Educators See Federal Overreach

WASHINGTON — Higher education officials urged lawmakers Friday to delay the planned July 1 implementation of Education Department regulations that would expand state authorization requirements and establish a federal definition of “credit hour.” Republican and Democratic members of the House Subcommittee on Higher Education and Workforce Training seemed to share some of the educators' concerns about what they characterized as federal overreach into academic affairs.

In the past few weeks, a coalition of higher education groups organized by the American Council on Education first asked the Education Department to rescind these regulations and then urged Representative Virginia Foxx, chair of the subcommittee and a Republican from North Carolina, to either encourage or force the Education Department to delay the implementation date of rules by a year. The rules are part of a package, released in October, that are designed to better ensure the integrity of federal financial aid programs.

Friday's hearing, entitled “Education Regulations: Federal Overreach into Academic Affairs,” gave college leaders another chance to make their case about the rules' problems. But several lawmakers took the hearing on a tangent, using the opportunity to reiterate their concerns about the Education Department's ramped-up scrutiny of for-profit higher education.

State Authorization and the Credit Hour

During his testimony, John Ebersole, president of Excelsior College, called the Education Department's state authorization regulation “unnecessary” and particularly burdensome to online institutions like his. He said that because the New York nonprofit has students in every state and territory, the new state authorization regulations would require his institution to document that it is authorized to operate in 54 separate jurisdictions. If an institution is found not to have the requisite state approvals,it could lose eligibility to participate in the financial aid programs authorized under Title IV of the Higher Education Act.

“Due to a lack of forethought, the proposed state authorization regulation from the Department of Education would create a roadblock for online education, perhaps at a time when it is needed most,” said Ebersole, who argued his point in an Inside Higher Ed essay last week. “We continue to be at a loss as to why these regulations run directly contrary to the shared stated goals of the administration and thousands of higher education institutions across the country. As written, the regulation would unfairly target and stifle the growth of online options for students.”

Ebersole cited practical as well as philosophical concerns about the state authorization rule. He noted that few state officials with which his institution has been in contact say they will be able to comply with it by July 1. And compliance with this new regulation could cost his institution between $150,000 and $200,000 annually, he added.

Blair Dowden, president of Huntington University and a board member of the National Association of Independent Colleges and Universities, took on the regulation establishing a federal definition of “credit hour” — which he argued “inserts the federal government into one of the most sacrosanct elements of higher education.”

“The effort to transform the credit hour into a simple accounting unit used for bookkeeping shows, I believe, a fundamental misunderstanding of the credit hour,” Dowden said. “A credit hour is not only different from institution to institution, but is different even within an institution from program to program. A scientific laboratory class is different from practicing a musical instrument which is different from engaging in a business practicum.”

Like Ebersole, Dowden asserted that this regulation would stifle educational innovation, potentially hampering accelerated classes, distance learning, and hybrid-format classes. Ultimately, he argued, a federal definition of “credit hour” would make accreditors less effective at measuring academic rigor, program quality and learning outcomes.

“A restrictive definition of 'credit hour' based on seat time alone would turn back the clock and discourage the kind of innovation that enables colleges and universities to serve these students,” Dowden said. “It is one thing to measure how much time a student spends in a classroom; it is quite another to measure how much the student learned.”

Dowden said he worries certain states could use the new authorization leverage to push their own higher education policy, requiring certain textbooks or curriculums, for example. This, he said, particularly troubled presidents of religious institutions like his, who worry about preserving their religious mission.

Representative Timothy H. Bishop, a Democrat from New York, pushed back at Dowden’s claim that a federal definition of “credit hour” would stifle innovation in nontraditional course delivery methods. He noted that institutions already calculate credit hour equivalency values for distance education instruction when a strict seat time count may not be an appropriate measurement of course content delivery. What would be “so hard about determining a credit hour equivalent” under the new regulations? he asked.

Offering the perspective of a regional accreditor, Ralph A. Wolff, president of the senior college commission of the Western Association of Schools and Colleges, said that 37 states would need to make substantive changes to meet the authorization requirement. He echoed Dowden’s view that seat time is an “outdated model” to measure learning, and Wolff argued that a federal definition of “credit hour” would “intrude on the work of faculty across the country,” forcing them to alter their courses and curriculums to meet the definition.

The sole witness speaking in defense of the new regulations, Kathleen S. Tighe, inspector general of the Education Department, rebutted criticism from the other witnesses and presiding lawmakers by arguing that the new regulations were not only necessary for taxpayer oversight, but also flexible enough to assuage many of the stated concerns.

“The credit hour is the most basic unit for determining the amount of federal student aid provided to students and funded by taxpayers,” Tighe said. “A credit hour is a proxy measure of a quantity of student learning in exchange for financial assistance. It is in the federal interest to ensure that students are receiving an appropriate amount of funding and instruction and that taxpayer money is being used properly.”

Representative Rubén Hinojosa of Texas, the senior Democrat on the subcommittee, agreed with Tighe that the regulations are necessary and “flexible.”

“In my view these regulations are greatly needed to strengthen the accountability and review of institutions of higher education that participate in federal student aid programs,” Hinojosa said. “Every year, the federal government spends billions of dollars on student financial aid. It is imperative that Congress and the Department of Education provide strong oversight for these federal student aid dollars."

Hinojosa was alone among the lawmakers (those who spoke, at least) in supporting the new rules. Representative Robert E. Andrews, a Democrat from New Jersey, said that unless Tighe could demonstrate a “problem” with the "status quo" interpretation of the credit hour, the regulation may be “a solution in search of a problem.” Representative John F. Tierney, a Democrat from Massachusetts, concurred with Andrews, musing that the credit hour regulation sounded like “No Child Left Behind for college students.”

Sensing bipartisan concern about some of the new regulations, Representative Foxx, the subcommittee chair, quipped to Andrews and Tierney that “something must be going on [if] we’re agreeing.”

Some of Foxx's Republican colleagues, however, used their time during the hearing to call for an investigation of the Education Department for “tipping hedge funds on short selling."

Representative Glenn Thompson, a Republican from Pennsylvania, was the first to direct the House subcommittee away from its intended topic of the day. He asked Tighe if she had seen documents, recently released by Citizens for Responsibility and Ethics in Washington, allegedly showing that department officials had improperly leaked contents of the gainful employment regulations in advance of their publication to individuals associated with hedge fund short sellers.

When Tighe responded that she was “aware” of the documents, Thompson pushed Tighe on whether she would work with the Securities and Exchange Commission to investigate the Education Department. Tighe responded that “it would seem to make sense to work with the SEC.”

Representative John Kline, a Republican from Minnesota and chairman of the full education committee, used most of his time during the hearing to talk about the seriousness of the allegations against the Education Department. He too concluded by urging Tighe to lead an investigation with the SEC into the department’s relationships with hedge funds and short sellers.