Accreditation continues to play an essential and complex role in campus life. Not only is it a marker of academic quality, it also maps higher education’s rules of the road, outlining an institution’s basic educational and related policies and processes.
Equally importantly, being accredited by an agency recognized by the U.S. Education Department (ED) is also necessary to qualify for federal student financial aid. Because of this, the accreditation process has become enmeshed in federal policy, and at times legislators and other stakeholders have asserted that accreditation is not serving students and taxpayers as well as it should — that, among other things, it costs too much, or does not guarantee educational quality, or stifles innovation.
One thing that campus leaders are unlikely to associate with accreditation’s role as a Title IV gatekeeper is its being unconstitutional. Nevertheless, last week the state of Florida filed a lawsuit against ED asserting just that. If accepted in full, the suit would raze the federal structures relating to accreditation, raising difficult questions about how the government might apply a quality control system vis-à-vis institutions of higher education.
The impetus for the challenge
The animating force behind Florida’s lawsuit is ED’s policies towards institutions that wish to change accreditors. Under a Florida law signed by Gov. Ron DeSantis in April 2022, all 40 public institutions, including 28 state colleges (essentially, the state’s community colleges) are required to change accreditors in their next cycle. Florida documents state that half of its colleges and universities would have to change accreditors in the next two years.
Florida’s unprecedented state policy was facilitated by a 2020 ED regulation that broke up the previous system of regional accrediting agencies. That regulation allowed colleges to seek institutional accreditation regardless of a campus’s physical location.
Responding to these developments, ED has issued revised accreditation “guidelines,” which require institutions to provide a “reasonable cause” for changing accreditors and outline as well how the switch will improve quality. College leaders know that ED “guidance,” while lacking the full legal force of a regulation, can in practice have much the same effect.
Several Florida institutions had already started the process of changing accreditors. The lawsuit aims, at minimum, to nullify ED’s guidance to make it easier for the state’s public colleges to switch accreditors.
Substance of lawsuit
The Florida lawsuit states, in part, that “Congress has ceded unchecked power to private accrediting agencies to dictate education standards to colleges and universities, and it has forbidden the U.S. Department of Education from meaningfully reviewing, approving, or rejecting those standards. Making matters worse, Congress has given accreditors broad power to apply their own standards to colleges.”
It goes on to state that Congress “must rely on government actors — both state and federal — to provide those assurances. It cannot lend the power of the purse to private entities by giving them the keys to billions in federal education dollars.” This, the suit alleges, violates the “private non-delegation doctrine,” which holds that a law that cedes Congress’ legislative authority to a private entity violates the Constitution’s separation of powers. The Supreme Court has not struck down a law based on this doctrine since two cases in 1935.
It also allegedly violates the Constitution’s “appointment clause” as well as the Administrative Procedures Act, the primary law that guides Executive Branch regulatory processes.
The suit also goes into some detail in criticizing a variety of the actions taken by the Southern Association of Colleges and Schools Commission on Colleges (SACS), which previously has accredited all of Florida’s public colleges and universities. In referring to particular SACS actions, the complaint states that none of them “have any relationship to education quality or to protecting Congress’s investment in students. Instead, SACS insists that public colleges and universities be free from ‘undue influence’ — a euphemism for SACS’s position that these public institutions be unaccountable to the people or their elected representatives.”
Where AACC stands
From the perspective of the American Association of Community Colleges (AACC), accreditation occupies valuable ground. Institutional accrediting bodies continue to discharge their original role in providing quality assurance, which also serves to provide an important signal to other institutions. Washington policy debates often omit mention of the fact that accreditation existed decades before the federal government and other entities linked it to programmatic eligibility.
That said, accreditation also serves an irreplaceable role as a certifying agent in various contexts, including Title IV. The federal student aid programs could look very different without accreditation playing its traditional role. For this and other reasons, AACC will be monitoring the Florida lawsuit very carefully.
