More Chicanery from the Department of Education

Last week, voters in my home state of Maine overturned a law passed by the GOP-led state legislature to end Maine’s same-day voter registration, which had been the practice in Maine for nearly four decades. Though polls suggested a close race, the law went down to a nearly 20-point defeat, the margin seemingly fueled by a backlash against the advertising campaign employed by the law’s proponents. In the days before the election, Maine voters were flooded with a TV ad and mailings suggesting that a no vote on Question 1 (an outcome that would have upheld the legislature’s handiwork) would protect Maine “election ethics law”–even though the referendum dealt with same-day registration, not the state’s ethics law. As Portland Press-Herald columnist Bill Nimitz noted a few days before voters headed to the polls, “You know you’re on the wrong side of an issue when you’re afraid to call it by name.”

I was reminded of the Maine same-day registration fight when reading a recent piece in Inside Higher Ed on the Department of Education’s (mis-)handling of a rule involving distance learning institutions. This issue has evolved into one of the quieter partisan disputes on higher-ed policy: Democrats (perhaps overly responsive to the demands of education unions) tend to be skeptical of distance learning institutions like the University of Phoenix; Republicans (perhaps overly responsive to financial support from distance learning representatives) tend to be supportive of the concept.

I use a lot of technology in my teaching, and at one point taught a couple of hybrid distance learning classes. That said, I think compelling arguments can be made against the quality of distance learning schools, and I certainly wouldn’t recommend that either of my nephews attend a distance learning college over a more traditional four-year school. But the Inside Higher Ed article suggests the Education Department has chosen not argument but subterfuge to advance an anti-distance learning agenda.

Last year, according to IHE, the department adopted a “rule that defines the ‘last date of attendance’ for students who withdraw from online programs more stringently than in the past, and differently than for students in a traditional classroom.” Moreover, the department started using the measure even before the rule was published in the Federal Register–meaning that distance learning schools were evaluated according to standards the institutions didn’t even know existed. (The significance of the change is financial: if colleges report as registered students who no longer are actually enrolled, the federal government can withhold financial aid and impose fines.) When pressed by IHE for an explanation of this peculiar practice, the Education Department declined comment. The clear inference: the department wanted to crack down on distance learning schools, but lacked the courage of its convictions to spell out a rationale as to why distance learning institutions should receive more rigorous federal oversight.

This episode was not the first time the Obama administration has employed bureaucratic chicanery to push through a major higher-ed change. The most infamous example, of course, involved the “Dear Colleague” letter requiring colleges that receive federal funds to use a “preponderance of evidence” standard in adjudicating on-campus claims of sexual assault.

When this argument was exposed to the light of day, it proved indefensible: Vermont senator Pat Leahy recently removed from this year’s Higher Education Authorization Act a provision codifying the “Dear Colleague” standard. Said the senator’s spokesperson, “Because of the feedback he has received concerning this proposal, he does not plan to include it in the bill he later will introduce.” The standard itself, however, remains in place, at least until a new administration withdraws it.

Policy by subterfuge, it seems, is not a good tactic–especially when dealing with the supposedly ideas-oriented world of higher education.


  • KC Johnson

    KC Johnson is a history professor at Brooklyn College and the City University of New York Graduate Center. He is the author, along with Stuart Taylor, of The Campus Rape Frenzy: The Attack on Due Process at America's Universities.

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