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What Does the TPS Blog Post Mean?
Initial views for different higher ed groups
Phil Hill
April 12, 2023
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On to the update.
Yesterday I described the news from the US Department of Education, that it will revise the TPS guidance, delay the effective date for at least six months after revisions, and remove the foreign ownership exclusion provision. My focus was on the unusual (lack of) process followed by ED.
On one hand, all the changes mentioned in the blog post are improvements over the submitted [Dear Colleague Letter] DCL 23-03. On the other hand, this post clearly shows that ED plans to thread the needle and keep as many of the TPS expansions in place that they can get away with. ED is committed to the chosen approach, despite the overwhelming feedback through public comments.
The official DCL has not yet been updated. I will say that if ED thinks a blog post clarification of regulatory guidance is sufficient, rather than rescinding or updating the DCL itself, then we will have another mistake to contend with. I hope I am wrong, but it looks like ED is just winging it with process, trying to buy time until they can revise the DCL but keep as much as possible. This introduction of blog posts into the mix is ridiculous. Institutions and vendors need clarity, not additional contradictory informal statements. Hopefully the actual revision process will go through negotiated rulemaking.
Anyone reading the actual DCL will see that the guidance is still in effect, with an effective date of September 1st. Anyone reading the informal blog post will see that the guidance will change, with an indeterminate effective date. Good luck sorting that out with your lawyers.
What does this news mean for various higher ed organizations? Here are my initial thoughts.
Study Abroad and International Student Recruitment programs are the biggest winners, as the blog post directly states that these programs are out of scope. Furthermore, it is clear that ED is leveraging this reduction in scope as a political win, by removing the concern behind “hundreds of comments.” At Inside Higher Ed, Greg Hess, president of IES Abroad, stated ““The case is closed for us … It’s a little like Christmas Day.”
D2L is the second biggest winner, as they are non-US owned and operated, “learning management” is explicitly called out in the DCL, and its biggest competitors are US-based. D2L had the most to lose, as it effectively would have been locked out of the US higher ed market (its largest) without a legal fight. With yesterday’s news, D2L no longer is locked out, and they are on the same footing as their US-based competitors. While D2L has taken a strong position (including an update yesterday) saying that TPS guidance does not apply to them, I doubt that many institutions doing an LMS evaluation would have trust that judgement pre-blog. Now it is (apparently) a moot point.