By Mitch Leventhal, first published on Linkedin
Over the last several months, I have been asked innumerable times – by colleges and universities, recruitment agencies, and journalists – whether the Middle States Commission on Higher Education (MSCHE) threat to ban the payment of commissions to international student recruitment agencies will come to anything. A corollary to that question is, why did they even consider doing so in the first place, given that NACAC reversed its own opposition four years ago, following a very visible and divisive debate?
Taking the second question first, my belief is that someone inside MSCHE took it upon themselves to fixate on this issue – that someone likely having absolutely zero understanding of the issues and history of the debate, and no awareness of NACAC’s own gyrations and subsequent reversal. In my view, the only possible reason for this was ignorance, zero research and recklessness. This has wasted countless hours of labor at many dozens of colleges and universities, as well as recruiting companies. It has caused institutions to walk away from contracts, halting or slowing long-standing plans, and generally sown havoc.
Finally, last week, MSCHE stated that they are not advancing the proposed changes related to international recruitment immediately, but will instead have further study (read “Save Face”). This mirrors very closely what occurred with NACAC, when if finally realized it had waded into treacherous waters. It took NACAC some rapid back paddling to get to shore, but they finally did. So much for learning from history, MSCHE!
MSCHE’s sudden second thoughts surely resulted from letters of opposition from the dozens of institutions they accredit, who are well vested into commission-based agency recruitment. But I suspect an even greater incentive for them to ‘re-think’ was the discovery that their actions might subject them to legal jeopardy in two ways. First, the very threat of punitive action against accredited institutions cast a long shadow over the market. Institutions that were working with agencies already pulled back, fearing repercussions to their accreditation. Many who were starting to do so, slowed down or halted efforts. The business of recruitment suffered as a result. MSCHE (like NACAC earlier) no doubt was informed that its actions might be interpreted by the courts as tortious interference with legal contracts – meaning that they knowingly were causing harm to the legal business of third parties. This should have caused MSCHE a long pause. Second, there are serious questions as to whether such actions might be considered restraints on trade and a violation the Sherman Anti-trust Act. This theory was advanced during the NACAC debate and must have been carefully considered by the NACAC board. Clearly, given the concerns of a large number of their members, and the obvious legal risks of their position, MSCHE thought it better to ‘save face’ and adjust to the new reality.
So that brings me back to the question of what comes next with MSCHE. Is there any chance that they will proceed with a ban following their period of additional study? If I were a betting man, I would put ALL of my money on NO. MSCHE is now sorting out how to gracefully stand down, save face, and frame the discussion within, perhaps, the creation of a set of new standards and guidelines for international student recruitment. Such an approach is entirely appropriate and MSCHE should be praised for taking this path. (Although the brains behind this kerfuffle deserve some consequences!)
So, for any institutions which feared the future agency-based recruitment, rest easy. My prediction is that it’s here to stay, even in Middle States’ territory.