Accreditation and the Higher Education Opportunity Act of 2008

The Higher Education Opportunity Act of 2008 was signed into law on August 14, 2008. This long-awaited bill, five years in the making, retains the familiar authority structure for government oversight of accreditation that has been in place for a number of years. Federal scrutiny and approval of accrediting organizations (“recognition”) will continue through the U.S. Department of Education (USDE) based on ten standards in the law and the regulations that USDE develops to carry out the recognition review process. The federal committee that was codified in 1992 will continue to advise the Secretary of Education in this work.

Within this authority structure, however, there are significant changes in eight accreditation-related areas. These are 1) alterations in federal language addressing student achievement, 2) transfer of credit, 3) providing information to the public, 4) due process and accreditor review and appeals of decisions, 5) distance education, 6) the role of institutional mission, 7) the appointment and composition of the federal advisory committee and 8) monitoring growth.

All accreditation provisions of the new law were effective upon signing, on August 14, 2008.

The attached chart provides additional detailed information about the eight provisions, as well as other accreditation issues addressed in the new law.

Student Achievement

For the first time, federal law clearly affirms that colleges and universities, not government, have primary responsibility for student achievement, stating explicitly that success with respect to student achievement “…may include different standards for different institutions or programs, as established by the institution….” and later stating that “…nothing in this subsection shall be construed to restrict the ability of…an institution to develop and use institutional standards to show its success with respect to student achievement….” In the wake of the past several years of criticism of institutional leadership in this vital area, this is a most welcome development.

The change also makes explicit the longstanding partnership relationship between institutions and accreditors. Institutions are to set expectations of student achievement, and accreditors are to hold institutions accountable for both the level of expectation and the evidence that the expectations have been met.

Transfer of Credit

This new bill includes a requirement that accrediting organizations address transfer of credit. For the first time, this area of academic decision making is now in federal law. Accreditors, must, as a condition of federal recognition, assure that institutions have transfer policies, that these policies are published and include the criteria used by the institution with regard to credit earned at another institution. Institutions are required to track some transfer activity and report this to the federal government.

Information to the Public

To date, accrediting organizations have provided information to the public and government “upon request.” The new law moves from “upon request” to a requirement that accreditors routinely provide information. Prior law called on the accreditor to “notify” the Secretary of actions. The new law calls for a “summary” of actions that accreditors take.

This shift in language may ultimately result in a requirement that accreditors make a good deal of additional information public, including the major work products of a review such as the self-study, team report and other official communication between the accreditor and the institution. We do not yet know how the new requirement will be treated. And, it remains to be seen whether “summary” and “notify” are the same or whether, in the name of “summary,” USDE can make demands for considerable detail about accreditation actions.

Due Process: Reviews and Appeals

The new law changes the terms and conditions under which accrediting organizations can impose negative sanctions (e.g., warning, notice, show cause, termination of accreditation) on institutions. Accreditors now have to make information about the basis for a negative sanction available in writing. If an institution is appealing a negative action, this must include an opportunity to respond in writing to the accreditors’ findings. And, there is an opportunity, in the case of financial reasons for negative sanctions, to provide additional evidence that financial conditions have improved. Neither the requirement for action and response in writing nor the exception for evidence in financial situations was in prior law. Legal counsel for institutions, under the new law, are able to participate in the appeals process. This was not the case in prior law. Finally, accreditors are required to maintain an appeals committee that is separate from the body that makes the initial decision about accredited status and are required to have a conflict-of-interest policy.

It is not clear that either institutions or accreditors will benefit from these additional requirements and participation by legal counsel. Alternatively, we may be facing an accreditation process that has become less a peer review experience and more a legal proceeding, to the detriment of both parties.

Distance Education

There are two changes to distance education for accreditors. First, the accreditation of distance education requires that an institution or program monitor student enrollment to assure that the student who registers for a course or program is the same student who participates and completes a program and obtains the academic credit.

Second, it will be easier for accrediting organizations to undertake review of distance education institutions and programs. Accreditors that are currently recognized by USDE may engage in review of distance education by notifying the Secretary rather than obtaining approval from the Secretary, a process that can take up to a year or more. The single exception is a case of 50 percent growth in enrollment in distance education in a single institution accredited by an organization. This would automatically trigger a federal review of the accreditor.

The monitoring of distance education students creates a considerable additional burden on colleges and universities and raises a number of questions related to use of technology for student identification purposes, the extent of needed security for any monitoring and privacy issues. With regard to the expanded opportunity for accreditors to review distance learning, it is not clear what the impact of this provision is likely to be.

The Role of Institutional Mission

The new law singles out religious mission from the prior general characterization of mission in the law. For religious institutions, this additional language makes clear the centrality of religion in determinations of institutional operation. For accrediting organizations, there is a need to assure that focus on religious mission is not at the price of consistent application of accreditation standards.

National Advisory Committee on Institutional Quality and Integrity (NACIQI)

While the new law retains the federal committee that advises the Secretary with regard to the recognition of accrediting organizations, the committee composition and appointment process have changed. The new committee will have 18 and not 15 members. Appointment authority will now be shared by the Secretary, the House and the Senate and no longer rests solely with the Secretary. The new appointments are for six years, instead of the three-year appointments in prior law.

For the academic and accreditation communities, the change in composition and appointment likely provides additional opportunities to influence the selection of committee members. Based on information available to date, the first meeting of the new committee may be held in June 2009.

Monitoring Growth

The new law calls requires that accrediting organizations monitor the growth of institutions when the growth is “significant.” However, 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.

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CHEA anticipates that USDE will hold negotiated rulemaking (consultation with the public as part of developing new regulations associated with changes in the law) early in 2009.  The public meetings that precede this rulemaking have already been scheduled, with dates and locations as follows:

• September 19, 2008, at Texas Christian University, Fort Worth, Texas
• September 29, 2008, at the University of Rhode Island, Providence, Rhode Island
• October 2, 2008, at Pepperdine University, Malibu, California
• October 6, 2008 at Johnson C. Smith University, Charlotte, North Carolina
• October 8, 2008, at the U.S. Department of Education, Washington, DC
• October 15, 2008 at Cuyahoga Community College, Warrensville Heights, Ohio

All hearings will be held from 9:00 a.m. to 4:00 p.m. local time. Individuals can sign up to present beginning at 8:30 a.m. on the day of each hearing. 

Additional future action related to the new law may include the introduction of a technical corrections bill to address any difficulties in the implementation of the law's provisions. This, too, may take place early in the first session of the next Congress in 2009.