Since 1965 and prior, with the passing of the Higher Education Act, post secondary education in the United States is regulated to ensure the protection of students and the transparency of institutions. The federal government supported states in each state’s jurisdiction and oversight of post secondary education. State boards and counsels were happy and proud to be regulating the very industry (post secondary education) that leads to the development of all other industries amongst adults and the work force.
State counsels and education boards each created their own set of laws and regulations for post secondary and higher education. Similarities and differences both existed (and still do) amongst the laws used to regulate higher education in each state, but one of the similarities amongst all states is that the laws and regulations were fabricated to oversee face to face education.
Development of Distance Learning
Distance learning (also known as online learning, or electronic learning) has its beginnings since the 1960s.
Distance learning started small and grew slowly. It was not on anybody’s radar. It did not call any attention.
Come the development of semiconductors, microprocessors, and nanotechnology, and distance learning grows exponentially. Online learning is seen not only as a complement to traditional face to face education, but complete degrees and programs are developed to reach student populations who would not otherwise be able to complete a post secondary certificate or degree.
Online learning is also seen as a money-making opportunity by many post secondary education colleges and universities, allowing them to expand their target market, allowing them to expand their territory.
In education, like in all other industries, there are the snakes and there are the eagles. Without highlighting any particular institution, the snakes started looking for additional territory to look for additional prey. Online education was the tool that facilitated their expansion. Students enrolled, institutions cashed in, and students were disappointed with the end result. Students complained, and states heard.
State Counsels and Boards Catch Up
After the filing of many student and consumer complaints, little by little, one by one, states started changing their regulations and laws to begin overseeing distance education. Previously, with the regulations written for face to face education, how would a state define if a college or university had physical presence within its territory? Would a state consider an institution as having physical presence if it:
- Enrolled one of its residents?
- Graduated one of its residents?
- Hosted an internship or clinical within the state’s boundaries?
- Advertised or marketed in the state?
- Hosted servers on the state’s territory?
Each state developed its own physical presence definitions, laws, processes, and procedures to oversee distance education from institutions which were foreign to the state. Even with the development of laws to regulate distance education within each state, some colleges and universities operated meeting the physical presence laws of various states, but not complying by those states rules. Some of these colleges and universities were snakes, and students and consumers continued on complaining. The federal government heard the complaints.
U.S. Department of Education Catches Up
On October 29, 2010, new Program Integrity Regulations were passed by the U.S. Department of Education, requiring all post secondary education institutions to comply with each state’s laws if an institution was operating under a state’s physical presence definitions. This included distance education. Even though these regulations were struck down by a District of Columbia Court ruling, we all know the federal regulations are coming back. Next time the Department of Education will be prepared.
Institutions are expected to be prepared as well, or they will be cracked down upon.
Costs in Complying with Each Individual State’s Regulations
Post secondary and higher education institutions are now faced with the task of ensuring they are in compliance with regulations in states where they offer distance education. This task brings high costs with it to allow for resources (money) for the following:
- Hiring of additional staff and administrators
- Familiarization of each unique state’s laws and regulations
- Completion of documents, licenses, processes, and procures
- Purchasing of bonds and insurances
- Development of additional data structures and tracking of additional data
- Development and deployment of additional consumer protection materials
Even though state reciprocity agreements are being worked on through efforts of various groups and institutions, it seems the added regulations had, have, and will have an unintended consequence: It will have a more negative effect on eagles than on snakes.
Snakes in higher education have huge budgets, allowing them to go through all the holes and loops of each state. Many eagles in higher education have budgets that do not compare with those of snakes. Some eagles will not be able to operate in some states, while the snakes will happily (and profitably) will. This means less “eagle” institutions will be an option for many residents of many states.
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