Attacks on UNC Litigation Reforms are Weak | Eastern North Carolina Now | Those are the words of former UNC Law School Dean Judith Wegner who spoke to a reporter from the (Raleigh) News & Observer in May about her opposition to a proposed UNC Board of Governors resolution to prohibit UNC Centers and Institutes from participating in litigation.

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    Publisher's note: This post, by Bob Luebke, was originally published in the Education section of Civitas's online edition.

    Those are the words of former UNC Law School Dean Judith Wegner who spoke to a reporter from the (Raleigh) News & Observer in May about her opposition to a proposed UNC Board of Governors resolution to prohibit UNC Centers and Institutes from participating in litigation.

    The resolution, introduced in March of this year by board member Joe Knott, is an attempt to get UNC to focus on its core mission. "We need to confine ourselves to our mission, which is academic," Knott told a reporter after a meeting earlier this year. "The university is not a public interest law firm, and doesn't need to be."[i]

    As expected, Knott's resolution generated criticism from the Left and many law school professors. In May, Wegner authored a seven-page memo to the Board of Governors in which she listed a number of academic standards the board could supposedly violate if it went ahead and shut down the UNC Center on Civil Rights.

    Wegner warned there would be a public outcry if board members, who normally don't deal with accreditation issues, continue "pushing forward with personal views."[ii]

    Wegner is - in so many words - telling board members to butt out. Why? She believes the resolution could potentially jeopardize accreditation. She is clearly uncomfortable with board members injecting their "personal views" into an area with which they are largely unfamiliar.

    Wegner's reasoning is flawed however, for several reasons. To understand, let's get the full flavor of what she's thinking.

    Wegner believes the proposed resolution only reflects the "personal" views of a board member or members. To her, it's not action taken in the interest of the institution. But who says? Decisionmakers' personal views are constantly tied to their public positions. The charge that the resolution reflects personal views is an astonishing statement. If the Board passed the resolution, does that mean the policy is no longer a personal view?

    In the same interview, Wegner continued in a similar vein. She asked rhetorically, "Who owns the university? I think it's the public's university. Here are people sending their children expecting they'll earn an accredited degree. Here are people who are alumni who see the reputation of the school they went to put under the bus." [iii]

    In defending UNC against the policy, Wegner claims UNC is not owned by anyone: "It's the public's university." Having said that, she conveniently ignores that public institutions like the UNC System are accountable to boards - whose members must be approved by the legislature, who are in turn elected by the people of North Carolina. In other words, the board does in fact represent the public. Or does she expect all 10 million residents to weigh in on every UNC issue?

    Furthermore, Wegner claims that a resolution to prohibit UNC Centers and institutes from engaging in litigation could result in changes to the school's accreditation.

    This is a serious charge that is deliberately meant to gather attention - but it raises other weaknesses in her critique.

    Accreditation is an important matter for a variety of reasons. It is intended as an indicator of quality for students as well as taxpayers. The federal government requires colleges and universities to be accredited before students can receive financial aid. Moreover, various forms of federal research funding and federal subsidies can only flow to accredited higher education institutions.

    There is no legal requirement for schools to be accredited. The designation can be advantageous, but there is no state law requiring schools or colleges to be accredited.

    Law schools can lose and have lost accreditation. Currently the American Bar Association has two schools on probation. Their problems are much more widespread and serious than the impacts of the proposed resolution the Board of Governors is considering.

    It's important to note that, if the resolution is approved, practically speaking the changes apply to the UNC Center on Civil Rights, and the law schools at UNC Chapel Hill and North Carolina Central University. Law students would still have access to educational opportunities at other clinics at both law schools, all of which are in compliance with American Bar Association (ABA) guidelines. It's unlikely to think such actions would generate changes in accreditation.

    It might be that Wegner and others play the accreditation card because it often paralyzes policymakers and parents. While the public perception is that accreditation is an impartial process and an indicator of quality, the evidence is otherwise. Accreditation is no guarantee of quality. In fact, it essentially functions as a cartel with all the negative consequences.

    Wegner's error is a misplaced faith in the accreditation process. For example, Halifax County Schools, home of some of the worst-performing schools in North Carolina, is an accredited school district. So are many of the schools that are labelled low-performing or performed poorly on state tests.

    How do I know? Find out for yourself on by using a tool on the web site of AdvancED, the nation's largest accreditation agency and also home of the Southern Association of Colleges and Schools, the major accrediting arm of educational institutions in the southeast.

    It's also interesting that Raleigh Charter School (RCS), for years the highest-ranked public school in North Carolina, does not have accreditation. In fact, early on RCS decided not to seek accreditation, figuring the process might not be consistent with its intended mission.[iv] That said, it should be noted that every year RCS graduates apply to and enroll in some of the top colleges in the country. Evidently not having accreditation hasn't damaged the school or limited the aspirations of its graduates.

    In addition to functioning as a perceived indicator of academic quality, accreditation also implies institutional commitment to a high set of academic, financial and institutional standards. That said, let's remember the academic cheating scandal at UNC-Chapel Hill went on for years. In 2015 because of several investigations UNC was placed on accreditation probation for failing to comply with a variety of accreditation principles such as institutional integrity.

    Considering the scope and the duration of the scandal, some have questioned whether probation was a sufficiently strong punishment. That can be argued. What can't be argued, however, is that none of the actions were taken until after results from several investigations were published. In other words, none of the activity noted in the investigations ever came up during the accreditation review process. And as embarrassing as much of the investigation has been to UNC, the institution kept its accreditation - albeit for a while on probation, a status that has since been lifted.

    In 2011, after the Atlanta Public Schools (APS) suffered through one of the worst test cheating scandals in US history, AdvancED and the Southern Association of Colleges and Schools (SACS) - the regional accrediting body for Georgia schools - placed APS on probation. The district was later "placed on accreditation with advisement," a status one step below full accreditation. Despite the scope of the cheating scandal and its impacts, APS never lost accreditation.[v]

    Proponents of accreditation such as Wegner seek to fiercely guard the process because they believe accreditation and its commitment to institutional, academic and financial principles serves to insulate and protect institutions from political forces. Hence Wegner's concern about injecting politics and personal views into board policy.

    In early February, the UNC Faculty Assembly drafted a letter to the Southern Association of Colleges and Schools in which it listed 17 actions by the legislature that violated accreditation standards. These included legislative participation in board meetings, interference in the presidential search process, passage of laws that limit board authority over admissions and tuition policy, and "packing" the UNC Board of Governors with Republicans after the 2010 election.

    Contrary to such claims, however, the truth is that accreditation is an inherently political process. There are numerous national and regional accrediting agencies around the country. They accredit schools, colleges and universities or various educational programs. Before any institution or program is accredited, the accrediting organization must be approved by the United States Department of Education. Becoming an accreditor is a lengthy process - too long to go into here. Suffice it to say, it's an expensive, arduous and time-consuming process. And only a limited number of accrediting organizations are approved.

    Even organizations like the American Bar Association (ABA) must gain approval from the government before it can accredit law schools. Last year it was reported that because commissioners were frustrated that the ABA failed to implement student achievement standards and had fallen short of completing a process audit of student debt levels, the ABA was on the verge of losing its ability to accredit law schools. Commissioners relented and the threat was not carried out.

    Still, such developments demonstrate where real authority lies - and it's political. When all is said and done, the U.S. secretary of education - who is nominated by the president and confirmed by the Senate - is largely responsible for determining which accrediting agencies are reliable judges of colleges, universities or educational programs.

    Federal involvement in the accreditation process dates to 1952, when the G.I. Bill required that receipt of student aid be tied to institutional accreditation. Through the years the growth of federal subsidies and federal research dollars has strengthened that link. The Higher Education Act of 1965 expanded the breadth of student financial aid programs and underscored those powers even more. Don't think that federal involvement in accreditation is limited to academic programs. In 2012 federal regulations regarding accreditation comprised about 90 pages of the Federal Registry, ranging in topics from academics to governance to finances. [vi] Five years later you can bet there are even more regulations.

    The largest accrediting organization in the United States is AdvancED of Alpharetta, Georgia. AdvancED's growth is in large part traceable to political connections. About a dozen years ago AdvanceED bought up a number of large prominent regional accrediting agencies and put them under one organizational umbrella, AdvancED.

    In 2009 Governor Nathan Deal of Georgia pushed through legislation that allowed him to remove sitting school board members in districts that don't have full accreditation. Mark Elgart, CEO of AdvancED, was co-chairman of a legislative commission that formed the outlines of the legislation. The legislation, which Governor Deal acknowledged was influenced by a critical accreditation review by AdvancED, rocketed the accrediting agency into prominence.

    Overnight accreditation became a major issue in Georgia and AdvancED was in the center of it all. A failure by AdvancED to accredit Clayton County Schools in 2008 resulted in students transferring and plummeting property values. ADvancED said the status was revoked because four school board members were removed due to ethics violations. The school won back its accreditation status two years later, but only after splitting a community.

    Much of AdvancED's work on accreditation involves not only academic issues but also relations between board members, the policy process and governance issues. AdvancED even asks if boards function well.[vii]

    Many believe such questions to be issues of policy and politics and outside the realm of traditional accrediting agencies. AdvancED disagrees. In 2011 AdvancED visited Wake County Schools after the Republican majority school board voted to dismantle an unpopular busing policy that was designed to maintain socio-economic diversity in schools. AdvancED reviewed policies and board actions but - in the end - didn't change the district's accreditation status. Many critics take issue with AdvancED's reviews and contend they overstep the normal boundaries of accreditation and wade into issues of politics and governance, all of which are best decided at the ballot box.

    It's a charge AdvancED officials dispute. Nevertheless, the evidence suggests that the accreditation process is far from a black box insulated from politics, as Wegner and other proponents suggest.

    Besides being a poor judge of quality and having strong ties to dominant political forces, the accreditation process has other problems as well. Conflicts of interest are rampant. Regional accrediting associations are financed in part by colleges and university membership in the associations. Yes, that's right, colleges pay dues to the associations that determine their accreditation. In fact, it's not usual for representatives of accrediting agencies to rent offices in buildings on the campuses they accredit.[viii]

    Under these conditions one would suspect that accreditors would be less likely to deny accreditation for dues-paying members. The message seems to be: go along to get along. Such perverse incentives raise the ultimate question: Considering such entanglements, can accrediting agencies fairly assess institutional quality and determine eligibility for federal financial aid?

    Joe Knott's proposed resolution to prohibit UNC Centers and Institutes from litigating is intended to ensure UNC institutions remain focused on their academic mission and not be functioning as a public interest law firm. Opponents say the resolution threatens UNC's accreditation. Because other ABA-approved legal-educational opportunities would still be available through UNC and UNCC law schools, the loss of accreditation is unlikely.

    Conservatives shouldn't fear opponents playing the "accreditation" card. It would be one thing if accreditation was working. Do parents and the public think our public schools and colleges represent a quality education? Why is dissatisfaction with American colleges and universities so high? Accreditation agencies are doing a bad job of ensuring quality but an excellent job of performing their real purpose for the educational bureaucrats and other progressives: functioning as a cartel to control access to federal funds and the availability of educational opportunities.

    The accreditation process is in serious need of reform. A full discussion of the options can't be done here. However, the weight of the evidence shows that possible changes to accreditation are a weak foundation for opposing the proposed UNC resolution. The Board of Governors would do well to ignore the noise, consider the resolution and other proposed alternatives, and act accordingly.

    [i] "UNC Board takes aim at civil rights center's legal powers", by Jane Stancill Raleigh News and Observer, February 27, 2017

    [ii] "Could proposed litigation ban put UNC's accreditation at risk?" By Jane Stancill, Raleigh News and Observer, May 23, 2017

    [iii] Ibid

    [iv] Remarks from 2010 conversation with RCS principal, Tom Humble.

    [v] "Atlanta school district to keep accreditation after cheating scandal" Dorrie Turner, The Associated Press, November 2, 2011

    [vi] For a, thorough review of the federal government and accreditation see: Accreditation: Removing the Barrier to Higher Education Reform, Lindsey Burke and Stuart Butler, The Heritage Foundation, September 2012.

    [vii] For additional background see: School Accrediting Agency's Reach Questioned, Education Week, April 26., 2011

    [viii] Statement based on calls made to AdvancED state accreditation reps in various states as well as office locations. Calls made in 2011-2012.
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