When colleges sign deals with publishers to sell digital textbooks and homework systems directly to students, they’re required by federal regulations to offer those materials at discounted prices. They also must allow students to opt out of buying bundled books so they can find resources on their own if they prefer.
Yet the contract terms for these subscription arrangements—which some publishers call “inclusive access” programs—raise questions about whether publishers and colleges pressure students into participating.
That’s the conclusion of a new report from U.S. Public Interest Research Group, a nonprofit advocacy organization that takes a skeptical view of publishers’ efforts to automatically bill students for pre-packaged commercial course materials.
Using open-records requests, U.S. PIRG obtained 52 contracts between 31 colleges and major publishers, including Cengage, McGraw-Hill and Pearson. It found clauses that the nonprofit alleges may discourage colleges from being completely transparent about the terms of inclusive access programs, so that students don’t opt out.
Textbook publishers, meanwhile, reject that argument.
“We are very well aware and understand that opt-out is a part of inclusive access, period,” says Nik Osborne, senior vice president for strategy and business operations at Pearson. “We support it, acknowledge it, [and] do not try to restrict the institution in any way.”
The U.S. PIRG report, however, says the actual contracts tell a different story.
More than two-thirds of the contracts included target numbers of subscribers among students enrolled in classes that use bundled materials. These goals could “push the rapid adoption of access codes across the institution,” the report states.
For example, a contract between Cengage and Central Washington University gave Cengage the right to terminate its inclusive access program if the university failed “to achieve purchases for at least eighty-five percent (85%) of the students enrolled” in relevant courses.
And a multi-year agreement between Pearson and the University of Florida set “minimum usage rates” of 10,400 enrollments in 2017, which jumped to 47,000 in 2018. Failure to achieve those rates could have led to price increases on course materials.
Yet representatives of Cengage, McGraw-Hill and Pearson each told EdSurge that their companies do not set quotas for their inclusive access programs. McGraw-Hill and Pearon emphasized that instructors retain the freedom to decide whether to assign bundled materials to students in their classes, and those students can then choose whether to opt out.
Pearson has typically seen opt-out rates below 5 percent, according to Osborne.
“We’re not in a position to force a faculty member to be a part of this program,” Osborne says.
Regarding the University of Florida contract, he added, “That is Pearson and the institution coming together and agreeing that seems reasonable from an institution's perspective.”
Still, U.S. PIRG worries that these “minimum usage rates” clauses might lead to commercial course packs becoming the default in large introductory courses.
“At big four-year state schools and community colleges where they rely on teaching assistants or adjuncts to teach, and a department chair is making decisions on learning materials used in class, the instructor of the course doesn’t have control over the materials and might be forced to use automatic billing anyway,” says Kaitlyn Vitez, higher ed campaign director for U.S. PIRG and author of the report.
The report says that nearly half of contracts didn’t “fully disclose” the discounts that inclusive access programs offer on course materials, which could make it difficult for students to compare prices with resources sold elsewhere.
“Students are kind of stuck where they don’t have an adequate level of price transparency to act on the opt-out,” Vitez says.
It’s colleges and bookstores, not publishers, who are responsible for disseminating price information to students, according to Tyler Reed, senior director of communications at McGraw-Hill.
Yet the report suggests that publishers sometimes consider their prices to be proprietary trade secrets. It cites a letter to San Diego State University in which a McGraw-Hill representative requested that pricing information be redacted, writing that “McGraw Hill goes to great lengths to maintain the confidentiality of its pricing and the discounts it extends to certain customers” because sharing that information “could cause the company significant financial harm.”
Additionally, the report critiques common contract clauses that Vitez believes may limit how campuses share information about inclusive access programs, perhaps even giving publishers veto power on marketing materials. For example, it notes that Pearson contracts typically say “Customer will not issue any press release or make a public announcement relating in any way whatsoever to the Agreement or the relationship established by the Agreement, without the prior written consent of Pearson.”
Pearson representatives dismissed the claim that this language suppresses publicity around inclusive access, calling it a standard press release clause.
“We want them to talk to students about the savings; we want them to talk to faculty about it,” Osborne says.
The new report comes on the heels of a class-action lawsuit independent bookstores filed in January against publishers and large bookstore chains that alleges that inclusive access programs constitute an illegal monopoly. Plaintiffs argued that opt-out processes are “opaque, confusing, and difficult if not impossible to execute” and that publishers, retailers and colleges sometimes discourage students from opting out. That’s a claim similar to one made in a lawsuit filed in 2019 by an independent bookstore in Charleston, South Carolina, against Trident Technical College.