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Making the Implicit Explicit: Demonstrating the value added of higher education by a qualifications framework

Making the Implicit Explicit: Demonstrating the value added of higher education by a qualifications framework

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Published by XefNed
by Holiday Hart McKiernan and Tim Birtwistle.
by Holiday Hart McKiernan and Tim Birtwistle.

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Published by: XefNed on Aug 09, 2010
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The Journal of College and University Law(ISSN 0093-8688)
The
 Journal of College and University Law
is the official publication of theNational Association of College and University Attorneys (NACUA). It ispublished three times per year by the National Association of College andUniversity Attorneys, Suite 620, One Dupont Circle, N.W., Washington, DC20036 and indexed to
Callaghan’s Law Review Digest 
,
Contents of Current LegalPeriodicals
,
Contents Pages in Education
,
Current Index to Journals in Education
,
Current Index to Legal Periodicals
,
Current Law Index
,
 Index to Current Periodicals Related to Law
,
 Index to Legal Periodicals
,
 LegalTrac
,
 National Law Review Reporters
,
Shepard’s Citators
, and
 Legal Resource Index
on Westlaw.POSTMASTER: Send changes of address requests to the
 Journal of Collegeand University Law
, P.O. Box 780, Law School, Notre Dame, IN 46556.Postage paid at Washington, D.C., and at additional mailing offices.
Copyright © 2010 by National Associationof College and University Attorneys
Cite as — J.C. & U.L. —Library of Congress Catalog No. 74-642623ABOUT THE JOURNAL AND ITS EDITORSThe
 Journal of College and University Law
is the only law review entirelydevoted to the concerns of higher education in the United States. Contributorsinclude active college and university counsel, attorneys who represent thoseinstitutions, and education law specialists in the academic community. The
 Journal
has been published annually since 1973 and now boasts a nationalcirculation of more than 3,800. In addition to scholarly articles on current topics,the
 Journal of College and University Law
regularly publishes case comments,scholarly commentary, book reviews, recent developments, and other features.In 1986, the Notre Dame Law School assumed publication of the
 Journal
,which had been published at the West Virginia University College of Law from1980–1986.Correspondence regarding publication should be sent to the
 Journal of Collegeand University Law
, Notre Dame Law School, P.O. Box 780, Notre Dame, IN46556, or by email to JCUL@nd.edu. The
 Journal
is a refereed publication.Except as otherwise provided, the
 Journal of College and University Law
 grants permission for material in this publication to be copied for use by non-profit educational institutions for scholarly or instructional purposes only,provided that 1) copies are distributed at or below cost, 2) the author and the
 Journal
are identified, and 3) proper notice of the copyright appears on eachcopy.The views expressed herein are attributed to their authors and not to thispublication, the National Association of College and University Attorneys orthe Notre Dame Law School. The materials appearing in this publication arefor information purposes only and should not be considered legal advice or beused as such. For a special legal opinion, readers must confer with their ownlegal counsel.
 
Do Not Delete 5/4/2010 2:27 PM
511
M
AKING THE
I
MPLICIT
E
XPLICIT
:
 DEMONSTRATING THE VALUE ADDED OFHIGHER EDUCATION BY A QUALIFICATIONSFRAMEWORK
H
OLIDAY
H
ART
M
C
K
IERNAN
*
 
&
 
T
IM
B
IRTWISTLE
**I.I
NTRODUCTION
........................................................................................ 512
 
A.
 
The Bologna Process ............................................................... 515
 
B.
 
Comparing the U.S. Reality with What Faced Europe ............ 523
 
II.W
HAT
A
MERICA
S
TANDS TO
L
EARN
F
ROM THE
B
OLOGNA
P
ROCESS
... 526
 
A.
 
Degree Transparency and Accountability ............................... 527
 
B.
 
Engagement of Disadvantaged and Non-TraditionalStudents ................................................................................... 531
 
C.
 
Global Precedent and the Internationalization of HigherEducation ................................................................................. 533
 
D.
 
Conclusion ............................................................................... 537
 
III.H
OW A
C
OMMON
D
EGREE
F
RAMEWORK
C
OULD BE
D
EVELOPED
........ 538
 
A.
 
The Bologna Process in Europe ............................................... 538
 
B.
 
Why a Common Degree Framework would BenefitAmerican Higher Education. ................................................... 539
 
IV.H
OW TO
D
EVELOP
A
 
C
OMMON
D
EGREE
F
RAMEWORK
........................ 540
 
A.
 
The First Way: Institutional Initiatives .................................... 541
 
B.
 
The Second Way: Initiatives by Accrediting Agencies ........... 542
 
C.
 
The Third Way: Uniform State Law ........................................ 543
 
D.
 
The Fourth Way: The Federal Approach ................................. 550
 
V.C
ONCLUSION
.......................................................................................... 560
 
* Senior Vice President & General Counsel, Lumina Foundation for Education,Indianapolis, Indiana.** Professor Emeritus of Law and Policy of Higher Education, LeedsMetropolitan University, Leeds, United Kingdom, U.K. Bologna Expert, VisitingFellow, Oxford Centre for Higher Education Policy Studies.The views expressed in this article are those of the authors and not necessarilythose of Lumina Foundation for Education, Inc. This article is based on work firstpresented at the U.S./U.K. Higher Education Law Roundtable, New College, Oxford.June 2009. The authors are particularly grateful for the review, suggestions, andencouragement of William Kaplin, Barbara Lee, Jamie Merisotis, Dewayne Matthews,Geoffrey Bennett, David Palfreyman, Nancy Leonard, and Gerald Bepko. The authorsthank Katherine LaBeau and Lindsay Jancek for their research, writing and editing.
 
Do Not Delete 5/4/2010 2:27 PM
512 JOURNAL OF COLLEGE AND UNIVERSITY LAW [Vol. 36, No. 2
I. I
NTRODUCTION
 There was a time when higher education in the United States enjoyedconsiderable autonomy as far as state and federal law were concerned.
1
 Over the course of the past fifty years, however, enormous inroads havebeen made into that autonomy. Using its spending power, its taxing power,its commerce power, and its civil rights enforcement power, Congress nowexerts enormous power over American higher education.
2
The states havecreated and continue to fund the vast majority of American public collegesand universities and have come to expect more from their institutionalcreations than they did in earlier times.
3
The vast majority of Americanprivate colleges and universities are subject to state and federal lawsregarding discrimination on the basis of sex, race, and disability, as well asto state-based contract law, tort law, and the law of not-for-profitcorporations.
4
Furthermore, an enormous portion of the research that isconducted in those institutions is subject to an intricate web of governmental regulation.
5
Still, higher education in the United States hasretained some of its former autonomy,
6
and that autonomy contributessignificantly to both the diversity that characterizes American highereducation and to the relative decentralization of control exercised over ittoday.The decentralized approach to education has resulted in tremendousvariety in American higher education
 — 
to the benefit of both individualsand society. However, this approach can be problematic when there isneed for a major transformation in higher education. In this article we areclaiming that, at this point in our history, a major transformation is exactlywhat American higher education needs. First, the emergent globalknowledge economy requires of us a higher education system thatcontributes significantly to the development of the knowledge and skillsthat will help us to become competitive in the global economy. Second,despite the enormous growth in higher education that took place in thedecades that followed the end of the Second World War, our highereducational system has, in recent years, begun to stagnate, at least inregards to educational attainment. Third, as we seek to remedy thatstagnation, we need to make transparent what is currently opaque in theeducational process.While the first part of this argument needs little explanation, the second
1. W
ILLIAM
A.
 
K
APLIN
&
 
B
ARBARA
A.
 
L
EE
,
 
T
HE
L
AW OF
H
IGHER
E
DUCATION
§
 
1.2
 
(4th ed. 2006).2.
 Id.
at § 1.3.3.
See also infra
Part IV.D.1
 – 
3.3.
 Id.
at § 1.3.3.4.
 Id.
at §§
 
1.4.2.4,
 
5.3,
 
6.4,
 
8.2.4.
 
5.
 Id.
at §§
 
13.2.3, 13.4.3.6.
 Id.
at § 7.1.6.

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