Judge Rejects Education Dept. Subpoena Against Private Group

By Mark Walsh — August 01, 2013 2 min read
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A federal judge has rejected an attempt by the U.S. Department of Education’s inspector general to enforce subpoenas against a California higher education group, suggesting that the government was on “a fishing expedition” for emails and documents implicating potential wrongdoing by a former senior department official.

The ruling by U.S. Magistrate Judge Alan Kay of Washington stems from a case in which the department’s inspector general is investigating possible ethical violations by Robert Shireman, who held several department jobs under President Obama, including deputy undersecretary for about a year.

Shireman has been described as the department’s student-loans guru and was instrumental in the Obama administration’s push to get rid of the Federal Family Education Loan Program, which relies on subsidized lenders, in favor of the Direct Lending program.

He was the founder and former president of The Institute for College Access & Success, or TICAS, an Oakland, Calif.-based group that works to make higher education available to all, especially those in underrepresented groups.

According to Kay’s opinion, “the government alleged that Mr. Shireman communicated with TICAS and utilized his TICAS email account during his government appointment, specifically between the dates of February 3, 2009, and February 11, 2011.”

The inspector general’s office issued subpoenas to TICAS in 2012 seeking all communications between the group and Shireman during the two-year period. Also, it sought all documents concerning Shireman and an Education Department “negotiated rulemaking.”

TICAS told the government that it would produce some documents voluntarily but that it objected to the breadth of the subpoenas. The matter ended up before Judge Kay, who issued his ruling against the government on July 26 in United States v. The Institute for College Access & Success.

Kay said that while emails between Shireman and TICAS in the specified time period would be relevant to the investigation, the inspector general’s subpoena of documents that contain both “Robert Shireman” and “negotiated rulemaking” is “so unmanageably broad as to render its results irrelevant to the investigation’s goals.”

“These broad search terms are so sweeping that they go beyond contact with TICAS and Mr. Shireman and they can only be categorized as a fishing expedition unlikely to yield relevant information to the investigation,” Judge Kay said.

The judge also held that the inspector general’s office lacked administrative subpoena authority against TICAS because the higher ed group was private and had no financial, contractual, or programmatic relationship with the federal government.

“TICAS is a private entity that does not receive any funds directly or indirectly from the federal government or federal programs, nor does it contract with the federal government,” the judge said.

A version of this news article first appeared in The School Law Blog.