October 5, 2017
AAP Submits Comments to U.S. Department of Education on Evaluating Existing Regulations
This September, AAP responded to the U.S. Department of Education’s request for comments on its evaluation of all of its existing regulations. The request is part of the Trump Administration’s overall effort to identify and eliminate federal regulations that eliminate jobs, inhibit job creation, are unnecessary, or impose costs that exceed benefits.
AAP was one of more than 16,000 commenters, and offered opinions on two regulations: the open licensing requirement for direct grant programs and the state authorization and disclosure requirements for distance learning programs.
In the closing days of the Obama Administration, the Education Department issued an open licensing requirement for direct grant programs. The regulation requires that instructional materials developed using direct grant funds be published under an open license that would allow the subsequent acquisition, use, adaptation, and re-purposing of materials without permission of the grantee-author.
This regulation is part of the Obama Administration’s efforts to advance the use of open educational resources (OER). Their “#GoOpen” campaign was designed to encourage states, school districts and educators to use openly licensed educational materials and was part of the Obama Administration’s larger “U.S. Open Government National Action Plan.”
While AAP and its member companies do not object to – and often collaborate with – open educational resources (OER) producers, we are opposed when government acts to place its thumb on the economic scales of the market to promote it. We believe that:
- The rule interferes with the marketplace by demanding that grantees offer their creative works only under open licenses to the harm of education companies. The Department estimates that the rule will have an economic impact greater than $100 million – an impact great enough to skew competition and negatively affect the ability of education companies to contribute to the economy and maintain and create jobs
- The rule harms American business. U.S. education companies invest hundreds of millions of dollars annually to create content and innovative delivery systems. The rule undermines the ability of these companies to recoup their investment and discourages innovation.
- The rule is inconsistent with federal copyright law because it mandates that authors not exercise rights granted them by Congress in the Copyright Act.
AAP strongly urged that the rule be repealed. However, in the event the Department decides to modify the rule instead, AAP had several suggestions on how the rule could be improved.
Originally meant to protect students against fraud, the concerning state authorization and disclosure requirements for distance learning programs unnecessarily penalizes students, inhibits innovation and costs job opportunities. We urged the Department to “rescind and replace” the regulation in our submission.
The regulations require distance education programs to receive authorization from every state where their students are enrolled as well as disclose whether their programs satisfy licensure or certification requirements. Students in the many non-compliant states are prohibited from using Title IV grant funds to enroll in distance programs.
Online distance learning is an increasingly important way of achieving an education, and students participating in these programs will benefit from recent innovations occurring around it that improve the quality of education and reduce costs. The digital learning materials developed by commercial publishers are more engaging for students (because they are interactive and personalized) and far less costly.
AAP argued that the regulation is unfair and burdensome to both students and to institutions, that it will result in faculty and administrative staff losing their jobs, and that it will cause students to have a more difficult time acquiring the education they need to be competitive in the job market.
We urged the Department to encourage a competitive and vibrant market for innovation in higher education, to rescind these regulations and replace them with measures that recognize and enable the immense value of digital innovation that facilitates distance learning.
As the Department moves forward to identify regulations that should be rescinded, AAP will continue to provide comments and advocate for our industry. To see our comments, click here.