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As students returned to school recently, many may have been looking ahead to their next day off. And today, there are so many online schools that e-commerce executives are turning the chorus of Alice Cooper's classic 1972 schoolboy anthem “School's Out” ' “School's out forever” ' into reality by turning school into another form of e-commerce.
The number of online schools is immense, growing, and of every variety. Consider the following short lists ' and they are short, in terms of the online-education marketplace ' of online courses, online-course portals and news sources devoted to covering developments in online learning:
Several sites exist solely to cover online education, such as:
- The Sloan Consortium (http://www.sloan-c.org/);
Even Bill Gates proudly proclaims that he still goes to school online (see, http://www.thegatesnotes.com/), although it is hard to imagine what degree would help him improve his position.
Growing Sector
According to the most recent Sloan Consortium report, cited above,”[o]nline enrollments have continued to grow at rates far in excess of the total higher education student population, with the most recent data demonstrating no signs of slowing ' with more than 4.6 million online students in 2008, [a] 17% growth rate, and more than one in four college students taking at least one course online.”
e-Schools of every purpose and subject can quickly and easily be found online, from for-profit and non-profit schools, to K-12, secondary, college, post-graduate education, and traditional schools. For instance, established universities such as Penn State have expansive online schools (sometimes, as in Penn State's case, called “world campuses”) (see, www.centredaily.com/2009/11/15/1625939/enrollment-soars-at-psus-world.html). Other players, newly founded and established institutions (they're not always schools, strictly speaking) include Strayer University (http://www.strayer.edu/), The University of Phoenix (http://www.phoenix.edu/) and Devry University ' “Earn a degree from an accredited university” ' at http://www.devry.edu/). Specialty schools are also online ' in fact, many were innovators, offering niche-market courses and continuing education for various professions, such as “Connections Academy” (www.connectionsacademy.com/faqs.aspx), before mainstream universities and other types of schools did.
One can also easily find special-education schools and enrichment schools online. There is even a site (http://www.einztein.com/ ' still in beta testing) that is an online “shopping mall” for virtual education courses.
e-Education Is a Part of e-Commerce
If higher education wasn't considered to be part of e-commerce before the widespread availability of the Internet, no one can deny that online education has by now proven itself to be big e-business. In fact, by some standards, it does a better job than traditional education. According to one study, “on average, students in online learning conditions performed better than those receiving face-to-face instruction” (see, www.sloanconsortium.org/publications/survey/pdf/learningondemand.pdf).
There has even been speculation that virtual schools will force physical schools to adapt and improve through competition, by allowing innovative educators to bypass education bureaucracies (www.eschoolnews.com/2010/01/18/opinion-virtual-schools-are-a-critical-piece-of-educations-future). Others believe that online education will fundamentally reshape our higher-education system, and incentivize non-profit institutions (and their faculty) to greater acceptance of online learning (www.aaup.org/AAUP/pubsres/academe/2001/SO/Feat/nobl.htm). More practically, Wal-Mart encourages its employees to get online academic credit for their work at Wal-Mart stores.
Yet, in contrast to other forms of e-commerce, education consumers still “buy local,” demonstrating a difference from their willingness, for instance, to trust Fed-Ex and UPS to deliver other online purchases. According to one recent study, just as e-consumers have flocked to sites of familiar real-world merchants: “Students like online learning, but they also like the tangibility of having a 'real campus' nearby. (I)n routine surveys (Eduventures) has done over the last three years, roughly 65% of online learners have said they prefer an institution with a physical presence within 50 miles” (www.insidehighered.com/news/2010/07/23/online).
But just as with the e-reader shopping for the virtual books and textbooks that are sweeping the real world, purchasing educational content online is, at its core, an e-commerce transaction, governed by “electronic fine print” (whether you take the time to read it or not), and laws affecting all businesses. But does the aggressive, entrepreneurial e-commerce mindset clash with the collaborative, collegial, world of academe? Will going “back to e-school” be just another version of the proverbial school of hard knocks? Or will it help the consumer of education commodities as much as online shopping has benefitted buyers of books and music?
Surveying the Domain
First, how does a prospective student evaluate virtual schools, even those affiliated with a “name brand” real-world university? Some guidelines from a marketing site for online schools are available at www.back2college.com/distanceed.htm; more objective standards are available from the Better Business Bureau, including a variety of common-sense tips comparable to those one would follow in any large dollar purchase, online or in the real world (see, www.bbb.org/us/article/730).
At the simplest level, online schools presumably should have a domain name ending in .edu, the domain reserved for educational institutions. In fact, an applicant for a .edu link must demonstrate that it meets standards for a school. But that was not always the case. In the relatively short life of e-commerce, some firms obtained .edu domains before those standards became effective, and continue to use them ' to the detriment of students who rely on the assumed integrity of the domain-name process. Even the U.S. Department of Education warns that students should not rely on such a simple screening tool:
Today, most educational institutions are recognized on the Web by their .edu Internet addresses. However, not all institutions that use an .edu as a part of their Internet address are legitimate institutions. Before the U.S. Department of Commerce created its current, strict requirements, some questionable institutions were approved to use an .edu. The current requirements allow only colleges and institutions accredited by an agency recognized by the U.S. Department of Education to use the .edu, however, some more suspect institutions have maintained the .edu addresses.
Beware: Institutions that were approved to use an .edu before the new requirements were put in place may still be using the .edu as part of their Internet address. This means there may be some illegitimate institutions out there with an .edu. Whether an institution uses an .edu or not, it's important to know as much about the institution as possible before enrolling. (www2.ed.gov/print/students/prep/college/diplomamills/diploma-mills.html) (Emphasis added.)
As a result of this regulatory glitch, the U.S. Department of Education has published a “positive list” of schools that are accredited by accrediting agencies recognized by the Secretary of Education (http://ope.ed.gov/accreditation).
Despite the availability of these resources, some would-be students continue to be fooled by the .edu domain. As described in a story about an online scam involving Canyon College: “Part of the problem comes from the fact that Canyon College used an address that ended in .edu. ' Perhaps many students at Canyon College assumed that the .edu address meant that they were an accredited university which strongly boosted their chances of getting a job. Why else would anyone spend thousands of dollars on one of these programs?” (www.associatedcontent.com/pop_print.shtml?content_type=article&content_type_id=973190).
Second, students should look to a school's accrediting bodies, which operate in a not-quite-regulated world that can be a blend of quality control and marketing (see, www.elearners.com/guide/online-colleges-universities-and-schools/accreditation). In fact, there are several firms that perform accreditation exclusively for online schools (see, http://distancelearn.about.com/od/accreditationinfo/a/regional.htm). Unfortunately, however, the standards for the standard setters are rather loose ' leading to graduates of accredited schools finding their diplomas worthless when graduates seek more education or employment (see, www.bbb.org/us/article/bbb-warns-your-online-diploma-could-be-a-worthless-piece-of-paper-11830).
As the federal Education Department Web site warns: “Diploma mills are schools that are more interested in taking your money than providing you with a quality education. You need to know how to protect yourself as a consumer” (see, www2.ed.gov/print/students/prep/college/diplomamills/diploma-mills.html). The Canyon College scandal mentioned above is just one example of this problem. Even as well known and respected an online provider as The University of Phoenix has been attacked on these grounds in The Ripoff Report, an Internet consumer-activist site (www.ripoffreport.com/colleges-and-universities/university-of-phoenix/university-of-phoenix-please-b-8c38q.htm ' listing 532 reports of possible problems). Indeed, The Ripoff Report has logged more than 1,000 reports of potential problems involving online education.
Seeking, and Getting, Help
Fortunately, the Department of Education has also posted extensive materials on the accreditation process, which should be the starting point in evaluating any unfamiliar program (www2.ed.gov/print/admins/finaid/accred/accreditation.html) and eliminating schools that are nothing more than diploma mills that issue degrees for no valuable work (www2.ed.gov/print/students/prep/college/diplomamills/diploma-mills.html). In addition, the Better Business Bureau has its own guide to “Choosing a Reputable Online
Degree Program” at www.bbb.org/us/article/730.
Of course, I know that we all read every line of the many governmentally mandated warnings that lawyers write to fill our lives today, especially when making major purchases ' who hasn't read a car's instruction manual cover to cover before buying a new car? Of course, no one does ' and why should anyone? While in theory, applicants to a brick-and-mortar school should perform the same due diligence, especially for less-familiar vocational schools, I doubt that anyone has ever actually thought to check the credentials of a state university.
Just as in the real world, accreditation is no guarantee of success, according to one online advice site:
Is accreditation a “cut and dry” issue? The short answer is no. First, just because an institution is accredited does not mean that you are guaranteed a high quality education. It simply means that the infrastructure and educational offerings needed to get a good education are present. What you get from these resources depends a lot on what you put in. Second, even if two institutions are accredited they may not allow you to transfer credit from one to the other. Other factors, such as your GPA, current and past degree programs, duration of the course, etc. may also factor into your ability to transfer credits. (www.elearners.com/guide/online-colleges-universities-and-schools/accreditation) (Emphasis added.)
Because accreditation may not always be an effective way to evaluate online schools, another technique I have often written about for checking e-commerce vendors may help ' reading the terms and conditions that govern use of the Web site. Unfortunately, as I have explained in prior articles, e-educators' lawyers' protective language just doesn't quite convey the same message as the slick Web sites created by the schools' marketing departments.
Why would anyone with sufficient intelligence to consider higher education accept a school that must warn that its classes are offered “as is”? No business should be able to stand behind what it offers more than an institution of higher learning. The standard but defensive warnings we have all grown to ignore when buying appliances or consumer goods somehow seem inapposite to the purchase of an education. (Critics of traditional education ' and disappointed parents ' might wonder whether they should have received disclaimers about the effect of beer-drinking and fraternity life on grades and academic progress, and a warning of the potential expenses of additional classes necessary to make up for squandered semesters.)
As one Idaho state education regulator warns: “There are many fine and reputable online schools out there. Unfortunately, as is always the case with the Internet, the first standard of practice is 'let the buyer beware,' so always cross-check what the school tells you with your state officials. Never assume a catchy, professional-looking Web site is any guarantee of the quality of their product” (www.foxnews.com/story/0,2933,405786,00.html).
Perhaps the best testimony about how some officials of online schools feel about the legal rights of their students comes from one school's own boilerplate. Have the officials of any traditional school thought it necessary to include a securities class-action disclaimer warning in a school brochure for prospective students and their families, under a heading of “Financial Material Disclosure,” to comply with the U.S. Private Securities Litigation Reform Act of 1995 U.S. Private Securities Litigation Reform Act of 1995 (see, www.phoenix.edu/copyrightlegal/terms_and_conditions.html)?
Talking Points
Terms of Use Considerations, and Procedures
Before leaving the terms and conditions, though, let's look at one traditional concern of education lawyers: discipline, such as expulsion and suspension. In this area, what the “school law rights giveth, the e-commerce boilerplate taketh away.” Although the detailed terms and conditions found in online student handbooks (or “rights and responsibilities” pages) contain elaborate procedural protections for students before loss of privileges, as would be typical for any school, the Web site boilerplate typically reserves the schools' right to terminate Web site access unilaterally, and without procedural opportunities to object. As the University of Phoenix notes in its “Website Terms and Conditions of Use”: “Notwithstanding any of these Terms of Use, the University reserves the right, without notice and in its sole discretion, to terminate your license to use the Sites, the Services or any portion thereof, and to block or prevent future access to and use of the Sites or any of the Services” (www.phoenix.edu/copyright-legal/terms_and_conditions.html. I am not singling out this institution: similar language appears in most, if not all, boilerplate.).
Perhaps this may simply be a case of different drafting agendas ' it would not have been hard to state that in the event of a conflict between the handbook and the Web site rules, the handbook rights would control. But the schools' boilerplate does not have that savings clause. As a result, the online student accustomed to living with academic rights, and misled by the school's own materials, might discover that her e-school is literally “out” if she has no access to the Web site that is the only vehicle through which she can access course work.
Enjoying Getting Ahead on Campus
What about the “e-college experience”? How well do online schools advise prospective students about what “classroom” conditions to expect from virtual education? Because virtual classes are delivered, well, virtually, the student must be able to attend with the appropriate technological resources. Curiously, however, the sample of online programs I reviewed did not list (much less provide disclaimers) about the technological prerequisites of attendance. While any inexpensive computer game will specify its
“minimum requirements” on its packaging, shouldn't a virtual school do the same? Were I writing such documents, I would include a disclaimer not only about the minimum hardware and software requirements, but I would also include the student's experience in using the Internet and online resources ' a student struggling to access class material in an unfamiliar format is “virtually” no better off than one who sleeps through a real-world class.
Despite what should readily appear to be such common-sense precautions, it also seems that once again, the e-commerce business mentality triumphed over what we most likely assumed would be the educator's guidance and planning. In addition, Web site terms and conditions avoiding responsibility for technical problems are common. (Of course, the online teachers themselves must also learn and adapt to a new way of presentation, especially when the students arrive more “tech savvy” than their faculty. As one administrator noted: “The teachers didn't have that same level of tech competency [as did the students] in their personal lives.” (www.eschoolnews.com/2009/11/01/esn-special-report-beyond-virtual-schools.)
Providing Support
Similarly, the level and availability of technical support may be as critical to an e-school's academic success as is its faculty and the faculty's reputation, much as in the case of a traditional school's graduate-student teaching assistants. Those staffers the student actually can see and talk to, or who give comments on work, can affect student life and the learning experience as much as the name-brand professor. While technical support will not review a student's work, its ready availability and ease and power of use will affect whether the student ever gets to hear the professor's lectures ' yet that detail is conspicuously absent in most online schools' Web sites. Moreover, schools and students may find they need the same sophisticated ' and expensive ' electronic document-management and tracking systems employed in business to avoid the problem described by one online administrator discussing documents exchanged online between faculty and students: “You never really know who has the latest version” (see, www.eschoolnews.com/2010/01/19/has-google-developed-the-next-wave-of-online-education).
Broadening Horizons ' Isn't It What School Is For?
But rather than focus on technical obstacles, let's take a more positive perspective: To compete for students, perhaps online educators will be more easily able to try new technologies that the decision makers overseeing traditional academic programs have been unwilling to adopt. Just as online sellers have found many new ways to use online sales to pioneer new marketing strategies (that benefit online and traditional sales), online educators may lead the way to implementation of Internet-based tools such as Google's Wave, or the channeling of social media into something more productive than detailed accounts of mundane lives (www.eschoolnews.com/2010/01/19/has-google-developed-the-next-wave-of-online-education). Because teaching online can be very different from the traditional classroom experience, many Web sites include “the characteristics of successful online teachers” (see, www.eschoolnews.com/2009/10/29/characteristics-of-successful-online-teachers).
Similarly, despite all the concerns about online schools, their presence mirrors other forms of e-commerce in several important respects. For example, the growth of online education has also allowed experimentation, which may lead to broader educational reform (see, www.eschoolnews.com/2009/11/16/states-boost-access-to-online-education).
And, just as online shopping has made it as easy to find the proverbial needle in the haystack, online education has provided access to many students who simply would not have been served in the past, at least not as well. Ponder this point of view: “The loudest and clearest voices were those of respondents representing small rural school districts. In these places, online learning is not simply an attractive alternative to face-to-face instruction but increasingly is becoming a lifeline to basic [high-]quality education” (see, www.eschoolnews.com/2009/03/17/report-online-learning-a-lifeline-in-rural-areas). Those who could not devote time to education at a site remote from rural homes and duties may also find their opportunity in online learning (see, www.eschoolnews.com/2009/03/17/report-online-learning-a-lifeline-in-rural-areas).
Overcoming Obstacles
Particularly, students with disabilities have found that the elimination of the physical and social aspects of school has removed barriers that may have denied them the education they desire (see, www.edweek.org/dd/articles/2010/06/16/03speced.h03.html).
Perhaps online schools' outreach to such prospective students will also help avoid the bitter fights over educating the disabled that have plagued real-world schools subject to the mandates of the Individuals with Disabilities Act (“IDEA”), requiring public schools to provide all disabled students a free and appropriate public education uniquely suited to their individual needs, as guaranteed by IDEA and the cases interpreting it. On the other hand, providing an online education should not become an easy and too-convenient way for school administrators to avoid dealing with students who need more attention by removing these students from the classroom experience to which they are entitled under federal law (see, http://blogs.edweek.org/teachers/teacher_in_a_strange_land).
Adapting to the Market ' Getting Savvy
Some professional educators, even in so-called “top tier” universities, are beginning to explore online course offerings simply as a way to compete for students drawn to the convenience of for-profit online schools (see, http://articles.sfgate.com/2010-07-18/opinion/21988354_1_online-education-online-instruction-uc-eligible-students). In fact, the growth of online education has also allowed (and perhaps forced) educators to experiment, which may lead to broader educational reform. One commentator noted that students accustomed to the best online experiences from commercial media and Web site operators, particularly through social media, will expect no less from online educators:
What's required are innovative approaches to course design that set aside old models of instruction where theory often trumps actuality. Online course providers must embrace the Web's potential to match students with the kinds of timely knowledge and skills that address current issues head-on, and enable them to thrive in the global marketplace. It's not enough for a course to be accessible online, it must also be designed in a way that keys into the digital pulse of current events, trending topics and insider knowledge endemic to the Web. The three-quarters of 18 to 29 year-olds who have profiles on social networks are likely wondering why online course offerings aren't nearly as enticing as the content that they find on their favorite social Web sites. To attract and retain the typical college-age demographic, as well as the larger population of adult learners in search of relevant and engaging educational content, the next generation of online education must be characterized by courses that build in the social, real-time information capturing components that have made the Web such a dynamic medium for sharing information and knowledge (http://mashable.com/2010/08/06/online-education-social).
On the other hand, the successful e-commerce business approach of spending heavily on marketing and recruitment has raised hackles with traditional faculty accustomed to greater academic control of an institution (see, www.eschoolnews.com/2009/01/06/how-to-create-a-successful-virtual-campus). In addition, it is certainly not surprising that a new type of venture has run into regulatory uncertainty in our highly regulated society.
Freedom vs. the Need to Regulate
Continuing the theme of the disconnect between the ways of traditional educationally oriented regulation and the freedom to innovate characteristic of e-commerce, some online schools have run afoul of local licensing requirements ' particularly those written for an entirely different model of content delivery, such as “seat time” attendance requirements (see, www.insidehighered.com/news/2009/10/14/forum).
While this issue is not unique to e-learning ' the burden of local-law compliance has also dogged e-commerce in such areas as sales-tax obligations, and licensing of professionals ' the strong parens patriae motivation of educational regulators will not likely go away, especially if (as in the case of charter schools) the government is footing the online school's bill. In addition, even though the 2002 Technology, Education and Copyright Harmonization (“TEACH”) Act (see, http://en.wikipedia.org/wiki/TEACH_Act) allowed distance education to proceed free of some copyright concerns, copyright litigation continues between publishers and schools over how course material is made available online (see, www.sloanconsortium.org/node/2286). Similarly, the rapid growth of the for-profit sector may be at risk, but that is due to Congressional scrutiny and questions about excessive reliance on government-backed student loans, according to a recent report in The Wall Street Journal (http://online.wsj.com/article/SB10001424052748703579804575441591409292762.html?ru=yahoo&mod=SmartMoney). Moreover, and perhaps not surprisingly, state education regulators have begun to question the strength of some online programs (www.thereporteronline.com/articles/2010/08/30/news/srv0000009229638.txt).
(Editor's Note: As this issue was going to press, our ALM affiliate The National Law Journal reported that Sen. Tom Harkin (D-IA), chairman of the Senate Committee on Health, Education, Labor and Pensions, sent letters to 30 for-profit education companies ' including University of Phoenix owner Apollo Group, Inc. and Kaplan Higher Education ' asking for information about job placement rates, the cost of programs and the debt that students take on. Harkin and other for-profit higher education critics are wondering if these education companies are exaggerating the job prospects for graduates and playing games with the federal financial aid system.)
Dollars vs. Diplomas
Finally, in a law- and business-oriented publication, we can't forget to consider the omnipresent influence of money on e-schooling. e-Ducation entrepreneurs must still eat and feed their families, after all. But because many online schools are “for-profit,” the owners and founders may face conflicts between their ongoing business responsibilities and the heightened obligations we impose as a society on school staff and administrators (see, www.eschoolnews.com/2010/06/22/superintendents-online-learning-business-raises-concerns). If the administrators did not come from a public-sector background, they may not even perceive how “normal” business actions could be understood differently by constituencies not worried about making a buck. For example, some school founders erred in not fully disclosing personal interests in their schools (see, www.eschoolnews.com/2010/06/22/superintendents-online-learning-business-raises-concerns).
On the other hand, in a time of constricted budgets, the ability to recruit students (and tuition), even from a distance, must be balanced against the cost of building an exceptional online school. According to a citation for a “Tech Savvy Superintendant Award,” one Minnesota principal “(u)sed a non-traditional approach to solving a traditional problem (declining student enrollment), (by taking) a small, rural district of about 450 K-12 students tucked away in the southeastern corner of Minnesota and transforming it into a vibrant, financially sound school system now serving nearly 2,500 pupils from around the state, thanks to his creation of the Minnesota Virtual Academy” (www.eschoolnews.com/2010/06/22/superintendents-online-learning-business-raises-concerns).
Conclusion
An e-school may be “out” of the traditional classroom, but its students and teachers still face the same breadth of legal and pedagogic challenges as their counterparts do in traditional schools ' just in new formats and scenarios.
As a result, educational administrators and regulators must try frantically to interpret their many duties under fiduciary-like laws governing education as the industry grows rapidly, and has become a big business in its own right. Because solutions may not be obvious, legal fees or government complaints may be likely.
But if lawyers must frequently resolve conflicts between educational traditions and the demands of the online marketplace, their meters won't be “out” ' but at least many of the online learning strategies hold out the hope of controlling at least some of those costs.
Stanley P. Jaskiewicz, a business lawyer, helps clients solve e-commerce, corporate, contract and technology-law problems, and is a member of e-Commerce Law & Strategy's Board of Editors. Reach him at the Philadelphia law firm of Spector Gadon & Rosen P.C., at [email protected], or 215-241-8866. Mr. Jaskiewicz thanks Jeff Lipschutz, his firm's student intern from The Temple University Beasley School of Law, for research assistance in the preparation of this article.
As students returned to school recently, many may have been looking ahead to their next day off. And today, there are so many online schools that e-commerce executives are turning the chorus of Alice Cooper's classic 1972 schoolboy anthem “School's Out” ' “School's out forever” ' into reality by turning school into another form of e-commerce.
The number of online schools is immense, growing, and of every variety. Consider the following short lists ' and they are short, in terms of the online-education marketplace ' of online courses, online-course portals and news sources devoted to covering developments in online learning:
Several sites exist solely to cover online education, such as:
- The Sloan Consortium (http://www.sloan-c.org/);
Even Bill Gates proudly proclaims that he still goes to school online (see, http://www.thegatesnotes.com/), although it is hard to imagine what degree would help him improve his position.
Growing Sector
According to the most recent Sloan Consortium report, cited above,”[o]nline enrollments have continued to grow at rates far in excess of the total higher education student population, with the most recent data demonstrating no signs of slowing ' with more than 4.6 million online students in 2008, [a] 17% growth rate, and more than one in four college students taking at least one course online.”
e-Schools of every purpose and subject can quickly and easily be found online, from for-profit and non-profit schools, to K-12, secondary, college, post-graduate education, and traditional schools. For instance, established universities such as Penn State have expansive online schools (sometimes, as in Penn State's case, called “world campuses”) (see, www.centredaily.com/2009/11/15/1625939/enrollment-soars-at-psus-world.html). Other players, newly founded and established institutions (they're not always schools, strictly speaking) include Strayer University (http://www.strayer.edu/), The
One can also easily find special-education schools and enrichment schools online. There is even a site (http://www.einztein.com/ ' still in beta testing) that is an online “shopping mall” for virtual education courses.
e-Education Is a Part of e-Commerce
If higher education wasn't considered to be part of e-commerce before the widespread availability of the Internet, no one can deny that online education has by now proven itself to be big e-business. In fact, by some standards, it does a better job than traditional education. According to one study, “on average, students in online learning conditions performed better than those receiving face-to-face instruction” (see, www.sloanconsortium.org/publications/survey/pdf/learningondemand.pdf).
There has even been speculation that virtual schools will force physical schools to adapt and improve through competition, by allowing innovative educators to bypass education bureaucracies (www.eschoolnews.com/2010/01/18/opinion-virtual-schools-are-a-critical-piece-of-educations-future). Others believe that online education will fundamentally reshape our higher-education system, and incentivize non-profit institutions (and their faculty) to greater acceptance of online learning (www.aaup.org/AAUP/pubsres/academe/2001/SO/Feat/nobl.htm). More practically,
Yet, in contrast to other forms of e-commerce, education consumers still “buy local,” demonstrating a difference from their willingness, for instance, to trust Fed-Ex and UPS to deliver other online purchases. According to one recent study, just as e-consumers have flocked to sites of familiar real-world merchants: “Students like online learning, but they also like the tangibility of having a 'real campus' nearby. (I)n routine surveys (Eduventures) has done over the last three years, roughly 65% of online learners have said they prefer an institution with a physical presence within 50 miles” (www.insidehighered.com/news/2010/07/23/online).
But just as with the e-reader shopping for the virtual books and textbooks that are sweeping the real world, purchasing educational content online is, at its core, an e-commerce transaction, governed by “electronic fine print” (whether you take the time to read it or not), and laws affecting all businesses. But does the aggressive, entrepreneurial e-commerce mindset clash with the collaborative, collegial, world of academe? Will going “back to e-school” be just another version of the proverbial school of hard knocks? Or will it help the consumer of education commodities as much as online shopping has benefitted buyers of books and music?
Surveying the Domain
First, how does a prospective student evaluate virtual schools, even those affiliated with a “name brand” real-world university? Some guidelines from a marketing site for online schools are available at www.back2college.com/distanceed.htm; more objective standards are available from the Better Business Bureau, including a variety of common-sense tips comparable to those one would follow in any large dollar purchase, online or in the real world (see, www.bbb.org/us/article/730).
At the simplest level, online schools presumably should have a domain name ending in .edu, the domain reserved for educational institutions. In fact, an applicant for a .edu link must demonstrate that it meets standards for a school. But that was not always the case. In the relatively short life of e-commerce, some firms obtained .edu domains before those standards became effective, and continue to use them ' to the detriment of students who rely on the assumed integrity of the domain-name process. Even the U.S. Department of Education warns that students should not rely on such a simple screening tool:
Today, most educational institutions are recognized on the Web by their .edu Internet addresses. However, not all institutions that use an .edu as a part of their Internet address are legitimate institutions. Before the U.S. Department of Commerce created its current, strict requirements, some questionable institutions were approved to use an .edu. The current requirements allow only colleges and institutions accredited by an agency recognized by the U.S. Department of Education to use the .edu, however, some more suspect institutions have maintained the .edu addresses.
Beware: Institutions that were approved to use an .edu before the new requirements were put in place may still be using the .edu as part of their Internet address. This means there may be some illegitimate institutions out there with an .edu. Whether an institution uses an .edu or not, it's important to know as much about the institution as possible before enrolling. (www2.ed.gov/print/students/prep/college/diplomamills/diploma-mills.html) (Emphasis added.)
As a result of this regulatory glitch, the U.S. Department of Education has published a “positive list” of schools that are accredited by accrediting agencies recognized by the Secretary of Education (http://ope.ed.gov/accreditation).
Despite the availability of these resources, some would-be students continue to be fooled by the .edu domain. As described in a story about an online scam involving Canyon College: “Part of the problem comes from the fact that Canyon College used an address that ended in .edu. ' Perhaps many students at Canyon College assumed that the .edu address meant that they were an accredited university which strongly boosted their chances of getting a job. Why else would anyone spend thousands of dollars on one of these programs?” (www.associatedcontent.com/pop_print.shtml?content_type=article&content_type_id=973190).
Second, students should look to a school's accrediting bodies, which operate in a not-quite-regulated world that can be a blend of quality control and marketing (see, www.elearners.com/guide/online-colleges-universities-and-schools/accreditation). In fact, there are several firms that perform accreditation exclusively for online schools (see, http://distancelearn.about.com/od/accreditationinfo/a/regional.htm). Unfortunately, however, the standards for the standard setters are rather loose ' leading to graduates of accredited schools finding their diplomas worthless when graduates seek more education or employment (see, www.bbb.org/us/article/bbb-warns-your-online-diploma-could-be-a-worthless-piece-of-paper-11830).
As the federal Education Department Web site warns: “Diploma mills are schools that are more interested in taking your money than providing you with a quality education. You need to know how to protect yourself as a consumer” (see, www2.ed.gov/print/students/prep/college/diplomamills/diploma-mills.html). The Canyon College scandal mentioned above is just one example of this problem. Even as well known and respected an online provider as The
Seeking, and Getting, Help
Fortunately, the Department of Education has also posted extensive materials on the accreditation process, which should be the starting point in evaluating any unfamiliar program (www2.ed.gov/print/admins/finaid/accred/accreditation.html) and eliminating schools that are nothing more than diploma mills that issue degrees for no valuable work (www2.ed.gov/print/students/prep/college/diplomamills/diploma-mills.html). In addition, the Better Business Bureau has its own guide to “Choosing a Reputable Online
Degree Program” at www.bbb.org/us/article/730.
Of course, I know that we all read every line of the many governmentally mandated warnings that lawyers write to fill our lives today, especially when making major purchases ' who hasn't read a car's instruction manual cover to cover before buying a new car? Of course, no one does ' and why should anyone? While in theory, applicants to a brick-and-mortar school should perform the same due diligence, especially for less-familiar vocational schools, I doubt that anyone has ever actually thought to check the credentials of a state university.
Just as in the real world, accreditation is no guarantee of success, according to one online advice site:
Is accreditation a “cut and dry” issue? The short answer is no. First, just because an institution is accredited does not mean that you are guaranteed a high quality education. It simply means that the infrastructure and educational offerings needed to get a good education are present. What you get from these resources depends a lot on what you put in. Second, even if two institutions are accredited they may not allow you to transfer credit from one to the other. Other factors, such as your GPA, current and past degree programs, duration of the course, etc. may also factor into your ability to transfer credits. (www.elearners.com/guide/online-colleges-universities-and-schools/accreditation) (Emphasis added.)
Because accreditation may not always be an effective way to evaluate online schools, another technique I have often written about for checking e-commerce vendors may help ' reading the terms and conditions that govern use of the Web site. Unfortunately, as I have explained in prior articles, e-educators' lawyers' protective language just doesn't quite convey the same message as the slick Web sites created by the schools' marketing departments.
Why would anyone with sufficient intelligence to consider higher education accept a school that must warn that its classes are offered “as is”? No business should be able to stand behind what it offers more than an institution of higher learning. The standard but defensive warnings we have all grown to ignore when buying appliances or consumer goods somehow seem inapposite to the purchase of an education. (Critics of traditional education ' and disappointed parents ' might wonder whether they should have received disclaimers about the effect of beer-drinking and fraternity life on grades and academic progress, and a warning of the potential expenses of additional classes necessary to make up for squandered semesters.)
As one Idaho state education regulator warns: “There are many fine and reputable online schools out there. Unfortunately, as is always the case with the Internet, the first standard of practice is 'let the buyer beware,' so always cross-check what the school tells you with your state officials. Never assume a catchy, professional-looking Web site is any guarantee of the quality of their product” (www.foxnews.com/story/0,2933,405786,00.html).
Perhaps the best testimony about how some officials of online schools feel about the legal rights of their students comes from one school's own boilerplate. Have the officials of any traditional school thought it necessary to include a securities class-action disclaimer warning in a school brochure for prospective students and their families, under a heading of “Financial Material Disclosure,” to comply with the U.S. Private Securities Litigation Reform Act of 1995 U.S. Private Securities Litigation Reform Act of 1995 (see, www.phoenix.edu/copyrightlegal/terms_and_conditions.html)?
Talking Points
Terms of Use Considerations, and Procedures
Before leaving the terms and conditions, though, let's look at one traditional concern of education lawyers: discipline, such as expulsion and suspension. In this area, what the “school law rights giveth, the e-commerce boilerplate taketh away.” Although the detailed terms and conditions found in online student handbooks (or “rights and responsibilities” pages) contain elaborate procedural protections for students before loss of privileges, as would be typical for any school, the Web site boilerplate typically reserves the schools' right to terminate Web site access unilaterally, and without procedural opportunities to object. As the
Perhaps this may simply be a case of different drafting agendas ' it would not have been hard to state that in the event of a conflict between the handbook and the Web site rules, the handbook rights would control. But the schools' boilerplate does not have that savings clause. As a result, the online student accustomed to living with academic rights, and misled by the school's own materials, might discover that her e-school is literally “out” if she has no access to the Web site that is the only vehicle through which she can access course work.
Enjoying Getting Ahead on Campus
What about the “e-college experience”? How well do online schools advise prospective students about what “classroom” conditions to expect from virtual education? Because virtual classes are delivered, well, virtually, the student must be able to attend with the appropriate technological resources. Curiously, however, the sample of online programs I reviewed did not list (much less provide disclaimers) about the technological prerequisites of attendance. While any inexpensive computer game will specify its
“minimum requirements” on its packaging, shouldn't a virtual school do the same? Were I writing such documents, I would include a disclaimer not only about the minimum hardware and software requirements, but I would also include the student's experience in using the Internet and online resources ' a student struggling to access class material in an unfamiliar format is “virtually” no better off than one who sleeps through a real-world class.
Despite what should readily appear to be such common-sense precautions, it also seems that once again, the e-commerce business mentality triumphed over what we most likely assumed would be the educator's guidance and planning. In addition, Web site terms and conditions avoiding responsibility for technical problems are common. (Of course, the online teachers themselves must also learn and adapt to a new way of presentation, especially when the students arrive more “tech savvy” than their faculty. As one administrator noted: “The teachers didn't have that same level of tech competency [as did the students] in their personal lives.” (www.eschoolnews.com/2009/11/01/esn-special-report-beyond-virtual-schools.)
Providing Support
Similarly, the level and availability of technical support may be as critical to an e-school's academic success as is its faculty and the faculty's reputation, much as in the case of a traditional school's graduate-student teaching assistants. Those staffers the student actually can see and talk to, or who give comments on work, can affect student life and the learning experience as much as the name-brand professor. While technical support will not review a student's work, its ready availability and ease and power of use will affect whether the student ever gets to hear the professor's lectures ' yet that detail is conspicuously absent in most online schools' Web sites. Moreover, schools and students may find they need the same sophisticated ' and expensive ' electronic document-management and tracking systems employed in business to avoid the problem described by one online administrator discussing documents exchanged online between faculty and students: “You never really know who has the latest version” (see, www.eschoolnews.com/2010/01/19/has-google-developed-the-next-wave-of-online-education).
Broadening Horizons ' Isn't It What School Is For?
But rather than focus on technical obstacles, let's take a more positive perspective: To compete for students, perhaps online educators will be more easily able to try new technologies that the decision makers overseeing traditional academic programs have been unwilling to adopt. Just as online sellers have found many new ways to use online sales to pioneer new marketing strategies (that benefit online and traditional sales), online educators may lead the way to implementation of Internet-based tools such as
Similarly, despite all the concerns about online schools, their presence mirrors other forms of e-commerce in several important respects. For example, the growth of online education has also allowed experimentation, which may lead to broader educational reform (see, www.eschoolnews.com/2009/11/16/states-boost-access-to-online-education).
And, just as online shopping has made it as easy to find the proverbial needle in the haystack, online education has provided access to many students who simply would not have been served in the past, at least not as well. Ponder this point of view: “The loudest and clearest voices were those of respondents representing small rural school districts. In these places, online learning is not simply an attractive alternative to face-to-face instruction but increasingly is becoming a lifeline to basic [high-]quality education” (see, www.eschoolnews.com/2009/03/17/report-online-learning-a-lifeline-in-rural-areas). Those who could not devote time to education at a site remote from rural homes and duties may also find their opportunity in online learning (see, www.eschoolnews.com/2009/03/17/report-online-learning-a-lifeline-in-rural-areas).
Overcoming Obstacles
Particularly, students with disabilities have found that the elimination of the physical and social aspects of school has removed barriers that may have denied them the education they desire (see, www.edweek.org/dd/articles/2010/06/16/03speced.h03.html).
Perhaps online schools' outreach to such prospective students will also help avoid the bitter fights over educating the disabled that have plagued real-world schools subject to the mandates of the Individuals with Disabilities Act (“IDEA”), requiring public schools to provide all disabled students a free and appropriate public education uniquely suited to their individual needs, as guaranteed by IDEA and the cases interpreting it. On the other hand, providing an online education should not become an easy and too-convenient way for school administrators to avoid dealing with students who need more attention by removing these students from the classroom experience to which they are entitled under federal law (see, http://blogs.edweek.org/teachers/teacher_in_a_strange_land).
Adapting to the Market ' Getting Savvy
Some professional educators, even in so-called “top tier” universities, are beginning to explore online course offerings simply as a way to compete for students drawn to the convenience of for-profit online schools (see, http://articles.sfgate.com/2010-07-18/opinion/21988354_1_online-education-online-instruction-uc-eligible-students). In fact, the growth of online education has also allowed (and perhaps forced) educators to experiment, which may lead to broader educational reform. One commentator noted that students accustomed to the best online experiences from commercial media and Web site operators, particularly through social media, will expect no less from online educators:
What's required are innovative approaches to course design that set aside old models of instruction where theory often trumps actuality. Online course providers must embrace the Web's potential to match students with the kinds of timely knowledge and skills that address current issues head-on, and enable them to thrive in the global marketplace. It's not enough for a course to be accessible online, it must also be designed in a way that keys into the digital pulse of current events, trending topics and insider knowledge endemic to the Web. The three-quarters of 18 to 29 year-olds who have profiles on social networks are likely wondering why online course offerings aren't nearly as enticing as the content that they find on their favorite social Web sites. To attract and retain the typical college-age demographic, as well as the larger population of adult learners in search of relevant and engaging educational content, the next generation of online education must be characterized by courses that build in the social, real-time information capturing components that have made the Web such a dynamic medium for sharing information and knowledge (http://mashable.com/2010/08/06/online-education-social).
On the other hand, the successful e-commerce business approach of spending heavily on marketing and recruitment has raised hackles with traditional faculty accustomed to greater academic control of an institution (see, www.eschoolnews.com/2009/01/06/how-to-create-a-successful-virtual-campus). In addition, it is certainly not surprising that a new type of venture has run into regulatory uncertainty in our highly regulated society.
Freedom vs. the Need to Regulate
Continuing the theme of the disconnect between the ways of traditional educationally oriented regulation and the freedom to innovate characteristic of e-commerce, some online schools have run afoul of local licensing requirements ' particularly those written for an entirely different model of content delivery, such as “seat time” attendance requirements (see, www.insidehighered.com/news/2009/10/14/forum).
While this issue is not unique to e-learning ' the burden of local-law compliance has also dogged e-commerce in such areas as sales-tax obligations, and licensing of professionals ' the strong parens patriae motivation of educational regulators will not likely go away, especially if (as in the case of charter schools) the government is footing the online school's bill. In addition, even though the 2002 Technology, Education and Copyright Harmonization (“TEACH”) Act (see, http://en.wikipedia.org/wiki/TEACH_Act) allowed distance education to proceed free of some copyright concerns, copyright litigation continues between publishers and schools over how course material is made available online (see, www.sloanconsortium.org/node/2286). Similarly, the rapid growth of the for-profit sector may be at risk, but that is due to Congressional scrutiny and questions about excessive reliance on government-backed student loans, according to a recent report in The Wall Street Journal (http://online.wsj.com/article/SB10001424052748703579804575441591409292762.html?ru=yahoo&mod=SmartMoney). Moreover, and perhaps not surprisingly, state education regulators have begun to question the strength of some online programs (www.thereporteronline.com/articles/2010/08/30/news/srv0000009229638.txt).
(Editor's Note: As this issue was going to press, our ALM affiliate The National Law Journal reported that Sen. Tom Harkin (D-IA), chairman of the Senate Committee on Health, Education, Labor and Pensions, sent letters to 30 for-profit education companies ' including
Dollars vs. Diplomas
Finally, in a law- and business-oriented publication, we can't forget to consider the omnipresent influence of money on e-schooling. e-Ducation entrepreneurs must still eat and feed their families, after all. But because many online schools are “for-profit,” the owners and founders may face conflicts between their ongoing business responsibilities and the heightened obligations we impose as a society on school staff and administrators (see, www.eschoolnews.com/2010/06/22/superintendents-online-learning-business-raises-concerns). If the administrators did not come from a public-sector background, they may not even perceive how “normal” business actions could be understood differently by constituencies not worried about making a buck. For example, some school founders erred in not fully disclosing personal interests in their schools (see, www.eschoolnews.com/2010/06/22/superintendents-online-learning-business-raises-concerns).
On the other hand, in a time of constricted budgets, the ability to recruit students (and tuition), even from a distance, must be balanced against the cost of building an exceptional online school. According to a citation for a “Tech Savvy Superintendant Award,” one Minnesota principal “(u)sed a non-traditional approach to solving a traditional problem (declining student enrollment), (by taking) a small, rural district of about 450 K-12 students tucked away in the southeastern corner of Minnesota and transforming it into a vibrant, financially sound school system now serving nearly 2,500 pupils from around the state, thanks to his creation of the Minnesota Virtual Academy” (www.eschoolnews.com/2010/06/22/superintendents-online-learning-business-raises-concerns).
Conclusion
An e-school may be “out” of the traditional classroom, but its students and teachers still face the same breadth of legal and pedagogic challenges as their counterparts do in traditional schools ' just in new formats and scenarios.
As a result, educational administrators and regulators must try frantically to interpret their many duties under fiduciary-like laws governing education as the industry grows rapidly, and has become a big business in its own right. Because solutions may not be obvious, legal fees or government complaints may be likely.
But if lawyers must frequently resolve conflicts between educational traditions and the demands of the online marketplace, their meters won't be “out” ' but at least many of the online learning strategies hold out the hope of controlling at least some of those costs.
Stanley P. Jaskiewicz, a business lawyer, helps clients solve e-commerce, corporate, contract and technology-law problems, and is a member of e-Commerce Law & Strategy's Board of Editors. Reach him at the Philadelphia law firm of
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