The Regulatory Triad and United States Higher Education
Marc B. Booker
U.S. higher education has a design that is unique in the world, and a primary reason for this unique design is the mixture of governmental and non-governmental agencies providing oversight that form the regulatory triad. The so-called “regulatory triad” in U.S. higher education consists of oversight by accrediting agencies, state governments, and the federal government (Field, 2013), As higher education professionals, a review of the historical development of the triad within U.S. higher education, the factors that have led to the creation of the regulatory triad, the role the regulatory triad currently plays in U.S. higher education, and current ways the triad affects U.S. higher education today is helpful in understanding the influence of the triad on our daily jobs and why we are required to balance competing priorities based on the relationship among these three entities. This brief review provides awareness on how the triad has evolved and changed through the years of development in U.S. higher education to meet the needs of the public, and how the triad has been a driver in the evolution on how colleges and schools conduct themselves and operate, to provide clarity on the complex environment we operate in and why we carry out our roles in the manner which we do.
The Regulatory Triad and United States Higher Education
United States (U.S) higher education stands unique among the world for its size and structure in order to meet the diverse needs of its students and constituents (Eckel and King, 2011). In some respects, U.S. higher education has stood as a model for other countries to emulate when tackling the challenges of their own higher education systems (Eckel and King, 2011). Although U.S. higher education is not without its flaws, one of the hallmarks of U.S. higher education is its system of quality assurance through multiple regulatory bodies. The so-called “regulatory triad” in U.S. higher education consists of oversight by accrediting agencies, state governments, and the federal government (Field, 2013), all holding different roles in the institutional oversight process. The regulatory triad as it consists today has emerged over the centuries of development and evolution in U.S. higher education and has had an influence on the philosophical, political, and financial design of higher education in the U.S. To investigate the influence of the regulatory triad on the infrastructure of U.S. higher education it is helpful to review the historical development of the triad within U.S. higher education, the factors that have led to the creation of the regulatory triad, the role the regulatory triad currently plays in U.S. higher education, and current ways the triad affects U.S. higher education today.
Historical Development of U.S. Higher Education and the Regulatory Triad
The roles that the federal government, state governments, and accrediting agencies play in U.S. higher education are still evolving and have been partially defined by the historical development of the United States. Geiger (2011) indicates that there have been approximately ten generations in the development of United States higher education. During these generations of development the basic roles for each part of the regulatory triad were defined, and, in the case of accreditation, a generational need defined the creation of it. Although each generation has influenced the regulatory triad in some manner, for the purposes of this investigation a historical review of a few of the most salient time periods that have affected the development of the regulatory triad will be reviewed.
Colonial Higher Education Period (1636-1783)
When conducting a review of higher education in America, a good starting point is during the colonial period. The first colleges in America were religious-affiliated chartered institutions receiving subsidies that consisted of some of the well-known Ivy League institutions such as Harvard and Yale (Johnson, Musial, Hall & Gollnick, 2011). As the colonies expanded, so did the number of institutions with the creation of more private institutions that would become known as Princeton, Columbia, Penn, and Brown among others (Geiger, 2011).
The colonial time period is relevant to the creation of the regulatory triad because although many of the colonial institutions were private, they were also subject to colonial intervention. To establish an institution during colonial time, schools were required to obtain a charter, and the process of issuing charters was used to control the growth or expansion of institutions (Bennett, 2014). Moreover, these colleges were eligible for subsidies, grants, or tax exemptions from their provincial governments (Bennett, 2014). Even though these institutions were given academic autonomy to provide education consistent with their religious roots and operate on a private basis, a relationship was formed between the college and its respective colony, which required the institution to balance internal needs versus communal needs (Geiger, 2011). As Bennett (2014) points out, the thought that colonial institutions were free from external influence of the government and were able to act as free-market entities prior to the revolution is a myth.
Post-Revolutionary War Period (1783-1812)
The post-Revolutionary War period in higher education is critical in the development of U.S. higher education as it largely defined the roles of the state and federal government. When the Constitution was drafted in 1787 it did not define a direct responsibility for the oversight of education by the federal government (Gladieux, Hauptman and Knapp, 2010). Perhaps due to the pre-existing provincial support system that sponsored and assisted the colonial institutions, and likely as an avenue to ensure the sovereign rights of the newly formed states, the control for educational laws and institutional approvals was left to the states, where it basically remains today (Gladieux, Hauptman and Knapp, 2010). With this newly granted authority many states took it upon themselves to either alter the operating conditions for colleges within their jurisdictions or create new public institutions of instruction (Geiger, 2011).
The separation of roles between the federal government and state governments has greatly influenced the formation of higher education in the U.S. Although the states were given a large portion of the responsibility for educating the nation, it is inaccurate to think the federal government has ever taken a hands-off approach. Even in the early post-Revolutionary War period, the federal government was keenly aware of the importance of education and looked to provide support resources to inject life into specific educational initiatives without usurping the oversight of institutions maintained by state governments (Gladieux, Hauptman and Knapp, 2010). Philosophically, this sentiment still exists today, but over time as more federal resources have been injected into higher education initiatives, the influence of the federal government has grown.
Antebellum and Postbellum Transformation (1812-1890)
Over the next 80 years in U.S. higher education the role and place of the university continued to be in transition with questions asked about the private versus public nature of education and the role of education as a professional or industrial enterprise. As the nation grew and expanded, so did the sentiment that education needed to be a lever to facilitate this growth through both agricultural and industrial means (Geiger, 2011). As a direct result, a notable action taken by the federal government to spur the creation of new institutions occurred in the form of the Morrill Land Grant Act to advance the needs of a quickly growing nation that needed a more educated population (Gladieux, Hauptman and Knapp, 2010). Although, the first Morrill Land Grant Act was slightly premature in its timing (Geiger, 2011), it demonstrated an important dynamic for how the federal government could wield its influence and resources to promote the growth of education within states while still not creating a national system.
The Birth of the Modern System (1890-1940)
As the economic prowess of the nation boomed during the turn of the last century, so did the investment in education by the states (Goldin and Katz, 1999). An educational landscape once dominated by private institutions started to see the rise of large public institutions of instruction and research universities (Goldin and Katz, 1999). By nature of this growth and as a need to maintain quality and facilitate student mobility a need to standardize emerged (Geiger, 2011). In response to the need to standardize, some staples found today in U.S. higher education, such as the Carnegie unit for credit and four-year degree design, emerged during this time (Geiger, 2011), as well as something else uniquely American called accreditation.
Although loose associations of colleges and schools began to form prior to 1890, the role of accreditation as a peer-reviewed quality assurance system did not fully begin to be realized until after 1890 (El-Khawas, 2001). As a response to an evolving nation with an increasingly transient population, these associations realized a need to ensure uniform standards existed in order to facilitate appropriate secondary instruction for admission purposes and prevent academic quality from suffering during a time of expansive growth (El-Khawas, 2001). As an entity that existed outside of federal or state control these associations were free to foster the diversity of institutions and also establish standards that promoted academic autonomy, while also providing basic qualifications for standardization. Over this time period, a quality assurance mechanism began to form, where each member could be counted upon to meet certain quantitative standards and, therefore, be considered a reputable institution if its graduates entered the professional field or went on to further studies. As a more thoughtful nation began to emerge after World War I, accreditation began to evolve as well by looking at institutions qualitatively in determining if the school was meeting the holistic needs of its students, community, mission and stated purpose; and these qualitative characteristics remain hallmarks of the process today (El-Khawas, 2001).
Reaching Massification (1940-1975)
As the world recovered from its Second World War, the U.S. higher education system had to adjust to changing socio-economic conditions and global needs. Investment in education expanded greatly during this time from both a state and federal level. Faced with millions of returning soldiers the federal government stepped in with the GI Bill, and as a result institutional enrollment increased at an unexpected exponential rate (Geiger, 2011). Moreover, with baby boomers filling classrooms for multiple generations, and the Civil Rights Act of 1964 opening up access for African American students, U.S. higher education was set to experience sustained enrollment growth for decades (Geiger, 2011).
As a result of the enrollment boom, state investment in education increased leading to the rise of flagship public state institutions. Bolstered by research grants flowing directly from the federal government to the institutions in order to maintain the United States’ position as a world leader (Gladieux, Hauptman and Knapp, 2010), these flagship public universities became more selective (Geiger, 2011). Consequently, faced with a continually rising student demand and capacity or selectivity issues at universities, the states began creating public community colleges to tackle vocational and broader educational needs (Geiger, 2011). In the interim, accrediting agencies had to adapt their evaluation practices to follow suit with a focus on institutional quality and standardization as more institutions were created (El-Khawas, 2001), further entrenching their relationships with the state and federal government as the quality assurance mechanism for the burgeoning system.
Regulatory Evolution (1975- Current)
The 1970s are a notable period in U.S. higher education as it reflects a shift in the role of the federal government in higher education, which defines many aspects of the regulatory triad as it exists today. With the changes to the Higher Education Act occurring during the 1970s the federal government became entrenched in the oversight of higher education by increasing student aid programs and enhancing regulations associated with institutional participation in aid programs to provide better controls such as FERPA or Title IX (Geiger, 2011). These changes began to drive new behaviors in institutions and the states as a result of these new revenue sources. Institutions began to increase tuition and student fees to enhance education programs and were able to account for these costs on the basis of students having more access to assistance (Geiger, 2011). Access to greater aid in the form of loans also allowed for private institutions to increase their presence, and as a corollary the states began a process of de-investment in higher education (Geiger, 2011). The resulting shift in financial strategies caused by increased access to aid generated a greater reliance on federal aid programs and as a consequence increased the influence of the federal government on institutions (Geiger, 2011).
Accreditation’s role was also affected by these changes as accreditation became a critical component for institutional access to aid programs. This aspect of the Higher Education Act became a major impetus to defining the points of the regulatory triad, as the conditions for an institution to be eligible to participle in federal aid programs are that the institution must be approved in the state which it operates and that the institution also be accredited by a body recognized by the federal government (El-Khawas, 2001). The triangulation of these bodies has created the current environment that institutions must operate in and as a consequence has increased the regulatory scrutiny and amount of regulations institutions are subject to as these bodies attempt to work together to carry out their very different and distinct roles.
Roles and Responsibilities of the Regulatory Triad
As indicated, the roles of the regulatory triad have evolved over the almost two-and-a-half centuries of U.S. higher education. Although, from a high-level perspective the states, federal government, and accrediting agencies all still fill the obligations set forth as originally intended, these roles have changed and become more complex in the current environment. To gain perspective on the how the regulatory triad influences U.S. higher education it is useful to clarify the current roles and responsibilities of each component of the triad.
State Roles and Responsibilities
The most diverse component of the regulatory triad is the individual states. Because each state is responsible for the execution and approval of educational programs and initiatives within its borders there are numerous variations and differences that exist state to state. From a structural standpoint each state legislature has created at least one committee to handle decisions and recommendations on education matters (Fowler, 2013), and from there the names and players that handle the oversight, policy making, and institutional approvals differ state to state. Although the exact names and exact responsibilities for higher education policy making and management differ state by state, each state does have a board, department, agency or other authorized entity to carry out the functions for higher education oversight. Even with these differences it is best to sum up the role of the state to manage the approval of higher education institutions that operate within its borders, establish the rules and regulations that govern both public and private institutions as a condition to continue operating within these borders, create programs to support higher education initiatives, and allocate funding to be disbursed to institutions from public funds.
Because states levy policies for public and private institutions, state regulatory codes may create different bodies or codes to handle the oversight of each. An example of this can be found in the Texas Higher Education Coordinating Act § 61.302 that defines an institution of higher education as a public entity and conversely defines private institutions as those that do not meet the definition of an institution of higher education as set forth in this code (Higher Education Coordinating Act, 2015). A separation in state code between institution types is not uncommon and allows the state to create differing regulations to manage higher education entities within its borders. Ultimately, states are the gatekeepers that permit institutions to conduct business within its jurisdiction, and states have the most control in determining if an institution can continue operating from a regulatory standpoint.
Accrediting Agency Roles and Responsibilities
As previously presented accreditation began as a process to share best practices and create consistency between institutions, but accreditation has emerged to become the independent quality review process in U.S. higher education. Accreditation today provides four main functions: to provide quality assurance, to act as one of the gatekeepers providing access to federal funding, to instill confidence by the pubic in the output of students from institutions, and to create a sense of reciprocity among institutions sharing students (Eaton, 2009). Although accrediting agencies can accredit institutions or programs, it is the institutional accrediting bodies that make up the second leg of the regulatory triad because of their interplay with the federal government’s aid programs. Accreditation holds a unique spot in global higher education as it is not a governmental entity and has long been considered part of the reason that U.S. higher education has grown to consist of a collection of very diverse and academically autonomous institutions (Eaton, 2009).
In the United States the two most prominent institutional accrediting bodies are separated into regional and national agencies. Although not always true, regional bodies primarily accredit colleges and universities with a broad degree-granting educational focus, mostly private and non-profit institutions; whereas, national bodies accredit career, technical, and vocational institutions (Eaton, 2009). Because of the differences in these bodies diversity exists among these agencies, but common threads emerge when looking at the goals of these agencies. For example, the Higher Learning Commission’s guiding values place an emphasis on student learning and continuous improvement (Higher Learning Commission: 2016 Resource Guide, 2016), and in the WASC Senior Colleges and Universities Commission standards of accreditation a commitment to student learning and success and a commitment to quality and improvement exists (2013 Handbook of Accreditation, 2013).
Because accreditation provides an avenue to access additional funding sources and stands to serve as a seal of quality for an institution, it is something that higher education institutions take very seriously. As a result, institutions have begun to invest funds in administrative staff to handle relationships with accrediting agencies and also work through continuous improvement matters that arise out of accreditation requirements. The role accreditation has played in higher education has been somewhat fluid over the years depending on the needs of institutions, the government, or the public, but the role has become a constant in the oversight for higher education institutions in the U.S. (El-Khawas, 2001).
Federal Government Roles and Responsibilities
Because the federal government is a singular entity it does not contain some of the challenges that exist because of the differences created by the diversity in the various state or accrediting agency rules and regulations. However, this is not to indicate that the federal government’s role in higher education is not robust or complex. Over the past 50 years the federal government has taken a much more active role in higher education mostly through the administration of funding support in order to increase student access or institutional research (Gladieux, Hauptman and Knapp, 2010). It is through the lever of financial support that the federal government has broadened its influence on higher education, even though it is not granted direct controls over education for the country.
A complicated web has been woven by the federal government in order to exert its authority, and most often has come in the form of regulations by which institutions must abide by in order to gain access to funding. Whether by universal regulations such as the Americans with Disabilities Act or by very specific education-centric regulations such as Title IX or FERPA, the federal government has created numerous codes which institutions must navigate in order to retain access to federal funding (Gladieux, Hauptman and Knapp, 2010). To manage the expanse of regulations a central Department of Education was created, but this entity does not have oversight for all educational programs within the government (Gladieux, Hauptman and Knapp, 2010); as different government agencies like the Department of Homeland Security has oversight for the student exchange and visitor program, and the Department of Defense handles military student benefits.
With the implementation of the Higher Education Act (HEA) – and its subsequent reauthorizations – the regulatory triad emerged. The HEA outlines in 34 C.F.R. § 600.4 (2016) the eligibility criteria that institutions must meet to participate in federal aid programs to include state authorization and institutional accreditation for federal purposes as “reliable authorities regarding the quality of education or training offered by the institutions or programs they accredit” (34 C.F.R. § 602.1, 2016, p. 2). It is through these codes that the triad becomes connected, and the current complex regulatory ecosystem is formed.
Effect of the Triad on Modern U.S. Higher Education
Although the regulatory triad has been an important component of making U.S. higher education a world leader through the promotion of a diverse system with high-quality institutions; it has also affected how institutions operate within the triad and caused some complexities. Two notable ways the triad has recently affected institutions is by creating an increasingly complex regulatory environment and altering how accrediting agencies carry out their functions. Because of the influence of the triad on institutional funding systems, institutions are facing similar problems and are required to find answers to common challenges around ensuring student learning outcomes are met in an environment where fiduciary responsibility is becoming increasingly important (Eckel and King, 2011).
Complex Regulatory Environment
With the rise of the triad, an increase in the amount of regulations an institution has to manage has occurred. The current regulatory environment has become a talking point for institutions as a barrier to innovation. As reported in a 2013 survey of college and university presidents by Inside Higher Ed, presidents do not see this trend letting up (Lederman and Jaschik, 2013). With the tension that is created by the triad on institutions, some institutions have sought ways to decrease government and regulatory controls to increase institutional autonomy (Eckel and King, 2011), but because of the complex financial ecosystem within the current environment this is no easy task. To its credit the federal government has recognized that the current environment is too complex and has held hearings in advance of modifying the HEA (Field, 2013), but a re-authorization of the HEA is yet to emerge.
Institutional expansion is often stifled by the amount of regulations with which an institution must work with as well. Because each state has jurisdiction over education within its borders this means each state has the right to regulate the import and export of educational services (Lane, Kinser, and Knox, 2013). In essence what is created is a web of laws and rules that an institution must manage if it wishes to offer instruction in a different jurisdiction from its home state, which by virtue of creating additional variables adds to institutional complexity. Institutions found to be noncompliant of state regulations can be held liable for damages if offering services at an unapproved site, even if the institution has obtained appropriate approvals in their home state or jurisdiction (Lane, Kinser, and Knox, 2013).
As a consequence, institutions now devote greater resources to the creation of internal legal, compliance, and regulatory departments to manage the complexity of the triad. Even though the U.S. system has been characterized by its desire for limited government controls, the influence of a heightened regulatory environment will not decrease as long as institutions continue to have a large dependency on federal aid programs (Mumper, Gladieux, King, and Corrigan, 2011). As a result, schools will continue to try to meld the demands of the triad with their own institutional mission and goals, which will continue to create an inherit tension among these bodies.
Changes in the Role of Accrediting Agencies
The newest leg of the triad has also been the entity that has experienced the most transformation over the last 30 years. As discussed, accreditation began as an independent entity to create standardization and best-practice sharing among universities (El-Khawas, 2001; Hall, 2012). However, what has emerged is a body that is now pressured to promote quality assurance and accountability across institutions and ensure consumer protections are in place (Eaton, 2010; El-Khawas, 2001; Hall, 2012). Although accreditation is considered a non-governmental process, accreditation’s ties to higher education on a local and federal level have created some legal challenges to its role as a state-actor (Toma and Palm, 1999). Many of these challenges have not held up in court, but legally what is important for accrediting agencies is that they follow their outlined criteria, rules, and standards for accreditation (Toma and Palm, 1999).
It is the criteria, rules, and standards for accreditation that have evolved recently which have affected colleges and universities. Through the federal government’s call for accreditation to take a more direct stance on accountability and student protections it has created a change in the criterion used for accreditation. For example, in 2012 the Higher Learning Commission created a set of Assumed Practices intended to be objective in nature that act as a standard framework for accountability for an institution (Higher Learning Commission, 2016). This list of objective criteria acts almost like minimum standards for an institution and is a departure from the more collegial and subjective process that has largely defined accreditation.
Another example can be found in the shift of standards made by the Western Association of Schools and Colleges (WASC) in 2001 when WASC updated its criteria for review. With these changes WASC focused more on operational aspects of the institution and gave latitude to the institution to define what areas of performance the institution would showcase to demonstrate how the institution fulfills its institutional obligations and objectives (Ewell, 2011). Part of this change required a transition to an evidence-based practice to hold institutions accountable, while also trying to maintain a process that respected the individuality of each institution (Ewell, 2011). This shift in how accrediting agencies approach the accreditation process can cause complications for institutions as they adjust to new requirements and processes and attempt to build evidence or procedures to meet criteria for continued accreditation.
U.S. higher education has a design that is unique in the world, and a primary reason for this unique design is the mixture of governmental and non-governmental agencies providing oversight that form the regulatory triad. The triad has evolved and changed through the years of development in U.S. higher education to meet the needs of the public and institutions, but has also been a driver in the evolution on how colleges and schools conduct themselves and operate. Although the regulatory triad is not perfect, it has become an indelible part of the infrastructure of U.S. higher education that has allowed the flexibility for institutions to grow, diversify, and provide a comparatively high quality product to its constituents on a mass basis.
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