Paul L. Caron
Dean




Monday, January 3, 2022

ABA Proposes Changes To Distance Learning Accreditation Standard

In a 12-page December 16 memo, Leo Martinez (Council Chair) and William Adams (Managing Director of Accreditation and Legal Education) reported that at its meeting held on November 18-19, the Council of the Section of Legal Education and Admissions to the Bar approved for Notice and Comment proposed revisions to Distance Education Definitions (7)-(8) and Standards 306 & 311(e):

ABA Legal Ed (2021)Section 1: Revisions to Distance Education Definitions (7)-(8) and Standards 306 & 311(e)
The Managing Director’s Office has received questions from law schools regarding what constitutes a distance education course and the credit hour limits on distance education. Also, the U.S. Department of Education (the “Department”) now has in effect a revised definition of “Distance Education,” which specifically defines what “substantive interaction” and “regular interaction” must include. Note: These revisions do not contemplate changes to the existing distance education credit limits at this time. 

Revisions to Definition (7) – Distance Education Course
Explanation: The revisions to this definition clarify that a course will be a distance education course only if students are separated from all faculty members teaching the course to align with the Department’s “Distance Education” definition (that definition is attached as Appendix A) and remove the phrases “or each other” and “among students” so that the presence of one or more remote students in an otherwise in-person course will not “convert” the course to a distance education course for the students taking the course in-person. In particular, the phrase “or each other” is not in the Department’s definition and has caused confusion for law schools.

Redline: Definition (7) – Distance Education Course
(7) “Distance education course” means one in which students are separated from all the faculty members or each other for more than one-third of the instruction and the instruction involves the use of technology to support regular and substantive interaction among students and between the students and the all faculty members, either synchronously or asynchronously.

Revisions to Definition (8) – Distance Education J.D. Program
Explanation: The revisions add distance education credit limits currently found in Standard 311(e) related to the first one-third of a student’s program of legal education to this definition.

Redline: Definition (8) – Distance Education J.D. Program
(8) “Distance Education J.D. Program” means a program where a law school grants a student more than one-third of the credit hours required for the J.D. degree for distance education courses. or more than 10 credit hours during the first one-third of a student’s program of legal education.

Revisions to Standard 306: Distance Education
Explanation: The Department has now detailed what “regular interaction” and “substantive interaction” must include in terms of distance education courses. The revisions add this information to Standard 306, the former Standard on Distance Education as schools have sometimes been confused by Standard 306’s “reserved and deleted” language, and the Managing Director’s Office has been asked to clarify whether distance education credit limits have been moved or eliminated. Additionally, schools have asked about remote participation by students as an ADA accommodation or in exceptional circumstances and whether those courses count towards the distance education credit limits for that student, so this is addressed here.

Redline: Standard 306. DISTANCE EDUCATION – Reserved and Deleted August 2020 Distance Education law school courses for which credit is given towards the J.D. degree must provide regular and substantive interaction between the students and faculty teaching the course. Distance education credits may not be counted towards the J.D. degree if they exceed the credit hour limitations in Standard 311(e).

(a) Regular interaction between a student and a faculty member in a distance education course shall include:

(1) providing the opportunity for substantive interactions with the student on a predictable and scheduled basis commensurate with the length of time and the amount of content in the course as defined by Standard 310(b);

(2) monitoring the student’s academic engagement and success; and

(3) ensuring that the faculty member is responsible for promptly and proactively engaging in substantive interaction with the student when needed on the basis of such monitoring, or upon request by the student.

(b) Substantive interaction in a distance education course requires engaging students in teaching, learning, and assessment, consistent with the content under discussion, and includes at least two of the following:

(1) providing direct instruction;

(2) assessing or providing feedback on a student’s coursework;

(3) providing information or responding to questions about the content of a course; or

(4) facilitating a group discussion regarding the content of a course.

(c) Remote participation in a non-distance education course by a student as an accommodation provided under law (such as the Americans with Disabilities Act) or under exceptional circumstances shall not cause the course to count towards the distance education credit limits in Standard 311(e) for that student. The law school shall document all instances in which it permits a student’s remote participation in a non-distance education course for which the credits will not be counted towards the credit hour limits in Standard 311(e).

Revisions to Standard 311(e): Academic Program and Academic Calendar
Explanation: Current Standard 311(e) does not state that a law school may grant a student up to one-third of the credit hours required for the J.D. degree for distance education courses without applying for a substantive change under Standard 105(a)(12)(ii). As the Managing Director’s Office has received questions about the distance education limits, where the limits are listed in the Standards, and whether the limits have been eliminated, the revisions clarify that a law school may grant a student up to one-third of the credit hours required for the J.D. degree for distance education courses in the text of Standard 311(e).

Redline: Standard 311. ACADEMIC PROGRAM AND ACADEMIC CALENDAR
(e)  A law school that does not offer a J.D. degree via distance education under Standard 105(a)(12)(ii) may grant a student up to one-third of the credit hours required for the J.D. degree for distance education courses; up to 10 credit hours required for the J.D. degree for distance education courses of those credit hours may be granted during the first one-third of a student’s program of legal education.

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