[House Report 112-177]
[From the U.S. Government Publishing Office]
112th Congress Report
HOUSE OF REPRESENTATIVES
1st Session 112-177
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PROTECTING ACADEMIC FREEDOM IN HIGHER EDUCATION ACT
_______
July 22, 2011.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Ms. Foxx, from the Committee on Education and the Workforce,
submitted the following
R E P O R T
together with
MINORITY VIEWS
[To accompany H.R. 2117]
[Including cost estimate of the Congressional Budget Office]
The Committee on Education and the Workforce, to whom was
referred the bill (H.R. 2117) to prohibit the Department of
Education from overreaching into academic affairs and program
eligibility under title IV of the Higher Education Act of 1965,
having considered the same, report favorably thereon with an
amendment and recommend that the bill as amended do pass.
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Protecting Academic Freedom in Higher
Education Act''.
SEC. 2. REPEAL OF REGULATIONS RELATING TO STATE AUTHORIZATION AND
DEFINING CREDIT HOUR.
(a) Regulations Repealed.--
(1) Repeal.--The following regulations (including any
supplement or revision to such regulations) are repealed and
shall have no legal effect:
(A) State authorization.--Sections 600.4(a)(3),
600.5(a)(4), 600.6(a)(3), 600.9, and 668.43(b) of title
34, Code of Federal Regulations (relating to State
authorization), as added or amended by the final
regulations published by the Department of Education in
the Federal Register on October 29, 2010 (75 Fed. Reg.
66832 et seq.).
(B) Definition of credit hour.--The definition of the
term ``credit hour'' in section 600.2 of title 34, Code
of Federal Regulations, as added by the final
regulations published by the Department of Education in
the Federal Register on October 29, 2010 (75 Fed. Reg.
66946), and subsection (k)(2)(ii) of section 668.8 of
such title, as amended by such final regulations (75
Fed. Reg. 66949 et seq.).
(2) Effect of repeal.--To the extent that regulations
repealed by paragraph (1) amended regulations that were in
effect on June 30, 2011, the provisions of the regulations that
were in effect on June 30, 2011, and were so amended are
restored and revived as if the regulations repealed by
paragraph (1) had not taken effect.
(b) Regulations Defining Credit Hour Prohibited.--The Secretary shall
not promulgate or enforce any regulation or rule that defines the term
``credit hour'' for any purpose under the Higher Education Act of 1965
on or after the date of enactment of this section.
PURPOSE
H.R. 2117, the Protecting Academic Freedom in Higher
Education Act, reduces the federal government's overreach into
postsecondary academic affairs and helps increase access to
higher education for our nation's most disadvantaged students.
It protects the academic autonomy of institutions of higher
education and restores the authority of states and accrediting
agencies over our nation's higher education system. The bill
repeals the state authorization regulation, one piece of the
credit hour regulation and prohibits the Secretary of Education
from defining ``credit hour'' in the future.
COMMITTEE ACTION
As the Committee on Education and the Workforce continues
to evaluate the appropriate role of the federal government in
education, we are committed to ensuring that students are
afforded the freedom to choose institutions of higher education
that best meet their unique needs, and colleges and
universities are protected from unnecessary and burdensome
federal regulatory schemes.
112TH CONGRESS
Hearings
On Tuesday, March 1, 2011, the Committee on Education and
the Workforce held a hearing in Washington, DC, on ``Education
Regulations: Weighing the Burden on Schools and Students.'' The
hearing was the first in a series examining the burden of
federal, state, and local regulations on the nation's education
system. The purpose of the hearing was to uncover the damaging
effects of federal regulations that increasingly stifle growth
and innovation, raise institutions' operating costs, and limit
student access to affordable colleges and universities
throughout the nation. Testifying before the Committee were:
Mr. Gene Wilhoit, Executive Director, Council of Chief State
School Officers, Washington, DC; Dr. Edgar Hatrick,
Superintendent, Loudoun County Public Schools, Ashburn,
Virginia; Mr. Christopher B. Nelson, President, St. John's
College, Annapolis, Maryland; and Ms. Kati Haycock, President,
The Education Trust, Washington, DC.
On Friday, March 11, 2011, the Committee on Education and
the Workforce Subcommittee on Higher Education and Workforce
Training held a hearing in Washington, DC, on ``Education
Regulations: Federal Overreach into Academic Affairs.'' The
purpose of the hearing was to discuss the most egregious and
intrusive pieces of the U.S. Department of Education's program
integrity regulations--the state authorization regulation and
the credit hour regulation--and uncover their unintended
consequences on states and institutions of higher education.
Testifying before the Subcommittee were: Mr. Ralph Wolff,
President, Western Association of Schools and Colleges,
Alameda, California; Mr. John Ebersole, President, Excelsior
College, Albany, New York; Dr. G. Blair Dowden, President,
Huntington University, Huntington, Indiana; and the Honorable
Kathleen Tighe, Inspector General, U.S. Department of
Education, Washington, DC.
Legislative Action
On Friday, June 3, 2011, Rep. Virginia Foxx (R-NC) and Rep.
John Kline (R-MN) introduced H.R. 2117, the Protecting Academic
Freedom in Higher Education Act. The bill repeals the state
authorization regulation, one piece of the credit hour
regulation and prohibits the Secretary of Education from
defining ``credit hour'' for any purpose under the Higher
Education Act of 1965.
The Committee on Education and the Workforce considered
H.R. 2117 in legislative session on Wednesday, June 15, 2011,
and reported it favorably, as amended, to the House of
Representatives by a bipartisan vote of 27-11. The Committee
considered and adopted the following amendment to H.R. 2117:
Rep. Virginia Foxx (R-NC) offered an amendment in
the nature of a substitute to add a short title to the
legislation. The amendment was adopted by voice vote.
The Committee further considered the following amendments
to H.R. 2117, which were not adopted:
Rep. Raul Grijalva (D-AZ) offered an amendment to
maintain pieces of the state authorization regulation,
including the complaint process, strike the repeal of the state
authorization regulation, except for the portion to create a
complaint process, and the requirement for authorization by
name. The amendment failed by a vote of 17-22.
Rep. George Miller (D-CA) offered an amendment to
prohibit implementation of the Act until the U.S. Department of
Education's Inspector General certifies there are equal or
greater protections in place related to program integrity under
Title IV of the Higher Education Act of 1965. The amendment
failed by a vote of 17-22.
Rep. Rush Holt (D-NJ) offered an amendment to
stipulate that the Act will be effective only if the maximum
Pell Grant award is at least $5,550 for the 2012-2013 school
year. The amendment was ruled out of order.
Rep. Tim Bishop (D-NY) offered an amendment to
strike the repeal of the credit hour regulation that
establishes a federal definition of a ``credit hour.'' The
amendment failed by a vote of 11-27.
Rep. Tim Bishop (D-NY) offered an amendment to
strike the prohibition on the Secretary of Education from
defining credit hour in the future. The amendment failed by a
vote of 16-22.
Below is a summary of H.R. 2117.
SUMMARY
Short title
Section 1 establishes the short title of the bill as the
Protecting Academic Freedom in Higher Education Act.
Regulations repeal
Section 2 repeals the U.S. Department of Education's state
authorization regulation and the regulation that creates a
federal definition of ``credit hour.'' This section also
includes a prohibition on the Secretary of Education from
creating a federal definition of credit hour.
SUMMARY OF THE REGULATION
State Authorization. Under the Higher Education Act of
1965, an institution of higher education seeking to participate
in federal student assistance programs must be authorized to
provide a postsecondary educational program within a state.
Historically, the U.S. Department of Education has allowed
states to determine what requirements institutions of higher
education must meet in order to carry out this requirement. The
new federal regulation mandates the following:
Established by Name. States must establish an
institution of higher education by name. The institution that
is established by name must comply with all applicable state
approval or licensure requirements, unless exempted by the
state based on its accreditation or that it has been in
operation for at least 20 years.
Exemption if Institution is Established as a
Business or Charity. If a state establishes an institution of
higher education as a business or charity (not established by
name), the institution must be approved or licensed to offer
postsecondary programs and may not be exempt from the approval
process based on accreditation, years in operation, or other
comparable exemption.
Impact on Religious Institutions. States may
exempt religious institutions from state authorization
processes by nature of their religious affiliation. A
``religious institution'' is narrowly defined as one that that
is ``owned, controlled, operated, and maintained'' by a
religious corporation and awards only religious degrees or
certificates. The definition is extremely narrow.
Complaint Process. States must have a process in
place to review and act on complaints about the institution of
higher education. Currently, all accrediting agencies must have
a process to review and act on complaints and many states lack
a system to address complaints from students.
Distance Education. An institution of higher
education offering distance education courses must be able to
document that it is authorized by any state in which it would
otherwise be subject to state jurisdiction. The U.S. Department
of Education issued a Dear Colleague letter stating that it
will not enforce this provision until July 1, 2014, for
institutions making ``good faith efforts'' to comply with the
regulation.
Disclosure. An institution of higher education
must disclose to students and prospective students information
about filing complaints with an accrediting agency, a state
approval or licensing agency, and any other appropriate state
agency.
Federal Credit Hour. Under Title IV of the Higher Education
Act of 1965, federal student aid is awarded to students based
on the number of academic credits in which they are enrolled
each term. Historically, the U.S. Department of Education has
relied on accrediting agencies to oversee how an institution of
higher education defines a credit hour and assigns a specific
number of credit hours to each course. The new federal
regulation creates a federal definition of a credit hour, under
which an institution of higher education has only two ways to
ensure its students are enrolled in classes and earning the
required credit hours. Under the first option, an institution
must base its credit hour off of the ``Carnegie Unit,'' the
traditionally accepted definition for one credit hour. Under
this metric, one credit hour equals one hour of lecture and two
hours of out-of-class work for approximately 15 weeks for one
semester or trimester or 10 to 12 weeks for one quarter. Under
the second option, an institution must demonstrate an
equivalent amount of coursework as required by the first option
for other academic activities, such as laboratory work,
internships, and practice, as established by the institution.
COMMITTEE VIEWS
In October 2010, the U.S. Department of Education released
a package of regulations to purportedly improve the integrity
of federal student financial assistance programs. Two of these
so-called ``program integrity regulations''--the state
authorization and credit hour regulations--inject the federal
government into traditionally academic and state affairs. The
burdens of these two regulations, as well as other statutory
and regulatory requirements, tax the resources of colleges and
universities, making it difficult for these entities to focus
on their true mission of educating students.
History of examining regulatory red tape
The Committee has long championed bipartisan efforts to
examine the regulatory burden imposed by the federal government
on colleges and universities. In 2001, the Committee introduced
a first-of-its-kind, web-based tool to enable higher education
stakeholders across the nation to get involved in identifying
ways to reduce red tape and bureaucracy for students, financial
aid personnel, and colleges and universities. Known as the FED
UP project, this bipartisan initiative, developed by Rep.
Howard P. ``Buck'' McKeon (R-CA) and the late Rep. Patsy Mink
(D-HI), was instrumental in fostering a more efficient and
effective federal student aid system. The project solicited
suggestions from the higher education community as to which
provisions in the Higher Education Act, and corresponding
regulations, should be changed or eliminated and why. More than
3,000 responses were received from loan professionals,
financial aid officers, students, higher education
associations, and concerned citizens. Congress and the
Department of Education used the suggestions from this project
to streamline regulatory and reporting requirements in 2002.
The 2008 reauthorization of the Higher Education Act, the
Higher Education Opportunity Act (HEOA), also included efforts
to examine the federal regulatory burden on institutions of
higher education. The HEOA required the Advisory Committee on
Student Financial Assistance to solicit comments from personnel
working at colleges and universities about federal regulatory
burdens and how to address them.\1\ The HEOA also required the
National Research Council at the National Academy of Sciences
to conduct a study to examine the regulatory burden on
institutions of higher education.\2\ The Committee is currently
awaiting the results of both efforts.
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\1\Higher Education Opportunity Act Sec. 492(a)(2)(F).
\2\Higher Education Opportunity Act Sec. 1106.
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Recent efforts to examine regulatory red tape
In the 112th Congress, the Committee has continued its
efforts to streamline the federal regulatory burdens imposed on
states, institutions of higher education, school districts,
schools, and other entities impacted by the programs under its
jurisdiction. In furtherance of this goal, the Committee held a
number of hearings that examined the regulatory burden imposed
on schools, institutions, and students by the federal
government. During these hearings, college presidents,
accrediting agency heads, and students testified about the cost
of complying with burdensome, overreaching federal laws and
regulations. For example, the President of St. John's College,
Christopher Nelson, testified about the harmful impact of
excessive regulations on colleges and universities:
The cost of compliance is large for institutions of
all sizes, but particularly so for a school of our size
that has no office of institutional research or staff
dedicated to support that function. This means that
literally dozens of people on our campus, myself
included, assume this burden as part of our daily
work.\3\
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\3\``Education Regulations: Weighing the Burden on Schools and
Students,'' hearing before the House Committee on Education and the
Workforce, 112th Congress, 1st Session (March 1, 2011) (oral testimony
of Christopher Nelson).
Mr. Nelson went on to discuss how the time spent by his
faculty and other staff on reporting and compliance affects
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their ability to educate:
When I step back from the mass of the more mundane
record-keeping, reporting, and compliance environment,
I try to see what the effect of all this is on our
principal task, fulfilling our educational mission for
the sake of our students. Every diversion or
distraction from these primary purposes weakens our
best attempts to achieve those ends.\4\
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\4\Ibid.
Finally, he offered a worthwhile suggestion, ``As new
requirements are created, get rid of some of the old at the
same time. The concept would be something along the lines of a
pay-go system for regulation that could be applied both to
regulatory requirements and to data collection.'' The Committee
believes this is a sensible suggestion that the U.S. Department
of Education should consider as it enters into future
negotiated rulemaking sessions to improve student aid programs.
Our goal should be to reduce, not increase burdens.
The state authorization regulation will jeopardize college access and
completion
The Committee believes the new state authorization
regulation imposes a one-size-fits-all requirement that will
harm students and public and private schools. In issuing the
regulation, the federal government is overstepping its
traditional role of utilizing the knowledge and expertise of
states and accrediting agencies to measure and ensure
institutional quality. The rule also infringes on the right of
states to regulate their higher education systems and will
likely require them to change how they currently authorize or
license institutions of higher education to comply with the new
requirements. Under the Higher Education Act, an institution of
higher education participating in federal student aid programs
must be authorized to provide a postsecondary educational
program within a state.\5\ The state authorization regulation
micromanages how states comply with this longstanding
requirement.
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\5\Higher Education Act Sec. 101(a)(2).
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One of the most troubling aspects of the state
authorization regulation is its impact on distance education
programs. Under the rule, institutions of higher education that
offer distance education programs may be forced to seek
authorization in each state in which the students it services
live, no matter how small its presence. These institutions may
be forced to comply with authorization requirements in multiple
states, including paying new fees, which will increase the cost
of providing a high-quality postsecondary education.
Ultimately, these innovative colleges and universities may
decide to stop serving students in a particular state, thereby
denying access to students. Rural states may be the most
affected by this regulation and an institution's decision to
forego authorization in states with limited populations.
In addition, colleges and universities specializing in
distance education will need to hire additional staff to
monitor the varying state laws to ensure they are appropriately
authorized in each state. The rapid expansion of distance
education demonstrates that colleges and universities are
utilizing new technology to provide cost-effective ways to
deliver postsecondary education to students. The state
authorization regulation would put this new, innovative tool in
jeopardy, reducing options for students without the resources
or time to attend a traditional college or university. Fewer
students with access to postsecondary education mean fewer
graduates entering the workforce with the skills necessary to
meet local economic demands.
During the March 11 hearing, the Subcommittee on Higher
Education and Workforce Training heard from John Ebersole,
President of Excelsior College, an online institution of higher
education. Mr. Ebersole discussed the burden the state
authorization regulation will impose on his institution:
We do know we have put money in our budget for
compliance and we estimate that at our institution by
the time we hire the additional staff that will be
necessary to coordinate this and we pay the fees which
each of these states requires we are going to have an
annual recurring cost of somewhere between $150,000 and
$200,000 which when multiplied by the number of
institutions that offer online programs today, we are
talking about an additional cost which will eventually
be passed to students of $500 million.\6\
\6\``Education Regulations: Federal Overreach into Academic
Affairs,'' hearing before the House Subcommittee on Higher Education
and Workforce Training, 112th Congress, 1st Session (March 11, 2011)
(oral testimony of John Ebersole).
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The overriding consequence of the new regulation will be to
put postsecondary education out of reach for students, many of
whom are disadvantaged or low-income. In this tough economic
climate, the federal government needs to put forward policies
that improve college access and completion, thereby helping to
put more skilled individuals into the workforce. Instead, it is
pushing policies that will deny students the ability to gain
the skills necessary to succeed in the global economy.
The Subcommittee also heard during the March 11 hearing
about the negative consequences this regulation could have on
private or religious colleges. The new federal requirements
could force states to exercise unprecedented authority over
private colleges and universities, going far beyond granting
the authority to operate as postsecondary institutions. Dr. G.
Blair Dowden, President of Huntington University, highlighted
his concerns with the new state authorization requirement,
stating, ``My concern is that there appears to be no limits to
what factors a state can consider when granting or withholding
authorization and no mechanisms for appeal or due process.''\7\
---------------------------------------------------------------------------
\7\``Education Regulations: Federal Overreach into Academic
Affairs,'' hearing before the House Subcommittee on Higher Education
and Workforce Training, 112th Congress, 1st Session (March 11, 2011)
(oral testimony of G. Blair Dowden).
---------------------------------------------------------------------------
He went on to discuss the extremely narrow definition of
``religious institution'' included in the regulation and
pointed out that most religiously affiliated institutions would
not qualify for the exemption, thereby opening the institution
up to unwarranted state interference:
In addition, the possibility exists that certain
states may use this new state authorization requirement
as leverage to achieve their own higher education
policy agenda at the expense of institutional missions.
For instance, a state could require a certain
curriculum or text books in order to gain authorization
potentially violating both the academic prerogatives
and religious convictions of the institutions.\8\
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\8\Ibid.
These consequences clearly go beyond the existing federal
requirement that states grant authority to operate as a
postsecondary institution within the state--threatening the
academic freedom and mission of private colleges and
universities.
The credit hour regulation will shut down innovative programs for
students
The Committee believes the new credit hour regulation,
which creates a federal definition of credit hour for the first
time, undermines the traditional role of institutions of higher
education and may be harmful to students and their colleges and
universities. By imposing a restrictive set of new requirements
when measuring coursework, the regulation will stifle
innovative teaching practices being developed by colleges and
universities around the country, including accelerated learning
programs. This will shut down the programs unemployed or
underemployed workers rely on to gain the skills necessary to
get back to work, thereby jeopardizing the nation's fragile
economic recovery.
While H.R. 2117, the Protecting Academic Freedom in Higher
Education Act, repeals the federal definition of ``credit
hour,'' it leaves in place two other components of the credit
hour regulation. First, it retains the requirements for
accrediting agencies to review institutional policies on credit
hour. Second, it leaves in place requirements for states to
examine institutional policies on credit hour as the state
decides whether to grant authorization to institutions of
higher education to operate in their state. These two
requirements were tentatively agreed to during the U.S.
Department of Education's negotiated rulemaking session. While
these remaining items still have their challenges, the affected
parties agreed to them, and the Act does not change those
regulations.
Unfortunately, the federal definition of ``credit hour'' is
the one issue on which the Department of Education did not
abide by the tentative agreement reached by the negotiated
rulemaking panel. In defense of this provision, the Department
relies on an Inspector General report of the Higher Learning
Commission (HLC) and its review of American InterContinental
University,\9\ which was an isolated incident that does not
represent a systemic problem in accreditation.
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\9\``Management Information Report--Review of The Higher Learning
Commission of the North Central Association of Colleges and Schools'
Standards for Program Length,'' Office of the Inspector General, U.S.
Dep't of Education, May 24, 2010.
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During the March 11 Subcommittee on Higher Education and
Workforce Training hearing, Rep. Rob Andrews (D-NJ) asked
Kathleen Tighe, the Department's Inspector General, whether the
issues she found in reviewing HLC represented one limited
incident or a systematic problem and questioned whether the
federal definition is a solution in search of a problem.\10\
The Inspector General pointed out that she had concerns with
HLC's practices, but that other accrediting agencies her office
reviewed did not have similar problems. In his testimony before
the Subcommittee, Ralph Wolff, President of the Western
Association of Schools and Colleges (WASC) and one of the
participants in the negotiated rulemaking session, pointed out
that participants continually asked the Department about the
problems it was trying to solve. He noted the Department kept
relying on the isolated incident with HLC without citing any
other examples, ``We asked repeatedly at the negotiated
rulemaking, what is the scope of this problem so that we could
help define a resolution. And we were never told what the scope
was, beyond this one incident.''\11\
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\10\``Education Regulations: Federal Overreach into Academic
Affairs,'' hearing before the House Subcommittee on Higher Education
and Workforce Training, 112th Congress, 1st Session (March 11, 2011),
p. 67.
\11\Ibid. (oral testimony of Ralph Wolff).
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The credit hour is at the heart of an academic decision.
Institutions develop their credit hour policies and work with
faculty to determine how many hours should be assigned to each
course. Accrediting agencies then review each institution's
policy and assignment of credit hours for the programs. Many of
these agencies avoid strict standards to maximize flexibility
in accounting for differing institutional policies and
developing innovative ways to deliver educational content.
During the hearing on March 11, the Subcommittee heard from
numerous presidents of institutions of higher education and
accrediting agencies who will be forced to comply with the new
federal credit hour regulations when they go into effect this
year. Dr. Dowden, President of Huntington University, stated:
For the credit hour, I think the definition is . . .
confusing and how it relates to a variety of
educational experiences that we offer at the
institution including practicums and student teaching
experiences and many other experiences that don't
include the formula of seat time and that might be
difficult to find out an equivalency as proposed in the
regulations.\12\
\12\``Education Regulations: Federal Overreach into Academic
Affairs,'' hearing before the House Subcommittee on Higher Education
and Workforce Training, 112th Congress, 1st Session (March 11, 2011)
(oral testimony of G. Blair Dowden).
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Across the country, institutions like Huntington University
and Western Governors University (WGU), which uses a
competency-based model to award credit, are undertaking
innovative and creative approaches to student learning. The
Committee believes that the federal government should encourage
more universities to adopt these models that are improving the
higher education landscape. Under the federal credit hour
regulation, WGU's credit hour definitions are relegated to
exceptions, which could lead to accrediting bodies further
questioning what they are doing and how they are doing it.
Conclusion
Instead of protecting students from fraud and abuse, both
the state authorization and credit hour regulations are clear
examples of federal overreach into the academic affairs of
states and public and private institutions of higher education.
These unnecessary regulations will impose additional regulatory
burdens on colleges and universities, which could lead to
higher costs being passed down to low-income and disadvantaged
students. More importantly, students who are looking to gain
the skills necessary to succeed in the workforce will be denied
access to innovative instructional programs that will keep us
competitive in the global economy.
H.R. 2117, the Protecting Academic Freedom in Higher
Education Act, ensures that colleges and universities are able
to focus their energy and resources on educating students.
Congress and the Administration should focus on increasing
educational opportunities for students and streamlining federal
regulations that inhibit innovation in higher education.
SECTION-BY-SECTION ANALYSIS
Section 1. Short title
States the short title as the ``Protecting Academic Freedom
in Higher Education Act.''
Section 2. Repeal of regulations relating to state authorization and
defining credit hour
Repeals the state authorization regulation.
Repeals the definition of the term ``credit hour.''
Prohibits the Secretary of Education from defining the term
``credit hour'' for the purposes of carrying out the Higher
Education Act of 1965.
EXPLANATION OF AMENDMENTS
The amendments, including the amendment in the nature of a
substitute, are explained in the body of this report.
APPLICATION OF LAW TO THE LEGISLATIVE BRANCH
Section 102(b)(3) of Public Law 104-1 requires a
description of the application of this bill to the legislative
branch. H.R. 2117 repeals regulations relating to state
authorization and defining credit hour under the Higher
Education Act. H.R. 2117 would have no direct impact on the
Legislative Branch.
UNFUNDED MANDATE STATEMENT
Section 423 of the Congressional Budget and Impoundment
Control Act (as amended by Section 101(a)(2) of the Unfunded
Mandates Reform Act, P.L. 104--4) requires a statement of
whether the provisions of the reported bill include unfunded
mandates. This issue is addressed in the CBO letter.
EARMARK STATEMENT
H.R. 2117 does not contain any congressional earmarks,
limited tax benefits, or limited tariff benefits as defined in
clause 9 of House Rule XXI.
ROLLCALL VOTES
Clause 3(b) of rule XIII of the Rules of the House of
Representatives requires the Committee Report to include for
each record vote on a motion to report the measure or matter
and on any amendments offered to the measure or matter the
total number of votes for and against and the names of the
Members voting for and against.
STATEMENT OF GENERAL PERFORMANCE GOALS AND OBJECTIVES
In accordance with clause (3)(c) of House Rule XIII, the
goal of H.R. 2117 is to repeal regulations relating to state
authorization and defining credit hour under the Higher
Education Act. The Committee expects the Department of
Education to comply with these provisions and implement the
changes to the regulations in accordance with these stated
goals.
STATEMENT OF OVERSIGHT FINDINGS AND RECOMMENDATIONS OF THE COMMITTEE
In compliance with clause 3(c)(1) of rule XIII and clause
2(b)(1) of rule X of the Rules of the House of Representatives,
the Committee's oversight findings and recommendations are
reflected in the body of this report.
NEW BUDGET AUTHORITY AND CBO COST ESTIMATE
With respect to the requirements of clause 3(c)(2) of rule
XIII of the Rules of the House of Representatives and section
308(a) of the Congressional Budget Act of 1974 and with respect
to requirements of clause 3(c)(3) of rule XIII of the Rules of
the House of Representatives and section 402 of the
Congressional Budget Act of 1974, the Committee has received
the following estimate for H.R. 2117 from the Director of the
Congressional Budget Office:
U.S. Congress,
Congressional Budget Office,
Washington, DC, June 21, 2011.
Hon. John Kline,
Chairman, Committee on Education and the Workforce,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 2117, the
Protecting Academic Freedom in Higher Education Act.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Justin
Humphrey.
Sincerely,
Douglas W. Elmendorf,
Director.
Enclosure.
H.R. 2117--Protecting Academic Freedom in Higher Education Act
H.R. 2117 would repeal two regulations published by the
Department of Education. The first requires institutions of
higher education to be authorized by the state or states in
which they offer a curriculum, and the second defines the term
``credit hour.'' In addition, the bill would prohibit the
department from defining the term ``credit hour'' after the
date of enactment.
CBO estimates that implementing H.R. 2117 would have an
insignificant effect on discretionary spending. Additionally,
CBO projects that enacting the bill could affect direct
spending by increasing eligibility for federal student aid,
such as student loans and Pell grants; therefore, pay-as-you-go
procedures apply. However, because only a small number of
students would be eligible for additional student aid, CBO
estimates that the direct spending effects would be
insignificant for each year and over the 2011-2021 period.
Enacting the bill would have no impact on revenues.
H.R. 2117 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act and
would impose no costs on state, local, or tribal governments.
The CBO staff contact for this estimate is Justin Humphrey.
This estimate was approved by Peter H. Fontaine, Assistant
Director for Budget Analysis.
COMMITTEE COST ESTIMATE
Clause 3(d)(1) of rule XIII of the Rules of the House of
Representatives requires an estimate and a comparison of the
costs that would be incurred in carrying out H.R. 2117.
However, clause 3(d)(2)(B) of that rule provides that this
requirement does not apply when the Committee has included in
its report a timely submitted cost estimate of the bill
prepared by the Director of the Congressional Budget Office
under section 402 of the Congressional Budget Act.
CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED
No changes are made to existing law.
MINORITY VIEWS
INTRODUCTION
H.R. 2117 repeals two regulations that are intended to
better ensure that students and taxpayers receive a quality
education for their investment, and it fails to offer
constructive solutions or alternatives to these measures.
Particularly in a tough budget environment such as the current
one, laws and regulations to ensure the effective and efficient
use of taxpayer dollars should be strengthened, not weakened or
repealed.
Now more than ever the federal government has an obligation
to students and taxpayers to ensure that there is a minimum
standard of institutional eligibility for federal student aid.
The cost of college continues to skyrocket; on average, in-
state tuition and fees at a 4-year college increased by almost
8 percent between 2009 and 2010.\1\ Additionally, more students
are attending college and using federal student aid. In 2011,
the Department of Education will provide over $170 billion in
grants, loans, and work-study assistance to students at
institutions of higher education.\2\ It is imperative that
federal laws and regulations ensure adequate accountability at
our institutions of higher education.
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\1\Trends in College Pricing 2010, The College Board.
\2\Department of Education Fiscal Year 2012 Justifications of
Appropriation Estimates to the Congress.
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THE ``TRIAD'' REGULATORY STRUCTURE IN HIGHER EDUCATION AND THE FEDERAL
ROLE
Title IV of the Higher Education Act (HEA) authorizes the
federal student aid programs and establishes a regulatory
structure that includes three actors--the federal government,
states, and accrediting agencies--known as the ``triad.''
Because of concern about federal interference in school
operations, curriculum, and instruction, the Department of
Education (the Department) has relied on accrediting agencies
and States to determine and enforce standards of program
quality. The HEA recognizes the roles of the federal
government, states, and accrediting agencies as providing a
framework for a shared responsibility for ensuring that the
``gate'' to student financial aid programs opens only to those
institutions that provide students with quality education or
training worth the time, energy, and money they invest.
Although the Department relies on accrediting agencies to
assess and certify program quality at institutions, the
Department does perform an important oversight role. In
particular, the federal government has a direct role in
ensuring that the student aid programs are properly used by
institutions and students. As the funder and operator of more
than $170 billion in student aid,\3\ the federal government has
a responsibility to ensure that institutions have policies and
procedures that protect federal dollars, and are acting in the
best interests of students and the taxpayers.
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\3\Ibid.
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The two rules repealed by H.R. 2117, the federal definition
of a credit hour and state authorization, continue to respect
the triad structure, providing for greater accountability
through consistent definitions while relying on institutions,
accreditors, and states as strong partners in ensuring such
accountability for federal dollars.
FEDERAL DEFINITION OF A CREDIT HOUR
H.R. 2117 repeals the regulatory definition of a credit
hour and prohibits the Secretary of Education from promulgating
any future rules that define a credit hour.
The HEA defines an academic year for an undergraduate
program as requiring a minimum of 24 semester or trimester
credit hours or 36 quarter credit hours in a course of
study.\4\ The amount of student financial assistance that can
be awarded is based on the number of credit hours earned, but
the term ``credit hour'' is not defined in the HEA. Therefore,
the credit hour is not only the basic unit of an academic
program at an institution of higher education; it is also the
basic unit underlying the distribution of federal student aid.
Yet, prior to the October 2010 regulation, this term had never
been defined for federal aid purposes.
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\4\Section 481(a)(2)(A) of the Higher Education Act of 1965, as
amended.
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In recognition of the importance of the ``credit hour''
unit as an accounting measure for student financial assistance,
and in response to Department of Education Office of Inspector
General (OIG) reports finding that accrediting agencies--which
are required by the HEA to assess an institution's measure of
program length--did not have sufficient policies to ensure
proper assignment of credit hours to educational programs or to
justify the length of such programs, the Department of
Education defined a ``credit hour'' in final regulations issued
October 29, 2010.
INSPECTOR GENERAL REPORT ON THE HIGHER LEARNING COMMISSION
On May 24, 2010, the OIG issued a management information
report of the Higher Learning Commission of the North Central
Association of Colleges and Schools. The Higher Learning
Commission (HLC) accredits 1,022 institutions in Arizona,
Arkansas, Colorado, Iowa, Illinois, Indiana, Kansas, Michigan,
Minnesota, Missouri, North Dakota, Nebraska, Ohio, Oklahoma,
New Mexico, South Dakota, Wisconsin, West Virginia, and
Wyoming. In 2008, institutions accredited by HLC received $27.5
billion in Title IV funding.
During the course of its review, the OIG issued a
preliminary report--or Alert Memorandum--on December 17, 2009
based on what the OIG believed was a serious issue regarding
HLC's decision to accredit a particular institution. In
particular, HLC performed a comprehensive review to evaluate
American Intercontinental University (AIU) for initial
accreditation and found issues related to AIU's assignment of
credit hours to certain undergraduate and graduate programs.
Peer reviewers found that some courses were being awarded at
approximately double the amount of credit they were worth. A
student seeking a Bachelor's of Business Administration at AIU,
who was enrolled in a 9-credit course that is inflated at twice
its value, is overpaying by $1,600 ($355 per credit). Despite
its findings, HLC approved AIU for accreditation on May 14,
2009. In its Alert Memo, the OIG concluded that HLC's
accreditation of AIU called into question whether it is a
reliable authority regarding the quality of education or
training provided by the institution. The OIG recommended that
the Department of Education determine whether HLC is in
compliance with the Department's regulations and, if not, take
appropriate action to limit, suspend, or terminate HLC's
recognition by the Secretary.
The OIG's findings show the ability of an institution to
use the definition of a credit hour not as an academic measure,
but as part of a business plan. In this case, AIU was
overcharging students for their academic preparation and making
excess profit from the increased student fees, paid in large
part through federal student aid. Without a safeguard of a
federal definition of a credit hour, the government can not
adequately protect students and taxpayers from such abuses.
The Inspector General testified in front of the Committee
on two occasions, on June 17, 2010 and March 11, 2011, to
discuss her findings in this matter. In both instances, she
expressed the need for a federal definition of a credit hour in
order to ensure that federal student aid dollars were protected
from potential waste, fraud, and abuse.
THE CREDIT HOUR REGULATION
The federal definition of a credit hour is necessary to
ensure that student and taxpayer funds are protected from
potential waste, fraud, and abuse. The Department of Education
awards student aid funds based on how many credit hours a
student is taking in a given semester; therefore the credit
hour unit is fundamental to the awarding of federal student
aid. Without a federal definition, there was little
transparency to ensure that students and taxpayers were
receiving consistent amounts of federal aid for comparable
amounts of work at programs within and across institutions.
The definition in the October 2010 regulation is not a
departure from the norm. It is based on the commonly accepted
practice by most institutions of higher education, the Carnegie
unit, and allows for flexibility at the institutional level.
While the Carnegie unit is based on classroom and homework
time, the federal definition includes the ability for an
institution to define an equivalent alternative measure,
specifically allowing for innovative and alternative means of
instruction. Because of this allowance, the regulation will not
prohibit institutions from offering course credit for
internships, study abroad, self-study, and other alternative
means of instruction.
The flexibility in the federal definition, along with its
basis in widely accepted practice, will result in minimal or no
adjustments for most institutions participating in Title IV
programs, and will still allow institutions the freedom to set
credit hours for courses using institution-based judgment and
criteria. The definition recognizes the role of institutions as
well as that of the accreditors, by ensuring that accreditors--
not the Department--assess the implementation of the federal
definition.
Also, it is important to note that the federal definition
is a minimum standard; institutions may require additional work
per credit hour than the definition requires, and use separate
measures of credit hours for their own academic purposes as
long as they also use a credit hour measure for federal student
aid programs that meets this regulatory standard.
By repealing this moderate and flexible definition, H.R.
2117 significantly undermines accountability, transparency and
consistency in the awarding of federal student aid at a time
when more students are attending postsecondary education, using
more federal student aid, and institutions of higher education
are growing and adapting to meet student demands.
PROHIBITING THE SECRETARY FROM FUTURE RULEMAKING
H.R. 2117 takes a step beyond repealing the particulars of
federal definition set in the October regulation. The bill
would prohibit the Secretary of Education from ever providing a
federal definition of a credit hour. This prohibition would
hinder the Secretary from addressing current or future issues
of waste, fraud, and abuse without an act of Congress. Such a
restriction wouldgreatly limit the Secretary's authority and
ability to adequately and responsibly operate the federal student aid
programs in the best interests of students and the taxpayers.
STATE AUTHORIZATION
In order for students at an institution of higher education
to be eligible for Title IV funds, an institution must be
legally authorized by a State to provide a program of
postsecondary education.\5\ This requirement has always been a
part of the HEA, though there have been few specifics in
regulations. In its issuance of regulations on October 29,
2010, the Department specified how it will determine whether an
institution is authorized by the State.
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\5\Sections 101(a)(2), 102(b)(1)(A)(ii)(II)(B), and 103(c)(1)(B) of
the Higher Education Act of 1965, as amended.
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THE STATE AUTHORIZATION REGULATION
State laws and regulations are what govern the specific
requirements for the authorization of institutions of higher
education in a respective state. The October 2010 federal
regulation acknowledges states' authority in this area and
provides that for the purposes of federal student aid,
institutions must simply be in compliance with what States
require. Therefore, this regulation provides no new authority
to states; rather, it makes clear that institutions must abide
by state standards when operating in a given state.
As the landscape of higher education is growing and
changing, it is important that states play a role in ensuring
that institutions are, at a minimum, operating as an institute
of higher education, and federal policies should support state
efforts to protect students and taxpayers from institutions
that are not operating in their best interests.
H.R. 2117 repeals the state authorization rule issued in
October 2010. This repeal would completely eliminate the
definition of state authorization, including consumer
protection provisions stipulating that institutions are only
considered to be authorized by a state if such state has a
process to review complaints against the institution.
By repealing this regulation, H.R. 2117 sets an alarming
precedent and sends a message to institutions and states that
the federal government believes it is acceptable to provide
billions of dollars in federal student aid to institutions of
higher education that are not in compliance with state laws.
Further, as the regulation provides that state authorization
policies must be transparent to students and families,
repealing the regulation could result in less information to
consumers, making it more difficult to choose an institution of
higher education that best fits the student's needs.
CONSUMER PROTECTION
The federal state authorization regulation also requires
that states have a process to resolve complaints about
institutions of higher education from students, families, and
employees. Currently, the complaint process is varied across
the states,\6\ and some states do not have a process at all or
the only process available is the same process available for
any consumer complaint, and not unique to higher education.
Therefore, in many places, students are left without any
recourse at the state level when an institution does not act in
their interest.
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\6\http://www.sheeo.org/stateauth/
Links%20to%20Complaint%20Process.pdf.
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In 2010, the Congress passed, and the President signed,
legislation that protected consumers from bad practices at
credit card companies and banks. We applaud the Department for
ensuring that the nation's students are afforded similar
protections at the state level.
DEPARTMENT ACTIONS
Understanding that many institutions had concerns with
their ability to be in full compliance with the regulations by
July 1, 2011, the Department is working extensively with states
and institutions to address implementation concerns.
Specifically:
On March 17, 2011, the Department issued a Dear
Colleague Letter clarifying that, although the regulation
became effective July 1, 2011, institutions providing distance
education will not be considered to be out of compliance on
that date as long as they have applied for state approval in
the States in which such approval is needed.
The Department is also supporting efforts by the
higher education community to develop a comprehensive directory
of state requirements so states can clearly identify their
specific requirements and institutions have the ability to
easily understand the processes required by each state. Once
developed, the directory will be publicly available on the
Department's website.
Additionally, the Department is actively engaging
States and schools, including the distance education community,
to support their work in moving towards common applications and
State reciprocity agreements.
The Department is taking appropriate action to ensure that
the regulation will be implemented as intended; and will ensure
accountability for students, taxpayers, and the federal
government without disrupting education at institutions of
higher education.
CONCLUSION
The Department has established rules defining a credit hour
and providing other protections for students, including
ensuring students have access to a complaint process through
state authorization. The Department's regulation sets a minimum
standard for credit hours for purposes of awarding federal
student aid, and ensures that institutions are following state
authorization laws. These do not interfere with academic
freedom; rather, they ensure integrity for taxpayer dollars.
These rules have closed loopholes in the accountability system
protecting students and taxpayers in the student aid programs.
We support these common sense measures to improve
accountability.
H.R. 2117 would repeal those efforts and open the loopholes
again. It would put taxpayer dollars at greater risk of fraud,
waste, and abuse at a time when the higher education market is
in so much flux, and the demand for student financial aid is
growing. H.R. 2117 fails to protect the nation's students,
moves backwards in accountability measures, and lacks any
alternative approaches.
George Miller.
Raul M. Grijalva.
Timothy H. Bishop.
Lynn C. Woolsey.
Donald M. Payne.
Dennis J. Kucinich.
Robert C. Scott.
Susan A. Davis.
Dale E. Kildee.
Ruben Hinojosa.
John F. Tierney.
Mazie K. Hirono.