For months, ever since the U.S. Education Department began an aggressive push to change federal rules governing accreditation, higher education lobbyists have been urging members of Congress to rein the department in. Using the federal regulatory process to force accreditors to set minimum levels of acceptable performance by institutions on measures of how much their students learn, and to ensure that the institutions they oversee do not discriminate in their transfer policies against academic credits of students from nationally accredited institutions, exceeds the executive branch's authority and tramples on Congress's, college groups have argued.
Although lawmakers and Congressional aides in both parties sent Education Secretary Margaret Spellings an early warning last fall not to overstep her bounds in the process known as "negotiated rule making," they have remained publicly silent on the regulatory process since then. But that silence was broken on the Senate floor late last week, when Sen. Lamar Alexander (R-Tenn.) said he would introduce legislation that would prevent Spellings and the department from issuing final rules on accreditation until after Congress passes a bill to renew the Higher Education Act.
"The department is proposing to restrict autonomy, choice, and competition," Alexander said in his Senate speech. "Such changes are so fundamental that only Congress should consider them. For that reason, if necessary, I will offer an amendment to the Higher Education Act to prohibit the department from issuing any final regulations on these issues until Congress acts. Congress needs to legislate first. Then the department can regulate."
It's hard to imagine a member of Congress better positioned than Alexander to weigh in on the appropriate roles of the executive and legislative branches on higher education policy: He was U.S. education secretary during the administration of the first President Bush and a one-time university president, and is now the senior Republican on the Senate Health, Education, Labor and Pensions' Subcommittee on Children and Families.
His statement comes at crunch time, as the Education Department prepares this Friday to convene for a final day the rule making committee that it formed last fall to develop proposed regulations governing accreditation, higher education's self-regulating quality control process.
Alexander's statement acknowledges the importance of the accreditation process and the federal government's clear right to ensure that accreditation is effectively ensuring the quality of the nation's colleges and universities, a central tenet of the report last year by the Secretary of Education's Commission on the Future of Higher Education.
"The commission got the part about accountability right," Alexander said. "We in Congress have a duty to make certain that the billions we allocate to higher education are spent wisely." But the commission "headed in the wrong direction when it proposed how to achieve accountability," the senator said. "In its report, and in the negotiated rule making process, the Department of Education proposed a complex system of accountability to tell colleges how to accept transfer students, how to measure what students are learning, and how colleges should accredit themselves."
Staff members in the senator's office said that Alexander, despite concerns about the initially aggressive direction the department had laid out in the accreditation rule making process, had held his tongue in recent months in the hope that department officials would back down and take a more reasoned course.
But the outcome of last month's last full meeting of the accreditation panel -- in which the department's negotiators held the line on proposals related to student learning outcomes and transfer of credit, and a dissenting negotiator appeared to be pressured to resign from the rule making panel -- persuaded Alexander to speak now, according to his office.
"He's seeing a desire to make a significant change of direction that isn't really warranted," a staff member in his office said. "Given where it seems that they're going, we're prepared to halt this if it's necessary. The message is, if you're going to regulate on things that need to be statutorily written, then we need to write it." Aides in Alexander's office specifically said that they do not believe the department has legal authority to regulate accreditors' and colleges' policies on transfer of academic credit, an argument that several accrediting officials and groups like the American Association of Collegiate Registrars and Admissions Officers have made.
Alexander's statement seeks to make it clear that he does not think everything is rosy in higher education, or that change is not necessary. The senator mentions rising tuitions, inefficiency as seen in overly light teaching loads and too-short semesters, and political one-sidedness in the classroom, among others. He applauds Spellings for proposing a coordinated look at those and other problems, including the need for the failures of the student financial aid system.
But her answer to those problems is flawed, Alexander said -- "higher education needs less, not more regulation from Washington, D.C." He proposes instead a three-tiered approach in which the secretary would first "convene leaders in higher education -- especially those who are leading the way with improved methods of accountability and assessment -- and let them know in clear terms that if colleges and universities do not accept more responsibility for assessment and accountability, the federal government will do it for them."
The second step, he said, would be to establish an "award for accountability in higher education like the Baldrige award for quality in American business," and the third would be to make "research and development grants to states, institutions, accreditors and assessment researchers to develop new and better appropriate measures of accountability."
"This combination of jawboning, creating a Baldrige-type prized for accountability and research and development for better assessment techniques will in, my judgment, do a better and more comprehensive job of encouraging accountability in higher education than anything Federal regulation can do," adding, "If I am wrong, then we in Congress and the U.S. Department of Education can step in and take more aggressive steps."
A spokeswoman for the Education Department, Samara Yudof, did not specifically respond to Alexander's warning to Spellings in an e-mail message Friday, but she defended the process the department has undertaken to consider changes in accreditation rules.
"The department has initiated this very important and public dialogue with representatives from all sectors of the higher education and accreditation community," Yudof said. "We have extended the invitation to the community to provide input and assistance to the Department in developing regulations that respect institutional mission and autonomy while at the same time protecting the public interest. The students, families and taxpayers who spend billions of dollars annually deserve our attention and leadership in assuring quality for the hard earned dollars they spend for college."
Charles Miller, who headed the Spellings Commission that came in for implicit criticism in Alexander's statement, also chose not to respond directly to the prominent Republican senator. But in an e-mail message Friday about comments made about accreditation last week by the State Higher Education Executive Officers, Miller defended the department's rule making process.
"Up to now, the steps taken by the Department of Education under the rule making process allow an inclusive and broad based public discussion of the "material issues," potentially leading to a consensus on the appropriate rules," Miller wrote. "Following that constructive process, which is set out by statute, there will be a period of public comment during which an even broader public can express its interests and concerns. Then, and only then, and after further consultation with various parties, will the Secretary make decisions regarding rules on accreditation."
Calls for higher education to fix itself, as Alexander is largely urging, have gone unheeded for too long, Miller suggested. "The question at hand is 'how many years ... decades ... centuries ... should we wait for those who should take responsible action to be responsible and take action? It is clear that a system of self regulation such as imposed by accreditation needs oversight and evaluation, especially when it fails to act responsibly on its own."
Alexander's statement was welcomed, though, by college leaders. Terry W. Hartle, senior vice president for government and public affairs at the American Council on Education, said that "from our perspective, having an influential, knowledgeable U.S senator raise concerns only reinforces our view that the department needs to proceed cautiously."