On September 24, a perceptive federal judge in California pointed out the obvious and cleared a lot of thick overgrowth from the landscape of postsecondary oversight in the United States. In brief, Judge Margaret Morrow concluded that a state cannot treat regional accreditors differently from each other in order to favor colleges based in the state over those based elsewhere.
Judge Morrow’s preliminary opinion in Daghlian v. DeVry, with which I agree for the most part, concludes that differences among regional accreditors are insufficient to sustain California’s contention that the state can in effect exempt locally based colleges from state oversight because they are accredited by the Western Association of Schools and Colleges (WASC), while requiring colleges based elsewhere to get state approval to operate because they are accredited by a different regional accreditor.
This decision may cut part of the knot that has plagued proposed revisions of California postsecondary approval laws. WASC has been actively opposing some of the changes, even though they don’t affect WASC schools, apparently on a camel’s nose theory: any hint of state interference in collegiate self-governance must be sprayed with hot and cold running lobbyists. Ultimately, WASC is lobbying the tide not to come in.
The DeVry case may therefore serve to drag into the open one of the less-well-understood aspects of education law and policy. One of the commonest fallacies in higher education, and one which is amazingly ill-understood even by professional educators, is that colleges get to offer degrees because their accreditor allows them to. Not so. Colleges, including private ones, get to offer degrees because state governments give them the authority to do so.
Let me say that again for maximum clarity: Private colleges in the United States have no inherent right to issue degrees. That right comes to them through a grant of authority from a state government. With the exception of Congress and Indian tribes, I know of no other source for degree authority in the United States. The authority may come as a charter, a constitutional provision or a statute, but it must have an origin in state law. No accreditor can give that authority and no accreditor can take it away. Nor can the federal government do either, except for its own colleges.
The federal government recognizes this area of state supremacy in its regulations governing accreditors. A federally recognized accreditor is prohibited by federal rules from accrediting a college unless that college has appropriate state authority to issue degrees prior to accreditation. That is why one current California proposal to allow schools accredited by the Western Association to operate without a separate grant of state authority cannot work. This chicken chasing its own egg is a turkey. Judge Morrow’s preliminary decision serves to add top-quality stuffing to this defunct bureaucratic poultry.
California (and every other state) must formally give authority to issue degrees to every college based in the state that wants to grant degrees. Instead, it seems simpler for states to just punt the function of postsecondary approval to the local accreditor. Sorry, it can’t be done that way. Likewise, accreditors have no ability to grant degree authority to a foreign school -- only the government of the nation, or its properly designated authority, can do that.
In theory, every state diligently determines which colleges can issue degrees and, ideally, exercises at least some baseline quality control. In practice, this does not always happen, and in California today, it can’t happen, for there is no state agency in existence to issue the approval. The consequences are significant.
Right now as I write, it is impossible to start a new degree-granting institution in California, because any such institution requires state approval. It requires state approval not only to get accredited, but to have any legal authority to issue degrees. And it can’t get this approval. On these grounds alone, California is flirting with a Commerce Clause problem: The legislature has de facto protected all existing California colleges from competition. Florida tried this a few years ago and was squashed in federal court.
Also, any California institution that comes up for renewal by its current accreditor has to show that it has current state approval to issue degrees. Some won’t be able to. Even if all parties accepted the convenient but illegal fiction that WASC can stand in for the state, Judge Morrow has killed any attempt by the state to claim that WASC accreditation works as a stopgap but that accreditation by the North Central Association’s Higher Learning Commission doesn’t.
With luck, one side effect of the DeVry case will be to hose out once and for all some of the fictions that states, colleges and accreditors have erected around the curiously opaque process of college and program approval. When the false fronts have collapsed -- the collegial slurry panned for its limited nuggets and the agencies of various states (e.g., loopholed Alabama, grandfathered New Mexico, AWOL Hawaii and disinterested Idaho) subjected to the need to perform -- we can hope for useful changes.
What should emerge from this helpful legal reality check on the role of states and accreditors? First, absolute clarity that each state is legally responsible for the private colleges based there. That includes program quality. No more hibernating under the accreditorial dust storm. Accreditors are owned by their dues-paying member schools and should never be expected to serve as enforcement arms of state or federal governments. They are arms of the colleges, dedicated to advancing the interests of their member schools. There is nothing wrong with that, but let’s give it the right name: a club of schools with similar interests and approaches, not an enforcement body (certainly not of federal standards), and not remotely capable of handling student complaints.
States that have perched primly in the back pews, hands clasped and eyes downcast while the U.S. Department of Education brutalizes accreditors into doing oversight work for which they are unsuited, unfunded and unprepared, need to stop shirking their duties and hoping that the feds will do it for them. Who on earth, looking with unclouded eyes at the federal government, would entrust it with quality control?
I have argued for some time that the Department of Education should make its own decisions about financial aid eligibility based on its own standards, properly enforced by itself. That is a different and appropriate role: You want our money? Here are our rules.
Right now, the Department of Education is incompetent, in the technical sense, to perform college oversight. They can deal, sort of, with the most obvious cases, but they have no real structure in place for meaningful Title IV eligibility oversight. Regional accreditors need not fear losing their recognition, since the feds have no replacement process in place. Therefore regional accreditors and the larger national and specialized accreditors can ignore most federal noises.
Finally, the federal government has no business assuming a duty that constitutionally belongs to the states. The federal government would love to move in on territory that has belonged to the states for over 200 years. It is trying to persuade accreditors to do the dirty work. The states should not let this happen. If Judge Morrow’s case is nominally about the comparability of accreditors, its real impact may be on states that have taken their responsibilities lightly for too long.
Alan Contreras works for the State of Oregon; his views do not necessarily reflect those of the state. His blog is The Oregon Review.
My partner Georg had his first of 14 “Furlough Days” yesterday. As a Cal State faculty member, Georg’s furlough days are an indication of things to come for me. I teach Chicano studies, and I am required to take two furlough days per month in the coming 2009-10 academic year. So what did we do? We shopped, ate lunch, and went to a movie. As Northridge's president said, “Let me simply … add that a furlough means that you don't work. That you're not supposed to work. That we don't expect you to work.” So we didn’t. We saw Julie and Julia, a story about a woman (about to turn 30, for some reason, a moment that causes her to reflect on the unfinished things in her life) who blogs her way through cooking Julia Child’s classic recipes. While the movie was so-so, the idea of “writing one’s way through” difficulties (even to write in order to find a reason for being) appealed to my inner writer and my outer writing teacher. Given our difficult moment, the fact that we both will be affected (eventually) by the furloughs, writing about this seems apropos. So here goes….
Although the University Corp (as a separate money-making entity of the university) is not really affected by the state budget cuts, in a symbolic demonstration of campus solidarity (to share the pain) the Corp offices are closed for the campuswide furlough days, Friday and Monday; although in an interesting use of language, these are now called “campus closure days.” This move, however, requires that Corp employees take vacation days to cover the down time at work (this is the pain).
One should be allowed to work, especially when one can, right? But we are in a weird time. One of my colleagues, a recently appointed administrator, admits that what is happening at Cal State is unprecedented. (Haven’t we heard that word used before in the past 10 years?) No one in the chancellor's office is giving much information, although there are “frequently asked questions [presumably answered?]” on both the Web sites of my campus and my faculty union. In a time when leadership matters, however, the chancellor is silent. This is, of course, aside from the pathetic (replete in his crumpled white shirt) video message he sent to faculty where he implored us to “tell friends and family what the CSU does.” (No wonder over 70 percent of the faculty also used the vote to also voice their lack of confidence in the chancellor: "Of those voting, only 4 percent said they had confidence in the chancellor’s leadership. 79 percent said they voted ‘no confidence’ and 17 percent responded ‘don’t know.’ "
One of my right-wing neighbors found this appropriate time to let me know her indignation with public education by saying, “Well, Renee, you ARE always on vacation.” Her husband followed up with a question, “So why is public education free?” Telling friends and family what the CSU does in this moment would be tantamount to giving history lessons (about John Dewey and Jane Addams) and reading off a list, “Well, during those ‘vacations’ I am often working on grants, writing my own research, mentoring students, attending classes, reading books, preparing for classes in the fall…” and the list goes on and on.
At the end of Georg’s furlough Friday, I finished reading a manuscript I am reviewing. But for most working class people, this sort of “work” (if they even call it that), is nothing compared to what they do when they go to work -- or so the thinking goes. Indeed, my right-wing neighbor has been also telling me about the terrible things that are happening at her job, about the vulnerability of older workers who are being forced into retirement, sometimes with good settlements and sometimes not, sometimes with their health insurance paid for and sometimes not. But management is fine. One of her bosses, after axing several employees, was promoted to vice president, along with a very nice bonus and salary.
In these unprecedented times, no one really knows what to do. Cal State faculty in a close tally voted to accept the furlough in lieu of systemwide layoffs and reductions in staff. On our department’s listserv, people are going back and forth voicing their concerns about serving students, while reducing “work time” by 9 or 10 percent. One colleague said that he felt it was immoral to under-serve students (who are under-served by education anyway). And what, he asked, are we do to anyway (in situations where faculty teach online); reduce our class content by 10 percent? Ask students to read only 90 percent of a book? Then we are supposed to take days off during the term. I do not know if my chair was joking when he said, “Just think…. You could go to a conference!” Wait a second, I nearly screamed. When I am at conferences, I am working, shoring up my skills so that I am a better professor and a better researcher.
At the end of the day, faculty will have a pay cut. We won’t work less. We will do amazing things with the resources we have and stretch those resources to the limit in order to bring students a quality education. Our amazing chair of some years ago put it succinctly when she said, “Like good Mexicans, we do a lot with very little.” In our department, I know, we will continue to be collegial, to watch out for each other, to do a lot with what we have. But from what I read in the newspapers, this is only the beginning of a very bad time. The real blood in the streets is supposed to flow next year, when there are no furloughs, when we will face layoffs of faculty and staff.
Renee Moreno is associate professor of Chicano Studies at California State University at Northridge.
There are two main narratives battling to define the current crisis at the University of California. While the California situation is an extreme example of what is happening to public higher education these days nationally, these dueling narratives can be found in many other states as well.
On the one hand, President Mark Yudof and the Board of Regents want everyone to blame all of the university's problems on the state. According to the administration’s narrative, the simple issue is that the state has defunded higher education, and due to a $1.2 billion cut from the state, the only thing the campuses can do is raise tuition (which we in California call fees), cut courses, lay off workers, increase class size, furlough faculty members, and demand that the state increases the university’s funding by $913 million.
The counter narrative, articulated mostly by the unions and the students, is that the university just had a record year of revenue, and the system does not have to raise fees or cut services. Instead, the counter discourse argues that the profit-making units should share their profits, and money earmarked for instruction should actually be used for educational purposes. While unions and students also insist that full state funding should be restored, they recognize that most of the state reductions were made up by federal recovery money ($716 million), fee increases (43 percent -- 9.3 percent in September, 16 percent in January, and another 16 percent next September) and cost saving measures that have already been undertaken.
A close analysis of the university's own audited financial statements (see page 52 of this document) for the fiscal year ending June 30, 2009 shows that in every major category of the budget -— research, medical profits, extension programs, and even state appropriations — the university increased its revenue. Thus, even though President Yudof declared a fiscal emergency during the summer of 2009 and was granted emergency powers to impose an austerity plan that included across the board salary reductions, it turns out that the university was never in better fiscal health. In fact, the university’s finances were doing so well that after the state reduced the university’s funding, the university turned around and lent the state $200 million.
When reporters asked Yudof how he could lend the state money at the same time he was cutting salaries, reducing enrollment, and laying off non-tenured faculty, he responded that when the university lends money to the state, it turns a profit, but when the university spends money on teachers’ salaries, the money just disappears. According to this logic, the university should just get out of the education business and concentrate on generating high bond ratings.
What many people do not know is that this emphasis on pleasing bond raters in order to gain a better interest rate drives many of the decisions of private and public universities today. For example, it was recently discovered that one reason why the university continues to raise tuition each year is that it has promised its bond issuers to use student fees as collateral for construction bonds. In this credit default swap, students take out high-interest loans to pay for their increased tuition, while the university gets low-interest bonds to build more buildings. Moreover, the bond raters have recently praised the university for having such a diverse revenue stream and for holding such a high level of unrestricted funds that can be used for any purpose.
When Yudof is questioned about the fungible nature of the university's $20 billion operating budget, he usually responds by arguing that almost all of the funds are restricted, and only money from student fees and state funds can be used to close the budget deficit. However, much of the university's money is only restricted by its priorities, and Yudof himself has admitted that the university needs to protect its reserves and help grow the profitable aspects of the university.
Yudof’s protection of the profit-centered units was highlighted when many of the highest earners in the university system were able to remove themselves from his furlough plan. First the people funded out of external grants were exempted, and then the medical faculty, some of whom make over $800,000 a year, were able to fight off any salary reductions. Meanwhile workers making less than $40,000 were having their pay reduced and non-tenured faculty were being laid off. The result of this process is the increased growth of income inequality in a system where already in 2008, 3,600 employees made over $200,000 for a collective pay of $1 billion.
Even with the revelation that many of the top earners are administrators and that there are now more administrators in the UC system than faculty members, many tenured professors have sided with the administration because it is much easier to attack the state for all of the UC’s problems. By blaming the state and the anti-tax Republicans, there is a clear enemy and an easy narrative. Moreover, by placing the onus of responsibility on the state, the university does not have to look at its own internal problems. However, if the faculty continue to buy Yudof’s narrative, there will be no way of fighting the continual increase in administrative costs and the further privatization of the university. This double move of corporatization and administrative growth should be a concern of all faculty members across the United States.
Yudof’s latest gambit is to ask the state, which he knows is facing a $21 billion deficit, to increase the university’s funding by $913 million. Everyone knows that the state cannot provide this money, and so when the state does not meet Yudof’s request, he will feel justified to make another round of fee increases and budget cuts. In this version of the shock doctrine, a fake crisis motivates people to give power to a centralized authority and to privatize a public good, while wages are decreased and profits are kept by a small group of power elites.
It is time for the faculty to stand up and join with the students and the unions to resist. Moreover, the university's lack of shared governance and budget transparency is but a symptom of the national move to strip faculty of any power and to shift control to an administrative class that sees higher education institutions as investment banks dedicated to pleasing the bond raters. Only the faculty can make education the priority at these institutions.
Bob Samuels is president of the University Council - American Federation of Teachers, which represents lecturers and librarians at the University of California. He teaches at UCLA and writes the blog Changing Universities.
The report's language is unambiguous: "At every step -- eligibility, admission, enrollment, and graduation -- Hispanic and black students fare worse than white and Asian students in the University of California System."
For the California State University system, Hispanic students are underrepresented. And while the state's community colleges do reflect the ethnic and racial mix of the state's high school graduates, Hispanic and black students are less likely to transfer to four-year institutions than are white students.
Members of the College Republicans group at Santa Rosa Junior College had had enough. They were fed up, they said, with talking among themselves about various professors who, by expressing unvarnished liberal views as fact, made the students feel uncomfortable expressing their opposing views in class.