There is absolutely no truth to the rumor that the U.S. Education Department's Hal Plotkin will appear at a protest on textbook prices today dressed in a 10-foot-tall mascot costume as "Textbook Rebel."
WASHINGTON -- Higher education hates the U.S. Education Department's recently enacted regulation requiring institutions to seek and gain approval from any state in which they operate, and has fought it on multiple fronts. Late Tuesday colleges and universities got at least a temporary reprieve from the part of the rule to which they most object -- its application to online programs in which even one student from a state enrolls.
WASHINGTON -- Weeks after the U.S. Education Department issued softened regulations designed to ensure that vocational programs prepare graduates for "gainful employment," House Republicans made abundantly clear Friday that, in their view, the rules had not been eased nearly enough, and that they would continue to oppose them.
The irresistible force of the Cheneyist federal government has met the immovable object of colleges entrenched in their Eisenhower-era way of doing things, or so some commentators on the Department of Education’s recent attempt at negotiated rule making would have it. If that were true, it would be a fairly traditional conflict that could be resolved through standard political channels.
Under those conditions, the service of a critic such as Anne Neal on the National Advisory Committee on Institutional Quality and Integrity (NACIQI), the department panel that reviews accreditors, would excite little attention. Government and politics are joined at the hip, and Neal has been a visible and effective commentator on important policy issues, from a position roughly congruent with that of Republicans. Fair enough.
But that isn’t the situation. What is really happening is that accrediting bodies, which are not part of any government, are being jammed in between the principals like trapped sheep and beaten from both sides. The feds beat them for not thinking or acting like enforcers. Their collegiate membership beats them for listening to The Idiots In Washington. The Department of Education is using accreditors as a human shield to absorb incoming fire from schools, while simultaneously insisting that the accreditors, not the feds, fight back, with ammunition supplied by the feds themselves.
Sorry, that’s a foul. Can’t do it that way. It’s even inconsistent with the usual habits of the force-based Cheneyist government, which is usually quite willing to simply declare any opposition -- indeed, any discussion -- to be enemy action and begin stomping. Of course, arranging for a third party to be blamed for one’s actions is as old as politics.
Neal has argued that the formal linkage between the feds and accreditors needs to come to an end. She is right. This civil union of the 1950s, so convenient in another era under other conditions, no longer works. Eligibility for federal financial aid should be decoupled from accreditation as soon as possible and determination of eligibility brought inside the Department of Education. The department does it already for foreign schools, albeit badly. The establishment of an eligibility unit inside the department would simplify the situation immensely. If ever a Republican president were to support additional staff for the department, this is where they should go. Democrats could hardly object: adding this function where it belongs would allow government to work more efficiently and colleges to have a much clearer idea of what standards they must meet. A fine bipartisan plan.
The feds are trying in a very crude, clumsy way to transform accreditors into things that they were never intended to be and cannot be effectively: enforcement arms of the federal government. If the federal government wants to impose standards on schools that want federal aid, fine. Standards must be met for most federal aid, and that is as it should be. But the feds should not hide behind a third party in a shotgun wedding, when the bride would rather be anywhere else and the children think their new daddy is made by Frankenstein.
The standards for eligibility for financial aid should be set through a rational, governmental rule-making process that establishes the standards -- just like every other agency does it. Well, I make no claims of rationality for all governmental decisions, but neither can I do so for all policies established by accreditors -- assuming that anyone can figure out what they are.
Various critics of accreditation argue that the process is intrusive, ineffectual, does not help maintain quality and is not worth keeping. That’s a discussion that needs to happen between the colleges and their accreditors, separately from what standards the federal government expects colleges to meet for aid eligibility. I have seen good, bad and useless things emerge from accreditors during my years working in higher education, and the discussion needs to happen. Separately. It is not appropriate to try to answer those questions, which are not federal in nature, in the middle of a tug-of-war between colleges and the feds, by wrapping the rope around the necks of the accreditors in the middle.
There is no reason for accreditors to be attached to the federal government. Allowing this interspecific coitus to continue is simply a recipe for mutant policy offspring that can’t be effective. End it now. It’s time for a shotgun divorce.
Alan L. Contreras has been administrator of the Oregon Office of Degree Authorization, a unit of the Oregon Student Assistance Commission, since 1999. His views do not necessarily represent those of the commission.
After a year in which it dominated the headlines, the student loan “scandal” has lost its head of steam. New York Attorney General Andrew Cuomo has largely moved on to other areas of interest. And the U.S. Senate and House of Representatives, which have each passed different Sarbanes-Oxley-like versions of legislation to address the issue, have also taken up other matters for now.
But that doesn’t mean that colleges and lenders are out of the woods, as the U.S. Department of Education is just getting started with administrative investigations and enforcement actions that will make the department ground zero on this issue in 2008.
In response to criticism from Cuomo, the Congress, and the General Accountability Office, the department increased its oversight of colleges and lenders during the latter half of 2007. In July, the Federal Student Aid office (FSA) sent letters to 921 colleges whose student-loan volume was almost entirely, if not entirely, with one lender. The letters were intended to remind the colleges of the requirement to provide borrowers a choice of lender. Then, on October 24, FSA sent letters to 55 of those colleges, as well as 23 lenders that held loans with one or more of the originally identified 921 colleges, requesting information and documents that could indicate the existence of improper inducements, in violation of the Higher Education Act of 1965, as amended (HEA), and its regulations.
Those 78 colleges and lenders (and perhaps many others) should be prepared for the possibility of an administrative investigation and enforcement action by the department in 2008. Here are four things they can expect:
1. More Adversarial Program Reviews
Based on my personal knowledge of the department’s prior practice, and its current organizational structure, two different divisions that report to the Federal Student Aid Program Compliance office are currently reviewing the responses of the colleges and lenders: (1) the School Eligibility Channel is examining college compliance, and (2) Financial Partners Eligibility & Oversight is examining lender compliance. Although FSA, and not the department’s Office of the Inspector General (OIG), is conducting the oversight, I expect OIG to be working behind the scenes with FSA to ensure that colleges and lenders are held accountable for regulatory violations.
An examination of colleges by FSA’s School Eligibility Channel typically takes the form of a program review, which is FSA-speak for “investigation.” A program review entails an on-site visit by FSA that generally involves the collection of financial-aid documents and interviews with financial-aid administrators. Colleges receive notice that a program review will be initiated and are provided the opportunity to respond to a preliminary program review report before FSA issues a “final program review determination” letter. Colleges can expect the School Eligibility Channel to be reluctant to accept their explanations for business arrangements with lenders. There will be findings of regulatory non-compliance in the program review letters.
Lenders have historically had a much more cooperative relationship with Financial Partners Eligibility & Oversight than colleges have had with the School Eligibility Channel. Financial Partners once boasted that, as its name suggests, it works in partnership with lenders to promote best practices and to provide technical assistance. However, that collaborative approach was criticized in September 2006 by the OIG as one that “emphasized partnership over compliance.” As a result, lenders should expect a more adversarial relationship with Financial Partners, which, like the School Eligibility Channel, will conduct program reviews and make findings of regulatory non-compliance.
2. Application of an Uncertain Legal Standard
What types of agreements between colleges and lenders transgress the current prohibition against inducements? Only FSA knows. It is very difficult to discern the legal standard that FSA will apply.
The department’s longstanding interpretation of the anti-inducement provisions is that a violation requires there to have been a quid pro quo, i.e., something given for something taken. In other words, there must be a payment or other inducement provided in exchange for FFEL loan applications. That interpretation finds support within the department as far back as 18 years ago and remained the department’s position through this past summer.
In a February 1989 Dear Colleague Letter, the department described several types of business-development activities between colleges and lenders that would be deemed permissible so long as they were intended as a form of advertising or as a creation of good will, “rather than as a quid pro quo for loan referrals.” Secretary Margaret Spellings actually attached that guidance to her August 9, 2007 letter to the higher-education community urging colleges and lenders to act in the best interests of students and parents. Indeed, three months earlier, in May, the Secretary testified to a congressional committee that a payment can only constitute an improper inducement where there is a quid pro quo.
The department, however, published new regulations on November 1, 2007 that changed its interpretation of the HEA’s anti-inducement provisions. The regulations, which become effective on July 1, 2008, eliminate the requirement of a quid pro quo and replace it with a standard that will prohibit virtually all business-development activities between colleges and lenders, including efforts to create good will. The department made this change of interpretation by giving itself the authority to limit, suspend or terminate a lender from the FFEL Program if the lender is unable to present sufficient evidence that payments or services provided to a college were provided “for a reason unrelated to securing applications for FFEL loans or securing FFEL loan volume.”
In the preamble to the regulations, the department signaled that the new regulatory language is intended to prohibit virtually any payment that is provided merely for the purpose of securing FFEL loans. This would prohibit virtually all payments because FFEL lenders are, after all, in the business of securing FFEL loans. With the quid pro quo requirement eliminated, nearly all business-development and good-will activities will now be prohibited.
FSA should, of course, wait until the effective date of the new regulations before it applies this new interpretation of the anti-inducement provisions. And, even then, FSA should apply the new interpretation only to payments offered on or after that date or else risk holding colleges and lenders liable for activities that were not illegal at the time they were conducted. But FSA’s intentions are unclear, considering that it seems to already be looking to the new regulations to support its probe of agreements between lenders and affiliates of colleges.
3. Probes Into Lender Agreements With College Affiliates
Based on FSA’s letters, lenders can expect FSA to examine not only agreements between lenders and colleges, but also those between lenders and affiliates of colleges. By "affiliates of colleges," FSA undoubtedly means entities such as alumni organizations. In July 2007, as part of a highly-publicized settlement agreement with Cuomo, Nelnet agreed to stop paying alumni associations for exclusive referrals of their consolidated loans. However, agreements with alumni organizations and other college affiliates are not yet covered by the federal anti-inducement statutes and regulations.
The HEA’s anti-inducement provisions prohibit lenders from making payments “to institutions of higher education or individuals.” Although the current regulations use the slightly different phrase “to any school or other party” to describe the scope of covered recipients, once that phrase is read in the context of the HEA language (as it must be so read), the term “other party” in the regulations can only mean “individuals.” It cannot be construed to mean or to include college affiliates because such entities are neither “institutions of higher education” nor “individuals.” So FSA seems to be probing lender agreements with some entities that are not currently covered by the regulations.
The new regulations will, however, add “school-affiliated organizations” as an additional class of covered recipients and, therefore, in a matter of six months, give FSA authority in this area. The term “school-affiliated organization,” which was defined broadly by the Department, covers any organization that is directly or indirectly related to a college, regardless of whether it is within the college’s structure and control. It includes alumni organizations, foundations, athletic organizations, and social, academic, and professional organizations. But because the HEA’s anti-inducement provisions for lenders only cover payments to “institutions of higher education or individuals,” the new regulatory prohibition against payments to “school-affiliated organizations” appears to go beyond the HEA.
4. More Limitation, Suspension and Termination Proceedings
Colleges that are found in regulatory non-compliance generally receive an FPRD letter that assesses a liability against the college, or they receive a notice imposing an administrative fine. In the past, FSA initiated limitation, suspension, or termination proceedings against colleges only in the most egregious cases. FSA has never terminated a large, well-respected college from the Federal Family Education Loan (FFEL) Program, and no one thinks they will do so over this. But FSA might place limitations upon them. Smaller colleges -- particularly for-profit, career colleges -- may not be so lucky.
And while limitation, suspension and termination proceedings for lenders were extremely rare in the past, FSA will now choose to initiate them. This is so because FSA can require “corrective action,” which includes a monetary payment, only as part of a limitation or termination proceeding. As a result, lenders can expect such proceedings.
That is what colleges and lenders can expect from the department in 2008 in terms of administrative enforcement. Here is what they (indeed, every American) should demand of the department: Responsible and principled leadership.
The Department Should Enforce the Law Responsibly and in a Principled Manner
Increased accountability in the FFEL Program should be greatly welcomed by all. Every taxpayer should demand that colleges and lenders, like any other recipient of our hard-earned tax dollars, play by the rules. And colleges and lenders, themselves, should insist on accountability in the FFEL Program. Where true violations of the statutory and regulatory anti-inducement provisions are discovered, FSA should put an immediate stop to it. And where those violations are flagrant or committed with a fraudulent intent, FSA should impose the most serious administrative sanctions.
But internal pressure from the OIG and external pressure from Cuomo, the Congress or the news media to severely punish violators should not be perceived by senior department officials as “cover” for FSA to impose unnecessarily harsh penalties. Getting a “pound of flesh” by reflexively imposing large administrative fines against our nation’s colleges or by unreasonably limiting, suspending or terminating the very lenders that help put our college students through school would be counterproductive.
Instead, FSA should carefully exercise its inherent administrative enforcement discretion by thoroughly reviewing each violation on a case-by-case basis to determine whether a sanction is even needed. For example, regulations allow for informal compliance procedures to permit a lender to show that the violation has been corrected or to at least present a plan for correcting the violation and preventing its recurrence. However, if a sanction is needed, then FSA should fashion a penalty that is sufficient, but not greater than necessary, to achieve the purposes of the FFEL Program and to ensure its continued viability and integrity. Among the factors FSA should consider are the nature and circumstances of the violation and the violator’s history of regulatory non-compliance.
The coming year of administrative enforcement will make some people within the FFEL Program very anxious, but it will serve an important purpose. Colleges and lenders must be held to account for conduct that denied borrowers a true choice of lender as a result of improper payoffs. And the department, acting in the best interests of those same borrowers, should strictly enforce the laws on the books and exercise sound discretion in doing so. Administrative enforcement is not a one-size-fits-all process.
Jonathan Vogel is a former Deputy General Counsel of higher education at the U.S. Department of Education and a former federal prosecutor with the U.S. Department of Justice. He is now a partner with the law firm of Sonnenschein Nath & Rosenthal.
While seeking to make college more affordable and accessible, the Obama administration has launched a worrisome but largely unnoticed assault upon the nation’s publishers and the vibrant market in online learning. The U.S. House has approved a White House-backed provision to provide $500 million to develop free, and “freely available,” online college courses.
The administration is pushing forward with its trademark certitude; Secretary of Education Arne Duncan humbly suggested last week that the administration’s American Graduation Initiative is the 21st century counterpart to Abraham Lincoln’s Morrill Act and to the landmark post-World War II GI Bill.
Duncan is particularly enamored with the $500 million to develop the “Online Skills Laboratory,” in which the federal government will “invite” colleges, publishers and “other institutions” to create online courses for Uncle Sam in a variety of unspecified areas. The feds will then make the courses freely available and encourage institutions of higher education to offer credit for them.
The proposal is both short-sighted and destructive. It’s one thing to encourage providers to develop ”open source” wares and to promote measures that encourage publishers, colleges and universities to reduce costs and save students money. But it’s another thing entirely for the federal government to use taxpayer dollars to provide services that will undercut those offered by self-sustaining private enterprises.
First off, it’s not clear what problem the administration hopes to solve. Online courses already exist and are offered by an array of publishers and public and private institutions. Access to online courses is hardly an issue. Online enrollment grew from 1.6 million students in 2002 to 3.9 million in 2007, when the figure equaled more than 20 percent of total enrollment at all U.S. degree-granting institutions. U.S. News and World Report reports that nearly 1,000 higher education institutions provide distance learning. For-profit online providers reported that online enrollment was up more than 25 percent from summer 2008 to 2009.
More than half a dozen major textbook publishers, including Pearson, McGraw-Hill, Cengage, W.W. Norton & Co., and John Wiley & Sons, as well as hundreds of smaller providers, develop and distribute online educational content. To take one example, Pearson’s “MyMathLab” is a self-paced customizable online course that the University of Alabama uses to teach online math to more than 10,000 students a year. Janet Poley, president of the American Distance Education Consortium, says that new course development is not a “terribly high need,” and “I’d rather see more of the money go into scholarships for online learning than reinventing courses that have already been invented.”
Now, I’m as skeptical of big publishing as most, and make no claims for the quality of any particular product. But the point is that exactly the kinds of online courses and materials that Duncan and the House are calling for already exist. If Duncan’s claim is that somehow these same providers or new providers will deliver a better-quality product when hired by Uncle Sam, he needs to make that case.
Further, if there is such urgency to act, it is hard to understand why the administration wants to launch a federally directed effort to develop new materials rather than find ways to leverage those that exist.
What is it that federal dollars will buy that isn’t already available? As Tom Allen, CEO of the Association of American Publishers, has noted, “State-of-the-art, market tested and validated educational materials are already available and in use by millions of students at virtually every public and private college campus in America…. Why spend hundreds of millions of taxpayer dollars for the government to attempt to replicate products that already exist?” Sure, Allen is an interested party here, but that doesn’t make the observation any less true.
If the administration is concerned about cost, cost-cutting new providers like StraighterLine illustrate that the efficiencies created by new technologies and delivery systems are already allowing some providers to start offering dramatically cheaper instruction.
Today, the chokepoint is often not the lack of existing online courses or materials but the fact that colleges and universities offer them at prices that approximate those charged to students enrolled in more costly traditional instruction. Of course, this stickiness in price has been due to credentialing and regulatory practices that impede the emergence of low-cost entrants; state-funded institutions that use new e-learning students to cross-subsidize other units; and proprietary operators that have happily responded to this cozy arrangement by competing on convenience rather than price.
Rather than addressing the anti-competitive arrangements and cross-subsidies that have led colleges to profiteer at the expense of students, the administration is pushing to spend half a billion dollars to procure online courses that will be offered free of charge to all comers, both in the U.S. and overseas. The proposal would hide true program costs from both student and taxpayer.
This is sensible only if one assumes that federal contracting and oversight ensure better outcomes than market transactions. But this is the same administration that explains that the “public option” is desirable in health care precisely because it believes in market competition. Moreover, if experience with online education during the past decade is any guide, there is little reason to believe that colleges and universities would actually pass cost savings produced by taxpayer-funded courses on to students.
The measure also manages to raise concerns about academic freedom and stifling critical research and development.
Federal law has long buttressed academic freedom and intellectual pluralism by prohibiting the U.S. Department of Education from exercising control over “curriculum, program of instruction … text books, or other educational materials by any educational institution.” The administration would suddenly have the department funding the creation and dissemination of entire courses. Once the U.S. Department of Education is sponsoring a freely available course financed with taxpayer funds, it will be difficult for all but the most expensive or distinctive institutions or providers to justify paying for an alternative offering. For the huge swath of the curriculum represented by general and introductory courses, it is not a stretch to imagine that federally-sponsored courses would become a de facto national college curriculum.
As for R&D and market innovation, Duncan’s proposal is a profoundly short-term solution. If the federal government started freely offering large swaths of cell phone service, it would be difficult for providers to retain customers. The result would be the gradual erosion of the market place and reduced investment in new products or services. Short-term savings would be gained at the cost of gutting the sector’s ability to keep innovating and improving.
The administration and Congress might want to think twice about undercutting publishing and computer software when the copyright sector, which employs more than five million people, is already wrestling with intellectual piracy and declining print sales.
For those who think that the U.S. Department of Education can develop instructional programs and identify promising innovations and opportunities more effectively and efficiently than the messy market place, the “Online Skills Laboratory” must sound like a swell idea. For those who believe that functioning markets generally yield better outcomes than state-directed enterprises, it is a very troubling development.
Even as his administration has become the majority shareholder in General Motors, appointed a “pay czar” to oversee compensation at the nation’s major banks, and endorsed a “public option” to ensure “competition” in a health care market already populated by more than 2,000 insurers, President Obama has taken pains to explain that he is acting reluctantly and only under duress -- and that, as he told Fortune magazine last year, he continues to be the same “pro-market guy … I always have been.”
The president explained at the time, “I still believe that the business of America is business. But what I also think is that with all that power … comes some responsibilities -- to not game the system, to not oppose increased transparency in the market place, to not oppose fiscally prudent measures to balance our budget.” If the president meant what he said, it is hard to fathom why his administration is moving to undermine productive enterprises, obscure price mechanisms, and spending a half-billion dollars to replicate existing products.
If the president is a “pro-market guy,” this would be a good time to show it. Does he really want to add chief of the national “Online Skills Laboratory” to his list of burdens?
Frederick M. Hess
Frederick M. Hess is director of education policy studies at the American Enterprise Institute.
I have just begun my 47th year teaching physics at the college level, and although my entire career was spent at four year colleges, I did some part time teaching at two community colleges as well. I don't claim to be an expert, but I did learn that the community colleges have many students who are motivated, bright and far more mature than they were at an earlier attempt at college.
The institutions have other students as well. People looking for a convenient way to take a course or two, and a large contingent of individuals who are seeking a career. Seemingly, the mindset of government has settled on this group as representing the raison d'etre of the community college system and the conversation is centered around terms like training, career, Labor Department partnership and employment and earnings outcomes.
Somehow a vast enterprise that many had hoped would serve as an alternative path toward a college degree, with all the learning outcomes that the degree used to stand for, was subsumed in a process for providing jobs. The question we must ask then, particularly about community colleges, but also about many strongly career oriented colleges, is: Are we misleading our students? Are we prematurely sending them on a path to become workers instead of leaders? Craftsmen and middle level managers, but not creators, visionaries, risk takers?
Not that there is anything wrong with the former outcomes. Most of us -- even some who bear the lofty title of professor -- are really not much more than journeymen trying to do an honest and effective job. But these are outcomes that are determined by circumstances, by the economy, by fortune, by need.
They should not be goals set by a postsecondary institution, let alone by a government. The goals of a community college, like the goals of a college, should be to contribute to the transformation of the individual, to sharpen his/her thinking skills, to expose students to a wealth of ideas, and to create the lifelong learner who is an active participant in the intellectual life of society, even as s/he is engaged in a more prosaic career.
College should be sending a message of internal growth that creates the confidence to deal with a rapidly changing world, to know, to understand, to explore, and to think. Interestingly, these factors are essential ingredients in career success as well. Rare is the individual who will spend his/her career in the subject area for which s/he was originally trained. Change is everywhere, incessant and demanding. The nursing graduate who cannot continually adapt to methods, new techniques, and to new equipment is probably obsolete on the day s/he graduated. The same is true for the laboratory technician, the pharmacist, the business person, and the counselor.
Yes, we must have career preparation. People do need jobs and they need entry level skills. More, the potential for a job is a powerful motivating factor. But students must also be prepared for the challenges of change, the new demands of an evolving society, and the new environment which both limited resources and the accelerating scientific discoveries are creating.
The people teaching at community colleges and at career oriented four year schools are as fully qualified as many of the people teaching at research universities, and the fundamental reservoir of talent, of ideas, of a love of learning is as intense and as broad in a community college environment as anywhere else. There is so much more to the community college than what is appropriate for alignment with the Department of Labor, as useful as such tie-ins may be.
The intellectual discourse, and the leadership emanating from the Department of Education, should focus first and foremost on education. Our young people must continually hear the importance of learning, not for any ulterior purpose, but for itself. Just as law schools teach law, while review courses prepare lawyers, the mission of postsecondary entities should be to educate, and only as a secondary goal to prepare for careers.
Bernard Fryshman is an accreditor and a professor of physics.