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Guest Post: Hysteria over the Ed Dept’s State Authorization Rule Is Misplaced

Published:  March 15, 2011

[Editor’s Note: Recently college lobbyists and leaders have begun raising a furor over a regulation that the U.S. Department of Education finalized in November that would require many states to strengthen their oversight over colleges, particularly for-profit ones. Earlier this month, the American Council on Education sent a letter to Education Secretary Arne Duncan, urging him to rescind the rule, which it argued could threaten the independence of the nation’s private colleges. Last week, Rep. Virginia Foxx, the North Carolina Republican who leads the House subcommittee in charge of higher education policy, took up this call in a hearing she held entitled “Education Regulations: Federal Overreach into Academic Affairs.” But Alan Contreras, the out-going chief of the Oregon Office of Degree Authorization, has a different view. Today at Higher Ed Watch, this leading expert on state higher education regulation explains why these concerns are overblown.]

By Alan Contreras

Now that almost every organization with the word “education” in its name has decided that the U.S. Department of Education should ditch its new “state authorization” requirement, perhaps it is time to look at just how colleges will be freed from oversight if this rule is killed off. The answer is simple: they won’t. The state authorization requirement is just that -- a state requirement that already exists, not a federal law. The rule didn’t create it, but merely called attention to it -- which is a good thing.

It has become an axiom of chatter regarding oversight of distance-education programs that when this wicked extrusion from the federal octopus is cut off at its roots, the sun will again rise on a blissful array of colleges all doing things exactly the way they were before the federal government shone a light into this less-than-visible corner of postsecondary oversight. This is complete nonsense for several reasons.

First, state laws have not changed during this exercise in federal paperwork roiling. States that regulate the offering of online courses and degrees still do, and those that don’t still don’t.  Most states are somewhere in between, ignoring “pure” online programs and regulating anything that involves descent from the realm of purely online activity by any appendage that happens to touch state soil.

Also, many states had no idea how many colleges were not abiding by their laws. Now they know, or have a much better idea. In Oregon, we have received almost seventy contacts from colleges concerned that they may not be abiding by state rules. Most of these we had never heard from before. Some of them were in compliance with Oregon law. Others were not.

And after all, there is no such thing as a private right to issue degrees -- to educate, sure, but not to issue degrees. That role is the sole province of colleges licensed to do so by governments. This is settled law: even religious schools have no First Amendment right to issue degrees; they can only do so with government approval.

Some of the biggest institutional shocks from the state authorization rule have come not at the large for-profit chains -- they have operated interstate for years and have well-developed professional staff operations accustomed to sorting through fifty sets of statutes and regulations. The most serious cases of SweatCon 3 have been at public universities, many of which didn’t have the slightest clue that they needed permission to offer courses and programs in states other than their own.

Not only had many of these institutions never looked into the issue, but they didn’t even know there was an issue to look into. It never occurred to them to contact other states’ postsecondary licensure offices because in many cases they had never worked with that office in their home states. They may not even have known that an office of this nature exists.

These schools have now awakened to find forty-nine wide-awake horses in their beds and no farriers on staff. They have no idea what to do or who to talk to. One public institution called me, appalled that it might have to contact multiple states. Get over it -- you operate in multiple states, don’t you? Welcome to the Internet Age!

One of the better ideas for resolving the underlying issue is to develop interstate reciprocity agreements based on certain minimum standards. Not all states could meet those standards, but many would. Fortunately, the Lumina Foundation has funded a project to develop just such standards, working with the Council of State Governments, the Presidents' Forum (an organization of distance-education providers) and other interested parties. With luck, this effort, if not hijacked by organizations with other agendas, will produce a workable network and much simpler approval processes. The only serious alternative -- waiting for the feds to give it another try -- is not very appealing to anyone.

I say “serious” alternative because many un-serious interested parties have said, loudly if not quite firmly, that states and the  feds alike should simply rely on accreditors to do all of the qualitative oversight and enforcement activity needed to ensure that a college based in, say, Ohio will have a wonderful operation in Colorado. This is perfectly silly, as accreditors have only a minimal ability to ensure -- let alone monitor -- quality, and none of them have a significant ongoing enforcement capacity. Yes, it is true that some accreditors, notably WASC Junior and SACS, occasionally rear up and do some smiting, but most don’t, can’t, and would shrivel like a dehydrating fuchsia rather than tell a school to clean up its act. Enforcement is a government function, period.

So what is next for the Big Bad Federal Rule that says that colleges have to abide by state law? I suspect that it will be asphyxiated by the mounds of political wet blankets being heaved onto it week after week. That is too bad, because the rule is basically sound and the standard it sets is proper and desirable.

But the net effect of snuffing the rule? Not much. That genie is out of the bottle and the states will do their duty, as required by law. State law.

Alan Contreras has served as chief of the Oregon Office of Degree Authorization since 1999, a position he will be retiring from at the end of the month. He also serves on the working group for the Council of State Governments' reciprocity project. His paper, The Legal Basis for Degree-granting Authority in the United States, is available online from the State Higher Education Executive Officers. He has also been a frequent contributor to The Chronicle of Higher Education, Inside Higher Ed, and International Higher Education. His views are his own and do not necessarily reflect those of the New America Foundation.

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