'Last Bite at the Apple' on Accreditation?

June 5, 2008

A year after Education Secretary Margaret Spellings abandoned plans to propose new federal rules governing higher education accreditation, under heavy pressure from members of Congress, the Education Department is reportedly contemplating issuing such regulations when legislation to renew the Higher Education Act becomes law. That possibility is being met with astonishment by college leaders and many on Capitol Hill, who describe it as both practically difficult and politically foolhardy.

Last spring, in the face of strong opposition by several key U.S. senators, who (cheered by college leaders) argued that the department was overstepping its bounds, Spellings grudgingly agreed not to publish regulations to toughen the government's oversight of the activities of accrediting agencies, the product of contested negotiations among accreditors, college administrators and U.S. officials. In a June 2007 letter to Sen. Lamar Alexander, who had warned the department not to release new regulations until after Congress finished its work on legislation to renew the Higher Education Act, Spellings said she would not publish such rules "at this time as we work to finalize statutory language around accreditation issues."

Congress went on, in a measure allocating funds for the Education Department for 2008, to include a provision that specifically barred the department from promulgating rules on accreditation.

Ever since, Spellings and her top aides, including Sara Martinez Tucker, the under secretary for education who last week took on the added responsibility for federal higher education policy, have made clear in various venues (including interviews with Inside Higher Ed and sharply worded op-eds in publications like Politico) their frustration at having their hands tied. Department officials had viewed changes in the accreditation system as a major tool for bringing about some of the changes in higher education called for in Spellings's Commission on the Future of Higher Education, including prodding them to more aggressively measure and improve the quality of student learning. By barring the department from imposing the accreditation regulations, Spellings wrote in her fiery op-ed, Congress was "digging a moat around the ‘ivory tower’ instead of knocking down the very barriers that block access to an affordable postsecondary education and to information that can guide a student’s decision-making process.”

“Would the American people let powerful lobbying forces persuade Congress to handcuff the U.S. Securities and Exchange Commission from carrying out its responsibility for ensuring that consumers have the data they need to make informed decisions about their investments, whether saving for a home, their retirement or their children’s education? Of course not! Then why has Congress been persuaded to block the U.S. Department of Education from overseeing the quality of institutions of higher education by special interest forces determined to keep the accreditation process insular, clubby and accountable to no one but themselves?”

With the clock ticking on the Bush administration's time in office, many higher education officials have wondered whether (and in some cases feared that) Spellings and her aides might make a final push to institute policies that might instigate change in higher education -- to take "one more bite at the apple," as one Congressional aide put it.

So many college lobbyists were understandably gripped when word circulated in recent days that when Congress finally finishes its work on the Higher Education Act legislation (most have stopped saying "if," although after five full years, passage of the law still seems like it may never happen), the department would formally propose (possibly as a place holder for new rules that the Higher Education Act would mandate) the accreditation regulations that Spellings abandoned a year ago.

A spokeswoman for the department, Samara Yudof, said this week that department officials "did not have any plans at this time" to reintroduce the accreditation rules that emerged from the 2007 negotiated rule making sessions. "We continue to work closely with Congress and at such time a bill is signed in to law, we would begin a new [negotiated rule making] process," Yudof said. Asked specifically if the proposed rules from last year are "dead, or is there a chance that they will be implemented (perhaps as a placeholder?) once the Higher Education Act legislation is signed by the president?" Yudof said department officials were unwilling to speculate about hypothetical situations.

College lobbyists and some Congressional aides said they were stunned that department officials would consider such a tack. Some said they suspected that the department might be on at least defensible legal ground in putting forward such regulations, since Spellings had committed only to withholding such regulations until after Congress renewed the Higher Education Act, which aides to members of the Senate and the House are working feverishly to finish with the stated goal of polishing it off by the July 4 recess. And while the Higher Education Act measure currently has language that would appear to restrict the department from issuing regulations that deal with accreditors' oversight of colleges' student learning outcomes, department officials might be able to argue, some college officials speculate, that the withheld regulations were drafted under existing Higher Education Act language, and therefore fall outside that restriction.

But even if there might be a passable legal justification for issuing the accreditation regulations, most higher education lobbyists and Congressional aides say, the department might be on shaky political ground in coming forward at this point with rules that have been widely opposed by many on Capitol Hill.

"If it's true, they're nuts," said Victor Klatt, a former top aide to Rep. Howard P (Buck) McKeon (R-Calif.) who has now returned to work on education issues at Van Scoyoc Associates, a Washington lobbying firm. "It's not that we don't have a little bit of an understanding of where they're coming from [in seeking to prod accreditors and colleges], but they have to know it's not feasible at this time to do it. It makes no sense to do it at the end of an administration when either Congress will overrule them or the incoming administration will overrule them."

Klatt and others speculated that introducing the regulations now could infuriate key legislators, notably Sen. Lamar Alexander (R-Tenn.), on whom the department may depend to achieve important goals in its final months, including making desired changes in the No Child Left Behind law.

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