Home Business of Education Distance Education: States’ Rights and Institutional Responsibilities

Distance Education: States’ Rights and Institutional Responsibilities

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Dr. Russell Kitchner is Director of Regulatory and Governmental Relations at American Public University System.  I asked him if he would provide a guest blog article on the changing environment of state regulations of distance education programs.

Whenever I contemplate the overarching purpose for investing in higher education, I recall Thomas Carlyle’s proposition to the effect that we should “Let each become all that he was created capable of being.”  I consider this to be one of the guiding principles at the core of higher education as it has evolved in America, and given that ideal, I believe that the critical issue facing American higher education and the individual states is affordable access to quality higher education. For those of us who work toward that end, our responsibility is not to provide everyone with the same context in which to fulfill that objective; it is only to extend an equal opportunity by which everyone may do so.

The U.S. Constitution stipulates that the individual states serve as the primary arbiters of policy and governance issues in education. Consequently, each state enjoys the prerogative to establish laws and regulations that govern the operations of colleges and universities, including those engaged in distance learning. However, many of the regulations associated with distance education pre-date the Internet and were directed at so-called correspondence courses and/or educational providers from within the borders of a given state. The rapid growth of Internet-based programs has made the states aware of the need for some form of consumer protection in the face of the fraudulent activities of diploma and degree mills, such as that described in the following link: http://www.foxnews.com/story/0,2933,405786,00.html.

Internet-based learning is also viewed as having a potential impact on the investment that each of the states has made in its domestic higher education enterprise. The degree to which established, state-supported institutions are affected by students gravitating to on-line options is one of the factors that determine the attitude of state agencies toward distance education.

These issues have prompted relatively recent initiatives by state legislatures to pass legislation that empowers state education agencies to regulate distance learning that originates beyond state borders. The initiatives of the states in this regard generally (and understandably) reflect local interests rather than those of out-of-state learners and institutions. However, the effects of various regulations often extend beyond the confines of the states that enacted them. This is not to suggest that the viability of distance education is in jeopardy, but this fragmented regulatory environment has the effect of creating tensions between and among distance education providers and the various state regulatory agencies.

The response to these dynamics by educational providers ranges from indifference and deliberate deception to accommodating the literal letter of the law, irrespective of legislative intent or practical implications. Distance education institutions have operated within this range based on a variety of considerations, many of them reflective of specific strategic objectives. In the case of APUS, the leadership of the University made the conscious decision in 2006 to strive for a cordial and mutually respectful relationship with each of the states. This approach carried with it a corresponding expectation that the state regulatory agencies would themselves recognize and respect the unique character and accredited status of the University. 

The initial step in this process was to identify the resources necessary to fulfill these objectives, and to that end President Boston invited me to come on-board as a consultant, and to join with several other members of his staff in a concerted effort to secure the necessary state approvals within 18 – 36 months. Our next objective was to build a database that included all the relevant information associated with each of the states, including points of contact, websites and other key sources of information, legal/regulatory citations, and a preliminary sense of the relative complexity of the associated challenges.

We prioritized the states according to a number of considerations, most of which were based on factors such as strategic importance, status of in-state regulatory changes, and the complexity of the associated regulatory processes. In this regard, APUS recognized the fact that the regulatory landscape is in constant motion, and that there is a degree of imprecision inherent to many of the regulations upon which the states rely. This situation is sometimes indicative of outdated laws and regulations, but it also may reflect the personal interpretations that state agency personnel bring to the conversation. In those cases in which a personal interpretation seems to be at conflict with the regulations, the objective has been to negotiate a common understanding that preserves the interests of both parties. In this regard, the University has acknowledged the challenges facing agency staff, many of whom are striving to fulfill their responsibilities without benefit of up-to-date enabling legislation or administrative rules.   

In addition to our work with the individual states, we made a concerted effort to reach out to specific organizations whose mission and focus related to the regulatory environment, including the National Association of State Administrators and Supervisors of Private Schools (NASASPS), and the National Association of State Directors of Teacher Education and Certification (NASDTEC). Our affiliation with and support of these associations served to enhance our visibility and strengthen our relationships with the state agencies they represent.

During the course of the past 18 months, APUS has successfully addressed the regulatory requirements of the large majority of the 50 states and the District of Columbia, with notable exceptions being New York and Ohio whose legislation and/or administrative rules are being reviewed or revised. Discussions were begun with both states very early in the process, and we will continue to move forward with both as soon as circumstances warrant. In addition, the University continues to monitor the situation in California where a replacement has not yet been established for the agency that formally exercised some oversight prerogatives for distance learning was “sunsetted” in June of 2007. 

From the beginning, the President’s vision was for the University to be recognized and respected by each of the 50 states and over 130 countries in which it has students.  This commitment carries with it a corresponding need to monitor regulatory changes in each of these jurisdictions in order to meet the University’s regulatory responsibilities.  The initial objectives have largely been met, but APUS will continue to renew and reinforce this important dimension of institutional operations.

Wally Boston Dr. Wallace E. Boston was appointed President and Chief Executive Officer of American Public University System (APUS) and its parent company, American Public Education, Inc. (APEI) in July 2004. He joined APUS as its Executive Vice President and Chief Financial Officer in 2002. In September 2019, Dr. Boston retired as CEO of APEI and retired as APUS President in August 2020. Dr. Boston guided APUS through its successful initial accreditation with the Higher Learning Commission of the North Central Association in 2006 and ten-year reaccreditation in 2011. In November 2007, he led APEI to an initial public offering on the NASDAQ Exchange. For four years from 2009 through 2012, APEI was ranked in Forbes' Top 10 list of America's Best Small Public Companies. During his tenure as president, APUS grew to over 85,000 students, 200 degree and certificate programs, and approximately 100,000 alumni. While serving as APEI CEO and APUS President, Dr. Boston was a board member of APEI, APUS, Hondros College of Nursing, and Fidelis, Inc. Dr. Boston continues to serve as a member of the Board of Advisors of the National Institute for Learning Outcomes Assessment (NILOA) and as a member and chair of the board of New Horizons Worldwide. He has authored and co-authored papers on the topic of online post-secondary student retention, and is a frequent speaker on the impact of technology on higher education. Dr. Boston is a past Treasurer of the Board of Trustees of the McDonogh School, a private K-12 school in Baltimore. In his career prior to APEI and APUS, Dr. Boston served as either CFO, COO, or CEO of Meridian Healthcare, Manor Healthcare, Neighborcare Pharmacies, and Sun Healthcare Group. Dr. Boston is a Certified Public Accountant, Certified Management Accountant, and Chartered Global Management Accountant. He earned an A.B. degree in History from Duke University, an MBA in Marketing and Accounting from Tulane University’s Freeman School of Business Administration, and a Doctorate in Higher Education Management from the University of Pennsylvania’s Graduate School of Education. In 2008, the Board of Trustees of APUS awarded him a Doctorate in Business Administration, honoris causa, and, in April 2017, also bestowed him with the title President Emeritus. In August 2020, the Board of Trustees of APUS appointed him Trustee Emeritus. In November 2020, the Board of Trustees announced that the APUS School of Business would be renamed the Dr. Wallace E Boston School of Business in recognition of Dr. Boston's service to the university. Dr. Boston lives with his family in Austin, Texas.

Comment(2)

  1. I’m a firm believer in the advent of internet-based education and the advantages it presents to those in our increasingly mobile society. The challenges described in this article are staggering by virtue of their complexity and constant evolution. The states are attempting, in many cases, to protect their regulatory turf and consequently do not consider the needs of their citizens for affordable, accessible higher education when they attempt to write code for internet education companies. Of course, they must protect their constituents from the fraud that surely exists. However, I’m afraid Dr. Kitchner and APUS face an ongoing and increasingly complex challenge in dealing with current and future legislation and regulators as you attempt to meet the needs of your clients (and share-holders). Good luck….your company and others like it bring something valuable to the table.
    R.Huseman

  2. Thank you for your thoughtful comments Mr. Huseman. You have pointed to several of the challenges that face state regulatory agencies as they try to balance their commitment to consumer protection with their interest in expanding educational opportunity. In an effort to address the former objective, some state agencies have enacted regulations that have the effect of restricting access to legitimate on-line learning options. Such restrictions obviously do not serve the best interests of the residents of those states, and they may be in conflict with the provisions of the commerce clause of the U.S. Constitution. However, certain restrictions are considered an appropriate exercise of state sovereignty under the reserve powers clause. To my knowledge, the case law related to restrictions on distance education is not extensive, and I am quite sure that it is not yet settled ground.

    The better news is that in the great majority of states, the agencies responsible for striking the balance between consumer protection and access to educational opportunities have done an admirable job of doing so. In these cases, the agencies typically have the benefit of working with more current, relevant legislation, and coherent administrative rules that focus on accreditation standards, fiscal benchmarks, marketing protocols, and other measures of institutional integrity. To the extent that you are interested in additional information on this general topic, I would direct you to Michael Goldstein of the law firm of Dow Lohnes (you can find his bio at http://www.dlalaw.com/mgoldstein. Perhaps the best known spokespersons on matters relating to the integrity of on-line learning are John Bear (here is a link to one of his articles: http://www.degree.net/html/diploma_mills.html) and Alan Contreras. The latter is the Director of the Oregon Office of Degree Authorization (That Office can be found at the following link: http://www.osac.state.or.us/oda).

    Thank you again for your interest and comment.

    – RsK

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