US drafts rules granting colleges teaching flexibility

Rule-making ends with surprise pact after administration retreats from extremes

April 5, 2019
White House

The Trump administration has claimed victory with a regulatory overhaul that gives accrediting agencies more flexibility in judging higher education providers, and the institutions more leeway in satisfying the accreditors.

After two months of formal negotiations with and among expert panels whose members the administration itself selected, the Education Department announced an agreement on the provisions, which also encourage more educational partnerships between colleges and employers.

The main accomplishment, however, may go beyond any of the individual provisions affecting higher education, and centre on the very fact that the administration and higher education leaders disproved concerns that they simply could not work together.

“We have restored faith in the process,” Diane Auer Jones, the principal deputy undersecretary of the Education Department, said in summarising the effort that began in January.

Rule-making is an esoteric process by which a presidential administration can write regulations, carrying the force of law, as long as they don’t contradict existing laws. The administration ultimately retains the right to impose such regulations, although it first must pursue a process of negotiating with interest groups it selects.

The process usually bogs down before any final agreement, and this effort was widely predicted to be headed for a similar fate, especially after the Trump administration outlined some fairly far-reaching goals.

Those initial objectives included scuttling the system of regional accrediting agencies – which are generally understood to offer a higher tier of review, and which typically exclude and thus discredit for-profit colleges.

The administration also tried to boost for for-profit colleges by putting pressure on traditional institutions to accept credits from their transferring students.

The consensus on the new regulatory language that the administration is celebrating was largely a result of it abandoning such “very provocative” ideas in the negotiating session, said Terry Hartle, the senior vice-president for government and public affairs at the American Council on Education, the main US higher education lobby group.

“They were willing to modify their proposals,” Dr Hartle said, “so long as they ended up with something that allowed them to say they moved in the direction that they wanted to go.”

Regulatory language in the final package largely pushes the accrediting agencies – which must approve colleges for their students to be eligible for federal tuition aid – to be more tolerant of variations in institutional approaches.

The administration has pushed that idea of tolerance as a means of helping colleges implement new teaching approaches, often involving online content or non-traditional student schedules.

The changes also double, to four years, the amount of time that a college found out of compliance with an accreditor’s standards is given to fix the matter.

While colleges and higher education experts welcomed the flexibility, some raised concern that accreditation standards could grow too lax. The concern was exacerbated, some said, by the sense that negotiators devoted more attention to fighting off more extreme administration proposals than to examining the details and implications of the language that did get approved.

The current rule-making process still needs several more months of formal reviews. If that phase is completed in time for a final product to be published by November, the new rules would take effect in July 2020.

Congress, however, is actively working to write a comprehensive set of new laws addressing virtually all of the topics covered in the new regulations. Higher education experts give lawmakers low odds of success on their pathway before the 2020 presidential election.

The Education Department has initiated several other rule-making efforts, including one still under way – and subject to heavy criticism – that would change the processes by which campuses handle allegations of sexual assault.

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