IN THE MATTER OF BNAI ARUGATH HABOSEM,
Respondent.
Docket No. 94-73-EA
Student Financial Assistance Proceeding
Emergency Action
DECISION
On January 13, 1994, the Office of Student Financial Assistance
Programs (SFAP) of the U.S. Department of Education (ED) imposed
an emergency action against the Bnai Arugath Habosem (Bnai) of
Brooklyn, New York, in accordance with 20 U.S.C. § 1094(c)(1)(G)
and 34 C.F.R. §§ 600.41 and 668.83. In response to the notice
imposing the emergency action, on April 20, 1994, counsel for
Bnai requested an opportunity to show cause why the emergency
action is unwarranted.
Pursuant to the Delegation of Authority from the Secretary to me
to conduct proceedings and issue final decisions in circumstances
where educational institutions request an opportunity to show
cause why an emergency action is unwarranted, I conducted a
hearing in Washington, D.C., on May 18 - 19, 1994. At the
hearing, Bnai was represented by Leigh M. Manasevit, Esq., and
Diane L. Vogel, Esq., of Brustein & Manasevit, Washington, D.C.,
while SFAP was represented by Howard D. Sorensen, Esq., from the
ED Office of the General Counsel. The proceeding was transcribed
by a Court Reporter. On May 27, 1994, each party submitted a
post-hearing brief.
This case is similar to a series of cases that have come before me involving the issue of whether an institution qualifies as an eligible institution for purposes of participating in student financial assistance programs. According to the notice in this case, the emergency action was based upon Bnai's failure to satisfy either the definition of an institution of higher education, as set forth at 20 U.S.C. § 1141(a) and 34 C.F.R. § 600.4(a), or the definition of a postsecondary vocational institution, as set forth at 20 U.S.C. § 1088(c) and 34 C.F.R. § 600.6. Satisfaction of one of these definitions is a
prerequisite to lawful participation in the student financial
assistance programs authorized under Title IV of the Higher
Education Act of 1965 (HEA), as amended, 20 U.S.C. § 1070 et seq.
To satisfy either of these definitions, an institution must offer
an eligible program under the applicable statutory provisions.
ED alleges that Bnai has failed to provide such a program.
In addition, ED argues that to satisfy the statutory definition
of an eligible program, an institution must be, among other
things, accredited by a nationally recognized accrediting
association or agency or must have been granted preaccreditation
status. See 20 U.S.C. § 1141(a), 20 U.S.C. § 1085(a), and 20
U.S.C. § 1088(c). The Accrediting Commission for Continuing
Education and Training (ACCET) accredited Bnai and classified the
school under the label of "avocational" institution. As a
consequence, ED concluded that such accreditation fails to
satisfy the HEA accreditation requirement because, according to
ED, avocational accreditation has no nexus with the offering of
any HEA-eligible programs, i.e., a program with an occupational
objective. ED's position on the significance of ACCET's labeling
a school as "avocational" as opposed to "vocational" has been
duly considered and rejected by me in In the Matter of Seminar
L'Moros Bais Yaakov, Docket. No. 94-37-EA, U.S. Dep't of
Education (March 21, 1994) and, therefore, will not be revisited
here.
Pursuant to 34 C.F.R. § 668.83(e)(4), in order to prevail in this
proceeding, Bnai must meet its burden of persuading me that an
intended purpose or aim of its program is consistent with the
statutory requirement that the focus of its program is the
preparation of its students for gainful employment in a
recognized occupation. To meet this burden, it is not sufficient
to simply show that gainful employment in a recognized occupation
is potentially derived or incidentally available at the
completion of the school's program; it must be shown that an
institution's program builds toward a specific, employment
oriented goal.
From the evidence presented, I find that both programs, the
Certificate in Judaic Studies program and the Certificate in
Rabbinics program, are not eligible programs for HEA purposes.
The programs are not driven toward a particular type of
occupation. Bnai offers two rigorous programs, five to six years
in length, leading to a certificate in either Judaic or Rabbinic
studies. The school's programs are comprehensive and as a
result, encompass the requisite education necessary for obtaining
a job in the field of Jewish education. During the hearing,
testimony was presented that Bnai's reputation as an institution
in the community is stellar, and that prospective employers are
interested in Bnai's graduates for teaching and administrative
positions within Jewish education institutions. Moreover, witnesses testified that Bnai's students
are particularly capable
of educating others in Torah knowledge. That notwithstanding,
Bnai failed to demonstrate that its programs have as their
purpose or aim, the training of students to specifically teach or
obtain employment in the education field. While it is obvious
that Bnai's programs may assist its students in securing
employment as teachers as one of the incidental effects of
completing the school's programs, I do not find Bnai's programs
having as their aim or focus the preparation of students
specifically for employment. Indeed, Bnai's administrator, Rabbi
Cheskel Grunwald, on direct examination at the hearing, stated
that the school's predominate purpose is to teach its students to
become better individuals through learning at a higher level of
study and then having the students transmit what they have
learned to others. Accordingly, consistent with my discussion In
the Matter of Seminar L'Moros Bais Yaakov, supra, I find that
Bnai is not an eligible institution for purposes of participation
in Title IV, HEA programs.
This case is distinguishable from the cases of In the Matter of
Sara Schenirer Teachers Seminary, Docket No. 94-8-EA, U.S. Dep't
of Education (March 21, 1994), and In the Matter of Beth Jacob
Hebrew Teachers College, Docket No. 94-10-EA, U.S. Dep't of
Education (March 21, 1994), wherein I found that each of those
institutions offered teachers training programs which were
designed to prepare a student for gainful employment as a teacher
and, therefore, were Title IV eligible programs. In each
instance, the eligible program was clearly delineated by the
institution as a teachers training program and, included in the
curriculum, were standardized "education courses" which trained
students how to teach. Here, those factors were not present.
I note, however, that this case is somewhat analogous to my
decision In the Matter of Academy for Jewish Education, Docket.
No. 94-11-EA, U.S. Dep't of Education (March 23, 1994), wherein I
found that a program that acclimates new immigrants into the
Jewish-American culture was not qualified to participate in HEA
programs because the purpose and aim of the program did not
provide training that prepared students for gainful employment in
a recognized occupation. In the case at bar, the unrebutted
testimony of the witnesses demonstrated that Bnai's programs are
focused on providing an in-depth immersion into Judaic and
Rabbinic studies for highly motivated adults. The purpose of the
program is undoubtedly worthwhile and more extensive than one
acclimating new immigrants into a particular culture. Indeed,
the quality and depth of the course-work seems to be both
advanced and educationally challenging. Nonetheless, the worth
or value of Bnai's programs is not at issue, here. I am bound by
the limited scope of the definitional provisions of the HEA and,
in that regard, this institution's programs are not the type contemplated within the HEA and,
therefore, are not eligible
programs.See footnote 1
34 C.F.R. § 668.83(c) provides that the emergency action must be
upheld if: 1) there is reliable information that Bnai violated
provisions of Title IV of the HEA; 2) immediate action is
necessary to prevent misuse of Federal funds, and 3) the
likelihood of financial loss outweighs the importance of
adherence to the procedures for limitation, suspension, and
termination actions. In light of my finding that Bnai has failed
to meet its burden of showing that its programs satisfy the
statutory definition of an eligible institution, I must also find
that a violation of Title IV has occurred. As such, continuing
to operate within the Title IV program would lead to further
misuse of Federal funds. Moreover, given the fact that all Title
IV aid disbursed by an ineligible institution violates the HEA,
the likelihood of financial loss of Federal funds outweighs the
importance of awaiting completion of a proceeding to limit,
suspend, or terminate the participation of Bnai in Title IV, HEA
programs.
Having found that the three-pronged test for imposition of an
emergency action has been met, I AFFIRM the emergency action.
SO ORDERED.
Judge Ernest C. Canellos
Designated Deciding Official
Issued: June 16, 1994
Washington, D.C.