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Legal Obligations to Online Students Under Title IX: Threshold Issues and Practical Considerations

keyboard_gavel_2Title IX compliance is an important issue that must not be overlooked by providers of distance education courses, programs and other online learning environments. DEAC thanks Gregory Ferenbach, Paul Thompson, and Naomi Harralson May from Cooley for graciously granting their permission to provide our Compass readers with their policy brief first published in Unbound.

Innovators in online education are hardly strangers to the legal uncertainty that often accompanies efforts to interpret and apply old laws to new realities. This post and the policy brief linked herein discusses one such area: legal obligations to online students under the federal statutory provision referred to as “Title IX,” which prohibits discrimination on the basis of sex in most educational programs and activities that receive federal funds. Specifically, 20 U.S.C. § 1681(a) states, “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”

Since Title IX was adopted in 1972, federal agencies have developed regulations and policy guidance that are both copious and far-reaching. In addition, recent incidents of sexual assault at many high-profile institutions have moved Title IX compliance into the national spotlight. Institutions that fail to comply with Title IX may face federal agency compliance reviews as well as individual lawsuits from victims and alleged offenders, both of which can be costly and may result in reputational damage.

If an institution receives federal funds in any form, then the institution’s “education programs and activities” (not just those that actually use the funds) are covered under Title IX, regardless of whether the entity is public, private, or proprietary. Even entities that do not qualify as an institution of higher education may be subject to Title IX. There is no exception under Title IX for online courses or programs. Furthermore, “education programs and activities” are not limited to credit-bearing courses but include activities that are extracurricular, research-oriented, or occupational in nature. They include programs and activities that are not directly operated by a recipient entity, but that the recipient entity requires or considers equivalent to an education program or activity, such as clinical experiences, internships, and participation in online discussion boards.

Thus, Title IX applies equally to adult learners enrolled in one online class a week and to full-time students living on campus, and regardless of whether you provide online courses as an extension of a large research university or as a corporation that has received a federal grant for workforce training that is offered online.

To learn more about this topic and the threshold issues for assessing compliance in distance education courses and other online environments, read the policy brief in its entirety here.

Distance Education and Professional Licensing

DEAC is pleased to welcome guest blogger, Sharyl Thompson, CEOsharyl of Higher Education Regulatory Consulting to offer her insights on the complexities of distance education programs and professional licensing.

Contrary to many predictions 15 to 20 years ago, distance education has not diminished or faded away. A recent report published by WCET (WCET Distance Education Report) shows the number of online enrollments has risen from 1.6 million in 2002 to 5.8 million in 2014. With the increase in distance education opportunities has come an increase in regulatory oversight – federal, state, and accreditors.

Although state authorization regulations have been in place for many years, many institutions were unaware of them until 2010 when the U.S. Department of Education proposed new rules under the Higher Education Act. And although the federal oversight of distance education was set aside by a federal court decision, institutions all over the country learned they must take measures to be in compliance with the authorization regulations of each state. Far too many institutions are still not addressing this important issue. Furthermore, institutions that offer programs that lead to a professional license are coming under greater scrutiny.

As state higher education regulators became more aware that institutions were offering licensure-track programs through distance education, they began, in the interest of consumer protection, to pay closer attention to whether or not such programs offered to students in their states met the professional licensure requirements in their state. From the institutional perspective, many believe that, as long as they know their licensure-track programs meet the professional licensure requirements in the state of their main campus or headquarters, that would be sufficient. This is not always the case, especially for distance education programs.

With distance education in the mix, it is vitally important that institutions be aware of where their licensure-track programs do not meet professional licensure requirements and disclose that information to the general public.

At the very least, institutions need to know where their students intend to practice the licensed profession for which they are studying. Why? Here’s an example: if I am a student taking courses in Minnesota from an institution located in Florida, I wouldn’t want to go through the entire program only to find out that I can only get licensed in Florida when I have no intention of practicing my profession there. Not only would I have spent thousands of dollars, I also would have spent thousands of hours – time that can never be regained.

A second responsibility for institutions is that, when they know (because they’ve done the research – or hired to have it done) that a licensure track program they are offering does not meet the professional licensing requirements in another state, they are responsible to disclose that information to the general public. The disclosure responsibility starts with ethics—doing the right thing. But it is more than that. Disclosure requirements are mandated in some state regulations and are included in the misrepresentation rules of the U.S. Department of Education ( So, not disclosing is against the law. The State Authorization Reciprocity Agreement (SARA) also has disclosure requirements.

Institutions should act now and not wait. Institutions have an important obligation to inform students of whether or not the programs they are taking meet the professional licensure requirements in the state in which they intend to practice

Digital Accessibility – Know and Understand the Issues

By guest blogger: Lucien “Skip” Capone III, JD


Last November I attended a conference on regulatory compliance in higher education. The conference was held by my professional organization, the National Association of College and University Attorneys (NACUA). One of the sessions focused upon federal regulation of accessibility to online education under the ADA and Section 504 of the Rehabilitation Act of 1973 and accessibility to online course materials and school websites for students with disabilities.

I have been following this topic for several years with growing concern about implications for institutions that operate primarily online. It is important for institutions to fully understand the complexity of the issue. Most of the federal government’s enforcement actions have involved large, state-run institutions and on-line institutions. The evidence of this trend is embodied in a Complaint Resolution Agreement signed by the University of Phoenix with the U.S. Department of Education’s Office for Civil Rights (OCR) last June (2015). OCR’s investigation began after a student complained that the institution’s new online learning platform, “New Classroom,” was inaccessible to students using assistive technology. Highlights of the Resolution Agreement include requirements that the University:

• Create policies and procedures ensuring that new online content will be accessible as measured by the Web Content Accessibility Guidelines (WCAG 2.0).
• Audit accessibility of existing content, websites, portals, financial aid, admissions, and library resources and develop a corrective action plan to address problems within 18 months.
• Verify that content purchased from third-party vendors is accessible.
• Provide training for faculty, administrators and content providers at least annually.
• Put in place an IT Disability Coordinator.
• Have trained staff monitor Webpage; remediation must be accomplished within 24 hours of submission.
• Waive fees and tuition for the student and reimburse her for the cost of courses where she had accessibility issues.

Currently, there are no federal regulations that specifically address online accessibility for public or private institutions. All we have are general statements in the ADA and Section 504 that a school’s programs and offerings must be equally accessible to students with and without disabilities. The U.S. Department of Justice has been promising proposed regulations on this topic for at least 10 years but keeps delaying them (currently they are promised to be published this spring). The only other regulatory source is Section 508 of the Rehabilitation Act governing accessibility of electronic and information technology. However, Section 508, by its terms, only applies to federal agencies. Nevertheless, the OCR appears to use them as the yardstick for measuring compliance with the general accessibility requirement of the ADA and Section 504.

Maintaining in-house expertise capable of implementing the Section 508 as well as WCAG 2.0 standards is an enormous undertaking. However, George Mason University (GMU) has published a very helpful Guide to Creating Accessible Electronic Materials and series of video tutorials. It is very important to review these materials and assess the steps your institution is taking to address digital accessibility.

How long can an institution go without at least starting this process? Not long. As learned from the University of Phoenix case, all it takes is a single complaint to OCR from a student or applicant. Once the complaint is received, OCR has carte blanche to look at an institution’s entire program, not limited in any way to the specifics of the complaint. If OCR finds that an institution is not in compliance, meeting its demands will be very costly (often including financial compensation to disadvantaged students and applicants).

I urge institutions to understand digital accessibility. In late December 2015, nine Democratic senators (Edward J. Markey (D-Mass), Elizabeth Warren (D-Mass.), Sherrod Brown (D-Ohio), Cory A. Booker (D-N.J.), Barbara A. Mikulski (D-Md.), Richard Blumenthal (D-Conn.), Benjamin L. Cardin (D-Md.), Al Franken (D-Minn.) and Richard J. Durbin (D-Ill.)) sent a joint letter to the Office of Management and Budget (OMB) requesting that office “complete its review” of the Department of Justice’s (DOJ) “Advanced Notice of Proposed Rulemaking” (ANPRM) for public accommodations websites, online systems, and other information and communication technologies (ICT).  Although the regulatory process moves at a glacial pace, it is very important to stay informed.

Skip Capone recently retired after spending 24 years as a campus general counsel in the University of North Carolina system. He has been a speaker on legal issues in higher education at several DEAC conferences and actively participates as a site team member.

December 6, 2015: Blurred Lines

By Susan Chiaramonte

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In 2010, the U.S. Department of Education published regulations strengthening its misrepresentation rules (see 34 CFR § 668.71). Whether the public or the education sector knew it, these revised regulations expanded the Department’s scope of reach to cover any misleading information made by an institution, its employees, its agents (such as lead generation firms and education technology vendors) and any third party. Not only does the DOE regulation cover actual misleading statements, but also any statements that are likely to mislead students or the public. A violation of these regulations can lead to severe fines up to and including the loss of Title IV eligibility for institutions.

While the Department has not overtly expanded the use of this extended authority, mounting tensions are bringing change. The Department is facing increasing criticism regarding its oversight of the higher education sector which is trickling down to accrediting organizations and ultimately, institutions. For years this attention has been focused on for-profit institutions, but the recent Federal Trade Commission workshop that took place in Washington D.C. in October paints a different future.

Some may ask, “What does the Federal Trade Commission have to do with the Department’s 2010 regulations?” Well, the story continues in 2013 when the Federal Trade Commission updated their official guidance on deceptive marketing practices in the education sector. You may hear these guidelines commonly referred to as the Guides. To avoid any incorrect interpretations of the Guides, the following is an excerpt from FTC Focuses on Lead Generation Practices in Higher Education and Ed Tech:

…the Guides identified particular conduct that constitutes a deceptive practice, including any representation without qualification that a school is accredited, unless all courses and programs are accredited and any misrepresentation through pictures about facilities, training methods, or equipment.

Initially, the Guides were focused on vocational and distance education institutions, but with its publication, the FTC made it clear that it would enforce regulations against for-profit corporations in education which include lead generation companies and other related service providers. While every story has a villain, the antagonist in this tale is a little less clear.

Many in the education sector would like to point fingers at the increasing Federal oversight; however, the mounting complaints from students would indicate that institutions are also at fault for taking marketing liberties. As a society, we have found ways to entice consumers through effective marketing practices that may stretch the boundaries of truth-in-advertising.

Over the years, education has become a growing competitive market. Advancements in technology have allowed educational opportunities across geographic borders. The increase in accessibility provides challenges for institutions as they struggle to differentiate themselves from their competitors. While the struggles are real, there are three reasons institutions should take this heightened scrutiny seriously, the least of which centers on the Department’s and the FTC’s renewed focus.

  1. Do the Right Thing: Sometimes the answer is as simple as just doing the right thing. No one likes to be lied to, no matter how insignificant the consequences. Many students enroll in programs without understanding the “ins and outs” of higher education. Institutions have the responsibility to clearly communicate program benefits, requirements and costs. No games. Just the truth.
  2. Mirror, Mirror: Students can see through the façade. People want authenticity. They want the good, bad and the ugly, as long as it’s honest. They want to believe in something bigger and have respect for institutions that take responsibility for their actions. While deceptive marketing practices may initially lead to increased enrollments, they are not likely to turn into increased retention and completion rates. At the very least these deceptive marketing practices will leave a bad taste in students’ mouth, and at most, it will lead to negative word-of-mouth advertising. Institutions need to focus advertising and promotional efforts on the truth. Stand behind your “why” and students will believe and buy in too.
  3. Culture Club: Creating a culture that focuses on students and their success is the key to building honest relationships. A culture that focuses on the best interests of its students has built-in mechanisms to guard against the need for perceived innocent exaggeration. When serving students becomes the focus, institutions work harder to innovate and deliver programs and services that enable students to achieve their goals.

Institutions can take proactive steps to protect themselves, but more importantly they can implement practices that place student interests first. Students are looking for honesty, authenticity and sincerity. In a highly competitive and hostile environment, institutions can survive by avoiding blurred lines and doing the right thing. How does your institution focus on the truth-in-advertising and avoid blurring the lines? Join the conversation.

Susan Chiaramonte is President of EduCred Services. EduCred Services is a higher education consulting firm. EduCred Services mentors clients to adapt their unique strengths, programs, and organizational structures in support of educational options that are recognized for their value by meeting the needs of the 21st century student.

November 24th: What do distance education institutions need to prepare for in 2016?

By Kimberly Cook and Leah Matthews

At the 2015 DEAC Fall Workshop, we spent a fair amount of time discussing the changing political and policy landscape for distance education and accreditation. Our discussions addressed the sharpening focus on student learning outcomes against a backdrop of growing public skepticism, high-profile lawsuits, and uncertainties surrounding quality assurance impacting students and institutions. In consistent 2016 image for deacpolitical and legislative agendas are forcefully contributing to a cumbersome
regulatory environment. The Executive Order published on November 6, 2015 (see DEAC’s Washington Insights) adds to the growing pressure on accreditors to focus more intently on student outcomes data and loan repayment. DEAC provides an important forum for discussing what institutions can do to thrive in this atmosphere through the dialogue it fosters through in-person meetings and social media. Today, we’d like to dive deeper into actions that institutions can take to be ready for 2016 as it approaches.

Distance education institutions need to be ready for:

  1. More accountability measures regarding student achievement outcomes: We operate in an era characterized by significant attention to cost and pressure to measure the return on investment related to education. Across the spectrum of higher education, institutions with lower graduation rates are being asked to explain why. Our institutions need to be ready not only to present information about learning outcomes to the public, but also to proactively tell the story of their students’ educational achievements and accomplishments within the context of institutional mission.
  1. A continued focus on consumer protection: We know consumer protection is a high priority of all DEAC institutions but it will remain a focus of the distance education landscape for 2016, just as it did in 2015. We will continue to foster an environment of support for student learning and will require institutions to disclose outcomes in the most conscientious and responsible way possible. DEAC’s accreditation process anchors every institutional evaluation around explicitly stated ethical business practices. We also encourage institutions to maintain extensive records with metrics that support consumer protection as we continue to enhance the public’s trust in the rigor and value of accreditation.
  1. A healthy balance of quality assurance and innovation: Quality assurance will continue to be a priority of accreditation. The coming year promises to be a year of ‘pilots’ and opportunities to push the envelope of innovation while maintaining quality assurance. For example, the Department of Education is instituting programs under its Experimental Sites Initiative such as EQUIP, that would allow a limited number of partner post-secondary institution and non-traditional education providers access to Title IV student aid. Providers of education are collaborating on ways to award credit that give non-traditional or underserved learners an opportunity to build a portfolio of coursework and knowledge as they pursue a postsecondary credential or degree. Such innovations offer pathways for students to enter or re-enter the higher education system and support the arc of a national agenda for postsecondary attainment. DEAC institutions must think strategically about how to position their distance education offerings in view of growing opportunities for online learning.

Join the conversation! What else might distance education institutions need to be ready for in 2016?

Kimberly Cook is the Manager of institutional review at DEAC and is primarily responsible for coordinating the Accrediting Commission meetings and the review of institutional submissions. Leah Matthews is the Executive Director of DEAC. To find out more about the DEAC team, click here.