Washington Watch: A look at ED’s proposed regs on accreditation

“The Education Department (ED) last month convened the “Accreditation, Innovation, and Modernization” committee for the first of two week-long negotiated rulemaking (neg reg) sessions. The second and final session starts May 18. At the conclusion of that week, a formal consensus vote will be taken on the draft regulations currently under consideration by the committee. As is always the case in the neg-reg process, ED is in the driver’s seat. If negotiators fail to reach consensus, the department can propose whatever it likes in the subsequent formal Notice of Proposed Rulemaking. This gives ED considerable leverage in the negotiations, as its position has an unavoidable “take it or leave it” element. ED also selects which stakeholder groups are represented for each negotiating table and who speaks for those groups. None of the former regional accrediting agencies is a primary negotiator – an unthinkable perspective in previous administrations, including during the first Trump term. Fortunately for community colleges, Monty Sullivan , former president of the Louisiana Community and Technical College System , is the lead negotiator for public institutions of higher education. Progress thus far In the current negotiations, ED officials have closely considered several formal proposals from negotiators and have made some changes. A number of these changes were included in a modified draft released toward the end of the first week of negotiations. A new, updated draft is expected to be released very soon, reflecting additional negotiator proposals. That said, aspects of the draft regulations should give pause to community college officials and all higher education, and ED has shown no signs of abandoning many of its fundamental positions. By way of context, many statements by both ED officials and neg-reg participants at the table have been harshly critical of institutions. Issues at stake in the negotiations Below are some of the key features of the draft regulations that could potentially affect community colleges. Transfer of credit: The draft regulations would require accreditors to ensure that institutions adopt transfer-of-credit policies that “presume the transferability of credits earned at another institution accredited by a nationally recognized accrediting agency count toward general education requirements or electives.” There is an exemption in cases where an institution provides a detailed, written rationale specific to the courses previously completed by the incoming student, and this practice might well be applied. The justification must also include the cost to the student of repeating the credits. While community colleges for decades have known of the extraordinary cost to students when credits do not transfer – a cost in student success as well as financial – this rigid requirement could have significant downsides for community colleges themselves because of its placing on core academic processes per external federal requirements. It may also create a perverse incentive, discouraging four-year institutions from admitting transfer students or from accepting them in certain programs. In addition, although this requirement is as far-reaching as it is, it does not address the longstanding issue of course rejections for major credit. In the second week of negotiations, perhaps some middle ground can be found, but ED is determined to forcefully impose its interests in this issue. Student outcomes: The draft regulations would require accreditors to adopt a series of standards focused on student outcomes, including program-level outcomes, a new requirement for federal accreditation. As proposed, these outcome standards would need to include “minimum expectations of student performance…that are regularly reviewed and updated, using valid and reliable data.” Many of these requirements reach far beyond what is required by the guiding Higher Education Act (HEA). They seem doubly problematic since the HEA places strict limits on the department’s authority to force accreditors to adopt changes outside of the accreditation standards set forth in the law. Accreditors would also now be formally required to review post-completion outcomes. Inevitably, data availability will complicate this process, despite this broadly accepted goal. Institutional review on cost/benefit analysis: Accreditors would be newly required to conduct “a cost/benefit analysis, which means a review by the agency of the institution’s budget, resource utilization and allocation, and if existing, its business/strategic plan, continuous improvement strategic plan, and review of whether the institution considers whether the expected benefits of the institution’s activities justify the associated financial, administrative and opportunity costs.” Violations of law: The draft regulations would prohibit accreditors from adopting standards that encourage or require institutions to violate federal or state law, including federal civil rights laws, or that interfere with institutions’ free speech rights. Accreditors would also be responsible for monitoring whether public institutions meet their obligations under the First Amendment. In addition, a new provision would bar agencies from reviewing institutional governance that is in the rightful purview of a state government. If finalized, these redundant requirements appear likely to make accreditation more cumbersome and expensive. Faculty oversight: The proposed regulations require accreditors to “evaluate whether an institution or program… maintains a sufficient number of appropriately qualified faculty and other subject matter instructors who are regularly evaluated on the performance of their instructional, research, or service responsibilities.” The regulations further specify that this accreditor review must consider, among other items, whether an institution “maintains faculty appointment structures that permit the institution or program to address persistent deficiencies in instructional quality, program relevance, or institutional effectiveness” and “maintains sufficient flexibility in instructional staffing to respond to material changes in student demand, program viability, or financial condition” Here again, it is hard to assess the potential impact of these changes if enacted in this or a similar form. However, once again, they could require a heavier hand from accreditors. Burden reduction: The draft regulations would require accreditors to administer their standards, policies and procedures in a manner that: Minimizes unnecessary compliance costs and administrative burdens on institutions or programs. Avoids duplicative reporting, excessive documentation requirements and prescriptive processes that are unrelated to educational quality or student achievement. Reduces unnecessary barriers that limit institutions or programs from adopting practices that improve student access, accelerate completion or support innovative models. The proposed regulations would also change certain regulatory provisions that could impede these goals or place unnecessary burdens on accreditors. These seem to be “good government,” common-sensical proposals, although, if in the included rule, their implementation would be key. Again, the next set of proposals from ED will be available soon, and information about them will be provided then. 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