study plan submitted to the State Bar of California based on a belief that the plaintiff’s race “(African American) didn’t meet the planned demographics the administrative office wanted for the inaugural group of students.”

A jury could also find that Mr. McClenahan failed (was indifferent) to correct the alleged “technological flaw,” denied access to the chat archives, and obstructed any participation with the alleged professor-led Evidence group chats based on this same racial animus.

Mathew McClenahan, Director of Enrollment, communicated (response to my January 2001 complaint (1) “no chat schedule” and (2) “lack of access to the chat archives”), on January 18, 2001 the following:

“I have the answer to the situation, however, I will need another day or two to implement.”

There is no logical business explanation available for the failure to correct the alleged technical difficulties.

Interestingly, although Mr. McClenahan had explained in January 2001 that there wasn’t any professor-led evidence group chats because it’s a new course rushed together for my enrollment (i.e., no other students enrolled), Ms. Colchagoff now attempts to suggest with her November 10, 2004 affidavit that two comparators did participated with the professor-led evidence group chats. She also admits that the Vice President for Development invited these two comparators to the October 20, 2001 “fourth year forum” Concord held at the Los Angeles Airport, Marriott. But, they didn’t invite me.

Because Ms. Colchagoff admits with her November 10, 2004 affidavit that two comparators participated with the Evidence course, and were invited to the “fourth year forum,” a jury could find that the plaintiff should have been invited “but for” the defendant’s belief that the plaintiff’s race “(African American) didn’t meet the planned demographics the administrative office wanted for the inaugural group of students.”

The fact that Ms. Colchagoff adds in the November 10, 2004 affidavit that these two comparators were “at least three months ahead,” a jury could find that the plaintiff wouldn’t have been three months behind “but for” the defendant’s denial of the October 2000 enrollment based on a belief that the plaintiff’s race “(African American) didn’t meet the planned demographics the administrative office wanted for the inaugural group of students.”
Lastly, on page 4, paragraph 3, of the OCR Report the following is provided:

“Regarding the complainant’s position that an admission advisor asked race specific questions of him and his wife in the fall of 2000, the complainant’s wife asserts in her written statement that the advisor requested an interview during which she asked her about her race, the complainant’s race, and the race of their children.”

Why was it important for the law school to know our race, having already accepted me for a 2000 start?

Why did the law school rescind the 2000 acceptance after discovering my race?

For the above-stated reasons a formal investigation is requested.

Respectfully submitted,
The First “Real” Online Law Student