Consensus or Chaos? Education Dept.’s Rule-Making Session Reaches Agreement

Chronicle photo by Julia Schmalz

In January, the the U.S. Department of Education began a round of negotiated rule making that seemed destined, even designed, to fail. From the beginning, the question on the lips of those watching, and even at the negotiating table, was: “What problem are they trying to fix?”

The number of topics to be discussed was unusually large and required a main committee and subcommittees for issues that involve distance education, Teach Grants, and faith-based colleges. Several of the department’s proposals were controversial and seemingly gratuitous, such as allowing third-party companies to offer entire academic programs under the banner of an accredited college. Another would have altered the number of states that could be overseen by the nation’s seven regional accreditors.

But negotiators on Wednesday seemed to snatch consensus from the jaws of chaos, in part by rejecting many of the most controversial proposals. Instead, the committee unanimously approved compromise language covering all of the topics under consideration. If finalized, the changes will loosen the department’s oversight of accreditors and give accrediting agencies more flexibility to approve new programs and branch campuses, and more time to sanction colleges that are out of compliance.

Diane Auer Jones, the principal deputy undersecretary at the department who led the process, said the most important outcome of the rule-making session was that it restored the public’s faith in the process. “Many people assumed that we didn’t want to reach consensus,” she said in a Thursday call with reporters, “but it was just the opposite.”

Barbara Gellman-Danley, a negotiator who is president of the Higher Learning Commission, one of the nation’s seven regional accreditors, said the result required a lot of give and take. “I think if you look at the original proposals and the draft language, what you will see is a great deal of compromise,” she said.

Critics of the department and some advocates for students, however, called the result a sell-out for the interests of accreditors and institutions in the name of “innovation.”

“New changes allow accreditors to have multiple sets of standards to be applied at will for ‘innovative’ programs,” wrote Antoinette Flores, an associate director for postsecondary education at the Center for American Progress, in a tweetstorm responding to the committee’s vote.

“Standards mean little when you can choose which ones to apply and with no transparency,” she added.

What Is Being Fixed?

Among the recommendations that the rule-making committee approved this week, were proposals to lower the regulatory bar for approving new academic programs and branch campuses. A proposal to allow greater outsourcing of academic programs, however, was rejected.

Auer Jones said the proposals would open up new opportunities for individualized learning and nontraditional students who need and want greater flexibility in their academic programs. In addition, the recommendations would allow colleges to save money by partnering with companies that already have expensive equipment and facilities to provide training in a field.

Accreditors would also have more time to sanction other colleges that are not meeting accreditation standards. A college that is out of compliance now has two years to meet the accreditor’s standards. The proposal approved by the negotiators this week would double that time, up to four years.

“This is not about providing more time for failing institutions,” Auer Jones said, “this is about giving more time for institutions that just need more time to make changes.” Accreditors are still expected and required to take action if a college is engaged in fraud, for example, or where the financial viability of an institution is in doubt.

The approved language will also loosen regulations on how the department oversees accreditors and what accreditors must consider when approving a college. These measures were meant to “clear away the clutter,” Auer Jones said, so that accreditors could “focus on what happens in the classroom, not if somebody signed the form in the right place.”

Meanwhile, a proposal to alter the number of states that are overseen by regional accreditors was shelved. That’s a big relief to the accrediting agencies.

“Our bottom line was met,” Gellman-Danley said. “We are regional accreditors, and we were able to help the group understand that and the importance of the history” of accreditation, she said.

Uncertainty

David Tandberg, vice president for policy research and strategic initiatives at the State Higher Education Executive Officers, said his head “was still spinning” a day after the committee had completed its work.

“The sum total of this negotiated language will be pretty significant,” Tandberg said. “This is one of the largest, most impactful actions on education we’ve seen for a long time.”

Still, it’s not clear that even the negotiators fully understand the scope of the changes that have been approved after what some described as a grueling process. The committees met for eight to 10 hours a day, for three days each in January, February, and March before voting this week.

Flores, with the Center for American Progress, said the committee spent so much time swatting down controversial topics that there was little time to delve into many of the changes that happened rather quickly in the final meeting. “The way the whole process was set up was to get to consensus, to manufacture consensus,” she said.

By the end, the committee was faced with a choice between approving a set of policy proposals that they might not fully agree with, or allowing the Trump administration to write the regulations without any input from stakeholders.

The vote this week means the department will have to hew closely to the approved language in a set of proposed rules that are likely to be published later this year. After a comment period, between 30 and 90 days, the department can publish final rules.

And the process may still come to naught. Sen. Lamar Alexander, Republican of Tennessee, is pushing for a reauthorization of the Higher Education Act and has made it clear that he would rather Congress be writing laws than the administration writing regulations.

The reauthorization of the higher-education law is also far from certain. Timing and the department’s workload may determine whether the most recent negotiated rule making comes to fruition. The department has several new rules in process, including for Title IX, the federal law protecting gender equity in education.

If the department finalizes the rules by November 1, they will go into effect in July 2020. If the proposed final rule misses that deadline, however, the rules will not be effective until 2021, when new leadership could be in the White House, and Congress could reject the new regulations.

Eric Kelderman writes about money and accountability in higher education, including such areas as state policy, accreditation, and legal affairs. You can find him on Twitter @etkeld, or email him at eric.kelderman@chronicle.com.