CHEA Analysis of HR 4283

Executive Summary

The major accreditation provisions of HR 4283, a major new higher education bill, address student learning outcomes, distance education, transfer of credit, reporting and public information. There are many other accreditation provisions, as well as proposals for federal mandates on academic activities. HR 4283 modifies federal rules on student learning outcomes. Accreditors are given new roles to examine and approve distance education programs, and to assure that new reporting requirements for institutions are fully met. Institutions and accreditors are given new federal mandates on their transfer of credit policies, along with extensive new reporting requirements. Institutional accreditors are required to produce and submit to the federal government public summaries of their accreditation or re-accreditation actions, along with their findings and other information. Failure to meet legal requirements by institutions could lead to loss of eligibility for federal funding. Failure by accreditors to meet requirements could lead to loss of federal recognition.

The new bill includes many of the ideas and approaches that CHEA has put forward to improve the HEA and provide strengthened quality assurance in federal programs. But in most such instances, HR 4283 also loses ground on keeping educational decisions in the hands of educators. If this bill becomes federal law, the reliance on accreditation as a principle means of quality assurance in federal programs will be seriously eroded.

Because HR 4283 largely federalizes accreditation instead of enhancing it, CHEA has concluded that it should strongly oppose the bill in its present form and seek an entirely new approach to strengthened accountability. Other higher education associations have voiced similar concerns over these accreditation-related issues.

We encourage like-minded individuals to contact the bill's sponsors, Congressmen Boehner and McKeon, telling them that they should revise their bill. We want to keep their basic improvements in accountability and accreditation, but trim back those provisions that has the federal requirements overtaking the proper role of educators and their accreditors.

Part I. Introduction

This analysis by the Council for Higher Education Accreditation (CHEA) looks at the accreditation provisions of a major new higher education bill. Following the introduction, it provides in Part II a summary of the major provisions and the CHEA conclusions regarding them. Part III then provides detailed explanations and cross references for the many provisions, grouped into six major areas: general approach, student learning outcomes, distance education, transfer of credit, reporting and public information and other provisions. Part IV addresses CHEA activities on this bill, and suggests actions for interested parties to contact the Congress about this bill.

The College Access and Opportunity Act of 2004, HR 4283, was introduced on May 5, 2004 to reauthorize the Higher Education Act (HEA). In general, it amends and extends HEA programs through 2011. It is a comprehensive bill from the Republican leadership that sweeps in several of their prior bills and adds many new provisions. Major changes are proposed in student loans, accountability for college costs and quality education, and the participation in federal programs of for-profit institutions.

HR 4283 was sponsored by Congressmen John Boehner (R-OH) and “Buck” McKeon (R-CA). Mr. Boehner chairs the full House Education and the Workforce Committee and Mr. McKeon chairs its Subcommittee on 21st Century Competitiveness, which holds jurisdiction over most of the HEA programs. They have announced plans to move their bill quickly through the House. There are no Democratic cosponsors. The Committee Democrats have introduced competing proposals in several key areas. Partisan rancor on the bill has been escalating and there has been no evidence of the bipartisanship that has characterized the HEA legislation for almost forty years.

CHEA has also provided and disseminated on May 7, 2004 a brief summary of the bill under its HEA Update # 9. This document and other material about HEA and accreditation are available under “Government Relations” at the CHEA website: www.chea.org. The text of the bill (203 pages) is available online in PDF format via the House Committee website at http://www.gpo.gov/fdsys/pkg/BILLS-108hr4283ih/pdf/BILLS-108hr4283ih.pdf.

Part II. Summary and CHEA Conclusions

Regarding accreditation, there are proposals in HR 4283 to modify federal rules on student learning outcomes and add institutional governance to the recognition criteria. Accreditors are given new roles to examine and approve distance education programs, and to assure that new reporting requirements for institutions are fully met. Institutions and accreditors are given new federal mandates on their transfer of credit policies, along with extensive new reporting requirements. Institutional accreditors are required to produce and submit to the federal government public summaries of their accreditation or re-accreditation actions, along with their significant findings and other information. Federal recognition criteria are amended in three places: student achievement, governance and student complaints. Failure to meet legal requirements by institutions could lead to loss of eligibility for federal funding. Failure by accreditors to meet requirements could lead to loss of federal recognition.

CHEA has examined the provisions and gathered advice and perspectives from its members, institutions, accreditors, other associations and advisors. CHEA, along with many others, has sought to advise the Congress on sound overall federal policies regarding accountability and accreditation, and how the HEA might be adjusted to improve accountability and meet increased public expectations.

The new bill is the result of more than a year of intensive work by the Congressional Committee. It includes many of the ideas and approaches that CHEA has put forward to improve the HEA and provide strengthened quality assurance in federal programs. But in most such instances, it also loses ground on keeping educational decisions in the hands of educators. It takes one step forward, and then two (or more) in the opposite direction. If this bill becomes federal law, the appropriate autonomy and accountability of higher education will be tossed aside. The reliance on accreditation as a principle means of quality assurance in federal programs will be seriously eroded.

Because HR 4283 largely federalizes accreditation instead of enhancing it, CHEA has concluded that it should strongly oppose the bill and seek an entirely new approach to strengthened accountability. CHEA is not alone in this view. Other higher education associations have voiced similar concerns over these accreditation-related issues, in some cases placing them among their greatest concerns with this far-reaching and controversial bill.

Part III. Accreditation Provisions

This section begins with a general characterization and then details every accreditation related provision in HR 4283. It is a long list. The other subjects are grouped as follows:

• student learning outcomes,
• distance education,
• transfer of credit,
• reporting and public information, and
• other provisions.

In number and sweep, the set of accreditation amendments proposed in HR 4283, if enacted into law, would likely exceed all the changes in accreditation law made since the original HEA in 1965.

A. General Approach: Losing the Balance

While HR 4283 would maintain the basic federal compact with private voluntary accreditation as the principal means of quality assurance in federally supported programs, it alters the compact in several ways that are problematic for the self-regulation of academic quality. Because HR 4283 incorporates several prior bills and public proposals from the same sponsors, CHEA and others have provided in the past the Committee staff with suggestions for improvements. These suggested improvements would achieve the objectives of the bill's sponsors, but be less onerous or more efficient for the institutions and accreditors who would implement them. CHEA suggestions for improvements in earlier proposals are visible in several key areas, including distance education, transfer of credit and learning outcomes. But the new text of HR 4283 fails to achieve a balanced approach. Rather, it provides many new and inappropriate obligations on institutions and their accreditors that go far beyond the proper role of the federal government. Stated simply, the bill goes a long way toward federalizing the present system of peer-based self-regulation of higher education via voluntary accreditation.

B. Student Learning Outcomes

CHEA has long urged institutions and accreditation organizations to pay attention to student learning outcomes, always with a strong emphasis that the institutional mission and student characteristics should the basis for their scrutiny. HEA has ten criteria used by federal officials to determine if the Secretary of Education should recognize an accreditor as a reliable authority of quality education. HR 4283 rewrites the current recognition criterion on student achievement as follows:

“(A) success with respect to student achievement in relation to the institution's mission, including, as appropriate, consideration of student academic achievement as determined by the institution (in accordance with standards of the accrediting agency or association) related to each institution's articulation of desired learning outcomes, retention, course and program completion, State licensing examinations, and job placement rates; and other student performance data selected by the institution, particularly data used by the institution to evaluate or strengthen its educational programs, and including thresholds for course completion and job placement rates if the institution offers certificate-granting vocation or technical programs;”

[This language amends HEA Section 496(a)(5), and appears on page 162 of the bill.]

This new language works in tandem with another new provision of the bill, where every institution participating in Title IV (federal student aid) must produce and make publicly available to all enrolled and prospective students a description of their academic programs, including:

“(ii) the institution's learning objectives for those programs:”

[This language amends HEA Section 485(a)(1) (G), and appears on page 138 of the bill.]

Taken together, these two amendments mean that an institution must state the learning objectives for its programs and that its accrediting organization must assess their success in student achievement according to the revised standard above.

For comparison, the current HEA law, in Section 496(a)(5)(A), states the student achievement criterion as follows:

“(A) success with respect to student achievement in relation to the institution's mission, including, as appropriate, consideration of course completion, State licensing examinations, and job placement rates;”

In addition to amending the federal criterion for recognizing accreditors regarding student achievement, HR 4283 also amends the current HEA provision that requires institutions to provide graduation and completion rates for undergraduates. It adds a new element on student outcome data, as follows:

“(iii) any other student outcome data, qualitative or quantitative, including data regarding distance education deemed by the institution to be appropriate to its stated educational mission and goals, and, when applicable, licensing and placement rates for professional and vocational programs;“

[This language amends HEA Section 485(a)(1) (L), and appears on page 139 of the bill.]

C. Distance Education

In HR 4283, distance education quality assurance issues have expanded attention because other parts of the bill authorize new distance education students and institutions to participate in federal student aid programs. In legislative jargon, this expansion of distance education is created mostly by the “single definition” of institutions of higher education, which would place non-profit and proprietary institutions in the same situation, and the abolition of the “50/50” and the “90/10” rules, which limit the participation of distance learners particularly in proprietary schools.

Prior HEA bills in both Houses of Congress had proposed various approaches for strengthened reviews of distance education. HR 4283 takes a new approach with three major elements, one defining eligible programs, another setting new roles of accreditors, and a third making accreditors the monitors of growth in distance education at their institutions.

First, the definition of programs eligible for Title IV (federal student aid) gets a new paragraph describing distance education. A distance education program must be evaluated and determined effective by an accreditor recognized by the Secretary. And that federal recognition must include distance education within its scope. This evaluation can take place either before or after the enactment of the new HEA amendments. The purpose of this “before or after” amendment is to avoid any necessity of a re-examination of all distance education programs by an accreditor when and if the federal rules on distance education are changed by law or implementing regulation. It is based on a proposal offered to the Committee staff by CHEA to avoid unintended duplicate reviews.

This language amends HEA Section 481(b), and appears on page 131 of the bill.

Second, the description of accreditors that can be recognized by the Secretary is amended so that they must demonstrate that their standards, procedures and policies in distance education are “comparable” to classroom and campus instructions and services. Accreditors must also evaluate how institutions ensure the integrity of distance education. The existing requirement that accreditors consistently apply and enforce their standards is modified to add that standards applied to distance education must be comparable to those “used for face-to-face classroom instruction.” This language amends HEA Section 496(a)(4), and appears on page 161 of the bill.

Third, the operating procedures for accreditors are amended to require them to monitor the growth of distance education and evaluate their development and management at institutions where such growth is significant. This language amends HEA Section 496(c), and appears on page 167 of the bill.

D. Transfer of Credit

CHEA believes that barriers to transfer may be eased, so long as the institutions maintain unfettered rights to determine which credits offered for transfer do or do not meet their academic standards. Our strong preference is for institutional actions, not a federal mandate. For several years, CHEA has been active on the transfer of credit issue, but not necessarily embracing a federal solution. The core of the CHEA principle on transfer is that a receiving institution should not deny transfer of credit solely because of the accrediting organization of the sending institution. Further, institutions must maintain their autonomy over academic standards.

HR 4283 starts with the first half of this CHEA principle (do not deny transfer solely because of the accreditor) and then tramples repeatedly on the second half. It is another approach by the same bill sponsors from their earlier proposal on credit transfer introduced in October 2003 as a part of HR 3311. These earlier proposals caused a storm of protest from the higher education community, due to their federal mandates on academic decisions properly made on campus. If anything, the new bill is worse. It has a startling number of credit transfer provisions: five for institutions, four for accreditors and a federal study.

The current institutional information reporting requirements (HEA Section 485) are amended to include transfer policies along with the basis for the determination of credit transfer. (Page 140)

The same section adds a new subsection on transfer. It says that the policy must be disclosed. It also says that the policy must include that transfer cannot be denied solely on the basis of the accreditation agency of the sending school. The policy must also be based on objective criteria publicly disclosed, and the student's level of proficiency. It is notable that “objective criteria” appears to eliminate faculty judgment, the heart of academic standards and quality assurance. Finally, the new subsection requires annual reporting by institutions of their rate of transfer accepted, along with the three-year average, further disaggregated by four classes of accreditors. (Page 142)

New language is added that appears to add some protection for institutions. It repeats language from other federal education law prohibiting federal employees from controlling curriculum and other activities. The same prohibition is added barring accreditor interference. Sadly, this prohibition provision has been widely ignored in the past. It is contradicted dozens of times in other federal education laws. It offers no useful protection against federal interference. A final new provision says that the new subsection shall not be construed to “create any legally enforceable right.” (Page 144) This appears to be an attempt to block lawsuits against institutions by those whose credits did not transfer.

Accreditors are likewise given many new requirements regarding credit transfer. They must make onsite reviews of transfer policies of institutions and programs. (Page 165) They may not have standards, policies or practices that restrict transfer solely based on the accreditation of the other institution. They must confirm in their institutional reviews that the institutional transfer policies are disclosed and consistently applied. (Page 166) And they must review transfer policies of institutions or programs to assure that transfers are not denied solely on the basis of the sending accreditor. This last requirement has a proviso saying that the review shall not restrict the right of the receiving school to determine transfer on any other basis.

The 1998 HEA reauthorization directed the Secretary of Education to conduct a study on transfer of credit. The elements were poorly drawn in 1998 and reflected the views of one side of this complex and contentious issue. The Department never did the study, pointing to the lack of appropriations to do so. HR 4283 revives the study, which would now be completed by September 2006. There is one major modification. The 1998 study was to look at accreditation organizations. The new study would expand the scope to include institutions of higher education.

In addition to the reporting and public information on student learning and credit transfer described above, HR 4283 is replete with additional requirements for institutions to report to accreditors and for accreditors to check these reports and make their own reports to the public and to the federal government. Taken together with the many college cost and other non-accreditation reporting requirements in the bill, the range of these activities is staggering. The accreditation related provisions of HR 4283 include:

• institutions reporting to all current and prospective students any adverse action taken by an accreditor, (Page 137)
• data on undergraduates who transfer out of the institution, (Page 139)
• procedures for student to make complaints to accreditors regarding their institution, (Page 139)
• optional reporting on student engagement, which may be sent to accreditors, (Page 140)
• reporting by accreditors of their work in a new six-part format. The report must be made available to the public and submitted to the Secretary of Education for consumer information purposes. The report requires summaries by accreditors of their actions awarding new or renewed accreditation, and their findings. It also includes any adverse actions (including probation), lists of review teams and descriptions of their selection, training and evaluation, and the accreditation organization code of conduct. (Page 163)
• accreditor operating procedures in the current HEA law are also amended regarding the above-cited report. The prior material is cross-referenced. This second reference speaks of “significant findings,” where the first statement that defines the report requires “any findings.” This difference is not explained, but may be important. (Page 166)
• assurance by accreditors that each accredited institution produces a “college consumer profile,” which is a new ten-part requirement that institutions describe in a uniform and comprehensible manner extensive information on the institution. This profile covers subject largely available from other sources, such as mission, demographics, accreditation, faculty, tuition and services. It also includes transfer policies, as well as graduation and placement rates. The Secretary of Education will disseminate its contents. (Page 167)

F. Other Accreditation Provisions

Intellectual Diversity. HR 4283 includes a version of a proposal introduced last year under the name “Academic Bill of Rights.” The early version focused on free speech and political correctness on campus, and omitted any enforcement mechanisms. It was constructed as a resolution to express the “sense of the Congress.” As such, it would not become a public law. It would only be an expression of opinion. Section 103 (Page 18) of the new bill adopts provisions from the earlier proposal, under the heading of “Student Speech and Association Rights.” While still framed as a “sense of the Congress,” in this new vehicle it would become part of the HEA law. This inclusion in a public law (if it is a part of the final HEA enacted by Congress and signed by the President) is legally and politically quite another matter. Although not strictly an accreditation issue, Section 103 addresses directly both the quality of education and federal role regarding academic freedom. There has been objection to this proposal from many quarters and from persons on various parts of the political spectrum.

Advisory Committee. The National Advisory Committee on Institutional Quality and Integrity is reauthorized until 2011 without changes in its duties. This group advises the Secretary regarding his recognition of accreditation organizations. (Page 20)

States as Accreditors. Under current law in HEA, only states that were already recognized before 1991 could retain federal recognition as accreditation organizations. In some limited instances, New York State serves as an accreditor for federal purposes because it had the designation before the deadline. HR 4283 removes the provision banning states from federal recognition as accreditors. (Page 160)

Governance. The present criterion accreditors must use includes examination of the institution's fiscal and administrative capacity. The new bill amends that criterion to add “governance” as a capacity that must be examined. (Page 163)

Secretary Report. In a new provision of law, the Secretary must report annually to the Congress about any accreditor that he limits, suspends or terminates regarding his recognition (Page 167)

Study on Learning Outcomes. The Secretary shall provide for the conduct of a study of the best practices of states in assessing undergraduate student learning. The study is to be conducted by an association with certain links to state officials. There is to be an advisory committee and consultation with the Congress. SHEEO is presently conducting such a study on accountability, and the provision appears directed at their current work. (Page 201)

Part IV. CHEA Actions and Congressional Contact

As discussed above, CHEA has worked to inform institutions, accreditation organizations, other associations and interested persons and organizations about the accreditation issues in HEA. We have worked with the Congress, the Administration and its representatives. Now that the principal bill from the majority leadership of the House is “on the table,” we are providing analysis and our considered views. We will work in concert with others to bring our views to the sponsors of the bill, urging improvements.

We encourage like-minded individuals to contact Mr. Boehner and Mr. McKeon about the accreditation provisions in HR 4283. You can contact them at:

Committee on Education and the Workforce
U. S. House of Representatives
2181 Rayburn House Office Building
Washington, D.C. 20515
(202) 225-4527

 

Tell them that they should revise their bill to keep some of the basic improvements in accountability and accreditation, but to trim back those provisions that has the federal requirements overtaking the proper role of educators and their accreditors. Those with special contacts with other members of the House Education and the Workforce Committee should send them the same message. Keep checking the CHEA information, including e-mails and our website for more Updates and advice on what to tell the Committee about HR 4283.