European-American University™

Part 2: Oregon and the ODA

Wyoming and other states such as South Dakota, Missouri and Montana that have taken similar paths are in a rather different category from states such as Oregon, which has adopted what comes near to a socialist law system when it comes to postsecondary education. In 1997, the state, acting in the interests of Oregon public sector schools, established what is now the Oregon Office of Degree Authorization (ODA) as part of the Oregon Student Assistance Commission (OSAC) as a consumer protection agency. ODA in turn vests its authority in a single Administrator (now Director) (currently Alan Contreras, J.D.) who is assisted by a program reviewer and a part-time administrative assistant.

The statutes that established ODA (ORS 348.606, 348.594 to 348.615 and 348.992) are covered by OAR 583-030 which sets out the framework for ODA and its scope of activity. The operation in-state of institutions that do not hold accreditation or that are not otherwise specifically approved by ODA is prohibited, as is the operation of such out-of-state institutions assisted by in-state representatives. ODA charges per-program fees for its program approval services, but will not evaluate doctoral programs from schools that are not regionally accredited, a position which is not explained or justified on its website.

ODA requires that holders of degrees from U.S. state-licensed but unaccredited schools (such as California approved schools) add a disclaimer in the use of the degree that states that it is neither accredited nor approved by ODA. Previously, such use was simply prohibited by ODA, but the out-of-court settlement reached between ODA and Kennedy-Western (now Warren National) University in 2003 resulted in Oregon conceding that degrees from degree-awarding institutions appropriately licensed by another U.S. state could not be subject to such blanket prohibition. An earlier case between ODA/OSAC and a graduate of then-unaccredited Bob Jones University in 2001 also resulted in defeat for ODA and a revision to the statutes. Although it is considered by some that the statutes underlying the ODA would prove unconstitutional if subjected to challenge at Federal level, such a challenge has yet to happen.

Oregon was also the first state to implement an adverse impact rule for colleges, starting in 1997. Briefly, this means that a college from one sector can object to a college from another sector starting a new degree program, leading to a hearings process and eventually, in the absence of an agreement in the meantime, to a decision imposed by the Oregon Student Assistance Commission (OSAC), of which ODA is a part. It was reported in 2003 that the bulk of such cases involved community colleges versus private providers. Clearly there are antitrust implications to such a legislative measure, though again these have not been explored in challenge at Federal level.

The appointment of the ODA Advisory Committee in 2004 included the former vice-chancellor of Oregon State University (regionally accredited), a representative of OICA (association for regionally accredited nonprofit schools), the President of Pioneer Pacific College (nationally accredited), an official of the Oregon Department of Education, the President of Pacific Bible College (religious school approved by ODA) and a representative of the University of Phoenix (regionally accredited). The category of institutions most adversely affected by ODA's actions - secular non-accredited institutions, both domestic and foreign - was not represented, and most of those on the committee could be argued to represent actively competing interests to that category given their associations with accredited institutions. Geographical considerations could not have precluded such inclusion of self-regulating representatives, since OSAC's minutes show that the committee "mainly meets via email or conference call". The opportunity to invite opinion and input from state-licensed and foreign self-regulating schools was missed, giving rise to an unfortunate impression of bias.

The primary difficulties involving ODA today derive from an imprecisely-written statute with excessively wide implications, and an interpretation of that statute that allows ODA to take on a specifically activist role rather than being a neutral enforcer of the law. These problems have intensified in recent years, and primarily involve ODA's treatment firstly of foreign institutions, and secondly those which are not accredited and have programs that evaluate prior experience for college credit. These two categories frequently overlap.

Problems with experiential evaluation for college credit
We have discussed elsewhere that degree programs in which professional experience is assessed for conversion to college credit are the main battleground between the accredited and the self-regulating sectors in distance education. Only a few accredited programs are permitted to award significant credit for prior experience, and some accreditation agencies and state legislatures specifically oppose the process, which is a key principle of non-traditional education. Equally, a large number of low-quality private sector programs and diploma mills have awarded experiential credit irresponsibly and without the necessary verifications.

Regionally accredited schools Thomas Edison State College, Charter Oak State College and Excelsior College all have programs which allow the associates and bachelors degrees to be earned 100% through experiential credit. The learner assembles and submits a portfolio of prior credit for assessment by faculty. Western Governors' University has both bachelors and masters programs that are based on the award of prior experiential credit, with competency assessed by tests, assignments and projects without required courses. There are several other accredited schools with experiential assessment programs. The French VAE law also allows the conferral of all degrees - including doctorates - wholly on the basis of an assessed prior experience portfolio, as is now implemented by both French state universities and by private institutions there.

The U.S. Department of Education acknowledges the problems with low-quality institutions, but nevertheless makes a clear distinction as to how the process of awarding experiential credit can be done legitimately. The U.S. DoE says,


A number of self-regulating institutions follow these guidelines (including EAU), using prior learning portfolio, past college credit and professional certification as the basis for the award of credit, when this credit can be assessed as equivalent to what would have been taught in a college-level course. A further basis is found in the regulations of the U.S. Citizenship and Immigration Service on the equation of professional experience to college credit. In the 1990s, legitimate private sector institutions such as Columbia Pacific University received the highest level of California state approval (in which they were certified to be observing standards deemed by the state to be equivalent to regionally accredited schools) while having programs that permitted the award of experiential credit at the doctoral level.

The educational methodology of the award of experiential credit is long-established, and indeed is being used in the regionally accredited schools referenced above on a routine basis. That they have adopted this methodology serves as further proof of its validity within the academy. However, an educational methodology is either valid or it is not. Its validity depends on its integrity, accuracy, internal values and interrelationships with other methodologies. It does not depend on whether the school in question holds regional accreditation, nor does it depend on the level of the degree concerned. Any case to the contrary has not thus far been presented by anyone associated with ODA, whose staff, while each having educational experience, are not primarily university-level educationalists.

The cardinal error of Oregon law is to deliberately confuse educational methodology with a school's accreditation status. The crudeness of the statute creates an absurd situation of bias towards the public sector. Alan Contreras, director of the Oregon ODA, explains,


This is a situation where poor wording in the statute has resulted in active discrimination against private sector providers and provided an easy opportunity to abuse them as "diploma mills" regardless of whether their processes for the award of prior credit are legitimate or not. It is ridiculous to permit an educational methodology in regionally accredited schools and then to prohibit schools that do not hold such accreditation from using the self-same methodology as their accredited peers. Such ignores the voluntary and non-governmental nature of accreditation, and as has been discussed elsewhere, promotes it as a false proxy for quality.

The fact that this very methodology forms the area of greatest competitive advantage of the self-regulating sector over the public sector indicates clearly that the reasoning behind this statute is protectionism for the accreditation cartel. It is shameful to see legislation being used in this way to protect the vested interests of a particular group, and then to see the ODA aggressively touted far beyond its borders by those vested interests as a blunt weapon with which to bludgeon the self-regulating private sector.

Problems with foreign institutions
Foreign institutions cannot apply for ODA approval, nor can their degrees be used within Oregon, unless they hold what ODA determines to be the equivalent of U.S. regional accreditation. This requires that the country where the institution is based have an accreditation system in place that is deemed equivalent to U.S. regional accreditation by ODA and that the institution be demonstrably accredited according to that system's standards.

The restrictiveness of this statute means that foreign institutions face active discrimination from ODA. In some countries, there are either no systems for accreditation, such systems are voluntary or applicable only to certain sectors, or there is no regulation of private universities at all. The statute, however, does not distinguish between private providers based on their quality after actual investigation, or the availability of accreditation to them; it simply prohibits them all in the way that its similar statute provision once attempted to do with U.S. state approved or licensed institutions. By doing so it inequitably condemns the good, bad and indifferent alike. In some cases this amounts to penalizing an institution for not having an accreditation which does not actually exist and is not available to the school. There are no ODA-recognized global institutional accreditors at present, and while U.S. recognized accreditors may accredit a few foreign schools, that accreditation is not recognized by the U.S. DoE or CHEA. Nor does ODA itself approve foreign private schools.

This situation might be frustrating enough on its own, but we should add to this that ODA has in the past used its website to make a number of inaccurate and derogatory comments about some foreign private schools, describing them inter alia as diploma mills and seeking to comment on the "appropriateness" or otherwise of their legal authority in their jurisdictions in a way that implies to the reader - entirely incorrectly - that they are operating illegally in their home country. It is this behavior above all, and the appearance that at least some of it is motivated in bad faith, that has ensured that ODA has been widely criticized, and not merely by private schools.

Unfortunately, ODA and the statutes that underly it are not always accurate or fair. Although ODA does list accurately many diploma mills and low quality providers (and its director has taken a notable role in raising awareness of the diploma mill problem), it lumps in with them good quality unaccredited foreign schools without proper distinction between those that are of good quality and those that are not, a distinction deliberately not made by the statute. And, on occasion, it has mistakenly listed accredited schools as unaccredited, or not distinguished between several schools with similar names - an important point since diploma mills often use names that are similar to accredited schools. Such a distinction could probably only easily be achieved by adding URL references to the institutions in question.

The political implications of this wording of the statute regarding foreign degrees are significant. Effectively, this is an attempt to force the standards of U.S. regional accreditation on a worldwide market and to encourage foreign countries to prohibit private universities from operating. It is not at issue that Oregon has the right to allow or prohibit whatever it wants within its borders. However, once it takes on the worldwide advocacy role that this statute implies, it steps into the area of political lobbying in support of market protectionism  for the regionally accredited sector - and effectively into the realm of socialist law.

Of course, ODA cannot investigate foreign schools itself; it lacks the resources to do so. Instead, it relies on the American Association of Collegiate Registrars and Admissions Officers (AACRAO) and some private credential evaluators. AACRAO is a large trade association that represents the interests of  mainstream U.S. university officials and, as with many private agencies in the U.S., conducts evaluations of foreign credentials against a fee. As with all such private credential evaluations, those from AACRAO constitute advisory expressions of opinion. The statutes mandating ODA, however, provide an opportunity for opinions of all kinds, including those of its chosen evaluators, to be presented as fact, regardless of their accuracy, fairness or bias. As a result, some opinions expressed by ODA on foreign schools are accurate, some are less than accurate, and some are deeply troubling.

The ODA in action
Here are two case studies which show the way in which the ODA fails to discriminate between diploma mills and legitimate unaccredited schools:


Berne University, incidentally, subsequently lost its accreditation in St Kitts and consequently access to U.S. federal student funding for its short-residency program there - problems that, however, do not invalidate the status of degrees earned while it was accredited. Indeed, the withdrawal of accreditation indicates that St Kitts accreditation is not the meaningless construct suggested above. Today, it continues as Bernelli University, a domestic U.S. university based in Virginia, and is a current applicant for U.S. regional accreditation.

Similar and equally draconian laws to Oregon's existed in Florida from 1988. They were declared unconstitutional in 1995 and have not been replaced. It is worth noting that on the two occasions when these Oregon statutes have been subject to formal legal challenge or the threat thereof, they have suffered defeat (Benton vs. Svejar/Contreras, discussed below; Kennedy-Western University vs. Contreras, settled out of court, discussed here). Dr. Donald Erickson comments, regarding the Benton case,


Note that in both cases the schools in question (Berne University and Bob Jones University) were credible institutions without U.S. accreditation (BJU has since made a successful application for national accreditation, 79 years after the university opened, but is still not regionally accredited). It is credible institutions offering real education that are targeted as a priority by the cartel. Those at the bottom of the market - the true diploma mills - are seen as less of a problem because they are not obviously trying to be "real" schools and are thus not direct competitors for the cartel.

In 2004, Wyoming state-licensed school Kennedy-Western University filed suit against ODA.


The report in the OSAC minutes read as follows, with its rather mournful tail-end observation:

Implications of the Oregon statutes for graduates of schools unaccredited according to their definition
The outcome of this is that the holder of a degree from a school which is unaccredited according to the definition imposed by Oregon statute - including one from EAU - may legally state that he or she holds that degree for the purpose of unlicensed private sector employment in Oregon, provided that it is made clear that the degree is not from an institution which holds recognized U.S accreditation or that is approved by ODA. Since degrees from EAU are not intended for use in public agency or licensed profession employment in the United States, which usually requires U.S.-accredited degrees, this means that our graduates should be free to use their degrees in Oregon for the exact purposes for which they are intended without hindrance or difficulty. Broad-brush statements to the effect of "degrees from X are illegal for use in Oregon" should be corrected and clarified in the light of the settlement above to avoid the risk of defamation.

The influence of ODA
The U.S. accreditation cartel has not been slow to give its full backing to ODA. This has taken the form of the frequent appearance of ODA and its administrator in the print media, and in its use as a primary source of information by others who have decided to accept its pronouncements without undertaking independent verification of them. The states of Maine and Texas, among several others, use the ODA lists as the basis for their own recently-passed similar laws and resulting lists, and other states such as New Jersey have adopted similar laws without publishing lists of schools. European Union government credential evaluators have also begun to use ODA as a reference in their work.

However, as on many other issues, the American Academy for Liberal Education (AALE), a nationally recognized accreditor which strives with integrity to return the quality of liberal education to universities, does not run with the rest of the CHEA pack. Alone among its peers, it has had the courage to stand up for the values of decency. In an exchange at the online Inside Higher Education in which Alan Contreras attacked AALE's decision to accredit a foreign school, AALE President Jeffrey Wallin said that he suspected that "Mr. Contreras’ bullet proof arrogance will prove as resistant to fact now as it has thus far...had he only been more professional...[he would have] check[ed] his facts before going public with mere hearsay." This is strong stuff indeed from the president of a national accreditation agency.

However, AALE is in stormy political waters; since July 2007 it has been barred from new accreditations pending an appearance in December before the National Advisory Committee on Quality and Integrity, which will consider whether it will retain national recognition. It has  been suggested that "the organization's small size, made the academy an easy target" and by Dr Wallin that "other accreditors might have had the political strength to fight the department". [Source] It is not merely AALE's small size that marks it out; but its ideological independence.

It is at the least unseemly to see taxpayer funds used for political lobbying on behalf of the commercial interests of the regional accreditation agencies. It may well be the case that the intention behind ODA was nothing more than a good faith effort to protect the consumer from wasting their money on diploma mills, but the reality is that such an effort has become politicized in its execution. This offers a lesson to learn; although ODA produces much in the way of written output and media presence, Hawaii's quieter approach has resulted in many more successful prosecutions of illegally-operating schools, and little controversy over the way in which its officials have applied the statutes concerned ("excellent enforcement", as the ODA acknowledges). It has also protected the interests of several good self-regulating schools there that are not regionally or nationally accredited.