Are These New Rules The Canary In The Coal Mine For Distance Learning?

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At the start of the pandemic, the U.S. Department of Education quickly enacted emergency regulations allowing students to continue with their education online...
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At the start of the pandemic, the U.S. Department of Education quickly enacted emergency regulations allowing students to continue with their education online—a revolutionary development that provided a lifeline to institutions and students alike. Schools around the country seized the opportunity, pivoting to online asynchronous programs even for hands-on occupations like nursing, HVAC, plumbing, electrical, cosmetology, barbering, and esthetics that some believed could never be taught remotely.

The benefits were immediately apparent. Even the Department proclaimed that expanded online education increased access, flexibility and cost savings for students, including "millions of Americans who, as a result of their work schedule, family responsibilities, transportation limitations or military deployments cannot enroll in or complete postsecondary education offered in the traditional campus setting." Without this flexibility, no doubt the critical worker shortage of the past several years would have been far worse.

Now, not even three years later, the Department is on course to roll back online learning opportunities, launching efforts to curtail the growth of distance education and reduce the current availability of these offerings. While these initial efforts may seem limited, they foreshadow a broader attack on online learning—one that will likely follow a familiar DOE strategy.

The Department's online learning restrictions

The rollback started with the Department's ill-fated February 2023 Dear Colleague Letter that sought to expand the definition of third-party servicers to include online program managers, signaling a shift in online learning policy. While the Department quickly rescinded the initial guidance and temporarily tabled the issue, it has already led to a decline in online education offerings.

The most telling change came during the recently negotiated rulemaking for higher education, which will soon be finalized. The proposed rules look to limit the availability of distance learning only for students in programs taught in clock hours, impacting hands-on and trade occupations that successfully transitioned to online learning during the pandemic. This seems like a relatively harmless change without much consequence; after all, aren't those occupations best learned through hands-on instruction?

Not quite. While much of the learning in these programs is best done in person, significant parts of these programs require lecture-style instruction. In nursing programs, for example, academic subjects such as anatomy, mathematics, pharmacology, nutrition, and more can be taught remotely. Similarly, cosmetology and barbering programs include academic subjects like anatomy and physiology that are ideally suited for online, asynchronous education.

When challenged to explain the proposed ban on asynchronous distance learning for these programs, the Department only alluded to vague anecdotes of complaints about program quality and concerns about administration by institutions. It could not point to any data or studies substantiating these concerns, because such issues do not exist—a fact the Department recently acknowledged.

Most importantly, this is unlikely to be the last word from the Department, instead setting the stage for a broader attack on online learning in the months and years to come.

A familiar strategy

This would not be the first time the Department sought to expand its authority by first regulating lower profile parts of the higher education landscape, then leveraging those efforts into broader regulatory power.

The Department followed this path with regulations on Gainful Employment (GE) and Borrower Defense to Repayment (BDR). In both cases, the Department began by proposing rules that most thought would only impact a narrow part of higher education, specifically for-profit institutions.

Recently, however, many non-profit and state-owned institutions have been surprised to discover that both rules apply to their institutions. Letters to the Department from a bipartisan group of U.S. senators and the National Association of Student Financial Aid Administrators, for example, explain the immense burdens that GE places on all institutions. As for BDR, many colleges and universities—including some of the most prominent academic institutions in the country—have recently received notices of BDR claims from the Department where students sought to have tens or hundreds of thousands of dollars in student loans forgiven.

What comes next?

The definition of a credit hour is not so different than a clock hour. If the Department succeeds here, then why could it not also restrict asynchronous distance learning in credit hours programs?

Ultimately, why the Department might pursue a broader effort to reign in access and growth in distance learning is unclear. In its preamble to the current distance learning rule, the Department stated that it "does not wish to impede technological innovations at institutions that can help students overcome barriers to access and completion." Unfortunately for students and institutions, that now appears to be exactly what it intends to do.

Originally published by University Business.

Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.

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