Regulatory Barriers to Innovation for Ed Tech and Open Education

Over the past few weeks there has been a significant backlash growing against SOPA (the anti-piracy bills introduced in Congress) – read here or here for background.  The biggest change since the bills were introduced is that big technology vendors (significantly including Microsoft and working through the Business Software Alliance) have either withdrawn support or gotten off the fence.  The BSA is now officially lobbying against SOPA as written.  In the world of strange bedfellows, there are also a number of politicians on both sides of the aisle publicly opposing the bill.  It does take some real legislative talent to help create a Pelosi – Paul – Issa common cause.

Despite the growing opposition, there certainly appears to be a concerted effort in Congress to get the bill passed.  The outcome is far from clear at this point.

While SOPA by itself remains a major threat to innovation for educational technology and open education in general, it may be helpful to step back and see the growing list of federal laws and regulations that could have a major impact on innovation in higher education.  While each issue is interesting in and of itself, a pattern is emerging.  This pattern suggests that organizations interested in preserving the status quo – are actively pushing back against the tide of change brought by online systems, online education, and digital content.

  • Gainful Employment - The Department of Education (DoE) looks at student default rates at for-profit schools, and creates new regulations based on the future ability of students to pay off debt.  While based on good intentions, the regulations are targeted at one sector and ignore the bigger picture of rising higher education tuitions and massive student debt at all institutions.
  • Individual State Authorization - The DoE interprets past rulings to mean that online programs must have authorization from the home state of each student in order to operate.  Since this move, many states have started registration processes to ‘get into the game’ and share the revenue.  While the DoE has pulled back temporarily, according to a WCET survey, almost 60% of online programs will begin to limit which states they will serve – meaning fewer choices for students.
  • Accessibility for Online Programs - The DoE interprets accessibility rules to directly apply to all online programs without exception.  No room for experimentation.  This will apply not only to online technology, but also to online content.
  • Review of For-Profit Accreditation - Senator Harkin is leading an effort along with DoE to change accreditation of for-profit schools, including review of their corporate operations.
  • Stop Online Piracy Act (SOPA) - As drafted, SOPA could have a major impact on institutions using any form of educational technology to share content outside of a tightly-controlled password-protected course site.

There are many writers, including myself, who have been writing about the growing interest and investment in educational technology and online programs with the potential to change higher education.  What is apparent from the emerging pattern of legislative and regulatory actions is that there is significant pushback against these changes.  Real issues such as piracy and inability for students to repay student loans need to be addressed, but the pattern is that the actual implementation of the laws or rules ends up going far beyond addressing the purported problems and becomes a barrier to innovation.

One of the effects of this give-and-take is that the organizations that can afford to get around these barriers will tend to be larger and larger.  Smaller colleges don’t have the staff or budgets to deal with all the compliance issues.  With so many cloud-based ed tech platforms emerging, will the smaller companies be able to prevent SOPA actions with all of the user-generated content on their sites?

There will be other battles to hit the public consciousness in higher ed, but it would be helpful to view them in the context of the bigger picture.  Higher education needs fundamental change, but not every change will be successful.  Each battle will have valid arguments on both sides, but don’t view the battles in isolation.

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About Phil Hill

Phil is a consultant and industry analyst covering the educational technology market primarily for higher education. He has written for e-Literate since Aug 2011. For a more complete biography, view his profile page.
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