1 State and Federal Legislation

State and federal legislation have played a significant role in laying groundwork for open and affordable course marking. Seven states passed course marking mandates between 2015 and 2019, and these bills have foundations in an earlier federal requirement that introduced textbook information into course schedules. This chapter explores the history of open and affordable course marking policy and analyzes different approaches. It also offers insight in how the role of policy may evolve in the future.

Foundations in Textbook Price Disclosure Law

The history of open and affordable course markings dates back to state and federal legislation in the mid-2000s concerning textbook price disclosure in an institution’s schedule of classes. The issue of textbook affordability first gained national attention in 2004, with an exposé released by Student Public Interest Research Groups, which found textbook prices had risen more than four times the rate of inflation (Student PIRGs 2004). The findings struck a nerve with students, parents, and politicians alike, and within a few years states began introducing legislation designed to increase textbook price transparency.

In 2007, Congress took up reauthorization of the Higher Education Act of 1965, the law governing the nation’s college and university policies, which was ultimately achieved with the passage of the Higher Education Opportunity Act (HEOA) in 2008. Senator Dick Durbin of Illinois championed the issue of textbook affordability during the process, drafting a set of provisions that were ultimately codified into law under Section 133 (20 USC 1015b). Among the provisions was a requirement that colleges and universities eligible for Title IV funding must, to the maximum extent practicable, disclose the ISBN and retail price of college textbooks in the online course schedule students use for registration. The textbook information provisions took effect on July 1, 2010, and were evaluated by the Government Accountability Office (GAO) in 2013. The relevant portion of Section 133 reads:

To the maximum extent practicable, each institution of higher education receiving Federal financial assistance shall—

(1) disclose, on the institution’s Internet course schedule and in a manner of the institution’s choosing, the International Standard Book Number and retail price information of required and recommended college textbooks and supplemental materials for each course listed in the institution’s course schedule used for preregistration and registration purposes, except that—

(A) if the International Standard Book Number is not available for such college textbook or supplemental material, then the institution shall include in the Internet course schedule the author, title, publisher, and copyright date for such college textbook or supplemental material; and

(B) if the institution determines that the disclosure of the information described in this subsection is not practicable for a college textbook or supplemental material, then the institution shall so indicate by placing the designation “To Be Determined” in lieu of the information required under this subsection; and

(2) if applicable, include on the institution’s written course schedule a notice that textbook information is available on the institution’s Internet course schedule, and the Internet address for such schedule. (U.S. Department of Education 2008)

This provision instigated a shift in the responsibility of institutions for providing textbook information to students. Historically, textbook information was typically not available at the time students registered for courses (often several months in advance). Visiting the college bookstore prior to the start of the term was often the most reliable way to get information about book adoptions. Following the passage of HEOA, institutions had just under two years to update their systems to ensure that students had access to textbook information at the time of registration.

Though HEOA doesn’t explicitly address open content, the Act applies to all OER that meet the definition of “college textbook” or “supplemental material.” If the resource doesn’t have an ISBN, disclosure of the title, author, etc. is required unless disclosure is deemed “not practicable.” In its 2013 report, the GAO reviewed a nationally representative sample of school websites and found that about four out of five institutions provided students with the textbook information specified in the HEOA provisions (U.S. Government Accountability Office 2013). Most of these institutions also made the information public, allowing both current and prospective students to access it. The GAO concluded that students had benefited from having access to the information about assigned textbooks, both because students were able to compare prices on and off campus and because students were able to consider cost when enrolling in courses.

State Legislation

As textbook price disclosure became a regular part of an institution’s schedule of classes, marking low-cost, free, or open materials also started to gain traction as part of state-level OER policy. Driven by public outcry against the ever-increasing cost of college textbooks, state legislatures have begun turning to OER as a mechanism for supporting college affordability.

As of 2019, 28 states had introduced legislation relating to OER, and 15 had enacted state laws (SPARC 2019b; sparcopen 2020). Several additional states had created major initiatives not specifically tied to funding. State legislation pertaining to OER falls into several categories. The largest policy category is state funding to support OER initiatives, most frequently grant programs, but also other efforts including curation and creation. Several states also created permanent or temporary statewide OER councils charged with running such programs or conducting studies. Other policy mechanisms include directing institutions to establish OER guidelines, issuing directives to instructors or institutions to raise awareness of OER, or increasing transparency.

Seven states have enacted legislation concerning open and affordable course schedule markings. The first was Oregon in 2015, followed by California, Washington, Texas, Colorado, Virginia, and Louisiana. Each piece of legislation is summarized below and described in detail in the next section. The following considerations are addressed in each summary:

  • What types of materials should be marked (OER, free, or low-cost)
  • The extent of OER use required to qualify a course for marking
  • The scope of institutions covered by the mandate
  • The length of time provided to implement the requirement
  • Whether the requirement is subject to further guidelines or rule making by a state agency

Oregon House Bill 2871 (2015)

Oregon was the first state to pass legislation requiring course schedule marking for open and affordable materials. Passed in 2015, House Bill 2871 was a comprehensive bill designed to expand the use of OER at public higher education institutions in the state. Major provisions in the bill included creating an OER grant program and establishing an OER staff position within the Higher Education Coordinating Commission. The OER course marking requirement reads as follows:

Each public university listed in ORS 352.002  and community college shall prominently designate courses whose course materials exclusively consist of open or free textbooks or other low-cost or no-cost course materials. The course designation required by this section must appear in the published course descriptions that are on the Internet or are otherwise provided to students at the time of course registration, including on the campus bookstore course materials list that is provided for the course. (Oregon HB 2871 2015)

This requirement is typical of other states as well. It applies to public institutions only, and specifies a broader category of free and low-cost materials in addition to OER. The term “low-cost” did not, however, carry a statutory definition, and was left to interpretation by individual campuses. Mt. Hood Community College provides an example of an institution that implemented course markings as a result of HB 2871.

Three years later, a 2018 report for the Oregon Higher Education Coordinating Commission found that implementation of this requirement across Oregon was uneven (Freed et al. 2018). While most institutions, particularly community colleges, had implemented designations, students were not always aware of them, or the information had not become available to them, in time to use the designations to factor in cost when selecting courses. Students were, however, strongly supportive of the idea of course marking. The report makes several recommendations, including adopting a consistent method of marking course schedules across all institutions in the state, collecting book assignment information earlier, and better informing students about what “OER” means.

California Senate Bill 1359 (2016)

In 2016, California was the second state to pass legislation (Senate Bill 1359) requiring OER markings. Like Oregon’s, California’s policy impacted public institutions and broadened the scope beyond OER to include all free digital materials and their low-cost print counterparts. Also like Oregon, California did not provide any further definition for the meaning of “low-cost.” California’s requirement reads as follows:

Clearly highlight, by means that may include a symbol or logo in a conspicuous place on the online campus course schedule, the courses that exclusively use digital course materials that are free of charge to students and may have a low-cost option for print versions. (California SB 1359 2016)

California has a long legislative history pertaining to OER. One of the first states to pass comprehensive legislation, California has a standing faculty council and statewide digital library dedicated to OER and has made several large appropriations in more recent years. The course marking requirement is mandatory for two of the three public higher education systems, the California State University and California Community Colleges. The state’s constitution grants the University of California broad institutional autonomy, and therefore the legislation requests rather than requires compliance by the system.

Washington House Bill 1375 (2017)

Washington became the third state to codify open and affordable course markings in 2017, with House Bill 1375. Like California, Washington has a long legislative history on OER and adopted the requirement as a stand-alone bill. An excerpt reads as follows:

To the maximum extent practicable…a community or technical college shall provide the following information to students during registration by displaying it in the online course description or by providing a link that connects to the bookstore’s web site or other web site where students can search and view:

(a) The cost of any required textbook or other course materials; and

(b) Whether a course uses open educational resources. (Washington HB 1375 2017)

Washington’s requirement is unique in that it applies only to the state’s community and technical colleges. Several factors likely contributed, including that the state had funded a high-profile OER program at the community and technical college system known as the Open Course Library, which in 2013 finished outfitting 81 high-enrollment courses with free and low-cost materials (Open Washington n.d.). The case for course markings was linked to helping students identify courses using these materials. The community and technical colleges also have a common course numbering system and frequently share technology, which makes implementation of course markings simpler.

Texas Senate Bill 810 (2017)

Texas also passed a marking requirement in 2017 with Senate Bill 810, which included the provision in a broader bill that encompassed OER in both K-12 and higher education. An excerpt follows:

Each institution of higher education shall:

(1) for each semester or academic term, compile a course schedule indicating each course offered by the institution for the semester or term to postsecondary students;

(2) with respect to each course, include with the schedule a list of the required and recommended textbooks that specifies, to the extent practicable, the following information for each textbook:

(A) the retail price;

(B) the author;

(C) the publisher;

(D) the most recent copyright date; [and]

(E) the International Standard Book Number assigned, if any; and

(F) whether the textbook is an open educational resource; (Texas SB 810 2017)

Of all of the state requirements examined in this chapter, SB 810 provides the most extensive legal requirements. The bill goes on to describe when and how information must be disclosed and requires institutions that have a searchable schedule to build an OER filter into the search function. Notably, this section of SB 810 builds upon existing state statute that codified in 2009 the HEOA textbook price disclosure provisions into Texas state law.

SB 810’s detailed approach to open and affordable course marking eased certain aspects of planning. The bill included a clear definition of OER, explicit instructions on when and how to mark courses, and a requirement to add OER courses to search functions in the schedule of classes. However, a very short time frame for implementation, a matter of months, was unrealistic for most institutions. The implementation of SB 810 will be discussed extensively in Chapter 2 (Legislative Implications) and in Houston Community College’s case study.

Colorado House Bill 18-1331 (2018)

Colorado passed its course marking requirement in 2018 as part of a comprehensive OER bill designed to implement a set of recommendations made by an OER council established in House Bill 18-1331. HB 18-1331 created a standing OER council to implement an OER grant program, awareness campaign, and coordination activities among the public institutions in the state, along with a $660,000 appropriation. A provision was added to the final draft of the bill to also require the Colorado Commission on Higher Education to develop guidelines for OER course designations.

The commission shall adopt guidelines to require public institutions of higher education to ensure that, beginning in the fall of 2021, students are informed prior to course registration concerning which courses and sections use open educational resources or other low-cost materials. (Colorado HB 18-1331 2018)

Colorado’s approach was slightly different than the other states, in that it did not directly mandate institutions to implement course marking, but instead delegated authority to a state agency to develop more specific guidelines. It also offered a lengthy implementation period of three years.

Virginia House Bill 2380 (2019)

In 2019, several states considered course marking legislation. Virginia House Bill 2380 was the first to pass into law. The legislation added the requirement to a section of code dedicated to course materials. The statute states

The registrar or another appropriate employee of each public institution of higher education shall identify conspicuously in the online course catalogue or registration system, as soon as practicable after the necessary information becomes available, each course for which the instructor exclusively uses no-cost course materials or low-cost course materials. (Virginia HB 2380 2019)

Unlike the earlier laws passed in other states, Virginia’s omits any mention of OER and only requires marking of no-cost or low-cost materials.

Louisiana Senate Bill 117 (2019)

Louisiana’s Senate Bill 117, also passed  in 2019, requires the marking of both OER and “affordable educational resources” (AER):

Use a conspicuous symbol, logo, or other distinguishing feature to highlight each course included in its course schedule that exclusively utilizes AER or OER course materials and ensure that these course materials comply with the federal Americans with Disabilities Act. (Louisiana SB 117 2019)

Multiple states have included language relating to “affordable” or “low-cost” materials, but Louisiana is the first to offer an explicit definition. The definition applies to traditionally copyrighted materials that are available to students for less than “four times the federal minimum wage,” which in 2019 amounted to $29. Table 1.1 presents a summary of state legislation. Links to all laws can be found in the Course Marking Legislation section of the References.

Table 1.1: State legislation regarding  open and affordable course marking (2015-2019)
State Year Passed Name of Law Scope & Type of Institutions Impacted Type of Materials Covered OER Defined Extent of Use Required
Oregon 2015 HB 2871 Public institutions OER, no-cost or low-cost Yes Courses that use OER are exclusively identified
California 2016 SB 1359 Public institutions OER No Courses that use OER are exclusively identified
Washington 2017 HB 1375 Community & technical colleges OER No Courses that use OER may be identified
Texas 2017 SB 810 Public institutions OER Yes Courses that use OER may be identified
Colorado 2018 HB 18-1331 Public institutions OER or low-cost Yes Courses that use OER may be identified
Virginia 2019 HB 2380 Public institutions No-cost or low-cost No Courses that use OER are exclusively identified
Louisiana 2019 SB 117 Public institutions OER or low-cost Yes Courses that use OER or low-cost materials are exclusively identified

National Trends

Between 2015 and 2019, 14%  of U.S. states adopted legislation to require open or affordable markings in course schedules or catalogs; it is likely the trend will continue to spread nationwide. Software providers of student information systems (SIS) seem to be reading the writing on the wall, with at least one company, Civitas Learning (2018), announcing a feature for marking courses that use OER. However, a growing patchwork of state-level requirements is bound to create difficulties for large vendors, who depend on serving a national market for economies of scale. Thus far, all of the states to adopt open and affordable course marking requirements have large markets, especially California and Texas. Institutions in smaller markets that attempt to adopt one-off or institution-specific requirements may have more difficulty getting vendor assistance with implementation.

Meanwhile, conversations have been underway in Congress for several years toward reauthorizing the HEA, which would present an opportunity to add OER to the existing textbook information disclosure requirements under Section 133. Proposed language is included in the Affordable College Textbook Act (H.R.2107 and S.1036), which was reintroduced into the U.S. Congress in April 2019. If adopted, such a requirement would mandate open and affordable course marking across virtually all institutions in all states. Institutions in states with an existing policy would be required to comply with both federal and state requirements.

Policy mandates are only one avenue to adopting the practice of course markings. Significant action can happen on the institution, system, and state level without formal requirements from government. For state institutions without mandates, thinking proactively about implementing a course marking system can provide greater freedom in decision making, definition creation, and implementation processes. As state mandates expand, thinking proactively will prevent having to respond reactively. For example, though legislated timelines for implementation are sometimes ample—Colorado’s was three years—Texas institutions were given only months. Further, approaches to defining course marking by state mandate differ, as shown by those of Virginia and Louisiana, inadvertently creating confusion and hesitation. When state institutions have the option of creating their own definitions of “OER,” “low-cost,” and “no-cost,” greater clarity is attained for all those affected on campuses.

Understandably, when a state institution does not have a mandate, it can be difficult to pull resources together to create a course marking plan, but by starting these discussions, state institutions have a real opportunity to create the course marking plan that works best for their institution, rather than having to respond expeditiously to legislative requirements.



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Marking Open and Affordable Courses: Best Practices and Case Studies Copyright © 2020 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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