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Policies & Procedures
7/27/2015 12:00 AM

Under 34 CFR 600.9, all institutions of higher education that seek to recruit and enroll students in states other than those where they are chartered and licensed (their “home states”) must apply — and sometimes annually — for authorization to up to 77 agencies, a number that includes 50 states, nine territories, and the District of Columbia. Sixteen of these states require out-of-state IHEs to register with other offices, like commerce or state departments, and to function as registered foreign agents.

Under 34 CFR 600.9, all institutions of higher education that seek to recruit and enroll students in states other than those where they are chartered and licensed (their “home states”) must apply — and sometimes annually — for authorization to up to 77 agencies, a number that includes 50 states, nine territories, and the District of Columbia. Sixteen of these states require out-of-state IHEs to register with other offices, like commerce or state departments, and to function as registered foreign agents.

The application process and fees are a significant burden for institutions. To further confuse matters, there are some states where online institutions are subject to different regulations and fees than those adjudged to be “physically present,” while others offer blanket exemptions based upon regional accreditation and longevity of business operations.

Readying for State Authorization: A Toolkit

Here are some field-tested tips for approaching state authorization compliance:

  1. Define your online enrollment reach.
  2. Use market studies to determine where you should market and enroll online learners. Keep in mind that the costs of pursuing authorization in some states may outweigh the benefits.

  3. Study “physical presence” and recruiting triggers for your target states.
  4. Some state educational agencies have low regulatory thresholds for defining “physical presence.” Russ Poulin, deputy director of research and analysis for the Western Interstate Commission for Higher Education Cooperative for Educational Technologies and its State Authorization Network, says: “We normally think of physical presence as having a building in the state, but it goes beyond that to any activity you might do in the state.” Poulin notes, too, that this isn’t just about distance education: “Authorization is institutionwide, so any activity (even if not related to distance education) must be tracked.” With this in mind, note that “physical presence” of many kinds is enough to require an out-of-state IHE to obtain full authorization to operate in those states. In Georgia, for example, cold-calling prospective students is enough to be considered physically present in that state — but an invitation to an in-state college fair is not. Tennessee, Kentucky and Texas have similar regulations. Always check before you recruit!

  5. Calculate costs.
  6. Some SEAs may charge your institution $5,000 to $10,000 annually to operate in their states. In other cases, you need to contract with and pay a registered agent in addition to receiving approval from the SEA. Is it worth the time as well as the associated costs?

  7. Review your tuition refund policy.
  8. Several states regulate how tuition monies are to be refunded when students withdraw from a program or institution. Some state refund policies are more flexible, and generous, than home state or institutional policies and should be calculated into the overall cost of doing business. Iowa, Oregon, Arkansas and Maryland, among others, require out-of-state IHEs applying to enroll students to abide by their refund policies.

  9. Identify your on-campus state authorization liaison.
  10. Even if your institution offers limited online programs across state lines, you must still identify a point person for state authorization. Ideally this person should report to the chief academic officer (in the event that the officer is not the CAO). Your institution’s state authorization officer should keep apprised of regulatory developments by regularly checking the State Higher Education Executive Officers website, reviewing updates from EDUCAUSE and the WICHE-WCET State Authorization Network, and scanning state legislative bulletins for updates on state-level regulations affecting out-of-state IHEs.

  11. Organize your documentation.
  12. Make certain that copies of the following baseline documents are available, with the understanding that evidentiary requirements will differ from state to state: (a) the IHE’s letter of authority or charter from the SEA in its home state; (b) a copy of your most recent statement of accreditation or letter of reaffirmation of accreditation from your regional accreditor; (c) a copy of the institution’s most recent audited financial statement; (d) the OPE ID Code for your college or university; (e) your institution’s Carnegie classification by size and type; (f) evidence of ongoing accreditation by specialized accreditors for any degree programs that require such; and (g) a copy of your refund policy. Some states, like Montana, also require the institution’s federal Title IV Financial Responsibility Composite Score (on a scale of 0.00 to 3.00).

  13. Involve your director of institutional research.
  14. Some states have begun collecting outcomes data on resident students who enroll in out-of-state IHE distance learning programs. Engage your director of institutional research to make certain that she is kept updated on state-level reporting expectations. The Maryland Higher Education Commission, for example, collects annual enrollment, retention and graduation data on Maryland residents who enroll in distance learning or face-to-face programs offered by non-Maryland IHEs.

  15. Contact state educational and other agencies.
  16. After taking the steps outlined above, and achieving some level of clarity about the states where you will recruit and enroll students, you should begin the process of contacting appropriate state agencies. SHEEO maintains a regularly updated survey of state agencies and lead contacts for purposes of making application for state authorization: www.sheeo.org/projects/state-authorization-postsecondary-education. Contact the appropriate higher education and department authorities (the latter as required by individual state laws) for the states where you intend to enroll online learners. Write to the state officer who is responsible for the review and approval of out-of-state applications, or go to the state portal. When writing to state officers, be specific. “And it’s not just writing with open-ended questions,” says Poulin. “You should have reviewed what you can find regarding their regulations well enough that you can ask specific questions. If you ask very general questions, you might not get a response at all, or you may be told to ‘read the regulations.’” Several states will grant authorization exemptions to institutions that meet certain criteria, among them regional accreditation by an agency recognized by the Council for Higher Education Accreditation and longevity (e.g., the institution has been chartered and operating without interruption for 10 or 20 years). However, this might change when new U.S. Department of Education rules are published. The U.S. Department of Education has suggested that it might deny states the right to grant future exemptions, which means that all states might be required by federal law to enact proactive authorization procedures for out-of-state IHEs.

  17. File business paperwork and engage registered agents, where necessary.
  18. In some states, like North Carolina and Alabama, an educational institution that seeks to recruit and enroll students is also regarded as a business entity and must submit the appropriate registered agent paperwork and fees. Some states require out-of-state IHEs to maintain registered foreign agents for purposes of delivering legal paperwork and subpoenas on state soil, in fulfillment of consumer protection and other business laws. This can be costly, but there are a number of national companies that can provide these services at reduced cost. Such companies are vetted, appropriately bonded and insured.

  19. Review and disclose your student complaint processes.
  20. Under 34 CFR 668.43, all institutions of higher education that qualify to receive federal funds under Title IV must publicly disclose information about student complaint processes on their websites, and for all prospective students, not just online learners. Regular updates to 34 CFR 668.43 appear in the Electronic Code of Federal Regulations (www.ecfr.gov/cgi-bin/text-idx?c=ecfr&tpl=/ecfrbrowse/Title34/34cfr668_main_02.tpl). A complete checklist of the student complaint process is available on the Wiley Dean & Provost webpage at http://www.deanandprovost.com/Article-Detail/state-authorization-toolkit-supplementary-materials.aspx.

    The ED requires institutions offering degree programs, and not just via distance education, to provide all enrolled and prospective students with contact information for filing complaints with regional accrediting agencies and the appropriate state agency in the state where the student is receiving instruction (34 CFR 668.43(b)). An updated list of relevant SEAs and related agencies can be found on the SHEEO website.

  21. Disclose enrollment and non-enrollment states and territories.
  22. The institution should provide a regularly updated list of all states and territories where it will and will not enroll students. If an institution enrolls students who reside in another state but does not seek authorization in that state, then the IHE may be held liable by the federal government for misrepresentation.

  23. Disclose your institution’s compliance with out-of-state pre-licensure requirements.
  24. If you are offering online nursing, education or other professional pre-licensure degree programs to students in other states, it is critical to disclose whether or not your programs meet the professional licensure requirements in those states where potential or current students reside. The National Council of State Boards of Nursing maintains a state-by-state database that details pre-licensure requirements across the country (www.ncsbn.org/671.htm). Keep in mind that state requirements in professional pre-licensure programs differ from state to state and that these requirements are separate from state authorization requirements — although they are integrally linked. Some SEAs will not authorize a degree program until the state-level professional board approves the program. Clinical experiences and externships may trigger the need for state authorization. Likewise, some states will not accept initial licensure from another state. Some states require national-level programmatic accreditation for program approval (e.g., from CAEP, formerly TEAC and NCATE for teacher preparation).

The Advisory Board Speaks
6/22/2015 12:00 AM

Attracting and retaining a diverse faculty can be a challenge. But as the student population becomes increasingly diverse, it’s more important than ever to meet that challenge.

The statistics on faculty diversity tell a sobering tale. According to data provided by the National Center for Education Statistics, as of 2011, 79 percent of full-time instructional faculty members at degree-granting postsecondary institutions were white. Males outnumbered females — 44 percent were white males, and 35 percent were white females. Instructional faculty included professors, associate professors, assistant professors, instructors, lecturers, assisting professors, adjunct professors and interim professors.

Attracting and retaining a diverse faculty can be a challenge. But as the student population becomes increasingly diverse, it’s more important than ever to meet that challenge.

The statistics on faculty diversity tell a sobering tale. According to data provided by the National Center for Education Statistics, as of 2011, 79 percent of full-time instructional faculty members at degree-granting postsecondary institutions were white. Males outnumbered females — 44 percent were white males, and 35 percent were white females. Instructional faculty included professors, associate professors, assistant professors, instructors, lecturers, assisting professors, adjunct professors and interim professors.

Among full-time professors, the figures were even more stark. In that group, 84 percent were white, and 60 percent were white males. Other parts of the breakdown included: 4 percent black, 3 percent Hispanic, 8 percent Asian/Pacific Islander, and less than 1 percent American Indian/Alaska Native.

Members of Dean & Provost’s Advisory Board participated in a conference call to discuss the strategies that work to recruit and retain a diverse faculty at their institutions.

Start with a diverse pool

A diverse faculty starts with diverse applicant pools for open positions. Strategies that help with that include:

  • Joining The PhD Project. This organization was founded on the belief that increasing the diversity of the business school faculty will increase diversity in the workplace. The project supports blacks, Hispanics and Native Americans who want to earn Ph.D.s. The group provides mentoring and networking, said Marsha Kelliher, dean of the Sigmund Weis School of Business at Susquehanna University. Learn more at http://www.phdproject.org.
  • Starting recruitment early. At Hofstra University, administrators give approvals to departments to start the hiring process as soon as they have an idea about the next year, said Herman Berliner, provost and senior vice president for academic affairs. The process has begun earlier and earlier as administrators and departments seek to compete for the best-qualified and most diverse faculty members, he said.
  • Reaching out to associations. Member associations in STEM and health care fields have been helpful, said Lisa De Jesus, vice president of student affairs and enrollment management at Albany Technical College in Georgia. They have proven especially productive for recruiting women — or men — in fields where the gender is underrepresented. “Those colleagues can be very instrumental in providing referrals,” De Jesus said. De Jesus said that statements on the job postings such as “Women encouraged to apply” have helped. But other Advisory Board members said they leave out such statements to cast as wide a net as possible with the initial recruitment.
  • Hiring guest artists/professors. In two cases, the College of Fine Arts at the University of Florida has hired guest artists as permanent faculty, said Dean Lucinda Lavelli.
  • Working with community leaders. In the northeast, demographics make diversity a challenge, said Jill Murray, executive vice president for academic affairs and chief academic officer at Lackawanna College. The college has enjoyed some success recruiting diverse faculty through community connections, but that strategy hasn’t resulted in as many hires as administrators had hoped, she said.
  • Showcasing diversity during the interview process. Advisory Board members arrange for candidates to meet faculty members they might connect with during informal sessions of interview visits. Those faculty members could be the same race or gender or could, like the candidate, have small children.

Sell your institution

If you’ve identified a faculty member you’d like to make an offer to, the next step is to convince that individual to accept the offer. Advisory Board members have found strategies that help seal the deal, both for candidates who contribute to the institution’s diversity and others:

  • Offering benefits to help the professor get started. At Hofstra, science labs have high start-up costs, and the university has increased funding to help with those, Berliner said. Also, the university owns five houses that first-year faculty can rent at slightly below market rates. They are available on a first-come basis. Living in campus housing enables professors to get to know the area to determine where they want to live. Since there are 120 school districts on Long Island, choosing the best place for a permanent residence can be challenging, he said.
  • Help “trailing spouses” connect with the community and find jobs. Spouses needing jobs are the biggest challenge to attracting faculty at a rural institution, said Stephanie Fabritius, vice president for academic affairs and dean of the College at Centre College in Kentucky. At Centre, spouses have use of the career development center, and officials help with informal networking. For example, Fabritius shares curriculum vitae with her counterparts at other institutions in the area.
  • At Susquehanna, the university uses its network to help spouses find work, Kelliher said. Also, the institution involves spouses and children in events and traditions so that they make connections in the community. When Kelliher came to Susquehanna, officials appointed her husband to several committees that enabled him to make connections in the community.

    Under a program to hire spouses at the University of Florida, the host unit pays one-third of the spouse’s salary, the receiving unit pays one-third, and the provost’s office pays one-third, Lavelli said. That arrangement lasts for three years. Administrators are considering extending that time because if the receiving department doesn’t have the funds to pay the full salary after three years, the institution runs the risk of losing the professor.

Help new faculty start strong

Once new faculty members start their jobs, try these strategies to make sure they get off to the best start possible:

  • Support time management. One issue that faculty members of color — or the one woman in a math department — sometimes face is that many students look at them as role models, Fabritius said. They end up doing a lot of informal advising in addition to their other duties, she added. Fabritius worries about the unofficial responsibilities these faculty members take on and works to make sure they aren’t overwhelmed.
  • Limit advising. Faculty members at Centre don’t officially advise students in their first year. At Hofstra, professors are excused from advising during their first semester.
  • Provide mentoring. At Hofstra, new faculty members have two classes of release time. They work with mentors outside their departments. And they can have classes recorded so that they can evaluate their own teaching. Administrators don’t see those recordings, Berliner said.
  • At Centre, professors participate in a yearlong new faculty orientation. One goal is to provide faculty with a clear understanding of expectations.

    At Susquehanna, faculty members set three- and five-year goals. Besides helping the faculty members stay on track to earn tenure, those help Kelliher and other administrators ensure that the new faculty members have sufficient resources to do what they need to do.

The bottom line …

To recruit and retain a diverse faculty, follow this advice:

  • Start early on recruiting.
  • Work with associations, organizations and community leaders.
  • Help new faculty members make connections on campus.
  • Provide support for the transition.
  • Allow release time and training to help new professors be successful.
Crisis Management
5/26/2015 12:00 AM

Bad things can happen at universities. When they do, the university’s legal interests are not the only things at stake. Issues of liability and damages often pale in comparison to the university’s reputational interests.

Daniel I. PrywesBad things can happen at universities. When they do, the university’s legal interests are not the only things at stake. Issues of liability and damages often pale in comparison to the university’s reputational interests. A university viewed by the public as dangerous, uncaring, untrustworthy or irresponsible is likely to face difficulties in attracting students, faculty and financial support. A strong reputation built over decades can be tarnished overnight.

When allegations of misconduct are made, a lawyer’s normal instinct is to move deliberately and confidentially in fact-finding. But under the white-hot glare of the media spotlight and with the 24/7 news cycle, there will be immediate pressure for a university to respond to the allegations and either rebut them or place them in context. A university’s failure to publicly and promptly engage the facts may lead to a quick and irreversible “conviction” in the court of public opinion.

To work effectively with your institution’s legal counsel, you need to understand the interrelated legal and public relations issues that counsel can expect to face when the media storm blows its gale winds onto campus.

Consider common advice and its limits

Scott SobelMuch has been written about how universities should prepare for and “manage” public crises and deal with the media. The following principles are often cited:

  1. Make advance preparations for the inevitable arrival of some form of crisis, even though the exact nature of that crisis cannot be foreseen. Universities should ideally form a standing crisis-management team, allocate responsibilities, and engage in regular training.
  2. As part of their preparations, universities should establish and maintain working relationships with relevant media outlets and first responders.
  3. Train administrators, deans and department chairs to refrain from public comment on controversies and to refer media to the designated university spokesperson.
  4. As a crisis unfolds, you can expect that the media will become increasingly aggressive if the matter has sensational appeal. A university needs to prepare staff to professionally rebuff media attempts to obtain leaks or confidential information.
  5. Voice compassion for victims, and apologize for undeniable wrongdoing.
  6. Do not attack the alleged perpetrators or claimed victims unless confident of their wrongdoing.
  7. Investigate the facts as quickly as possible and disclose initial findings in which the university has a high degree of confidence.
  8. To the extent possible, get all the bad news out at once and make an effort to keep releasing good news.
  9. Be proactive in shaping the university’s message.
  10. Avoid “no comment” responses or their equivalents once a crisis gains steam. Even an update of previous information and a reaffirmation of the university’s values are better than “no comment.”
  11. Avoid perceptions (and certainly the reality) of a “cover-up.”
  12. Formulate a plan to prevent a repetition of the crisis, and announce that plan.
  13. Qualify all public statements as based on “the facts currently known” to preserve credibility if those facts prove wrong.
  14. Treat media representatives politely and with sensitivity to their deadlines and challenges. Reporters are human, and they cannot help but be affected by how they are treated.
  15. Do not attack the media.

These are useful guidelines. But there are circumstances in which some will conflict with others and in which experienced legal and PR practitioners would recommend different approaches. Some controversies are passing ripples, while others are tsunamis. It takes great experience to distinguish the two at the outset and to formulate the appropriate PR response. There is no single PR roadmap that fits every type of controversy.

Universities face special difficulty in conveying their message during a crisis because of the legal restrictions involving privacy and due process (discussed in next month’s installment) that to some extent will handcuff a university in its public communications.

Because of their revered status in most communities, universities are also expected by the public to satisfy a higher moral standard than others. Yet when wrongdoing is alleged, people at universities may act selfishly or seek to shift blame. Many journalists are eager to find opportunities to dethrone community icons and expose hypocrisy. All of these factors present an especially challenging PR environment at universities that find themselves under media siege.

Choose a spokesperson for litigation-related matters

Sooner or later, most colleges and universities will face a significant crisis. When that crisis does arrive, one of the first tasks is for the institution to select an authorized spokesperson suitable for the circumstances. We recommend selecting both a primary and secondary spokesperson, as the crisis-response effort may continue on a 24/7 basis for weeks or longer.

The best PR practice dictates finding a spokesperson who combines both clout and relevant knowledge. That could be a president or provost, thereby demonstrating to the public that the university takes the controversy seriously and that a leader is in charge. The best legal practice, however, is to avoid using high-level administrators as spokespersons. If their statements ultimately prove incorrect as more information is gathered, the university may be viewed more harshly by a court or jury in evaluating (a) the university’s credibility for all purposes, (b) the university’s satisfaction of any applicable duties of care, and (c) claims for punitive damages.

A key consideration is to select a spokesperson who has good presentation skills, an ability to think quickly on his feet, the fortitude to weather the entire crisis cycle, and the mental discipline and stamina to avoid making careless remarks that may pour fuel on the fire. It is not good practice to change the spokesperson in midcrisis because of the discontinuity and defeatism that suggests.

Often, the university’s general counsel will be a prime candidate for the spokesperson role. When a crisis has a significant legal dimension, counsel will often be the best qualified to explain to the media (on or off the record) why a decision was made.

However, a general counsel’s interactions with the media may be limited by the ethical rules governing attorneys. Most states’ ethics rules limit attorneys’ statements to the media when litigation is underway or expected. These rules were originally developed to preserve a fair trial for all parties since attorneys were considered to have more credence with the public.

In most states, the ethics rules governing attorneys prohibit an attorney who is participating in an investigation or litigation from making an out-of-court statement that the lawyer knows (or reasonably should know) will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing a legal proceeding in the matter.

From a PR perspective, once a crisis gains steam, it is deadly to respond to media inquiries with “no comment” because that immediately kills the perception of candor. Thus, an attorney-spokesperson must balance the ethical requirements with good PR practice and presentation skills. An attorney-spokesperson is attempting to persuade an audience much larger than any courtroom could hold.

Fortunately, the ethics rules leave significant room for attorneys to communicate with the media. Under most states’ rules, an attorney may state information contained in the public record, reveal that an investigation of a matter is in progress, and issue a warning of danger concerning the behavior of a person involved when there is a reason to believe that there exists the likelihood of substantial harm to an individual or to the public interest. In a criminal case, an attorney may also state the identity, residence and family status of the accused; information necessary to aid in the apprehension of a person; the fact of an arrest; the identity of the investigating or arresting officers or agencies; and the length of the investigation.

Most importantly, under most states’ ethics rules, a lawyer may “make a statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer’s client,” provided that the statement is limited to such information as is necessary to mitigate the recent adverse publicity. In other words, an attorney may communicate to the media defensively to rebut adverse publicity.

Regardless of who is selected as “spokesperson,” the crisis team should take steps to prevent inconsistent messaging (and ideally all messaging) from other university leaders. Inconsistencies suggest confusion, ineptitude, dishonesty or a cover-up. As one experienced university attorney told us, it is critically important for university officials to “stay in their lane” when dealing with public controversies.

Caution should also be exercised when speaking to the media “off the record” or upon a request that a statement not be attributed to the spokesperson. A well-seasoned PR practitioner should be consulted about the potential risks and outcomes of such communications.

Next month: Review what information your institution cannot legally disclose in a crisis — and what information officials are compelled to disclose to be compliant.

Lawsuits and Rulings
8/13/2013 12:00 AM

30+ years of law practice are no substitute for scholarship

Case name: Spaeth v. Georgetown University, No. 11-1376 (ESH) (D.D.C. 05/09/13).

Ruling: The U.S. District Court for the District of Columbia granted summary judgment to Georgetown University, dismissing the plaintiff’s age discrimination claims.

Case name: Spaeth v. Georgetown University, No. 11-1376 (ESH) (D.D.C. 05/09/13).

Ruling: The U.S. District Court for the District of Columbia granted summary judgment to Georgetown University, dismissing the plaintiff’s age discrimination claims.

What it means: When a plaintiff claims he was not interviewed for a college or university position because of his age, it’s not sufficient to show that the individuals interviewed and hired were younger than he was. He must also show that he had all the qualifications necessary to obtain a tenure-track position.

Summary: Nicholas Spaeth — born in 1950 — attended Oxford University on a Rhodes Scholarship. He graduated from Stanford Law School in 1977 after serving as a law review editor.

Following law school, he served as North Dakota state attorney general for seven years, as general counsel to several Fortune 500 companies, and as a lawyer in private practice. He also taught constitutional law as an adjunct professor at the University of Minnesota Law School from 1980 through 1983.

In 2009, he decided to pursue an academic career. Ultimately, he obtained a non-tenure-track position as a visiting professor of law at the University of Missouri at Columbia for the 2010-2011 school year.

In 2010, Spaeth submitted a resume to an online resume system in which 172 law schools participated because his visiting professor position was only a one-year appointment.

He also wrote to several law schools directly to indicate his interest in being considered for a position.

He did not write directly to Georgetown University because he didn’t think that he wanted to live in Washington, D.C.

Spaeth was invited to preliminary interviews by only two schools and received no job offers.

He then filed a suit against Georgetown, claiming that its failure to interview and hire him violated the Age Discrimination in Employment Act because it ultimately hired three less-qualified candidates who were approximately 25 years younger.

Georgetown filed a motion for summary judgment, arguing that Spaeth’s online résumé did not reveal any interest or experience in producing the kind of original legal research and scholarship that Georgetown and other top-tier law schools required.

Spaeth countered that Georgetown had no written requirement that scholarship weighed heavily — or outweighed — teaching and service.

However, District Judge Ellen Huvelle said that the lack of a written requirement was irrelevant. She said there was no need to put in writing what everyone knew: that scholarship was — for better or worse — one of the overriding concerns among elite law schools in making hiring decisions.

She recognized that Spaeth strongly felt that law students should be taught by practitioners instead of academics. However, she said that he could not dispute that scholarship was indeed a primary focus of law schools when hiring faculty members, and she refused to interfere with the university’s priorities.

Judge Huvelle found that Spaeth did not demonstrate the necessary qualifications for an entry-level tenure-track position at Georgetown because he had no record of scholarly work and had not shown a potential for producing such work in the future.

She granted summary judgment in favor of the university.

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  • Meet the Editor

    Joan Hope
    Managing Editor

    Joan Hope became editor of Dean & Provost in 2007. She brings years of experience in higher education and journalism to her work. She has taught writing and literature courses for eight years at colleges and universities including Indiana University at Bloomington, Clark University, and Houston Community College
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