2 Legislative Implications

Approaches to crafting OER legislation vary. Some states offer narrow definitions of terms such as “” or “low cost,” whereas others leave more room for interpretation. Some laws apply to all institutions, while others apply only to some public institutions. Institutional administrators and faculty affected by legislation must understand the law and their responsibilities. Moreover, how legislation is interpreted has a large impact on how it benefits students. The following steps provide strategies for institutions responding to recent or potential legislation to mark open and affordable courses, in addition to policy markers that can be considered when drafting legislation.

Step 1: Understand What Needs to be Marked

Most states mention OER in some capacity, but unfortunately only some offer a detailed definition of OER. Likewise, some states allow for marking of materials other than OER, namely low-cost or no-cost materials. In some cases these terms are defined, and in other cases they are not.

For example, Texas SB 810 defines OER as

…teaching, learning, and research resources that reside in the public domain or have been released under an intellectual property license that allows for free use, reuse, modification, and sharing with others, including full courses, course materials, modules, textbooks, streaming videos, tests, software, and any other tools, materials, or techniques used to support access to knowledge.” (Texas Senate Bill 810 2017)

In contrast, Oregon defines OER as teaching, learning, and research resources that

(a) Reside in the public domain or that have been released under an intellectual property license that permits their free use and repurposing by others; and (b) Conform to the Americans with Disabilities Act of 1990 (42 U.S.C. 12101 et seq.) and to any additional accessibility standards established by the Higher Education Coordinating Commission by rule. (Oregon House Bill 2871 2015).

The Texas definition includes a more detailed description of legal permissions and explicitly describes the kinds of materials that are included. Oregon includes a less specific but roughly equivalent definition of OER but also adds that materials must also be compliant with the Americans with Disabilities Act. Therefore, some materials may qualify to be marked as OER in Texas but not in Oregon, or vice versa.

Louisiana, Oregon, and Virginia explicitly allow for the marking of low-cost materials that do not meet the definition of OER. Louisiana is the only state to offer a definition of this type of term:

“Affordable educational resource” or “AER”, means a single or collection of required educational resources that may be offered at no or low cost to a student through a postsecondary education institution or an affiliated college bookstore at a pre-sales tax cost to a student that does not exceed an amount equal to four times the federal minimum wage. AER includes copyright protected material purchased by a library and provided to a student at no cost. (Louisiana Senate Bill 117 2019)

When legislation does not provide a clear definition of what needs to be marked, it is up to the institution to adopt a definition. We come back to this issue in Step 5.

Step 2: Determine What Actions Are Required Under the Law

Once it has been established which materials qualify, the next step is to determine the institution’s responsibilities under the law. For the purposes of discussion, consider the following questions:

  • Is the law applicable to the institution?
  • Does the law require marking at the material level or course level?
  • What materials qualify for marking under the law?
  • How would the law apply to cases in which a course uses both qualifying and non-qualifying materials?

The answer to these questions varies depending on the relevant statute. For example, most states require open or affordable course marking to be implemented on a course-by-course level, whereas Texas requires marking for each individual material assigned for a course. Texas also includes an additional requirement to make OER markings searchable.

There are other specific legal distinctions that appear in legislation. For example, California’s law applies to courses that “promote OER,” and therefore could be interpreted to apply to a course that uses OER alongside traditional materials (possibly even expensive ones). On the other hand, Texas provides a much clearer directive to mark a course only if it “requires or recommends only” OER.

It is vital for college and university administrators to carefully read, understand, and seek legal guidance to ensure they understand how to comply with the letter of the law.

Step 3: Understand How Much Flexibility the Statute Provides

An important part of implementing a statute is to determine which requirements are mandatory and which offer some flexibility. For example, some statutes offer some leeway by using the word “may” or with the phrase “to the maximum extent practicable.” In contrast, the word “shall” typically signals that a command is legally mandatory. Statutes also vary in their level of specificity. Some are more prescriptive about the manner by which must be implemented, whereas others leave it to the institution to choose the manner of implementation.

It is important to read the pertinent statute and relevant citations in their entirety to ensure that all relevant requirements are understood. Qualifying language that provides or restricts flexibility may appear in another portion of the legislation, or the requirements may be affected by existing statute. For example, the Washington statute states that applicable institutions “shall compile a list,” using the word shall to signify it is mandatory. However, it is predicated by the phrase “to the maximum extent practicable.” In this case, it is likely that institutions could interpret this command as offering some flexibility.

In general, it is vital to carefully read the language of the statute, determine whether certain actions are optional or mandatory, and then design a plan that is compliant.

Most of the laws are written as a way to foster and incentivize the use of OER, low-cost, and no-cost course markings. For example, mandates from Texas and Washington are designed to encourage faculty to mark courses appropriately and to choose open materials for their courses. Most schools are willing to make changes, and as of 2019, no institution had been publicly penalized for not adhering to the mandate implementation timeline as designated by their legislature. OER, low-cost, and no-cost course markings are generally seen as positive approaches to lowering the cost of higher education.

Step 4: Determine Who Is In Charge of Oversight and Implementation

After discerning the various requirements of the relevant statute, the college or university administration has at least two key roles in ensuring the course marking process is successful. These roles involve assigning who will assure compliance with the pertinent statutes, and who will educate key stakeholders on campus regarding the statutory mandates—including the why, when, and how compliance must be completed.

Responsibility for compliance may often fall to the provost or chief academic officer, who is in a position to communicate the requirements under the law with instructors, information technology personnel, the campus store, and other key stakeholders. The provost can confirm that any campus-level implementation procedures are communicated to instructors in ways that are respectful of academic freedom. When and how to involve other campus partners is further explored in Part II (Stakeholders) and Part IV (Branding and Communications).

Once the terminology and the implementation of course markings has been decided and adopted, it is important that campus stakeholders are educated about the process. Faculty and staff may need guidance on which materials need to be marked and how to submit the relevant information. Offices charged with implementation, such as the registrar and the campus store, need to understand what adjustments are needed for their technical systems and prepare to answer questions accurately and consistently. Finally, students need to understand what these markings mean, how it affects their course load and finances, and how to search for open and affordable courses in their registration system. Each of these factors are explored in Chapter 4 (Students).

Step 5: Formalize Local Interpretations

State mandates often leave many details up to individual campuses to interpret, and therefore many decisions need to be made at the local level in order to translate high-level instructions into local actions.

This is particularly true in terms of definitions that are not specified in statute and types of materials that are required to be marked. OER, low-cost, and no-cost are not interchangeable terms. OER concerns the material’s copyright permissions, while low-cost and no-cost concern the price at which the material is made available to students. Therefore, depending on legislative language, it may be possible for a course or material to fall into multiple marking categories based on their cost or copyright license. Six possible categories are illustrated in the table below.

No-Cost Low-Cost High-Cost
Open OER: Materials are openly licensed and free of cost and access barriers. Materials are openly licensed and free of cost and access barriers in at least one form. Cost may be related to printing services or add-ons. Often does not apply.
Not Open Materials are free for students to access, but are subject to copyright restrictions. Materials have some cost associated with access, and are subject to copyright restrictions. Can fall under the guise of “inclusive access.” Materials have high costs associated with access, and are subject to copyright restrictions.

The case studies in Part VII illustrate a variety of approaches to marking and terminology. Some institutions only implement one label that encompasses all OER, no-cost, and low-cost materials, whereas others implement multiple labels that distinguish between levels of cost and/or whether materials are open. For any kind of marking, it is important to ensure that the terminology is accurate based on the types of materials it marks. For example, a campus should label something OER only if it intends to distinguish materials that are open from those that are not.

Portland Community College offers an example of local policy decisions to implement course marking in response to the statewide mandate for public institutions (Oregon House Bill 2871 2015). Following the bill’s passage in the summer of 2015, the library OER steering committee took charge of overseeing implementation. The steering committee ultimately published an FAQ outlining the course schedule marking requirement:

Oregon colleges and universities are required to “prominently designate courses whose course materials exclusively consist of open or free textbooks or other low-cost or no-cost course materials” at the point of registration. In our online schedule, PCC will use 2 designations for courses with: $0 required costs and $40 or under required costs (Portland Community College 2016).

Local decisions can have a large impact on how policies are implemented. While HB 2871 was written as an OER course marking mandate, the college’s local interpretation does not involve distinguishing materials based on their copyright permissions. Like many institutions, Portland Community College based their marking only on the cost of materials. The college also made a local determination to define low-cost as $40, as a threshold was not specified in Oregon’s statute. Mt. Hood Community College offers a detailed exploration of how another institution subject to HB 2871 developed its course marking practices, such as including student government input, and using two cost designations.

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Marking Open and Affordable Courses: Best Practices and Case Studies by Breeman Ainsworth, Nicole Allen, Jessica Dai, Abbey Elder, Nicole Finkbeiner, Amie Freeman, Sarah Hare, Kris Helge, Nicole Helregel, Jeanne Hoover, Jessica Kirschner, Joy Perrin, Jacquelyn Ray, Jennifer Raye, Michelle Reed, John Schoppert, and Liz Thompson is licensed under a Creative Commons Attribution 4.0 International License, except where otherwise noted.

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