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State Authorization Regulations Overturned

As reported by a number of outlets (see today’s Inside Higher Education article for example), a federal district court overturned the U.S. Department of Education’s (ED’s) recently imposed state authorization regulations in relation to online/distance learning programs.

While leaving the other aspects of the new “program integrity” regulations for federal financial aid programs in place, the court found that ED had not appropriately followed its rule-making process when it extended the state authorization regulations it originally proposed in June 2010 to online/distance learning in the final regulations it published in October 2010. Essentially, the court ruled that the extension of the proposed regulations in this fashion could not have been anticipated by the public, and therefore the department’s action did not allow for the appropriate level of public comment its rule-making process requires.

ED is currently assessing its options in relation to the court’s ruling, which could include appealing the ruling or restarting the rule-making process in relation to this aspect of the regulations. As many members of the higher education community have noted, the elimination of the regulations, whether temporary or permanent, does not alter the need for institutions to know and follow the laws of the states in which they operate. However, as has also been noted, state regulators for this issue in many if not most states are seriously under-resourced and ill-equipped to evaluate and address their states’ enforcement requirements in relation to the current online learning environment. Moreover, many of those enforcement requirements do not envision, much less address effectively, the online learning context we face today. In my opinion, the best outcome from this ruling may be that it will allow for a more collaborative, systemic approach for managing this issue to take place, hopefully incorporating the joint efforts of higher education associations and institutions already underway.

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