Nov. 8, 2007

Untangling Quality Assurance in Higher Education

On September 24, a perceptive federal judge in California pointed out the obvious and cleared a lot of thick overgrowth from the landscape of postsecondary oversight in the United States. In brief, Judge Margaret Morrow concluded that a state cannot treat regional accreditors differently from each other in order to favor colleges based in the state over those based elsewhere.

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Judge Morrow’s preliminary opinion in Daghlian v. DeVry, with which I agree for the most part, concludes that differences among regional accreditors are insufficient to sustain California’s contention that the state can in effect exempt locally based colleges from state oversight because they are accredited by the Western Association of Schools and Colleges (WASC), while requiring colleges based elsewhere to get state approval to operate because they are accredited by a different regional accreditor.

This decision may cut part of the knot that has plagued proposed revisions of California postsecondary approval laws. WASC has been actively opposing some of the changes, even though they don’t affect WASC schools, apparently on a camel’s nose theory: any hint of state interference in collegiate self-governance must be sprayed with hot and cold running lobbyists. Ultimately, WASC is lobbying the tide not to come in.

The DeVry case may therefore serve to drag into the open one of the less-well-understood aspects of education law and policy. One of the commonest fallacies in higher education, and one which is amazingly ill-understood even by professional educators, is that colleges get to offer degrees because their accreditor allows them to. Not so. Colleges, including private ones, get to offer degrees because state governments give them the authority to do so.

Let me say that again for maximum clarity: Private colleges in the United States have no inherent right to issue degrees. That right comes to them through a grant of authority from a state government. With the exception of Congress and Indian tribes, I know of no other source for degree authority in the United States. The authority may come as a charter, a constitutional provision or a statute, but it must have an origin in state law. No accreditor can give that authority and no accreditor can take it away. Nor can the federal government do either, except for its own colleges.

The federal government recognizes this area of state supremacy in its regulations governing accreditors. A federally recognized accreditor is prohibited by federal rules from accrediting a college unless that college has appropriate state authority to issue degrees prior to accreditation. That is why one current California proposal to allow schools accredited by the Western Association to operate without a separate grant of state authority cannot work. This chicken chasing its own egg is a turkey. Judge Morrow’s preliminary decision serves to add top-quality stuffing to this defunct bureaucratic poultry.

California (and every other state) must formally give authority to issue degrees to every college based in the state that wants to grant degrees. Instead, it seems simpler for states to just punt the function of postsecondary approval to the local accreditor. Sorry, it can’t be done that way. Likewise, accreditors have no ability to grant degree authority to a foreign school — only the government of the nation, or its properly designated authority, can do that.

In theory, every state diligently determines which colleges can issue degrees and, ideally, exercises at least some baseline quality control. In practice, this does not always happen, and in California today, it can’t happen, for there is no state agency in existence to issue the approval. The consequences are significant.

Right now as I write, it is impossible to start a new degree-granting institution in California, because any such institution requires state approval. It requires state approval not only to get accredited, but to have any legal authority to issue degrees. And it can’t get this approval. On these grounds alone, California is flirting with a Commerce Clause problem: The legislature has de facto protected all existing California colleges from competition. Florida tried this a few years ago and was squashed in federal court.

Also, any California institution that comes up for renewal by its current accreditor has to show that it has current state approval to issue degrees. Some won’t be able to. Even if all parties accepted the convenient but illegal fiction that WASC can stand in for the state, Judge Morrow has killed any attempt by the state to claim that WASC accreditation works as a stopgap but that accreditation by the North Central Association’s Higher Learning Commission doesn’t.

With luck, one side effect of the DeVry case will be to hose out once and for all some of the fictions that states, colleges and accreditors have erected around the curiously opaque process of college and program approval. When the false fronts have collapsed — the collegial slurry panned for its limited nuggets and the agencies of various states (e.g., loopholed Alabama, grandfathered New Mexico, AWOL Hawaii and disinterested Idaho) subjected to the need to perform — we can hope for useful changes.

What should emerge from this helpful legal reality check on the role of states and accreditors? First, absolute clarity that each state is legally responsible for the private colleges based there. That includes program quality. No more hibernating under the accreditorial dust storm. Accreditors are owned by their dues-paying member schools and should never be expected to serve as enforcement arms of state or federal governments. They are arms of the colleges, dedicated to advancing the interests of their member schools. There is nothing wrong with that, but let’s give it the right name: a club of schools with similar interests and approaches, not an enforcement body (certainly not of federal standards), and not remotely capable of handling student complaints.

States that have perched primly in the back pews, hands clasped and eyes downcast while the U.S. Department of Education brutalizes accreditors into doing oversight work for which they are unsuited, unfunded and unprepared, need to stop shirking their duties and hoping that the feds will do it for them. Who on earth, looking with unclouded eyes at the federal government, would entrust it with quality control?

I have argued for some time that the Department of Education should make its own decisions about financial aid eligibility based on its own standards, properly enforced by itself. That is a different and appropriate role: You want our money? Here are our rules.

Right now, the Department of Education is incompetent, in the technical sense, to perform college oversight. They can deal, sort of, with the most obvious cases, but they have no real structure in place for meaningful Title IV eligibility oversight. Regional accreditors need not fear losing their recognition, since the feds have no replacement process in place. Therefore regional accreditors and the larger national and specialized accreditors can ignore most federal noises.

Finally, the federal government has no business assuming a duty that constitutionally belongs to the states. The federal government would love to move in on territory that has belonged to the states for over 200 years. It is trying to persuade accreditors to do the dirty work. The states should not let this happen. If Judge Morrow’s case is nominally about the comparability of accreditors, its real impact may be on states that have taken their responsibilities lightly for too long.

Alan Contreras works for the State of Oregon; his views do not necessarily reflect those of the state. His blog is The Oregon Review.

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Comments

What makes this legal opinion so important is that the special privileges enjoyed by the regional accrediting guilds and their members has come under juridical scrutiny.

With their special exemptions, WASC is nothing more than a state sponsored monopoly that confers special benefits to its members while depriving others of those same benefits.

Before WWII, California had no regional accrediting agency — and the state found out the hard way what that meant, when the state’s returning GIs were unable to transfer their armed services college credits according to a plan set up by the (then) five regionals and the Army.

Special privileges and benefits for the accrediting guild in California, and its members, must end — or be extended to those covered by national accreditation.

The recent legal opinion points in this direction — let us just hope that California’s legislators wake up to the massive quality control problem in higher education that they are heir to.

Glen S. McGhee, Dir., at Florida Higher Education Accountability Project, at 9:10 am EST on November 8, 2007

Very interesting. Having gone through accreditation (not to mention departmental reviews), it seems odd to think of WASC, etc., as essentially self-policing systems. The accreditors are pushing agendas that come from political sources, not from educational ones, effectively serving as the enforcement arms of the federal government (though the author says the feds aren’t capable of collegiate oversight, they do an awful lot of it already under civil rights and financial guises).

I honestly don’t know how I feel about state administrators and legislatures taking a more active role....

Jonathan Dresner, at 1:20 pm EST on November 8, 2007

ever-widening accountability gap

We are indebted to Mr. Contreras for his vivid and lively description of the accreditation issues facing our nation, and in particular, for the attention he has drawn to what can be called the “accountability gap” in American higher education.

Much can be learned from studying his column, including his depiction of the QA/QC problems we continue to be in denial over.

I just wonder if some residual denial doesn’t still reside in the exemption he gives California’s public colleges – an exemption that was grandfathered in, and continues to bestow discriminatory benefits to those institutions.

The for-profit regulatory apparatus that is being debated in California functions as a de facto complaint bureau, whereas the monopoly of public colleges is protected from such interference by unhappy students and consumers by WASC. WASC’s primary function, in terms of its role as a guild, is to protect its members from just these kinds of grievances, which would otherwise subject the institutions to unwanted scrutiny and accountability.

As I understand it, both public and private postsecondary institutions that issue “degrees” can only do so with state sanction, whether in the form of a charter or grant. But this restriction has not been without its problems.

In the early 1920s, according to Nevin, a group of men chartered a college in a Southern state, convened its first meeting, and proceeded to confer degrees upon themselves, and ended by declaring their college disbanded. Attempts to further restrict diploma mills and degree salesmen have not been entirely successful, either.

As Contreras makes plain, the states have ultimate quality control responsibility for the institutions that they charter, NOT the federal government.

In Florida during the 1960s, for example, *both* the state higher education board and the Southern Association (SACS) conducted institutional QA/QC reviews. Eventually, however, the accreditors were able to push aside the states by asserting their greater institutional expertise and legitimacy.

However, a comparison study of the dual-accreditation processes from that period determined that the state board and the Southern Association *agreed* in one-third of the recommendations, *disagreed* in one-third of the recommendations, and neither agreed or disagreed in the last third of recommendations (McLendon, FSU, 1968).

There are, for that matter, significant QA/QC lapses regarding dual enrollment, the increasingly popular college level courses given at local high schools, but awarded credit by nearby community colleges. Similar problems are currently being addressed in a rear-guard action by the College Board regarding their Advanced Placement classes.

But in the case of dual enrollment, *both* the accreditors and the colleges have largely ceded oversight to public school administrators, resulting in an ever expanding gap into which thousands and thousands of unsuspecting high school students are falling. In Florida, the state has made a weak initiative to bring these college-courses back under control, but the effort has clearly failed since legislators lack the stomach to go head-to-head with the district schools over this issue.

All this is only the tip of the iceberg of the ever widening accountability gap problem.

Glen S. McGhee, Dir., at Florida Higher Education Accountability Project, at 8:10 pm EST on November 8, 2007

Now, About This Quality Stuff

Several years ago – after having spent twelve years working in the area of continuous quality improvement of manufacturing, assembly, and service delivery organizations and having absorbed everything W. Edwards Deming (and just about everyone else) had to say about the subject (although easily resisting the temptation to be one of his “disciples”) – I attended two Association to Advance Collegiate Schools of Business (AACSB) conferences devoted to continuous quality improvement. What I learned was that AACSB did not have a clue about the principles and practice of continuous improvement. Worse than that, many of their practices flew in the face of the principles of effective continuous quality improvement. It was all buzz-words and organizational nonsense.

Frankly, I am not one to criticize someone who writes ...

“States that have perched primly in the back pews, hands clasped and eyes downcast while the U.S. Department of Education brutalizes accreditors into doing oversight work for which they are unsuited, unfunded and unprepared, need to stop shirking their duties and hoping that the feds will do it for them. Who on earth, looking with unclouded eyes at the federal government, would entrust it with quality control?”

That’s quite wonderful.

Nevertheless, even a casual reading of this Alan Contreras essay reveals that his use of “quality control” is essentially without meaning. That does not diminish the force of this article; it’s just that educators should exercise a self-imposed moratorium on the use of the vocabulary of quality control and continuous quality improvement until such time as they’re willing to spend a year or so studying the principles.

Now, if you really want to get me off on a rant, just say something positive about six-sigma quality. What a joke! ... not that anyone’s laughing.

Frizbane Manley, at 9:00 am EST on November 12, 2007