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Journal of Law-Education

Vol. 2, No. 8

and licensure1 that eventually found its way into the Act;200 a portion of the Secretary's report was noted at the outset. 201

Administration of the Authority to Recognize

Revision of Criteria for Recognition—1969

It was pointed out earlier that the Commissioner's criteria announced in 1952 seem to reflect what was the then sound practice of the relatively few voluntary accrediting agencies, as a standard to guide future recognition decisions. In 1968, however, the Office of Education established an Accreditation and Institutional Eligibility Staff (AIES) within the Bureau of Higher Education and an Advisory Committee on Accreditation and Institutional Eligibility.208 The latter, composed of persons outside the government, was created to assist the Commissioner in recognizing accrediting agencies 204 and on broad policy matters. The AIES, itself composed of four units, was introduced to administer the program, serve as liaison with accrediting agencies, review procedures and the like.206 It was responsible for the development of the revised criteria adopted by the Commissioner in 1969.206

The revision accepted verbatim a significant portion of its predecessor. Considerably amplified, however, were the procedural aspects of the required accreditation process. For example, its predecessor required only the use of "qualified examiners” to visit an institution, inspect its courses, resources, facilities, and personnel, and prepare written reports and recommendations for use of the reviewing body to be conducted under impartial and objective conditions. The revision required the use of “experienced and qualified examiners” with a scope of inquiry extending into administrative practices and services. It required adequate consultation during the visit with faculty, administration and students. It required that a copy of the report be furnished the institution's chief executive and that he have an opportunity to comment prior to taking action. It required, further, that 10 S. REP. No. 91–1002, 91st Cong., 2d Sess. 2, 10 (1970). A portion of the report was discussed in the text accompanying note 3, supra.

➡116 Conc. REC. 36886–87 (1970) (report of the House conferees). Pub. L. 91–519, 84 Stat. 1342.

*Supra, note 3.


See Pugsley, Accreditation Policy Unit-USOE: Origins, Activities, and Current Perspectives, address of the Chief, Accreditation Policy Unit, AIES, USOE, before the 33rd Annual Convention of American Medical Technologists (July 21, 1971) and Proffitt, The U.S. Office of Education, Accreditation and the Public Interest, sponsored by the USOE and the Nat'l Comm. on Accrediting (November 6, 1970). See Also Dickey & Miller, Federal Involvement in Nongovernmental Accreditation, 53 Educ. Rec. 138 (1972).

Pugsley reports that the Committee has met 8 times since its establishment and has reviewed 41 petitions concerning recognition. Pugsley, supra note 203 at 8.

Proffitt, supra note 203.

34 Fed. Reg. 643–644 (1969).

July 1978

Federal Reliance on Voluntary Accreditation


the agency evaluate the report in the presence of a member of the team and that it provide an internal avenue of appeal of its decisions.207

Two novel provisions, however, were not entirely of a procedural character. First, the revision required that the organization “encourage and give staff guidance for institutional or program self-study prior to accreditation." "208 Second, that the organization had “demonstrated its capability and willingness to enforce ethical practices among institutions and educational programs accredited by it.” 200

The Director of the Accreditation and Institutional Eligibility Staff has spoken of the new criteria as including "a concern that a recognized accréditing agency shall manifest an awareness of its responsibility to the public interest, as opposed to parochial education or professional interest...."


Criticism of the Accreditation System and the Proposed Revisions

in Criteria

As the Introduction observed, increasing scrutiny (and criticism) has been directed to private accreditation. The most common criticisms seem to fall in two groups: those which fault the accrediting agencies for what they could do but have failed to do and those which find a more basic flaw which the existing structure may seemingly be incapable of correcting. The former claim such defects as the failure to evaluate scientifically the soundness of their standards,211 failure to disseminate information useful to the "consumer," 212 failure to update standards and policies,213 and, failure to be open about internal proceedings.214 The latter would assert that accrediting agencies function like trade monopolies exercising coercive power in their own, not the public interest.215 The result is an homogenization of education, a perseverance in the status quo. Specialized accreditation comes in for particular criticism because the possibility of a conflict of interest arises when the professional group controlling accreditation may

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Compare 17 Fed. Reg. 8929 (1959) (error corrected 17 Fed. Reg. 8994 (1952)) with 34 Fed. Reg. 643 (1969). The verbatim inclusions were, inter alia, that the agency or association be national or regional in scope, serve a definite need, perform no inconsistent function, make available certain information (with some modification), have an adequate organization and effective procedures (amplified in greater detail than in the earlier statement), and have gained general acceptance by institution, practitioners, etc.

34 Fed. Reg. 643, no. 5 (1969).

Id. at no. 12.

Proffitt, supra note 203.

C. WARD, supra note 2.

Koerner, Who Benefits From Accreditation: Special Interests or the Public? Address in Seminar: Accreditation and the Public Interest, sponsored by the USOE and the Nat'l Comm on Accrediting (Nov. 6, 1970).

Pugsley, supra note 205.

Id., Koerner, supra note 212; Newman, supra note 5, HEW REPORT, supra note 4.
See Note 3, supra, Koerner, supra note 212.


Journal of La -Education

Vol. 2, No. 3 have an economic interest in lowering the production of trained personnel." By far the most frequently raised question in both institutional and specialized accreditation is the lack of “accountability.” 217

In response, seemingly, to some of these criticisms the Office of Education has commenced circulating for discussion within the accrediting community, a proposal for a second revision in recognition criteria. Tentatively, this includes provisions requiring a greater responsiveness to the public interest as in requiring “public representatives” on the governing boards of recognized accrediting agencies218 and greater public availability of information concerning its processes. The requirement that such agencies require accredited institutions to observe “ethical practices" would also be strengthened. In addition the encouragement of institutional experimentation and innovation would be required.21o

Authority to Recognize as Authority to Regulate

The Expansive View

It appears that with the creation of the Accreditation and Institutional Eligibility Staff, the Office of Education has begun to read its authority under the various statutes far more expansively than heretofore. Its authority so to do has nowhere been challenged; thus the legal underpinnings for the Office's action are not entirely clear. However, the outline of a legal justification for the move is not difficult to propose. The argument would first point out that under each of the statutes the Office of Education is given authority to determine the reliability of accrediting agencies in the exercise of its discretion as an expert administrative agency. In addition, a substantial amount of public funds is involved under these various programs, estimated at five billion dollars in fiscal year 1972.220 Thus accrediting agencies should be viewed as delegates of governmental authority. As Secretary Richardson has put it:

Legislation passed during the past 20 years has consistently deferred to accreditation as the primary base critereon for Federal funding. Furthermore, there has been a continuing acceptance of accreditation as a standard

C. WARD, supra note 2, Selden, Dilemmas of Accreditation of Health Educational Programs, in Staff Working Papers Part 11: Study OF ACCREDITATION IN SELECTED HEALTH EDUCATIONAL PROGRAMS G-1 (1972).

** Id. See also the second draft of the Newman Report and the editorial, Accrediting Accreditors, The Evening Star, Washington, D.C., Sept. 5, 1972.

**Supra note 6. This was one of the explicit recommendations of the first Newman Report, supra note 4. The nation has been suggested elsewhere in Selden, Professional Associations— Their Primary Functions, 45 N.Y.S. BAR. J. 26, 28 (1973).



July 1973

Federal Reliance on Voluntary Accreditation 371

for evaluation by both Congress and the general public without a full understanding of its concepts or an adequate appraisal of its compatibility with legislative intent.

With the allocation of significant amounts of public funds to students and to institutions through the eligibility for funding status provided by accrediting associations, accreditation carries with it the burdensome responsibility of public trust. Accrediting associations are functioning today in a quasi-governmental role, and their activities relate closely to the public interest.221

Indeed, the argument would point out that many students of accreditation have accepted the proposition that accreditation functions in the public interest and, it could be asserted, that a key committee of the House in fashioning some of this legislation viewed accreditation in just that light.223 Moreover, the creation of AIES and the revision of recognition criteria antedates the continuation of congressional reliance on the recognition system as found most recently in the Higher Education Amendments of 1972 and thus congressional approval of the more expansive view is fairly to be implied.

Finally, the argument would conclude by noting that education has assumed an increasingly more important role in American society and that the accreditation system must be made responsive to these altered circumstances. As the Director of AIES has observed:

...accrediting bodies are performing an increasingly important societal role-a role in service of the broader society rather than one solely in service of the narrower educational community. And if the Federal government is going to be justified in continuing strong reliance upon private accreditation, the accrediting associations will need to more explicitly recognize their obligation to protect the public interest. We, in the Office of Education, believe that this situation offers many challenges and fruitful opportunities-along with a few pitfalls-for the Nation's accrediting bodies, and we look forward to working cooperatively and constructively on these matters in the future.234

Thus as accreditation becomes a determinant for eligibility for federal funds the voluntarism of traditional accreditation simply evaporates as a practical matter and it becomes the responsibility of the federal government to assure adherence to standards reflecting the public interest. Congress, it would be concluded, did not intend to deprive the executive branch of authority to assure adequate accommodation with the public interest as a condition of extending voluntary recognition to a private ac

HEW REPORT, supra note 3 at 14.

C. WARD, supra note 2.

Supra notes 184, 191, 192.

Proffitt, supra note 203.

372 Journal of La -Education

Vol. 2, No. 8 crediting agency and the determination of “reliability" is a sufficiently broad standard for the expert administrative agency to adopt recognition criteria requiring such an accommodation.

Appealing as this line of reasoning may be to those who regard tighter federal standards favorably, it does suffer from a basic, indeed fatal, infirmity-it finds no support in the statutes from which the Commissioner derives his authority.

The Limited View

A Textual Analysis. Under all the statutes bearing a publication authorization, the federal role is limited to determining that a nationally recognized agency is a reliable authority as to the quality of education or training offered. This, it was noted earlier, assumes the existence of such nationally recognized bodies, that are recognized initially not by the Commissioner but by the related academic or educational community. Thus the criteria established by the Commissioner require acceptance of these bodies. Most important, the Commissioner's determination is limited to the agency's reliability concerning the quality of the program undergoing accreditation. While it is arguable that palpably every facet of institutional life conceivably touched on by the accreditation process may have some ultimate bearing on the quality of the program, it is clear that the recognition authority of the Commissioner is limited to accreditation standards directly connected with program quality.

This distinction is perhaps illustrated in the listing of nine functions of accreditation, noted in the Introduction, only one of which directly relates to the current program quality certification that pre-established standards have been met. It may be helpful to an institution to engage in a self-study and indeed such an engagement seems to be comprehended in two of the functions listed by the Commissioner-creating goals for selfimprovement and involving faculty and staff in institutional evaluation and planning. However, helpful these instutional practices are, it is clear from the Commissioner's list that neither directly concerns the first function of accreditation-certification that pre-existing standards have been attained.

Legislative Intent

It is curious that Secretary Richardson should point out that there has not been an adequate appraisal of the compatibility of the accreditation system with legislative intent in creating the recognition-reliance system, while the Office of Education has perforce proceeded on the assumption that its authority is fully consistent with that intent. Further, each of the Text accompanying note 21, supra.

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