The First Amendment and Free Online Courses [UPDATE: Minnesota Backs Down]

The Chronicle of Higher Education reports that Minnesota has barred Coursera from offering free online courses — including ones that don’t even result in a degree — because it hasn’t properly registered as an educational institution with the Minnesota Office of Higher Education, and, presumably, because the universities and colleges that provide classes through Coursera have not gotten approval to use the term “college” or “university” from that Office:

Coursera offers free, online courses to people around the world, but if you live in Minnesota, company officials are urging you to log off or head for the border.

The state’s Office of Higher Education has informed the popular provider of massive open online courses, or MOOC’s, that Coursera is unwelcome in the state because it never got permission to operate there. It’s unclear how the law could be enforced when the content is freely available on the Web, but Coursera updated its Terms of Service to include the following caution:

Notice for Minnesota Users:

Coursera has been informed by the Minnesota Office of Higher Education that under Minnesota Statutes (136A.61 to 136A.71), a university cannot offer online courses to Minnesota residents unless the university has received authorization from the State of Minnesota to do so. If you are a resident of Minnesota, you agree that either (1) you will not take courses on Coursera, or (2) for each class that you take, the majority of work you do for the class will be done from outside the State of Minnesota.

Tricia Grimes, a policy analyst for the state’s Office of Higher Education, said letters had been sent to all postsecondary institutions known to be offering courses in Minnesota. She said she did not know specifically whether letters had been sent to other MOOC providers like edX and Udacity, and officials there did not immediately respond to questions from The Chronicle….

Minnesota statutes do indeed seem to cover “any public or private postsecondary educational institution located in another state or country which offers or makes available to a Minnesota resident any course, program or educational activity which does not require the leaving of the state for its completion,” whether or not they grant a degree, and whether or not they charge money. And any such institution may not “use the name ‘college’ or ‘university’ in its name without approval by the office”; that would presumably cover not just Coursera but also the universities that provide courses through Coursera.

But whatever Minnesota statutes may say, I don’t see how such an approval requirement is constitutional. Some consumer protection regulations may be constitutional when limited to universities that charge money (though even there I think that there are First Amendment limits), and perhaps consumer protection regulations aimed at protecting employers and prospective clients of “graduates” may be constitutional when limited to universities that purport to grant degrees (though again I think there are First Amendment limits even there). But if an entity — whether or not it has “college” or “university” in its name — offers free non-degree-granting courses, it is as shielded by the First Amendment as a newspaper Web site, a site aiming to educate people about some political or scientific issue, Wikipedia, or for that matter a blog.

That the entity provides its education through a series of videos, perhaps supplemented by online quizzes and the like, doesn’t strip it of First Amendment protection; and neither does the fact that it uses “college” or “university” in its name (at least in the absence of some evidence that consumers are being defrauded by such references). I’m not sure whether Coursera is planning to fight the Minnesota rules; but if it does, I think it will easily prevail.

UPDATE: Slate reports that Minnesota has backed down:

Here’s the new statement from Larry Pogemiller, director of the Minnesota Office of Higher Education:

Obviously, our office encourages lifelong learning and wants Minnesotans to take advantage of educational materials available on the Internet, particularly if they’re free. No Minnesotan should hesitate to take advantage of free, online offerings from Coursera.

He added that the 20-year-old statute in question clearly didn’t envision free online classes from accredited universities:

When the legislature convenes in January, my intent is to work with the Governor and Legislature to appropriately update the statute to meet modern-day circumstances. Until that time, I see no reason for our office to require registration of free, not-for-credit offerings.

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