The rising cost of higher education in the United States is well documented and is frequently the topic of discussion. The increase has been staggering, as the average tuition and fee prices at public four-year institutions have risen by over three hundred percent since the 1988-89 academic year. (( CollegeBoard, Tuition and Fees and Room and Board Over Time, https://trends.collegeboard.org/college-pricing/figures-tables/tuition-fees-room-and-board-over-time (last visited Mar. 29, 2019).)) Another issue closely associated with the rising costs of higher education in the United States is the meteoric increase in student loan debt, which has increased by more than $833 billion over the past decade to reach an all-time high of $1.4 trillion. ((Jessica Dickler, Student Loan Balances Jump Nearly 150 Percent in a Decade, CNBC (Aug. 29, 2017, 9:35 AM), https://www.cnbc.com/2017/08/29/student-loan-balances-jump-nearly-150-percent-in-a-decade.html.)) An overlooked factor in the rising cost of higher education is the increasing use of digital access codes by textbook publishers.
Digital access codes are unique serial numbers that allow students to unlock an online learning suite. ((The Student Public Interest Research Group, Access Denied: The New Face of the Textbook Monopoly, Student PIRGS, https://studentpirgs.org/blog/2016/09/21/access-denied/ (last visited Mar. 29, 2019).)) Once logged into the online learning suite, students can access digital books, homework assignments, quizzes, tests, and educational videos intended to help them learn course materials. From this point of view, the use of digital access codes and online learning suites seem like a great way to modernize education and take advantage of the benefits that the internet provides. This is exactly how the publishers try to present the online learning suites – as a tool that can be used to increase efficiency, streamline the educational process, and reduce costs. ((See, e.g., What are eTexts?: A Better Learning Experience for Less, Pearson, https://www.pearsonhighered.com/etextbooks/teacher-education-and-the-helping-professions/students/what-are-etexts/index.html (last visited Mar. 29, 2019).)) But as they have become more ingrained in educational institutions across the nation, students have started to rally against them, arguing that they exacerbate the already high costs of higher education. ((See Laura McKenna, Why Students Are Still Spending So Much for College Textbooks, Atlantic (Jan. 26, 2018), https://www.theatlantic.com/education/archive/2018/01/why-students-are-still-spending-so-much-for-college-textbooks/551639/.))
Before the introduction of digital access codes, students could employ a number of different cost-saving strategies to keep the cost of their textbooks at bay. Many students would forego purchasing books altogether and simply borrow them from the library when they needed them, others would choose to share books with their friends, and even when deciding to actually purchase the book solely for their own use, students would often choose to buy the books secondhand in order to pay a lower price. The proliferation of digital access codes has made these strategies ineffective, thereby increasing the burden placed on students. ((The Student Public Interest Research Group, Access Denied: The New Face of the Textbook Monopoly, Student PIRGS, https://studentpirgs.org/blog/2016/09/21/access-denied/ (last visited Mar. 29, 2019).))
Digital access codes have hampered students ability to cut down on costs because each student is required to have his or her own code and each code expires at the end of the course term. As a result of the codes expiring, students are unable to make any money back at the end of the course term by selling them to other students, as opposed to physical textbooks which are regularly sold by college students. ((See Laura McKenna, Why Students Are Still Spending So Much for College Textbooks, Atlantic (Jan. 26, 2018), https://www.theatlantic.com/education/archive/2018/01/why-students-are-still-spending-so-much-for-college-textbooks/551639/.))
Additionally, students have fewer options when it comes to purchasing their textbooks in the first place because of the proliferation of digital access codes. In a 2018 study, the Student Public Interest Research Groups surveyed the textbook arrangements for ten college classes at forty randomly selected public and private two- and four-year colleges. ((Kaitlyn Vitez, Open 101: An Action Plan for Affordable Textbooks, Student PIRGS, https://studentpirgs.org/blog/2018/01/25/open-101-action-plan-affordable-textbooks/ (last visited Mar. 29, 2019).)) The study found that about one third of the textbooks surveyed were only available for sale as a bundle with an access code and were exclusively sold at university bookstores. ((Id.)) Thus, students aren’t able to shop around to find lower prices, and total classroom expenses are higher for students.
Despite the greater expenses for students as a result of digital access codes, they have increased in prominence, and will probably continue to do so. ((Jennifer Libertowski, Newly Released Report From National Association of College Stores Shows Increase in Use of Digital Course Materials, Nat’l Ass’n of Convenience Stores (Jul 21, 2016), https://www.nacs.org/advocacynewsmedia/pressreleases/tabid/1579/ArticleID/475/Newly-Released-Report-from-National-Association-of-College-Stores-Shows-Increase-in-Use-of-Digital-Course-Materials.aspx.)) The publishers hold all the cards, and they have every incentive to continue pushing digital access codes as much as they can. Digital goods cost less for them to produce and eliminate the resale market, which ensures that students have to buy straight from them each time they need a new code. ((Kathy Kristof, What’s Behind the Soaring Cost of College Textbooks, CBS News (Jan. 26, 2018) https://www.cbsnews.com/news/whats-behind-the-soaring-cost-of-college-textbooks/.)) Whether this is good for the consumer or not is debatable, and while many students have publicly opposed their professors requiring the use of textbooks bundled with access codes, ((See, e.g.,Mia C. Karr, Students Criticize New Ec 10 Textbooks, Mankiw Defends, Harvard Crimson (Sep. 20, 2016) https://www.thecrimson.com/article/2016/9/20/mankiw-praises-online-textbook/)), it will likely continue to become more common as all the economic incentives support it.
The Higher Education Opportunity Act (HEOA) was enacted by Congress in 2008, and one its goals was to reduce the power that publishers had over college students. ((Higher Education Opportunity Act, 20 U.S.C. §§ 1001-20 (2008). )) To this end, the HEOA focused on forcing price disclosure to professors, unbundling textbooks and their accompanying digital access codes, and encouraging colleges to provide lists of assigned textbooks to students before class registration. ((Ariel Diaz, Should Students Pay to Submit Homework? Publishers Think So, Bostinno (July 12, 2012) https://www.americaninno.com/boston/should-students-pay-to-submit-homework-publishers-think-so/.)) While the HEOA was a step in the right direction, consumer protection laws need to be tightened up so as to protect college students that are currently at the mercy of textbook publishers.
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