1. State the administrative agency which controls the regulation. Explain why this agency and your proposed regulation interests you (briefly). Will this proposed regulation affect you or the business in which you are working? If so, how? Submit a copy of the proposed regulation along with your responses to these five questions. The proposed regulation can be submitted as either a separate Word document (.doc) or Adobe file (.pdf). This means you will submit two attachments to the Week 2 Dropbox: (a) a Word document with the questions and your answers and (b) a copy of the proposed regulation you used for this assignment. (10 points)
The legislation I chose to research is the “Protecting Academic Freedom in Higher Education Act” (H.R. 2117). This bill seeks to repeal a recent rule change by the U.S. Department of Education, which federally defines a credit hour as used by all institutes of Higher Education. It would also repeal the so-called state authorization regulation which significantly expands and complicates existing federal requirements for an institution to legally operate within a state I chose this legislation because as a leader in Higher Education the statute directly impacts my and all schools in the country; unduly burdening us and limiting the rights of our students.
2. Describe the proposal/change. (10 points)
In October 2010, the U.S. Department of Education (DOE) released a package of regulations to purportedly improve the integrity of the student financial aid programs. Two of these so-called “program integrity regulations” – the credit hour and state authorization regulations – inject the federal government into issues that are traditionally academic or state affairs. They will unnecessarily restrict colleges and universities and result in fewer choices for students.
The new regulation allows the Department of Education to define a credit hour. Before the regulation, a credit hour was defined by either state statute or by accrediting agencies. Traditionally, a credit hour was defined as one hour of lecture and two hours of out of class work for approximately 15 weeks for one semester or trimester or for 10 to 12 weeks for one quarter hour.
The second part of the regulation would repeal the DOE rule that forces institutes of higher education to meet state requirements for every state that a university has a student attending. This is particularly burdensome for colleges that offer distance education, as so many do now. As an example, my school – DeVry, would need to register and adhere to regulations in all 50 states since we offer on-line course across the country. Currently, we only need to be registered in states where we have a physical presence (i.e., Minnesota, Illinois, Nevada, California, etc).
3. Write the public comment that you would submit to this proposal. If the proposed regulation deadline has already passed, write the comment you would have submitted. Explain briefly what you wish to accomplish with your comment. (10 points)
A credit hour is the most basic building block of any academic program. By establishing a definition of a credit hour, the regulation opens the door to inappropriate federal interference in the core academic decisions surrounding curriculum—the exact type of interference expressly prohibited in the department's enabling legislation.
It is my position that no federal definition of a credit hour is ever appropriate because it becomes the basis for ongoing regulatory intervention in all institutional and accreditation decisions associated with the credit hour.
The regulation also creates new and significant obstacles for student pursuing higher education through distance learning (on-line) and places the federal government in the position of enforcing state distance education laws. As a practical matter, because of the inability to accurately predict or control student mobility, most colleges and universities will need to pursue authorization in all 50 states even before knowing from which states their students may ultimately enroll. Unfortunately, state policies in this area can be highly complex, ambiguous and outdated and are often accompanied by substantial fees that may be cost-prohibitive for some public and non-profit institutions. Due to these burdens, some colleges and universities may well determine that they will no longer offer distance education programs in certain states.
4. Provide the "deadline" by which the public comment must be made. (If the date has already passed, please provide when the deadline was). (5 points) The deadline for public comment was 12/31/11. The resolution did pass, effectively repealing section 600.2 and 600.9 of the DOE regulations.
1. Once you have submitted your comment, what will you be legally entitled to do later in the promulgation process (if you should choose to do so)? (See the textbook's discussion of the Administrative Procedure Act.)
a. If the proposed rule repealing the regulations was not repealed I would have the right to challenge the rule in court (assuming I had standing). It could be challenged based on being arbitrary and capricious. It could also be challenged as being ultra vires (beyond its power). Being that the existing rule, if not repealed, violates the states supremacy in that the federal government is attempting to interfere in powers usually reserved for the states.
2. If the proposal passes, identify and explain the five legal theories you could use in an attempt to have the regulation declared invalid and overturned in court.
i. Arbitrary and capricious – rule was not based on sufficient facts ii. Ultra Vires – rule was beyond the power of the agency iii. Substantial Evidence Test - rule was not based on enough evidence iv. Sunset Law – A law allowing legistlature to effectively close the agency
v. Zero-based budgeting – legistature could eliminate budget of the agency
3. Which of these challenges would be the best way to challenge the regulation you selected for this assignment if you wanted to have the regulation overturned and why?
a. The Ultra Vires rule would seem to apply here. The DOE has overstepped its bounds as a federal agency by requiring stripping states of their right to set rules on the definition of a credit hour as well as what colleges and universities need to be registered and regulated by them.