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July 1973

Federal Reliance on Voluntary Accreditation

373 relevant statutes has concerned large issues of public policy and save for the dispute on specialized or generalized accreditation in health training, little congressional attention has been devoted to the accreditation issue. Nevertheless, the legislative histories are, however slender, relatively clear. The Korean GI bill established a facility upon which state and federal authorities could rely. The Federal role was viewed as ministerial, simply relying on the consensus in the academic community of the reliability of the agency. In addition, the need for protection from fly-by-night institutions has continued to be a factor, if perhaps no longer the predominant one, that justifies use of the accreditation-reliance system and necessarily colors the government's role with respect to those agencies. Later enactments, however, saw in accreditation more of an affirmative testimonial to institutional quality than a protection from entrepreneurial abuse. Thus the achievement of accreditation was itself made a desireable institutional goal for federal purposes.237

Moreover, the enactment of alternatives to accreditation-through the credit transferability route, through giving reasonable assurance for as yet unaccredited institutions or through obtaining state or federal accreditation for institutions lacking a nationally recognized accrediting agency— cannot reasonably support a notion of an implied power to regulate in the public interest such as might be made were no alternatives provided. Congress was clearly aware, however, the impact that the existence of these alternatives would have on the accrediting agencies.238

Further, the Congressional response to the specialized-generalized accreditation dispute lends further support to the position arguing a limited federal role. It must be pointed out that the House report on the abortive Partnership for Health Amendments of 1967 did not conclude (as the Committee's report the following year seems to imply), that reliance on accreditation "constitutes a delegation of legislative power" 229 but rather that “as a practical matter” it had that effect “to a degree.” 200 Moreover, the committee's reaction was not to provide greater federal authority over the policies of such bodies but simply to add additional accrediting agencies to remedy an apparent imbalance. As we observed earlier, without the testimony of any regional accrediting association in the hearings, the Health Manpower Act seemingly recognized those agencies as per se reliable. This raises the interesing question of whether the Commissioner has any authority to deny recognition, through a revision in criteria, to

**This includes the 1972 amendments, e.g. remarks of Rep. Green concerning the need for accreditation of proprietary institutions "to avoid the situation that appeared after World War I. in the GI bill." Hearings Before the House Subcommittee, supra note 156, at 684.

Supra notes 131, 132.

Supra note 136.

Supra note 191.

***Supra note 184.

374

Journal of Law-Education

Vol. 2, No. 3 a non-complying regional association, at least for the purposes of that Act. On this point it should be noted that the Commissioner has not published separate lists for each of the acts authorizing publication and the single list published simply refers to the Korean GI bill and later enact

ments.

In sum, the legislative histories do not support the notion of accrediting agencies as delegates of Federal authority.231 The history more reasonably suggests the continuing reliance on the existing accrediting systems as a facility much like the use of a rating system of a trade association as part of the specifications in a government contract.

Conclusions

Scope of the Commissioner's Authority

This study has suggested that the role of the Office of Education in recognizing accrediting agencies is limited by the terms and intent of the legislation to a determination based largely on acceptance in the academic community of the organization's reliability in matters of educational quality. It has also suggested that the Commissioner has misconstrued that function as a more general one of policing the internal policies of these agencies as a condition of federal recognition to bring them in compliance with the Commissioner's notions of what is in the public interest. Somewhat earlier it was noted that at least a portion of the 1969 revised criteria is not directed to whether the agency is reliable in ascertaining adherence to predetermined standards. This trend is accelerated in the proposed revision now being circulated, particularly with respect to the requirement of public memberships on accreditation governing boards and the encouragement of innovation.

The Need for Congressional Consideration

While the Office of Education now seeks to make accrediting agencies responsive to the public interest "as opposed to parochial educational or

The re-enactment argument is simply weightless inasmuch as the record is clear that the relevant committees never considered the accreditation-reliance system at the time of the 1972 amendments. Supra note 156. Interestingly, it appears that the General Counsel's Office of HEW prepared and made available a memorandum of June 19, 1970 concerning the delegation issue in the recognition-reliance system. In it the Office relies on the independent role of private accrediting agencies as minimizing any constitutional problem.

... private agencies undertake to accredit schools for many reasons other than Federal aid eligibility. Accreditation is generally considered to be the single most reliable indicator of institutional quality in higher education, and private accrediting agencies play a broad role-apart from the role placed upon them by the statutory provisions noted above -in maintaining and improving educational standards. The Federal-aid statutes merely take cognizance of this well-established system.

(Emphasis added.)

This study concludes that the emphasized language of the General Counsel's memorandum is

accurate.

July 1973

Federal Reliance on Voluntary Accreditation

375

professional interest" 22 the legislative histories make it abundantly clear that the system of federal reliance was based on those agencies functioning precisely in the "service of the narrower educational community.” 283 Thus any alteration in the system so established requires congressional action. Moreover, the conflict between claims of professional expertise and public accountability in eligibility for federal funds is squarely a matter for legislative treatment. It was this kind of issue in health training that resulted in the demonopolization of specialized accreditation. Whether or not one agrees with the balance struck it is clearly the role of Congress to strike it. Thus from an institutional perspective, whatever one's conclusions of the desirability of the current recognition-reliance system, one is justified in registering dubitante when an administrative agency seeks, without legislative authorization, to protect an ill-defined “public interest." It would, however, be premature to suggest the content of such further legislation. That must await the detailed findings of the Brookings study as illuminated by discussion of them, and, hopefully, by Congressional hearings.

Proffitt, quote accompanying note 210.
Proffitt, quote accompanying note 224.

Senator PELL. Today, we will hear from the Department of Health, Education, and Welfare, which will explain to us its accrediting functions, and then from Dr. Harold Orlans, who is the coauthor of a massive study on accreditation sponsored by the Brookings Institute.

I would add here that I appreciate your coming up early because I will have to leave at 11 o'clock, and Senator Hathaway has been kind enough to say he will preside to wind up the session. He can be here until a quarter of 12.

My hope is we might wind the session up by 11, but we will see how it goes.

I would urge the witnesses, since their testimony will be inserted in the record in full, to be as brief as possible in their oral testimony. Will you proceed, sir?

STATEMENT OF S. W. HERRELL, ACTING DEPUTY COMMISSIONER FOR POSTSECONDARY EDUCATION, DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE, ACCOMPANIED BY JOHN PROFFITT, DIRECTOR, ACCREDITATION AND INSTITUTION ELIGIBILITY STAFF; CHARLES M. COOKE, JR., DEPUTY ASSISTANT SECRETARY FOR LEGISLATION (EDUCATION); JAMES W. MOORE, ACTING ASSOCIATE COMMISSIONER, GUARANTEED STUDENT LOAN PROGRAM

Mr. HERRELL. Mr. Chairman, I have a rather detailed statement by the Administration which, with your permission, I would like to submit for the record.

Senator PELL. The entire statement will be entered in the record at the conclusion of your testimony.

Mr. HERRELL. I would like to present a briefer version of the statement and then to respond to your questions with my colleagues.

Mr. Chairman, the statement is divided into three major sections. First an overview of institutional eligibility determination; second an overview of the accreditation as it relates to institutional eligibility; and, finally, weaknesses and problem areas in the present system. Five informational attachments are included with this statement. Overview of institutional eligibility determination.

The passage of the Higher Education Act and related statutes in 1965 launched the need for the Office of Education to determine, compile, and prepare lists of institutions eligible to participate in various Federal education programs established under the Act. Culmination of the efforts may be seen in the list of over 8,300 institutions cited as eligible to participate in the largest and most broadly based Office of Education program of aid to students, the guaranteed student loan program, also called the Federal insurance student loan program. This program activity currently is providing Federal, State, or nonprofit guarantees to lenders in behalf of nearly 7 million separate student loans for nearly $7 billion.

To assist with identifying and creating this list of more than 8,300 eligible institutions, the accreditation and institutional eligibility staff was formed in May of 1968 to produce eligibility determina

tions for some 20 USOE programs. That staff also provides assistance to other agencies within the Department of Health, Education, and Welfare, such as the Health Resources Administration in relation to health training programs, plus affording eligibility determinations to the Department of Justice, Federal Aviation Agency, Veterans Administration, Department of Housing and Urban Development, and other Federal and State agencies.

The institutions listed as eligible include the whole range of collegiate and noncollegiate institutions included in the postsecondary education community.

Before any school or institution may become eligible to participate in education programs administered by the Office of Education, it must meet certain minimum statutory requirements, such as those indicated on the attached chart. These statutory eligibility elements fall into three categories.

The first of these categories relates to factual information, such as type of school, length of programs, and legal authorization.

The second category involves special requirements established by program administrators under broader provisions of law, through regulation specifying provisions which participating schools must meet such as "maintenance of efforts requirements" for library aid programs.

The third category deals with the qualitative aspects of schools— or educational programs-in other words, accreditation, or one of the alternatives to accredited status.

It is in administering the Office of Education's responsibilities in relation to the qualitative factor of eligibility—that is, that dealing with accreditation or its alternatives-that the greatest and most complex problems arise. Before mentioning some of these specific problems, however, we might first discuss accreditation and the Commissioner of Education's recognition of accrediting agencies.

Accreditation is a major factor in establishing the eligibility status of educational institutions and programs to participate in the various Federal funding programs of assistance to education.

It also is a unique area in the eligibility determination process, because it is a process which takes place outside the jurisdiction of the Federal Government, and it varies considerably in form and purpose, depending upon the organization conducting the process.

The practice of accreditation arose around the turn of the century in response to the need to upgrade educational quality and to establish definitions and standards for general collegiate and professional education.

It sought to execute a need that is fulfilled in many other countries of the world by ministries of education or other centralized authorities, which exercise quality control functions over education.

The philosophy of institutional autonomy in education, and the varying degree of control over institutions of higher education exercised by the States, also contributed to the need for this form of quality identification in education which is unique to the United States.

Private educational associations of regional and national scope have developed standards and procedures used in conducting peer

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