IN THE MATTER OF DERECH AYSON Docket No. 94-50-ST
Respondent. Assistance Proceeding
D. Sorensen, Esq., Office of the General Counsel, for the Office
of Student Financial Assistance Programs, United States Department of
Before: Judge Richard F. O'Hair
DARS filed a request for hearing on March 4, 1994. A briefing
schedule was issued to
the parties, who have filed briefs and exhibits.See
On August 1, 1994, this proceeding was reassigned to the undersigned.
To be an eligible institution under Title IV, an institution must be
an institution of higher
education or an eligible institution as that term is defined for the purpose of that program. 20
U.S.C. § 1094(a) (1988). Both an "institution of higher education" and a
vocational institution" must be accredited by a nationally recognized accrediting agency or
association.See footnote 2
20 U.S.C. §§ 1141(a)(5) and 1088(c) (1988).
SFAP does not dispute that DARS is accredited by the Accrediting
Continuing Education and Training (ACCET). SFAP Initial Br. at 5, 10. Nor does SFAP appear
to dispute that ACCET is a nationally recognized accrediting agency. See Ex. R-2 at 3.
Therefore, DARS satisfies the plain meaning of the statute because it is accredited by a
recognized accrediting agency or association.
Nevertheless, SFAP argues that because DARS is classified by
ACCET as an
"avocational" institution, it is only "nominally" accredited by ACCET,
and, therefore, does not
satisfy the accreditation requirement of 20 U.S.C.§§ 1141(a) and 1088(c). SFAP
observes that because DARS does not offer programs which issue degrees,See footnote 3
DARS must provide a program of training to prepare students for gainful employment in a
recognized occupation. 20
U.S.C. §§ 1141(a) and 1088(c). From this, SFAP claims that there is necessarily a
these two separate statutory requirements.
Nonetheless, SFAP has provided no persuasive authority for this "nexus" theory. SFAP argues that the Secretary of Education has legal authority to recognize an accrediting agency or association only to the extent that its accreditation serves a statutory purpose. However, as discussed above, the Secretary already has recognized ACCET as a nationally recognized accrediting agency or association. Ex. R-2 at 3. In fact, the February 1992 listing of Nationally Recognized Accrediting Agencies and Associations, which includes ACCET, begins with the statement that: "[t]he following regional and national accrediting agencies and associations are
recognized by the U.S. Secretary of Education as reliable authorities concerning the quality of
postsecondary education or training offered by educational institutions or programs." Ex.
2. Therefore, the issue is not whether the Secretary should recognize ACCET or whether a
statutory purpose would be served by recognizing ACCET; the Secretary already has made that
decision. Moreover, the language from the Federal Register quoted by SFAP discusses the
Secretary's power to retract recognition of previously listed accrediting bodies when there is
currently no statutory basis for recognition of that level of accreditation.See footnote 4
The tribunal notes that SFAP has provided no evidence indicating that the Secretary has in
fact retracted recognition of
Furthermore, the statutes themselves separately identify the
accreditation and program of
training requirements, as well as other requirements. The statutes do not require any
between these requirements, other than that the institution must satisfy each and all of them in
order to qualify as an eligible institution. Therefore, the statutory requirement that DARS
a program of training to prepare students for gainful employment in a recognized occupation is
separate and distinct from the requirement that DARS be accredited by a nationally recognized
accrediting agency or association. Regardless of whether DARS does provide a program of
training to prepare students for gainful employment in a recognized occupation, which will be
discussed in the next section, the tribunal is satisfied that DARS is accredited by a nationally
recognized accrediting agency or association. See also Bnos Research Institute for Training
and Education, Dkt. No. 94-120-EA, U.S. Dep't of Educ. (Emergency Action Proceeding)
(Sept. 20, 1994).
Moreover, at the emergency action hearing held on February 9,
1994, Roger Williams,
President of ACCET, testified that ACCET's vocational/avocational categories were not meant to
coincide with or determine Title IV eligibility. Ex. R-17 at 25-26; see also Ex. R-7 at 1.
Mr. Williams further testified that a school classified by ACCET as avocational is just as
a school classified by ACCET as vocational. Ex. E-4 at 169. SFAP has not proven that DARS
maintained accreditation by an accrediting agency that did not accredit either institutions of
education or postsecondary vocational institutions. Therefore, I agree with DARS's arguments
that under the statutory and regulatory scheme, the Secretary, and not the accrediting agency, is
authorized to determine whether an institution is eligible under Title IV. 20 U.S.C. §
34 C.F.R. § 600.4, 600.7.
In conclusion, I find that DARS was fully accredited and that SFAP
has not satisfied its
burden of persuasion that DARS was not accredited by a nationally recognized accrediting
Gainful Employment in a Recognized Occupation
In addition to the requirements noted in the above discussion on accreditation, 20 U.S.C.
§§ 1088(c)(1) also requires an eligible "postsecondary vocational
institution" to provide a six
month program of training to prepare students for gainful employment in a recognized
occupation. In order to be an eligible "institution of higher education" under 20
the school must provide not less than a one year program of training to prepare students for
gainful employment in a recognized occupation.See
As discussed above, ACCET has designated DARS as an
"avocational" institution. As
SFAP observes, ACCET accredits institutions as either "vocational" or
"avocational". Ex. E-4 at
146-147. ACCET defines a vocational institution as follows:
An institution that offers at least one program that is designed for
objective. That program usually would be at least 100 clock hours or its credit-
hour equivalent in length. (NOTE: "Designed for an occupational objective"
refers to training that will assist the student in obtaining a new occupation as
opposed to training that will enhance one's knowledge/skills in his/her current
Ex. E-12 at 4. ACCET defines an avocational institution as follows:
Programs designed for personal or professional development and
nominally short-term instruction of less than 100 clock hours or equivalent credits.
Ex. E-12 at 1.
At the emergency action hearing, Roger Williams testified that
vocational/avocational categories were not meant to coincide with or determine Title IV
eligibility. Ex. R-17 at 25-26; see also Ex. R-7 at 1. On the other hand, as SFAP points
out, ACCET collects placement statistics from vocational schools, but does not do so for
schools. Ex. E-4 at 150-152. SFAP also notes that ACCET requires on-site teams to examine
the placement success of vocational institutions by "contacting employers to establish
not [students] were placed, whether or not the placement was training related, [and] whether the
employer was satisfied with the knowledge and skills that the individual had obtained at the time
that they were employed." Ex. E-4 at 153. This evaluation is not conducted for
institutions. Id. Based upon the institution's admission statement, its representations in
its catalog, and its representations in the Analytic Self-Evaluation Report (ASER), ACCET then
determined that DARS was an avocational institution. Id. at 147-148.
While I do not consider ACCET's designation of DARS as an avocational institution to be
dispositive, I do consider it to be some evidence that DARS does not provide a program of
training that prepares students for gainful employment in a recognized occupation.
Pointing out many statements made by DARS in its catalogs and at
other places, SFAP
argues that the school's Rabbinic studies, Judaic studies, and Judaic culture programs do not
provide training to prepare students for gainful employment in a recognized occupation. As
SFAP notes, DARS's 1992-1994 School Catalog describes three programs: Rabbinics, Judaic
Studies, and Judaic Studies for New Arrivals. Ex. E-2, Jamroz Ex. 5 at 8. However, DARS told
ACCET that as of December 31, 1992, the school offered only one course, Judaic Studies for
New Arrivals. Ex. E-2, Jamroz Ex. 12 at 3.
SFAP further notes that the School Catalog did not mention
preparation of students for
employment in any occupation, but stated as follows:
As a postsecondary lifelong learning
center for Judaic Studies, Derech
Ayson Rabbinical Seminary's institutional mission is two fold:
1. To develop diversified academic
opportunities for adults,
designed to accommodate their needs, interests, abilities and
2. To serve the academic objectives
of its students through high
caliber programs, and to satisfy their needs to advance their
knowledge in either Rabbinic or Judaic studies.
Ex. E-2, Jamroz Ex. 5 at 5. Nor do the descriptions of DARS's three programs at page 8 of the
Catalog mention preparation for gainful employment in a recognized occupation. Id. at
8. In fact, the Catalog states: "Neither does [DARS] provide its students vocational
guarantees [sic] its graduates employment or placement. Individuals intent on pursuing an
employment-related program of studies should seek the guidance of an appropriate professional
agency in their area of interest." Id. at 14.
SFAP observes that many of the statements made by DARS in its
ASER, a report
submitted to ACCET, indicate that DARS does not prepare students for employment in an
occupation. For example, DARS stated as follows:
Derech Ayson Rabbinical Seminary takes pride in offering quality,
programs in Judaic and Rabbinic Studies. In providing these academic programs,
Derech Ayson Rabbinical Seminary wishes to respond to the needs of students
who desire to pursue advanced Judaic studies on an ongoing basis. . .
The challenge facing Derech Ayson Rabbinical Seminary is unique, since its educational frame of reference is scholarship rather than employment. In other
words, as a non-vocational institution, Derech Ayson Rabbinical Seminary is not
guided by any current industry trends or employment needs. . . .
Ex. E-2, Jamroz Ex. 7 at 5-6.
Derech Ayson Rabbinical Seminary is a non-profit, non-vocational
as stated above, does not respond to market trends. It does not engage in
licensing or in professional job placement, and does not promote its programs
based on future career opportunities for its graduates.
Id. at 10.
It is difficult for Derech Ayson Rabbinical Seminary to monitor
influence the demand for its program because its offerings are not employment
related. In fact, students pursuing its certificates are not doing so for the purpose
of advancing professionally or economically, but rather in the desire to enrich their
personal and intellectual development.
Id. at 34.
Education at Derech Ayson Rabbinical Seminary is academic, not
or industry oriented.
Id. at 100.
Derech Ayson Rabbinical Seminary does not offer vocational
programs or gear its
academic offerings to employment, and therefore does not maintain files of
employer satisfaction and placement related statistics.
Id. at 108.
DARS's Business Plan echoed these statements as follows:
Derech Ayson Rabbinical Seminary is as [sic] non-profit non
which does not respond to market trends. It does not engage in licensing or in
professional job placement, and does not promote its programs based on future
career opportunities for its graduates. Its students . . . enroll at our institution and
seek to meet their personal growth and development needs. . . .
Ex. E-2, Jamroz Ex. 8 at 5.
In response, DARS contends that all three of its programs prepared students for employment in a recognized occupation. DARS notes that the school's Business Plan also stated
that "[g]raduates of our Rabbinical and Judaic Studies programs have become Rabbis and
leaders . . . ." Ex. R-16 at 2; Ex. E-2, Jamroz Ex. 8 at 4. DARS also points out that its
1989 School Catalog states that "the program offered is geared toward providing an
Judaic Studies education for those interested in becoming future Rabbis and communal
Ex. R-24 at 7.
Relating to the Rabbinical and Judaic Studies programs, DARS
contends that these
programs prepare students for gainful employment in many fields, such as future rabbis, teachers
of religion, and pastoral assistants. DARS further asserts that training in Talmudic law is a
prerequisite to obtaining many jobs within the Orthodox Jewish community. As examples,
attaches at Ex. R-23 the affidavits of two of its former students who state that they could not
have obtained their current positions without the training they received at DARS.
Nonetheless, while the fact that students subsequently have
obtained jobs may be an
incidental benefit of the program, this was not the primary goal of the program. See In the
Matter of Academy for Jewish Education, Dkt. No. 94-11-EA, U.S. Dep't of Educ.
(Emergency Action Proceeding) (March 23, 1994); see also Bnos Research Institute for
Training and Education, Dkt. No. 94-120-EA, U.S. Dep't of Educ. (Emergency Action
Proceeding) (Sept. 20, 1994).
Through statements in its School Catalog, statements made to its accrediting agency, and
statements made in its Business Plan, DARS consistently emphasizes that it does not offer
vocational training and that its programs are not designed to promote employment opportunities
for its graduates. DARS repeatedly states that its programs are strictly academic and that its
students enroll with the desire to enrich their personal and intellectual development. While these
are worthy goals, they do not satisfy the statutory requirement of providing a program of training
that prepares students for gainful employment in a recognized occupation.
Additionally, as part of DARS' attempts to link its programs with
job descriptions from the
Dictionary of Occupational Titles, DARS submitted a document to ACCET in which DARS was
asked to list its programs of study and correlating occupations and numbers from the Dictionary
of Occupational Titles. DARS listed none, indicating only that its programs were "non-
vocational." Ex. E-2, Jamroz Ex. 10 at 1.
In support of its argument that the Rabbinics program prepares
students for gainful
employment in a recognized occupation (the rabbinate), DARS states at page 49 of its initial
that "the training provided by the Seminary would qualify students . . . to continue their
toward ordination as rabbis." At page 50 of its initial brief, DARS notes that "DARS
. . .
provides the educational bridge between Orthodox Jewish secondary school and the advanced
study that leads to ordination as a rabbi." However, these statements and the evidence
demonstrate that while the Rabbinical Studies program at DARS may provide a necessary
foundation for the student to go on to pursue the advanced study that leads to ordination as a
rabbi, this program does not directly train students to become gainfully employed as rabbis.
Therefore, it does not satisfy the statutory mandate.
Nor does the Judaic Studies for New Arrivals program satisfy this
DARS's 1992-1994 School Catalog states that "[t]he objective of this five year program
Studies for New Arrivals] is to facilitate the desire of new immigrants to increase their
and understanding of their heritage, while also embellishing their language skills, and civic
awareness." Ex. E-2, Jamroz Ex. 5 at 8.
DARS argues as follows:
[The Judaic Studies for New Arrivals program] is intended, among
other things, to
integrate the students into American society. Id. This certainly does not preclude the notion of
employment of immigrants to a new society. Indeed, it is difficult, if not
impossible, to be employed if one is not fully integrated into the society in which he or she
Resp. Reply Br. at 8. A review of the courses offered in the Judaic Studies for New Arrivals
program indicates that, indeed, the program is designed to integrate new Jewish immigrants into
American society. Ex. E-2, Jamroz Ex. 5 at 40-46. Nevertheless, while integrating immigrants
into American society is a worthy goal, it does not satisfy the statutory mandate that the program
prepare students for gainful employment in a recognized occupation. To state that integrating
immigrants into American society satisfies this statutory mandate because it further enhances
ability to obtain employment would strip the statute of all meaning. Under such a standard,
almost any educational program would potentially enhance a student's ability to obtain
employment and thus qualify.
In In the Matter of Academy for Jewish Education, Dkt.
No. 94-11-EA, the emergency action official stated as follows:
It is difficult to objectively assess what, per se, prepares one for
"gainful employment in a recognized occupation." Any degree of education,
benefits or enriches a student in such a
way as to enhance the student's worth as an employee. . . .
The HEA requires that an institution provide training that prepares
students for gainful
employment in a recognized occupation. As such, it is implicit that the statutorily
intended goal or result of such a program be preparation for gainful employment in such an
occupation; not that such a goal or result be potentially derived or incidentally available
at the conclusion of the program. In short, a program of preparation should build toward
a specific, employment oriented goal. Here, the programs are not driven toward a
particular type of occupation. Rather, they provide training that may lay the foundation
for qualification toward a variety of jobs within a specific community. The goal or result
here seems to be directed toward assimilation into a particular culture, not toward a
specific area of employment. While I note that there is no indication that Academy
intended to circumvent the dictates of the HEA, I find that Academy's programs do not
satisfy the applicable definitions at 20 U.S.C. §§ 1088(c) or 1141(a).
Id. at 3-4. While I am not bound by this decision because it was an emergency action
proceeding that did not contain the same procedural safeguards afforded institutions in Subpart
proceedings, I find its reasoning to be applicable and persuasive in the instant case.
Accordingly, I find that while DARS offers a high-quality Jewish
education, it does not
provide a program of training that prepares students for gainful employment in a recognized
occupation; thus, it does not satisfy the statutory requirements as currently written to qualify as
either a "postsecondary vocational institution" or an "institution of higher
2. DARS does not provide a program of training that prepares
students for gainful employment in a recognized occupation, and thus does not satisfy the
statutory requirements as
currently written to qualify as either a "postsecondary vocational institution" or an
Judge Richard F. O'Hair
Issued: October 4, 1994
S E R V I C E
A copy of the attached initial decision was sent by CERTIFIED MAIL, RETURN RECEIPT
REQUESTED to the following:
Yolanda R. Gallegos, Esq.
Dow, Lohnes & Albertson
1255 Twenty-Third St., N.W.
Washington, D.C. 20037
Howard D. Sorensen, Esq.
Office of the General Counsel
U.S. Department of Education
600 Independence Avenue, S.W.
Washington, D.C. 20202-2110