• Michael Reis

Part 2 of Negotiated Rulemaking for Higher Education: Conversation-Starters for the Proposed Changes

This is the second installment in a 4-part series of blog posts covering some of proposed changes to the regulations that govern the Higher Education Act that resulted from the Department of Education’s most recent negotiated rulemaking process.

For an introduction to this series, check out the first blog post in this series.

To learn more about the proposed changes and the negotiated rulemaking process, please visit the revisions posted to the Federal Register or the Department of Education’s negotiated rulemaking website.

In this post, I'll take a look at how the revised rules would change the way accreditors are categorized, collapsing regional and national accreditors into one category, dubbed institutional accreditors. Generally speaking, accreditors fall into one of three categories: regional, national, or program-specific. Examples of a regional accreditor would be a group like the Middle States Commission on Higher Education or the Southern Association of Colleges and Schools. National accreditors include groups like Accrediting Council for Independent Colleges and Schools or the Transnational Association of Christian Colleges and Schools. Finally, a program-specific accreditor would be a group like ABET (formerly the Accreditation Board for Engineering and Technology) and the Council on Social Work Education.

The tricky part with this change is that accrediting agencies apply different standards and, generally speaking, regional accreditation has been seen as more rigorous than national accreditation. The Department’s argument is that branch campuses and distance education programs have made geography a less tangible reality for regional accreditors, as they may be operating far outside the states they represent through these means.

A second major change the Department proposes is to change some key requirements needed for an accreditor to become formally recognized, such as removing entirely the provision that “requires an accrediting agency to demonstrate that its standards, policies, procedures, and decisions to grant or deny accreditation are widely accepted in the United States by educators and educational institutions, as well as by licensing bodies, practitioners, and employers in the fields for which the educational institutions or programs within the agency's jurisdiction prepare their students.” The new rules will relax a rule that requires organizations applying to be recognized as accreditors be engaged in that work for two years prior to application, waiving that requirement for groups that are a division or subsect of an already recognized agency.

Here are three comments I hope will get you thinking about how these changes may play out and how your institution might want to respond.

Excerpt from the Colorado Department of Education's comment: While the assignment of individual states to specific regional accrediting agencies can appear somewhat arbitrary, regional accreditation—as current structured geographically—serves many important purposes. Allowing institutions to “forum shop” for a regional accreditor of their choosing would create confusion, sow seeds of mistrust among institutions, bring a downward spiral of low expectations and poor quality, and ultimately harm students and waste taxpayer dollars. As such, the Colorado Department of Higher Education does not support the proposed regulation that decouples institutions from an assigned regional accreditor. -From a state agency perspective, it is very helpful that all of the postsecondary institutions in Colorado with regional accreditation are accredited by the same agency—the Higher Learning Commission. The need for agency staff to understand the regulations and expectations of six different regional accrediting agencies would represent a significant burden and increase the possibility of errors in holding institutions accountable, which ultimately could harm students. -The resulting differences in practice from institution to institution from varying regulations (say, for example, in the required qualifications of concurrent enrollment instructors), would create confusion among students, parents, guidance counselors, and members of the general public, and sow mistrust among institutions. -Forcing regional accrediting agencies to “compete” for institutional members would lead to a race to the bottom for the loosest set of regulations, resulting in a downward spiral of expectations toward low standards, light-to-barely- existent accountability, and poor quality, harming students and wasting taxpayer dollars. We have seen this exact phenomenon occur in the marketplace of national accreditors. (Link to full letter from the Colorado Department of Education)

From Higher Learning Advocates's comment: We are particularly troubled by three items and their interplay in the Department’s proposed language. First, the NPRM seeks to remove “geographic area” from the existing scope of recognition to acknowledge that regional agencies currently accredit additional locations of main campuses outside of their stated geographic area of scope, and to establish a goal of fostering competition among accrediting agencies. Second, the language would also specify that agencies may decline to accept an application for accreditation from an institution in a state if it only accredits a branch campus or other additional location in that state. Third, the proposed language adds an exception to the requirement that agencies seeking initial recognition must have conducted at least two years of accrediting activities. The proposed language waives the two-year requirement in cases where the agency seeking initial recognition is an affiliate or division of an already-recognized agency. Collectively, HLA believes these changes will only lower the expectation of quality by accreditors of their accredited institutions. Regional accreditors are membership associations that serve institutions in specific regions of the country and utilize peer-review and regional workforce and employment trends to best review and approve institutions under their purview. By encouraging regional accreditors to accredit institutions outside their region – and thereby enabling any institution of higher education to choose any regional accreditor they wish – could lead to a “race to the bottom” where poor-performing schools that are eligible would likely choose the regional accreditor with the least stringent requirements. Additionally, it is questionable how language that permits an accreditor to not accept an application outside of its geographic region would be implemented, raising operational confusion as to whether and how an institution would seek to be accredited. Eliminating the two-year requirement seems likely to result in unprepared and inexperienced organizations taking on an accreditation role. We do not support the Department’s changes in these areas and urge that they are not included in any final regulation. (Link to the full letter from Higher Learning Advocates)

From the Lumina Foundation's comment: We are uncertain about the intent behind changes to 34 CFR 602.10 & 34 CFR 602.13, which reduces the necessary evidence that demonstrates that a new accreditor can be trusted to perform the role of Title IV gatekeeper and eliminates the requirements that a new accreditor be trusted by peer organizations, practitioners, and other stakeholders. Accrediting agencies hold significant authority as gatekeepers to federal financial aid, and it is thus prudent to maintain the existing requirements in this section. Given the critical nature of this financial stewardship it is reasonable that the Department maintain a high bar, particularly upon initial application when there is likely a limited record of the ability of a new organization. Alternately, at a minimum, the new requirements should place clear numerical caps on the number of institutions and/or programs – e.g., no more than 10 institutions or 25 programs for its first two years of recognition – that the agency may grant accreditation or pre-accreditation for purposes of Title IV. (Link to the full letter from the Lumina Foundation)

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