Senate and Spellings: Showdown Looms

The plan for months has been for the U.S. Education Department to propose changes in federal regulations governing the higher education accreditation system by July, with the goal of having them take effect a year from now, before the Bush administration ends.

But if department officials stick to that plan now, they will have to directly defy Congress to do so.

Eighteen of the 21 members of the Senate Health, Education, Labor and Pensions Committee sent a letter to Education Secretary Margaret Spellings late Thursday in which they “respectfully” asked her to refrain from issuing those new regulations until Congress passes legislation to renew the Higher Education Act.

The letter from the bipartisan group of senators, who represent all but three Republicans on the Senate education panel, represents an upturn in Congressional pressure on department officials not to proceed with their plans to use the federal regulatory process try to transform higher education’s system of self-regulation. Those efforts, which grew from the work last year of the Secretary of Education’s Commission on the Future of Higher Education, have been controversial among many accreditors and college officials, who have accused the department of seeking changes that are not supported in underlying federal laws governing accreditation, which have not changed since 1998.

Last month, Sen. Lamar Alexander (R-Tenn.), who was among the signers of last week’s letter, warned Spellings in a speech on the Senate floor that he would seek to add a provision to soon-to-emerge Higher Education Act legislation that would prevent the department from issuing final regulations (the last stage of the federal regulatory process) for one year.

And two weeks ago, a House of Representatives appropriations subcommittee attached to its 2008 spending bill for education and health programs a provision that would prevent the Education Department from using any funds to propose or enact new accreditation rules. That is a standard tactic used by Congressional appropriators to block executive branch behavior that they don’t like, and a spokeswoman for Rep. David Obey (D-Wis.), who sponsored the provision, said that lawmakers intended to slow the department down.

Because the Senate Higher Education Act legislation has yet to emerge, and there is no chance that the spending bill for 2008 will become law before late summer, the Education Department could technically take the likely next step in its regulatory process -- issuing proposed rules – without directly contravening Congressional authority.

But the letter drafted by Sen. Edward M. Kennedy (D-Mass.) and signed by most of his Democratic and Republican colleagues on the Senate education panel would appear to leave department officials in the uncomfortable position of having to decide whether to ignore a clearly stated request (if not demand) from an important group of lawmakers. Spellings and other Education Department officials very much need to work well with Kennedy and the other senators not just because of its higher education priorities, but because they are in a position to make or break the department’s top legislative goal for this year, renewal of the law that carries out the No Child Left Behind law.

In their letter, the senators seek to reassure department officials that they share some of the underlying goals of the department’s efforts to revamp the accreditation system. “Although members differ on the particulars, we support your overall goal of ensuring that our accreditation system is an effective means of promoting quality in higher education,” they write. Changes are needed, they write, to “strengthen our nation’s accreditation system by clarifying the Department of Education’s responsibilities with respect to recognizing accreditation agencies and organizations, and [specify] the criteria that these agencies should examine when reviewing institutions of higher education.”

But as Alexander and members of the House panel said previously, the senators made clear that they thought it was inappropriate for the department to make changes in federal rules now, given that Congress will soon change the laws in ways that would require the department to again draft changes to carry out those alterations in the law.

“[G]iven our committee’s expectation that the current accreditation provisions will soon be changed, and that a new round of rulemaking on this issue will subsequently be needed, we respectfully ask that you refrain from proposing new regulations on accreditation until after the Higher Education Act is reauthorized,” the senators wrote.

Department officials have repeatedly declined to comment on the warnings coming out of Congress. But comments that Spellings made when she testified last month before a House panel about regulatory changes the department has proposed to govern the student loan programs may apply in this situation as well.

Responding to suggestions that the department had done too little to rein in improper practices in the student loan industry, Spellings noted that the department had initiated the federal regulatory process because its officials did not feel that they could wait for Congress to pass legislation to renew the Higher Education Act, on which lawmakers began work in 2003 and that stalled in 2005.

“At that time, Mr. Chairman, you and other members of this committee sent me a letter requesting that I delay further action until Congress could act.... [I]n the absence of completed Congressional action, it’s been my duty to expedite reform.”

The text of the senators' letter and a list of the signers appears below. The members of the Senate panel who did not sign the letter were Republican Sens. Orrin Hatch of Utah, Wayne Allard of Colorado, Tom Coburn of Oklahoma.

June 14, 2007

The Honorable Margaret Spellings
Secretary, U.S. Department of Education
400 Maryland Avenue, S.W.
Washington, D.C. 20202
Dear Secretary Spellings:

As you know, the Committee on Health, Education, Labor, and Pensions is moving forward with reauthorization of the Higher Education Act. We’re writing to let you know that we plan to make changes to the section of the law that deals with accreditation. We believe these changes will strengthen our nation’s accreditation system by clarifying the Department of Education’s responsibilities with respect to recognizing accreditation agencies and organizations, and by specifying the criteria that these agencies should examine when reviewing institutions of higher education.

Obviously, we’re aware that you have just completed negotiated rulemaking on accreditation based on current law, and that the next step is for the Department to publish proposed regulations on this topic. Although Members differ on the particulars, we support your overall goal of ensuring that our accreditation system is an effective means of promoting quality in higher education. However, given our Committee’s expectation that the current accreditation provisions will soon be changed, and that a new round of rulemaking on this issue will subsequently be needed, we respectfully ask that you refrain from proposing new regulations on accreditation until after the Higher Education Act is reauthorized.

Thank you for your attention to this matter.

With respect and appreciation,

Sincerely,

Edward Kennedy (D-Mass.)
Christopher Dodd (D-Conn.)
Tom Harkin (D-Iowa)
Barbara A. Mikulski (D-Md.)
Jeff Bingaman (D-N.M.)
Patty Murray (D-Wash.)
Jack Reed (D-R.I.)
Hillary Rodham Clinton (D-N.Y.)
Barack Obama (D-Ill.)
Bernard Sanders (I-Vt.)
Sherrod Brown (D-Ohio)
Michael B. Enzi (R-Wyo.)
Judd Gregg (R-N.H.)
Lamar Alexander (R-Tenn.)
Richard Burr (R-N.C.)
Johnny Isakson (R-Ga.)
Lisa Murkowski (R-Alaska)
Pat Roberts (R-Kan.)