Regulatory Overreach

Richard Vedder

The House of Representatives is going to pass today a bill (H.R. 2117) that would forbid two regulatory initiatives of the Obama administration. The first relates to the definition of a student credit-hour, while the second deals with the requirement that all online programs must get authorization in each of the 50 states to operate. The only interesting thing about today’s vote is how many Democrats will vote with the GOP. The number could be very substantial, since virtually the entire higher-education establishment, led by the American Council of Education, wants the bill passed. The Obama administration is “strongly opposed” to the measure, but has not explicitly said it would veto it if it were the pass the U.S. Senate.

This is a classic case of regulatory overreach. The definition of a student credit hour has long been an elusive matter, with most persons agreeing that “clock hours”—actual minutes in formal instruction—is at best an crude proxy for the effort and extent of learning involved in courses. This is doubly true in a world of online education, collaborative learning ventures, etc. But the big issue here is: why shouldn’t this matter be left to others, such as the states with respect to funded public universities, or to the accrediting agencies?

Ironically, on state authorization the Feds take the opposite tack, requiring 50 separate approvals for some school trying to offer online courses nationally. This is an outrageously inefficient and costly procedure, and violates the spirit if not the letter of the interstate commerce clause of the U.S. Constitution. As long ago as Gibbons v. Ogden (1824) the Supreme Court put limits on state authority over matters of interstate commerce.  This is Luddite regulation, an attempt to raise the cost of promising technologies. Designed, I suspect, to slow the growth of hated (by the Obama administration) for-profit education, it threatens promising new innovations, creates barriers to entry, etc. It is simply awful.

But the broader issue is: Why should the creative, competitive, and generally successful (if excessively costly) system of decentralized higher education be abandoned and regulatory power be turned over to a faceless Washington bureaucracy? Do Department of Education functionaries in D.C. know what is best for the residents of Hawaii located over 4,000 miles away?

This is an election year, and when one significant presidential hopeful, Rick Santorum, causes a stir attacking the Obama “college for everyone” policy, you know that higher-education issues are becoming more important in the contest than ever before. The Obama administration’s overreach may prove counterproductive not only educationally but politically as well.

This article originally appeared on the Chronicle of Higher Education's Innovations blog on February 28, 2012. 

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