Tuesday, August 3, 2010


Academic Freedom Endangered, Warns Colorado Christian University CCU President Bill Armstrong

Leaders in higher education are voicing concern over a proposed new rule from the US Department of Education, which would place private colleges and universities under the ultimate control of state governments instead of independent accrediting agencies.
The notice of proposed rulemaking was posted in the Federal Register on June 18 for a public comment period ending August 2. It could take effect as soon as November.

Accreditation, the gateway to academic and financial viability for all colleges and universities, whether tax-supported or not, would made conditional upon state regulation and authorization for the first time ever.

By specifying that such regulation be “substantive” and that “adverse action” be part of the authorization process, the pending federal rule would plunge private higher education into the maelstrom of ideological agendas and interest-group politics in 50 state capitals.

Former US Senator Bill Armstrong, now president of Colorado Christian University, warned in a July 30 letter to the US Department of Education that this could mean the all-out politicization of American higher education, endangering academic freedom, due process, and First Amendment rights.

The American Council on Education, in a joint letter on behalf of its membership filed today, cautioned about “heavy compliance burdens” and “regulations that appear to overrule state law,” along with “inconsistent and ambiguous language that… will start a cycle of regulatory logrolling.”

The Council for Christian Colleges and Universities sent an email urging presidents of its member institutions to comment on the “very troubling” proposed regulations before today’s midnight deadline – a time limit that Armstrong had asked federal officials to extend by 60 to 90 days in his letter last week.

“In the big picture,” said Armstrong today, “this is part of an unprecedented power grab in which government has already moved to dominate such industries as automobiles, energy, health care, banking, home loans, and student loans – and now seeks dominance over the colleges and universities themselves.

“Those harmed the most, if it goes through,” he added, “will be millions of young students seeking a college degree on campuses where intellectual diversity and open inquiry can flourish without government intrusion. This must be stopped.”

The proposed federal rulemaking is Docket ID-2010-OPE-0004.

Available to comment on the issue are Paul Corts at the Council for Christian Colleges and Universities, 202.546.8713, and Tony Pals at the National Association of Independent Colleges and Universities, 202.739.0474, as well as CCU President Bill Armstrong at 303.963.3350.

The text of Armstrong’s open letter from July 30, 2010, is below.


July 30, 2010

Ms. Jessica Finkel
U.S. Department of Education
1990 K Street, NW
Room 8031
Washington, DC 20006-8502

Re: Notice of proposed rulemaking published in Federal Register, 6/18/2010

Dear Ms. Finkel –

Thank you for the opportunity to comment on rules proposed by the Department of Education in its notice which was published in the Federal Register on June 18, 2010. On behalf of Colorado Christian University, I submit the following comments and recommendations:

(1) The proposal entails sweeping revision in the process of accreditation for the nation’s colleges and universities, changes which will fundamentally alter a process which has served the nation well for many decades. The proposed rules are complex and, in present form, are unclear as to their application and ultimate effect.

Unfortunately, only about six weeks have been allowed for the preparation and presentation of comments. Under the circumstances, and in view of the significant regulatory burden entailed in the proposals, I recommend an extension of the comment period for 60 or 90 days to give institutions and interested individuals adequate time to consider and respond to the proposals.

I realize, of course, that Department policy-makers and representatives of higher education have been discussing these matters for some time. But it is likely that most of the institutions and individuals who are directly affected are, even now, only dimly aware of the pending rules. A brief extension could do no harm and might well elicit many additional, useful comments. The need for additional input is underscored by the inability of the Department to reach agreement during the Negotiated Rulemaking process.

(2) The proposal will be understood as a vote of “no confidence” in the nation’s regional accrediting agencies, a most unfortunate result. These agencies may have shortcomings, but they are entitled to great respect, deference and commendation for their long history of safeguarding academic freedom and high standards for the nation’s colleges and universities. Undermining the authority of regional accrediting peer review process will make matters worse rather than better.

(3) The proposed rules will subject both public (government owned and operated) colleges and universities and private schools to “substantive” regulation by state government. Moreover, the rules require that state “authorization” include provision for “adverse action” which, presumably, means individual states will have to establish guidelines, standards and requirements against which institutions are to be judged.

Many states may exercise restraint in doing so. But, inevitably, some state legislatures or agencies will get deeply involved in setting course requirements, quality measures, faculty qualifications and various mandates about how and what to teach, an outcome which will seriously compromise the cherished tradition of independence which is an invaluable component of America’s system of Higher Education.

(4) Among reasons to avoid this outcome:

* Colorado, and other states, preclude such regulation through constitutional provisions affording a significant degree of independence for state schools based, presumably, on the belief that the mission of such institutions will be compromised by political oversight.
* “Substantive” regulation of private schools by state government is particularly worrisome, raises questions of academic freedom, due process and First Amendment rights. Moreover, the potential regulatory burden and cost of compliance will be a serious problem for small, private institutions. Therefore, if the Department adopts this proposal, it would be appropriate to exempt smaller schools for which the new rules will be an undue burden.

* “Substantive” regulation by agencies of state government may result in politicization of higher education. Various “interests” will be tempted to pressure state regulators to require that institutions adopt (or repudiate) certain curricula, teaching methods and policies

Proposed rules almost guarantee that states will have to cope with noisy arguments over teaching methods, degree requirements and culture wars over textbooks, evolution versus Intelligent Design, phonics versus whole language, campus ROTC, climate change, family policy, abortion, race, gender, sexual orientation, etc.

Obviously, institutions already face such controversies. But the proposed rules weaken the crucial existing presumption in favor of each institution’s academic freedom, a right defended by regional accrediting agencies. By adding an explicitly political step to the accrediting process – “substantive” regulation by state governments – the proposed rule puts institutional autonomy at risk.

[It should be noted, in passing, that this autonomy is not primarily for the benefit of colleges and universities, rather for their students and the larger community which the nation’s colleges and universities serve.]

* “Substantive” regulation by state government will impose a duty for which many states are unwilling and unprepared to assume, an unfunded mandatewhich will add stress to already strained state budgets.

(5) I am advised (by persons who have discussed the proposed rule with representatives of the Department) that the state “authorization” requirement is intended to apply only with respect to the state in which an institution is chartered, its main place of business or headquarters location. If this is the case, it would be extremely helpful to add clarifying language to preclude an interpretation requiring an “authorization” from every state in which a college or university has a physical presence, recruits students, conducts online classes or fund raising. A multi-state requirement would be catastrophic for small colleges and universities.

(6) Repeal of the compensation safe harbor rule could have unexpected and seriously adverse consequences. Most colleges and universities do not pay enrollment personnel any kind of spiff, bonus or commission for “success in securing enrollments.” But it is fanciful to suppose that consideration of success in securing enrollments should be entirely ignored in the decision to hire and retain persons whose primary job is precisely to secure such enrollments. Is it possible to obtain clarifying language?

(7) Repeal of the safe harbor related to “Compensation to third parties for recruitment activities” would appear to put such third parties at risk of extinction. Although our university does not employ such third parties, we see no reason why outsourcing recruitment activities to reputable third parties should not be permitted.

(8) The Repayment Rate and Debt to Earnings requirement appears to be unduly onerous and unrealistic.

In the time available, it has been impossible for me to fully digest and consider the proposed rule. These comments are, therefore, preliminary in nature and necessarily incomplete. If time permitted, it would be desirable to submit additional detail and comments about sections of the proposal not addressed herein. In other words, this is the best I can do on short notice.

Which brings me back to my original recommendation …

Please extend the time for comments by 60 or 90 days to afford all interested persons an opportunity to study and respond to the proposal.

William L. Armstrong
Colorado Christian University