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Observers of online education have griped for years about the ambiguous language governing distance education in the federal Higher Education Act. A proposal from the House of Representatives to rewrite the law has revived frustrations around federal policy in this space. Concrete solutions from critics, however, are harder to come by.

The House bill, known as the PROSPER (Promoting Real Opportunity, Success, and Prosperity through Education Reform) Act, removes key distinctions between traditional and online programs, introduces new scrutiny for competency-based education programs, and eliminates provisions restricting institutions from outsourcing 100 percent of their curricula to for-profit companies.

Republicans on the House Education and the Workforce Committee introduced the bill in November and advanced it in December; leaders of the education committee in the Senate have held several hearings on the Higher Education Act in the past few weeks, and the committee is expected to weigh in with a rewrite of its own by April. Negotiations on the rewrite are expected to last through much of 2018 and could run into roadblocks as the November midterm elections approach.

In the meantime, reactions to the House bill among distance education experts range from philosophical support to practical trepidation. Some advocates for online education believe the new language recognizes the increasing ubiquity and normalcy of online education as a viable modality. Others worry that the loosened restrictions will lead to a flood of bad actors that exploit students and lend online learning a negative reputation that hurts higher-quality programs. Most observers agree that changes and updates to the existing Higher Education Act language are needed but admit they haven’t yet developed catch-all solutions of their own.

The bill is unlikely to pass into law in its current form. But any attempt at revisions prompts questions about the best approach, and this one is no exception.


The Higher Education Act was enacted in 1965 and has been reauthorized eight times since, most recently in 2008. Authors of the law have tried to keep pace with the evolving education landscape, as well as with restrictions on financial aid for institutions with more than 50 percent of their courses offered in a correspondence format.

During the most recent reauthorization, the bill established new standards governing online education. In order to receive financial aid, online programs need to demonstrate “regular and substantive interaction between the students and the instructor.” That definition has been interpreted differently by different players.

The most recent ripple in that ongoing debate came with the release last September of a Department of Education inspector general report that took Western Governors University to task for failing to meet the “regular and substantive” standard. Proponents of that institution say its competency-based model, which substitutes mentors and advisers for professors, is unconventional but effective, unworthy of the scrutiny it’s undergone.

Online Approaches the Mainstream

The Education Department isn’t likely to act on the inspector general’s recommendation that the university return $713 million in federal funds, but the report’s harsh tone has energized some observers to urge rewriting the law's language about online education. On that count, the PROSPER Act draws praise from some analysts.

“I think it’s a progressive move to make distance education a more mainstream feature of higher education,” said Leah Matthews, executive director and CEO of the Distance Education Accrediting Commission. “So by eliminating the definition and the carve-out of distance education, I think it just enhances the status, and the acceptance, of teaching and learning in that format.”

Matthews believes accreditors need to look more closely at online education programs, focusing in particular on student outcomes, which can vary wildly depending on the quality of programs. Russ Poulin, deputy director of research and analysis for WICHE Cooperative for Educational Technologies (WCET), said institutions aiming to bolster declining face-to-face enrollment with hastily assembled online programs deserve particular scrutiny.

Scott Pulsipher, president of Western Governors, largely agrees, though he believes online education has become mainstream enough that some of the strictures around it ought to be removed.

However, “we have to be careful that we don’t remove too many of the quality standards,” Pulsipher said. “We have to apply them uniformly regardless of delivery mode. We should be obsessed with student progress, outcomes, attainment.”

Competency Under the Microscope

As Poulin pointed out in a December blog post, the bill strikes the term “distance education” from a requirement that accreditors obtain special permission from the Education Department before approving such programs and conduct special reviews for distance programs. In the new bill, that same language now applies to competency-based programs, but not to distance education.

“If we replace distance ed with CBE, are we going to end up with an unsatisfactory game of whack-a-mole?” Poulin said. “Can we come up with broader language about innovative things that do not fit the current financial aid structure?”

What's Left Unspoken (So Far)

Observers interviewed for this article think Congress should be looking at a few other areas as they revamp the Higher Education Act:

  • Quality assurance. Amy Laitinen from New America thinks the focus on "innovation" obscures the need for rigorous oversight of existing programs. "Without any attention to quality, the PROSPER act creates new loopholes that will ultimately harm the very students most in need of innovative approaches to higher education," she said.
  • Academic integrity. Skeptics believe online education leaves room for fraud. The current law requires that the student taking an assessment is the same one enrolled in a course, but offers no guidance for enforcement, Russ Poulin of WCET points out. ""There was much agreement that the provision, as written, was toothless," Poulin said.
  • Student privacy. This matter is on the mind of many in higher education and beyond, given increasing concerns around the plethora of private information easily accessible through digital means. But observers say thus far they haven't heard much about it with regard to this bill.

Others interviewed for this article echoed Poulin’s response. They believe language focused on specific programs muzzles innovation.

“They’re kind of going from zero to 35,000 feet a little bit rapidly in terms of the creation of the eligibility,” said David Baime, vice president for government relations at the American Association of Community Colleges. “We would like to see our colleges getting Title IV [funding] for this purpose a lot more easily than they are at present.”

Confusing or ambiguous regulations can make institutions wary of experimentation, according to Burck Smith, CEO of StraighterLine, an educational company that offers low-priced online higher education courses.

“No college or noncollege or new provider who’s hoping to get some kind of [access to federal financial aid] is going to start something or invest in something if it turns out they’re wrong,” Smith said. Institutions “are interested but they feel reluctant to try new programs because they’re worried the Department of Education would shut them down after they already started.”

Competency-based education came up frequently during a Senate hearing last month on higher education issues, with witnesses testifying that a stronger definition of the term is necessary before that portion of the sector can be effectively regulated. In a statement, the House Committee on Education and the Workforce framed its approach in terms of opening competency-based education up to federal aid.

"The PROSPER Act creates a clear pathway for competency-based education programs to be eligible for federal student aid, allowing students to earn a degree based on what they’ve learned and not based on the amount of time they spend in a classroom," the GOP committee spokesman Michael Woeste wrote.

Potential for Abuse

Outspoken critics of the bill believe the potential for abuse outweighs concerns about stymied innovation. Amy Laitinen, director for higher education at New America's education policy program, hopes the Senate HEA rewrite or future legislation will place stronger emphasis on “granular” measurements of outcomes.

“We need to know not just, ‘Are programs good [in general]?’” Laitinen said. “We need to know how particular students in particular programs at particular institutions at particular prices are doing.”

Eliminating regulations increases the potential for online programs that amount to exorbitantly priced online textbooks with quizzes to go unchecked, according to Bob Shireman, a fellow at the Century Foundation who led the Obama-era regulatory crackdown on for-profit institutions. Shireman thinks reactions to the audit of Western Governors has some online education proponents on edge, but removing restrictions from the language pushes legal standards too far in the other direction, he said.

The crux of the debate rests with balancing innovation and experimentation with protection and standards, according to Paul LeBlanc, president of Southern New Hampshire University.

“I’ve long predicted that we would see a next generation of for-profits who would be better citizens and more responsible players,” LeBlanc said. “As we move towards that, why create the conditions to allow backsliding?”

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