Hawaii Legislators Abandon Plan for Faculty Mandate on OER

Legislators rewrite bill that originally required use of freely accessible educational materials, amid criticism that legislation would have infringed academic freedom and harmed, not helped, the open-access movement.

February 27, 2018
 
State seal of Hawaii

Hawaii legislators last month backtracked on a bill that would have forced faculty members in the University of Hawaii system to use open educational resources -- freely accessible and openly licensed teaching materials.

The legislation, proposed as a way to reduce high textbook and other costs for students, was reportedly inspired by the early success of existing OER initiatives in the university system, which are collectively saving students hundreds of thousands of dollars a semester.

Though faculty members in the university system said they believed the bill to be well intentioned, the bill failed to take into account that OER materials may not be suitable for all courses due to copyright restrictions. It also did not offer any funding to facilitate a complete pivot to OER.

The University of Hawaii Professional Assembly, a union representing faculty members in the University of Hawaii system, was quick to oppose the bill, which it said would have infringed academic freedom and limited choice for faculty members. "Is this a new definition of a state-run university?" the union asked.

Numerous states have in recent years passed laws that fund, enable or otherwise encourage the adoption of open educational resources, including California, Oregon, Washington State and, most recently, New York. But state governments have, by and large, avoided imposing mandates that require the use of such materials.

The Hawaii bill, introduced Jan. 19, would have required all faculty members in the university system to teach with OER beginning in the 2020-21 school year. The use of any instructional materials, including textbooks and online tools, that cost students money would be prohibited. Where there were no suitable OER materials existing, the bill said that instructors would have to create their own and offer them to students free.

Several faculty members independently submitted testimonies opposing the bill. Earl Hishinuma, a professor of psychiatry at the University of Hawaii at Manoa, for example, wrote that while he supported the intention to reduce costs for students, “this bill is not the solution.”

The university system also opposed the bill. Donald Straney, vice president of academic planning and policy at the University of Hawaii system, wrote that a mandate for OER was simply “not possible” due to the wide variety of materials used in the thousands of courses the system offers -- some of which remain under copyright.

“Faculty need to be able to choose the instructional content that is most appropriate for their courses and their students,” said Straney. He described how the university system had already invested significantly in OER, by providing grants, training and workshops, which had received a positive response from faculty members. A spokesperson for the University of Hawaii system said that OER initiatives were already saving students hundreds of thousands of dollars. Leeward Community College, for example, reported savings of $459,826 for students this semester.

Following the negative response to the bill, Senator Kaiali‘i Kahele, who introduced it, reportedly rethought his proposal. A heavily rewritten bill, which removed any OER mandate, was passed by the Senate Committee on Higher Education Feb. 6.

The amended bill proposes the creation of an OER task force to identify OER materials to be used in general education and high-attendance courses. The bill also proposes to fund a $50,000 OER pilot program that will distribute grants of between $500 and $5,000 to faculty members to incentivize them to "adopt, develop, and implement OER for their courses." The bill was recently referred to Senate Committee on Ways and Means for review.

Phil Hill, partner at Mindwires Consulting, wrote about the OER bill on the e-Literate blog, describing the incident as a “crisis averted.”

“The bill was a disaster in the making,” said Hill. “Not only would it have been unworkable in terms of funding and intellectual property ownership, it would also have set back the OER movement by associating OER with unfunded faculty mandates and reduction of academic freedom.”

Nicole Allen, director of open education for SPARC, an open-education advocacy group, said that she was pleased that the bill had been amended to remove an OER mandate. “It’s really important to recognize that mandates are not the pathway to OER,” said Allen. The values of the OER community are “deeply linked with academic freedom” and the decision whether to use OER is a “choice that each faculty member needs to make,” she said.

Allen said that she was not aware of any other state that had attempted to mandate OER, though other states, such as Colorado, have used legislation to create bodies that make recommendations on the use of OER. “The important thing is that the state Legislature listened to stakeholders and made changes to the bill,” she said, adding that “the democratic process should be just that, a process.”

Kristeen Hanselman, executive director at the University of Hawaii Professional Assembly, said she appreciated that the Senator Kahele had “showed a great deal of flexibility” in response to faculty members’ concerns. She noted that the senator consulted the assembly prior to presenting the original bill, but that it was “broader than we had encouraged.”

The amendments to the bill demonstrate “a more reasoned approach,” to encouraging OER, said Hanselman, but fail to address deeper funding issues in the university system. “You have to build a system that can support what you want to build,” said Hanselman. “We aren’t there yet.”

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