Distance Education: States’ Rights and Institutional Responsibilities
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.