ACCJC’s Appeals are Denied!

If you’ve been following my frequent posts on the controversies involved the Accrediting Commission for Junior and Community Colleges (ACCJC) and the City College of San Francisco (CCSF), you’ll recall that last month I reported at length on a meeting of the National Advisory Commission for Institutional Quality and Integrity (NACIQI) attended by California community college faculty, students and allies and where the Commission recommended to the Secretary of Education that ACCJC be given just six months to come into compliance with a number of federal regulations governing accrediting agencies whose accreditation entitles institutions to federal funds.  Two years ago NACIQI recommended that ACCJC be found out of compliance with 15 federal regulations.  The agency appealed two of these findings — that ACCJC is not “widely accepted” by those it reviews and that faculty are inadequately represented on its visiting teams — and those appeals sat on the Secretary of Education’s desk for two years and were, therefore, not considered at last month’s NACIQI meeting.

Yesterday, however, interim secretary John King finally released a decision denying ACCJC’s appeals and giving the agency a year to come into compliance with these two regulations.  The decision did not address the NACIQI recommendation that ACCJC be given just six months to comply with the remaining regulations.

With respect to the first regulation, 34 C.F.R. § 602. B(a) – Wide Acceptance by Educators, the Secretary wrote:

Under 34 C.F.R. § 602.13, an accrediting agency “must demonstrate that its standards, policies, procedures, and decisions to grant or deny accreditation are widely accepted in the United States by,” among others, “[e]ducators and educational institutions.”

ACCJC asserts that it provided “overwhelming evidence of broad-based support from educators.”35 However, ACCJC argues that the Department inappropriately discounted this evidence and failed to look at additional evidence submitted to bolster the application.  ACCJC also asserts the Department allowed itself to be inappropriately influenced by “a disgruntled faction associated with a single institution,” namely the City College of San Francisco (CCSF). Finally, ACCJC claims the Department treated it disparately and unfairly compared to other accrediting agencies.

Based on the following analysis of these arguments, I am unpersuaded by ACCJC and reach the same conclusion as the SDO [Senior Department Officer].

Specifically, the ruling continues,

ACCJC cites more than 50 letters of support submitted as part of its application, and the characterization of these letters by certain members of the NACIQI, as widespread acceptance by educators. . . .  ACCJC challenges the decision by OPE staff to discount some of these letters as not being “from ‘educators”‘ because the term “educator” is not defined in the HEA or the Department’s regulations. ACCJC defines the term “educator” to include “educational administrators like chancellors and fiscal advisors as well as academics such as faculty and researchers. ” Because it asserts this evidence is overwhelmingly in favor of recognition, ACCJC laments that it does not know what it could possibly submit over the next 12 months to obtain the Department’s recognition. . . .

The crux of this issue is how to define the term “educator.” A basic tenet of statutory interpretation is that a rule must be read to give each separate word meaning so that none are made superfluous. Clearly, under § 602.13, an educator is not synonymous with an educational institution. A letter from an educational institution or a head administrator on behalf of an institution would not satisfy the separate requirement for educator support.

At the same time, I am not convinced the regulation imposes an unusually narrow definition of the term “educator” without specifically defining the term. While discussing a different recognition criterion in the Federal Register, the Department referred to “educators, i.e ., academic and administrative personnel. ” I find that the regulatory scheme separately contemplates “educators” and “educational institutions,” and it subdivides educators into “academic” and “administrative” personnel. Therefore, both academic and administrative personnel can lend support that satisfies the § 602.13 requirement of educator support.

Despite my interpretation of the regulation, I do not find grounds to reach a conclusion different than OPE, NACIQI and the SDO. The recognition process is highly discretionary and relies on the professional experience and common sense of individuals at each level of the process. In this case, OPE staff found ACCJC conspicuously lacking in support from academic faculty, and therefore did not consider ACCJC “widely accepted” by educators. I agree. This conclusion is bolstered where, as here, an entire category of educators withheld support and, in some cases, voiced opposition.

ACCJC also appealed on the ground that the department had given inappropriate weight to complaints from CCSF faculty and their supporters and to comments made by them and two NACIQI members at public hearing.  To this the Secretary responded,

First, I find that complaints against an accrediting agency are precisely germane to a recognition proceeding, including third-party comments to a NACIQI meeting. At the same time, every participant in the recognition process is expected to view such complaints in the context of the accrediting agency’s mission. The multi-tiered recognition process ensures that no single decision maker is unduly influenced as ACCJC suggests is the case here. Therefore, I reject ACCJC’s assertion that the CCSF complaints should have been categorically ignored as an “impermissible basis” for a recommendation.

I also find no evidence that OPE, NACIQI or the SDO improperly weighted these complaints over other evidence. Most importantly, I note the finding of noncompliance with § 602.13(a) rests primarily on the definition of the term “educators” and the unpersuasive documentary evidence submitted by ACCJC with its application. The written complaints and third-party comments stemming from the CCSF action only further challenge ACCJC’s evidence of support.

I also find that OPE gave an even-handed analysis of the CCSF comments.

Turning to the second regulation, 34 C.F.R. § 602.15(a)(3) – Administrative Responsibility, the decision states:

Among the things the accrediting agency must demonstrate is that it has “[a]cademic and administrative personnel on its evaluation, policy, and decision-making bodies, if the agency accredits institutions.” In the initial presentation at the NACIQI meeting, OPE summarized, “[ACCJC] did not provide documentation that a representative number of academics serve on site teams . . . . A large part of the issue . . . is the agency’s own definition of an academic representative, which is not comparable with the generally accepted policies and practices within [ACCJC] and wider higher education community.

ACCJC argues the statute simply requires that an accrediting agency have academic personnel on site teams, that there is no measure of adequacy for the participation of academics on these site teams, and therefore the inclusion of a single academic on a site team satisfies the requirement. . . .

Academics are a subset of educators in the regulatory scheme. Yet many professionals in the education world embrace roles that cross the boundaries between academics and administration. Whether policies and actual site teams comply with these recognition criteria is necessarily a subjective analysis. The statute does not expressly require equal representation of both academics and administrators. Nevertheless, I disagree that the criteria can be satisfied by the presence of a single academic in all cases. In the case of ACCJC, reviewing professionals uniformly agreed that such representation was inadequate and failed to satisfy the regulatory requirement. Accordingly, I reject ACCJC’s interpretation of this criterion.  . . .

OPE and NACIQI both determined that ACCJC was noncompliant with the requirement of academic representation on site teams. OPE found ACCJC’s site team composition inadequate even after ACCJC made a required policy change designed to ensure academic representation. I find no grounds for ignoring this evidence of noncompliance or second-guessing the judgment of both OPE and NACIQI in their opinions of what qualifies as academic representation. After evaluating the same evidence OPE and NACIQI considered, I agree with their recommendation.

The denial of their appeals is another blow to ACCJC’s efforts to continue as the sole accrediting body for tw0-year institutions in California.  Indeed, it is arguable that, especially with respect to the “wide acceptance” criterion, ACCJC will face a much more daunting task now than it might have two years ago.  Then most of the opposition to the agency came from faculty and faculty unions, especially at CCSF.  And while CCSF faculty remain at the heart of the opposition, criticism of ACCJC has since spread widely to administrators, trustees, and political leaders.  As I reported in my previous post, Brice Harris, Chancellor of the California Community Colleges, in December asked NACIQI to deny a requested expansion of scope, noting that on the basis of a report from a broad task force his Board of Governors had resolved to seek a different accrediting agency for the state’s 113 community colleges.   It is difficult to see how, within twelve months, ACCJC will be able to claim “wide acceptance” even beyond the faculty members.

In a development that is probably coincidental just as the secretary’s decision was announced it was also revealed that Krista Johns, ACCJC Vice President for Policy and Research, will become interim president of Berkeley City College (BCC), where she previously served as an administrator under Barbara Beno, who is now President of ACCJC.  It was unclear if Johns will leave her ACCJC position, but if she does depart talk about deserters from sinking ships should be expected.  More interesting is that last year BCC was sanctioned by ACCJC. Speculation has already begun that the school’s trustees hope Johns will be able to use her influence at the agency to get that sanction lifted.  We shall see.

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