Lack of Consensus on Lack of Consensus

No, that’s not a typo in the headline. It’s a reflection of the Alice in Wonderland nature of Friday’s final day of work for the committee negotiating possible changes in federal rules governing accreditation.

The competition for the most surreal part of the day is stiff. A strong contender might have been the nearly two hours that the panel spent debating whether gatherings of the federal panel that advises the education secretary on accreditation should be called "meetings" or "hearings."

But the moment that best defined the months-long negotiating process, which ended with an anticlimactic whimper Friday after the fourth and final meeting adjourned with no vote on a package of possible rules, came when the members of the panel could not agree even on their failure to reach agreement. Heads shook around the room as negotiators and baffled observers alike packed up their things and went home, leaving the Education Department to make the next move in drafting accreditation rules without being bound by anything that happened during the course of the negotiations.

To back up: The purpose of this whole process, which the Education Department contemplated last fall and formally announced in January, was for the government to convene a set of interested parties -- accreditors, college officials and others -- to consider possible changes in the regulations that govern accreditation, higher education's quality assurance process.

The negotiations have been controversial throughout, with many college leaders (as well as some key members of Congress) questioning the department's legal authority to consider some of the changes it has sought, and department officials taking turns acknowledging and denying that their primary purpose in pursuing regulatory change was to carry out some of the recommendations of the Secretary of Education's Commission on the Future of Higher Education.

Over the months of discussion and debate during several meetings of the negotiating panel, the members reached agreement on various relatively minor issues, but remained divided about the three most significant items on the committee's agenda: (1) ways to prod accreditors to force colleges to measure and report more quantitative data about their success in educating students; (2) a proposal to insist that accreditors ensure that the institutions they oversee do not have policies that automatically reject the academic credits of students who transfer from colleges approved by national accreditors; (3) a set of possible changes in the department's process for granting recognition to accrediting agencies, which has come under fire as its standards for judging accreditors have appeared in recent months to shift inappropriately with the political winds.

Given the deep divisions that emerged over those issues at the negotiating panel's third meeting in April -- which ended in conflict and even a bit of intrigue -- the process seemed to have ended without "consensus" on a package of proposed changes, a result that, under federal law, would have left the Education Department with the right to draft rules on any subject covered by the regulatory process. Faced with that prospect, the negotiators agreed after the end of the third meeting to make a last-ditch, "good faith" effort to resolve the remaining issues, at Friday's fourth meeting.

In the days leading up to the meeting, rumors flew about possible outcomes. Several college lobbyists said they'd heard that the department was so desperate not to have this negotiating session end in failure as had its other two major rule making negotiations (on student loan and grant programs) this spring that department officials planned to offer significant compromises on student learning outcomes and transfer of credit. Others predicted that the department would make a few concessions and then force college and accrediting officials to vote No on the proposals, in the hope that they would make the naysayers look defensive and unwilling to change.

The composition of the audience at Friday's meeting reflected the stakes. Sara Martinez Tucker, the under secretary of education and the department's top higher education official, gave a pep talk as the session opened, anticipating a "tough, tough conversation at a critical point" and encouraging the panelists to do the right thing "for our children."

Joining the usual cadre of college and accrediting lobbyists in the peanut gallery, for instance, was the Rev. Charles Currie, president of the Association of Jesuit Colleges and Universities (the group's lobbyist said he was there to "make a statement" about the importance of the process to its member colleges, but there were jokes about him being there to administer last rites for the process, too).

And keeping a watchful eye on the proceedings was a top aide to Sen. Lamar Alexander, the Tennessee Republican and former U.S. education secretary who last week warned Secretary Margaret Spellings that the department should not overstep its bounds in proposing accrediting rules that exceed its legislative authority.

Any thought that the department had a major gambit up its sleeve seemed to abate almost immediately. Vickie L. Schray, the department's lead negotiator, offered a strong defense of the department's approach, complained that critics (presumably Alexander and commenters in articles in publications like this one) had mischaracterized the department's proposals as "trying to increase our scope and authority," and reminded everyone that it would be more than a year until any regulations that might emerge from the process take effect. "It's going to take a couple years, folks," before any of these proposals really have an impact, Schray said.

Then the group delved into the intricate (read: mind-numbing) details of a proposal to ensure more clarity and consistency in the procedures of the National Advisory Committee on Institutional Quality and Integrity, which advises the education secretary on accreditation issues and on granting (or withholding) federal recognition for individual accrediting agencies.

The conversation should have been an important one, given recent developments involving the advisory committee, including last week when it overrode a recommendation made by the department's staff and, with no notice, for the first time yanked the recognition of a division of one of the six regional accrediting agencies.

That followed on its actions at its last meeting, in December, when the panel appeared to be changing its requirements for accreditors in response to prevailing pressure from the secretary's higher education commission to insist that accreditors set minimum levels of performance for the colleges they oversee to meet for their students' learning.

But instead of exploring philosophical or political issues about the committee's power -- "the elephant in the room," as more than one audience member described it -- the negotiating panel's discussion focused on relative minutiae: whether calling the biennial gatherings of NACIQI "hearings" instead of "meetings" would undermine the legal rights of accreditors whose recognition is restricted, for instance, and the number of days before each NACIQI meeting (or hearing, as it were) that accreditors should get or send documents to and from the department.

While the discussion of revamping procedures for NACIQI was useful, said Judith S. Eaton, president of the Council for Higher Education Accreditation and a negotiator, "I also think we need to be going much further in considering the role and operation of the advisory committee. It's time for a review, for a fresh look at how advisory committee members are selected, the diversity of them or lack of it, its operations and policies, going well beyond what we're doing here."

As the hours wore on during Friday's discussion, it became clearer and clearer that the members of the negotiating panel were not going to reach agreement on the proposal for revamping procedures for the federal recognition process, let alone the learning outcomes and transfer of credit issues that so divided them at previous meetings.

So where did that leave them in the big picture? several panelists asked at various points during the day.

Finally, in the late afternoon, after Schray met with members of the department's staff for a brief caucus, she said it had become clear to her that the group was not going to reach "tentative agreement" (a term of art in federal rule negotiating) on the proposal on recognition procedures. Given that failure, and the other major issues on which the negotiators remained divided, Schray said, department officials had decided to conclude the proceedings without a vote on the full package of proposals.

Instead, she said, the department vowed, "without making any promises," to "make every effort to use your input, the language we have discussed at this table, not only on those items where we had tentative agreement, but in those we did not, in the development of proposed rules" in the weeks and months to come.

Betty Horton, a negotiator representing the Association of Specialized and Professional Accreditors, which she co-chairs, said the members of the panel had been led by the department to think that they would be voting on whether the group could reach "consensus" (another formal term in the process) on the full package of proposals. She asked that they have a chance to do that.

"Our response," said Schray, is that "while we have worked toward consensus on the full package, it is clear we will not have consensus. Therefore, we see no reason to vote on the full package at this time."

Horton and others pressed further, and one asked questions about the implications of the fact that the group had been unable to reach consensus on the full package of proposals.

In perhaps the final through-the-looking-glass moment of an often surreal process, Schray balked. "We are not acknowledging that there is not consensus on the full package," she said, seeming to contradict what she had said just moments before.

With that, the proceedings came to an end, leaving many of the negotiators and most of those in the audience shaking their heads, trying to understand what had just happened and why it was important for the department not to admit that its process had fallen short of agreement on the most significant issues before it.

To Eaton, of the higher education accreditation council, one thing was clear: "There may have been a relatively soft landing, but the bottom is there was no consensus, and that rule making failed."

What that means, going forward, is that the Education Department can issue proposed regulations that say more or less whatever its officials want -- because no consensus was reached, they are not bound by the results of the rule making process, even on the issues on which the negotiators agreed.

That is just what happened last week when the department issued proposed rules out of the similarly failed rule making process on student loan issues (see related article here).

As Schray told the negotiators Friday: "You'll have another shot at us" when the proposed rules come out. She might as well have been speaking to Lamar Alexander as to them.