Unity on State Regulation Erodes

As 70 higher ed groups ask Congress to rescind Education Dept. rule on state approval of online programs, public college associations peel off.
April 27, 2011

WASHINGTON -- As the Education Department developed, published and defended a new requirement that distance education providers gain approval from any state in which they seek to enroll students with federal financial aid, the rule has earned almost universal scorn, at almost every stage of the process, from across the spectrum of higher education. Until now.

On Tuesday, the American Council on Education took the relatively unusual step of asking Congress to rescind the "state authorization" rule and another regulation, also due to take effect July 1, that would create a federal definition of a "credit hour." And while nearly 70 college groups and accrediting agencies signed the letter, three of the "big six" associations of college presidents -- those that represent two-year and four-year public institutions -- did not sign the letter, even though they had signed earlier letters asking the department itself to rescind the rules and asking Congress to delay their implementation. (The National Association of Student Financial Aid Administrators also signed the earlier letters but did not sign Tuesday's.)

Officials of the public college groups -- the American Association of Community Colleges, the American Association of State Colleges and Universities, and the Association of Public and Land-grant Universities -- said they believed that the Education Department, in announcing last week that it would not enforce the state approvals rule until 2014, had made a "good faith effort" to be flexible with their members, as Robert L. Moran, federal relations director at the state college group, put it.

"The department displayed sufficient flexibility in implementation that it did not merit the dramatic recourse of going to the Hill and seeking nullification," added David S. Baime, senior vice president for government relations and research at the community college association.

Moran and Baime both said that their groups still have "concerns" about the state authorization rule, and Moran said that AASCU remains opposed to the credit hour regulation and "will not be silent" on that.

But both said their leaders had been largely assuaged by the concessions the Education Department had made about enforcement, especially given that agency officials had made clear that they could not delay outright implementation of the rule without undermining its ability to defend the rule from a lawsuit filed by the Association of Private Sector Colleges and Universities in January that sought to invalidate the state authorization rule and two others aimed at protecting the integrity of federal student aid programs.

Education Department officials had hoped that the changes would persuade higher education groups not to continue to oppose the state approvals rule, which they see as important in their larger effort to regulate higher education generally and for-profit colleges in particular, and top department officials urged leaders of the higher ed groups not to ask Congress to step in.

The concessions were not enough, however, to satisfy the dozens of other college groups that signed Tuesday's letter.

"Ultimately, we believe these two regulations invite inappropriate federal interference in campus-based decisions on academic matters and will limit student access to high-quality education opportunities," wrote Molly C. Broad, ACE's president. Without Congress's action to block the two rules, she wrote, "higher education will face significant federal intrusion into core areas of academic decision-making and students will be denied opportunities to participate in quality distance education programs."


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