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University PR offices ply the levers of new media to try to publicize the work of their researchers.

'Abelard to Apple'

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The latest book to suggest that American higher education needs to face up to a period of radical change is Abelard to Apple: The Fate of American Colleges and Universities (MIT Press). Abelard represents the medieval ideal of scholar/teacher/philosopher while Apple is the world of iTunes U. The author is Richard A. DeMillo, Distinguished Professor of Computing, professor of management and director of the Center for 21st Century Universities at Georgia Institute of Technology.

Public and Private: What's the Difference?

American colleges and universities, especially those that define themselves as public institutions because they are owned by states, carry on a continuous conversation with their faculty, students, trustees, legislators, alumni and friends about the distribution of benefits and costs between private and public entities. This conversation of many decades has gained considerable visibility lately in the form of a question: Are America’s public universities becoming private? Although this question is surely worth the extended and often highly perceptive analysis it receives, it sometimes helps to reconfigure the debate slightly to gain another perspective.  

It’s not that anyone misses the central point -- the public, tax supported percentage of public university budgets has been in decline for over a decade, even though the public investment in public higher education in total dollars continues to rise as more and more students enter postsecondary education. Rather, we often let our words define our view of the world when our words may not mean exactly what we take them to mean.  

When we say public universities, we immediately bring a prototypical institution to mind, usually a substantial state flagship university, often from a Midwestern frame of reference, perhaps modeled after Iowa or Indiana or Wisconsin. When we say private university we also have a prototype in mind, perhaps Stanford, Yale or Duke. From these prototypes we develop a conversation about the convergence of public and private that leads us to worry about the loss of public purpose and investment in American higher education.

In the real world, most of public higher education takes place in state and community colleges that remain often 80 to 90 percent funded by public sources. For these institutions, the issue of public versus private is mostly irrelevant, and while they celebrate every small gift and modest grant, their primary focus is on their states and localities in the endless effort to sustain their operations. They are not at risk of becoming private.

Similarly, in the real world, the notion of private universities being somehow separate and independent from the obligations of public institutions by virtue of their funding sources is also not entirely accurate. Private universities, even those with exceptional endowments, exist to large extent on the public’s account. Their endowments succeed by virtue of public tax exemptions. The gifts that build the endowment enjoy a public tax exemption. The property and campuses of these private universities enjoy a public tax exemption. The federal government provides extensive tax supported need based financial aid to private institutions, revenue that subsidizes those institutions’ tuition and fess.  

Private research universities, like their public counterparts, receive federal grants and contracts whose overhead pays some portion of the research costs, a direct taxpayer subsidy. Private universities in many states receive a per-student subsidy for every in-state student they enroll, again a public subsidy. And on occasion, private universities succeed in persuading their states to invest in economic development activities that support the academic objectives of the private institution (either by subsidizing research or helping defray the costs of facilities).  

America’s private institutions are a public trust. While they can evade many of the considerable bureaucratic and regulatory costs and obligations that public universities endure, they are nonetheless, publicly subsidized institutions with private governance.

This is not a bad thing. It is just how we do business in America.  

However, higher education itself (public or private as defined by institutional governance) is both a public good and a private good for most of its participants. Students in particular may attend college for wisdom and knowledge, but primarily they attend college to acquire the skills and credentials needed for the good life. Publication after publication calculates and compares the differential lifetime earnings of college graduates compared to high school graduates, demonstrating over and over again the exceptionally high personal, private value that a college education confers. The private benefit justifies tuition and fees, the lost income for the years of college attendance, and the loan indebtedness incurred by students and their families. The data tell us that these private benefits more than sufficiently compensate for the costs parents and students assume, a conclusion the behavior of students and parents verifies.

What’s the argument about then? If this is such a good deal, why do we have a controversy about the withdrawal of public support from public institutions? The controversy is less about the withdrawal of support than it is about the amount of subsidy individuals should receive as they acquire the private benefit of a college education. The consequence of a decline in the taxpayer subsidy of public higher education is an increase in the net cost of higher education to students. This increase in the net cost has many consequences, of course. As an example, for students whose families are at the margin of the American economic dream, any increase in the net cost may well put some forms of higher education, but usually not all forms, out of reach.  

The changing emphasis away from the general benefit colleges and universities bring society to the particular benefit that they bring individuals encourages a tendency toward complex pricing. For selective institutions, as everyone knows, the sticker price of higher education (whether at a “public” or “private” institution) reflects what we could call a reference price. This is not the actual price charged every student; instead, a reference price marks the highest price a student should have to pay to acquire the private benefit of attending the institution. To arrive at the real price, the institution and the student engage in a private negotiation to set the net actual price based on an evaluation of what the institution can give the individual student and what the individual student can give the institution. This is not a public transaction that applies to all students; it is a private transaction that negotiates a private price between suppliers (the school) and individual consumers (the student).

Although this transactional model is well known to students and parents, it reflects a larger tendency in the American political and social environment to disaggregate a general public good (such as a university enterprise) into a collection of private goods (such as specific college degrees, different majors, or special programs) and then negotiate separate agreements and pricing mechanisms for the production and delivery of these private goods.

Many public and private universities find it easier to persuade legislators to buy particular fragments of the institution’s purposes than it is to acquire general funding for the overall purpose of the institution. We can get an earmark for an honors program, for a remedial program for students from disadvantaged backgrounds, for enhancement of science and math, for the improvement of writing skills, or for a research building tied to a specific economic development objective long before we can get an increase in the general fund to support general education and research for all students and faculty.

This particularistic approach to higher education affects public and private institutions in other areas of funding as well. When either type of institution asks a donor for institutional support, more and more donors want very specific agreements about the exact use of their funds, even if the funds are placed in an endowment that will last forever. They do not give money for the improvement of education; they give funds for art history, for the development of specific scientific sub-disciplines, or for the recruitment of basketball players. These transactions, like the student transactions, are individual, private, and specific.

We can speculate on the many reasons why our society has drifted into seeing higher education as a retail consumer product (whether owned by the public or by a private nonprofit corporation). We can worry about the lack of faith in the institutions’ integrity and consistency of purpose that encourages specific and detailed transactions rather than satisfaction with general commitments. We can feel outrage at the retreat from supporting higher education because it is good for the nation into a safe haven that sees higher education as a privately acquired ticket to prosperity. Yet every institution, public or private, finds itself accelerating these trends by its policies and practices.

I’m often reminded of an effort some years ago by a distinguished association of public and private research institutions to band together and refuse to participate in such retail negotiations, associated in this instance with federal earmarks. The academic leadership at that time employed remarkable eloquence in the defense of common approaches to peer reviewed grant making as being the best possible means of achieving the public good of merit based award of scientific and other educational support. After the meeting, the institutions appeared to increase their practice of securing as many earmarks in the federal budget as possible, employed high powered lobbyists to improve their chances, and kept score on how much money their local legislators helped them bring home.  

All of us in American higher education, especially at the high end of America’s 170 or so research institutions, are in the public and private sectors. We all seek public funds and private funds, we all deal with our students on the basis of selling a publicly subsidized product at individually negotiated prices, we all show great creativity in disaggregating our products and services into the smallest retail units needed for sale to our many private purchasers. We might prefer a different system, but this one, for all its faults, is the one we’ve helped invent and continue to refine.

Author/s: 
John V. Lombardi
Author's email: 
lombardi@umass.edu

Protect Your Patent Portfolio

Higher education recognizes patents as indicators of advanced research and innovation and as sources of significant revenue. Today, patents are facing a serious threat from lawmakers on Capitol Hill. The Patent Reform Act of 2007, passed by the U.S. House of Representatives last September and currently under consideration in the U.S. Senate, would raise the costs to obtain a patent, create new uncertainty as to the validity of patents, and place new limits on the damages that may be awarded to patent owners when their patents are infringed. These provisions could have significant adverse consequences for current and future patents and patent applications from higher education institutions.

Why should anyone but lawyers and technology transfer managers care about a seemingly obscure patent bill? Because raising the costs to obtain a patent will force institutions to either increase their cash outlays for patent prosecution or reduce the number of patent applications they file. More research that might have led to revenue streams for universities and inventors will be left unpatented -- simply given away by publication of the research. Reduced revenue inevitably leads to reduced funds available for future research. Fewer startup companies based on such research will exist because it is more difficult to obtain venture capital funding when the underlying research is not protected by patents. Repercussions will be felt by both inventors and administrators.

The bill as currently drafted has provisions that would ultimately improve patent quality by creating a new post-grant opposition period, reduce litigations brought in locations far from the homes of either party, and facilitate research collaborations, all of which are supported by a number of higher education associations, including the Association of American Universities, the American Council on Education, the National Association of State Universities and Land-Grant Colleges, the Association of American Medical Colleges and the Council on Governmental Relations. Despite the potential positive effect of parts of the bill, the overall impact of the legislation, as currently drafted, would be detrimental to colleges and universities.

The five associations noted above -- all representing university interests in patent reform -- have expressed their views to Congress via both formal testimony and numerous other communications. However, a non-university group, the Coalition for Patent Fairness, has circulated documents purporting to present the views of universities while seriously misrepresenting those views. To help maintain the patent system as a successful engine for innovation, college administrators and researchers need to make their own views on the bill clear to their Congressional representatives.

Higher education institutions should be particularly worried by four provisions of the legislation as currently drafted: those with respect to the determination of damages, mandatory prior art searches, a post-grant “second window” in which to challenge a patent, and the diversion of fees away from the patent office. These provisions will reduce the certainty and value of existing and future patents and will cast doubt on the ability of patent holders to receive proper protection for their inventions. This will undermine the ability of universities to bring their innovations to market and into public use.

Damages. The damages language in the current bill would restrict the ability of courts to apply all of the relevant factors and methods to calculate a proper damages award. Under current law, courts can consider almost any relevant factor under a variety of methods to determine the value of the invention and what damages should be paid to the patentee for infringement. The proposed bill would tell courts what factors to consider under particular circumstances. Despite the occasional headline-making award, courts are quite good at looking at the relevant factors and arriving at a proper damage award. If Congress mandates what factors to consider and what not to consider, courts will be forced to try to categorize inventions and make whatever shape peg is the invention fit into the particular-shaped hole created by the bill. This will result in years of uncertainty and unjustified damage awards as the new law evolves. The cost of such a new law will not only be in unjustified damage awards, but also in increased litigation costs as plaintiffs and defendants demand longer trials to argue about damages and also more appeals on damages issues. This provision will make it difficult for universities to get appropriate compensation when an infringement occurs and will also create tremendous uncertainty as to the value of a patent, thus making patents less valuable overall. Simply stated, the more uncertainty there is as to the value of a patent, the more difficult it is to license the patent and the less revenue a university or inventor will receive for a patent license.

To best represent the interests of colleges and universities nationwide, the damages portion of the Act should be changed so that damages are determined through a case-by-case analysis using appropriate economic factors and valuation methods rather than the restrictive valuation process the bill would impose. Such a change would go a long way toward preserving the economic interests of universities and encouraging further innovation by deterring infringement.

Mandatory search reports. The second problematic provision mandates that patent applicants undertake the expense of prior art searches and submit a search report and relevancy analysis to the patent office (so-called “applicant quality submissions”). While patent applicants are already required to submit prior art known to them, this provision will require an extensive and expensive search by applicants and a report explaining the submitted prior art, thus shifting the costs of such a search from the federal government to the applicants. This burdensome and costly exercise will likely lead to increased charges of inequitable conduct for failure to conduct sufficiently thorough prior art searches and for mischaracterizing the prior art in the relevancy analysis. This will further increase the length and cost of patent trials. By mandating such a search, the Act will make the patent application process even more complicated, more expensive and cause particular harm to non-profit and academic inventors.

Second window oppositions. The third troubling section of the Act relates to the open-ended post-grant review “second window.” The Act calls for a “first window” for post-grant review that allows patent challenges at the patent office within the first 12 months after the patent issues. (This is similar to the European system that provides for such challenges, but during a 9 month window.) However, the Act would also create a “second window” in which to challenge issued patents. This second window will have a detrimental effect on the certainty and value of patents. The second window makes patents susceptible to such challenges throughout the life of the patent, allowing different challengers to file serial challenges that could keep a patent under challenge for many years of its life, thus creating a disincentive for partner companies to license university technologies. It is in the best interest of universities that inter partes reexamination, allowed by the House bill but not by the Senate bill, be available instead of the more costly second window.

Fee diversion. Finally, one of the more troubling aspects of the House bill is the lack of a provision to prevent the diversion of fees collected by the patent office. (The Senate bill includes an anti-fee diversion provision.) Perhaps the single most important factor in improving patent quality is to improve the quality of patent application examination. For many years, the fees collected by the patent office have been diverted to the general treasury. For the past few years, Congress has chosen not to divert fees. However, to build and maintain a sufficiently large and highly qualified pool of experienced examiners, the patent office needs to be assured of consistent funding and not be at the whim of other federal budget requirements from year to year. Anti-fee diversion language should be included in any patent reform bill.

Currently, the full Senate is poised to consider the bill and over a dozen amendments that were proposed last month. But neither the bill nor the amendments remedy the fundamental flaws discussed above.

Lobbying is intense on both sides of the bill and a vote will likely come in the next few weeks. College officials should work to be sure the bill represents the interests of higher education.

Author/s: 
Sheldon E. Steinbach and Bruce T. Wieder
Author's email: 
newsroom@insidehighered.com

Sheldon E. Steinbach is a partner in the postsecondary education practice at Dow Lohnes PLLC, a law firm that specializes in postsecondary education, intellectual property, communications and information technology. The former general counsel for the American Council on Education, he has been practicing higher education law for more than 35 years. Bruce Wieder is a partner at Dow Lohnes, specializing in patent law. A former engineer, he is an adjunct professor at Georgetown University Law Center and is registered to practice before the U.S. Patent and Trademark Office.

Saving Public Higher Ed

Our nation’s system of public higher education is in crisis. Unprecedented funding cuts give us several reasons to be concerned: First, about 70 percent of American college students attend public colleges and universities, which means more than 12 million students may be directly affected. Second, many public institutions produce a wealth of valuable research that serves as an engine for both regional and national economic growth.

Less well known is that the crisis in the publics has the potential to undermine the high quality of American higher education as a whole. While state budget cuts may appear to be aimed at the publics, we will all be poorer if our renowned system is allowed to falter. As a result, everyone in the academy -- even those of us in private institutions -- should be thinking of ways to revitalize public higher education.

While there is talk in academic circles of various reforms, two specific changes would go a long way toward helping public institutions strengthen their positions: revamping public university governance, and establishing a progressive tuition structure.

A diversified model

Anyone who spends time outside the U.S. knows that American higher education remains the envy of the world. One of the characteristics that distinguishes our system from others is that the U.S. does not have a centralized approach to higher education. There is no government minister who provides a uniform curriculum or one national research agenda.

The American system is decentralized, which allows for a diversity of approaches and a significant amount of experimentation and innovation. It also fosters healthy competition. Small schools compete with large schools; publics compete with privates; comprehensive universities compete with liberal arts colleges. And there is spirited competition within these groups.

The result is an educational richness not found in other parts of the world. Some liberal arts programs specialize in teaching great books, while others excel in music and the arts. Other institutions become known for their scientific or technical degrees. There are different learning models as well, ranging from traditional classroom education to experiential learning, which involves the integration of classroom study and real-world experience.

There is no one-size-fits-all -- our students are free to choose from a wide range of educational models best suited to their learning styles and future aspirations.

The same dynamic is present in research. Although federal support for university research is a key component -- and there are certainly government research priorities -- there is ample room for faculty- and institution-driven initiatives. Myriad government and private funding sources provide support for a range of different priorities and possibilities. Some institutions are powerhouses in energy or life sciences, while others focus research efforts on economics, agriculture or urban issues.

A threat to our leadership position

Like most competitive models, the American approach to higher education works best when there is a degree of equilibrium within the system -- robust peer groups that force creativity and innovation. When a substantial sector of the group is weakened, disequilibrium is introduced, which threatens the competitive dynamic.

This is what we’re seeing today as the nation’s public institutions struggle financially. Nearly 40 percent of the nation’s colleges and universities are public institutions -- a substantial share of the overall system.

It is certainly true that private institutions have not been immune from the current downturn. We’re all aware that endowments have plummeted, fundraising is flat, and demand for financial aid has increased, putting additional pressure on strained budgets. But the public crisis appears to be both broader and deeper, with the potential to be with us for years to come.

The state of California provides the starkest example. This year, $800 million in funding cuts have forced furloughs of faculty and staff in both the UC and Cal State systems. This means that classes will become even more crowded and faculty members -- already stretched thin -- will have less time to work closely with students.

There will also be an increase in the number of students turned away. The UC system alone (not including Cal State schools or community colleges) is planning to reduce freshman enrollment by 6 percent. In a system of 220,000 students this amounts to more than 13,000 people who will be denied access.

The pain is by no means limited to California. Across the country -- from Michigan to Wisconsin to Virginia -- states are facing revenue shortfalls and making significant cuts to higher education. Even $825 million in federal stimulus -- the portion targeted for all of higher education -- is not enough to offset the extensive cuts made by state governments.

The timing could not be worse. President Obama has underscored what those of us in higher education know to be true: the nation’s economic prosperity is dependent on our system of higher education. The president has noted that jobs requiring a college degree are growing at twice the rate of jobs that require no higher education.

It is the quality of the American system that will develop the human capital needed for our economy to recover and prosper over the long term.

Opportunities for change

Of course, with every crisis comes opportunity. The current situation can pave the way for public higher education to gain some much-needed flexibility and autonomy. By unshackling these systems from some state-mandated controls, they can be revitalized and continue to play an essential role in ensuring the success of American higher education.

We will see a range of innovations such as three-year degree programs, the concept of “cyber campuses,” and more nonresidential education. Each has the potential to reduce costs or generate revenue -- or both.

More fundamental changes will be needed. Two in particular will give public institutions greater control over their own destinies. The first will be effective in the short term, while the second will empower public institutions to introduce and support long-term innovations:

  1. Progressive tuition: We are seeing many public systems raise fees as one way to shore up their finances. But this regressive approach runs the risk of reducing access for those already struggling to pay for college. Another option would be for publics to raise tuition, while providing more need-based financial aid. By pledging that students from families earning under a certain amount -- say $100,000 -- can attend at no cost (and those above a certain threshold would pay on a sliding scale) public colleges can generate valuable revenue, while maintaining the all-important mission of access.
  2. Reform governance: Board members at public institutions are primarily political appointees. While most are knowledgeable and dedicated, the political process by which they are appointed often results in a divergence of views and priorities. Allowing presidents, chancellors, and existing board members to appoint trustees -- standard practice at most private colleges and universities -- would strengthen the ability of public boards to play a strategic role in guiding their institutions.

More than ever, the country needs higher education to do what it does best: develop human and intellectual capital, and be the engine of progress for the nation. The future of American higher education -- and indeed the nation -- will depend on our ability to maintain a vibrant, diverse and competitive model of higher learning.

Both private and public institutions are critical in this endeavor and must be empowered to succeed.

Author/s: 
Joseph E. Aoun
Author's email: 
newsroom@insidehighered.com

Joseph E. Aoun is president of Northeastern University.

Sudden Departure at Cornell

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President quits, citing disagreements with trustees and setting off speculation about why he would leave after 2 years in office.

NYU Rejects UAW

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The only private university ever to accept a TA union plans to stop collective bargaining with graduate students.

Chicano Ph.D. Pipeline

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To encourage more doctorates, report suggests that the first place to look may be community colleges.

Fired Up at NYU

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President faces a crowd of professors and graduate students angry over university's plan to end its TA union.

Lost Dominance in Ph.D. Production

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A new study explores just how far the United States has fallen in educating scientists and engineers.

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