BILL ANALYSIS Ó
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