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  • Open Letter

    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 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
    explaning “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 want 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 professor 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 uninhibited
    online campus, to the actual case (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
    school 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 direct 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 require
    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. 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 did even contact me. 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-mailexplained 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
    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-mail
    are, in fact, my January 2001 e-mails that either 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 ***’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 ***’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 a submitted a second Cassandra
    Colchagoff affidavit, an alternative theory to their defense.

    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 admitting 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 92d 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 8) 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 course 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
    plaintiff’s 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 “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
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