The Path Of Knowledge Is Open To All That Have The Determination To Walk It

The Presidents Forum has existed for over 20 years, and is both a venue for collaborative innovation between presidents and a collective voice for advocacy on behalf of our students.

March 30, 2023

The Honorable Miguel Cardona Secretary
U.S. Department of Education,
Office of Postsecondary Education
400 Maryland Ave. SW, Second Floor
Washington, DC 20202 Docket ID ED-2022-OPE-0103

Dear Secretary Cardona,

 The Presidents Forum has existed for over 20 years, and is both a venue for collaborative innovation between presidents and a collective voice for advocacy on behalf of our students. Our 16 institutions—including HBCU’s, community colleges, private institutions, and fully online colleges—are united by the non-traditional learners we serve, and because we embrace a shared spirit of innovation in order to meet the needs of our students. Our goal is reflected in Lyndon Johnson’s remarks in signing the Higher Education Act into Law in 1965: to ensure that “the path of knowledge is open to all that have the determination to walk it.” The institutions of the Presidents Forum are focused not on a narrow, elite set of students, but instead on the “all” that was envisioned by President Johnson. We serve those who have traditionally been left behind on the path to opportunity: low income students, students of color, veterans and active duty military students, working parents, and older adults.

 The vision for equity in education that unites us has been made all the more imperative by the events of recent years: a pandemic that has emphasized the importance of innovation and collective action; a national movement to address inequity wherever it lies; and a turbulent economy that has revealed the importance of equipping individuals with skills that can provide them with resilience and adaptation. Lyndon Johnson’s words are more true today than when they were first spoken: “And it is a truism that education is no longer a luxury. Education in this day and age is a necessity.” In order for America to realize its potential, it is necessary to ensure that access to higher education is expanded, and that opportunity is not the purview of the few. For each of our institutions, innovation has been the key that has unlocked our ability to provide education that is more affordable and more accessible than has been possible in prior generations. Higher education today shares the same goals as it did decades ago, but how we serve students looks very different—and this is a good thing. Technologically driven innovations have enabled education to reach more students, with more success, than we ever could achieve through traditional means. At the Presidents Forum, we embrace innovation that benefits students: that which makes it possible for us to define a system that meets students where they are, and supports students with the resources they need to be successful—rather than a traditional model that forces students to adapt to the institution.

Utilizing technology has necessarily made our operations more complex—and this is true for institutions that deliver education in person as well as those that employ online modalities. Software is beautiful in its ability to interface across systems, to create opportunities for students to pursue their studies at the time and place of their choosing, to support students in their learning and career goals, and to help us as institutions learn more about what works for our students and to do better by them. But these systems are developed, operated, and maintained at scale: for each of the 5,500+ Title IV institutions to hire a team of developers to create and maintain duplicative but proprietary educational software would result in exorbitant expense at no gain to students. Thus, we have partnered with a range of providers in order to build and improve our offerings. Our accreditors have worked with us to understand these changes over time. As the Department notes, we rely on more partners than we would have in Lyndon Johnson’s time. Many of these partnerships enable the technological provision of our academic program—but many more of them enable us to provide additional services to students in order to ensure their success.

We understand that the Department is curious about how higher education institutions are partnering with outside contractors in this technologically driven age. However, we urge the department to rescind its recent Dear Colleague letter issued on Third Party Servicers (TPS) for the following reasons:

• The change in the interpretation of the law is significantly different from prior Department guidance on TPS, and from how this area of the law has been historically understood by industry participants.
• It would have a significant impact and administrative burden, raising costs for students and impeding the ability of institutions to provide needed services. There is no identified harm to students that is being resolved by this administrative change that in any way justifies the costs of compliance that would be incurred.
• Outside contractors used in the provision of higher education services are already evaluated by other regulatory bodies, most notably accreditors.

 How Third Party Services have Historically Been Understood

Third party servicers were defined in the law to clearly relate to outside contractors involved in the provision of Title IV funds, including their processing and disbursement. This definition has been supported by the Department through Dear Colleague letters issued in 2012 and 2015. No Congressional action has since taken place that would support any change in Congress’s intent regarding the definition of Third Party Services, nor in Congress’s intent to change the authority of the Department to control the inner workings of higher education institutions. As a reminder, the relevant text of the law is below.

 For purposes of this subchapter and part C of subchapter I of chapter 34 of Title 42, the term “third party servicer” means any individual, any State, or any private, for-profit or nonprofit organization, which enters into a contract with–

(1) any eligible institution of higher education to administer, through either manual or automated processing, any aspect of such institution’s student assistance programs under this subchapter and part C of subchapter I of chapter 34 of Title 42;  or

(2) any guaranty agency, or any eligible lender, to administer, through either manual or automated processing, any aspect of such guaranty agency’s or lender’s student loan programs under part B of this subchapter, including originating, guaranteeing, monitoring, processing, servicing, or collecting loans.

The Burden of the DCL is Significant

This change in interpretation—from contractors related to the processing of “any aspect” of student assistance programs or those related to “any aspect” of student loan programs including originating, guaranteeing, monitoring, processing, servicing, or collecting loans, to any entity contracted for “any aspect” of any program delivered with Title IV funds—would increase the number of “Third party servicers” at our institutions from a handful, that are involved in our financial aid processing, to hundreds or thousands which are involved across the full spectrum of our activities.

 This is because higher education institutions are highly complex entities. A typical campus may include dining facilities, residential facilities, physical plant that requires cleaning and maintenance, curricular design and development, physical technology infrastructure, cloud based software services, financial and investment management, medical services, social work capabilities, academic instruction, career services, a significant HR function, sports and recreation facilities, security services, institutional research functions, daycare facilities, transportation services, and complex scientific and medical research facilities. The “technology” stack, as in most modern organizations, involves a massive number of systems that work together to enable our institutions to operate—and prepare students to operate in—the information age in which we live.

 In short, higher education institutions today, in addition to providing academic offerings—which, even for on-campus institutions, is a hugely complex undertaking—also serve as gyms, restaurants, medical offices, police forces, lawn care services, road and building maintenance crews, accounting firms, event planners, career recruiters, speakers bureaus, book publishers, and laundromats. Each of our institutions seek to focus our activities on where we can best provide value for students, and to eliminate unnecessary costs for students. To that end, each of our institutions contracts with outside entities—for everything from janitorial services to software—in order to avoid organizational complexity, to reduce costs, and to provide excellence to our students.

 The information and authority that the Department seeks in its recent DCL would require intensive and costly compliance efforts at every higher education institution—as well as at the Department. The benefit to students from these incurred costs is unclear.

 Who Evaluates the Academic Program

Accreditors have the expertise and processes in place to ensure that the “provision of educational content and instruction” meet high quality standards. The Department does not have the expertise, staff or resources to review how content and instruction are provided, and this was not the intention of Congress in defining Third Party Services, as affirmed by multiple Dear Colleague letters on Third Party Services. Accreditors, on the other hand, use expert review teams to dive deeply into how academic programs are constructed, what activities are conducted by the institution, to ensure that outsourcing arrangements are done in the service of students—to enhance quality and to reduce costs—and that the institution has ultimate governance and control of academic programs. Accreditation is not a perfect system—but significant changes to the role and scope of accreditation should not be made through subregulatory guidance.

 It is important to understand that our accreditors are up to date in how outside contractors are involved in the educational program. Where accreditors have issues with the academic program being outsourced or outside the governance of the institution, they are vocal and authoritative. This is the case for both traditional and for online programs.

 The Bigger Prize

The Department’s resources are scarce and precious—as are those of institutions, and even more so, our students. We beseech the Department to refocus away from scrutinizing every aspect of how institutions support students and deliver instruction, and instead double down on its mission to promote student achievement and preparation for global competitiveness by fostering educational excellence and ensuring equal access. We urge the Department to rescind the most recent Dear Colleague letter; it is clearly an overreach of the law and stands in contradiction to all previous guidance from the Department on this issue. We stand aligned with the Department on the bigger prize: innovating to create pathways to opportunity for every individual, particularly those most in need of them.