This is a report to the ABA Section of Legal Education and Admissions to the Bar members on the status of the Council’s authority as the agency recognized by the United States Department of Education to accredit law school J.D. programs. I hope this will clear up some of the reports and commentary that were published in the wake of the Council’s appearance before the National Advisory Committee on Institutional Quality and Integrity (NACIQI) in late June.
Like ABA-approved law schools, the Council’s authority to be an accrediting agency is periodically reviewed. That process begins with the agency filing a petition for re-recognition – which we did. It ends with a determination by the senior Department official at the United States Department of Education that the agency’s authority should be continued, continued with an obligation to report back, or terminated. There has been no such determination.
Steps along the way in this process include a review and recommendations of the agency’s petition by the professional staff in the Department of Education’s Office of Post-Secondary Education Accreditation Group, and consideration and a recommendation by NACIQI.
In our case, the staff recommendation was that the Council’s petition demonstrated compliance with all of the core requirements for recognition, but that we needed to respond to some technical deficiencies that were noted and report-back on our corrective action in a year. That is all within the ordinary and typical flow of an accreditation process. The final staff report is public and available on the Department’s website.
The staff conclusions are then presented to NACIQI during a hearing at which we appear. NACIQI, then, makes a recommendation to the senior Department official. That recommendation should be based on facts and the evidence in the record, which in this case is our petition, the staff report, and a hearing at which we appeared.
NACIQI was created in the Higher Education Act. Its primary function is to provide recommendations to the Secretary concerning whether accrediting entities’ standards are sufficiently rigorous and effective to ensure that the entity is a reliable authority regarding the quality of the education or training provided by the institutions or programs it accredits. NACIQI is a political body, comprised of 18 members, one-third each of which are appointed by the Speaker of the U.S. House of Representatives, the President pro tempore of the U.S. Senate, and the Secretary of Education. The appointments are for varying terms. It is a group that, along with many of the accrediting agencies it recognizes, finds itself in the middle of the current, sometimes contentious, public discussion about the role, performance, and regulation of post-secondary education in the United States.
At the conclusion of the hearing, NACIQI adopted the following motion:
"NACIQI recommends to continue the agency’s recognition as a nationally recognized accrediting agency at this time, limit the scope of the agency’s recognition to exclude the accreditation of any new institutions and programs, and require the agency to come into compliance within 12 months with the criteria listed in the final staff analysis, and in addition, sections 602.19(b) and 602.20, and submit a compliance report due 30 days thereafter that demonstrates the agency’s compliance."
The Council believes, and believes that its petition reflects, that it is operating in compliance with the recognition criteria. The process provides an opportunity for both the agency and the staff to comment on NACIQI’s recommendation. We have filed our comment, urging the senior Department official to accept the staff recommendation and to not accept the additional conclusions that NACIQI added. The next step is for a senior Department official to make a decision. Ninety days are allowed for that decision to be made, and there is even further process available following that decision.
The Council believes that it is in compliance with the core recognition criteria and that the record supports that conclusion. Further, the record is devoid of credible facts to support a contrary conclusion on the particular criteria NACIQI cited. We are hopeful that the senior Department official will agree with our position and accept the original staff recommendation. If not, we will take the steps necessary to address the concerns NACIQI expressed and file our report in a year. Because the action taken by NACIQI was based on the discussion at the hearing and not on anything in the written record, there are some uncertainties about the coming year in the action that NACIQI took that we will address with the Department if the senior Department official accepts NACIQI’s report.
I trust that this outline makes clear that we are in the middle of a process and that no conclusion has been reached about the Council’s ongoing authority, contrary to the implication in some articles and blog postings. Again, we believe that we are operating in compliance with the recognition criteria and look forward to demonstrating that fact at the appropriate time, as required.