Technically, not a lot happened Wednesday as the U.S. Education Department kicked off the process by which it will consider changing federal rules that govern higher education accreditation. In fact, the only real agenda item that got done was, well, approving an agenda for the three-day meeting -- and even that had an asterisk by it (more on that later). But despite the relative lack of concrete action, the opening day of the much anticipated (and in some quarters dreaded) process of "negotiated rule making," as it is called, offered a preview of the battles that are to come.
Two issues were particularly contentious: Accreditors pushed back (albeit somewhat gently) against the Education Department's aggressive campaign to prod them to judge how well individual colleges are educating their students by comparing them to other similar institutions, for instance, and officials of for-profit and nonprofit colleges skirmished over whether the department should consider rules that might dictate accreditors' or colleges' policies on what academic credits they accept from transfer students.
At the core, though, the primary tension underlying those debates and the entire afternoon was the same one some college officials (and members of Congress) have been raising ever since the department announced last fall that it planned to review federal rules on accreditation: whether the Education Department has the legal authority to seek changes in those rules to try to accomplish many of the recommendations of the Secretary of Education's Commission on the Future of Higher Education.
"As it stands now, I would have trouble accepting this on the agenda, because I think it goes way beyond what the law says we should be all about," said Steven D. Crow, head of the Higher Learning Commission of the North Central Association of Colleges and Schools. He was arguing against having the rule making committee take up the issue of having accreditors hold colleges to minimum levels of performance on what their students learn. Crow opposed putting transfer of credit policies on the agenda for similar reasons, calling it a "problem seeking a legislative rather than a regulatory solution."
Education Department officials asserted repeatedly that they had a solid legal basis for all of the regulatory changes -- most of which are publicly vague at this point -- that they are contemplating. "We are operating within the constraints of the current law; this is not about using this process to change the law," said Vickie L. Schray, the department's point person on accreditation and its lead negotiator at this week's session.
And while Schray acknowledged that the education secretary can ultimately "write what she wants to write in the regulations," as Thomas L. Corts, interim chancellor of the Alabama College System, put it, she insisted that the rule making process aims to "provide a forum for a very open and collaborative process.... The department is very interested in hearing from the members of this committee on all of these issues," Schray said.
Some quick background on negotiated rule making:
Typically, federal agencies undertake such processes to carry out changes made by recent passage of a law. In this case, the Education Department was required to enter into negotiated rule making to figure out how to carry out changes in student grant and loan programs made in the Higher Education Reconciliation Act that became law a year ago.
Although that law did not enact any changes in accreditation, Education Department officials decided to stage a separate rule making process on accreditation issues, because the rules governing higher education's quality assurance process had been overtaken, they said, by major changes in the industry since they were last reviewed.
Department officials also said they would use the rule making process to consider recommendations proposed by the Spellings Commission, which took a dim view of the effectiveness of accrediting agencies. Although department officials insist that they are on solid legal ground in reviewing the accreditation rules, members of Congress have vowed to watch closely to make sure the executive branch does not try to use regulatory changes to do things that would be more appropriately done through legislation, potentially trampling on Congressional prerogative.
In this rule making process, like others, the department brings together a collection of officials to consider an agenda federal officials have proposed. Over several meetings over a several week period, the group will aim to reach consensus about how federal rules might be changed.
Only proposals on which every negotiator agrees get forwarded to the education secretary for possible action, which means that any individual negotiator can sink any particular proposal. But if the negotiators fail to reach agreement, the Education Department has the latitude to propose its own rules. (The education secretary can also change regulatory language that the negotiators have agreed on, with a "written explanation" for doing so.) That dynamic has the tendency to put pressure on negotiators -- fearful of what the department might do if left to its own devices -- to compromise on a proposal that they can live with.
That dynamic was clearly in play on Wednesday, as accrediting officials who were clearly uncomfortable with several of the department's proposed agenda items threatened to withhold their support for keeping those items on the committee's plate.
That happened fleetingly on the transfer of credit issue, as some regional accrediting officials questioned whether the problem of rejected academic credits is a significant one, and whether the department has a legal basis for exploring it. Supporters of for-profit colleges, which most frequently complain that their students' credits are turned down by officials at regionally accredited colleges, argued that transfer of credit falls under federal rules governing institutions' admissions policies, and their view won the day. The transfer of credit issue stayed on the agenda for the rest of the meeting.
The closest the committee members came to fighting to keep something off the committee's agenda was the department's tentative proposal on "institutional accountability." The "issue paper" describing it said that the department is
"considering requiring accrediting agencies to group the institutions they accredit on the basis of criteria defined by the accrediting agency including, for example, type of students served, the overall mission, size and setting. The accrediting agency and institutions would agree to a core set of student achievement measures, both quantitative and qualitative, focused on those things the institutions have in common, and also on an acceptable level of performance for certain of those measures."
Crow said he had "strong concerns and strong reservations" about that idea, which he said he believed would be "going beyond regulating according to existing law." A department lawyer advising the panel said that "we do have authority to regulate in the area," and Schray said she believed it was important for accreditors not only to ensure that the colleges they oversee are measuring their success in educating students, but also to hold them accountable for meeting an acceptable level of success. "How do you know when your institutions or programs actually are meeting your benchmark for quality? How do you define quality?" she said.
With Crow threatening to withhold his support for putting the learning outcomes issue on the agenda, Judith S. Eaton, president of the Council for Higher Education Accreditation, suggested a compromise in which the group would revise how it described the agenda item and a smaller group of officials would rewrite the issue paper that described it.
Corts, the Alabama official who was a longtime president of Samford University, then made his point about the education secretary being able to regulate virtually at will. Given that reality, "maybe we're smart" to leave the controversial proposal on the agenda, he said, "so we can let you know what we like about it and what we don't like about it."
Crow sought affirmation from department officials that voting to leave the issue on the agenda meant only that the committee was agreeing to discuss it further, rather than being a commitment to regulate in that area. "I don't want someone to come back and say, 'You agreed to develop regulations about this.'"
Schray sought to reassure him (a bit), saying that having an issue on the agenda "does not necessarily mean that the department will ultimately regulate on each and every one of these. We may determine it's not in our best interests to regulate."
With that, Crow joined the others in leaving the learning outcomes issue on the agenda for the meeting. But the issue is likely to be among the most contentious when the committee actually gets around to debating what the department might do in this area, which could happen as early as today.