Senior Department Official’s Thoughtful Response to ACICS

By Nicholas Kent, Senior Vice President of Policy and Research, Career Education Colleges and Universities

Late Sept. 28, a high-ranking official at the U.S. Department of Education issued a response recommending Secretary Betsy DeVos continue the recognition status of the Accrediting Council for Independent Colleges and Schools (ACICS) with a stipulation the accreditor remediates two minor deficiencies within 12 months.

The much-anticipated and lengthy response comes from Diane Auer Jones, a Trump administration appointee who is delegated to perform the duties of Under Secretary and the designated Senior Department Official (SDO) on accreditation agency recognition. The recommendation from Auer Jones will undoubtedly inform Secretary DeVos, who will conduct her own independent evaluation of whether ACICS should continue as a federally recognized accreditor.

The response from Auer Jones emanates from a court order issued earlier this year by the U.S. District Court for the District of Columbia.

In a Memorandum Opinion dated March 23, 2018, Judge Reggie Walton found then-Secretary of Education John B. King, Jr., an Obama appointee, violated various Federal laws, including the Higher Education Act and Administrative Procedure Act, by withdrawing and terminating the recognition status of ACICS on Dec. 12, 2016 without considering various categories of relevant evidence submitted by the accreditor as part of its January 2016 petition for continued recognition. This included ACICS’s “Part II submission,” which consisted of a detailed narrative and approximately 36,000 pages of documents, as well as evidence of the accreditor’s placement verification and data integrity procedures. Judge Walton concluded then-Secretary King’s termination decision was an arbitrary agency action based on a process procedurally flawed.

In remanding the case back to the Department, Judge Walton directed Secretary DeVos to consider this relevant evidence – and the possibility of any new evidence – in deciding whether ACICS complies with the recognition criteria and if not, whether the accreditor could demonstrate or achieve compliance with the criteria within 12 months or less. The 12-month ceiling is set by Congress and can only be extended in “extraordinary circumstances.”

Referencing Judge Walton’s opinion, Secretary DeVos issued an Order dated April 3, 2018, retroactively restoring ACICS’s status as a recognized accreditor, indicating there had effectively been no final decision on the accreditor’s January 2016 petition due to the outstanding document review identified by the District Court. Although ACICS’s regularly-scheduled recognition period was set to expire in December 2016, it is automatically continued from the restoration period until the Secretary reaches a final decision on the pending appeal.

In rightfully restoring the recognition status of ACICS, Secretary DeVos indicated that she would consider on remand the relevant information not previously considered by then-Secretary King, as well as additional evidence related to the regulatory criteria then-SDO Emma Vadehra, also an Obama administration appointee, identified as noncompliant before the termination decision. Secretary DeVos set a briefing schedule for ACICS to file its supplemental written submission no later than May 30, 2018, and the SDO to respond on or before July 30, 2018. ACICS timely filed its response, and after two extensions citing the voluminous nature of the record, Auer Jones filed her thoughtful response on Sept. 28, 2018.

Throughout her 77-page response, Auer Jones provides a thorough and balanced analysis of the issues based on the entire record before the Department.

In sharp contrast to her predecessor, the laconic decision dated Sept. 22, 2016 from then-SDO Vadehra was less than three pages and just barely contained support for her conclusions.

The robust response developed by Auer Jones is a general rebuke of the 2016 written analysis of Department staff, which found ACICS out of compliance with 21 areas of the recognition criteria and that the accreditor was not capable of coming into compliance within a year. This incomplete staff analysis was in turn affirmed and adopted by then-SDO Vadehra in her decision and Secretary King in his termination decision. In a recap of the previous administration’s missteps, Auer Jones is highly critical of both Department staff and Obama-era appointees for their inequitable application of both the law and supplemental non-binding guidance used by staff in assessing ACICS’s compliance.

Furthermore, Auer Jones expresses concern that although ACICS expended considerable resources in submitting thousands of pages of additional information at the request of previous Department leadership, these documents were never even considered as part of the accreditor’s petition. Auer Jones lambastes the choice by the previous administration not to review the Part II submission indicating it is “an example of government strong-arming that is simply not acceptable and…a strong sign that the Department has predetermined ACICS’s destiny, whether or not the evidence provided did or did not justify the determination.”

Auer Jones concludes ACICS is in compliance with 19 of the 21 applicable recognition criteria and not surprisingly, the accreditor was likely in compliance with many of these criteria in 2016 at the time of then-Secretary King’s improper termination decision.

For the two areas that Auer Jones finds ACICS not in full compliance, she believes the agency will achieve compliance within 12 months. This includes ACICS demonstrating through the submission of a standard compliance report that its existing evaluators have undergone an improved training process and members of its Intermediate Review Committee signed conflict of interest attestations.

From all reasonable accounts, ACICS appears to be on an apparent path to achieving continued recognition and ending years of uncertainty for its accredited schools, despite a generally unfair process once plagued by political influence.

According to a Department spokeswoman, the final decision from Secretary DeVos is expected in the “coming weeks.” Meanwhile, ACICS continues to remain a federally recognized accreditor and an approved gatekeeper for purposes of Title IV federal student aid.

NICHOLAS KENT is Senior Vice President of Policy and Research at Career Education Colleges and Universities. In this role, he serves as senior advisor to association leadership by providing statutory, regulatory, and policy guidance on matters relating to higher education.

Prior to his current role, Nicholas was Managing Director at Dulles Advisory Group, a higher education and strategic management consulting firm. In this position, he worked with postsecondary institutions to assist and guide them on the vastly regulated field of higher education, including advising nonprofit and proprietary organizations regarding strategic and technical issues pertaining to accreditation and the federal student financial assistance programs.

Nicholas previously held a government appointment as Director of Policy, Planning and Research at the District of Columbia Office of the State Superintendent of Education. In this position, he was primarily responsible for working with internal and external stakeholders to develop and support the final issuance of regulations, policies, and guidance materials that supported the agency’s efforts to ensure compliance with federal and local laws.

Before time in public service, Nicholas served as Vice President of Legislative and Regulatory Affairs for a private equity sponsored company. For approximately eight years, he was responsible for leading and managing regulatory operations, including accreditation and state authorization activities, for a system of 53 postsecondary institutions.

Nicholas began his career in education as a professional staff member for an accreditation agency recognized by the U.S. Secretary of Education.

Nicholas earned his bachelor’s degree in political science from West Virginia Wesleyan College and his master’s degree in higher education administration with a concentration in policy from The George Washington University. He is a current member of the Association for Education Finance and Policy and a frequent writer and speaker on topics related to higher education.