Court “Vacates” Distance Ed Portion of State Authorization Regulation

Today (July 12, 2011), the United States District Court for the District of Columbia struck down the distance education portion of the U.S. Department of Education’s (USDOE) ‘state authorization regulations.  The decision is as a result of a lawsuit brought by the Association of Private Sector Colleges and Universities. You can read the complete ruling on the Court’s website.  The ‘state authorization’ section begins on page 35.

On page 39 of the ruling is the statement…

“The Court will vacate 34 C.F.R. § 600.9(c).”

As you might recall, § 600.9(c) is the new, short paragraph in the regulations released last October regarding distance education’s need to seek authorization in each state.

The reason for the ruling is that the USDOE did not provide adequate opportunity in the Negotiated Rulemaking Process for institutions to comment, as stated on page 37:Photo of a judge's gavel.

“APSCU challenges § 600.9(c) on various grounds, but the Court need only address the argument that the Department failed to provide notice and opportunity for comment on subsection (c) of the State authorization regulations, as this subsection, or any variation thereof, was not included in the notice of proposed rulemaking.”

As we’ve noted before, the distance education language was not included in the original language proposed by the USDOE in June 2010 as part of its rulemaking process.  The rule appeared in the final ‘Program Integrity’ regulations released in October 2010.  As a result, the court seems to have agreed that the USDOE did not follow proper procedures in implementing the rule.  If the language had been included in the June 2010 proposed rules, WCET and the distance education community could have provided comments to improve the final regulation.

So what does this mean?

First, as we keep saying, we’re not lawyers and we’re not sure that we understand all of the nuances of this ruling.

Second, the USDOE could still appeal the ruling.

Third, as we said in a recent posting, even if the ‘state authorization’ regulation is repealed or struck down, institutions still have the obligation to comply with state laws.  State regulators are newly aware that there are many institutions operating in their states without approval.

More to come!

Russell Poulin
Deputy Director, Research & Analysis

Megan Raymond
Manager, Events and Programs

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Photo credit:  Morgue File

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Executive Director WCET (WICHE Cooperative for Educational Technologies)

2 thoughts on “Court “Vacates” Distance Ed Portion of State Authorization Regulation

  1. Right or wrong, this was a non-issue until the USDOE stepped in with their ill-planned and incredibly poorly executed rule. State regulators are only “aware” as stated in your blog because of this DOE created mess. Does the system need cleaning up – of course. Does every college in the country that offers elearning need to continue to operate in expensive panic mode – of course not. Too much money has already been spent for no measurable value to the students. Put this issue on the back burner at the college level, let the state and federal governments iron out something that works, and move on.

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