All eyes now turn to Congress as it begins the serious work of writing the legislation that will reauthorize the Higher Education Act for the next five years. With this year an election year, both Republicans and Democrats will undoubtedly work to demonstrate their support for education in general, and for expanding access and improving the affordability of a college education. And when it comes to distance education, the facts are now irrefutable: Distance education is not an experiment or sideline; it is an accepted educational tool. The overwhelming majority of colleges and universities throughout the country now offer distance education services, and millions of postsecondary undergraduate and graduate students are enrolled in these courses. It now goes without saying that expanded access to federal financial aid is critical to these students and these programs; Congress must, and most likely will, craft new language that will promote access to distance education services, guaranteeing student access to Title IV funds. But just what that language will look like, and how effective it will be, are the issues at hand. Many distance ed proponents are cautiously eyeing the revival of a program that was specifically created some time ago, to help Congress determine how to effectively provide financial aid for distance education students. They're not alone, and their concern is not without precedent. Let's look at the track record to date.

When Congress reauthorized the Higher Education Act in 1992, it provided, for the first time, that distance education students could receive Title IV federal student aid. Yet, still leery of the efficacy of telecommunicated instruction (versus traditional face-to-face classroom instruction), and worried that fly-by-night "schools" might pop up to fraudulently game the student aid system, Congress imposed a number of institutional eligibility restrictions. These included a limitation on the percentage of courses that could be offered via telecommunications or correspondence (the so-called 50 percent rules). But limitations or no, this access to student aid dollars--plus the pace of technology and the Internet over the next five years--helped to fuel the rapid growth in distance education.

By the time Congress next reauthorized the Higher Education Act in 1998, distance education had evolved from the educational sideline of a few institutions into a mainstream method of delivery for many. As a consequence, more and more colleges and universities became concerned that the institutional distance-education financial-eligibility restrictions of the 1992 law were an unfortunate, unnecessary, and artificial constraint on the continued growth and mainstreaming of distance education. But efforts to make traditional and distance education students and programs equally eligible for Title IV funds were still received with concern over potential fraud and abuse, not to mention a lingering feeling among some key Congressional and Department of Education officials that distance education was somehow inferior to traditional face-to-face instruction. Nevertheless, because the trend of using technology to reach more and more students had become so important in higher education in general (combined with the advent of the then politically significant Western Governors University), Congress recognized that new flexibility was indeed called for.

To address the growth of distance education and the need to broaden access to higher education via non-traditional means (while guarding against fraud and abuse), Congress created the Distance Education Demonstration Program (DEDP) in the 1998 reauthorization act. [See Section 486(a) of the Higher Education Act of 1965, as amended]. The DEDP authorizes the Secretary of Education to waive certain statutory and regulatory provisions for up to 50 institutions and consortia. The purpose of the waivers is to enable the DOE to identify for Congress (for the next reauthorization act) what existing statutory and regulatory requirements need to be altered to provide greater access to distance education programs, while maintaining the quality of educational services and the integrity of the Title IV program. In competitions in 1999 and 2001, the DOE selected a total of 24 participants representing more than 100 colleges and universities. These participants span a broad range of public, private, and for-profit entities--from the University of Maryland University College, Florida State University, Washington State University, Brevard Community College (FL), and Texas Tech, to the University of Phoenix (univ.phoenix.edu), the U.S. Sports Academy (AL), Walden University (www.waldenu.edu), the JesuitNET Consortium (www.ajcunet.edu) and the Connecticut Distance Learning Consortium (www.ctdlc.org). (A list of the 1999/2001 DEDP participants is available at www.ed.gov/programs/disted/participants.html. Descriptions of their projects and the statutory and regulatory provisions that were waived are also listed on the Web site, as are the DOE's DEDP findings, reported to Congress in January 2001 and July 2003.)

The growth of distance learning has certainly continued apace. According to the latest DOE statistics, during the 2001-2002 academic year, 56 percent (2,340) of all Title IV-eligible colleges and universities were offering instruction through distance education technologies. Of this total, 90 percent of public two-year and 89 percent of public four-year institutions were distance education providers. Another 12 percent of institutions indicated that they planned to launch distance education programs within the next 36 months. (See Distance Education at Degree-Granting Postsecondary Institutions: 2001-2002, nces.ed.gov/pubs2003/ 2003017.pdf.) During the studied period, just over 3 million students were enrolled in a postsecondary distance education course, with more than 2.8 million of those enrolled in "college-level, credit-granting distance education courses, with 82 percent of those at the undergraduate level..." With this growth--and as Congress last year began the process that should lead to reauthorization of the Higher Education Act in 2004--some key members of Congress began to discuss the wisdom of removing the distance education Title IV limitations incorporated in the 1992 law. Rep. Johnny Isakson (R-GA) and Sen. Michael Enzi (R-WY) have been among the leaders of this movement, and various bills to loosen or remove the limitations have been introduced over the past two Congresses. The national higher education associations in Washington, DC have also encouraged Congress to loosen the strictures in the next reauthorization. (See Recommendations for Reauthorization of the Higher Education Act, www.acenet.edu/washington/HEAProposals.Senate.pdf.)

Around the same time, additional institutions began to explore the possibility of being selected to participate in the DEDP--perhaps as a hedge against a failure by Congress to open the Title IV doors more broadly. At first, the DOE resisted a new competition, but in the face of continuing pressure from interested institutions and with support from members of Congress, it decided to reopen the DEDP in September 2003, in order "to increase the diversity of the types of institutions in the program." (See Notice inviting applications for participation in the Distance Education Demonstration Program, www.ed.gov/legislation/FedRegister/announcements/2003-3/090403c.html.) The DOE noted that, based in part on the experiences of the 1999/2001 participants, it had modified certain of its Title IV rules in November 2002 to ease distance learners' access to federal student aid funds. However, it concluded that it was "appropriate to accept [new] applications to participate in [the DEDP] to determine what other barriers continue to exist and to increase the diversity of the types of participants in the Distance Education Demonstration Program." The DOE also noted that it was now "particularly seeking applications from eligible applicants that would increase the diversity of the types of participants in the Distance Education Demonstration Program, particularly in the number of institutions that exclusively provide instruction online."

A number of applications were received by the October 6, 2003 deadline. These were evaluated by the DEDP staff and by a panel of outside readers over the following month. On December 1, Secretary of Education Rod Paige announced that five additional institutions had been selected to participate in the DEDP: the College of Court Reporting, Inc. (www.ccredu.com); Graceland University (IA); Jones International University, Ltd. (www.jonesinternational.edu); National Technological University, Inc. (www.ntu.edu); and Northcentral University (www.ncu.edu). These brought the total number of participating institutions, systems, and consortia to 29. In announcing the selections, the DOE said that new institutions will "broaden the scope of its examination of issues related to the use of federal financial aid by distance education students, particularly at institutions that provide their curricula exclusively via distance learning." Secretary Paige declared that "The new participants enhance the diversity of the types of institutions in the program, provide education to rural students without access to traditional campuses and expand the distance education curricula to include nursing, court reporting and engineering." (www.ed.gov/news/pressreleases/2003/12/12012003a.html.)

As we await the coming reauthorization, colleges, universities, consortia, and for-profit institutions are looking to Capitol Hill for the kind of change that will make a real difference to so many students--and prospective students--seeking financial aid to enable them to pursue higher education at a distance. The real question now is how--and whether--it will be a significant improvement over the current legal and regulatory framework.

Kenneth Salomon is an attorney with Dow, Lohnes & Albertson, PLLC (www.dlalaw.com), with offices in Washington, DC, and Atlanta.