• Michael Reis

Part 3 of Negotiated Rulemaking for Higher Education: Conversation-Starters for the Proposed Changes

Updated: Oct 15, 2019

This is the third 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.

The proposed rule changes will not only affect how accreditors are recognized and approved, as yesterday’s blog post covered, but also change some of the ways accreditors operate and the standards to which they are held. To provide context, it makes sense to discuss the Department’s stated motive in many of the changes it has pursued in this process. Fundamentally, the current U.S. Department of Education believes that excessive regulation and inflexible standards risk discouraging innovative educational practices. The Department states that plainly when describing many of the changes or intended effects of the new regulations. Three of the nine stated purposes of the rulemaking process reference innovation and here are some additional quotes from the Department’s notice in the Federal Register.

“The proposed regulations would… Revise the requirements for accrediting agencies in their oversight of member institutions and programs to be less prescriptive and provide greater autonomy and flexibility in order to facilitate agility and responsiveness and promote innovation.”

“The volume of regulatory requirements limits innovation and diversity among institutions in their approach to issues such as mission, curriculum, and instructional methods. It is not simply that the sheer volume of regulatory requirements may limit innovation—though that is certainly a concern—but also that many regulatory and sub-regulatory requirements demand adherence to the orthodoxy of the day. Moreover, the growing list of administrative responsibilities conferred upon accrediting agencies reduces the time and attention they can devote to academic rigor and the student experience.

Policymakers and institutions increasingly ask accrediting agencies to give their imprimatur to educational innovations as institutions search for more efficient and effective ways to meet the academic needs of more students. Yet, the Department holds accrediting agencies accountable for ensuring that programs and institutions meet quality standards that are well-accepted among a group of qualified peers. A risk-averse, peer-oriented review process often discourages innovations that challenge the status quo in higher education. The status quo avoids risk, but innovation cannot exist without it. More must be done to determine which risks may be acceptable in order to move higher education forward.”

In support of that effort, some of the Department’s proposed revisions change the standards to which it expects accreditors to hold institutions. Notably, the Department seeks to remove the current rule 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 Department plans to replace “widely accepted” with phrases like “common academic standards” or “a reasonable basis”. The Department bases this fear first on the relative ambiguity of “widely accepted” (though it can be argued the same problem exists for “common academic” and “a reasonable basis”) and, second, “fears that the widely accepted standard could block competition or prevent innovative practices since the standard favors the status quo”.

The Department intends for these changes to permit accrediting agencies the flexibility to use different standards for programs deemed innovative. Writes the Department:

“In proposed § 602.18(c), we note that nothing in the Department's recognition regulations prohibits an agency from having alternate standards, policies, and procedures to satisfy recognition requirements in the interests of innovation ... provided that the alternative measures, and selection of participants, are approved by the agency's decision-making body; equivalent goals and metrics are set and applied; the process for establishing and applying the alternative standards, policies, and procedures is published; and the agency requires the institution or program to demonstrate a need for the alternative approach, as well as that students will receive equivalent benefit and will not be harmed.

… We intend for paragraphs (c) and (d) to provide safe harbors for agencies to exercise responsibly their ability to support innovation and address hardship, without jeopardizing their recognition…”

Overall, much of the feedback that opposed these changes expressed doubts on the validity of the Department’s conclusion that regulation hindered innovation and concern that the separate standards for "innovative" programs could be abused to shield poor-performing programs. Here is some of that feedback, offered in hopes it will spark some important dialogue at your institutions or among your networks on what these proposed regulations will mean for higher education.

Excerpt from a letter signed by the Attorneys General of New York, Colorado, Connecticut, Delaware, the District of Columbia, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nebraska, Nevada, New Jersey, New Mexico, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, and Washington: The proposed rule also weakens accountability measures, including those that require accreditors to demonstrate that their accreditation standards and decisions are “widely accepted” in the education field, and those that require accreditors to considers “any other appropriate information from other sources” in determining whether institutions comply with the accreditors’ standards. Rather than proposing regulations that hold failing schools accountable, the Department also proposes to weaken the requirements that accreditors take timely action against schools that fail to meet required standards, and decreases the rigor with which accreditors must review substantive changes to an accredited institution’s educational mission or programs. Such policy changes imperil students and taxpayers alike. In justifying its proposal to weaken accreditation standards, the Department offers the stunning explanation that while the status quo “avoids risk . . . more must be done to determine which risks may be acceptable in order to move higher education forward” through innovation in accreditation. The Department fails to acknowledge that the “risk” it suggests may be acceptable is risk to student borrowers—the very individuals that accreditors are supposed to protect. The States do not share the Department’s willingness to put students at risk by lowering accreditor requirements, and call on the Department to reconsider the provisions of the Proposed Rule that weaken accreditor standards. (Link to Full Letter from the Attorneys General of Multiple States)

Excerpt from Third Way’s Comment: Allowing alternative standards for “innovative” programs weakens oversight and makes poor outcomes more likely for students. The Department has proposed to allow accreditors to establish “alternative” standards for certain programs that the agencies deem “innovative.” This sets up a two-tier system in which an accreditor’s seal of approval can’t be considered “reliable” or “consistent,” as required by the law, and students in some programs will be subjected to lower-quality education than they are now. The Department itself acknowledges the flaws of these proposed regulations, stating that “Increased competition among accreditors could have the unintended consequence of encouraging some accreditors to lower standards. It would also allow an accreditor to create a standard at will to accommodate an “innovative” program, without transparency into what the alternative standard is or when it will be used. The Department should not permit accreditors to invent new, watered-down standards to accommodate “innovative” programs at will, and it should eliminate the proposed language around alternative standards. At minimum, the agency should require transparency into the standards accreditors establish and how they are applied to institutions and incorporate those standards into the recognition review process. (Link to Full Letter from Third Way)

Excerpt from Veterans Education Success’ comment: Similarly, the Department proposed to allow accreditors to establish alternative standards for programs the agency deems “innovative” (proposed 34 CFR 602.18(c)). This undercuts the accreditor’s seal of approval as being “reliable” (as required by law), by establishing dual systems with differing criteria. Truly innovative programs do not need to be propped up by different accreditor standards in order to thrive; rather, this change could encourage accreditors to lower their standards which would allow programs which out of compliance with the normal level of standards to still operate. (Link to Full Letter from Veterans Education Success)

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