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Education Dive
New rules limit states' oversight of online colleges. How will they react?
The Education Department's state authorization regulations for distance
education could curb states' options as consumer advocates when
overseeing out-of-state institutions.
Lorelei Laird
Jan. 30, 2020
State attorneys general were left out when the U.S. Department of
Education rewrote its state authorization rules for distance education.
The department "didn't feel attorneys general had a strong role to play
in the potential regulations compared with other groups overseeing
colleges," a spokesperson told Bloomberg early last year.
But the end result, announced Nov. 1, will certainly affect attorneys
general, because it reduces their ability to regulate distance
education. The new rules expressly forbid states from enforcing laws
that go beyond the requirements of any interstate agreement they belong
to that authorizes out-of-state institutions to offer distance
education in their state. Because every state but California is part of
such an agreement, most state laws on distance learning will be void
when the rules go into effect July 1.
"It does set up a situation where colleges can go to states with fewer
protections," said Clare McCann, deputy director for federal higher
education policy at the left-leaning think tank New America.
Currently, the only national reciprocity agreement between states on
distance learning authorization is called SARA (State Authorization
Reciprocity Agreement). It permits institutions that offer distance or
online education to operate in every participating state, as long as
those states' legislatures have authorized a state agency to enter the
agreement.
Previously, Obama-era regulations defined "state authorization
reciprocity agreement" to specify that participating states could
enforce their own laws, "whether general or specifically directed at
all or a subgroup of educational institutions." But a provision of the
new rules revises that language to say only that participating states
may enforce their own "general-purpose State laws and regulations."
Thus, the new definition renders state laws specific to distance
education unenforceable.
When announcing the final rule, the department said it was persuaded by
public comments that the old language was unclear. Russ Poulin,
executive director of the WICHE Cooperative for Educational
Technologies, said the 2016 language was confusing because permitting
states to enforce their distance education laws seemed to undermine the
goals of a reciprocity agreement.
"If everybody has the same rules and does things differently, then …
it's not really reciprocity," he told Education Dive in an interview.
Nicholas Kent, senior vice president of policy and research at trade group Career Education Colleges and Universities, agreed.
"What the department is saying here is, 'Listen, if you are a state,
and if you choose to enter into a voluntary reciprocity agreement, that
should mean something,'" he said.
In an informal letter in early 2017, Ted Mitchell, who at the time was
the outgoing undersecretary of education, tried to clarify the Obama
administration's definition. He wrote that states themselves must meet
the terms of a state authorization reciprocity agreement in order to
participate in it. In Poulin's view, this says the same thing as the
Trump administration's final rule does — meaning there has effectively
been no change in states' rights.
The state of California appears to disagree.
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