Is a Billboard a College?

Berry College, in Georgia, sues Tennessee after being told that because it is advertising in Nashville, it should be treated as if it were operating a college there.

May 15, 2013

Colleges regularly promote themselves to prospective students. They send viewbooks. They buy names and addresses. They craft web advertising. And they use billboards, like one with the image above.

In Tennessee, Berry College says, if you try to put up a billboard, you will be treated as if you were operating a college in the state. The college sued the Tennessee Higher Education Commission on Monday, charging it with illegal discrimination against out-of-state institutions and infringement on interstate commerce.

That's because the commission told the college that due to a billboard it put up in Nashville, the college must register as if it were operating a college in the state. Berry is located in Georgia, operates no campuses in Tennessee and does not offer online education. The only way you can enroll at Berry is to go to Rome, Ga.

The suit was filed Monday because that was the deadline Tennessee gave Berry to either register as a college in the state or start paying a fine of $500 a day. Berry officials said that they spoke to commission members about the process of registering as a local college and continuing to be registered, so that Berry could keep its billboard up. The cost could have been $20,000 a year, and Berry says that it can't justify that expense -- especially when it isn't operating a college in Tennessee, and is just renting a billboard.

Berry says that the issue is about more than money; it is about the right of private colleges to communicate to prospective students in other states. At least one other private college from outside Tennessee tried to advertise, but took down a billboard when faced with similar pressure, the college says.

Stephen Briggs, president of Berry, issued a statement on the suit. “In this instance it is a billboard, but presumably the commission could claim the same about newspaper or magazine advertisements, or even Internet ads targeted to Tennessee IP addresses,” he said. "We believe Tennessee students and their families have the right to learn about schools outside Tennessee and choose the school that is the best for them."

About 150 of Berry's 2,100 students are from Tennessee.

Richard G. Rhoda, executive director of the Tennessee Higher Education Commission, said via e-mail that he has yet to receive the Berry lawsuit and so can't comment on its details. Asked if Tennessee had taken similar action against other colleges that promote themselves in the state, Rhoda said: "Our experience with other out of state institutions is that they comply with Tennessee law."

Private colleges that are in Tennessee are already registered there and thus have no fear of putting up billboards. But Claude Pressnell, president of the Tennessee Independent Colleges and Universities Association, said that the debate in his state reflects a challenge for many colleges. "I think this case demonstrates the complexity of handling state authorization on a state-by-state basis," he said via e-mail. "As institutions seek to expand their footprint, either by online or ground programs, they are saddled with the burden of navigating radically diverse sets of regulations. Clearly there is a balance between only authorizing high quality programs and enabling academic innovation. But this should encourage us to continue the hard work of reaching a collaborative national solution."



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