BILL ANALYSIS                                                                                                                                                                                                    



                                                                    AB 1397


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          Date of Hearing:  April 28, 2015


                       ASSEMBLY COMMITTEE ON HIGHER EDUCATION


                                 Jose Medina, Chair


          AB 1397  
          (Ting) - As Amended April 14, 2015


          SUBJECT:  Community colleges:  California Community Colleges  
          Fair Accreditation Act of 2015


          


          SUMMARY:  Establishes the California Community Colleges (CCCs)  
          Fair Accreditation Act of 2015 (Act) and requires the  
          accrediting agency for CCCs to meet specified operational  
          standards.  Specifically, this bill:  





          1)Establishes the following requirements for the accrediting  
            agency's decision making body and visiting teams:



             a)   Requires that no less than 50% of visiting teams be  
               composed of academics and defines "academics" as someone  
               who is currently, or has recently, directly engaged in a  









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               significant manner in postsecondary teaching or research.



             b)   Prohibits any person from serving on a visiting team who  
               has a conflict of interest, defined as any circumstance in  
               which an individuals' capacity to make an impartial or  
               unbiased recommendation may be affected by:



               i)     Prior, current, or anticipated affiliation with the  
                 institution under review.



               ii)    Paid service in any capacity to the institution  
                 under review.



               iii)   Serving as, or having a near relative serving as, a  
                 current member, staff member or consultant of the  
                 agency's decision making body.



               iv)    Serving as, or having a near relative serving as, a  
                 current member, staff member or consultant of the  
                 institution's governing body. 



             c)   Requires a prospective member of a visiting team to  
               submit an appropriate disclosure form to the agency, under  
               penalty of perjury, that he/she does not violate the  
               conflict of interest criteria.  Requires copies of these  









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               forms to be provided to the institution under review. 



             d)   Requires every member of the agency's decision making  
               body and staff to annually file a form that identifies all  
               sources of earnings that derive from the field of  
               education, or from entities that perform services for any  
               CCC located in California, or from organizations that  
               engage in lobbying or representational activities for CCC.



          2)Requires all of the following for meetings of the accrediting  
            agency for CCCs:



             a)   Members of the public who desire to appear at agency  
               meetings must have an opportunity to attend those meetings.



             b)   A sufficient length of time must be allowed for public  
               comment, and public comment must be allowed prior to action  
               related to an institution's accreditation.



             c)   Accreditation decisions must be made by a vote of the  
               accrediting agency's decision-making body in a public  
               meeting. The vote of each member and the minutes from the  
               meeting must be recorded and posted to the agency's  
               Internet Web site. 












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          3)Prohibits any officer or employee of the agency with an actual  
            or appearance of a conflict of interest to be disqualified  
            from participating in discussion and voting and defines  
            conflict of interest to mean:



             a)   Prior, current, or anticipated affiliation with the  
               institution under review.



             b)   Paid service in any capacity to the institution under  
               review.



             c)   Serving as, or having a near relative serving as, a  
               current member, staff member, or consultant of the  
               institution's governing body.



          4)Requires the agency to preserve all documents generated during  
            an accreditation-related review, including, but not  
            necessarily limited to, email correspondence, for no less than  
            36 months after the completion of an accreditation-related  
            review. All reports, evaluations, recommendations, and  
            decision documents generated during an accreditation-related  
            review shall be retained indefinitely.



          5)Requires the agency's accreditation-related decisions to be  
            based on written, published standards, and shall be in  
            accordance with, and not be inconsistent with, state and  
            federal statutes and regulations.









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          6)Requires the agency to afford appropriate deference to the  
            activities or operations of the institution under review that  
            are consistent with the requirements of the state law.



          7)Prohibits revisions from being made by the agency to a  
            proposed visiting accreditation team report unless the  
            revision is shared with the members of the visiting  
            accreditation team and with the institution under review, and  
            each is afforded an opportunity to comment on the revision.



          8)Establishes the following due process requirements:



             a)   A Community College District (CCD) must be given advance  
               notice of proposed visiting accreditation team reports, so  
               that the college or district may respond to correct factual  
               errors or dissent from conclusions. The institution under  
               review must be afforded adequate time to review the reports  
               before a meeting of the agency's decision-making body at  
               which a decision relating to the institution's  
               accreditation is to be made, which must be no less than six  
               weeks before the meeting. Provides the institution under  
               review may respond to these reports in writing, orally at  
               the meeting, or in both of those ways.



             b)   Any visiting accrediting team recommendation for action  
               must be shared with the institution under review at least  









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               six weeks before a meeting of the agency's decision-making  
               body, so that the institution may decide whether and how to  
               respond to the recommendation. Any recommendation for  
               action made to the agency's decision-making body by a  
               person employed by or representing the agency, including  
               its staff, agents, and employees, must be shared with the  
               institution subject to the recommendation at least six  
               weeks before a meeting of the agency's decision-making body  
               relating to the recommendation.



          9)Requires the agency to have a written policy, consistent with  
            federal law, that does both of the following:



             a)   Identifies a period for an institution to correct any  
               deficiencies that have prevented the institution from  
               receiving full accreditation; and,



             b)   Provides criteria for altering that period.

          10)Requires the aforementioned policy to be published, and to  
            provide a process through which an institution may submit  
            applications for an extension, even if a decision has  
            expressly denied such an extension. An application for an  
            extension, and the decision of the agency as to the  
            application, shall be made publicly available.



          11)Requires all of the following in regards to the agency's  
            appeals process:










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             a)   Provides that whenever the agency's decision-making body  
               issues a sanction of probation or a more serious sanction,  
               the institution subject to the sanction shall be given  
               written notice of the alleged sanctionable offenses or  
               deficiencies. 



             b)   Provides that the institution must be afforded an  
               opportunity to submit an appeal of the decision to issue  
               the sanction. 



             c)   Establishes that the burden of proof for the agency to  
               issue the sanction shall rest with the agency.



             d)   Provides that an appeal shall be heard by a panel  
               appointed by the chancellor. 



             e)   Provides that an institution filing an appeal has the  
               right to file an application to present new or additional  
               evidence to the panel. 



             f)   Provides that the appeal panel shall, in its discretion,  
               determine whether to accept the new or additional evidence.

          EXISTING LAW:  










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          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  
            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  









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            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  


          


          COMMENTS:  Purpose of this bill.  According to the author, AB  
          1397 establishes reasonable parameters under which any  
          accreditation agency should operate in the course of overseeing  
          California's community and junior colleges.  The author believes  
          this legislation creates strong conflict of interest policies,  
          provides due process to our education institutions and  
          stakeholders, requires open decision-making, and creates a  
          meaningful appeals process.  

          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  









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          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  
            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 controversy. Between 2003 and 2008, ACCJC had placed 37%  
          of CCCs on "sanction" (at risk of losing accreditation).  A  









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          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  
          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 practices and made suggestions of how the CCCCO could  
          assist colleges in meeting requirements.  





          The author also points to the following as evidence of  
          deficiencies at ACCJC: 





          1)USDE.  In two letters from the USDE to ACCJC (dated August 13,  
            2013 and January 28, 2014), the USDE found the agency to be  
            out of compliance with several standards set by the Secretary  
            of Education's Criteria for Recognition, including:

             a)   The ability to demonstrate that the agency's policies  
               and decisions to grant or deny accreditation are widely  
               accepted or supported by educators, educational  
               institutions, licensing bodies, practitioners and employers  
               in the professional and vocational fields.

             b)   Having effective mechanisms for evaluating an  









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               institution's compliance with the agency's standards before  
               reaching a decision to accredit colleges.

             c)   Providing due process to institutions, including giving  
               the institution written specification of its requirements  
               in making accreditation decisions and giving the  
               institution a reasonable amount of time to respond.

          2)Bureau of State Audits (BSA).  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  
            audit listed a number of concerns with the existing  
            accreditation process and decision-making, including:

             a)   Inconsistency in the application of the accreditation  
               process and decisions, including granting different  
               colleges different amounts of time to resolve sanctions and  
               comply with accreditation standards. 

             b)   Serious deficiencies in its appeals process, including  
               the lack of a definitive right for colleges to introduce  
               new evidence when appealing a decision.

             c)   A lack of transparency in deliberations regarding an  
               institution's accreditation status; 38% of college  
               executives surveyed felt that the decision-making process  
               was not appropriately transparent.

          3)California Superior Court.  In August 2013, San Francisco City  
            Attorney Dennis Herrera filed a case against ACCJC; People ex.  
            rel. Herrera v. ACCJC, Case No CGC-13-533693.  Superior Court  
            Judge Curtis E.A. Karnow found that ACCJC violated state and  
            federal laws and regulations.  In February 2015, Judge Karnow  
            ordered ACCJC to allow CCSF to respond to the 2013 basis for  









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            termination, and then to take action, consistent with law, to  
            rescind or reaffirm the 2013 termination.  The Judge also  
            noted that "under federal law it is ACCJC, and not this court,  
            which exercises its discretion with respect to accreditation  
            decisions." 



          Should the state regulate accrediting agencies?  To date, the  
          California statute has not directly intervened in the authority  
          of an accrediting agency or the accreditation process.  This  
          bill sets a precedence that the state has a role in the  
          peer-review and oversight provided by an accrediting agency.  A  
          primary question for the Committee to consider is the  
          appropriateness of state-level regulation of accrediting  
          agencies.  As previously outlined, this bill establishes  
          numerous requirements on the CCC accrediting agency.  Proponents  
          argue that accrediting agencies play an important role in  
          oversight of institutions receiving public funding, and that the  
          public has an interest in fairness in accreditation.  However,  
          the Community College League of California (League) argues that  
          accreditation is meant to be a peer-review process, governed by  
          a national standard.  The League argues this bill would make it  
          very difficult for the agency to comply with federal  
          requirements and attract qualified staff, visiting team members,  
          or commissioners. 








          Can the state regulate accrediting agencies?  The state has the  
          authority to regulate an accrediting agency similar to  
          regulation of any private business.  As with private business,  









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          an accrediting agency could choose not to provide accreditation  
          of colleges in California.  If CCCs were unable to identify an  
          accrediting agency willing to meet the state's requirement,  
          effectively, CCC students would lose eligibility for state and  
          federal financial aid, and the ability of CCC students to  
          transfer educational credits to other higher education  
          institutions could be at risk.  





          Alternative approach.  In response to BSA recommendations, the  
          CCCCO began gathering input from a broad range of CCC  
          stakeholders.  Accreditation discussions are occurring through  
          the CCC Consultation Council as well as through a Task Force on  
          Accreditation established by CCC Chancellor Harris.  According  
          to the CCCCO, once the Task Force has completed its work and  
          sufficient information gathering has been accomplished, the  
          CCCCO will move forward on recommendations to improve CCC  
          accreditation.  As an alternative to direct regulation of  
          accrediting agencies, as proposed in this bill, the Committee  
          could require the CCC Chancellor to report to the Legislature  
          regarding the Task Force on Accreditation recommendations for  
          improving the CCC accreditation process.  





          There are six USDE-recognized regional accrediting agencies.  
          California's regional accrediting agency is, unlike the others,  
          separated into two commissions for postsecondary education:  
          ACCJC and the Senior College and University Commission  
          (WASC-Sr.). California's public four-year institutions are  
          accredited by WASC-Sr.  With California's focus on student  
          transfer from CCC to four-year institutions, and the recent  









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          creation of a CCC baccalaureate pilot program, it may be  
          appropriate to examine whether California would benefit from a  
          single regional accreditor.  If the Committee chooses the  
          aforementioned recommendation, the Committee may also wish to  
          direct the Task Force to look specifically at potential benefits  
          of establishing a single accreditor systemwide, including the  
          potential of WASC Sr. assuming accreditation responsibilities  
          for CCCs.  


             


          Issues to consider.  If the Committee determines that the state  
          should regulate accrediting agencies, the Committee may wish  
          evaluate how the requirements of this bill align to the federal  
          criteria for recognition and (a non-exhaustive review of) the  
          practices of accrediting agencies across the country.  As  
          previously noted, an accrediting agency could choose not to  
          operate in California in order to avoid these requirements.   
          Further, an accrediting agency determined by USDE as  
                                                                                       noncompliant with criteria for recognition could lose  
          recognition.  In both cases, the ability of an institution to be  
          accredited by a recognized accrediting agency - and receive  
          federal financial aid funds, and ensure student transferability  
          - could be threatened.



          1)Composition of evaluation teams.  This bill requires at least  
            50% of visiting teams be composed of academics.  Federal  
            criteria for recognition specify that evaluation and decision  
            making bodies of accrediting agencies must have academic  
            personnel and educators and practitioners, however an exact  
            percentage is not required. A non-exhaustive search has not  
            identified any accrediting agency that specifies an exact  
            percentage of academics.  In People ex. rel. Herrera v. ACCJC  









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            the People's expert witness described the proper number of  
            academics on a visiting team as highly variable; the Judge  
            ultimately determined that one academic was too few, but three  
            out of sixteen was not proven as too few.  The Judge also  
            noted that outstanding administrative issues at a campus may  
            alter the appropriate balance.  



          2)Conflict of Interest Policy.  This bill prohibits visiting  
            team members, officers, and employees from having actual or an  
            appearance of a conflict of interest.  A conflict of interest  
            may include prior or current affiliation with the institution  
            under review, paid service to the institution under review, or  
            having a near relative serving in a capacity for the college  
            or for the ACCJC.  The federal criteria for recognition also  
            prohibit conflicts of interest and require agencies to have  
            "clear and effective controls against" actual or the  
            appearance of conflicts of interest.  ACCJC's current policy  
            regarding conflicts of interest appears to comply with the  
            definition contained in this bill.  





            This bill requires agency decision-makers and staff to  
            annually file a form identifying all sources of earnings  
            derived from the field of education, from entities that  
            perform services for any CCC, or from lobbying regarding any  
            CCC.  It is not clear where this form is intended to be filed  
            or who will be reviewing the form.  














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            Additionally, as currently drafted, it is unclear if this  
            would prohibit the CCCCO from maintaining a Commission seat on  
            the ACCJC, as the CCCCO often provides services, support, and  
            lobbying on behalf of CCCs. 





          3)Public meetings and voting.  This bill requires public access  
            to, and public comment at, agency meetings.  According to  
            ACCJCs letter of opposition to this bill, these requirements  
            "would lengthen and make a public spectacle of the meetings"  
            as well as "interject public opinion into the decisions."   
            ACCJC is concerned that such requirements would place the  
            commission in violation of USDE requirements.  However,  
            federal criteria for recognition specifically require an  
            agency to "provide an opportunity for third-party comment  
            concerning the institution's or program's qualifications for  
            accreditation or pre-accreditation. At the agency's  
            discretion, third-party comment may be received either in  
            writing or at a public hearing, or both." 



            This bill requires agency decision-making to occur in public,  
            and be recorded in meeting minutes and posted on the agency's  
            website.  It is unclear if this provision is intended to  
            require public deliberations or only public voting.  Committee  
            staff was unable to find another accrediting agency that  
            requires either public deliberations or public voting  
            regarding accreditation decisions.  Public deliberations and  
            voting requirements may have consequences for the peer-review  
            and improvement nature of the accreditation process.  


            









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          4)Accordance with state/federal standards.  This bill requires  
            an agency to establish standards in accordance with state and  
            federal laws, and to "afford appropriate deference to"  
            institutional activities that are "consistent with the  
            requirements of state law."  It is unclear what this provision  
            is intended to accomplish and whether compliance with this  
            provision could violate federal requirements.  Federal  
            "criteria for recognition" require that agencies develop and  
            base decisions on accreditation standards that cover an array  
            of student success and institutional administrative and fiscal  
            stability criteria. 



          5)Due Process.  This bill contains a variety of requirements  
            surrounding due process and the ability of an institution  
            under review to receive and comment/correct visiting committee  
            reports prior to agency action.  Federal criteria for  
            recognition, and ACCJCs policies, also establish an array of  
            due process requirements.  Several of the requirements of this  
            bill are consistent with federal requirements and (recently  
            revised) ACCJC policies. This bill, however, also requires  
            visiting team recommendations to be shared with the  
            institution under review.  Committee staff was unable to  
            identify another accrediting agency that currently requires  
            the visiting team recommendation to be provided to the  
            institution.  For example, WASC-Sr. policies specifically  
            provide that the team recommendation is confidential to the  
            Commission prior to decision-making.



          6)Appeals Process.  The appeals process outlined in this bill is  
            inconsistent and potentially conflicts with two provisions of  
            federal criteria for recognition.  This bill contains a  









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            requirement that the appeals panel reviewing agency decisions  
            be appointed by the CCC Chancellor.  This requirement appears  
            in direct conflict to federal criteria that expressly prohibit  
            outside organizations from playing a role in making or  
            ratifying accreditation decisions.  This bill authorizes the  
            appeal panel to consider new or additional evidence.  This  
            requirement is inconsistent with the criteria for recognition  
            that establish a very narrow requirement for new evidence  
            related only to institutional financial stability.   



          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.   





          AB 1385 (Ting) is pending in the Assembly Higher Education  
          Committee.  This bill prohibits the accrediting agency for 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.  











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          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  
          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  









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          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 Federation of Teachers (Sponsor)


          California Labor Federation


          California Teachers Association


          


          Opposition


          










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          Accrediting Commission for Community and Junior Colleges


          Community College League of California





          


          Analysis Prepared by:Laura Metune / HIGHER ED. / (916) 319-3960