December 2010 Issue • Volume 38 • Issue 9

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New Department of Education Rules Raise Questions about "Quality" in Higher Ed

Margaret Weigers Vitullo, ASA Academic and Professional Affairs Program

On October 29, 2010, the U.S. Department of Education released 13 new rules related to program integrity and gainful employment in higher education. The new rules will go into effect on July 1, 2011. A second set of rules that further define the gainful employment regulations will be released in early 2011 and go into effect in the summer of 2012. The lengthy negotiated rule-making process that was used in preparing the new rules has, according to Insider Higher Ed, resulted in "one of the most complex sets of regulations ever to be promulgated by the U.S. Department of Education."


The impetus for the new rules is the proliferation of for-profit institutions of higher education, where students often have lower than average completion rates and higher than average student loan default rates. According to the Department of Education, the purpose of the new rules is "protecting students from aggressive or misleading recruiting practices, providing customers with better information about the effectiveness of career college and training programs, and ensuring only eligible students or programs receive aid." Consistent with their initial impetus, the most demanding rules, related to reporting completion rates and gainful employment for program alumni, only apply to proprietary institutions, but many other rules announced by the Department of Education apply to public and private colleges.

Together, the rules represent a new level of federal involvement in shaping higher education. They also raise questions about the role of accreditation and peer review as the traditional means of assuring quality and integrity at the post-secondary level.

Rules Affecting Non-Profit Institutions

Many of the new regulations will need to be implemented at the institutional level—for example, colleges and universities may not pay recruiters based on the number of students they enroll, and if students without a high school diploma are admitted, they must determine that those students have the ability to benefit from their program according to new stricter rules. Other regulations have implications for practices at the department or program level.

One of the rules that could impact departments and programs regards prohibition of "any false, erroneous, or misleading statement" in marketing, advertising, recruiting, or admissions. The misrepresentation rule specifically mentions inaccurate statements regarding program accreditation, transfer credit, and preparation for licensure as examples, but also includes language broad enough to potentially apply to information about program content, course offerings, and benefits to graduates.

A second rule that could impact departments requires a "structured and consistent approach to evaluating a student’s academic work" in order to ensure that all students who receive federal financial aid are making satisfactory academic progress. This could lead to a new level of scrutiny of individual course syllabi by college administrators and accreditors to be sure that the criteria and process by which grades will be determined are clearly stated.

A third rule establishes a standard definition for credit hour as the equivalent of one hour of class time (not necessarily ‘seat time’) plus two hours of out-of-class study. Accreditors have been instructed to examine whether an institution’s assignment of credit hours for specific courses follows this definition.

A fourth rule allows students to use federal financial aid to cover the cost of re-taking a course, even if they passed the course the first time. This new regulation will allow students who passed a remedial course with a low grade to take the course again. It will also make it possible for students to complete two credit-bearing internships or two research practica that have the same catalog number.

Finally, a fifth rule states that Pell Grant funds, which are awarded to the neediest students, must be dispersed within seven days of the start of the term. The Department of Education hopes that this will address the problem of students not receiving their financial aid in time to buy the books and supplies needed for their courses.

Who Determines Quality in Higher Education?

In specifying procedures that, in some cases, impact the day-to-day program-level delivery of higher education, these new regulations may represent an attempt to shift the federal government’s role in the determining standards of quality in higher education. Determination of standards and quality in higher education generally takes place through interactions among three sets of actors: accrediting bodies, state governments, and the federal government. The 1952 the Veterans Readjustment Act required that the federal government begin publishing a list of recognized accrediting associations, and, in 1965, the Higher Education Act established the process by which accrediting associations could receive federal recognition. The federal government does not directly accredit individual institutions or programs; rather, it recognizes the authority of specific voluntary non-governmental organizations to do so. Within the U.S. Department of Education, the National Advisory Committee on Institutional Quality and Integrity (NACIQI) is charged with determining which accrediting organizations will receive recognition. A recent study by the Council for Higher Education Accreditation indicates that, at the state level, oversight of higher education takes a wide variety of forms, although accreditation plays an important role in all 50 states’ decision-making processes.

In short, in the triad defined by accreditors, state governments, and the federal government, it is accreditors who have historically taken the largest role in defining the operational criteria for institutional quality and evaluating whether those criteria are satisfied. Accreditors generally use volunteers from other institutions and programs to conduct accreditation reviews. A shift toward greater federal involvement in directly defining quality and standards could be viewed as a shift away from peer review, a concept that lies at the heart of higher education.

Higher Education’s Social Contract

In the 2009 Association of American Colleges and Universities report, The Future of the Professoriate: Academic Freedom, Peer Review, and Shared Governance, Neil W. Hamilton and Jerry G. Gaff describe a social contract that exists between academic professionals and society. They argue that society grants professors and the institutions where they work a level of freedom for self-regulation far beyond most other social sectors because of the vital role they have in the creation and dissemination of knowledge and the unique qualifications necessary for determining quality within that realm. In turn, colleges and universities accept the duty to engage in rigorous peer review and shared governance.

In the second part of the report, Gaff explains that this traditional social contract is being challenged by a variety of factors such as: the emergence of for-profit and internet-based institutions; an increasing emphasis on student learning as perhaps the central activity of higher education; increases in contingent faculty; and new pedagogical practices including interdisciplinary studies, service learning, and a new emphasis on the practical application of abstract learning. At the same time, faculty are increasingly reluctant to participate in college and university governance structures, resistant to assessment, and hesitant to include contingent and interdisciplinary faculty in peer review.

According to Gaff, higher education must respond to the rapidly changing context of higher education by adapting the peer review and shared governance system to take into account the changing reality of higher education. If this fails to occur, he fears the autonomy of academic professionals will erode.

The U.S. Department of Education’s new rules may not, in themselves, represent a major erosion of autonomy in higher education, but they do indicate an additional level of federal involvement in shaping higher education. Education Secretary Arne Duncan has asked NACIQI, which met in Washington, DC, on December 2-4, 2010, to develop a set of recommendations in preparation for the 2013 renewal of the Higher Education Act, including suggestions for how to alter the current system of accreditation in response to calls for more accountability regarding standards and quality in higher education. logosmall

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