WASHINGTON -- Two years ago, a federal negotiating process designed to recommend changes in regulations governing accreditation blew up amid intense acrimony between higher education and Bush administration officials. The issues that caused the greatest conflict: how colleges might (or should) measure the learning outcomes of their students, and institutions' stances on the transferability of students' academic credit.
Those issues were on the agenda again as another panel of negotiators completed several months of work on accreditation at an Education Department office building Tuesday, but with a dramatically different result (and dramatically less drama). The college administrators, higher education lobbyists, accreditors, state officials and others around the conference table -- including Education Department staff members -- reached "consensus" on a package of 16 regulatory proposals to carry out changes Congress made in legislation to renew the Higher Education Act last summer. (When such negotiating sessions end with "consensus" among the parties on a package of regulatory changes, a federal agency is bound to propose them as is; when no consensus is reached, the agency can essentially do whatever it wants.)
The deliberations were not without their discord; the overall agreement seemed on the verge of being derailed Tuesday morning by tension over echoes of the same student learning issue on which the 2007 negotiations ran aground. But for a combination of reasons, some structural and some atmospheric, the members of the panel worked through their differences and did what they are meant to do in such negotiations: compromise.
"This is the way negotiated rule making is supposed to work -- it's to everybody's benefit to get the whole thing done, even though nobody gets everything they want," said Terry W. Hartle, who was representing the American Council on Education, where he is senior vice president for government and public affairs, at the negotiating table. (In the case of the regulatory proposals embraced Tuesday, the Education Department gets colleges and accreditors agreeing to increased federal regulation of their relationships with each other, and higher education wins some limits on how much the government can regulate in certain areas, notably in dictating student learning outcomes.)
Federal agencies establish negotiated rule making committees so they can solicit the advice of affected parties to draft regulations to carry out federal laws. And that right there represents the first major difference between the accreditation panel the Education Department convened in 2007 and the current one: Congress had not made any changes in federal law governing accreditation leading up to the last negotiating session (it was still working on the Higher Education Act renewal at the time), prompting some higher education leaders to question whether the government had a legal basis for even considering new rules on the subject.
Because they suspected that department officials at the time had a political motivation for wanting to impose new rules -- to make changes in accreditation to help carry out the accountability agenda of then-Education Secretary Margaret Spellings' Commission on the Future of Higher Education -- many higher education officials came into the 2007 deliberations deeply suspicious and geared up for a fight. And they generally got it, in the form of an aggressive stance on substantive issues on the part of the department's own negotiators and some hardball tactics that jacked the level of mutual mistrust up to Code Orange, if not Red.
The other environmental factor that influenced the 2007 negotiations was the fact that the Education Department's attempt to regulate on accreditation before passage of the Higher Education Act had angered leading members of Congress, who had quietly (and not so quietly) assured college leaders that they wouldn't let the department get too far before stepping in -- which they ultimately did, barring Spellings and her department from issuing rules until after the higher ed law was renewed. The knowledge that they had Congressional leaders in their corner clearly emboldened higher education lobbyists and leaders to stand up to Spellings and her team.
The picture this time around was different from the very start. First of all, the Education Department (starting late last year under President Bush and continuing in 2009 under President Obama) had a clear obligation to conduct negotiated rule making on various aspects of the Higher Education Opportunity Act, and it appointed five separate teams (two on loans, one on grants, and one "general" panel) to do so. The fact that "there was a clear legal basis for what the department was doing, and no hint that a political agenda was driving this," made for a very different (and more cooperative) tone from the start of this winter's accreditation rule making, said Hartle of the American Council on Education.
Once the negotiations began, the Education Department and its participants on the panel, led by Kay Gilcher, a senior policy analyst at the agency, were widely seen by the other committee members as negotiating in good faith and proposing language that was generally consistent with the changes mandated by the law. "I'm very impressed with the positive tone that you've taken in this negotiation," Belle S. Wheelan, who as head of the Southern Association of Colleges and Schools is not generally viewed as touchy-feely, told Gilcher on Tuesday. "I've been involved in other negotiated rule makings, and in this one, the rapport has been absolutely wonderful."
"It's been a pleasure working with all of you -- most of the time," Gilcher said with a smile after the negotiators unanimously endorsed the entire package of 16 proposals.
But while the negotiations had a productive and cooperative ending, there were several points along the way when they seemed ready to collapse. The most serious came late Monday into early Tuesday, when negotiators for private colleges complained that department officials seemed to be using a change requiring accreditors to consistently monitor and reevaluate colleges as a backdoor way to revisit the student success terrain that was so disputed in 2007, and so carefully negotiated in last year's Higher Education Act renewal.
The language pushed by the department appeared (to the National Association of Independent Colleges and Universities) to compel accreditors, between regular reviews, to periodically collect "key data and performance indicators" in several areas, including "student success," and also appeared to open the door to letting accreditors decide what those indicators might be, rather than leaving that decision up to institutions as Congress mandated in the Higher Education Act.
Not all of the accreditors or college officials on the negotiating team shared NAICU's dim view of the department's approach, and department officials made clear that they were willing to go only so far in compromising. Working together, the "non-federal" negotiators -- all members of the panel except for those from the government -- crafted several attempts at alternative language through the evening Monday and the early part of Tuesday, ending with one that incorporated language from the Higher Education Act renewal that left it to individual colleges to develop their own standards to show their success in student achievement.
They presented their last attempt to Gilcher over lunch on Tuesday, and when the group reconvened after a break, Gilcher weighed in. "I want you to remember that we've come a long way on this particular provision," she said. "We are willing to accept this final change, but it's a very important issue to us, and it would be an important one in terms of achieving consensus," she added, leaving negotiators with the clear impression that the department had ceded some ground on this issue in the distinct hope that it would lead to consensus.
And two hours later, after a bit of jockeying on other proposals, it did, leading to hugs, shared congratulations and an ironic cry of "Praise the Lord" from Wheelan.