Distance Education Is Under Threat: What You Need to Know With Dr. Van Davis

Full Transcript

Dr. Cristi Ford:

Welcome to Teach & Learn, a podcast for curious educators, brought to you by D2L, a global edtech company committed to transforming the way the world learns.

I’m Dr. Cristi Ford, Vice President of Academic Affairs.

Dr. Emma Zone:

And I’m Dr. Emma Zone, Senior Director of Academic Affairs.

Dr. Cristi Ford:

Each week we’ll meet some of the sharpest minds in the K-20 space. We’ll break down trending educational topics, discuss teaching strategies, and have frank conversations about issues plaguing our schools and higher education institutions today.

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Whether it’s ed tech, personalized learning, virtual classrooms, or diversity and inclusion, we’re going to cover it all.

Dr. Cristi Ford:

Sharpen your pencils. Class is about to begin.

Hello and welcome. So glad to have you join us for this Teach & Learn Podcast. If you’ve been listening to us for a while, you know we pride ourselves in diving into topics that matter most to educators everywhere. And right now, there are some decisions being proposed by the US Department of Education that if passed will absolutely rock higher education stands on distance and remote learning in America. It’s absolutely critical that we as educators understand what’s taking place so we can make sure that voices are heard. And the time is now, the time is of the essence to do so.

So joining me today to shed some light on what’s happening is the Chief Strategy Officer at WCET, an unbiased and trusted member-driven nonprofit, providing policy analysis, advocacy and expertise in digital learning and higher education. Dr. Van Davis, it’s always a pleasure to spend time with you. Thanks for being here today.

Dr. Van Davis:

Thank you so much, Cristi. I always love being able to spend some time talking with you.

Dr. Cristi Ford:

So we started to talk about how this episode might shape up and come together. And I feel the work that you’re doing is so compelling. I really want to just dive into what’s happening. So what I understand is that the Biden administration has the US Department of Education looking into how states oversee online education. Some of the proposals being considered have serious repercussions. I think you shared with me the rulemaking sessions began in January of 2024. And now things are starting to come to a head. Can you just share with the listeners a bit, paint a picture for what we need to know and why?

Dr. Van Davis:

Sure. So a quick primer on how the federal government comes up with regulations, because as wonky as that is, it’s really critical for this conversation today.

When the Department of Education comes up with regulations, they’re required to enter into a process called negotiated rulemaking. They choose a slate of negotiators who represent a variety of stakeholders and they bring them together. Most recently, they brought them together for three weeks, a week in January, a week in February and a week in March. And it’s the role of those negotiators to respond to language that the Department of Education puts forward as proposed regulations. And they do exactly what it sounds like, they negotiate over that language.

There’s a little oddity to all of this though, and that is that first of all, the department gets a seat at the table as a negotiator. So that’s a little odd.

Dr. Cristi Ford:

[inaudible 00:03:28] different.

Dr. Van Davis:

Let’s face it. The other oddity though is that this group of negotiators has to reach consensus. And the way the department and the federal government defines consensus is everyone has to agree. And if anyone disagrees, then no consensus is reached. And the reason why that’s important is if no consensus is reached, then the department gets to put forward whatever language it wants for public comment as the proposed regulations.

Dr. Cristi Ford:

Oh, wow.

Dr. Van Davis:

So in this recent round of negotiated rulemaking, the department took on a number of issues, but distance education was really prominent amongst those issues and the department did not reach consensus. So that means the department now gets to write whatever proposed regulatory language it wants. It’s going to put that out for public comment. Typically about 30 days is all we get to comment. And then the department has the responsibility of going through those comments and then they can change anything they want or they can keep it the same. And then that ends up being the final regulations.

So this most recent round of negotiated rulemaking, like I said, lots of distance ed stuff on the table, no consensus was reached. We have every reason to believe that the department is going to put out regulatory language that we as distance educators find a little concerning. Once the department puts out the proposed language, they usually don’t change it that much between the proposed language and the finalized language. So we think the time to act right is now for folks that have a stake in this issue.

Dr. Cristi Ford:

That foundation is so helpful. As long as I’ve been doing this work, I don’t think I understood historically, and I’m really grateful that you broke that down for our listeners. So as we’re talking about the lack of consensus in this language being developed, what are some of the top regulatory changes that educators, institutions need to be concerned about?

Dr. Van Davis:

So like I said, there were a number of issues that the department took on in this recent round of negotiated rulemaking. And if you want to sound fancy, you can call that Neg Reg, which is what us wonks call it.

Dr. Cristi Ford:

Okay.

Dr. Van Davis:

But there are three that are really we think critical for distance educators. One has to do with reciprocity, and that’s the ability for institutions in one state to offer distance education to students in another state. We can talk a little bit more and unpack that.

Dr. Cristi Ford:

Okay.

Dr. Van Davis:

The second thing has to do with distance education definitions. There are two things there. One is that the department wants to get rid of Title IV federal financial aid eligibility for asynchronous clock hour programs. And that’s really important. There are clock hour programs and there are credit hour programs. Clock hour programs tend to be associated with vocational or technical programs. The department has concerns about the integrity and the quality of asynchronous clock hour programs, and they want to get rid of financial aid eligibility for those programs.

Then the other distance education issue that we think is sort of significant has to do with the taking attendance in all distance education courses. Associated with taking attendance would be if a student was not involved in a significant academic activity for 14 days or more, then an institution would have to start the process to unenroll and drop those students.

Dr. Cristi Ford:

Wow.

Dr. Van Davis:

And we all know, especially those of us that have worked with adult learners, that sometimes our adult learners disappear for a week or two because life gets in the way, but they oftentimes come back and can successfully complete the course.

And then the third issue that we think is going to impact folks involved in distance education has to do with something called inclusive access. Inclusive access is when an institution bundles the cost of instructional materials into tuition and fees so that it automatically gets billed to the student and financial aid is automatically used to cover those fees. Right now, inclusive access programs are allowed as long as a student does not opt out of that program. What the department wants to do is change that from an opt-out to an opt-in and then put some other restraints around that. We think that that may impact distance education programs too.

Dr. Cristi Ford:

This is major. As I’m listening to you share these top three concerns, the one that jumps out to me, is when you talk about adult learners sometimes having to take a break, I think about military learners who are deployed. And that time it takes for the deployment to be issued, the time it takes for them to go to the other country to get on barracks and get reestablished, that’s going to be a major hit for a lot of communities that are typically been marginalized in this education sphere that online education has given them a vehicle to be able to complete their education.

So I have so many questions, but let’s just start with reciprocity here. I want to drill down a little bit around reciprocity for our listeners. I think what I understand you saying is the Department of Education is in favor of allowing each state to enforce its own applicable laws and regulations as it relates to reciprocity and institutions providing online education across state lines. Can you share with us a little bit more about how that could jeopardize distance learning programs and courses? If you could just unpack that. Let’s start there.

Dr. Van Davis:

Sure. Right now we have something called the State Authorization and Reciprocity Agreement. Its nickname is SARA, State Authorization and Reciprocity Agreement. Every state has signed on, as well as the District of Columbia and Puerto Rico, have signed on except for California. That is the lone outlier. What SARA does is, let’s say you’re an institution in Texas and you want to offer distance education to students in Arkansas. In the days before SARA, you would have to get authorized as an institution in Arkansas in order to offer distance education to those Arkansas students. So whatever things that Arkansas required for you to be authorized in that state, you would have to do it. That could be a curriculum review of every program. It could be surety bonds. It could be teach-out arrangements. It could be a whole raft of things.

Under SARA, if you’re authorized in Texas, if the state of Texas authorizes you as institution A to operate in the state, then because Arkansas and Texas are a part of SARA, you have the authority to offer distance education in Arkansas. What the Department of Education was proposing in its last round of regulations was that, and this is a big if, if you would have more than 500 students in that state, you could no longer use reciprocity. You would have to go through and get individually authorized in every state where you had more than 500 students. Now, that 500 students isn’t a firm number either because there were some negotiators at the table that wanted a much, much lower number. They talked about 100 or 200 students.

Dr. Cristi Ford:

Oh gosh.

Dr. Van Davis:

So the department seems to be indicating that it thinks that there should be limits to reciprocity. Now, the other thing to know about reciprocity is that in order for most states to sign on to SARA, they actually had to have legislation. So it’s not like somebody woke up one morning and decided, “Oh yeah, we’re going to be a part of SARA. We’re going to be a part of the State Authorization Reciprocity Agreement. No problem.” No. For most states, this actually required legislative or gubernatorial action. So a state made a conscious decision that it wanted to be involved in this sort of a reciprocity agreement. And the Department of Education now is suggesting that it can override those state decisions, which is a little concerning.

Dr. Cristi Ford:

As I’m listening to you, I am having PTSD back to 2010, 2011 when the Dear Colleague Letters came out. I remember being the director of distance ed at an institution and trying to figure out how the heck were we going to apply for reciprocity to each state, what budget we need to be required for each state. I mean, it was pure chaos. And when NC-SARA came into existence, it was really a great opportunity really to lift all sales that we were really trying to think collectively around this. And if I’m wrong, I felt like NC-SARA has been running smoothly. So why the departure from this and why are we going back in the other direction?

Dr. Van Davis:

I remember those days as well as a state regulator in Texas.

Dr. Cristi Ford:

Oh, gosh.

Dr. Van Davis:

We got thousands of letters from institutions around the United States wanting to know what did they have to do to be authorized in Texas. It was literally a tsunami of letters and emails that we could not respond to. So I’m having some PTSD as well.

You mentioned NC-SARA. NC-SARA is the National Council for the State Authorization Reciprocity Agreement. It is the organization that administers SARA, the State Authorization Reciprocity Agreement. One of the great things about NC-SARA is that it has a set of checks and balances really. In addition to an institution being authorized in to operate in their state, NC-SARA requires that institutions fulfill other sets of criteria. And so it really has a set of consumer protections for students in place.

I think of us think that NC-SARA has been doing a pretty good job. There are a small group of very vocal advocates that are questioning the value and the quality of distance education, and they have a fairly large bully pulpit and their voice is probably outsized to the number, but they do have the ear of the Department of Education. They, first of all, don’t think that NC-SARA is strict enough. They don’t think that the State Authorization Reciprocity Agreement is strict enough. And they in general have concerns about the quality of distance education. And so that seems to be what’s driving this conversation. That, and I think we have a Department of Education here that does not have experience with distance education. The education that they have experience with is a traditional liberal arts face-to-face education, which increasingly is really a smaller and smaller and smaller number of students these days.

If we look at IPEDS data, one of the things that we see with the recent IPEDS data is that there are a lot of traditional age students that are in theory face-to-face programs that are taking online courses. Digital learning is the norm now. It’s not the exception. But we’ve got a Department of Education that hasn’t quite caught up with that reality yet, and so between that, between these critics of distance education.

And then I think also these are folks that don’t understand that the emergency remote instruction that we saw at the beginning of the pandemic is not deliberately designed high-quality distance education. I think all of us as practitioners know that it was a little rough there for a while as folks who had never taught distance education were scrambling to put classes online. And as educators, I think we did an amazing job in making that transition very quickly. And then from there, very quickly moving to high-quality, deliberately designed distance education. But not all of our critics have caught up with that.

And so yeah, I think NC-SARA is working pretty well, but unfortunately, we have some folks that really question the value of distance education. They question the quality of distance education and digital learning. And they question the ability of NC-SARA to administer the State Authorization Reciprocity Agreement. And quite frankly, some of these folks question that there should even be a State Authorization Reciprocity Agreement.

Dr. Cristi Ford:

Wow. Again, I’m so glad we’re having this conversation now. It’s just so alarming to me. As I think about distance learning and I think about digital learning, it is woven into the fabric of higher education today for many learners. And so to really just not understand all the nuances around this, I think it does us a great disservice. I want to lean in a little bit more to your second point. You talked a little bit about asynchronous programs, particularly in vocational programs, but as I heard you talk about that concern, I started thinking about skills forward approaches, mastery based education, non-credential programs. Can you just unpack a little bit more about the sentiment around that second piece there for us?

Dr. Van Davis:

Sure. So we have two types of programs get financial aid in the United States or eligible for financial aid in the United States. Credit Hour programs, which is the overwhelming majority of programs. But then clock hour programs. And clock hour programs are oftentimes associated with vocational and technical education, cosmetology, welding, and programs like that.

The way that clock hour programs get funded is literally by the number of hours that are associated with the curriculum. So they get funded per hour of instruction. What the department has said during negotiated rulemaking is that they believe that there are some asynchronous clock hour programs where students are getting financial aid for a number of hours that they’re not receiving instruction for. Now, one of the things that was really interesting in negotiated rulemaking is especially there at the end that we started hearing from a lot of students actually saying, “Look, I’m in a cosmetology program. This program is potentially going to change the lives of myself and my family. I do some face-to-face work in that program. My practical experience is face-to-face, but my theory is online and I wouldn’t be able to be in this program if everything had to be face-to-face. I simply wouldn’t be able to balance work and school and family.” And so although the department isn’t talking about competency-based education yet, it’s not talking about prior learning experience yet, it might eventually.

Dr. Cristi Ford:

[inaudible 00:20:48].

Dr. Van Davis:

This could be a slippery slope.

Dr. Cristi Ford:

Yeah. Yeah. And as I listened to you talk even about those students that you’ve heard from, one of the things that we talk about in higher education is to increase access, right?

Dr. Van Davis:

Yes.

Dr. Cristi Ford:

To be able to make education equitable and available for all. My concern is, if some of these legislations or regulations that are being proposed come to fruition, what will we do and will there be another opportunity for us to be able to swing the pendulum in the other direction to repeal them?

Dr. Van Davis:

It’s really hard once regulations get out there for them to change. We have concerns about how this will impact student access as well. At the end of the day, I think what all of us as distance educators are concerned with is making sure that every student that wants access to a high quality educational program has access to an affordable, high quality educational program.

Dr. Cristi Ford:

Agreed.

Dr. Van Davis:

And we’re concerned that this is going to limit access as well. There are a couple of ways that regulations can be rolled back. One way is if we had a different administration. Most likely a Republican Department of Education Administration, based on what we saw during DeVos’s Department of Education would disagree with these regulations and would either rescind them or just simply not enforce them.

It’s also possible that Congress can override through something called the Congressional Review Act. And so it’s possible that Congress could override these regulations as well. It is also possible that these regulations could get caught up in a lawsuit, which is what we saw back in 2010, 2011 when that Dear Colleague Letter came out. There were a series of lawsuits that delayed the implementation. So that’s possible as well.

There’s one other wild card, and I won’t get too in the weeds here, but there’s something called the Chevron case right now that’s before the Supreme Court. And basically, the Supreme Court is deciding whether or not, or to what extent federal departments can create regulations that are not explicitly created in legislation. So right now, the Department of Education as well as every other federal agency, it can only create regulations based on the legislation that Congress passes. But the tradition has been that’s pretty lax standard, that Congress passes a big law and then it leaves it to the federal agency to figure out the mechanics of implementing that law. And the legislation doesn’t get into the weeds in how implementation is going to take place.

The Chevron case that’s before the Supreme Court right now is actually challenging that and is suggesting that federal agencies should only be allowed to create regulations that are explicitly and individually legislated. So we might see a different administration, and this could very well go away. We might see Congress saying, “Yeah, we don’t like this.” And under the Congressional Review Act, it could go away. We might see folks sue the Department of Education, which is likely going to happen if these things go into fruition. Or we might see the Chevron case at the Supreme Court right now, say, “Department of Ed, you’ve overstepped your authority.”

Dr. Cristi Ford:

Okay. As I’m listening to you, if other listeners are listening to this episode and thinking like me, I’d prefer to be proactive than reactionary. As you laid out those different options, it sounds like the time is now. What would you have listeners do? How can we be informed? What should we be doing at this juncture?

Dr. Van Davis:

So we do think the time is now. So a little bit about the regulatory calendar. In order for regulations to go into effect next year, July 1st, 2025, the department has to issue final regulations by November 1st of this year. If the department misses that date, then the earliest these regulations could go into effect is July 1st, 2026.

Dr. Cristi Ford:

All right.

Dr. Van Davis:

Like I said, the department has to put out proposed regulations for public comment for 30 days. And then the department has to review those comments and can make any changes it wants to make. By all means… And we don’t know unfortunately when the department is going to put out its proposed regulatory language. That’s the big unknown in all of this. It could be as early as May or June. It could be as late as this fall. We simply don’t know. So one thing that we’re suggesting to folks is that you need to be vigilant. I think those of us that are policy wonks recognize that normal people aren’t policy wonks, that normal people don’t find this nearly as interesting as we do. And they don’t sort of live, eat and breathe for the federal regulatory calendar.

Dr. Cristi Ford:

That’s right.

Dr. Van Davis:

But we would first of all urge folks to pay attention to find those good sources of information and keep this on your radar. This is not one of those things where we can stick our heads in the sand and hope that it goes away because it’s not going to go away. So the first thing is pay attention to when those regulations come out for public comment. And comment on them. You can comment on them as a private citizen. But we also are urging folks, if you’re concerned about these potential regulations, to talk to your government relations folks. If you think this is going to negatively impact you and your students, talk to your institutional leadership, talk to your government relations folks. Have them contact your congressional representatives. You as an individual can contact your congressional representatives, because although the Department of Ed may not be taking public comment right now, they can’t ignore a representative or a senator.

And so this is the time to get your congressional delegation active because this could have very significant impacts on student access to high quality, affordable educational programs. We think that’s something that everyone can get behind. So contact your government relations folks. Contact your congressional representatives. Whenever regulations come out, comment. Even if it’s commenting as a private citizen, comment. And talk about how it’s going to negatively impact students.

Because at the end of the day, this Department of Education, these aren’t the bad guys. They care. I really do think that they care about students and they want students to have access to good quality, high quality education. And so when you do have that opportunity to comment, talk about how this is going to negatively impact your students. Make it real. Tell your students stories. And we think that that may help as well. But the time to act is now. It’s not too early. It’s probably too late if you wait until the public comment period. This is the time to be talking to your congressional representatives. This is the time for your institutions’ government relations folks to be talking to your congressional representatives so that they can intervene with the Department of Education before the regulatory language even comes out.

Dr. Cristi Ford:

This is fantastic. And those who are listening, we’re going to provide additional to WCET. But before we do that, Van, I just would love a follow-up here. When you talk about credible sources, can you talk a little bit about WCET? What are you all doing in terms of blogs and other things to be able to educate us on these issues?

Dr. Van Davis:

Sure. So WCET is a membership organization. We have over 420 members, mostly in the United States and Canada, although we have a few international members as well. We really sort of sit at the nexus between policy and practice around digital learning. So we look at what are the best practices for high-quality digital learning and what is the regulatory environment and policies both at the institution level, at the state level, and the federal level that impacts the practice of high-quality digital learning.

And so we have put out a number of resources, especially one of our divisions. One of the divisions of WCET is the State Authorization Network, SAN. And so SAN is also a membership organization, a membership group that’s a part of WCET. It has over 900 institutions that participate. And Cheryl Dowd, who’s the director of SAN, and her staff have done a fantastic job along with Russ Poulin, who’s the executive director of WCET in putting out blog posts that really break all of these issues down, putting out one-pagers that you can share with your academic leadership and your government relations folks that really distill these issues down.

We’ve been talking to institutions. We’ve been talking to states. We’re always happy to answer questions that folks have. We can’t provide legal advice. Obviously, we’re not lawyers and we can’t be prophets. We don’t exactly know what the department’s going to do. We can’t see the future. But we do follow this stuff really closely and get in the weeds so that other folks don’t have to get in the weeds. We sat through all three weeks of negotiated rulemaking and watched all three weeks. I will tell you, it was really painful at the end.

Dr. Cristi Ford:

It was riveting.

Dr. Van Davis:

I feel really sorry for my poor beloved wife who had to listen to me rant and rave about this near the end. I feel like that she should be getting a medal of some sort. But we have a lot of resources. And we’re always happy to answer questions or try to answer questions and help folks understand the issues. Because at the end of the day, again, we want every student to be able to access the type of education that works best for them that is a quality education. And we believe digital learning and distance education is a really powerful tool in that toolbox of access.

Dr. Cristi Ford:

Fantastic, Van. Colleagues, you heard it here first. Van, thank you so much for being here. Thank you for just being a voice and an opportunity to resource for many of us who are in the trenches and doing this work every day and just keeping us abreast on these issues and giving us some real call to actions today. Really, really glad to have you here today.

Dr. Van Davis:

Well, thank you so much, Cristi. And thank you for all the work that you and D2L do in this space. At the end of the day, again, we just want what’s best for all of our students, for all of our students.

Dr. Cristi Ford:

Absolutely. Absolutely.

Dr. Van Davis:

We’re concerned that this may impact some of those students negatively.

Dr. Cristi Ford:

Absolutely. And listeners, you’ve heard it here, you have some homework to do. Please visit the WCET website at wcet.wichi.edu for materials and blogs that Van talked about that expertly capture what’s happening and what we can do. Please also check out NC-SARA at nc-sara.org to learn more about the rest of proxy agreements. These web addresses will also be available in the episode description today.

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Dr. Emma Zone:

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Dr. Cristi Ford:

And remember to hit that subscribe button. And please take a moment to rate, review and share the podcast. Thanks for joining us. And until next time, school’s out.

Resources Discussed in the Episode

• Call For Action: Contact Elected Officials About Proposed Distance Education Regulations