House Votes to Repeal State Authorization (and Reciprocity Update)

Just when I was thinking that it was time for an update on state authorization regulations, the U.S. House of Representatives schedules a vote on the subject.  Wow!  Were they ever accommodating!

What are next steps? What is the impact on state regulations? Why am I so out-of-step with the higher education community?  What are solutions? Let’s examine these questions.

H.R. 2117 Passes the House

Rep. Virginia Foxx (R-NC) introduced H.R.2117 (the Protecting Academic Freedom in Higher Education Act) last year.  The bill targets the “state authorization” and “definition of the credit hour” regulations implemented by the U.S. Department of Education in October 2010.  If the bill is signed into law, the “regulations (including any supplement or revision to such regulations) are repealed and shall have no legal effect.”

The debate focused on the familiar themes.  One side saw the regulations as an overreach by the federal government into academic affairs and state autonomy.  The other side pressed the need to maintain accountability for the use of federal financial aid dollars.

Only one of five amendments was successful in being adopted.  Rep. Foxx amended her own bill to end the definition of “contact hours” as part of the definition of “credit hours.”

Photo of the feet of an adult showing a young child ballet steps

I’ve never been a dancer, but I’m finding that I’m out-of-step with the higher education establishment on state authorization.

The bill passed on a 303 – 114 vote with 69 Democrats crossing the aisle to join the Republicans in support.

The next stop is the Senate, which already has companion bill S. 1297 that was introduced in June of last year.  That bill has already been assigned to Sen. Harkin’s HELP (Health, Education, Labor, & Pensions) Committee. Despite the HELP Committee having held several hearings since last summer, that bill has not seen the light of day.  Given Sen. Harkin’s penchant for more oversight of financial aid dollars, it will probably find tough sledding in the Committee and in finding the 60 votes necessary to overcome a Senate filibuster.

But, This Has No Impact on State Regulations.  Right?

I still have a problem with the state authorization part of this action.  Perhaps the credit hour regulation needed to be tossed, but the arguments against authorization ring hollow to me.

In past blog posts, both guest bloggers and I have repeatedly said that each individual state’s regulations predated the federal regulation and they will remain even if the federal regulation is repealed.

On Being Out-of-Step with Higher Education Organizations

Obviously, I’m out-of-step with the higher education powers-that-be as ACE, CHEA, and dozens of other higher education organizations came out in support of this legislation.  Their comments reflected those found on the House’s Education & the Workforce Committee’s website:

“The state authorization regulation forces states to follow federal requirements when deciding whether to grant a college or university permission to operate within the state. This one-size-fits-all requirement piles unnecessary costs on states, colleges, and students, and could pave the way for future overreach into higher education.”

Except that the federal state authorization regulation required that institutions follow the state laws of each state, which is hardly a “one-size-fits-all requirement.”  ACE, CHEA, and the other higher education organizations focused on the burden on institutions, which are considerable, and exaggerated the relief that would be realized if this bill passed.  Their focus on institutions is understandable, but I wish the House members would have offered a credible alternative instead of a straight repeal.

During the debate, Rep. Austria from Ohio stated how this legislation would save Central Christian University from having to seek approval in 15 states.  The only way that happens is by not following the existing laws in each state.  I don’t see how the Representative, ACE, CHEA, and others can hold any credibility in talking about quality in higher education, if we’re asking distance education providers to ignore state laws.  If that’s the case, I’m happy to be out-of-step.

Am I saying that we should maintain the current, burdensome, confusing, and costly morass of regulations?  Absolutely not!  Real solutions take work and reciprocity is a real solution.

Reciprocity is the Way to Go

Last week, I was at meetings of the Advisory Committee and Drafting Team of the reciprocity project being run by the Presidents’ Forum of Excelsior College and the Council of State Governments.  The Advisory Committee gave great input on an initial draft of a reciprocal agreement.  The Drafting Team is working on incorporating suggested changes before sharing another draft with the Advisory Committee.

Meanwhile, WICHE and the other regional higher education compacts (SREB, NEBHE, and MHEC) are considering what their roles should be in promoting interstate reciprocity.   We’re working on getting everyone to work together on reciprocity plans.

The current goal of the Presidents’ Forum is to have a draft available for public comment by the end of April.  After that, the agreement needs to be finalized, states need to be recruited, and most states will require legislation to change their laws so that they can participate in reciprocity.  This means that state legislative action will probably take place in 2013 or beyond.  The first relief that any institution will enjoy from reciprocity probably won’t come until the summer of 2013…and only if your state has joined the agreement.

This work is tough.  This work takes time.

We’re working on real solutions.  I hope that distractions, like H.R. 2117, don’t keep us from meeting the sometimes competing needs of maintaining consumer protection and reducing regulatory burdens.

WCET State Authorization Update Webcast

On March 14, WCET is hosting a state authorization webcast for its members.  Registration information will be available soon.  The session will include updates on the federal regulation, the APSCU lawsuit, state regulations, reciprocity agreements, what institutions are doing, and other related issues.  We will also have ample time to address participant’s questions.

Happy Leap Day!

Russ

Russ Poulin
Deputy Director, Research & Analysis
WCET – WICHE Cooperative for Educational Technologies
rpoulin@wiche.edu

Support our work.  Join WCET.

Photo credit: Morgue file – http://morguefile.com/archive/display/540927

6 Comments

  1. Jim Mazoue'
    Posted March 5, 2012 at 9:30 am | Permalink | Reply

    There’s an interesting comment in the State of Maine SHEEO State Authorization Inventory under Section 4a: Authorization of Distance Education. According to the Maine State Board of Education an authorization requirement without regard to physical presence “would be unconstitutional on two levels: 1) interference with inter-state commerce; 2) policing beyond state borders.”
    Has the constitutionality of state regulation of DL been legally vetted? Is this a settled
    issue? Apparently the MSBOE thinks not. Apologies if this has already been addressed.

  2. Barbara Zirkin
    Posted February 29, 2012 at 8:40 am | Permalink | Reply

    Russ is correct about the need for institutions to comply with state regs. We still have to do it. What repeal might do is to deny the feds the ability to hold Title IV monies hostage for non-compliance by investigating institutions’ compliance documentation. But hooray for the potential demise of the credit hours regs!

  3. georgeww
    Posted February 29, 2012 at 8:18 am | Permalink | Reply

    Regarding reciprocity – the last I heard in the SREB region, not all states were willing to go along with the idea. This could lead to even more confusion.

    • Posted February 29, 2012 at 8:27 am | Permalink | Reply

      It’s clear that not all states will join a reciprocity agreement right away and some might never join. As more states join, we hope that pressure will come to bear on those that don’t join. Still, I’d rather have an agreement that covers 20, 30, 40 states, rather than trying to navigate the regs for 50 states.
      Russ

  4. Posted February 29, 2012 at 8:04 am | Permalink | Reply

    This has the appearance of a ‘big win’ and I’m concerned that those institutions who were waiting for this to go away will read this action as worth the risk of waiting.

    It seems as though the desire to keep the federal government out of the state’s business has a secondary message that will also keep us out of the state’s exisiting authority.

    And what happens when the Federal Financial Aid piece is brought back into the mix?

    Robert Larson
    NDUS

  5. Greg Ferenbach
    Posted February 29, 2012 at 8:04 am | Permalink | Reply

    Russ is correct that there is a lot of bad information out there about the potential legal impact of this bill on state authorization, which is essentially nil, as in zero. This bill is not going anywhere in the Senate, and underlying state laws are, in fact, the real issue. What is going on here is purely political–a howl of protest and a marker as to reauthorization battles to come.

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