Postsecondary accreditation, once a low-profile policy backwater, has suddenly become a major target of reform calls from presidential candidates and others concerned about the impacts of accreditors on what America’s colleges and universities teach students and how they are managed. On June 21, the State of Florida officially entered the fray, filing a federal lawsuit in the Southern District of Florida against senior U.S. Department of Education (“ED”) officials that, if successful, could fundamentally reshape accrediting agencies’ relationship with their members by removing the accreditors’ main coercive tool: student access to federal student loans and Pell grants under the Higher Education Act (“HEA”).
Accrediting agencies form the only nongovernmental leg of the “accountability triad” established by the HEA to promote the quality of programs at institutions of higher education (“IHEs”). The two other legs are state governments, which authorize institutions to operate within their borders, and ED, which approves accreditors and certifies the administrative capacity and financial responsibility of IHEs. Under the HEA, only IHEs that are “accredited by a recognized accrediting agency” are eligible to participate in federal student aid programs (20 U.S.C. § 1001(a)(5)). The law provides a nonexclusive list of substantive standards, including on “curricula,” “faculty,” and “success with respect to student achievement,” that accrediting agencies must adopt to be recognized by ED (20 U.S.C. § 1099b(a)(5)). Until recently, regional accrediting agencies exercised exclusive control over the accreditation of most IHEs within their regional borders, but ED ended this exclusivity in 2020 with a rule dismantling these borders and permitting IHEs to become accredited by any ED-recognized agency of their choice.
Last year, the Florida Legislature took advantage of this regulatory change to pass a law, SB 7044, requiring in part that the state’s public colleges and universities periodically to switch to a new ED-recognized accrediting agency. The clear aim of the law was to remove Florida’s public higher education systems from the oversight of the Southern Association of Colleges and Schools Commission on Colleges (“SACSCOC”), which in spite of the 2020 rule continues to accredit all of Florida’s public colleges and universities. SACSCOC has recently become embroiled in several political controversies. In 2021, it threatened the federal funding of Florida State University when it challenged the consideration of Richard Corcoran, a former state Commissioner of Education and Speaker of the House, for FSU president. More recently, it sent a letter questioning the University of North Carolina over its Board of Trustees’ recommendation to create a School of Civic Life that would prioritize academic freedom and intellectual diversity.
ED responded to SB 7044 by issuing two sub-regulatory “Dear Colleague Letters” (“DCLs”) that reinterpret the HEA to require pre-approval from ED before an IHE applies for membership with a new accrediting agency and identify factors ED will consider when determining whether to pre-approve an IHE’s application, including whether the new membership would be “voluntary” as required under the HEA (20 U.S.C. § 1099b(a)(2)). ED also published a letter instructing accrediting agencies, in light of SB 7044’s direction to public colleges and universities to switch accreditors, to determine whether an IHE’s decision to choose a new accreditor is, in fact, “voluntary.” In a related blog post, ED argues that the guidance is necessary to prevent states like Florida from passing laws that encourage a “race to the bottom” in terms of IHEs’ selection of ED-approved accrediting agencies.
The State of Florida’s new lawsuit challenges both these specific ED policies and, more broadly, the legal foundation of accreditors’ role as gatekeepers of federal student aid under the HEA. On grounds that parallel many of the arguments in a letter from former senior ED appointees criticizing the agency’s DCLs and other guidance documents, the complaint asserts that ED’s scrutiny of the state’s public colleges and universities for complying with SB 7044’s requirement to switch accreditors goes beyond the agency’s statutory authority and violates the Administrative Procedure Act’s prohibition of arbitrary and capricious decision-making, as well as its notice-and-comment requirements.
More fundamentally, the State of Florida argues that the wide-ranging authority Congress has granted to private accrediting agencies to coerce IHEs into complying with a broad range of standards, under pain of losing access to federal student aid, violates the Constitution’s private nondelegation doctrine. To support this argument, the complaint draws from nearly a century of Supreme Court and lower court precedent explaining that Congress is not permitted to outsource final regulatory decision-making to private actors. Such precedent includes the recent decision in National Horsemen’s Benevolent & Protective Association v. Black, 53 F.4th 869 (5th Cir. 2022), which struck down a portion of the federal Horseracing Integrity and Safety Act granting authority to a private entity to establish standards governing horseracing and restricting federal agency review of these standards. Likewise, Florida argues, Congress’s grant of authority to private accrediting agencies like SACSCOC to set standards governing the disbursement of billions of dollars in federal student aid to IHEs, while explicitly shielding the development and promulgation of these standards from any federal agency review or disapproval under the HEA (e.g., 20 U.S.C. § 1099b(o)), unconstitutionally delegates the power of the purse to an unaccountable private actor.
For related reasons, the complaint argues that accreditors’ role under the HEA violates the Constitution’s Appointments Clause by bypassing constitutional requirements in selecting individuals who set federal policy, as well as the Spending Clause, since it fails to give state institutions fair notice of the unforeseeable, coercive standards applied to them by private accrediting agencies.
A decision accepting Florida’s constitutional arguments could effectively reshape the higher education triad and return accreditors to their original role of voluntary membership organizations without coercive, congressionally backed power to set higher education policy. No matter the case’s outcome, Florida’s challenge to federal accreditation policy has ensured that these once-obscure private actors exercising substantial power over the education of America’s college and university students will remain in the national spotlight.
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