“The [Education] Department continues to remain silent regarding its intentions respecting whether it will re-issue the distance learning authorization rule or some new version of it,” they wrote.

Colleges and universities are still required to comply with existing state regulations related to web-based education programs, Goldstein and Ferenbach wrote, even after the state authorization regulations were struck down in court.

“It is very important to remember that failure to comply with applicable state law can result in enforcement actions at the state level, with potentially serious consequences,” they wrote. “Likewise, failure to comply with state law can violate the expectations of an institution’s accrediting commission.”

Schools have continued the often complex task of complying with dozens—sometimes hundreds—of state rules that existed long before the federal government proposed state authorization.

Pamela Shay, vice president of accreditation at Franklin University in Ohio, said her school would continue to comply with sometimes-stringent state rules even after the court’s decision.

“We want to make sure we are in compliance with various states, and we want to be very transparent in what we do,” she said. “We’ve squeezed the toothpaste and now it’s hard to get it back in the tube. States know now that colleges were not following their requirements, so I think [the state authorization rule’s] purpose may have already been served by just bringing awareness to the situation.”

The court’s decision to “vacate” state authorization rules—which would require colleges with online programs to register courses in every state in which they operate—followed a 2011 U.S. District Court decision to strike down the law.

Eliminating the distance-education portion of the state authorization regulation was based purely on procedural grounds: The appeals court charged that the U.S. Department of Education (ED) did not comply with a federal rule-making process that would provide the online community the chance to add comments and suggestions before implementation of the regulation.


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