Art Institute Instructor Fired For Protesting Mandatory E-Textbook Policy Takes School To Court

Legal Issues

from the tossing-aside-great-instructors-in-order-to-cash-in-on-shady-policies dept

A few months back, we covered the story of Mike Tracy, a highly regarded animator with over a decade of teaching experience at the Art Institute of California. Tracy protested his school’s mandatory ebook policy, one that saddled students with one-time use ebooks (via access codes) at a cost of $50-75 each. The push behind this policy came from the Education Management Corporation (EDMC), which manages several for-profit universities as well as operating its own e-textbook publishing company, Digital Bookshelf.

Mike Tracy refused to enforce the questionable policy and spoke out openly against EDMC’s mandatory e-book policy, calling the forced inclusion of these textbooks “arbitrary, inappropriate and completely motivated by profit.” In response, the Art Institute fired Tracy for “insubordination.” It may be wishing it had simply made a few exceptions or reconsidered its textbook policies, as it is now being sued, along with EDMC, for lost wages and benefits, along with punitive damages for retaliation, wrongful termination and emotional distress.

Tracy, who had taught for 11-1/2 years at the Art Institute without requiring his students purchase a textbook, was informed by administration in 2010 that he would need to select a textbook from the list provided by EDMC, something that had never been required before this point.

“Plaintiff was concerned by this notification that his course had been selected for compulsory participation in defendants’ e-book program,” the complaint states.

“Plaintiff had taught the course for more than a decade without the use of an officially published textbook. Plaintiff had never previously designated a textbook for the course because, in the rapidly and ever-evolving field of digital animation, which increasingly relied on cutting-edge technical developments in the larger field of computers and computer science, no published textbook adequately addressed the subject matter of the course. Available published textbooks often suffered from a lack of comprehensive teaching of the subject matter; a failure to remain relevant, containing out-of-date materials, techniques, or approaches, due to rapid and continuous developments in the field; or a failure to provide practical and/or theoretical educational content that would adequately prepare students for careers in the field. Thus, in plaintiff’s professional and academic opinion, none of the available published textbooks for the course were productive, useful, or appropriate for the students.”

That’s the trouble with policies: they can often override knowledge and/or common sense. Seeing as Tracy had more than 11 years experience at that point (and was respected by his students, who collected more than 4,700 signatures on a petition to get him reinstated), one would think the school would value his opinion over a list compiled by a management corporation more interested in turning students into mandatory “customers” than actually providing quality education. Tracy’s concern about this new policy led him to do some research, which uncovered some more mercenary ugliness on EDMC’s part.

Tracy says he found that students taking courses requiring an e-book were charged $50 for an “electronic resources fee,” and $75 if the course required two e-books.

“Students were not allowed to opt out of the automatic fee, which was charged to their tuition accounts without further notice,” the complaint states.

Tracy claims this policy prevents students from buying their books elsewhere, a right guaranteed in the student handbook.

“Moreover, the policy effectively eliminated all other potential ways that students traditionally saved money on text purchases, such as buying used texts or trading texts after completing a course, because access to the mandatory e-books was limited to the particular student charged, in a single-use only basis.”

Mandatory fees plus elimination of used books sales. It’s a nice racket if you can get in on it. Tracy claims most students were unaware they were being charged these mandatory fees and that other instructors felt the e-textbooks were unsuitable for their classes and never used the “provided” texts which, oddly, worked out perfectly for EDMC and the Art Institute.

“More disconcerting still, plaintiff discovered that if the student never logged on and activated the e-book account for the course, defendants retained a higher percentage of the profit from the sale of the e-book under the terms of their contract with the e-book publisher than if the student had actually activated and made use of the e-book account,” the complaint states.

That’s just bizarre. As a digital product, prices shouldn’t fluctuate depending on actual “use” of the texts. If this is true, it’s as though the intention was to push as many useless and needlessly expensive e-textbooks on students as possible in hopes of a greater “return” of “unused” textbooks. Beyond some minor account maintenance, it’s hard to see many expenses being incurred by the use of e-textbooks, which makes the higher profit margin on unused “books” inexplicable.

Tracy filed complaints with several government agencies, including the Department of Education. On August 10, 2010, Tracy was threatened with firing unless he complied with the new policy.

“During the meeting, plaintiff, again, reiterated his concerns about defendants’ e-book policy, including explaining his belief that it resulted in falsely or fraudulently utilizing federal and state funds (by way of the government-provided grants and loans to the students) through an unfair pricing scheme for the e-books, from which students were unable to opt out. Plaintiff stated that he believed the letter threatening his termination was a retaliatory attempt by defendants to silence his opposition to the e-book policy and to deter other faculty from coming forward and voicing opposition to the same. Plaintiff also believed the termination threat was a signal to him and his colleagues that defendants would not tolerate any type of questioning of their policies, without regard for whether these policies were in violation of the law and fair and ethical business practices,” the complaint states.

Tracy suggested alternatives to the new policy but they were rejected. Believing that his firing was imminent, he posted a message on his personal Facebook account regarding the situation, thanking his students and colleagues for the time they spent together during his career. This apparently was too much for the Art Institute to take.

Four days after the meeting, the Art Institute fired him, “mischaracterizing his continued opposition to their e-book policy on the grounds that it was unlawful, unfair, and unethical as ‘insubordination,'” Tracy says in the complaint.

He claims the school retaliated against him for objecting to its unlawful e-book program, refusing to participate in the program, and reporting the program to the government.

While we wait for this to play out, there are a couple of issues to keep an eye on. Considering EDMC’s past legal issues (it’s currently being sued by the Department of Justice for illegal recruiting and false claims) and it’s possible violation of the Higher Education Opportunity Act (which states that textbook publishers must unbundle their core educational content from optional add-ons like study guides, homework systems and, possibly, mandatory electronic versions of textbooks), Mike Tracy could end up with a rather swift settlement should EDMC wish to remain out of the judicial limelight.

While this lawsuit is not directly about textbook publishing or for-profit schools, it does serve the purpose of shining some sunlight on the intertwined workings of businesses like EDMC, which both owns and supplies textbooks to its colleges. This limitation of options, and the reliance on accounts, passwords and one-time use e-textbooks, prevents students and instructors from choosing anything but the most profitable (for the management and administration) path.

Exposing EDMC’s “policies” for what they are — the building blocks of closed ecosystem — will hopefully help steer future students away from post-secondary for-profit schools run by the corporation. As for Tracy, hopefully the suit goes his way and, at the very least, he ends up at a school that appreciates his talents.

Filed Under: ebooks, fired, mandatory, mike tracy, teacher, textbooks