On August 2, WCET published our post, Accessibility in the Spotlight: Department of Justice Regulations, on the Department of Justice (DOJ) final rule revising the regulation implementing Title II of the Americans with Disabilities Act (ADA). The new regulation establishes requirements for making accessible the services, programs, and activities offered by state and local government entities to the public through the web and mobile applications. In the post, we provided an overview of the updates made in the regulation, the compliance timeline, and a preview of additional resources and events focused on accessibility and this regulation that WCET is planning.
In order to inform ongoing plans to support WCET members and others in this complex work, we conducted a brief survey Iast month to better understand institutional awareness around the revised regulation. WCET collaborated with both the State Authorization Network and NWHEAT (a collaboration of the Northwest Academic Computing Consortium and the Orbis Cascade Alliance) to solicit responses.
We received 205 responses representing a range of institutions/organizations, with the highest number of respondents at four-year publics that primarily offer baccalaureate and/or graduate degrees (47%), then two-year publics that primarily offer associate degrees (35%). Nearly half (48%) of institutions/organizations responding reported having Fall 2023 headcount enrollments of at least 10,000.
We also asked respondents what office/service within the institution they represent:
Respondents were asked if they were generally aware of the new regulation. An overwhelming majority (81%) answered “Yes.” When asked if their institution has taken any action to begin addressing compliance, a majority (61%) responded “Yes.”
Those who haven’t taken action or didn’t know did indicate that, in general and at some point, they have taken some sort of action to address accessibility requirements for web and mobile app usage by students, faculty, and staff, with the most common being consulting/working with campus Accessibility Services (45%) and working with vendors on accessibility (38%).
A majority or near majority of respondents who indicated that their institution has taken action to begin addressing compliance are in the initial planning phases, such as:
reviewing, analyzing, and/or discussing the regulation,
reviewing all web content and mobile apps to identify areas of non-compliance, and/or
consulting/working with campus Accessibility Services.
The highest percentage (17%) of the actions above that have been fully addressedor nearly done is for consulting/working with campus Accessibility Services. A key (if not surprising) takeaway here is that Accessibility Services is crucial to this work.
Many institutions clearly are working to grapple with what is needed for compliance, especially in the face of a relatively short timeline. Our survey surfaced the following key needs to support this work: staffing, training, faculty buy-in, vendors and procurement, and legal issues.
Staffing
Identified staffing needs included:
experts, whether on staff or consultants, on the regulation and digital accessibility in general;
librarians with expertise on archived content;
subject matter experts for “fields where there are content questions (data visualizations, art, maps)”; and,
instructional designers.
One respondent identified a need for “[s]ample updated language for job descriptions that incorporate the skill of authoring accessible content.
It is everyone’s job,” another for “new positions to serve as leadership” for this work.
Training
Numerous respondents indicated that professional development for staff, faculty, and administrators was crucial to assist in understanding and compliance.
One respondent suggested, “This is a huge undertaking on the instructional side to make sure faculty create accessible course materials. The training involved will be extensive.” Others suggested that this training needs to be mandated, given the circumstances.
Faculty Buy-In
The survey made it clear that faculty are considered crucial to ensuring compliance; however, many respondents expressed concerns that faculty members don’t understand their responsibilities around accessibility. There does seem to be a recognition of the extent of work that this would take: “Our instructors already are largely unaware of accessibility standards and trying to mandate this level of compliance in a short time, and then vetting/reviewing their materials to ensure compliance, is a very, very large lift for our already over-taxed faculty.” Another echoed such concerns: “So many files added to LMS and so many courses. Extremely time-consuming to review data and zero in on the inaccessible files!” But one respondent bluntly admitted, “The fear is people [faculty] will be deleting content.”
Vendors & Procurement
Respondents requested resources to assist in communicating with third-party vendors. Others suggested that a national list of vendors – particularly those who understand the often unique needs of higher education – that have had accessibility conformance reviews performed on their software would be helpful. As one stated, “I know there are some publicly available repositories of test results and VPATs [Voluntary Product Accessibility Template] but it would be nice to have a one-stop shop!” Challenges around existing multi-year contracts with vendors, who may not currently ensure accessibility of their products to the standard required in the regulation, also were mentioned.
Legal Issues
The need for legal guidance, particularly around the exceptions in the regulation, was another topic of interest. One respondent asked, “[f]or our conversations with legal, help [to] determine how the new guidelines impact the risk profile of accessibility to help us compare it to other risks on campus.” Another suggested: “I think being able to break down the legal aspects into practical applications would be very helpful.”
This post only scratches the surface of the myriad of institutional and organizational needs to comply with the revised regulation, from a better understanding of the regulation itself as well as accessibility standards, to models of plans from other institutions and guidance for private colleges and universities on how future regulations may affect them. While work toward compliance may seem daunting, it should result in increased accessibility for all students . As one respondent argued: “I would like to see a shift from a ‘compliance mindset’ to a[n] ‘equity mindset’ with my faculty and staff. It’s not about lawsuits, it’s about providing access to a quality education for all!”
WCET is committed to developing resources to assist with these topics and others, and we will soon publish additional Frontiers posts from accessibility experts in the field. We held a very successful Closer Conversation event about the regulation for members, and we recently published Access for All: New Accessibility Rules For Public Entities. This resource outlines the regulation in greater detail and includes a flowchart highlighting key questions to guide an institution’s processes to ensure compliance. This resource is only available to WCET and SAN members. Click the links below to download.
This month, WCET is placing a spotlight on digital accessibility, with a particular focus on the newly updated requirements for public entities, including higher education institutions. We kicked off the month with an overview of the recent ADA updates, and today, we are thrilled to continue along this theme.
A warm welcome and heartfelt thanks to Jared Smith, Executive Director of WebAIM, for joining us today. Jared offers an exceptional overview of the guidelines that the ADA will use as the standard for digital content accessibility.
Be sure to stay tuned to WCET for more expert insights on accessibility in upcoming Frontiers posts. WCET members, we’re eager to connect with you at this month’s Closer Conversation, where we’ll be discussing plans to meet these new regulations. Plus, don’t forget to check out our latest member-only resource: Access for All: New Accessibility Rules for Public Entities. SAN members can download it here, and WCET members can access it here.
Thank you once again to Jared and the WebAIM team for today’s post. This is a the time to prioritize digital content accessibility—not just to comply with updated regulations, but to ensure that all learners can fully engage with the innovative resources and tools available today. Here at WCET, we admire the work of WebAIM, and we are committed to helping to advance the mission to bring digital learning to everyone.
This update to the ADA provides much-needed clarification of how discrimination for digital products can be measured. The US Department of Health and Human Services has issued a similar update to Section 504 regulations requiring WCAG 2.1 A/AA conformance for digital content in a wide array of health and human services.
What is WCAG?
The Web Content Accessibility Guidelines (WCAG) are a set of international recommendations for digital accessibility. The guidelines are published by the World Wide Web Consortium or W3C. It’s important to recognize that WCAG itself is not a legal standard and it is not developed by the US government.
These technical guidelines are instead generated by representatives of interested W3C member organizations and invited experts – professionals who are interested in making the web more accessible to individuals with disabilities.
WCAG is not new. The first version of the guidelines, WCAG 1.0, was finalized 25 years ago in 1999. The guidelines were updated significantly in 2008 to version 2.0. In 2018, the 2.1 sub-version was finalized, and in 2023, version 2.2 was completed. WCAG 2.1 and 2.2 make very minimal changes to the requirements found in WCAG 2.0, but instead add new requirements to reflect modern innovation on the web, including mobile apps and devices and accessibility for users with cognitive and learning disabilities.
WCAG Conformance
WCAG is structured based on four main principles:
Perceivable,
Operable,
Understandable,
Robust.
These guiding principles provide a foundation to ensure that content:
can be received by a user’s senses,
can be navigated and operated,
is likely to make sense, and,
will work with the end user’s technology and assistive technology.
Within the WCAG principles are 13 high level statements about accessibility called guidelines. Examples of WCAG guidelines are “Provide text alternatives for any non-text content” and “Make all functionality available from a keyboard” – wonderful suggestions for making content accessible, but not very measurable.
Within the guidelines are success criteria which are measurable, pass/fail statements about accessibility. Success criteria require that images have alternative text, captions are provided for videos, form inputs are properly labeled, text has sufficient contrast, and much more.
Success criteria are where conformance with WCAG is measured. Each success criterion is assigned a level: A, AA, or AAA. The levels do not always align with end user impact, but in general, here is an overview:
When level A success criteria are not met there will likely be notable barriers to end users with disabilities.
When level AA success criteria are not met, then some users will likely have difficulty or frustration accessing the content.
Meeting the level AAA success criteria can provide benefit to many users with disabilities, but these success criteria are often more difficult to meet or may not be relevant or appropriate for some types of digital content. This is currently the highest standard to reach, however, it does not mean that all content will meet the needs of all end users.
The principles -> guidelines -> success criteria structure of WCAG results in each success criterion having a number designation. As an example, success criterion 2.4.3, which requires that navigation order be logical, is the 3rd success criterion in the 4th guidelines under the 2nd principle.
For a page or other digital product to meet the ADA technical requirements it, including any 3rd party content within that page or product, must fully meet all WCAG level A and level AA success criteria.
WCAG and the ADA
Because WCAG is the most common measure of digital accessibility, it has been a de facto standard for the ADA for many years. Many ADA and related lawsuits reference WCAG. The Department of Justice and other entities have long indicated that WCAG is a preferred measure of discrimination.
This year’s update to the ADA codifies WCAG 2.1 A/AA as being the technical standard for public entities. While WCAG 2.2 is the current version of WCAG, the new success criteria in version 2.2 are not legally required. Similarly, while AAA success criteria can be very beneficial to some users with disabilities, digital products are not required by the ADA to meet any AAA success criteria. This update to the ADA applies only to public entities, such as most higher education institutions, but these guidelines may be applied to private entities in the future.
Resources
WebAIM has found that accessibility barriers are pervasive on the web. While higher education web sites fare better than most others, barriers to users with disabilities and non-conformance with the Web Content Accessibility Guidelines are widespread. With ADA soon requiring WCAG A/AA conformance, institutions must begin now to formulate or accelerate plans to full implement these guidelines.
Because WCAG is a technical specification with sometimes confusing or ethereal language, it can be daunting and overwhelming. WebAIM’s WCAG Checklist provides a simplified presentation of the guidelines. The WebAIM web site has many materials to help you better understand, implement, and measure accessibility. The WAVE accessibility testing tools can be used to measure many aspects of WCAG conformance.
Post written by Jared Smith – Executive Director, WebAIM
WCET and SAN submitted an extensive public comment on the U.S. Department of Education’s proposed distance education regulations. We invite you to join us in commenting.
On July 24, 2024, the U.S. Department of Education (Department) released the Notice of Proposed Rulemaking (NPRM) and proposed regulations related to the most recent negotiated rulemaking. The regulatory issues in this proposed rulemaking package include Distance Education, Return to Title IV (R2T4), and TRIO Programs. WCET and SAN are committed to closely following these issues, providing information through publications and events, as well as encouraging institution participation in the regulatory process.
Our July WCET Frontiers post Buckle Up. ED is Off to the Races with Its NPRM provided a detailed analysis of the proposed regulations that could have a direct impact on distance education and digital learning. In that post, we urged you to review the proposed regulations, consider our analysis, and consider submitting your own public comment. The window to submit a formal comment closes on August 23, 2024. There is still time to submit a public comment! You must act quickly!
WCET and SAN have prepared and submitted our public comment in which we expand on our quick analysis in the earlier blog post. Review our comment and consider some of the themes that may affect your institution. We released our comment ahead of the deadline in case you wish to echo any of our concerns or support for what is proposed. Importantly, in your comment you should share specific student impact stories and clarifying questions with the Department. It is especially important to ask the Department clarifying questions as it is required to respond to all public comments.
Please note that WCET and SAN support the intent of the Department to provide student protection and protect the integrity of Title IV Federal aid programs. We support the Department’s Principles for Regulating listed in its regulatory plan, 78 FR 1361, published January 8, 2013. “ED is committed to regulations that improve the quality and equality of services it provides to its customers. ED will regulate only if absolutely necessary and then in the most flexible, most equitable, and least burdensome way possible.” The purpose of the WCET and SAN public comment is to balance adding new student protections while minimizing negative impacts on those same students.
Key Areas of the WCET and SAN Public Comment
The WCET and SAN public comment focuses on specific sub-issue areas related to the Distance Education and Return to Title IV issues that were addressed in the Winter 2024 negotiated rulemaking committee meetings. These two issues did not reach consensus during rulemaking. Lacking consensus means that because there was opposition within the committee about the proposed language for regulations for both issue areas, the Department had the authority to write the regulations for both issue areas.
There is a common theme in the WCET and SAN comment related to the clarification that distance education is not only an effective modality of instruction but is infused in face-to-face instruction causing implementation confusion for some proposed regulations. Additionally, our comment illuminates that some of the proposed regulations impose illogical restrictions on distance education that are not required for face-to-face instruction. The implementation confusion and illogical restrictions could ultimately limit student access to important workforce programs, increase staffing time and costs, and cause greater confusion for financial aid offices working with a wider range of institution departments to ensure compliance.
In our introduction, we raise four overarching themes that concerned us about the Department’s proposals:
Bimodal thinking by the Department that instruction is either distance education or in-person instruction rather than the multimodal blend of instruction that is currently used by faculty.
Lack of evidence shared by the Department to show actual harm to determine the need for more oversight.
Punishing the innocent institutions that comply with regulations due to the few institutions that are found to be non-compliant.
Distance education is being treated by some negotiators and by some of the proposals as an inferior modality of instruction.
We also supplied detailed reasoning for what we support, where we have concerns, and suggestions for alternatives for the following proposed regulations:
Attendance taking for distance education courses (34 CFR 668.22)
14-day documentation of withdrawal for attendance taking. (34 CFR 668.22)
Removal of Title IV aid for asynchronous clock hour distance education programs. (Amending – 34 CFR 600.2 Definition of Clock Hour and 34 CFR 668.3 Definition of an Academic Year)
Definition of distance education course (Amending 34 CFR 600.2 Definition section to add distance education course)
Addition of virtual location as a type of Additional Location. (Amending 34 CFR 600.2 Definition of Additional Location)
Please review the key areas carefully, as some of the regulations could significantly impact your students and faculty. Also, note where you have questions about how the regulation would be implemented, as getting answers to those questions is very important.
Your Public Comment to Address Distance Education Regulations
How did WCET and SAN arrive at their public comment? WCET and SAN responded to this “year of significant Department attention to regulating distance education” by holding a special in-person policy event to discuss potential rules and institutional implications. One hundred and sixty attendees from institutions and higher education organizations assembled in St. Louis in late July 2024 for two days to learn about the current Federal rulemaking, network with colleagues, and plan for the next steps and the public comment period.
At that event, participants received updates on what is happening in Washington, DC as well as panel sessions on the Winter negotiated rulemaking.
One attendee remarked that the meeting was “one of the most informative policy conversations I have been part of in a very long time.” We thank the attendees for their input, as their experiences informed our comment.
You, too, can participate in the regulatory process to address the new proposed regulations by providing a public comment.
The Federal Register announcement for the recently proposed regulations directs individuals to the Federal eRulemaking Portal to electronically submit the public comment.
The deadline for this public comment is August 23, 2024.
Consider the following:
Why comment?Your views matter! You can ask key implementation questions. The volume of information shared matters.
When to comment?Immediately!The comment period closes on August 23, 2024.
Who can comment?Anyone! But, for official comments from an institution or organization, you must have been given the authority to submit.
What to comment?Support, Questions, Concerns, Student Impact. They especially want to hear about how a proposal will affect your students.
Your experiences could inform the Department about specific challenges and unintentional consequences for students and institutions. We encourage you to suggest alternatives and ask clarifying questions. The Department could benefit from your information. Specifically, the Department appreciates precise comments, with references to sections and subsections to organize your submission. Where possible, support your argument with data-driven evidence. You are welcome to use our published comment for suggestions on possible comments and to help you cite specific proposals.
As we previously mentioned, volume matters. However, while the number of comments matters, each comment should be substantive and useful. The Department noted that a well-supported comment is more informative than many form letters. We do not supply a comment template as the Department is clearly discounting submissions that look the same.
Next Steps
Following the public comment period, the Department must review each comment to respond and consider the information related to the development of the final regulations. The response to comments, typically by comment themes, will be provided in the “preamble” of the publication of the final regulations provided in the Federal Register.
After the public comment period, there is one more opportunity for individuals to participate in the rulemaking process. Before the release of the final regulations, the Department must submit the final draft regulations for an Executive Branch review by the Office of Information & Regulatory Affairs (OIRA) part of the Office of Management and Budget (OMB). The review of the regulations takes approximately 3-4 weeks. The OIRA review is required to consider consistency with administration goals, issues of federalism (undue burden upon state oversight), and economic impact (costs to implement).
Individuals may request an audience with OIRA/OMB or, as they call it, an Executive Order (EO) 12866 Meeting. The meeting is an opportunity to be heard about these issues related to the regulatory actions in question. We urge you to request a meeting to discuss your concerns on the OIRA review. We believe the economic impact of these proposals on institutions and students is disturbingly underestimated. In the case of distance education data collection, they admitted they could not estimate it and deferred it to a later date. Institutions will need to be clear about where the implementation of these proposals will incur significant costs.
WCET and SAN requested an OIRA/OMB meeting prior to the release of the final Certification Procedures regulations in Fall 2023 and found the meeting beneficial. The thirty-minute meeting is essentially a listening session with OIRA staff and a Department representative. It is an opportunity to be heard by Federal staff outside of the Department and to consider any outstanding concerns and implications.
If the final regulations are released by November 1, 2024, they will be effective as early as July 1, 2025. It is at the Department’s discretion to determine if there is an enforcement date beyond the effective date of the regulations for institutions to prepare adequately for compliance. The WCET and SAN public comment includes a request for a later enforcement date related to a few of the proposed regulations.
WCET and SAN will follow the next steps closely and share more as those steps occur!
Post Authored by Cheryl Dowd – SAN, Van Davis – WCET, and Russ Poulin – WCET
For today’s post we are happy to welcome members of the WCET Steering Committee to discuss the efforts of the Digital Learning Economics working group. The Steering Committee forms working groups each year to address critical issues in digital learning.
In 2024, the focus is on helping digital learning leaders engage effectively in budget and funding discussions within their institutions.This initiative, sparked by round table discussions in October 2023, aims to ensure that financial decisions are grounded in a comprehensive understanding of higher education’s digital learning landscape and align with institutional missions and goals.
In this post, the working group explores challenges in this area, shares insights from past research, and invites you to contribute your experiences and strategies for navigating the economics of digital learning.
Enjoy the read, Lindsey Downs, WCET
Each year, the WCET Steering Committee members form working groups to explore some of the most important issues in digital learning. The 2024 WCET Steering Committee Digital Learning Economics working group aims to empower digital learning leaders to participate in the budget or funding conversations at their respective colleges or universities. We hope that resulting decisions will be made based on a sound understanding of higher education digital learning and data in accordance with the institution’s mission, vision, and goals. This project was born from in-person October 2023 round table discussions that identified ROI and the value of higher education as topics of importance. This is familiar territory for our community; in 2017, WCET published a report on the cost and price of distance education based on a national survey. Recently, Robert Kelchen, writing in the Chronicle of Higher Education, mused, “I may be a bit biased about the value of understanding higher-education finance given the course that I teach, so take it from TheChronicle’s most recent Trends Report: If people do not understand the types of conversations that are happening — and how to influence them — they may be in for a rude awakening” (2024).
The collective experience of the steering committee identified these problems related to digital learning economics:
There is a lack of a healthy economic model for digital learning allocation through higher education institution budgets, especially as different governance models exist at different institutions.
The higher education bubble may have already burst. Will the availability of digital learning continue to be a differentiator for schools, or will student support services (which cost more) become more important to our students?
How should institutions define digital learning cost data? What is being paid for? Who is paying for it? How do we, as a profession, even define the cost of distance education? Or the revenue?
What to Expect from Our Working Group
The Steering Committee Working Group will continue to develop other resources and articles throughout the rest of the year. As WCET begins to analyze and report on data from a new survey regarding the cost and price of distance education, we hope to offer additional institutional examples for calculating the cost of digital learning and highlight how we, as Higher Education leaders, can best communicate that information to institutional leadership.
In the meantime, we would like to hear your stories and experiences about how your institution thinks about the cost of digital learning and uses that information to communicate its institutional value. Share your insights with us.
Do you have a way to calculate digital learning’s cost (and price)? If so, are you willing to share your process with us?
How your institution handles digital learning revenue. Does it stay in a centralized distance education department? Does it revert back to the academic department offering the course? Or does it become a part of the institution’s general revenue?
How do you communicate the value of digital learning to your campus leadership?
What role does digital learning play in strategic discussions at your institution? Are digital learning leaders “at the table” where strategic finance decisions are being made?
We’re looking forward to continuing our work in this area and sharing what we learn with the WCET and higher education community.
On June 24, 2024, the Department of Justice (DOJ) issued its final rule revising the regulation implementing Title II of the Americans with Disabilities Act (ADA).
The new regulation establishes specific requirements, including the adoption of specific technical standards, for making the services, programs, and activities offered by state and local government entities to the public through the web and mobile applications accessible.
This rule, which currently covers only public universities and colleges, went into effect on June 24, 2024, with compliance expected in the next two to three years, depending on the size of the total population the institution serves. We anticipate, however, that these regulations will eventually serve as a template for further action by the DOJ and the Department of Education, which would also apply to private institutions.
Background – Ensuring Equal Access
The rule came about, in part, as a recognition of the increasing reliance on web and mobile content as well as the challenges, such as lack of independence and privacy, that can stem from accessibility barriers to this content. Additionally, the rule recognizes that accessible digital spaces benefit everyone. Finally, voluntary compliance with accessibility guidelines has not resulted in equal access for individuals with disabilities; accordingly, organizations urged the Department to take regulatory action to ensure web content and mobile app accessibility. According to the Department of Justice, this rule is necessary to help public entities understand how to ensure that individuals with disabilities will have equal access to the services, programs, and activities that public entities provide or make available through their web content and mobile apps.
Updates Made in the Regulation
This rule adds a new subpart (H) to the Title II ADA regulation, 28 CFR part 35, that sets forth technical requirements for ensuring that web content and mobile apps that state and local government entities, including public universities and colleges, provide or make available, directly or through contractual, licensing, or other arrangements, are readily accessible to and usable by individuals with disabilities. The rule applies one consistent standard to both web content and mobile apps (including social media platforms) to ensure clarity and reduce confusion. Additionally, the rule preempts state laws affecting entities subject to the ADA only to the extent that those laws provide less protection for the rights of individuals with disabilities.
The Department of Justice has adopted the internationally recognized accessibility standard WCAG 2.1 Level AA success criteria and conformance requirements (including for captioning). Public entities are expected to adhere to this standard unless they comply by conforming their web content to WCAG 2.2 Level AA, which provides equivalent or greater accessibility.
The rule emphasizes that public entities are responsible for complying with their ADA obligations even when their services, programs, or activities are offered through contractors such as learning management system companies, content from publishers, YouTube videos, social media, and the institution’s mobile app. Thus, institutions are now responsible for the accessibility of any vendor that provides services related to their websites or mobile presence.
There are, however, five very limited compliance exceptions.
Archived web content that is not currently being used. However, in order to be exempted this content must meet four additional requirements. WCET and SAN have reviewed those requirements and believe that it will be very difficult for institutions to meet them.
Pre-existing conventional electronic documents such as word processing, presentation, PDF, or spreadsheet files, unless those documents are used to apply for, gain access to, or participate in the public entity’s services, programs, or activities.
Content posted by a third party if the third party is not controlled by, or acting for, the entity.
Individualized password-protected documents about a specific individual, their property, or their account. Note that this does not includepassword-protected content, such as instructional content in a learning management system.
Preexisting social media posts made by an institution before the date the institution must comply with the rule.
Compliance Timeframe
The date by which institutions must be compliant with the new rule is based on the population served by the public entity:
Large entities, those institutions serving a total population of 50,000 or more, must comply by April 24, 2026.
Small entities, those institutions serving a total population of less than 50,000, must comply by April 26, 2027.
Note that the total population is not the population of the institution; rather, it is the population of the area that the institution serves. For example, the total population of a public state university would be the total population of that state. The total population of a community college would be the total population of the district that it serves. WCET and SAN believe that this means that almost all four-year and two-year institutions would be considered large entities and must comply by April 24, 2026.
WCET will focus on accessibility during the month of August with a special emphasis on these regulations. Here is some of what we have planned:
Frontiers posts from accessibility experts in the field.
Newly announced Closer Conversation event about the regulations for members to discuss their institutional challenges and concerns and share how they plan to address these regulations. Seats are limited! Register now.
A new, member-only resource: Access for All: New Accessibility Rules For Public Entities. This brief outlines the regulations in greater detail and includes a flowchart highlighting key questions to guide an institution’s processes to ensure compliance. This resource is only available to WCET and SAN members. Click the links below to download.
Recently WCET had the opportunity to work with a coalition of organizations including the Online Learning Consortium, Complete College America, the Thurgood Marshall College Fund, and the National Association for Equal Opportunity in Higher Education to examine the role that Historically Black Colleges and Universities (HBCUs) can play in shaping artificial intelligence.
As the report explains, “The significance of AI in modern society cannot be overstated. Its influence spans across all sectors, heralding a new age of innovation and problem-solving. However, this wave of change also brings challenges, particularly in ensuring equitable access and representation within AI fields.
HBCUs, with their history of academic excellence and commitment to inclusivity, are uniquely positioned to address these challenges, turning them into opportunities for their students and the broader community.”
But, in order to do this, HBCUs must adopt strategies around curriculum development, faculty training, infrastructure enhancement, and partnership building that center AI in their campuses and the greater community.
Focusing on HBCUs – Critical Timing in Inclusive AI Development
Why focus on HBCUs? HBCUs have a long legacy of excellence and inclusivity to bring to bear on our exploration and adoption of artificial intelligence. HBCUs excel at embedding cultural competence into their curriculum and preparing graduates for impacting their communities and our greater world. Additionally, HBCUs have long played an outsized role in producing STEM graduates. The McKinsey Institute for Black Economic Mobility reported that while in 2018 Black students only earned seven percent of all STEM baccalaureate degrees, HBCUs produced almost a quarter of those graduates. The need to create racial parity in artificial intelligence is especially critical.
By 2045, the McKinsey Institute for Black Economic Mobility reports, generative AI has the potential to widen the Black/White household wealth gap by $43 billion annually – but, if implemented carefully, the technology may have beneficial impacts instead. Additionally, it is imperative that ethical AI systems be developed in consultation with as diverse a group of stakeholders as possible. As the White House AI Bill of Rights states, “Automated systems should be developed with consultation from diverse communities, stakeholders, and domain experts to identify concerns, risks, and potential impacts of the system.” HBCUs are uniquely positioned to play a role in the development of ethical AI systems.
There are a number of actions that HBCUs can take that the report lays out. These include:
Prioritizing ethical AI education,
Strengthening AI research partnerships,
Centering the needs of the Black community in AI,
Implementing AI governance at the institutional level,
Building and enhancing AI operations at the institutional level,
Advancing AI pedagogy,
Implementing comprehensive AI integration across the curriculum,
Promoting cross-disciplinary AI literacies,
Leading in AI curriculum innovation,
Developing strategic industry partnerships,
Promoting experiential learning for an AI-driven job market,
Supporting AI research and innovation.
HBCUs should also prioritize strategic activities that will assist them in becoming leaders in the advancing AI revolution. These strategic activities include:
Curriculum development and approval, Year 1, high priority
Faculty hiring and training, Years 1-2, high priority
Resource allocation and infrastructure setup, Years 1-3, medium priority
Funding and grant applications, ongoing, high-priority
Industry partnerships, Years 2-4, medium priority
Community outreach and education, Years 2-5, low priority
Global engagements and conferences, Years 5-10, low priority
It is imperative that HBCUs play a critical role in the development, evolution, and implementation of AI, especially generative AI tools. Kate Crawford writes in Atlas of AI, “Artificial intelligence is not an objective, universal, or neutral computational technique that makes determinations without human direction. Its systems are embedded in social, political, cultural, and economic worlds, shaped by humans, institutions, and imperatives that determine what they do and how they do it.”
With their history of STEM training and strength in contextualizing academic instruction, HBCUs are uniquely situated in shaping the AI landscape for the better. As Leading the Revolution concludes, “In a world where AI will undoubtedly play a pivotal role, the question should not only be how to adapt to this technological revolution but who gets to lead it. HBCUs have a unique opportunity to ensure that the narrative surrounding AI is diverse, equitable, and inclusive as the technology itself promises to be.”
We’ve been waiting with bated breath to see if the U.S. Department of Education would surprise us when they released the Notice of Proposed Rulemaking (NPRM) and proposed regulations related to the most recent negotiated rulemaking.
What follows is our analysis of the NPRM and some thoughts on how to make your voice heard. Please note that time is of the essence. You only have a 30-day window in which to make your voice heard on these regulations that will have a massive impact on distance education and digital learning.
What the Department did and didn’t release and why the Department cares about distance education
Readers may remember the most recent negotiated rulemaking that was concluded earlier this spring focused on several items, including:
state authorization reciprocity,
attendance taking for distance education courses,
distance education data reporting requirements,
disallowing federal financial aid for asynchronous clock hour programs,
accreditation,
cash management,
return to Title IV, and
TRIO programs for undocumented students. (The latter being the only area where negotiators reached consensus.)
Earlier this week, the Department released the distance education-related regulations and return to Title IV regulations for public comment. In a blog post published on July 17th, the Department indicated that it would publish proposed regulations related to cash management, reciprocity, and accreditation “by next year” as it is “tak[ing] additional time to carefully consider these important, complicated issues, and refine solutions that address important challenges for students while balancing the need for quality oversight and improved student protections with the burden on institutions and changes impacting college accrediting agencies.”
Rulemaking Reminder
A quick reminder of the rulemaking process. Because negotiators did not reach consensus in all but one area of the negotiated rulemaking, the Department is able to propose its own language for the rules through its NPRM. The publication of the NPRM in the Federal Register in the next few days starts the clock ticking on 30 days for the public to comment. At the end of that 30-day period, the Department will review all public comments, make any changes to the proposed language that it feels is warranted, and then will publish the final rules. If those final rules are published by November 1, 2024, then they will go into effect on July 1, 2025. If they are published after November 1st, they will go into effect July 1, 2026.
Why Did They Propose These Regulations?
You may be wondering what the Department’s rationale for these proposed regulations is. We repeatedly heard during negotiations that the Department has a responsibility to protect students and ensure that the sizeable federal investment in higher education through Title IV federal financial aid is protected. In that July 17th blog post, Under Secretary James Kvaal, writing for the Department, reiterated that these proposed rules would “further protect students and taxpayers” and “update and improve outdated processes, consolidate rules, and establish more consumer-friendly policies for students to access the aid to which they are entitled.”
Attendance Taking for Distance Education Courses
What the Department is proposing
Under current regulations, an institution must follow a complex set of rules to determine the amount (if any) of disbursed federal aid should be refunded to the Department of Education if a student withdraws from a course or the institution. If a student withdraws without official notice from a distance education course(s), the institution must determine the “last day of attendance” for that student. The Department of Education defines the “last day of attendance” as the last time the student participated in one of the activities associated with “active engagement” in a course. This might include taking a test, submitting a paper, or participating in an online discussion about the course content. Logging into the learning management system without any other activity does not count.
Citing some amorphous instances of institutions not adequately documenting the student’s last day of attendance, the Department proposed the following to “simplify” and improve the accuracy of determining the student’s last day of course activity:
Require that attendance be taken in all distance education courses. While they use the word “attendance,” the Department appears to mean documenting the last instance of academic engagement for EACH student with the exception of dissertation research courses.
Within 14 days of a student’s last date of attendance, the institution must effectively withdraw a student and document that withdrawal date.
Our analysis and concerns
We are dubious that the proposed regulations would “simplify” compliance for institutions. As we reported back in March, we talked with individuals from several institutions and NASFAA (the financial aid organization) and heard that with the exception offully-online institutions or those institutions that are already taking attendance, the proposed regulations would not simplify things at all. In fact, they thought it would greatly increase the work involved for such actions with the addition of necessary policy creation, faculty development, software changes, and the faculty and administrative time to take attendance on each and every student for each and every course.
We also have grave concerns regarding the 14-day requirement. We are concerned that this proposed language will inadvertently negatively impact adult learners. Many of the individuals we spoke with reminded us that with adult learners, it is not uncommon for them to not engage in coursework for a period of time but still complete the course successfully. Additionally, this 14-day requirement will create more burden for faculty to understand, administer, collect, and archive formal leave of absence notices for students who will be gone for more than 14 days. Examples of such leaves include students on temporary military duty or those experiencing health issues. Finally, there are academic implications. To improve student learning and address academic integrity requirements, some faculty have employed authentic assessment techniques that engage students in research or studies in the community or their chosen profession. Sometimes, these assignments take more than 14 days of research or fieldwork. Meanwhile, the instructor is available for questions, but the possible lapse in academic engagement will need to be documented.
Disallowing financial aid for asynchronous clock-hour courses and programs
What the Department is proposing
Although most financial aid is disbursed to students through the credit hour, some programs use clock hours as the basis for financial aid disbursement. This type of disbursement is most prevalent in practical programs like welding or cosmetology. In clock-hour programs, aid is literally determined by the number of student participation minutes associated with the program.
During the recent negotiated rulemaking, the Department expressed concern that institutions offering asynchronous clock hour programs were not adequately tracking the amount of time students spent in their asynchronous courses. One negotiator went so far as to accuse asynchronous clock-hour programs of being nothing more than students watching a bunch of YouTube videos. For “evidence” the Department cites a New America analysis of a survey conducted by another organization. Unfortunately, the survey was about student satisfaction with COVID-era remote learning, and there appears to be no mention of whether the instruction was asynchronous or synchronous, as often happened during COVID. As a result, the Department is proposing to “disallow enrollment in asynchronous distance education courses for programs that use the clock-hour method of financial aid disbursement.” It is important to note that this only applies to clock-hour courses and does not impact credit-hour courses.
Our analysis and concerns
Although the Department cited problems with institutions accurately tracking the time students participate in asynchronous clock-hour courses, it was unable to provide specific institutional examples or the scope of the problem. They said that they witnessed some institutions that spent lots of time and money getting it right. We understand the Department’s concern, but we worry about those institutions being punished for the non-compliance of others. We are also very afraid that this prohibition will hurt the students in these programs, many of whom have the greatest need for financial aid. During the negotiated rulemaking public comment period, we heard many current and former students speak about how they would be unable to participate in face-to-face clock-hour programs and would be forced to withdraw from their asynchronous programs should the Department pull financial aid for those programs. For a Department that expresses a desire to help those students most in need, this decision to eradicate financial aid for asynchronous clock-hour courses and programs seems likely to hurt the very students the Department purports to help.
Creating a “virtual location”
What the Department is proposing
Institutions currently report students as participating in one of three physical locations: a) the main campus, b) a branch campus, or c) an additional location (which the Department defines as a “physical facility that is geographically separate from the main campus of the institution…at which the institution offers at least 50 percent of an educational program.”
In addition to the existing three location categories, a fourth, “virtual location,” would be added for “which the institution offers 100 percent of an educational program through distance education or correspondence courses, notwithstanding requirements for students to complete on-campus or residential periods of 90 days or less.” The institution would assign the student to one of these four locations.
This Department claims this new classification will be beneficial as it will help it:
“…measure and better understand student outcomes and the amount of Title IV fund program funds being expended in each setting”,
“…conduct more accurate program oversight including through better tailored program reviews”,
“…improve the Department’s ability to determine the States where title IV, HEA recipients are located”,
Qualify students for “closed school discharges” if the institution ceases its online offerings but does not completely close.
Our analysis and concerns
There are some definite benefits, but we are not sure we have been given the full details of exactly how this will work, so we have some reservations. As to the benefits listed above:
We support student outcomes research but have questions.
We are in favor of better institutional program reviews.
We do not recall the Department citing the need for student location data during the negotiations until they realized they did not have it in analyzing a proposal regarding state authorization reciprocity. They used SARA data, which works fine for everyone except California.
The ability for students to receive benefits if an institution shutters its online operations is a worthy benefit. Most institutions making the change have moved completely online, but it is possible that an institution could return to fully on-campus instruction.
The Department is expected to analyze the costs for compliance for each of its recommendations. Unfortunately, there is no separate analysis of implementing a virtual location. We are not sure if this is an oversight or if they considered it part of their analysis for collecting data, as outlined in the next section of this post. There will be a great need for work and coordination between the institutional registrar, provost, financial aid, and distance education leadership to make policies and implement the required technical changes. There will be a cost. We have more significant questions about the data collection proposed.
Collecting more data on distance education courses and programs
What the Department is proposing
As noted with the creation of the Virtual Location proposed above, the Department is keen on collecting additional data on distance education. In the Virtual Location discussion, they cited the purposes of “program oversight, audits, looking at outcome metrics, and College Scorecard program-level data, including debt, earnings, and completion.”
A few negotiators also proposed that for each student receiving Title IV financial aid, “the institution must submit to the Secretary, in accordance with procedures established by the Secretary, a report regarding the recipient’s enrollment in distance education or correspondence courses.” The Department goes on to write (p. 41) that “the proposed addition of a definition for distance education course would enable the Department to better assess the effectiveness of distance education and compare its outcomes with those of traditional in-person instruction.”
This is a significant increase in institutional data reporting. The Department will provide the details later (“we would explain the details of this reporting in guidance pertaining to the operation of the Department’s systems”) along with an opportunity for institutions to provide feedback on the proposed data collection elements.
To give time for that process and institutional implementation, the effective date is delayed to July 1, 2026, so institutions will have sufficient time to make the necessary changes.
Our analysis and concerns
As we wrote back in March, we are still trying to figure out the long-term implications. While we have long advocated for more data about distance education, we are heartened that the Department recognizes that this will take effort and time for both the FSA staff and the institutions. The delay and opportunity for feedback are welcomed.
We do have significant concerns:
The original proposal by negotiators was for simple student-level data on enrollment modalities. This has morphed far beyond what was discussed to include: program oversight audits, outcome metrics, College Scorecard program-level data, debt earnings, completion rates, the amount of Title IV funds expended on distance education programs, and the State in which the distant student is located while enrolled. During rulemaking, the Department never provided such an extensive list for negotiators to give their reactions. We can see where collecting some of this information might make sense, but others make us worry about the possibility of seeking reasons to defund distance education programs.
Even with the delay, we are concerned about the Department’s ability to manage this process internally and in giving proper direction to institutions and their financial aid software providers.
Importantly, we have sincere concerns about how the Department might use such data. We hope clear research questions are elucidated when they propose the data elements. Meanwhile, we are all aware of “research” that pins differences in student success on modality while overlooking differences in the population served. And in the long list of items the Department suggests, the necessary demographics are missing. We are worried that the Department might erroneously make a correlation equals causation argument regarding student success in distance education. As if to validate our concerns, in this NPRM the Department cites research of COVID courses, which is not generalizable to all distance education. There is so much wrong with this approach. Watch for more from us on this issue.
The Department punted on any cost analysis, but it will likely be significant. When the Department cites its cost calculations for the package, it would be nice if it acknowledged the huge missing asterisk of the cost information that is not collected for this data proposal.
Finally, the proposal falls short of its own goals. If they want to make the comparisons between distance and on-campus students that they are touting, then they need information on ALL students.
How you can get involved…and you must
It’s critical that we respond as a community to help the department understand how these regulations will impact students and institutions. How can you get involved? Comment! Institutional personnel, program personnel, or individuals may comment during the 30-day public comment period.
How to comment
If you wish to comment as an institution or program, you should work with your institution’s government relations office. But you don’t have to comment as an official representative of your institution; you can comment as a private citizen.
Each NPRM announcement provides directions on how to comment in the Summary section of each notice. You are directed to submit comments via the Federal eRulemaking Portal at regulations.gov.At regulations.gov under FAQ, you will find the instructions for finding a rule on the site and submitting comments. Please note that the Department will not accept comments by fax, email, or submission after the comment period ends. You are advised to include the Docket ID (that will come in the Federal Register version, and we will update this post when it is published) at the top of the comments and submit your comments or attachments in Microsoft Word format.
Who can comment
Comments can come from institutions/organizations or individuals. Official comments from an institution or organization are important, but be sure that you have the approval of the President or whomever has authority. We do not want you to lose your job. You can also comment as an individual. You can state your place of employment and expertise but be clear that it is your own opinion.
What should you say
Here is your opportunity to ask clarifying questions, show support for the language, express challenges that could have unintentional consequences on students or your institution, suggest alternatives (they like that), or raise other concerns.
We suggest that, if possible, you explain the impact of the proposed regulations on students and your institution and, wherever possible, provide helpful suggestions that improve the proposed regulations.
More than we have seen in previous NPRM announcements, the Department provided a series of tips to consider when preparing your public comment. Suggestions include:
being concise,
referring to specific sections and subsections in order to organize your submission,
and, where possible, support your argument with data-driven evidence.
Finally, we often share that volume matters for letters to the Department. However, we want to be clear that the number of comments is important, but the comments should provide substance that is useful for the Department. The Department noted that a well-supported comment is more informative than many form letters.
Next steps
As previously shared, the comment period will end 30 days after the official release of the NPRM, approximately August 21st (we will update this post with the official date once it is released in the Federal Register). The Department must review and respond to the submitted comments. The announcement of the final regulations will include the Department’s response to the comments in the preamble of the Federal Register announcement. Final regulations that are released by November 1, 2024, will be effective July 1, 2025.
A few months ago, we were thrilled to welcome Barry Briggs, one of our interns at WCET and Every Learner Everywhere, as a guest author for a great post about Minority Serving Institutions. Today, we are excited to have Barry back on Frontiers to share his research on the impacts of quality digital learning. This work focuses on how Hispanic Serving Institutions create nurturing digital learning environments that enhance student success by showing care, honoring culture, and fostering a sense of community.
Barry has recently completed his internship with us, and we send him our best wishes for his future endeavors. Thank you once again, Barry!
Enjoy the read, Lindsey Downs, WCET
In recent years, the shift to digital learning has brought numerous challenges and opportunities for educational institutions, particularly Hispanic-Serving Institutions (HSIs). While the transition to online education has enabled greater accessibility, it has also highlighted the need for a nurturing and caring environment that caters to the unique needs of Hispanic students. Now, more than ever, there is a call for education that caters to the culturally diverse audiences institutions aspire to reach. In education, there should be no one-size-fits-all.
Why is this Important?
Creating a nurturing and caring environment in digital learning is essential for several reasons:
cultural responsiveness,
student engagement, and,
retention and success.
Hispanic students often come from diverse cultural backgrounds which influences their educational experiences.
Showing Care in a Virtual World
A more nurturing environment acknowledges and respects these cultural differences, promoting a sense of belonging. As a result, nurtured students are often more engaged and more likely to succeed. A caring environment that prioritizes student well-being and support fosters higher levels of engagement. Students who feel supported and valued are more likely to persist and succeed in their studies. This is particularly crucial for HSIs, where retention rates can be a significant concern.
As Michelle Pacansky-Brock argues, one of the most effective ways to create a nurturing environment is by humanizing online education. Instructors can achieve this by creating personal connections, such as using personalized video messages to introduce themselves, sharing their backgrounds, and expressing their commitment to student success. Dr. Luke Dowden, Chief Online Learning Officer at Alamo Colleges, advises these messages should be authentic. Authenticity helps develop that personal connection between faculty and students and shows students the life the faculty member leads.
For example, in recorded or live videos, allow pets and children to be heard in the background. I agree that the more authentic a professor is in the digital space, the more relatable they are to their distance-learning students. Professors should be accessible by maintaining regular virtual office hours and encouraging students to reach out with questions or concerns can make a significant difference. Sharing personal stories that relate course content to real-life experiences, including the instructor’s own, helps students see the relevance of their studies and builds a personal connection.
Consider the Impact of Culture
Culturally responsive teaching acknowledges and incorporates students’ cultural references in all aspects of learning. It creates an ecosystem of care and respect for the different cultures blended within the classroom. Instructors can enhance the course by integrating diverse content, such as perspectives and examples that reflect the experiences of Hispanic communities. Place value on students’ experiences by creating assignments that encourage them to learn more about their cultural backgrounds This helps bridge the gap between the world of education and everyday life experiences. It is time that we move past just celebrating cultural heritage by recognizing and celebrating cultural events, days, and traditions relevant to Hispanic students. Although this acknowledgment fosters a sense of pride and belonging, it mitigates the importance of these students to just certain holidays rather than creating a space at the table for their culture in its totality. Traditional celebrations have the potential to “othering” Hispanic students, further making them feel like they don’t belong in online higher educational learning when it is the only aspect of culture that is celebrated.
Creating a Sense of Community
Creating a sense of community in a digital space can be challenging, but it is crucial for a nurturing environment. Implementing peer mentoring programs provides students with guidance and support from their peers, which helps new students navigate the challenges of digital learning. Facilitating the formation of virtual study groups where students can collaborate, share resources, and support each other academically fosters a sense of community. Dr. Jory Hadsell, Vice Chancellor of Foothill-De Anza Community College District, relates that he has seen some students who would often take online classes together so that they could keep the virtual comradery going for as long as possible.
Building on this foundation of community, access to support services is vital for student success in digital learning. Institutions should ensure that online Hispanic learners can access academic advising by offering virtual academic advising sessions to help them plan their courses and address any academic challenges. Institutions should also provide access to virtual counseling services and mental health resources to support students’ emotional and mental health, guaranteeing that all learners have access to reliable emotional support. This is another way to foster that sense of belonging and care students need to persevere in their programs.
Continuous Feedback
To further enhance this nurturing environment, continuous improvement is essential. Solicit regular feedback from online Hispanic learners to understand their needs and make necessary adjustments. This can be achieved through surveys, one-on-one Zoom calls, and questionnaires to gather feedback on the effectiveness of teaching methods, course content, and support services.
Encouraging students to share their concerns and suggestions through open communication channels, such as virtual office hours or anonymous suggestion boxes, helps maintain open lines of communication. Acting on the feedback received to make tangible improvements in the learning environment demonstrates a commitment to online Hispanic students’ success.
Fostering a nurturing and caring environment for digital learning at Hispanic-Serving Institutions is crucial for the success and well-being of Hispanic students. By humanizing online education, embracing culturally responsive teaching, building a strong virtual community, providing comprehensive support services, and continuously seeking feedback, educators can create an environment where all students feel valued, supported, and empowered to succeed. As we continue to navigate the evolving landscape of digital learning, these strategies will help HSIs effectively serve their student community.
In the last month, you may have seen a flurry of articles indicating the demise of the Federal regulatory landscape as we know it. This is due to a recent U.S. Supreme Court decision in Loper Bright Enterprises vs. Raimondo and Relentless Inc. v. Department of Commerce. Many articles argue that the sky is falling on the development of federal regulations. The word “chaos” has been used by multiple colleagues with smart minds. Truthfully, it could be several years before we actually see the impact of the court’s decision on administrative rules due to eliminating the 40-year-old precedent colloquially called the “Chevron Deference.” As we will explain, you can anticipate that courts, Congress, and administrative agencies will react and forge a path forward in light of the new decision.
There are deep legal nuances addressed in the court’s opinions, but in this post, we will focus on the information you need to understand the case and its potential impact on recent and future Federal regulations, specifically those addressing distance education.
If you take nothing else away from today’s blog post, understand that no Federal regulations were immediately overturned by this ruling. There will be legal challenges to existing Federal regulations in the future, but rules are the rules until they aren’t. We will keep you posted on court challenges as these recent opinions will likely affect many areas of life in the United States, including our work to comply with U.S. Department of Education regulations.
The Background
Chevron Deference
Congress delegates regulatory functions through statute to administrative agencies. The agency must interpret its authority within the limits provided by Congress. On occasion, regulations are challenged via lawsuit as exceeding statutory authority.
In 1984, when reviewing Environmental Protection Agency regulations, the U.S. Supreme Court created a new doctrine for interpretation of statutory authority in its opinion in Chevron U.S.A. Inc. v. Natural Resources Defense Council.
Under this doctrine, courts would defer to an executive agency when the statute was either silent or ambiguous in its interpretation, or there could be multiple reasonable interpretations. After the 1984 ruling, the “Chevron Doctrine” (which spawns the Chevron Deference) became the standing case law used by the courts.
It was noted in the Loper Bright Enterprises majority opinion and in other recent articles that the Supreme Court, since 2016, has moved away from the Chevron Deference in favor of other interpretive principles. In other words, the Supreme Court has downplayed the impact of overturning this doctrine by maintaining that since 2016, the court has not been giving deference to an agency’s interpretation of a statute and has instead used other methods to determine Congress’ meaning of a statute.
What about the Administrative Procedure Act (APA)?
If the issues around the Chevron Deference and Loper Bright Enterprises weren’t complicated enough, we must also consider the Administrative Procedure Act. The APA is a Federal statutory law created by Congress in 1946 that provides specific steps that Federal agencies must follow to develop and issue regulations. We often reference the APA when the U.S. Department of Education initiates negotiated rulemaking. In addition to directing that the agency must provide transparency through the release of notifications and opportunities for public comment, the APA also directs that federal courts decide all relevant questions of law arising from challenges to the agency’s regulations. In fact, the APA states that the courts should apply “independent judgment” to determine if an agency exceeded its authority.
Loper Bright Enterprises (2024) – The Ruling about Chevron Deference
Majority Opinion
The Loper Bright Enterprises vs. Raimondo and Relentless Inc. v. Department of Commerce concluded with a 6-3 decision. Chief Justice Roberts in writing for the majority opinion, indicated that the legal question was whether the Chevron Doctrine, the deference to agency interpretation established in a 1984 court opinion, should be overruled or clarified.
The court held that Chevron is overruled, ruling thatthe Chevron Doctrine conflicts with the APA. The opinion states that the APA was enacted by Congress as a check on administrators who may act beyond what was contemplated in legislation. Specifically, the opinion cites the applicable statute, 5 U.S.C. 706, stating that the APA specifies that the courts, not agencies, will decide “all relevant questions of law” arising from the review of an agency’s action.
It is important to note that the opinion states that in overruling Chevron the court does not call into question prior cases that relied upon Chevron. This means that decisions in previous cases that relied on the Chevron Deference are still lawful and in effect despite the court’s change in interpretive methodology.
Corner Post (2024) — The Under-the-Radar Ruling that Also Matters
Statute of Limitations
Several days after the Looper Bright Enterprise ruling, the court issued a ruling in Corner Post, Inc. v Board of Governors of the Federal Reserve System that deals with how the statute of limitations for challenging regulations should be calculated. Federal Statute, 28 U. S. C. §2401(a), directs that there is a time limit for a plaintiff to bring a civil claim against the United States. The legal challenge must be filed “within six years after the right of action first accrues.”
So, does the clock start ticking for those six years? Corner Post states that the six-year clock starts when the party is injured rather than the long-time practice of starting the clock when a regulation becomes final.
The majority opinion explained that they applied a long-standing legal principle, the traditional accrual rule, to determine when the injury came into existence for the statute of limitations to start. The court will look to when a particular plaintiff has cause of action or injury. The court said they rejected a special definition for purposes of regulatory review for failing to follow the APA.
What might this mean for higher education? Now that the statute of limitations has effectively been expanded to the time of injury rather than the time the regulation was released as final, we believe we will see court challenges increase in the years to come. In the Corner Post case, the business did not even exist when the six-year limit was reached. In this ruling, the Court declared that they can still claim injury and challenge the rule.
It is only logical that expanding the view of the start time for the statute of limitations to be the time of injury will cause court challenges to regulations to increase in the years to come. Long-standing higher education regulations may come under review. This could have massive implications and we are not sure why it has not received more attention from the general and higher education press.
Concurring and Dissenting Opinions Provide More Context
Concurring opinions (when the justice(s) agree with the majority but add different legal principles) and dissenting opinions (when justice(s) disagree and have different interpretations of the law) are sometimes useful for understanding additional context and implications of the majority opinion. For more on the concurring and dissenting opinions for Loper Bright Enterprises and Corner Post, you may go to the “Postscript” section at the end of this post.
What Happens Next?
That is a good question! The Loper Bright Enterprises case has been sent back to the lower courts to re-litigate and review the statutory authority of the agency, but without the use of the Chevron Deference. How the courts will interpret the agency’s authority remains to be seen.
Additionally, the Corner Post case appears to offer an opportunity for significant expansion of eligible plaintiffs to challenge regulations. These challenges could include regulations that are decades old if there is a particular plaintiff who did not encounter an injury until many years later and is within the statute of limitations.
Moving Forward, We Could See the Following from Congress, Courts, and The Administrative Agencies.
Congress
Congress sits in a prime position to mitigate the negative outcomes of these decisions. The concern about the influx of court challenges to regulations may pressure Congress to act. It is within Congress’ authority to amend the APA.
Relying on Congress indeed feels largely unlikely given its slow movement over the last many years. Policy analysts, including our colleagues at the American Council on Education (ACE), have long shared that the failure of Congress to act in a timely manner has caused the U.S. Department of Education to fill the gap with regulations. Some have described the Department’s heavy hand in regulation development as “legislating by agency action.” Jon Fansmith, Senior Vice President for Government and National Engagement at ACE wrote in his opinion essay in Inside Higher Ed, that it is laughable that Congress “will become models of efficient, detail-oriented legislative action.” The regulation developments may seem like a Band-Aid approach, but they have arguably been necessary considering the evolution of higher education since the last reauthorization of the Higher Education Act in 2008.
In amendments to or in the development of new statutes, Congress should consider that they have been placed on notice to develop less ambiguous statutory language, update outdated statutes, and/or, more specifically, address the subject matter expertise of the administrative agencies. Congress could even amend the existing federal statutes to specifically address the statute of limitations and agency authority in developing regulations. Is that a Pollyanna thought? Maybe, but one can hope.
Courts
We will need to watch future federal court decisions to see how the courts interpret and analyze statutory authority. We will need to be prepared for the likelihood that the different circuit courts may apply different interpretations of statutory authority. This would mean that we might not have uniform application of Federal regulations across states, which gets very exciting for institutions operating across state lines. It’s possible that the courts might still take into account an agency’s expertise in the interpretation of statute. If that happens, perhaps the expertise of the agency could still influence the interpretation of statute and the development of regulations.
What we are likely not to see, however, is any variation in the interpretation and application of Corner Post. The interpretation of that ruling is very clear, and, as a result, there will be the possibility that regulations that we believed to be beyond the statute of limitations and set in stone could be litigated.
It’s also important to note that legal challenges to regulations are not likely to be specific to only certain administrative agencies. Expect challenges to regulations developed by a wide range of agencies and not just the Department of Education.
It is worth noting that some policy analysts do not believe that these two decisions will create chaos or generate any great significant changes to the regulatory landscape. As shared by Inside Higher Ed,referring to the opinion of Jason Delisle, a nonresident senior policy fellow at the Urban Institute’s Center on Education Data and Policy, the Chevron Deference has not been consistently applied in the courts and the Supreme Court has not relied on it since 2016. As a result, there may be less significance to this decision.
An additional complication involves the invitation for massive growth in court challenges that these decisions (and several others by this Court) invite to be filed. If the rush to sue becomes real, the Federal Courts could become equally as bogged down as Congress.
Administrative Agencies
Generally speaking, there are two areas in which agencies are affected. First, agency regulations could be subject to review if there is a plaintiff with a cause of action that has not exceeded the statute of limitations. Moving forward, the agency also will not have a thumb on the interpretation scale since courts will not be required to defer to the agency’s interpretation of its statutory authority to create regulations. It will still be important for the agency to continue to prepare its interpretation for consideration by the court, but the court will not be required to accept it. Second, when developing new regulations, agencies should be abundantly clear in expressing their statutory authority lest they find their regulations overturned by the courts.
How Do These Court Opinions Affect Higher Education and Distance Education?
U.S. Department of Education regulations are ripe for legal challenges. The ranking member of the U.S. Senate Committee on Health, Education, Labor, and Pensions (HELP), Bill Cassidy, prepared a letter to Secretary Cardona seeking answers from the Secretary by Friday, July 19, as to the possible impact of the overturned Chevron Deference on the Department. The letter expresses that the Loper Bright Enterprise decision is an opportunity for agencies to re-examine their roles relative to Congress.
The letter expressed concern about whether the Department would adopt and faithfully implement the new decision and provided a list of examples for which he maintains that the Department acted without authorization from Congress and “has flagrantly and repeatedly violated the law.” The questions submitted to Secretary Cardona very pointedly ask how the Department will change its processes and obtain greater involvement from Congress to address policy issues.
Several policy analysts have predicted regulatory areas that are ripe for a legal challenge.
The Center for American Progress (CAP) predicts that in addition to Student Debt Relief, Financial Value Transparency and Gainful Employment as well as Borrower Defense to Repayment may also be challenged. Our colleague Phil Hill with the On EdTech Newsletter shared his perspective that it is less likely that the Department can produce rules or guidance addressing Third Party Servicers and other distance education-related rules from this year’s negotiated rulemaking. And Jon Fansmith of ACE shared similar predictions of ripe issue areas, adding Title IX and pending regulations on state authorization and website accessibility that he believes “will face new, heightened scrutiny.”
These viewpoints signal the appetite for legal challenges to the Department’s actions.
What Should Institutions Do?
The best thing for institutions to do is this: not jump to conclusions.
As previously stated, rules remain the rules until they are no longer rules. Compliance with existing rules is critical. We will notify you as changes occur.
The process of legal challenges to existing regulations will take time. It will take time for courts, agencies, and attorneys to determine a path to successfully challenge regulations, and at this time, that path is not entirely clear. There is potential for legal challenges, but it is unclear the influence the Department will have in expressing its statutory authority. We can expect that the development of new regulations “should” include a stronger emphasis on the Department’s authority to develop regulations.
This is just the first review from SAN and WCET on the impact of the court decisions. We will likely be following the aftermath of these new decisions for the next several years. Stay tuned as we share the next steps by courts, Congress, administrative agencies, and attorneys to untangle the short and long-term effects of Loper Bright Enterprises and Corner Post.
~ Cheryl, Russ, and Van
Cheryl Dowd
Senior Director, State Authorization Network & WCET Policy Innovations
Russ Poulin
Executive Director, WCET Vice President for Technology-Enhanced Education, WICHE
Van Davis
Chief Strategy Officer, WCET
Postscript – A Deeper Look at Concurring and Dissenting Opinions
Loper Bright Enterprises
Concurring opinionswere provided by Justice Thomas and Justice Gorsuch to support the majority opinion while further addressing the issues of the Constitution’s separation of powers and the understanding of the common law principle of stare decisis (legal precedent).
The dissenting opinion, written by Justice Kagan also on behalf of Justice Sotomayor and Justice Jackson, indicated the belief that Congress understands that there could be ambiguities and would prefer interpretation by the responsible agency and not the court. The primary concern raised in the dissenting opinion is that agencies have expertise in these administrative areas, courts do not. The agencies were charged by Congress with administering the statute and therefore best positioned to address an ambiguity or gap if after all normal interpretive tools, the court cannot determine Congress’ intent.
Justice Kagan maintains that the statutory conflict with the APA is “generally indeterminate” indicating that the APA did not prescribe any standard of review for construing statutes. Additionally, the court maintains its authority by a determination of whether the agency “construed (the statute it administers) reasonably.”
The dissenting opinion states that Congress often passes statutes that contain ambiguities and gaps that could be considered intentional by Congress, believing that the regulatory experts are in a better position to fill the gaps. The argument was made that when considering the role of the administrative agency Congress deems them expert, experienced, and politically accountable. Congress confers on the agency the authority to develop rules that implement the statute that is subject to ambiguity or gap.
Corner Post
The concurring opinions provided by Justice Barrett and Justice Kavanaugh support the majority opinion that a claim brought under the Administrative Procedures Act “accrues” (i.e. starts) when the plaintiff is injured by the agency rule. Justice Barrett’s argument relies on previous case law to indicate that a litigant cannot bring an APA claim unless and until they suffer an injury. She argues that if the current statute is a poor fit for modern APA litigation, then Congress must create the solution to enact a specific statute of limitations for claims brought based upon the APA. Justice Kavanaugh argues that he believes it is a critical point that the plaintiff can obtain relief from the case only because the APA in federal statute, 5 U.S. Code 706, authorizes the court to hold unlawful and set aside regulations.
The dissenting opinion, provided by Justice Jackson, who wrote the dissenting opinion to include Justice Sotomayor and Justice Kagan, maintained that there is a hazard when the court determines for all purposes when the cause of action first accrues. Additionally, the dissenting opinion raised their concern of manipulation by decades-old trade groups finding a plaintiff new to the regulations to achieve the requirement of the particular plaintiff with a cause of action filing a challenge within the six-year statute of limitations.
Today, we are delighted to feature a guest post by an esteemed author who has been at the forefront of tracking online, hybrid, and technology-supported learning trends in Canada. Since 2019, Nicole Johnson, Executive Director of the Canadian Digital Learning Research Association, has worked to provide valuable insights into the evolving landscape of higher education in Canada. In this post, Nicole delves into the key findings from the CDLRA’s recently published 2023 Pan-Canadian Report – thank you Nicole for sharing these results with us!
Enjoy the read,
Lindsey Downs, WCET
In 2019, nearly five years ago, I began working with the Canadian Digital Learning Research Association (CDLRA) to track online, hybrid, and technology-supported learning trends at higher education institutions across Canada. A lot has happened since then, and the higher education landscape has shifted profoundly. Several noteworthy trends that have emerged in the Canadian higher education landscape are hybrid learning and flexibility, the use of generative artificial intelligence (GenAI), and issues related to student readiness and faculty competencies for teaching in digital contexts.
Drawing upon the findings of the CDLRA’s recently published 2023 Pan-Canadian Report (Johnson, 2023), I’ll discuss each trend in more detail and share my concluding thoughts about the future.
Hybrid Learning and Flexibility
The 2023 Pan-Canadian Digital Learning Survey asked respondents (administrators, teaching and learning leaders, and other teaching and learning staff) whether they expected increased course or program offerings in different modalities over the next 24 months.
By far, respondents expect to see the greatest increase in courses and programs offered in a hybrid (partially online) format. Anticipated growth in hybrid courses also aligns with a common perception held by the majority of respondents: that all or most students desire the option of learning online some of the time.
The trend toward hybridity versus fully-online or fully in-person learning experiences is tied to a desire among students (and some faculty) for more flexibility. The 2023 Pan-Canadian survey asked respondents an open-ended question where they were asked to share their opinion about what drives student modality preferences. The responses varied and touched on topics like:
balancing other responsibilities with studies (e.g., work, caregiving),
transportation issues, and,
cost of living concerns,
highlighting that there are many individual-centric reasons underlying student demand for more flexibility in how they complete their studies.
Generative Artificial Intelligence (AI)
For many of us in the field of digital learning, the topic of Generative AI (GenAI) has dominated discussions about teaching and learning practices for the past year. In late 2022, when OpenAI launched ChatGPT, tensions surrounding the use of GenAI in higher education quickly emerged. The CDLRA published a special report titled Generative Artificial Intelligence in Canadian Post-Secondary Education with recommendations for incorporating GenAI into educational practices (Veletsianos, 2023) based on our survey findings.
Overall, respondent opinions about the use of GenAI in education indicate a sense of duality: that GenAI has the potential to be both problematic and beneficial. The chart below, found in the CDLRA’s 2023 Pan-Canadian Report, shows that while many respondents believe that it will be used to cheat, they also agree that students will use GenAI as a study tool. At the same time, respondents indicated that they thought AI would make teaching both more challenging and more efficient.
Readiness to Learn and Readiness to Teach
When presenting the 2023 survey findings, I have been asked on several occasions what I have found most surprising about this year’s results. My answer has been that the Canadian higher education system is experiencing a “readiness conundrum” of sorts. This readiness conundrum encompasses both the readiness of students and the readiness of faculty to teach technology-supported learning experiences.
The survey findings showed that just over half of respondents were concerned that students are entering higher education unprepared in terms of academic readiness and general life skills. At the same time, although many students are digitally savvy when it comes to communicating with friends and family using a smartphone, this does not necessarily mean that they have learned how to engage with learning technologies or have been taught how to communicate in a professional manner in online spaces. Additional wraparound support may be needed to help students develop education-specific digital skills.
There are also concerns about faculty competencies for teaching with technology and in online environments. The survey asked respondents whether they thought that faculty had the skills and know-how to teach in different modalities. The greater the technology requirements of a modality, the less confident respondents were in the competencies of faculty at their institution.
It might seem that the obvious answer should be additional training for faculty; however, the survey findings also show that faculty fatigue and burnout top the list as the most pressing teaching and learning challenges at Canadian institutions. A solution that adds to faculty workload is not likely to be viable, much less well-received, and potentially unfeasible (depending on the collective agreements between institutions and faculty unions).
I do not think there are any easy answers for solving our readiness conundrum; however, finding strategies and interventions to better support students and faculty is critical. The current challenges must be overcome to ensure that online, hybrid, and technology-supported learning experiences are taught well and delivered to students who are prepared for the academic and technological demands of their courses. There is certainly a need for further research in this area.
Concluding Thoughts
In closing, the term that best describes the myriad of changes in Canadian higher education is “digital transformation.” EDUCAUSE defines digital transformation as “a series of deep and coordinated culture, workforce, and technology shifts that enable new educational and operating models and transform an institution’s operations, strategic directions, and value proposition” (para 1). The CDLRA’s 2023 research findings indicate that technology use, especially technology pertaining to hybrid learning and GenAI, is becoming increasingly embedded in higher education. As with any type of transformation, tensions, and challenges will be part of the process as we settle more deeply into our digital age. In my role as a researcher and leader in understanding macro-level trends, my hope is that there is continued collaboration amongst colleagues in the digital learning space (across institutions and across countries) to help one another find the best solutions for overcoming our present challenges and those that are still to come.
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