If you have ever run into a situation in which you asked yourself, “What rule? How could someone think that was a good idea? Why was I not told?” you can now offer your comments for an upcoming rule.You may have experienced distance learning during your military service or know someone who has. As such, you can provide valuable insight into a proposed rule, Distance Education and Innovation, which will likely affect service members’ online schooling worldwide.
The U.S. Department of Education, led by Secretary Betsy DeVos, has published a proposed set of rules that will significantly affect distance learning for service members and their families enrolled in post-secondary educational programs. The public comment period for your valuable insight closes May 4, 2020, at 11:59 PM ET. If, after reading, you feel you would like to share your thoughts, you can do so here. Following the comment period, the Department will publish a final regulation before November 1, 2020.In its Notice of Proposed Rulemaking on Distance Education and Innovation, the Department has proffered many changes to current educational policies from how universities define their curricula to how regular and substantive interaction between students and instructors is defined. Most importantly, educational institutions with proven track records will benefit from a streamlined approval from the Secretary for the first direct assessment program offered by the school.
What this means for service members
In the coming months, service members will likely see a rapid expansion of new online schools and online programs — also, advertisements for newly G.I. Bill-approved schools will appear on social media platforms everywhere. Also, a more comprehensive array of applications will be made accessible to members of the military and veterans. This is excellent news for members of the military bouncing from state to state and country to country, where some traditional universities’ programs cannot follow due to their accreditors’ archaic and arguably avaricious policies.
For example, in response to one of its student’s military-related mobilization, a servicemember’s military friendly school may state, “You want us to record your classes? That’s too much of a burden. You volunteered to deploy, that is not the university’s problem.” Thus, the traditional university, under the guise of its federal and state regulations, may deny a student-soldier’s request for accommodation and defer to its accreditation standards in its defense.
Conversely, the non-traditional university, better equipped, may see a mobilization of a Reserve or National Guard soldier as a straightforward situation to accommodate because, fundamentally, the online university is best positioned to handle the unique circumstances that affect service members and civilians alike. As an example, the current COVID-19 pandemic, which is forcing traditional students to stay at home, has driven student-soldiers nationwide to temporarily drop their textbooks and, instead, get into their uniforms. Thus, student-soldiers’ statuses and VA-payments may be negatively affected.
Despite the proposed set of rules accommodations for non-traditional students, the rapid development of the rule itself – the process – may be cause for concern.
Criticism of the Rule
According to William J. Zee, partner and chair of the Education Law group at Barley Snyder, LLC., a strategically focused, full-service law firm representing businesses, organizations, and individuals in all major areas of civil law, “Critics believe it is worrisome that these regulations were proposed at the same time the biggest commentators – namely higher education institutions – are busy trying to institute distance learning in the face of COVID-19 and do not have enough time to fully digest and comment on the proposed regulations.”
Critics’ concerns about the rapidity of this Rule’s development are supported by a seemingly absent involvement of traditional universities within the Department’s “months-long negotiated rulemaking effort” that constituted public hearings and engagement from education-subject matter. See generally Notice, DoED, 2020 at 1.
Also, Sharon L. Dunn, PT, Ph.D., president, American Physical Therapy Association, stated publicly, “. . . changing the accreditation requirements, process, or standards for purely programmatic accreditors could cause lasting damaging effects.” See Public Comment, APTA, September 14, 2018.
Thus, the Department’s shift towards programmatic accreditation standards may mean damaging effects on educational institutions relying more on institutional accreditation, and an outcome possibly welcomed by some in the military community.
Support for the Rule
Mr. Zee, continued, “On the other hand, the proposed distance learning regulations could prove positive for current active military servicemen and women who have the possibility of being deployed while obtaining some sort of degree. These regulations propose to broaden the ability for institutions to better use technology and serve the classes of people who may not be in a traditional school setting. These regulations call for more use of technology, a broader acceptance of distance learning, and a recognition that the method of obtaining credentialing isn’t as important as the end result.”
In addition, Blake Johnson, a first-year law student, stated publicly, “This is a very important move toward protecting the student . . . First year itself is difficult and presents an educational challenge unlike any I’ve faced before. That being said, I was getting used to the in-person socratic lectures. That’s all gone. The ABA (American Bar Association) is stringent on their allowance of distance learning. This current situation has seen an unprecedented move in which the ABA allowed for students to not only go ‘online’ but also allowed for a trend towards Pass/Fail type grading. This proposed rule allows for a relaxed and more accommodative approach to education and factors in the issues associated with the current [COVID-19] pandemic.” See Public Comment, April 15, 2020.
Thus, more significant innovation in distance learning could prove beneficial to members of the military.
Author’s Public Comment and Concerns
This author will be specifically addressing administrative remedies in his public comment to the Federal Register.
Because of the extraordinary degree of speed by which the Department has rollbacked regulations in its Proposed Rule, student-soldiers could be at higher risk of exposure to misrepresentation and fraud.
Addressing this author’s concern, the Department generally states, “These proposed regulations attempt to limit risks to students and taxpayers resulting from innovation by delegating various oversight functions to the bodies best suited to conduct that oversight—States and accreditors. This delegation of authority through the higher education regulatory triad entrusts oversight of most consumer protections to States, assurance of academic quality to accrediting agencies, and protection of taxpayer funds to the Department.” See Proposed Rule, DoED.
In laymen’s terms, the Department is passing the buck to State regulators such as the Massachusetts Department of Higher Education, for example, a state agency charged with the duty of assuring academic quality in Massachusetts.
The problem with such delegation is (1) many state regulators are hyper-focused on targeting for-profit institutions and politically incentivized to protect non-profits, and (2) there are very few remedies for student-soldiers facing disputes with their universities, regardless of the school’s tax status. Frequently, military commanders cite the Uniformed Services Employment and Reemployment Rights Act, USERRA, a federal employment law, in response to their student-soldiers’ concerns with missing classes due to drill or deployments.
Expect to see a Public Comment from this author very soon that will advocate for the inclusion of protective language to the Department’s Proposed Rule modifying eligibility to ensure student-soldiers are given big sticks to augment their respectful, soft voices in the classroom.
The metaphorical equivalent of a student-soldier’s attempt to resolve a dispute with their non-profit university would be like an attempt to sue God. The cards are stacked unfairly in favor of universities nationwide, and, in closing, for those who believe non-profit universities to be a fragile, delicate butterflies, worthy of extraordinary deference by state regulators, please research universities’ publicly available Internal Revenue Service (IRS) Form 990(s).
Call to Action
After reviewing the Department’s Tips for Submitting Comments, submit your comments through the Department’s Rulemaking Portal or via postal mail, commercial delivery, or hand delivery. The Department will not accept comments submitted by fax or by email or those submitted after the comment period. To ensure that the Department does not receive duplicate copies, please submit your comments only once. In addition, please include the Docket ID [ED-2018-OPE-0076-0845] at the top of your comments. If you are submitting comments electronically, the Department strongly encourages you to submit any comments or attachments in Microsoft Word format.
If you must submit a comment in Adobe Portable Document Format (PDF), the Department strongly encourages you to convert the PDF to print-to-PDF format or to use some other commonly used searchable text format. Please do not submit the PDF in a scanned format. Using a print-to-PDF format allows the Department to electronically search and copy certain portions of your submissions.Federal eRulemaking Portal: Go to www.regulations.gov to submit your comments electronically. Information on using Regulations.gov, including instructions for accessing agency documents, submitting comments, and viewing the docket is available on the site under ”Help.” See 18638 Federal Register Vol. 85, No. 64. Thursday, April 2, 2020, Proposed Rules. at 1.
Attending a Non-Profit vs. For-Profit Educational Institution
A common misconception about non-profit educational institutions is that they cannot, by definition, be predatory. In an online document concerning non-profits, last updated February 2018 by Pasadena City College (PCC), a non-profit educational institution, PCC states, “None are predatory, but have varying success rates – students should research institutions carefully applying.” See Document at 2. In its blanket immunity declaration, PCC also highlights the importance of carefully researching educational institutions’ successes, which can be intentionally elusive to some consumers.
A more in-depth article addressing the logical fallacy behind blanket immunity granted to non-profits is discussed further in These Colleges Say They’re Non-profit—But Are They?, written by Robert Shireman, Director of Higher Education Excellence and Senior Fellow at The Century Foundation. If further clarification is needed on what it means for an educational institution to be predatory, the Federal Trade Commission, in concert with many State Attorneys General, maintains publicly available reports and cases that define bad actors’ deceptions of consumers in areas ranging from aviation to wine and beer.
According to Mr. Zee, “For-profit institutions have been preying on the education of current soldiers and veterans because their GI Bill does not go toward the for-profit institutions’ 90/10 limit of federal funding. For-profit institutions have been caught deceiving prospects into believing they are actually non-profit institutions, and many soldiers have been negatively impacted, as they are seeking a non-traditional method of schooling.”
In deciding whether to attend a non-profit or for-profit educational institution consider this, enrolling at an institution of higher learning through an online portal provided by the bursar’s office may not feel the same as removing a wrinkled dollar bill from a tired, leather wallet, handing it to a cashier across a counter, and receiving a delicious chocolate candy bar unwrapped in return. Still, it is a financial transaction just the same. Students are consumers of educational services provided by companies, whether the U.S. Internal Revenue Service sees them as 501c3 or not.
Measure of a Post-Secondary Educational Institution’s Success
It is generally easy to discern the success of teaching a child to play catch, the child either catches the ball, or they do not catch the ball. However, some may take the view that the measure of success is instead the child reaching to catch it. The attempt itself is worthy of some admiration, an ideal not lost to many.
However, an attempt to catch the ball is categorically not a success, determined by many programmatic-accreditation bodies, an example of which would be the American Bar Association. One either passes the bar exam or does not pass. Likewise, one either passes their State’s medical board or they do not. The ramifications of either determine whether one will be permitted to practice law or medicine, an ideal we value for the professionals charged with the duties of either keeping us out of prison or alive on the operating table.
Conversely, to an institutional-accreditation body, a child may be the next Jason Varitek despite missing the ball and landing on his or her face. An institutional-accreditation authority is not so concerned whether the child catches the ball, it is concerned with what the ball is made of, how fast it was thrown, and whether the child was the intended recipient. In other words, institutional-accreditation bodies are more concerned with the educational process, the number of students per class, than the result, the number of students working in their desired field. An accredited university can retain its accreditation by solely focusing its business decision-making process on an extensive gamut of unique gradable metrics, rather than merely one: whether its graduates obtained jobs.
In its Notice, the Department “call[s] for institutions, educators, and policymakers to ‘rethink higher education’ and find new ways to expand educational opportunity, demonstrate the value of a post-secondary credential and lifelong learning, and reduce costs for students, schools, and taxpayers. See Factsheet (emphasis added).
What is a CFR?
CFR is short for a Code of Federal Regulation, more amicably known as administrative law by members of the legal community. Administrative law is unique because it is technologically complicated. For example, Lawyers and Judges typically do not enjoy defining what is or is not the correct way to fly an airplane.
Hence, a federal agency, the Federal Aviation Administration, filled to the seams with aviation experts, defines the technical means to fly an aircraft correctly. Likewise, other areas of specialization like immigration or education are governed by administrative rules, ultimately guided by the federal, executive branch of government.
In this instance, the Department’s change to the CFR will result in a cascading effect on how the education sector conducts its education-business – or for the FAA, flies a plane. However, unlike flying a plane, which arguably has a clear right and wrong way of doing it – up or down, education has its unique nuance. For example, a law student, activated for a combat military deployment – yet with access to computers, may
As a valued reader of We Are the Mighty, you may know or be a Soldier, Sailor, Airmen, Marine, or Coast Guardsman who balanced online, distance learning with their military service. Please, share your insight on what you think of the Department of Education’s proposed rules.