Stakeholders negotiating sweeping amendments to federal accreditation regulations proposed by the U.S. Department of Education (ED) will begin their final negotiation session on Monday, May 18, 2026.
A week-long effort in April revealed deep divisions among negotiators on the Accreditation, Innovation, and Modernization (AIM) Committee. Debates broke out over the ED’s “material error” and “safety valve” provisions, First Amendment compliance and separate-and-independent requirements — so much so that negotiators expressed doubt that consensus on all issues will be reached in the final round starting Monday.
Whether negotiators reach consensus or not, a Notice of Proposed Rulemaking will follow, and affected parties should pay attention to the negotiating record to inform their comment strategy.
I. ED’s Proposed Accreditation Standards
Before the first negotiation session in April, the ED prepared draft regulations of 34 C.F.R. § 602 et seq. The ED categorized the draft amendments as falling within each of the following: (1) reducing regulatory burden, (2) accreditor integrity, (3) legality and constitutionality, (4) student outcomes and (5) affordability.
A. Reducing Regulatory Burdens
The ED explained that its proposed “reducing regulatory burden” amendments will “remov[e] the arbitrary ‘two-year rule.’ ” The two-year rule requires that an agency “[c]onduct[] accrediting activity, including deciding whether to grant or deny accreditation or reaccreditation, for at least two years prior to seeking recognition” unless it is part of a recognized accrediting agency.
The proposed amendments would also limit the “substantive change” provisions, which presently require accrediting agencies to review “substantive changes” to institutions to ensure that they would retain accreditation status if they made the proposed change. The amendment would limit what qualifies as a substantive change and eliminate the provision requiring institutions on probation to receive prior approval to making specific changes.
Finally, the proposed amendments would permit institutions to change accrediting agencies without obtaining prior approval from the ED.
B. Accreditor Integrity
The ED explained that its proposed accreditor integrity amendments would implement several new requirements. Most importantly, the amendments would require accreditors to implement controls against fraud and misrepresentation in Title IV programs. The “material error” provision would require accreditors to adopt policies ensuring the accuracy, completeness and integrity of all representations made to the Secretary, the public and institutions while precluding accrediting agencies from making false, misleading or materially incomplete statements. The related “safety valve” provision would permit the ED to continue providing Title IV funding to an institution when the ED believes that an accreditor violated its own procedures when withdrawing Title IV funding.
Another provision would subject accreditors to antitrust laws. And the “separate-and-independent” amendment would require that accreditors have organizational structures distinct from “related, associated, or affiliated trade associations.”
C. Legality and Constitutionality
The proposed legality and constitutionality amendments would require accrediting agencies to do each of the following:
- Evaluate institutions’ compliance with all federal and state laws — emphasizing compliance with civil rights laws.
- Evaluate institutions’ compliance with the First Amendment.
- Require institutions to express support for intellectual diversity.
- Refrain from interfering with institutional governance decisions that fall within the purview of state governments.
D. Student Outcomes
The proposed student outcome amendments would require accrediting agencies to adopt minimum graduation rates for institutions to retain accreditation status and require accrediting agencies to use program-level student outcomes to demonstrate institutional achievement.
E. Affordability
Finally, the proposed affordability regulations would provide relief for students and taxpayers by requiring accreditors to consider educational and economic returns relative to cost of attendance. The regulations would also presume that undergraduate credits are transferable and require accrediting agencies to conduct cost-benefit analyses for new educational facilities.
II. Negotiators’ Reactions to Proposed Regulations
The first week of negotiations resulted in mixed reactions about the ED’s proposed regulations. According to transcripts of the meeting, the negotiators were split in their support for amendments in part based on the constituency each negotiator represented. Twenty-three nonfederal negotiators were part of the session and represented 13 constituencies, including students, veterans, organizations representing workforce development needs, legal assistance organizations, public institutions, proprietary institutions, state officials, organizations representing taxpayers and nascent accreditation organizations not presently recognized by the ED.
Negotiators representing the ED, nascent accreditation organizations, workforce development trends, state officials and taxpayers generally favored the “reducing regulatory provisions,” “student outcomes” and “accreditor integrity” amendments. But negotiators representing recognized accreditors and the National Advisory Committee on Institutional Quality and Integrity (NACIQI) generally disfavored the proposed amendments to these sections.
A. Reducing Regulatory Provisions
Much of the debate on the “reducing regulatory provisions” amendments focused on removing the two-year rule for agencies seeking initial federal recognition. Michael Shires, on behalf of organizations representing taxpayers and the public interest, argued that eliminating the two-year limitation deletes the “stranglehold that existing accreditors have on the system and opens the door to develop new institutions that can help … higher education institutions be even better.” But Magnus Noble, representing students, worried that eliminating the two-year rule might put students at risk without demonstrating accreditation experience. Negotiators appeared to move toward agreement on eliminating the two-year rule. Jennifer Blum, representing NACIQI, was at first skeptical of the amendment but later stated “[s]o I can wrap my head around the two-year, getting rid of, and I understand exactly. Now I’m more with the program than I was a few minutes ago.”
Negotiators appeared divided on whether to permit institutions to change accreditation agencies without prior approval from the ED. Ray Rodrigues, representing state officials, appeared to favor the provision, noting that Florida requires institutions to change accreditors when they come up for reaccreditation. Other negotiators questioned how the ED would determine that an institution is seeking reaccreditation for the reasons the proposal prohibits.
Negotiators were no less divided on the amendments to the “substantive change” provisions. Some negotiators welcomed the amendments, arguing that the breadth of the current substantive change provisions debilitates institutions. Representatives for NACIQI and recognized accreditors noted that accrediting agencies’ review is necessary because institutions’ attempts to make changes often pose risks to their accreditation status.
B. Accreditor Integrity
The accreditor integrity provisions were among the more contentious provisions. The “material error” provision in particular provoked considerable debate. Opponents to the provision noted that accrediting agencies already implement controls against fraud and that the proposal would impose an onerous requirement that could threaten severe liability on accrediting agencies. Proponents argued that the provision promotes accountability. Attempting to bring the different sides together, one negotiator suggested that the proposal might be amended so that an accreditor would only make a “material error” if it made a “knowingly” false statement as opposed to any false statement.
The related “safety valve” provision was no less contentious. Negotiators openly worried that if the ED continued to provide access to Title IV funds to an institution after it failed accreditation, that would contradict the purpose of the triad of institutions — accreditation agencies, state agencies and the ED — which the Higher Education Act established to protect quality education. They also questioned whether the provision rightly belonged in the due process standards. Only a handful of negotiators defended the provision.
Negotiators also discussed the amendment subjecting accreditors to antitrust laws. Opponents argued that there is no evidence that accrediting agencies collude, while proponents noted that the possibility of collusion is high in a field with so few market participants.
Finally, negotiators discussed the new “separate and independent” amendment. Many criticized the provision for imposing new organizational requirements on accrediting agencies that treated them like corporations rather than nonprofits. Alongside the antitrust provisions, some worried that these provisions would subject institutions to “specious allegations” in lawsuits.
C. Legality and Constitutionality
On the new provisions regarding accreditors’ compliance with the law and the Constitution, negotiators exhibited general agreement for the academic freedom amendment. Negotiators expressed far less agreement on the intellectual diversity provision. Some negotiators questioned whether the Higher Education Act provided authority for accreditors at the ED to require intellectual diversity among faculty.
As one might expect, the First Amendment and civil rights compliance provisions were the most contested. One negotiator pointed out that the executive order mandating the ED to revise its accreditation standards nowhere referenced the First Amendment, only academic freedom. Others argued that accrediting agencies are not capable of evaluating institutions’ compliance with First Amendment obligations. Proponents noted that accreditors’ previous enforcement of DEI standards demonstrated that they can evaluate First Amendment compliance. On civil rights compliance, Michael Duffey, representing state officials, pointed out that accrediting agencies often supported positions overturned by the U.S. Supreme Court, suggesting that the “status quo was not working.” Other negotiators argued that accrediting agencies cannot determine whether institutions are complying with civil rights law because agencies do not have investigatory wings.
D. Student Outcomes
Most negotiators agreed with the proposal requiring accreditors to identify minimum expectations of student performance. Negotiators expressed broad consensus that accreditation should be more meaningfully connected to student achievement and that the status quo — in which institutions with graduation rates in the teens can remain accredited indefinitely — was unacceptable. The disagreements centered primarily on how to measure student outcomes (which metrics, at which level, with what flexibility), where to place enforcement language structurally and whether the word “minimum” would become an inflexible bright line rather than a floor for continuous improvement. The ED appeared receptive to multiple suggestions, including adding retention, cost of attendance, time to completion and loan repayment data, while maintaining that the overall framework allowed accreditor discretion within the listed assessment criteria.
E. Affordability
The affordability provisions generated some of the most substantive policy exchanges of the session. Broad consensus emerged that higher education costs are too high and that accreditors play a role in high costs — both through prescriptive requirements and through insufficient attention to the return on investment students receive. The disagreements centered on whether (1) cost-benefit analysis belongs in accreditation standards or in the financial responsibility framework; (2) the language is flexible enough to avoid penalizing institutions that make prudent investments; and (3) provisions promoting innovation adequately protect students who bear the risk if experiments fail. On credit transfer specifically, the committee achieved unusual agreement across negotiators. All constituents agreed that institutions have been the primary obstacles to credit transfers.
III. Likely Outcomes Resulting From Second Round of Negotiations
Based on the outcome of the first session of negotiated rulemaking, it appears somewhat unlikely that the AIM Committee will reach consensus following the final session. Negotiators expressed considerable concern with the ED’s “material error” and “safety valve” provisions, the First Amendment compliance provisions and the separate-and-independent requirements. Unless the Department substantially amends these provisions, the committee is unlikely to come to consensus. As one negotiator noted, “as a package, I’m becoming concerned about how it all fits together.”
Negotiators did largely agree to (1) increase credit transfers; (2) improve student outcomes; (3) remove the two-year rule; and (4) ensure institutions implement academic freedom policies. But for the committee to reach consensus, the ED will need to amend the provisions that gave negotiators the greatest concern. To do so, the ED might consider removing the “safety valve” provision and the First Amendment compliance provision, adding an intent element to the “material error” provision and loosening the separate-and-independent requirements. Given that the ED responded positively to some recommendations during the first session, the Department may yet make these amendments.
IV. Takeaways
Regardless of whether the committee reaches consensus, a Notice of Proposed Rulemaking will follow. Potentially affected parties should consider the following:
- Monitor the final session for signals about which provisions survive intact and which are substantially amended.
- Consider preparing public comments for the notice-and-comment period that will follow. The negotiating record from the first session reveals precisely what arguments resonated with the Department and where flexibility exists — intelligence that should inform comment strategy.
- Assess institutional readiness for the most likely regulatory changes, particularly around student outcomes data, cost-benefit documentation, academic freedom policies and credit transfer.
For questions about the AIM Committee’s negotiated rulemaking, contact the authors or a member of the firm’s Education Industry Team.