Legislative Intent in Sec. 496

The legislative history of Sec. 496 of PL 102-325 (106 Stat. 448) clearly shows what was intended by both the US House of Representative and the US Senate:

 

During the Committee's hearings ... witnesses generally faulted the existing triad system ... for being ineffective in assuring integrity in the Title IV programs and preventing abuse and mismanagement of Title IV funds. The Committee intends that institutional eligibility criteria be strengthened under H.R. 3553. ... H.R. 3553 sets forth a list of criteria by which an institution's performance can be measured. (House Report No. 102-447, page 85)

 

The House Conference Report that describes the final resolution of differences between US Senate and House versions of PL 102-325 is even more direct:

 

Both the Senate and House bills require the Secretary to establish minimum standards for accreditation associations and lists requirements for these standards with minor differences in language. The Senate bill includes these provisions in Subpart 2 of Part G of Title IV, while the House bill includes them in Title XII. The conference substitute incorporates these standards in Subpart 2 of Part H. (House Conference Report No. 102-630, page 523)

 

When the Train Left the Tracks

With such explicit language pertaining to legislative intent, requiring "the Secretary to establish minimum standards for accreditation associations" and requiring the listing of "requirements for these standards" preceding the promulgation of the final regulations at 34 CFR 602, it becomes nearly impossible to reconcile the statute and the regulations.

 

The reason is that a way was found to nullify the intent of Congress by former Secretary Richard Riley. Using what he called a "minimalist" approach to managing these statutory requirements for the regional and national accrediting associations (59 Fed Reg No. 82,  April 29, 1994), Sec. Riley's actions obscured many of the problems which we have been discussing, but which now must be faced. Regarding what has been in place now for decades, Riley's stratagem is -- for all intents and purposes -- a hands-off policy that the department has been using to dodge its fiduciary responsibilities to the American people and Congress. By hiding behind the Secretary's hands-off policy, departmental committees and AAEU staff sign off on flagrant accrediting association violators.

 

We believe that this history presents three areas of legal vulnerability. The first has already been mentioned: the minimalist interpretation of Sec. 496 constitutes a breach of fiduciary trust by the Secretary. Secondly, the minimalist accreditation policy has effectively delegated to the accrediting associations duties and responsibilities that properly lie with the Secretary and were expressly given by Congress to the Secretary of Education. Thus, the Secretary has acted arbitrarily and capriciously while exceeding his authority in this ultra vires delegation of authority to the accrediting associations. Thirdly, the Secretary has acted arbitrarily and capriciously by refusing to implement the intended provisions of Sec 496. This constitutes in our view gross negligence. Together, these have resulted in irreparable harm to taxpayers and the federal interest (cf. Flast v. Cohn). 

 

It may be that the painful process of judicial review is the only way to "get the train back on the tracks." But this might not be what Congress envisioned either. Scholars have often observed how Congress leaves itself a escape-hatch, whereby legislation appears to accomplish one objective, but in reality it simply shifts the burden (and the blame) elsewhere. This very well may apply to the present situation.

 

REQUIRED HEA Sec. 496 STANDARDS AND THEIR APPLICATION

34 CFR 602.16 Accreditation and preaccreditation standards.
(a) The agency must demonstrate that it has standards for accreditation, and preaccreditation, if offered, that are sufficiently rigorous to ensure that the agency is a reliable authority regarding the quality of the education or training provided by the institutions or programs it accredits.

The agency meets this requirement if --

(1) The agency's accreditation standards effectively address the quality of the institution or program in the following areas:

(i) Success with respect to student achievement in relation to the institution's mission, including, as appropriate, consideration of course completion, State licensing examination, and job placement rates.

(ii) Curricula.

(iii) Faculty.

(iv) Facilities, equipment, and supplies.

(v) Fiscal and administrative capacity as appropriate to the specified scale of operations.

(vi) Student support services.

(vii) Recruiting and admissions practices, academic calendars, catalogs, publications, grading, and advertising.

(viii) Measures of program length and the objectives of the degrees or credentials offered.

(ix) Record of student complaints received by, or available to, the agency.

(x) Record of compliance with the institution's program responsibilities under Title IV of the Act, based on the most recent student loan default rate data provided by the Secretary, the results of financial or compliance audits, program reviews, and any other information that the Secretary may provide to the agency; and

(2) The agency's preaccreditation standards, if offered, are appropriately related to the agency's accreditation standards and do not permit the institution or program to hold preaccreditation status for more than five years.

(b) If the agency only accredits programs and does not serve as an institutional accrediting agency for any of those programs, its accreditation standards must address the areas in paragraph (a)(1) of this section in terms of the type and level of the program rather than in terms of the institution.

(c) If none of the institutions an agency accredits participates in any Title IV, HEA program, or if the agency only accredits programs within institutions that are accredited by a nationally recognized institutional accrediting agency, the agency is not required to have the accreditation standards described in paragraphs (a)(1)(viii) and (a)(1)(x) of this section.

(d) An agency that has established and applies the standards in paragraph (a) of this section may establish any additional accreditation standards it deems appropriate.

(Approved by the Office of Management and Budget under control number 1845-0003)

(Authority: 20 U.S.C. 1099b)
Source:http://usinfo.state.gov/infousa/education/overview/accreditation.html