Negotiated Rulemaking on Accreditation

Publication Number 37 June 12, 2007

The final session of negotiated rulemaking on accreditation concluded Friday, June 1, 2007. Highlighting its importance, the session was attended by Under Secretary of Education Sara Martinez Tucker, the U.S. Department of Education's top higher education official, an association president and a top aide to Senator and former U.S. education secretary Lamar Alexander (R-TN).

After 10 days of negotiations over four months, the net result of the rulemaking was "no consensus" on the package of 15 issues that the Department put forward in February 2007. The Department achieved tentative agreement on six of the issues, there was no agreement on another six and the Department withdrew three issues. Of greatest importance, there was no tentative agreement on the crucial issues of additional federal authority through accreditation with regard to student achievement, transfer of credit and expanding the role of the National Advisory Committee on Institutional Quality and Integrity (NACIQI) that reviews accreditors for federal recognition.

Consistent with the discussions of its board of directors, Council for Higher Education Accreditation (CHEA) President Judith Eaton, a nonfederal negotiator, would not agree to the federal government setting standards for institutions with regard to student learning outcomes and determining transfer of credit policy as proposed by the Department, as well as expanding the authority of the advisory committee.

The Department has indicated that it will issue proposed rules in late June or early July 2007. Since the negotiated rulemaking did not result in consensus, the Department will publish its own version of the regulations. The federal negotiator said that the Department would consider the suggestions for language from the nonfederal negotiators in the development of the proposed rules. There will be a public comment period for the rules and the Department is scheduled to issue new rules on November 1 to become effective July 1, 2008.

Since the last week in May 2007, there have been significant developments in the U.S. Senate and the U.S. House of Representative concerning the Department's plan to propose new rules affecting accreditation. On May 24, 2007, Senator Alexander, in a statement on the floor of the Senate, said that he would introduce legislation to prevent the Department from establishing new rules on accreditation until after Congress renews the Higher Education Act.

On June 7, 2007 Rep. David Obey, (D-WI) chair of the Appropriations Committee and of its Subcommittee on Labor, Health and Human Services, Education and Related Agencies, included a provision in the FY 2008 Subcommittee markup that would prohibit the Department from using any of its funds to "promulgate, implement or enforce" new federal regulations related to accreditation.

The Department is making a significant push to meet with members of the Senate Health, Education, Labor, and Pensions Committee (HELP) to discuss plans for issuing and adopting proposed rules. The Department is concerned about congressional interest in blocking the intended regulations.

Now is the time for you to contact your Senators or Representative about this issue. We believe that the proposed rules are likely to result in a number of undesirable consequences for institutions and accreditors. The proposed rules will:

  • Establish the federal advisory committee (the National Advisory Committee on Institutional Quality and Integrity) as a "Ministry of Quality" with comprehensive authority to judge academic programs and disciplines on individual campuses throughout the country.
  • Position accrediting organizations as government contractors tasked with imposing government standards of quality.
  • Insist on a "one size fits all," bureaucratic approach to quality that ignores the diverse missions of institutions and sets the tangible benefits of a collegiate experience as the primary indicator of higher education effectiveness.
  • Constitute an unprecedented federal usurption of authority to make academic judgments — heretofore the province of colleges and universities.

The Department should not issue new regulations at this time.

Higher Education Reauthorization

The U.S. Senate HELP Committee has been holding bipartisan discussions in preparation for reauthorizing the Higher Education Act (HEA). The starting point for these discussions is Senate bill S. 1614 from the last session of Congress. The new bill has not yet been introduced, but is scheduled to be marked up in Committee in June. Title IV, which contains the provisions on accreditation, has not been completed as of this date.

The House of Representatives Committee on Education and Labor is likely to introduce its version of the higher education reauthorization late this summer.

The current HEA expires on June 30, 2007.

National Advisory Committee on Institutional Quality and Integrity

NACIQI met on May 30 and 31, 2007. In a key vote, the members overrode a recommendation made by the Department's staff and, without notice to the organization, recommended the withdrawal of recognition of one of the regional accrediting commissions. This action followed the recommendation made at the December 2006 meeting to prohibit an accrediting organization from accrediting additional institutions or programs. These actions highlight the concerns associated with expanding the powers of NACIQI.

Members of NACIQI are appointed by the Secretary of Education for three-year terms. The most recent new appointments were made in preparation for the May 2007 meeting. Several members have terms that expire in September 2007. The Secretary should be soliciting nominations for candidates to fill the terms that are expiring, although she does have the option to request that members with expiring terms serve additional three-year terms.

Higher Education Regional Summits

As a follow-up to the Washington, DC summit on higher education held in March 2007, five regional summits are scheduled by the Department. These regional summits entitled "A Test of Leadership: Committing to Advance Postsecondary Education for all Americans" are being held in the following cities: Kansas City (June 5, 2007), Seattle (June 7, 2007), Phoenix (June 12, 2007), Boston (June 14, 2007), and Atlanta (June 19, 2007). CHEA has been invited to participate in the Boston regional summit on June 14.