Dear Secretary DeVos:
On behalf of the Association of Governing Boards of Universities and Colleges (AGB), we welcome the opportunity to respond to the call for public comment regarding the Department of Education’s (the Department’s) notice of proposed rulemaking (NPRM), “Student Assistance General Provisions, The Secretary’s Recognition of Accrediting Agencies, The Secretary’s Recognition for State Agencies,” 34 CFR Parts 600, 602, 603, 654, 668, and 674. AGB applauds the work done by the negotiated rulemaking committee in reaching consensus on these proposed regulations and believes that the NPRM will largely help maintain the ability of institutions to effectively serve their students and missions, while also upholding and clarifying the role of the Department, states, and accreditors in working with and overseeing institutions. While AGB does have concerns with several provisions of the NPRM, overall, we believe that these regulations will help governing boards continue to carry out their fiduciary responsibility and ensure that students receive the highest quality education possible.
The Association of Governing Boards
AGB is the premier organization centered on governance in higher education, serving more than 1,300 member boards, 1,900 institutions, and nearly 40,000 board members. Governing boards hold a discrete authority over the institutions they serve. As fiduciaries, board members are ultimately accountable for fulfilling institutional mission, ensuring academic quality and financial health, and reviewing and ensuring the continuing effectiveness of all major policies and programs. Accreditors play a key role in reviewing the work of institutions and governing boards collaborate with accreditors to build upon the latter’s review and help advance educational quality at their institutions. AGB has advocated that five crucial aspects of accreditation be preserved and enhanced as part of any regulatory action: 1) peer review; 2) institutional autonomy and board independence; 3) commitment to institutional mission; 4) academic quality; and 5) academic freedom. We are pleased the language in the NPRM largely respects and preserves each of these important aspects, while also making positive changes as outlined below.
Key Provisions Strengthening the Roles of Accreditors and Institutions
The Department’s preamble states that “the volume of regulatory requirements [in accreditation] limits innovation and diversity among institutions in their approach to issues such as mission, curriculum, and instructional methods.” AGB agrees with the Department’s assessment and believes that the NPRM addresses this issue in a few important ways.
AGB appreciates the important clarifications regarding state authorization, specifically, changing the regulations so that institutions must document and comply with where their students are “located,” as opposed to where their students “reside” (34 CFR Part 600.9). The proposed rule continues by making clear that an institution’s determination for a student’s location be made when the student enrolls at the institution. These changes will greatly help bring clarity to institutions in complying with the state authorization rule. AGB is also glad that the NPRM agrees to maintain the definition of “State authorization reciprocity agreement,” which as the Department notes, will “reduce the burden on institutions that would otherwise be subject to numerous sets of varying requirements established by individual States.”
The NPRM also provides much needed flexibility to institutions and accreditors so that they can focus more on innovating and providing students with a quality education. Examples (in the order in which they appear in the NPRM) include:
In 34 CFR Part 602.17, the Department removes the list of specific methods by which an accrediting agency requires institutions to verify the identity of a student who participates in class or coursework. This list was overly prescriptive, so its removal will help accreditors and institution more easily update and improve verification methods.
In 34 CFR Part 602.18, the Department provides direction to accrediting agencies around the requirements accreditors must follow with respect to institutional mission and allows accreditors to extend the time for institutions to comply with accrediting standards, policies and procedures.
In 34 CFR Part 602.20, the Department removes overly prescriptive timelines for accrediting agency enforcement actions against institutions, which would be effective in allowing institutions to pursue innovative programs and practices, better serve their mission and students, and meet the proper oversight standards that accreditors provide.
Further, the current regulatory language regarding “substantive changes” applies strict standards to accreditors’ ability to determine if and when an institutional change is substantive, leading to an unnecessarily high compliance burden on the part of accreditors and to the stifling of innovation. The NPRM makes important revisions to the “substantive changes” definitions in 34 CFR Part 602.22, allowing for more flexibility while maintaining proper oversight from accreditors over institutions. This includes limiting the actions that require accrediting agency approval to “high-impact, high-risk” changes and allowing, in certain substantive changes, an accrediting agency’s decision-making body to designate senior agency staff to approve or disapprove the substantive change request in a timely, fair and equitable manner. The proposal would also allow institutions in good standing to not have to apply for the approval of additional locations, while still requiring those institutions to notify the accrediting agency and provide assurances about institutions’ ability to ensure quality.
Finally, in 34 CFR Part 602.24, the Department proposes critical changes that would streamline the accreditor approval process of institutions’ branch campuses, conform accrediting agency definitions of branch campuses with the Department’s, and remove requirements related to accreditors’ review of institutional credit hour policies during comprehensive reviews. The totality of these proposals in the NPRM will enable institutions and accreditors to better innovate and will reduce undue regulatory burden, all while preserving the appropriate oversight of institutions by accreditors.
AGB does, however, share some concern about the NPRM and potential unintended consequences that could arise. One area of concern is the ease with which new accreditors can become recognized under the NPRM. AGB acknowledges the need to increase flexibilities for accreditors and institutions as a way to spur innovation, maintain institutional autonomy and offer additional options for institutions that may want to seek an additional accreditor. However, the NPRM, under 34 CFR Part 602.12, goes too far in loosening requirements for new accreditors. Accreditors are essential to the ecosystem of ensuring educational quality, and these proposed rules have the potential to lower the bar for accrediting agencies, which could result in the lowering of standards for institutional quality and negatively impact students’ education. The NPRM even acknowledges this point by stating “increased competition among accreditors could have the unintended consequence of encouraging some accreditors to lower standards.” Therefore, AGB encourages the Department to reconsider the lowering of requirements for accrediting agencies to become recognized.
Additionally, in 34 CFR Part 602.16(a)(1), the Department seeks to move from the “vague description of accreditation standards that ‘effectively address’ factors that contribute to quality to a more specific requirement for agencies to set forth ‘clear expectations’” instead. The NPRM does not state what it means for accreditors to set “clear expectations,” which could lead to more confusion about the standards that institutions are supposed to meet instead of clarifying such standards.
The NPRM also proposes to clarify that a traditional faculty governance process for approving curriculum and setting faculty standards, while widely used, is not the only governance process currently in use or allowed under the Higher Education Act (HEA), and that in some instances, it may be inappropriate to give faculty a stronger voice than employers (34 CFR Part 602.16(f)(3) and (4)). AGB appreciates the Department pointing out that institutions have the flexibility to govern curriculum and faculty standards as needed, especially because governing boards assume the fiduciary responsibility of the approval and quality of academic programs. However, we would also like to note that governing boards respect the importance of shared governance and work collaboratively with faculty.
Finally, the NPRM states that the Department expects institutional accrediting agencies to evaluate both an institution broadly and, for the first time, individual programs within an institution (34 CFR Part 602.17(a)(2)). The Department needs to clarify what it means by this provision, because as it is currently constituted, the language could increase the regulatory burden on accreditors and institutions, which is squarely against the stated goals of the NPRM and was not a part of the negotiated rulemaking process.
Governing boards, as fiduciaries, work with accreditors to ensure and improve institutional quality with the mission of serving students in the best way possible. For the most part, these proposed regulations will help institutions and accreditors fulfil this mission by maintaining institutional autonomy while also providing needed clarity. However, the proposed regulations also have the unfortunate potential to lower the standard of some accrediting agencies and cause more regulatory burden than intended, which could ultimately have a negative impact on the education students receive. AGB urges the Department to uphold high standards for accreditors and institutions, allow the necessary flexibility to enable innovation and be mindful of the essential fiduciary role of university and college governing boards as it moves toward a final rule.