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