Bad Actors vs. Poor Actors: Why it Matters in State Authorization of Higher Education
written by Alan Contreras, writer and higher education consultant
What is state authorization, and why does anyone care? Ultimately, it is about acceptance of responsibility by states. The SHEEO white paper on state authorization sets forth how we got here and where we are, and proposes some steps that we could take to get better. However, to move forward, we need to put some of these ideas into a centrifuge and separate them in a way that is not usually done.
First, accept that yes, the states do have the primary responsibility for what colleges are and do. Over 99 percent of authorized, degree-granting institutions obtain their authority from the governments of the states. This authorization is usually in the form of a charter, a license, or a statutory grant of authority. In general, courts have held that merely creating an educational institution is not enough — the authority to issue degrees has to be explicit.[1]
This background leads to the fundamental fact of what we call “degree authorization”: There is no such thing as a private right to issue degrees in the United States (or any other Western country with the possible exception of Belgium). To be valid, a degree has to be issued by an entity that has been expressly granted that authority by a government. This is why some states that have created hands-off exemptions for religious colleges without ever granting them degree authority have created a dubious status for degrees issued by those colleges, as churches do not have and have never had the authority to issue degrees in the U.S. All degrees are government-backed credentials.
That’s the historical baseline. States are at the wheel and get to deal with the issues that come up. So today we need to have a serious conversation throughout postsecondary education about the difference between bad actors and poor actors. Some of the problems that states, accreditation entities, and the feds have faced and created result from the fact that these concepts have become blurred. With conceptual blurring comes regulatory fuzziness and enforcement mismatch.
Let me suggest some definitions as the basis for a discussion. An academic bad actor is an institution the action of which in a given situation is illegal, fraudulent, deceptive, dishonest, or demonstrably harmful to students, employers, or society. A poor academic actor is one whose actions are shoddy, poorly planned, disconnected from current knowledge, weakly linked to customary academic networks, and lacking sufficient resources.
The distinction, boiled way down, is between behavior that is usually illegal and that which is insufficient. We need to keep this distinction in mind as we look at what the feds are interested in regulating, how a voluntary solution like SARA incorporates state, federal, and accreditor roles, and what the states, ultimately, need to be able to do.
States need to begin making clearer distinctions between how they regulate bad actors and how they regulate poor actors. Why? It’s the only distinction that all of the interested parties can come close to agreeing on. Complete agreement is not possible because there will always be arguments about, for example, the acceptable pass rate on a licensing exam. But general agreement on most of what is bad vs. poor can be achieved.
The bottom line is that a bad actor, assuming a pattern of behavior, should be killed off, while a poor actor should be improved. That may be largely a philosophical or moral distinction, but I think it is the right one. In either case, the state is and should be the principal decision-maker, though, of course, other entities can assist. Note that I do not refer to public, private, nonprofit, or for-profit. None of those labels matter. What matters is behavior and results.
This gets us to the question of how. How should the states go about making these important distinctions and taking needed steps? At a minimum, there needs to be better coordination and distinction between higher education agencies and law enforcement units. For this to happen, both have to exist. Every state needs professional-level staff with the capacity and authority to kill bad actors and at least speak publicly about improvements to poor actors. That staff needs to keep the distinction clear in its mind, and bad actors need to be handled primarily by law enforcement and consumer protection staff. Very small states can contract with each other to help support these services.
How much energy should be devoted to improving marginal providers? It has to be case-by-case. We have recently seen what we have privately known: Many colleges that looked OK and have been around for a hundred years are, in fact, walking dead. They will continue to fail. Some can be saved and are worth saving. Some that are worth saving can’t be saved. Some need a mercy killing. Even public institutions do not always perform at the level they should, and we could see more cases like Compton’s loss of accreditation, which was very expensive for California to resolve.
Because all degrees are government-backed credentials, you would think that states would take seriously their duty to ensure that the entities issuing degrees are doing a good job of it. In general, this does not happen in any consistent or methodical way. Why not? Money is always a factor, as states, like employers, tend to “let the accreditors do it,” with “it” meaning almost everything having to do with qualitative oversight. In fact, accrediting bodies don’t have the capacity or the authority to deal with much that needs to be dealt with. They also are paid fees by the schools they accredit, an awkward situation. Finally, accrediting bodies are becoming less able to focus on qualitative comparability as conceived by academe because their agendas have become driven by federal requirements as much as by institutional needs. They went to bed as jaguars and have awakened as house cats of the federal government, meowing to the current political tune.
States also tend to pay attention only to public institutions, in large part because education oversight agencies, where they exist at all, are funded mainly for that purpose. Yet in many states, degrees related to critical public purposes are issued, in significant part, by nonpublic providers. I once attended a meeting about a state’s nursing shortage at which the higher ed agency staff refused to discuss what the nonpublic providers were contributing, even though twice as many nurses in that state graduate from nonpublic as from public institutions. This pinched, protectionist view of public policy has to stop.
Finally, there are three legs to the tripod upon which a university’s mission is balanced within a political environment. These are access, retention, and quality. It is extremely difficult to be excellent at all three, and the voting public cares almost entirely about access and retention, especially at the undergraduate level, which means that public agencies are not provided with much in the way of resources to focus on qualitative issues. Without public interest in academic quality, it will be hard to maintain.
As we plan for a future that includes appropriate state oversight of postsecondary institutions, we need to recognize that quality is a thing, it is essential to students and the larger society, and we need to accord it the attention it deserves.
[1] For a detailed walk-through of the cases, see either my College and State (CraneDance, 2013) or the more recent and focused State Authorization of Colleges and Universities (Oregon Review/WCET, 2017). The latter will appear in a revised edition in spring 2020.
This blog post represents the views of the author, not SHEEO, or its membership.
Alan Contreras is a consultant to the National Council for SARA, which he helped establish. He served as administrator of the Oregon Office of Degree Authorization from 1999–2011 and also worked for the University of Oregon, Oregon Community College Association and Missouri Coordinating Board for Higher Education. He is a graduate of the University of Oregon and its law school. In addition to his work on higher education issues, he is a well-known author and editor, most recently of Edge of Awe: Experiences of the Malheur-Steens Country and Collected Poems of Ada Hastings Hedges, both from Oregon State University Press. He is currently working on a history of Oregon ornithology.
