distance education 6: barriers to distance · pdf filearriers to distance educationis the...

American Council on EducationCenter for Policy Analysis

SIXTH IN A SERIES

By Arthur Levine and Jeffrey C. Sun

Barriers to DistanceEducation

American Council on EducationOne Dupont Circle NWWashington, DC 20036Fax: (202) 785-2990

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Distributed Education: Challenges, Choices, and a New Environment

For the American Council on Education:

Senior Vice President, Programs and Analysis

Michael A. Baer

Director, Center for Policy Analysis

Jacqueline E. King

Research Associate

Eugene L. Anderson

For EDUCAUSE:

President

Brian L. Hawkins

Vice President

Carole A. Barone

We are grateful to the AT&T Foundation, Accenture, and Hewlett-Packard Company for their generous support of this series on distributed education.

Copyright © 2002American Council on Education

ACE and the American Council on Education are registered marks of the American Council on Education.

All rights reserved. No part of this book may be reproduced or transmitted in any form or by any means elec-tronic or mechanical, including photocopying, recording, or by any information storage and retrieval system,without permission in writing from the publisher.

®

Foreword .............................................................................................................................iii

Introduction ..........................................................................................................................1

Barriers Within the Academy ...............................................................................................3

Need for Distance Learning ........................................................................................3

Differences Between Distance Learning and Higher Education .................................4

Students ......................................................................................................................4

Pedagogy ....................................................................................................................5

Internal Governance and External Competition ..........................................................6

Money ..........................................................................................................................8

Barriers External to the Academy ........................................................................................9

Federal ........................................................................................................................9

States .........................................................................................................................13

Accrediting Agencies ................................................................................................14

Professional Organizations, Unions, Consortia, and Partnerships ...........................15

Conclusion .........................................................................................................................17

References .........................................................................................................................19

About the Authors ..............................................................................................................22

Table of Contents

arriers to Distance Education is the sixth and final monograph in a series of invited paperson distributed education, commissioned by the American Council on Education (ACE)and EDUCAUSE.

Technology provides higher education with the potential to disseminate knowledge to morepeople than ever before. Despite the promise of distributed education and continued advance-ments in technology, significant barriers remain. This paper describes the barriers to distancelearning, both inside and outside the higher education community.

The genesis of this series evolved from a design meeting held at ACE in spring 1999. Extensivediscussion and exploration of major issues led to a partnership with EDUCAUSE and a closeworking relationship with its president, Brian L. Hawkins, and vice president, Carole A. Barone.

This series, Distributed Education: Challenges, Choices, and a New Environment, has been sustained with generous support from the AT&T Foundation, Accenture, and Hewlett-PackardCompany.

Distributed education raises a strategic and financial challenge for every type of higher educa-tion institution. Advancements in technology and expansion of markets for distributed learningpose questions for college and university presidents, regardless of their institutional mission. Ourgoal in this series is to provide presidents, provosts, and other senior decision makers with a senseof the landscape of technologically mediated education and the means to make wise strategicchoices.

Michael A. BaerSenior Vice President, Programs and AnalysisAmerican Council on Education

Foreword

A m e r i c a n C o u n c i l o n E d u c a t i o n / E D U C A U S E I I I

B

1 Distributed education refers to a mix of instructional practices—blending new technologies with traditional classroom practices. This

paper focuses on obstacles to programs that rely primarily on new technological delivery systems. Therefore, we use the term distance

education, rather than distributed education.

A m e r i c a n C o u n c i l o n E d u c a t i o n / E D U C A U S E 1

Introduction

oday’s new technologies, particularly the Internet, present higher education with thelargest megaphone in its history—the capacity to disseminate knowledge to an exponen-tially larger number of people than ever before. To do this, educators use a vehicle now

commonly known as distance education.1 It is a subject that has stimulated intense passions, newand aggressive competitors, pressure for new (and often very different) resources, an evolving regulatory environment, and more ambiguities than certainties about appropriate policy andpractice—not to mention the most fundamental questions about the future of the academy.

This paper describes the barriers to distance learning, both inside and outside the higher education community. Inside the academy, distance education programs encounter numerouschallenges: the academy’s acceptance of distance education as an appropriate teaching method,competition for limited financial resources, and the ability to withstand the slow governancegauntlet. Outside the academy, distance education encounters varying regulations, laws, policies,and practices imposed by congressional and state legislators, accreditors, and professional associations.

T

NOTE: A number of people read this paper and offered comments. We are particularly grateful to Michael Goldstein, who read, edited,

and enhanced the paper.


In 1992, Peter Drucker predicted that in thenext 50 years, “schools and universities willchange more drastically than they have sincethey assumed their present form 300 years agowhen they organized themselves around theprinted book” (Drucker, 1992, p. 97). Withthe rise of new technologies, in the futurehigher education will likely divide into threetypes of institutions. One type will be the tradi-tional campus-based college or university.Let’s call these “brick” institutions—the familiarcampuses composed of classrooms, facultyoffices, libraries, student unions, and perhapsresidence halls. The most successful brick uni-versities will likely be residential colleges thatattract traditional students—that is, youngerstudents, typically ages 18 to 22. Another typeof institution will be new organizations thatrely entirely on e-learning to distribute theirprograms. These “virtual” schools could becalled “click” universities. The exclusivelyclick universities will focus on nontraditionalpopulations such as adult learners and part-time students. The third, and probably mostprevalent, type will be a combination of thetwo: the “brick and click” institution, whichwill fuse conventional and e-learning methods.Today’s major universities will likely try tobecome such brick and click institutions,which—according to current findings on e-commerce—will stand out as attractive alter-natives for students interested in online

learning. Recent research on commercialnoneducation businesses shows that while consumers appreciate the convenience, ease,and time-independent nature of online shop-ping, they also seek the service of the physicalstore for returning merchandise, gettingexpert advice, trying and viewing products,and interacting with salespeople and fellowcustomers (Cassar, 2001; Daniels, 2001).

Based on these predictions and trends,what conclusions can we draw? First, Americadoes not need all of its colleges and universi-ties to offer distance education programs.Those institutions that will offer distance edu-cation will be part of a small but concentratedcore of major providers, rather than a looselyorganized abundance of small providers.Schools that choose to remain brick campusesmay find that their faculty and staff are notinterested in entering the world of distancelearning, except perhaps as subscribers whocan enlarge their own on-campus programs bypurchasing the best distance education pro-grams from other sources. Brick colleges mayinstead create their own niche, offering thebest possible in-person education and stressingclose interaction between faculty and students,and between students and students. In short,colleges may opt to bypass distance learningfor reasons that are thoughtfully and strategi-cally related to their missions.

Barriers Within the Academy

Need for Distance Learning

4 B a r r i e r s t o D i s t a n c e E d u c a t i o n

Differences Between Distance Learning andHigher Education

U.S. President James A. Garfield described the ideal of American higher education aspracticed by Mark Hopkins, the 19th centurypresident of Williams College. PresidentGarfield described Hopkins as teaching on oneend of a log with a single student on the other.In many respects, this image captures thosequalities that the academy still holds sacredtoday: teaching and learning in an intimatesetting, with a close relationship between student and professor. Such imagery causescurriculum committees across the country,year after year, to continue referencingCardinal Newman’s The Idea of a University,

which describes the ideal college as a commu-nity or family rooted in the teaching andlearning of liberal education. That type of col-lege never existed, with the possible exceptionof some doctoral education programs, but itremains an ideal to which many in academestill aspire.

Distance learning directly conflicts withNewman’s vision of higher education. Far froman intimate setting among a family-like com-munity, distance learning, by nature, is masslearning, conceivably involving thousands ofstudents in a single course. The students donot even sit together in a single classroom.They may reside anywhere in the world, andthey are learning in different places, such asoffices and bedrooms, and taking the class atany hour of the day. One-on-one contactbetween professor and student, or among stu-dents, may not exist. The differences betweenthe common perceptions of distance educationand the traditional ideal of collegiate learningare difficult for an institution to accept ordeem desirable.

Students

The traditional college student, who attendsschool full time and lives on campus, has notshown much interest in distance education(Levine and Cureton, 1998). But they make up less than 20 percent of the current collegepopulation.2 The new majority of college stu-dents are very different: They are older, attendclasses part time, hold jobs, have families, andlive off campus. Unlike traditional students,nontraditional students do not consider schoolto be central to their lives. As a consequence,many older, part-time, and working students,especially those with children, reported in anational study that they wanted a very differenttype of relationship with their college (Levineand Cureton, 1998). They prefer relationshipsthat are similar to those they already have withtheir bank, their electric company, and theirsupermarket. They want what they want, whenand where they need it, and at a price they canafford.

The bottom line is that today’s older adultstudents are bringing their consumer attitudesto higher education. They seek four thingsfrom their colleges—convenience, service,high quality, and low cost. They will not pay for activities and services they do not use, forhiring faculty to offer elective courses thatthey will not take, for buildings such as achapel or a student union that they will not frequent. They are asking for a stripped-downversion of higher education, absent the extras.Older adult students are suitable candidatesfor distance learning or face-to-face instruc-tion in nearby business districts or suburbanlocations with convenient times and calendars.

2 According to The Condition of Education 2002 (U.S. Department of Education, 2002), approximately 75 percent of all college students

are considered nontraditional, and this percentage is higher when the parameters are both nontraditional and nonresidential students.


The founders of the University of Phoenixunderstood this. In fact, this regionally accred-ited institution, which is publicly traded onNASDAQ, now enrolls more students than anyother private institution—albeit at scores ofrelatively small campuses. The University ofPhoenix offers a limited number of majors anddegrees, few electives, and instruction by part-time faculty working from a standardizedcurriculum at times and places that are conve-nient for students. The university emphasizescustomer service, placing a premium on frequent evaluation and high-quality instruc-tion in nearby locations. It has responded tomarket demands by offering its special brandof higher education, both in a traditional classroom setting and online, via distance education.

The University of Phoenix experienceraises a serious question for distance learning.The actual size of the market for distancelearning remains unclear. The enrollment inthe online branch of Phoenix increased fromless than 5,000 in 1997 to nearly 50,000 in2002. Distributed learning may be far moreattractive to certain types of students.3 Fur-ther, recognizing the evolving character ofmuch of the distance learning that is offeredtoday, we still do not know nearly enoughabout various educational outcomes. If thebest and the brightest of our traditional stu-dents attend physical classes taught by conven-tional faculty, why settle for something else? Itis still not clear that “if you build it, they willcome.” Peter Cookson, president of TC Innovations—an initiative by Teachers Collegeof Columbia University that blends traditionalclassroom practices with online and multi-media components—says we do know that ifstudents do come, they want degrees or cer-tificates, not just random online courses.

Pedagogy

A faculty member teaching at the front of theroom remains the predominant mode ofinstruction in higher education. Universitiesdo not educate graduate students about how to teach; they have always assumed that if aperson sits through enough classes, teachessome classes as a graduate assistant, and lovesthe subject matter, then that person can teachat a college or university. Distance educationhighlights the flaws in this notion; the Internetis a highly interactive, highly individualizedmedium that most older faculty members didnot experience as students. In addition, withthe exception of a few programs, such as theUniversity of Maryland’s faculty teaching program for online courses, preparation forteaching distance learning courses is nearlynonexistent in higher education. As a result,most distance learning courses resemble tradi-tional classroom courses or poor imitations—talking heads, lots of text, and streamingvideo. Distance education has failed to takeadvantage of the Internet as a new medium. It tends to be more mass than individual, to involve more one-way than interactive com-munication. This typical primitive response tonew media mirrors past actions: When movieswere invented, producers filmed plays. Withthe advent of television, radio actors per-formed on screen. And when distance learningstarted happening via the Internet, universi-ties asked faculty to duplicate their coursesonline.

Higher education faces several barriers inthe area of distance learning. First, academelacks a pedagogy for using the Internet. Theability to use it effectively will advance as edu-cators learn more about individual learningstyles. With that knowledge, they can developsoftware to respond to the inherent differencesbetween Internet-based and traditional class-room education. Second, faculty’s role in using

3 For an in-depth discussion on distributed education, see Oblinger, Barone, & Hawkins (2001).

The new majority of

college students are

very different: They

are older, attend

classes part time,

hold jobs, have

families, and live off

campus. Unlike

traditional students,

nontraditional

students do not

consider school to be

central to their lives.

this technology remains uncertain. They couldbe the traditional teacher, the softwaredesigner, the content creator, all of thesethings, or none of these things. Justifiably, faculty are concerned about the effects of dis-tance learning not only on students, but alsoon their own careers and workloads. Third,faculty need to know more about interactiveand individualized pedagogy, whether they become intimately involved in distance learning or simply continue to teach tradi-tional courses. Knowledge of this new peda-gogy will be essential if colleges expect successin distance learning. If traditional studentsparticipate in distance learning, they likelywill expect the same quality of teaching intheir on-campus courses.

Finally, distance learning entails a host ofteaching and learning practices that may beconvenient for students but are far more laborintensive than traditional college practices:Creating courses, maintaining chat rooms,and responding to e-mails from studentsaround the clock require far more time andenergy from faculty than traditional courses.Additionally, distance learning comes with anew language and different expectations,including “anytime, anyplace learning,”“24/7 advising,” and “round-the-clock availability of instructors.” This new level ofservice raises potential barriers in terms ofstaffing, course loads, advising expectations,faculty support, teaching assistant roles, andso forth.

Internal Governance and External Competition

Higher education governance is highly demo-cratic but also glacial in its pace. It may takeyears for an issue to work its way through acomplex process that can involve task forces,commissions, committees, senates, faculties,schools, department chairs, deans, administra-tors, boards, states, professional associations,and accreditors. This is particularly true for acontroversial issue such as distance learning.


The difficulty is that the development and evolution of distance learning are not proceeding on a typical higher educationtimetable. As a result, colleges and universitiesmay not be the key actors creating and offeringdistance learning. Two important groups outside traditional higher education may influ-ence the shape distance learning ultimatelytakes—the for-profit education sector and otherknowledge-producing organizations.

For the first time in U.S. history, the busi-ness community sees higher education as aninvestment opportunity. Increasingly viewedas poorly run, low in productivity, high in cost,and still not effectively using technology, thetraditional higher education community isseen by the for-profit sector as the next healthcare industry: another business ripe fortakeover, remaking, and profits. While thedot.com implosion slowed down the for-profitrush into collegiate education, institutionssuch as Teachers College of Columbia Univer-sity are still regularly being visited by televi-sion, telephone, software, hardware, venturecapital, and start-up companies that wish toenter the education market and are seekingpartners.

Higher education is an appealing industryfor a variety of reasons. Not only is it perceivedas weak and slow to change, but it also gener-ates an enormous amount of cash and its market is increasing and becoming global.“Customers” (better known as students)invest in long-term “purchases” (i.e., an edu-cation that lasts two to four or more years),thereby providing a dependable cash flow andrevenue stream. Enrollment in higher educa-tion also is counter-cyclical, which is unusualin business. This means that college and uni-versity enrollments actually grow during a bad economy because people are likely to goto college when they cannot find work and todrop out at a greater rate when there are more


jobs. Additionally, the states and the federalgovernment subsidize higher educationthrough their financial aid programs.

Although the gold rush attitude and thecorporate cowboys of a few years ago have sub-sided, there is still enough good news to makeonline higher education attractive to entrepre-neurs. Success stories such as the University ofPhoenix and DeVry Institutes fuel continuedinterest. Jones International, a wholly onlineuniversity, has now received regional accredi-tation. In addition, Kaplan* has created anonline college and UNext, a for-profit onlinecompany, plans to offer an MBA in conjunctionwith Columbia University, Stanford University,Carnegie Mellon University, the University ofChicago, and the London School of Economics.

Another notable phenomenon is the con-vergence of knowledge-producing organ-izations, which also is contributing to theincrease in distance learning providers.Publishers, television producers, museums,YMCAs, libraries, symphony orchestras, anduniversities are trying to reach larger audi-ences using the same new technologies. As aresult, all of these organizations are creatingproducts that resemble distance learningcourses.

A book publisher recently told one of theauthors that the company no longer focuses on the book publishing business: It now spe-cializes in the knowledge and informationbusiness, focusing on teacher education andteacher professional development. The com-pany’s ultimate goal is to brand itself as theleading provider of professional developmentfor teachers. The publisher hires university faculty or persons with expertise in the subjectarea full time to prepare content for its pro-grams. It also is considering awarding its owncredits and degrees. This company is unique inits scale, but not in its direction. As it evolves,distance learning promises to create a verycompetitive landscape.

Higher education comes to this competi-tion with three important yet fragile strengths:its reputation and history (i.e., its “brandname”); its faculty and courses (i.e., its “intel-lectual capital and content”); and its ability tooffer credits and degrees. Consider, for exam-ple, a brand-name giant such as Amazon.com.Amazon convinced the world that online book-selling was a completely different businessfrom operating bookstores, thus establishingitself as the top name in this new field. Educa-tors could do the same thing by convincing theworld of the clear distinction between click andbrick higher education. This would permit afor-profit or rival knowledge organization tobecome the preeminent brand name in dis-tance education.

Microsoft Encarta is an excellent exampleof intellectual capital and content. Microsoftapproached Encyclopedia Britannica, theindustry’s content leader, and invited the com-pany to come online. Britannica rejected theinvitation, so Microsoft bought Funk and Wag-nalls and turned it into digital Encarta. In lessthan two years, it became the best-selling ency-clopedia in the world, and Britannica salesdropped. Britannica contacted Microsoftabout an online arrangement but was told itwould now have to pay to put its encyclopediaonline. The lesson is that if distributors cannotget major content providers to join them, theymay choose to buy the content or develop thecapacity to create the content themselves.

The story for credits and degrees is similar.In a conversation with a group of venture capi-talists, the authors asked how big an obstaclestate requirements would become if a stateopposed a for-profit institution offeringdegrees within its borders. If the state wastenacious and forced the issue, the group esti-mated that overcoming this barrier could takeas long as five years.

Although the gold

rush attitude and the

corporate cowboys of

a few years ago have

subsided, there is still

enough good news to

make online higher

education attractive to

entrepreneurs.

* Kaplan, Inc., a well-known test preparation service.


In summary, colleges and universities mayface a very limited amount of time to decidewhat role, if any, they wish to play in distancelearning. Time may be one of higher educa-tion’s greatest barriers to entering and suc-ceeding in distance learning.

Money

Higher education is entering a difficult periodfinancially, as a growing number of states facedeclining tax revenues and budget deficits.Since education is the largest item in moststate budgets, cuts in this area are nearlyunavoidable. And because the states’ majorfocus is on K–12 education, the cuts likely willaffect higher education disproportionately.From a national standpoint, the outlook iseven more grim when a substantial tax cut anda war on terrorism are added to the mix.

Beyond this, interest rates on institutionalfunds have plummeted. At the campus level,endowment earnings have dropped. Fund raising could become more difficult becausethe value of foundation and individual portfo-lios has declined. At the same time, insuranceand health care benefit costs to higher educa-tion have increased dramatically. Cost savingsfrom anticipated employee turnover in previ-ously competitive areas such as technologyand finance have all but disappeared. The mes-sage is that colleges and universities are facinglower revenues and higher expenses. It will bedifficult, under these circumstances, to sus-tain existing facilities, people, and programs,let alone try new initiatives.

Campuses that have not yet entered the dis-tance learning world may discover that now isa difficult time to start. For those that haveentered, it might be difficult to find theresources to grow. Securing funds to enter the distance learning market is a barrier evenduring the best of times. Marketing can costmuch more than the course itself. The univer-sity must issue stipends and course releases todistance learning faculty, and it must factor inproduction facilities and equipment costs, aswell. Finally, the university incurs staffingcosts to administer and design the courses, and to work with faculty. Most colleges under-estimate these costs. Legions of campuseshave invested token sums such as a few hun-dred thousand dollars only to find that theamount is highly inadequate.

In some extreme instances, institutionshave invested tens of millions of dollars inunsuccessful for-profit distance learning ven-tures. Perhaps the most visible to date was New York University’s launching—and subse-quent closing—of an effort to privatize its con-tinuing education school. Similarly, the UnitedKingdom’s well-financed Open Universityclosed its American operation after only twoyears. Many well-known and well-financed college and university consortia have enteredthe distance education market to gales of pub-licity, only to fall into obscurity shortly there-after, with little to no word on their progress.Such cases encourage caution and demon-strate that even if you build it, people won’tnecessarily come—and neither will theirwallets. On the heels of the dot.com implosion,these cases serve as yet another reminder totemper enthusiasm with practical considera-tions and careful, long-term thinking.

External constituents and factors play a largerole in imposing barriers to distance learning,in some respects dictating what institutions canand cannot do. Federal law and policy affectdistance education programs in four primaryareas: student financial aid, accommodationsfor persons with disabilities, intellectual prop-erty law, and international trade agreements.

Financial Aid

With the rising cost of higher education andinstitutions’ increasing dependence on studenttuition dollars to cover costs, students are relying more on government aid to meet theirfinancial obligations. In fact, the federal gov-ernment represents the largest single source of student aid in this country.

Balancing the need to accommodate newdelivery media with the need to address con-cerns about insufficient instruction time andpossible misuse of federal funds, Congressincluded several provisions in the 1992 amend-ments to the Higher Education Act that limitaccess to federal financial aid for students indistance education programs. For example,prior to a recent regulatory change, the Higher

Education Act required a minimum of 12 con-tact hours per week of instruction when theinstitution did not operate on a conventionalsemester, trimester, or quarter system. Thisrequirement was replaced by a more liberalstandard with the adoption of a new rule thatbecomes effective July 1, 2003. Under the newregulation, an institution that offers instruc-

tion through “nonstandard” term modulesmust conduct regularly scheduled instruc-tional activities or examinations one day perweek to satisfy the 30-week academic yearrequirement. When this rule takes effect, itwill standardize the definition of one week ofinstruction for standard and “nonstandard”term programs. On the other hand, it is unclearhow the rule will actually be interpreted whenapplied to online distance learning courses;this could serve as another barrier for institu-tions that elect such a delivery medium.

Another safeguard incorporated into thelaw is the 50 Percent Rule, which protects thepublic from unscrupulous schools offeringfraudulent certificate programs. Under thisrule, an institution that offers more than 50 percent of its courses via telecommunica-tions or enrolls 50 percent or more of its students through technologically mediateddevices is ineligible for federal financial aid.This rule effectively bars students at distancelearning institutions from receiving federalstudent aid.

Congress initially wrote these provisions to prevent fraud and abuse, yet such stringentrules inhibit the expansion of distance learningprograms. To provide more opportunities forstudents to seek an education through dis-tance learning and qualify for federal financialaid, new rules governing enrollment periodsand delivery media should be explored. Toexperiment with new approaches, Congress

Barriers External to theAcademy


Federal

With the rising cost

of higher education

and institutions’

increasing

dependence on

student tuition dollars

to cover costs,

students are

relying more on

government aid to

meet their financial

obligations.

1 0 B a r r i e r s t o D i s t a n c e E d u c a t i o n

established the Distance Education Demon-stration Program (DEDP) in 1998, grantingthe Department of Education the ability towaive those rules that impair uses of tech-nology for a limited group of institutions.According to a report from the department to Congress, participating institutions haveexperienced growth in their online courseofferings and student enrollments (U.S.Department of Education, 2001a). Althoughthis represents a positive outcome, the DEDPremains only a temporary avenue for its recipi-ents. Educators expect a full re-evaluation ofthe federal financial aid policies coveringonline learning when Congress reauthorizesthe Higher Education Act during the 2003–04academic year.

Two U.S. Department of Education reports4

to Congress discuss other barriers for distancelearning institutions. For instance, thesereports suggest that legislators still need toaddress the rules and procedures of federal aidfor students who enroll at multiple institutionswithin a single system. Similarly, the reportscontend that Congress needs to review proce-dures for awarding federal financial aid to students who take courses concurrently at dif-ferent institutional systems and even frominstitutions in different states. Although thesefinancial aid issues also may be salient to tradi-tional on-campus schools, they are especiallyimportant in distance education because tech-nology facilitates taking courses from multipleinstitutions—quite possibly crossing multiplestate lines.

To effectively address financial aid issues,distance learning programs need additionalflexibility. The current scheme is too rigid andsets up obstacles to unconventional situationssuch as students enrolling at multiple universi-ties, courses with overlapping start/end dates,and self-paced learning programs. Inevitably,

nonstandard terms create new logisticalproblems, and institutions are challenged withcoordinating disbursements of funds and communicating these special arrangements tothe students.

Finally, disbursing funds directly to dis-tance learning students who may not havephysical contact with the institution raisesconcerns among policy makers about thepotential for fraud and abuse. Institutions mayneed some of these funds to pay for relatededucational expenses other than tuition andfees, such as housing, books, and food. To alleviate such concerns, special mechanismsmay be required to prevent fraud and abuse offinancial aid funds in these cases.

Persons with Disabilities

Distance learning holds the promise of openingdoors for many of the 54 million persons withdisabilities in the United States. However, theInternet is not a panacea: Access barriers toonline education may arise if the courses arenot carefully constructed or the right adaptivetechnology is not available for persons withdisabilities. For instance, a person who has ahearing disability may be disadvantaged whena streaming video lecture is played withoutclosed caption displays. Likewise, a personwho is visually impaired may be unable to navi-gate through an online course if the site postsunlabeled graphics or poorly labeled videos.

The laws providing equal access for personswith disabilities require institutions to addresssuch concerns. Chief among these laws is theAmericans with Disabilities Act of 1990 (ADA).In 1996, the Department of Justice issued aletter interpreting the ADA as requiring gov-ernmental entities and places of public accom-modation such as colleges and universities toprovide “effective communications” through

4 U.S. Department of Education. (2001a). Report to congress on the distance education demonstration program (January 2001).

Washington, DC: U.S. Government Printing Office. http://www.ed.gov/offices/OPE/PPI/DistEd/DistanceDemoReport.pdf.

U.S. Department of Education. (2001b). Student financial assistance and nontraditional educational programs (including the “12-hour

rule”): A report to Congress. Washington, DC: U.S. Government Printing Office. http://www.ed.gov/offices/OPE/News/12HourRule

Report.html

A m e r i c a n C o u n c i l o n E d u c a t i o n / E D U C A U S E 1 1

all media. In essence, higher education institu-tions must create web sites that work with stu-dents’ adaptive technology or, in some cases,furnish appropriate auxiliary aids and servicesto ensure equal opportunity. Exceptions existif the requirement of auxiliary aids or serviceswould fundamentally alter the program or ser-vice, or if providing the accommodation wouldplace an undue burden on the institution.Although it is not yet clear what this will meanin practice, the potential implication is thatdistance learning programs must be accessibleto persons with disabilities in the same man-ner as “conventional” classrooms—which maymean that colleges must design special webpages or use mediated devices to augmentexisting services.

Intellectual Property

In recent years, faculty and institutionaladministrators have debated whether thescholarly works of faculty belong to the facultymember or the institution. This issue hasbecome more relevant as faculty members andinstitutions view distance learning as a poten-tial entrepreneurial venture and as a venue todistribute intellectual work. In the context of course materials and lectures created by faculty, the ownership of intellectual propertyis governed by federal copyright law, whichgenerally protects the author of a work fromthe unauthorized duplication, distribution, oralteration of “original works of authorshipfixed in any tangible medium of expression,”including the Internet. The key exception isthe “work made for hire” provision of thecopyright law, which effectively transfers theownership of a work from the author to theentity that has paid for his or her services.Notwithstanding this rule, which seems toindicate that institutions own the works oftheir faculty, the longstanding practice inhigher education has been to allow faculty toown their lecture notes and classroom presen-tations. Distance education through onlinemedia is, however, a new phenomenon, and

faculty and institutions increasingly view thisdelivery method as a potentially lucrativesource of income.

Many faculty argue with the intellectualproperty law, asserting that course lecturesand other content should be faculty property. Faculty base this assertion on the academy’spractice of permitting professors to retain therights to their lectures, course materials, andbook royalties. Not surprisingly, facultyunions, such as the American Association ofUniversity Professors (AAUP), the AmericanFederation of Teachers (AFT), and theNational Education Association (NEA) alsohave taken the position that faculty should

The primary interests for faculty retention of ownership rights include:

• Actual Use of Work: If the course is to be replayed, particularly for com-

mercial purposes, the professor should have the right to use the work and

not be required to seek approval from the institution.

• Attribution of Work: As Anna Neumann (1999) of Teachers College men-

tions, professors feel a sense of attachment to, and at times a sense of

identity with, their work because it represents their intellectual investment

and labor. Thus, their creations should be properly attributed to them.

• Control over Scholarly Work: If a professor leaves the institution and

wishes to adopt course content at his/her next institution, permission

should not be required from the university where the scholarly products

were created. Control and dominion over the work should rest with the

faculty who created it.

• Rights to Derivative Work: Professors may wish to create related courses

or articles based on an existing course. The rights to derivative work

should rest with the professors to allow for further academic development.

• Distribution of Work: Professors often wish to convey their work to others.

In order to facilitate the sharing of scholarly work, distribution rights should

rest with faculty.


retain ownership rights. In fact, the AAUPStatement on Copyright “asserts faculty owner-ship of the copyright of traditional academicworks ‘regardless of the physical medium’ inwhich they appear” (AAUP, 1998a). Similarly,the AAUP Statement on Distance Education

states: “The faculty member. . .who creates thecourse. . .for use in distance education shallexercise control over the future use, modifica-tion, and distribution of recorded instructionalmaterial” (AAUP, 1998b).

Institutions are re-examining their intellec-tual property policies and practices related to course content because they fear losing ownership of courses. The time, money, andresources poured into distance learningcourses are supported by the institutions

through employment arrangements with faculty. Therefore, it can be argued that theproduct is a “work made for hire” and thus theproperty of the institution. According to theCopyright Act, works made for hire occurwhen “the employer or other person for whomthe work was prepared is considered theauthor. . . , unless the parties have expresslyagreed otherwise in a written instrumentsigned by them, [that the employer] owns all of the rights comprised in the copyright.”5

Besides ownership rights, the intellectualproperty debate also has centered around revenue/income distribution. For the samereasons enumerated above, faculty and institu-tions have argued for the rights to the revenuegenerated from the licensing, replay, distribu-tion, and duplication of courses.

Institutions and faculty groups must strive to maintain a policy that provides for the uni-versity’s use of materials and simultaneouslyfosters and supports faculty innovation. Someuniversities have adopted policies that applyinstitutional ownership only when the use ofuniversity resources is significant or substan-tial. This would likely occur when the univer-sity resources exceed what would be typicallyexpected for faculty in a given discipline. Simi-larly, a number of institutions have adoptedpolicies that share revenues from works pro-duced by faculty. Others have created policiesin which property rights belong to one partyand the revenue generated belongs to anotherparty. Ultimately, the barrier is meeting theshared interests of the parties when ownershiprights of courses remain uncertain.

Aside from disputes about ownership rightsbetween faculty and their respective institu-tions, distance learning courses also pose theadded complication of how to properly usecopyrighted materials without obtaining sepa-rate rights and paying royalties. Two provi-sions of the Digital Millennium Copyright Act

of 2000 permit an institution to use copy-righted works for distance education courses.

5 17 U.S.C. §201 (2002).

The primary interests for institutional retention of ownership rights

include:

• Use of University Resources: When university resources are used to pro-

duce, record, and transmit a course, the course content should belong to

the institution.

• Purpose of Employment: The institution hires professors to design and

teach courses, and they are compensated accordingly. Thus, the institution

should have the right to ownership of the course.

• Control over the Scholarly Work, Including Distribution: Faculty distribution

of course materials could threaten tuition, which is the core revenue

stream for many higher education institutions. Institutions would fall into

serious financial jeopardy without control and distribution of the course

materials.

• Conflict of Commitments: A professor’s distribution of course materials to

another institution while employed by the originating university raises a

conflict of commitments issue.


The first provision allows for the performanceor display of certain works by a governmentalbody or nonprofit educational institution;however, its limitations are problematic foronline education programs on several levels.First, this section applies only to nonprofit orpublic institutions, putting the for-profitproviders at a disadvantage. Second, it appliesto the “performance and display of works,”and it is still unsettled whether transmissionvia the Internet qualifies. Third, the perfor-mance or display must be made in locationsdevoted to instruction or a substitute venue to accommodate persons with disabilities. Distribution to the home or work site may notqualify.

The second key provision is known as thefair-use exemption. Factoring in the purpose,nature, amount, and effect of use, this provi-sion permits a partial reproduction of an original work when used for teaching, scholar-ship, research, criticism, comment, or newsreporting—regardless of the medium. Thepending Technology, Education, and Copy-

right Harmonization Act (TEACH), if adoptedin its current state, would expand the types ofwork that could be performed or displayed forclassroom use at an accredited institution. Theact also would exempt accredited schools thattransmit via the Internet or other similarformats from charges of copyright violationsimply because the materials are temporarily“distributed” or “reproduced.”

If there is no exemption, a distance learningprovider must obtain a license from the copy-right holder before reproducing or performinga copyrighted work. Such a license could becostly and, at the very least, time consuming toobtain.

International Trade

In 1995, the United States and scores of othernations began negotiating a new General

Agreement on Trade in Services (GATS). GATS

is intended to be a multilateral trade agree-ment that lowers barriers to the provision ofservices across national boundaries. Highereducation is included among the potentiallycovered services; this has caused some seg-ments of American higher education to worryabout the potential effects of GATS on domesticcolleges and universities.

Organizations such as the American Council on Education (ACE) and theCouncil for Higher Education Accreditation(CHEA) have urged the government to take a cautionary stance. They are concerned thattrade agreements could weaken state authority over educational decisions or jeopardize theautonomy of accrediting associations. On theother hand, the opening of new markets couldserve American higher education well. Thenegotiations over the GATS agreement areexpected to conclude in January 2005.

States

The states serve as the primary arbiters of policy and governance issues in education.Indeed, under the American federal system,education is a role reserved primarily for indi-vidual states. The United States so unfailinglyadheres to this practice, that Sir John Daniel—at the 1999 Annual Meeting of the NationalGovernors Association (NGA)—said about hisexperience in expanding the Open Universityto the United States: “I thought that when Ibrought the Open University to the [UnitedStates], I would be dealing with one country. I was mistaken” (Goldstein, 2001).

Every state has laws or regulations thatgovern the operations of colleges and universi-ties, and many now have rules regarding distancelearning programs as well. Unfortunately,many of the rules governing higher educationinstitutions pre-date the Internet by decades.More than 20 years ago, when television wasthe medium of choice for distance learning,legislators made a serious effort to arrive atcommon standards for approval of out-of-stateprograms. It failed, and since then even more


fragmentation has occurred, as states becameincreasingly aware of the potential impact ofInternet-based learning on their domestichigher education establishment. Some stateshave enacted laws that clearly intend to allowthe state higher education agency to regulatedistance learning that originates from beyondstate borders. On the one hand, it seems set-tled that states have an obligation to overseethe quality and nature of educational servicesprovided to their citizens. Yet the future of dis-tance learning is very much in question if itmust operate in an environment with morethan 50 different regulatory systems. Even if the substantive legal requirements do notdiffer significantly, the burden on an institu-tion to maintain good standing in every statecan be enormous. Whether such restrictionsare permitted under the commerce clause ofthe U.S. Constitution or are a proper exerciseof state sovereignty under its reserved powersclause have yet to be determined.

Lack of adequate state funding is a barrierwith which public institutions also must con-tend. Budgets for the 2001–02 fiscal year rep-resented the smallest increase to highereducation in the past five years. In fact, col-leges in 13 states did not receive enough fundseven to keep up with the rate of inflation.Although revenue from distance educationcould help compensate for declines in statefunding, the start-up costs, including equip-ment acquisition and course development,require significant contributions from thestate. In order to finance distance learningventures, the logrolling effect of cutting otherstate allocations will likely be necessary.

In many states, lobbying against distancelearning as the exclusive educational mediumalso has occurred in areas as diverse as teachereducation and massage therapy. In thesecases, distance learning courses are acceptablefor program credit or for state licensure only ifproviders offer them in conjunction with con-

ventional in-person classes. Although many ofthese state policies are intended to protect stu-dents, they often impose heavier regulatoryburdens on distance learning programs.

Not all state laws and policies serve as bar-riers to distance education. A number of stateshave enacted laws that encourage the develop-ment of distance learning programs. Forexample, the Florida legislature has mandatedthat the professional development system forteachers offer distance learning or some othertechnology-based delivery system. Coloradoand Illinois have enacted even more attractivepolicies: They offer funding opportunities todevelop distance education programs. Ulti-mately, state legislatures should seek a balancebetween protective policies and enticingincentives to advance innovation and monitorquality.

Accrediting Agencies

Accrediting bodies exist to ensure high qualityat member colleges and universities throughpeer review, support the process of accessingfederal funds, ease the transfer processbetween higher education institutions, andengender public confidence in member insti-tutions’ academic programs (Eaton, 2002). Toachieve these objectives, the accrediting bodiescreated the current policies and practices withthe traditional, in-person educational experi-ence in mind. Unfortunately, this evaluationsystem does not fit most distance learning insti-tutions. Accordingly, in 2001, eight regionalaccrediting commissions collaborated to formu-late the Statement of Commitment by the

Regional Accrediting Commissions (2001). Thegroup adopted the Best Practices for Electroni-

cally Offered Degree and Certificate Programs,

a publication created by the Western Coopera-tive for Educational Telecommunications(2000). These two documents acknowledgethe emergence of new providers in higher edu-cation and underscore that accreditors are striving for a balance between the dual role of “fulfilling the expectation that regional


accreditation is a dependable indicator ofinstitutional quality and encouraging percep-tive and imaginative experimentation” (State-

ment of Commitment, 2001, p. ii). None-theless, these documents fail to provide newevaluation processes for accreditation withregard to distance education.

Equally important is that the higher educa-tion community continues to criticize theregional accreditation process. This becomesan even larger problem with distance educa-tion because different standards exist amongregions. For instance, some innovative institu-tions recognize the North Central Associationof Colleges and Schools as a “friendly” accred-iting body. Since the likelihood of obtainingaccreditation sometimes depends on theregion in which an institution seeks accredita-tion, this lack of consistency encourages insti-tutions to “shop around” among variousforums or regions to establish themselves asaccredited institutions. With clearer, moreconsistent policies and practices, institutionscould expect the same level of evaluation in allregions.

Thus, two major obstacles exist in theaccreditation of distance learning programs:lack of clear, applicable evaluation guidelinesand inconsistent standards. Educators and leg-islators must address these obstacles, for theinfluence of accreditation extends to other keyareas of higher education—including participa-tion in federal student aid programs and, often-times, eligibility in employee reimbursementplans.6

Professional Organizations, Unions, Consortia,and Partnerships

Two prominent faculty union groups and anumber of professional organizations havevoiced their concerns about distance educa-tion programs. They fear that the new online

medium could potentially shift higher educa-tion into a mass production engine without anadequate level of quality control, and couldthreaten the academic profession’s academicfreedom and workload standards. At the sametime, higher education institutions are enteringinto more joint ventures—creating new organi-zational forms and interinstitutional agree-ments to help facilitate successful distancelearning programs. Of course, these venturesalso raise potential barriers that must beaddressed.

In 1997, the AAUP Report on Distance

Learning acknowledged the potential benefits of online education but also cautioned the academy that state-operated distance educationprograms, although created as cost-cuttingavenues, actually may shift costs from theclassroom to the technology centers in order to cover associated costs such as additionalstaffing.

In June 2000, the NEA released the resultsof a survey on distance education. Accordingto this report, 72 percent of the faculty polledresponded positively to the new medium.Those who had taught web-based coursesreported a higher level of positive feelings.One month later, the AFT passed a resolutionopposing exclusive undergraduate programsoffered via distance learning (Carnevale,2001). Although the NEA survey found per-ceived differences between distance learningand traditional, in-person courses, it did notissue such a summary dismissal of distancelearning for undergraduate education.

Aside from faculty unions, higher educa-tion organizations have been divided in theirresponse to the growth of distance learning.Some have treated the phenomenon with skepticism, while others have expressed sup-port. The consistent theme at higher education

6 In addition, the Technology, Education, and Copyright Harmonization Act (TEACH), if passed, would broaden the scope of eligibility

of performance and display of copyrighted materials at accredited institutions. Thus, in terms of accreditation, much more may be at

stake for distance learning institutions.

In many states,

lobbying against

distance learning as

the exclusive

educational medium

also has occurred in

areas as diverse as

teacher education and

massage therapy.


conferences and meetings, however, is that the academy needs to prepare itself for whatwill likely be a paradigm shift in educationaldelivery.

One response to this challenge, in part tominimize risks and in part to harness syner-gies, has been the rapid growth of consortiaprojects and partnerships (Katz, 2002). State-based programs, such as the Michigan andKentucky virtual universities, and multistateprojects, such as the Southern Regional Elec-tronic University, Western Governors Univer-sity, and The Great Plains Interactive DistanceEducation Alliance, allow institutions to pooltheir resources and talents and often to sharerisks. Generally, these consortia are designedso that each institution brings a unique contri-

bution to the group. Hundreds of courses andscores of programs are now available throughthese cooperative ventures. Collaborativeefforts and partnerships do raise their owncritical issues that could become barriers ifignored. Questions of choice of partner andform of organization revolve around issuessuch as commonality of mission, ability to con-summate articulation and credit-recognitionpolicies, selection of accrediting agency, legalstructure, exclusivity rights for course usage,and ownership of intellectual property. Theseissues seem likely to directly affect the successor failure of these ventures.7

7 For a more in-depth discussion, see Distance Learning Partnerships (Katz, 2002).


n the span of five generations, the U.S.economy has shifted from agrarian toindustrial to information based. Since

World War II, the economy has transformedeven more dramatically from production toservice to knowledge. In the course of theseshifts, higher education has become a primaryeconomic engine of society. In 1900, 4 percentof persons aged 18 to 22 attended college;today, approximately 63 percent of high schoolgraduates enroll in postsecondary educationimmediately following secondary school com-pletion (U.S. Department of Education, 2002).People need a high level of education to obtainthe best jobs our society offers, and increas-ingly they need that education consistentlythroughout their lives as the half-life of knowledge gets shorter and shorter.

Distance learning programs are a reflec-tion of this new world. They offer educationwithout borders. Distance education is whatformer University of Michigan President Jim Duderstadt would call “just-in-time”rather than “just-in-case” education. It growsout of today’s technological revolution. It aims to be individualized, interactive, and indepen-dent of time, emphasizing learning over teaching and commonality of outcomes overcommonality of processes.

Furthermore, new legal concerns havebecome issues in distance education: facultyand institutions battle for intellectual propertyrights, institutions and students need moreflexibility from governmental financial aidprograms, educators seek legal exceptions todisplay copyrighted materials, and institutionsmust provide proper educational media forpersons with disabilities. At the same time,institutions must conform to internationalagreements, state laws, rules established byaccrediting bodies, and professional associa-tion policies. And all of this must be balancedwith protecting institutions and their con-stituents, offering students choice, and ensuring the public good.

Obstacles can serve two very different purposes. Some obstacles ensure high qualityand create the standards necessary to assess anynew activity. Others are simply gatekeepers—political, personal, and institutional—to barany type of change. The challenge facing academe is to distinguish between the two: to preserve the former and sweep away the latter. Distance learning remains immatureand experimental. Higher education institu-tions need to innovate and allow distancelearning to evolve and develop—but theycannot do so wholly unchecked.

Conclusion

I[Distance learning]

aims to be

individualized,

interactive, and

independent of time,

emphasizing learning

over teaching and

commonality of

outcomes over

commonality of

processes.


References

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Katz, R., Napier, I., & Ferrara, E. (2002). Distance learning partnerships. Washington, DC: American Council on Education.

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offered degree and certificate programs. Boulder, CO: Author.http://www.wiche.edu/telecom/Accrediting%20-%20Best%20Practices.pdf

Statutory and Regulatory Provisions

Americans with Disabilities Act of 1990, 42 U.S.C. § 12132 et seq. (2002).

Copyright Act of 1976, 17 U.S.C. § 102 et seq. (2002).

Digital Millennium Copyright Act, 17 U.S.C. §§ 107 and 110 (2002).

Higher Education Act of 1965, 20 U.S.C. § 1002 et seq. (2002).

Higher Education Act Regulations, 67 Fed. Reg. 51718-01 (2002) (to be codified at 34 C.F.R. § 600, 668, 673, 675, 682, 685, 690, and 694).

Arthur Levine is president and professor of education at Teachers College, Columbia University.

Jeffrey C. Sun is a doctoral student at Teachers College, Columbia University, and an attorney.

About the Authors


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