BILL ANALYSIS Ó
AB 1385
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Date of Hearing: April 28, 2015
ASSEMBLY COMMITTEE ON HIGHER EDUCATION
Jose Medina, Chair
AB 1385
(Ting) - As Amended April 15, 2015
SUBJECT: Community colleges: accreditation
SUMMARY: Prohibits the accrediting agency for California
Community Colleges (CCCs) from imposing a special assessment on
CCCs for legal fees for any lawsuit, unless there has been an
affirmative vote of the majority of the chief executive
officers, or their designees, of all of the CCCs. Specifically,
this bill:
1)Prohibits the CCC accrediting agency from imposing a special
assessment on CCCs for the accrediting agency's legal fees for
any lawsuit, unless there has been an affirmative vote of the
majority of the chief executive officers, or their designees,
of all of the CCCs.
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2)Provides that each CCC, as represented by its chief executive
officer, or his or her designee, shall be eligible to cast a
vote on the assessment.
3)Provides that this provision does not apply to the accrediting
agency's activities that are related to private educational
institutions in the state or educational institutions outside
of the state.
4)Provides that this section does not affect the authority of
the United States Department of Education regarding
educational institutions.
EXISTING LAW:
1)Establishes the CCC Board of Governors (BOG) to provide
general supervision over the CCC and requires the BOG to
prescribe minimum standards for CCC formation and operation
(Education Code Section 66700).
2)Requires the BOG to develop minimum standards governing
academic standards, employment policies and shared governance;
evaluate CCC fiscal and educational effectiveness and provide
assistance when districts encounter management difficulties;
administer state funding and establish minimum conditions
entitling CCC districts to receive state funds; requires the
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CCC BOG, in determining if a CCC district satisfies the
minimum conditions for receipt of apportionment funding, to
review the accreditation status of the CCCs within that
district review and approve educational programs (EDC Section
70901).
3)Requires the accrediting agency for CCCs to report to the
appropriate policy and budget subcommittees of the Legislature
upon the issuance of a decision that affects the accreditation
status of a community college and, on a biannual basis, any
accreditation policy changes that affect the accreditation
process or status for a CCC; and, requires the CCC
Chancellor's Office to ensure that the appropriate policy and
budget subcommittees are provided the aforementioned required
information (EDC Sections 72208).
4)BOG regulations (5 CCR Section 51016) require CCCs to be
accredited by the Accrediting Commission for Community and
Junior Colleges (ACCJC). However, BOG recently approved
regulatory changes to remove the explicit requirement of
accreditation by the ACCJC. The regulatory change would
provide that accreditation shall be determined only by an
accrediting agency approved recommended by the CCC Chancellor
and approved by the BOG. The Board is authorized to approve
only an accreditor recognized and approved by the U.S.
Secretary of Education (USDE) under the Higher Education Act
of 1965 acting within the agency's scope of recognition by the
Secretary.
FISCAL EFFECT: Unknown
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COMMENTS: Accreditation. Accreditation is a voluntary,
non-governmental peer review process used to determine academic
quality. Accrediting agencies are private organizations that
establish operating standards for educational or professional
institutions and programs, determine the extent to which the
standards are met, and publicly announce their findings.
Accrediting agency membership consists of the accredited
institutions and organizational activities are funded through
fees/dues required of accredited institutions. Under federal
law, the USDE establishes "criteria for recognition" of an
accrediting agency and publishes a list of "recognized"
agencies. Institutions must be recognized in order to
participate in federal financial aid programs. Under California
law, institutions must be accredited in order to participate in
the Cal Grant Program. Accreditation, and most commonly
regional accreditation, is established by California's public
and independent universities as a requirement for transfer of
educational credits earned by a student at another institution.
ACCJC. ACCJC is the regional accrediting agency for community
colleges in the western region (California, Hawaii, and U.S.
territories). Commission membership consists of the
institutions ACCJC has accredited. The 19 ACCJC commissioners
are elected by a vote of the presidents of the member-colleges
and serve up to two three-year terms. Commissioners must fall
within the following categories:
1)One representative of the CCC Chancellor's Office;
2)One representative from the Hawaii community colleges system
office;
3)At least five academic faculty;
4)At least three public members;
5)At least three community college administrators;
6)At least one independent institutional representative;
7)At least one representative of WASC Sr. accredited
institutions;
8)At least one representative of the institutions in the
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American Affiliated Pacific Islands.
ACCJC bylaws govern, among other areas, commission meetings,
responsibilities of commissioners, and the appeal process for
institutions appealing a denial or termination of accreditation.
ACCJC bylaws may be amended by a majority vote of the
Commissioners. Under ACCJC bylaws, the President (Chief
Executive Officer) is appointed, and may be removed, by the
Commissioners. The President is responsible for general
supervision, direction, and control of ACCJC operations.
ACCJC budget and special assessments. ACCJC's primary sources
of revenues for operating expenses are derived from dues
assessed to each member institution. ACCJC's budget committee
recommends dues to the Commission as a whole, and Commissioners
vote on the amount of dues each January. The ACCJC budget is
approved first by the Committee, and then sent to the Commission
for approval. The member institutions are notified, usually in
March or April each year, regarding budget. Dues are set 18
months in advance; the dues for the 2015-16 fiscal year were set
in January 2014. Due amounts range from about $6,000 to
$35,000, depending on the number of full-time equivalent
students enrolled at an institution. Special assessments are
issued in order to cover extraordinary expenses that were not
anticipated and could not be planned for, and that may exceed
fiscal reserves. ACCJC indicates that it has issued special
assessments in approximately three cases. Special assessments
are set at a percentage (depending on budgeting needs) of an
institution's dues. As a condition of accreditation, all member
institutions are required to pay special assessments and dues.
ACCJC controversy. Between 2003 and 2008, ACCJC had placed 37%
of CCCs on "sanction" (at risk of losing accreditation). A
study of other regional accreditors showed that during this same
time, the percentage of community colleges being sanctioned
ranged from 0 to 6%. The large number of penalties for
community colleges under ACCJCs jurisdiction led community
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college leaders, faculty, and staff to, through the CCC
Chancellor's Office (CCCCO) Consultation Council, review and
make recommendations regarding ACCJC's actions. Under the
leadership of then-Chancellor Jack Scott, the group made a
series of recommendations largely designed to focus ACCJC on
institutional improvement rather than compliance. In a written
response to Chancellor Scott's recommendations, ACCJC defended
current standards and practices and made suggestions of how the
CCCCO could assist colleges in meeting ACCJC's requirements.
Background on City College of San Francisco (CCSF). In July of
2012, CCSF was placed on "Show Cause" status by ACCJC. The
ACCJC visiting team found, among other deficiencies, that the
college had insufficient cash flow and reserves to maintain
financial stability and no realistic plans to meet financial
emergencies and unforeseen circumstances. The institution was
provided one year to establish compliance with accrediting
standards. In September of 2012, the CCC Chancellor's Office
and the Fiscal Crisis & Management Assistance Team (FCMAT)
released an audit of fiscal stability and management controls.
The audit found that CCSF was near fiscal insolvency resulting
from poor financial decisions and lack of accountability. In
October 2012, CCC Board of Governors (BOG) appointed Robert
Agrella as special trustee under limited powers to assist CCSF
in achieving sound financial management.
In July of 2013, ACCJC voted to terminate accreditation
effective July 31, 2014, subject to review and appeal. ACCJC
found that of the 2012 recommendations, CCSF fully addressed
only two, nearly addressed one, and eleven were inadequately
addressed. Also in July, FCMAT released a second review which
found that the 2012 recommendations had not been fully
implemented. Following the ACCJC decision to revoke
accreditation, on July 9, 2013, BOG voted to authorize a Special
Trustee to assume full management and control of the district.
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In November 2013, Arthur Tyler was named Chancellor of CCSF. To
date, the CCSF governing board does not have management
authority over the district.
In June 2014, despite significant concerns raised by the public,
CCC leaders, the CCC Chancellor, and Legislators over the
serious impact to students and the San Francisco community, the
ACCJC appeal panel upheld the decision to terminate
accreditation. In July, ACCJC informed CCSF of their option to
apply for "restoration status" - a status created by the
Commission for the purposes of allowing CCSF to continue to be
accredited while it works to achieve accreditation standard
compliance; and in January 2015, CCSF was granted "restoration
status" by ACCJC. Under restoration status, CCSF will remain
accredited and have two years to come into full compliance with
all ACCJC eligibility requirements, standards and policies.
CCSF is scheduled to be reviewed by ACCJC in January 2017.
ACCJC notes that during this time, CCSF will have access to
ACCJC technical assistance and training processes.
Bureau of State Audits (BSA) review of ACCJC. In June of 2014,
the BSA released an audit of ACCJC's application of the
accreditation process. The audit was conducted at the request
of the Joint Legislative Audit Committee (JLAC) following
concerns among several legislators over the ACCJC decision to
terminate accreditation for City College of San Francisco
(CCSF). The BSA audit includes a series of recommendations to
improve CCC accreditation; among the recommendations supported
by CCCCO, BSA recommended the CCCCO facilitate improved
communication between CCCs and ACCJC. BSA also recommended
allowing CCCs flexibility to choose an accrediting agency; the
CCCCO responded that this recommendation should not be pursued
as it could lead to reduced transparency, reduced employee
mobility within CCCs, and added challenges in overseeing
colleges effectively.
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ACCJC lawsuit. In August 2013, San Francisco City Attorney
Dennis Herrera filed two legal actions regarding the ACCJC
decision to revoke CCSF accreditation. The first sought to
enjoin ACCJC from effectively closing CCSF, the second sought to
require the CCC BOG to evaluate college standards and
eligibility, rather than relying on accreditation. In regards
to the second action, largely based on prior statutory language
requiring the CCC BOG to establish minimum standards, the
Legislature acted in 2014 to amend statute to require CCC BOG to
review the accreditation status of an institution.
In the case against ACCJC, People ex. rel. Herrera v. ACCJC,
Case No CGC-13-533693, Superior Court Judge Curtis E.A. Karnow
issued a preliminary injunction in January 2014 blocking ACCJC
from implementing the termination of CCSF accreditation. Full
arguments in this case were presented in the fall of 2014;
during arguments all parties generally agreed that at the time
of accreditation revocation CCSF faced serious financial and
other problems and was not in full compliance with accreditation
standards. The central legal issues surrounded whether the
state's unfair competition law (UCL) applied and was violated
when ACCJC took action to terminate accreditation. ACCJC
presented a series of defenses claiming that the suit was
altogether barred. The judge generally rejected those defenses
and, in a final Statement of Decision issued February 17, 2015,
found that CCSF was warranted some relief. Specifically, the
judge ordered ACCJC to allow CCSF to respond to the 2013 basis
for termination, then requiring ACCJ to take action, consistent
with law, to rescind or reaffirm the 2013 termination.
According to Judge Karnow, "under federal law it is ACCJC, and
not this court, which exercises its discretion with respect to
accreditation decisions."
CCC CEO Request. According to information provided by the
author, Committee staff understands that on April 25, 2014, the
President of the CEOs of the CCCs wrote to ACCJC requesting the
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Commission to use its power to provide SFCC a "good cause"
extension in order to allow the college to come into compliance
with accreditation standards. The letter also appears to raise
concern regarding the special assessment to fund ACCJC legal
fees, noting "as the funders of ACCJC's legal defense bills, we
believe it is critical to exhaust every non-courtroom remedy to
minimize our financial exposure as well as any negative impact
on students throughout the state."
CCSF and SB 860. In the 2014-15 Budget Act education trailer
bill, SB 860 (Committee on Budget and Fiscal Review), Chapter
34, Statutes of 2014, the Legislature provided SFCC with
additional funding, for three fiscal years, as the college works
to restore student enrollment and maintain accreditation. For
2014-15, the district received funding equal to the amount it
received in the 2013-14 fiscal year, in 2015-16 and 2016-17
funding is to be reduced by five, and 10% respectively. SB 860
requires the CCSF Chancellor to provide ongoing reporting and,
in order to receive the third year of funding CCSF is required
to meet benchmarks related to fiscal management and controls.
In 2014-15, CCSF received an approximately $38.5 million in
apportionment stability funding, as provided under the formula
established in SB 860.
CCSF current status. On April 15, 2015, CCSF Chancellor Tyler
submitted the first report as required pursuant to SB 860.
According to the report, the Chancellor and the Special Trustee
has instituted administrative reorganizations, has focused on
restoring declines in student enrollment, and has established a
long-term fiscal stability plan. The Chancellor and Special
Trustee agree that CCSF has demonstrated an ability to meet all
accreditation standards and eligibility requirements within the
two year restoration timeline established by ACCJC.
Purpose of this bill. According to the author, CCCs are being
"forced to pay hundreds of thousands of dollars to fund the
ACCJC's legal bills" following its decision to terminate the
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accreditation of CCSF. The author notes that CCCs were assessed
a 5% special assessment for 2014-15; ACCJC is expected to issue
a similar assessment in 2015-16 for CCSF-associated legal fees.
The author also argues, Judge Karnow "ultimately ruled that the
ACCJC had violated the due process rights of CCSF when they
departed from the ACCJC's evaluation team findings and
identified 10 additional deficiencies without providing details
to the college or affording them to opportunity to respond
before the ACCJC made the decision to revoke their
accreditation." The author notes that, even though ACCJC was
found to have violated the law, CCCs, and ultimately the state,
are forced to fund the legal defense or face the threat of loss
of accreditation. The author believes that if ACCJC continues
to take such actions, the state will be forced to continue to
fund ACCJC legal defenses. This bill is designed to ensure
CCCs, and ultimately California taxpayers, are not forced to
fund ACCJC legal costs without the approval of the majority of
CCC chief executive officers.
Federal criteria for recognition. As previously outlined, the
USDE provides recognition of accrediting agencies. In order for
an institution to participate in federal financial aid programs
an institution must be accredited by a recognized accrediting
agency. Accrediting agencies are required pursuant to federal
regulations to meet several outlined criteria for recognition,
including requiring the accrediting agency to be separate and
independent, meaning, among other requirements, that the agency
develops and determines its own budget with no review or
consultation with any other entity or organization (34 CFR
§602.14(b)(5)). An alternative approval by the USDE Secretary
is available, but that alternative also requires the agency to
have budgetary and administrative autonomy (34 CFR
§602.14(d)(3)).
Committee staff, in consulting with the USDE, understands that
the requirements of this bill may be in conflict with USDE
criteria for recognition. An accrediting agency deemed
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noncompliant with criteria for recognition could be order to
correct deficiencies or have their recognition discontinued by
the USDE. If ACCJC were to have its recognition withdrawn by
USDE, the accreditation status - and the ability of students to
receive federal and state financial aid, and to transfer
educational credits to four-year universities - of all CCCs
would be threatened.
Recommended amendment . Should the Committee desire to move
forward with legislation addressing this matter, the Committee
should consider amending the bill to specify that the provisions
of this bill are not binding if it is determined by the CCC
Chancellor that federal criteria for recognition prohibit a
recognized accrediting agency from complying with this
requirement.
Related legislation.
AB 404 (Chiu) was approved by this committee on April 7, 2015,
and requires the CCC BOG to conduct a survey of the CCC,
including faculty and classified personnel, to develop a report
to be transmitted to the USDE that reflects a systemwide
evaluation of the agency based on criteria used to determine an
accreditor's status.
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AB 1397 (Ting) is pending in the Assembly Higher Education
Committee. This bill would require the accrediting agency for
CCC to provide an opportunity for public comment prior to taking
action related to the accreditation status of a community
college.
Prior legislation.
AB 1942 (Bonta), Chapter 382, Statutes of 2014, required the CCC
BOG, in determining if a CCC district satisfies the minimum
conditions for receipt of apportionment funding, to review the
accreditation status of the CCCs within that district; required
the accrediting agency for CCCs to report to the appropriate
policy and budget subcommittees of the Legislature upon the
issuance of a decision that affects the accreditation status of
a CCC and, on a biannual basis, any accreditation policy changes
that affect the accreditation process or status for a CCC; and,
required the CCCCO to ensure that the appropriate policy and
budget subcommittees are provided the aforementioned required
information.
AB 2247 (Williams), Chapter 388, Statutes of 2014, required all
campuses serving California students of public and private
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postsecondary educational institutions that receive state or
federal financial aid funding to post institutional
accreditation documents on the institution's website.
SB 1068 (Beall) of 2014, which was held in the Senate
Appropriations Committee, would have required CCC BOG, by
January 1, 2016, to report on the feasibility of creating an
independent accrediting agency to accredit the CCCs and other
2-year private postsecondary educational institutions, and to
make recommendations relative to CCC accreditation.
REGISTERED SUPPORT / OPPOSITION:
Support
California Labor Federation
Faculty Association of California Community Colleges
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Opposition
Accrediting Commission for Community and Junior Colleges
Community College League of California
Analysis Prepared by:Laura Metune / HIGHER ED. / (916) 319-3960