Fighting the Last War (and the Next One?)

In unveiling agenda for negotiating rules to carry out the Higher Education Act renewal, Education Dept. prepares to renew key debates from contentious 2007 sessions.
January 2, 2009

The bill that Congress passed last summer to extend the Higher Education Act of 1965 dodged some contentious issues, particularly in accreditation and accountability. But even as the Bush administration prepares to leave office, the U.S. Education Department is trying to tee up some of those issues for the new administration to revisit.

On Wednesday, in the news dead zone of New Year's eve, the Education Department published in the Federal Register a proposed structure and agenda for its obligatory process of crafting regulations to carry out the Higher Education Opportunity Act, which renewed the Higher Education Act. If you don't remember from civics class, when a new law passes, the federal regulatory agency primarily responsible for enforcing the law is charged with drafting rules to implement it and soliciting public comment about whether to adopt or modify those rules.

In some cases, as is generally required for the Education Department regarding changes in the Higher Education Act, the agency engages in a process of "negotiated rule making" to solicit advice from potentially affected parties and stake holders. The department engaged in a largely ill-fated process in 2007 to carry out the budget reconciliation law that Congress passed in February 2006. Three of the four rule making committees ended in deadlock, and a panel that considered possible regulations to govern the higher education accreditation system was particularly contentious, in large part because it appeared as if Education Department officials were seeking to use the process to bring about changes recommended not by Congress, but by the department's own Commission on the Future of Higher Education.

The negotiations engendered such controversy that Congress stepped in to specifically bar Education Secretary Margaret Spellings from issuing regulations on accreditation until after lawmakers finished their work on the Higher Education Act renewal. And the Higher Education Act renewal itself specifically prohibited the Education Department from promulgating any regulations related to accreditors' guidelines for student learning outcomes, which was the most disputed aspect of the 2007 negotiations.

In the framework it released Wednesday for a new round of negotiated rule making, the Education Department proposes five sets of negotiations: two related to student loans, one on grant programs, a catchall for other issues -- and one on accreditation. The fact that the department has decided to conduct negotiations on accreditation is not, in and of itself, shocking; Congress did make several key changes related to accreditation in the Higher Education Act extension, including scuttling and reformulating the federal commission that advises the Education Department about accreditation and requiring accreditors to ensure that the colleges they accredit make public their policies on transfer of credit.

What is surprising -- and may be controversial -- is what the department includes (and leaves out) of its recommendations for what the accreditation rule making panel should explore. As instructed by Congress, the department does not contemplate any explicit discussion of student learning outcomes. But it also omits any discussion of the structure and workings of the National Advisory Committee on Institutional Quality and Integrity, whose membership the Higher Education Act renewal realigns and whose standards for judging accreditors have been hotly debated in the last two years, amid perceptions that the Education Department was using the panel to try to pressure colleges to change their approach to measuring student learning.

The department's plan for 2009 rule making also proposes that the accreditation committee take up several issues (such as how accreditors should monitor colleges during the 10-year period between full reviews, and how they should assess "substantive changes" that institutions go through) that were debated but not resolved by the 2007 rule making process, even though they were not dealt with in the Higher Education Act renewal that is supposed to be the focus of the new round of negotiations.

And, perhaps most controversially, the department also proposes that the new negotiating panel once again review the issues surrounding colleges policies' on transfer of academic credit, which remain a source of major friction, particularly between for-profit and traditional colleges. For-profit colleges, many of which are nationally rather than regionally accredited, argue that too many colleges discriminate by automatically rejecting academic credits earned at colleges with national accreditation. They pushed hard for changes in the Higher Education Act that would have barred colleges from having policies that reject a student's credits simply on the basis of the accreditation status of the "sending" institution, but Congress went only so far as to demand that accreditors require colleges to reveal their policies.

By including transfer of credit on the list of issues for the accreditation negotiators to consider -- even though the requirement on publicizing policies is straightforward and probably does not require significant interpretation by a rule making committee -- some college officials say the department is seeking to use the negotiating process to reopen an issue that they believed had been resolved.

"The requirement is that [accreditors] check to see that an institution is disclosing this information, and I don't see what more there would be to regulate about that," said Susan K. Hattan, a senior consultant who handles accreditation issues for the National Association of Independent Colleges and Universities. "Negotiated rule making should be seen for what it is supposed to be" -- a way to clarify questions raised by a new law -- "and not as an opportunity to expand policy issues that have been settled."

Of course, on that and other issues, the proposal put forward by the Education Department this week is just that -- a recommendation to the incoming Obama administration. The notice published Wednesday invites comments on the proposed negotiations by January 23 and envisions the panels' work beginning in February, which will leave decisions on how the negotiations unfold squarely in the hands of Education Secretary-designate Arne Duncan (assuming he is confirmed by Congress) and whoever he puts in charge of higher education policy.


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