The Higher Education Opportunity Act of 2008: What Does It Mean and What Does It Do?

October 30, 2008

(first of two articles)

Judith S. Eaton

This essay focuses on changes in the Higher Education Opportunity Act of 2008 that affect accreditation and institutional accountability for academic quality. It describes what the new law does and the key issues with which we all must deal. A companion article (Chancellors and Presidents Meet the New Nationwide Spokesperson – the Federal Educator-in-Chief) will soon be issued, discussing the implicationsof the new law, especially for chief executive officers of our colleges and universities.

The Higher Education Opportunity Act of 2008 (HEOA) has been passed and signed into law. Reactions range from relief and pleasure to alarm and apprehension. Relief is about language that did not survive, e.g., words to expand federal, not institutional, control of judgments about student achievement that were present in earlier bills. Apprehension is about language that remains and that reflects a substantial growth of government oversight, engulfing vital areas of institutional operation such as finance and governance as well as judgments about academic quality, e.g., transfer of credit, heretofore the province of the higher education community. Some view HEOA as a reprieve or an opportunity for higher education to regroup: “It could have been worse.”

On the contrary, the new law is, on balance, an extraordinary problem and a potentially formidable obstacle for higher education and accreditation. The reauthorized Higher Education Act signals far-reaching and troublesome changes in the accreditation–federal relationship and the institution–federal relationship. In both cases, the changes are driven by (1) government requirements in new areas of accreditation and higher education operation, (2) expansion of current requirements in areas already under federal scrutiny and, crucially, (3) extensive new federal authority to report to the public on the data that will become available.

The result is a federal government that has positioned itself, in an unprecedented move, as an authoritative source of information, judgment and disclosure about higher education operation and quality. Beyond this serious development, the detail of the data and extensiveness of reporting insinuate the federal government more than ever into the daily academic business of colleges and universities. The net impact is that the academic and accreditation communities will now be dealing with a U.S. Department of Education (USDE) that has fashioned a new role as a nationwide spokesperson, a “Federal Educator-in-Chief.”


The new law retains the familiar authority structure for government oversight of accreditation that has been in place since 1992. Federal scrutiny and approval of accrediting organizations (“recognition”) will continue through USDE based on 10 standards in the law and the regulations that USDE develops to carry out the recognition review process. The federal committee (National Advisory Committee on Institutional Quality and Integrity – NACIQI) that was codified in 1992 will continue to advise the Secretary of Education in this work.

Within this federal authority structure, however, there are significant changes in nine accreditation-related areas. These are alterations in federal language addressing (1) student achievement, (2) appointment of the national advisory committee, (3) due process associated with accreditor review and appeal procedures, (4) institutional mission, (5) distance education, (6) transfer of credit, (7) monitoring of enrollment growth, (8) information to the public and (9) religious mission.

Even acknowledging the desirability of a few of these revised accreditation provisions, they are, on balance, an extraordinary and undesirable expansion of the regulatory role of government with regard to accrediting organizations and, through these bodies, to colleges and universities themselves. The extensiveness and detail of oversight required by the new law calls into question why the public should continue to be persuaded by higher education’s self-regulation, its own judgment about its effectiveness. If self-regulation is effective, why is there any need for this level of oversight and judgment about academic quality from outside the academy?

Changes to Accreditation

On the desirable side of the ledger, the new law makes it clear, for the first time at the federal level, that institutions play a central leadership role in setting standards and evaluating student achievement. Colleges and universities, not government, determine institutional quality based on judgment of student learning outcomes. It remains to be seen whether the full impact of this change will be felt, given the many features of the legislation that work against the reaffirmation of this institutional role.

A second change with desirable dimensions is the shift in the appointment procedure for the national advisory committee that scrutinizes accrediting organizations, distributing this responsibility between the executive and legislative branches rather than continuing to concentrate this authority only in the executive branch (USDE). On the positive side, this should provide additional opportunity for higher education to influence appointments to the committee. On the negative side, however, the change increases the political exposure of the academic and accreditation communities in relation to the composition of this important body.

The list on the undesirable side of the ledger is longer. The new due process provisions, providing for additional institutional challenge to negative sanctions from accrediting organizations, may initially appear helpful to institutions. Ultimately, however, the provisions may not result in an improved due process, but in a sacrifice of the peer-based system of accreditation to increased litigation, with attendant costs to both institutions and accrediting organizations. The due process provisions also dictate details of the operation of accrediting organizations with regard to appeal bodies and conflict of interest.

Undesirable changes in the law with regard to distance education involve requirements that institutions monitor enrollments, assuring that registration, participation and award of credit all go to the same student. Accompanying this monitoring is a requirement for additional reporting on distance learning from colleges and universities. There are two issues here. First, institutions currently have their own means to do this monitoring and the need for a government role here is not clear. Second, reporting this monitoring to the government raises significant issues around technology, privacy and security. This provision has broader implications as well. Will there be a roll-over effect from monitoring distance learning to intruding on site-based instruction? How do we deal with situations in which, as is increasingly common, coursework is a combination of distance-based and site-based instruction?

Another cause for concern is the new provisions that address transfer of credit. Institutions are required, as a condition of accreditation, to have a transfer of credit policy, to make this policy public and publish criteria on which their transfer of credit decisions are based. They are also required to report on at least some of the transfer activity that they experience. Institutions do need to have clear transfer policies and criteria that are readily available information to the public. They do not need federal intervention to require reporting to the government with regard to policy and criteria on what has heretofore been solely an academic matter.

In another undesirable change, the new law calls for accrediting organizations to monitor the enrollment growth of institutions when the growth is “significant,” but the nature of the growth and what counts as “significant” are not indicated in the language. Nor is it clear when growth can lead to a denial or removal of accredited status. As with distance learning, there is significant potential for intrusion in the routine operation of the academic programs of colleges and universities.

For a number of other changes, it is difficult to determine whether they are desirable or undesirable; their likely consequences are not yet known. The changes will require the development of regulations to accompany the law as well as some experience with how both law and regulation are implemented.

Chief among these is the change with regard to how accrediting organizations inform the public of accreditation judgments. The new language requires that accreditors both expand the information about accreditation decisions that is provided to the public and routinely make this information available (vs. “on request” in prior law). This expansion of public reporting could, over time, go as far as to include all major work products of an accreditation review (self-study, team reports, other documents) between accreditors and institutions.

Another change with unknown consequences is the addition of language related to religious mission, with the law now explicitly stating that accreditors are to take this into account in the case of religious colleges and universities. The goal here is to balance the emphasis on religious mission with accreditors’ general expectations about meeting their quality standards across all institutions.



The new law rearranges the institution–federal relationship in two major ways. Similar to what has happened with accreditation, institutions now have (1) a host of new areas of reporting and (2) expanded reporting in areas that are already in the law, culminating in 110 new reporting, record-keeping and regulatory requirements. These range from tuition and tuition increases to peer-to-peer file sharing to fire safety to textbooks. Moreover, the new law contains a number of studies that, in many instances, will also require information from colleges and universities and result in additional federal reporting. These include a study of employment upon completion of a program or credential, a study to evaluate the quality of distance education, an examination of proprietary institutions and separate studies of endowments, textbooks and articulation agreements.

This enlarged platform of information and reporting also significantly expands the potential and capacity of the federal government to embrace practices about which institutions and accreditors continue to have serious concerns. It is an easy step from arraying a bevy of new data to publishing comparability analyses to publishing rankings and to undertaking qualifications comparisons. Such actions readily lend themselves to standardization and centralization of control of higher education, in short, a nationally based system in the making, a system to which, to date, the United States has refused to accede. Whatever its shortcomings, the strength of the U.S. higher education enterprise has been vested in its responsible independence, decentralization and diversity – characteristics associated with institutional leadership and not centralized control.


For additional detail on the major features of the new law that involve accreditation and accountability, please see CHEA Update 45 which is posted on the CHEA Website.

What does the Higher Education Opportunity Act of 2008 and its changes in the accreditation–federal relationship mean for the future of higher education? The next Inside Accreditation will address the formidable challenge posed by the new law, as the higher education enterprise will confront, for the first time, a nationwide spokesperson or a "Federal Educator-in-Chief."