If federal rule making negotiations  were reported like baseball games, in the sports pages of the local newspaper -- and let's thank our lucky stars that they're not -- the outcome of Wednesday's vote on transfer of credit policies during an Education Department negotiating session on accreditation would look, technically, like a loss for national accrediting agencies and the career colleges they accredit.
Because opposition by any single negotiator effectively means that a rule making panel has not endorsed a particular proposal, Judith S. Eaton's "no" vote on proposed regulatory language that would have required accreditors to ensure that the institutions they oversee do not discriminate in their transfer policies  against academic credits of students from nationally (rather than regionally) accredited institutions meant that the committee did not formally endorse it.
But despite that apparent defeat, some officials from national accrediting groups and for-profit and career colleges were more than a little pleased by the turn of events. The for-profit sector of higher education (which is generally accredited by national associations) has pushed hard for several years, both for legislation in Congress  and regulatory change through the Education Department, for policies that would ensure that regionally accredited nonprofit colleges cannot have policies that more or less automatically reject the academic credits of students who transfer from nationally accredited institutions.
The fact that Eaton, president of the Council for Higher Education Accreditation, which coordinates accreditation nationally and recognizes 60 accrediting agencies, was the lone negotiator to openly express her opposition to the proposal, said Harris N. Miller, president of the Career College Association, represents the most open acknowledgment to date that “representatives of nonprofit colleges and regional accreditors have agreed in principle that the source of accreditation should not be solely determinative of whether a student’s hard-earned credits should be recognized.”
Miller said he believed Wednesday’s vote would help for-profit colleges’ efforts to persuade Congress and the Education Department to push for changes in credit-transfer policies, given that many of the state college and accrediting officials around the table seemed willing to support a proposal that acknowledged the problem and required accreditors to do something about it.
“It would be hard for people to go up to the Hill now to say they don’t think there’s a problem and they don’t think the standards should be fixed,” Miller said.
Like many things about this accreditation rule making process, though, the situation regarding transfer of credit is not quite so simple. Over lunch on Wednesday, most of the members of the negotiating team (except for those representing the Education Department) met behind closed doors to try to nail down agreement on several key issues, including transfer of credit. As members of the public waited outside the conference room for the formal negotiating session to reconvene, applause burst from inside, which several participants said afterwards had represented what they thought was an agreement reached among the participants on the transfer issue, which has been one of the thorniest of the months-long process.
The language considered at the end, which had been sanded down and softened over time, had eliminated a requirement that accreditors audit the credit-transfer policies of the institutions they oversee, and would have mandated that the agencies "provide that decisions about transfer of credit and and acceptance of credentials are not made solely on the source of accreditation of a sending institution or program," and that colleges and universities tell prospective students about their credit-transfer policies.
But once the meeting resumed, when Vickie L. Schray, the Education Department’s lead negotiator, said she hoped the panel members had reached “tentative agreement” on the transfer issue and asked whether anyone dissented, Eaton, who had repeatedly questioned whether the department had the authority to regulate on this issue without a change in the law by Congress, was alone in raising her hand.
Mark L. Pelesh, senior vice president for government and regulatory affairs at Corinthian Colleges, Inc., and the negotiating panel’s most outspoken advocate for the proposed policy on credit transfer, said it was a “real shame that CHEA stood in the way” of what seemed like agreement by the rest of the negotiators, “particularly in light of the statement that they have adopted  and stood by.”
Eaton’s group has for years promulgated a policy that urges colleges and accreditors to avoid policies that discriminate against the academic credits of students from nationally accredited institutions, but she and other college officials have opposed federal intervention that would mandate it, which they argue would impinge on colleges’ academic decision making. Pelesh and others have argued that the voluntary nature of the CHEA policy have made it ineffective and insufficient.
While Pelesh and Miller both characterized Eaton as standing alone in opposing the department’s transfer of credit proposal, at least two other negotiators said privately later that they had opposed the language, too. Asked why they hadn’t spoken up, they said that Eaton’s stated opposition was sufficient in ensuring that the Education Department could not claim that the panel had formally embraced the proposal, and that, “in the spirit of cooperation” in which the negotiators have sought to work, they saw no reason to add their voices in opposition.
The negotiators' desire to abide by that "spirit of cooperation" is in direct conflict with the fact that there are deep divisions among members of the negotiating panel and between many of the negotiators and the Education Department over several central issues, even though both sides have compromised in significant ways.
The polite desire to work constructively isn't the only factor that has muted the opposition, though; although they won't say so publicly, some accrediting officials acknowledge that fear is a factor as well, and that they have shied away from aggressive criticism of the department's policies because they know that their agencies must seek federal recognition from the department's National Advisory Committee on Institutional Quality and Integrity  every few years, and denial of that recognition means that an accreditor's stamp of approval of a college does not carry with it the all-important right for the institution's students to receive federal financial aid.
On a series of the proposals under consideration by the negotiating panel,  higher education officials believe the department is seeking to greatly expand the government's oversight of accreditors and to alter the fundamental relationship between accrediting agencies and colleges, in which accreditors see their task mainly as ensuring that institutions are achieving the goals they set for themselves and continuing to improve. Among them: proposals that would require accreditors to secretly give the Education Department documents about member colleges the department suspects of possible wrongdoing, that would greatly expand the department's powers to investigate the accrediting agencies and, most significantly, that would require the agencies themselves to tell institutions whether the methods they use to measure their students' learning and their performance on those measures is good enough.
That last issue has dominated the discussion over the three months' worth of negotiations that the panel has engaged in, and as that process prepares to draw to a close today, it remains an open question whether the significant compromises both sides have made will result in some sort of agreement. (Any agreement the negotiators reach on any single issue may not mean much, though, given the structure of this process. )
When the negotiators reconvene for the final time this morning, department officials are expected to respond to the last proposal from the non-federal members of the panel. It would omit any requirement that accrediting agencies themselves set minimum standards that individual colleges must meet to show they are educating students, and instead require an accreditor to prove to the government that its "standards and processes allow it to evaluate whether the evidence provided by the institution or program shows that the institution's or program's performance is acceptable."
It is not clear whether department officials will accept that language, nor is it clear that all of the other negotiators will embrace it even if department officials do. In many ways, the months of discussion essentially boil down to that outcome.