On October 2, a trial court dismissed Florida’s lawsuit against the Biden Education Department, claiming that accreditation methods for institutions of higher education are illegal. But the state will almost certainly re-file its complaint or appeal to continue its fight against an accreditation system gone bad.
Florida says the current system is unconstitutional because it violates the nondelegation doctrine—specifically, because it gives accrediting agencies “near limitless power” over state colleges and universities. This unlimited power is now abused to impose leftist politics on schools and to interfere with the sovereign rights of Florida and other states to oversee education.
The nondelegation doctrine means that Congress cannot delegate or transfer its lawmaking power since the first Article of the Constitution invests this power exclusively in the legislative branch, the branch most accountable to the public. Congress can and does work with executive agencies which fill in details of legislative schemes, of course. The Environmental Protection Agency (EPA), for example, can decide how much of a toxic substance constitutes unacceptable contamination; but only Congress—not the EPA—can decide to ban contaminants. This is also called the “major questions” doctrine, which simply means that only Congress gets to decide major questions of policy.
The nondelegation doctrine applies even more to private entities since private bodies are even less accountable to the public than executive agencies. When the actions of a private body are in question, the doctrine is called the private nondelegation doctrine, which is the issue in the Florida case: Florida says the Education Department has unlawfully delegated accreditation power to private entities called regional accreditors, including the one for Florida, the Southern Association of Colleges and Schools Commission on Colleges (SACS). Congress has made accreditation a prerequisite for federal funding under Title IV of the Higher Education Act of 1965. Such funds are often the lifeblood of small colleges.
If Congress set eligibility criteria or guided the DOE in setting such criteria—for example, by requiring a certain professor-student ratio or by requiring a certain percentage of a school’s budget to be for instruction—and then asked private bodies to check on school compliance, no delegation issue would exist since the private bodies would simply be carrying out the policy set by Congress.
But that’s not what’s happening.
In the current system, the eligibility criteria are not set by Congress—they’re not even set by the Education Department with Congressional guidance. Instead, they are set by private accreditors who have no accountability to the public.
That’s bad enough since that offends the private nondelegation doctrine. But the situation is even worse than that. According to Florida’s complaint, regional accreditors are not only answering to no one but they’re also politicizing standards in a leftward direction, effectively forcing schools to adopt liberal ideologies or lose funding. For example, SACS threatened Florida State University’s accreditation when the school considered the State’s Republican Education Commissioner, Richard Corcoran, for the role of President. In North Carolina, SACS boasted that it would prevent the University of North Carolina from establishing a program for intellectual diversity. And in Georgia, SACS threatened the federal funding of every state school when the former Republican Governor was considered for Chancellor to oversee the state university system.
Florida points out that none of these actions by SACS concern educational quality or the well-being of students. They’re just petty, partisan power plays. To its credit, Florida was pushing back on politicized accreditation even before this lawsuit. In 2022, for example, the legislature passed Senate Bill 7044, which requires state schools to switch accreditors periodically. The idea was to mitigate the harm done by overreaching accreditors and introduce checks and competitors into the system.
Predictably, Biden’s Education Department moved to dismiss Florida’s case, arguing that the Department, not the accrediting agency, decides to disburse federal funds and that that is the legislative function, not accreditation. Such an argument is circular at best—since disbursing funds depends on accreditation—and reprehensible legerdemain (trickery) at worst. And yet, the trial court sided with the Department—the judge is a Biden appointee—simply asserting: “[T]he accreditation of postsecondary schools does not involve any recognized federal regulatory action and is not an exercise of legislative function.” Case closed.
Well, probably not, as Florida can still amend and refile its complaint or appeal the trial court’s decision. The National Association of Scholars would support both—the more pushback on politicized accreditation, the better. Recent actions, including by Congress, are equally welcome. For example, the House just passed the End Woke Higher Education Act, which specifically forbids political loyalty oaths as part of accreditation; others are scrutinizing meta-accreditor organizations such as the Council on Higher Education Accreditation (discussed here,) while still, others are critiquing the American Bar Association, the sole accreditor of America’s law schools.
In short, much must be done to reform politicized accreditation—and much is already underway. But Florida stands out for leading the charge in this fight.
Image of United States District Court for the Southern District of Florida — Wikipedia
I think it is important to explain how we got here.
The Serviceman’s Readjustment Act (aka the “GI Bill”) of 1944 couldn’t set Federal standards for participating institutions — education was a STATE issue back then and Federal interference would not be tolerated. A lot of these were private institutions, many run by religious orders, and they weren’t going to tolerate Congress telling them what to teach. That would have been considered “Communism” back then and they would have screamed bloody murder about it.
The other thing is that Congress needed to get this all set up *quickly* — the goal was to get the returning servicemen out of the workforce (i.e. in college) for a couple of years until the economy evolved back into a consumer one. The fear was there would not be jobs for the returning GIs and the country would go right back into the Depression.
The colleges had set up systems of peer review — where institutional peers would evaluate each other’s campi and “accredit” each other as meeting the standards of the group. The system was established and none of the colleges objected to it, so Congress said “OK, as long as your peers accredit you, we’ll consider you eligible to receive these GI scholarships. LBJ opened the door wider with the Higher Ed Act of 1965 (the source of all Federal financial aid excepting GI benefits) and then the middle class was made eligible for student loans in the 1980s.
Power corrupts and these regional accreditators, which initially were products of the participating schools, have become entities of their own. But that is how we got here…
The other thing that needs to be mentioned is that various programs (e.g. law, psychology) have program accreditation that is necessary for graduates to obtain state licensure, and these program accreditors were playing the same games 15 years ago.
The key case is Jennifer Keeton v. Augusta (GA) State University an while IHE didn’t really get its facts straight (surprise, surprise), a summary of the case can be found here: https://www.insidehighered.com/news/2011/12/20/appeals-court-rejects-appeal-anti-gay-students-challenge-counseling-rules
As I understand it, Keeton has a religious objection to homosexuality based on her Christian beliefs, Leviticus 20:13 is explicitly stated to Christians and Jews, with Muslims having somethiugn similar in the Koran. Augusta State University is a subdivision of the State of Georga and hence the First Amendment, as incorporated by the 14th, would require Augusta State to honor Keeton’s religious views.
HOWEVER, the American Psychological Association (APA) which accredits psych and counseling programs, prohibited Augusta State from doing so. The APA’s threat was to cancel the program’s accreditation which would mean that the OTHER students wouldn’t be able to apply for state counseling and psychologist licenses.
The version I heard involved Keeton stating that if she had a gay client who wanted to talk about gay issues, she would find that person a counselor more able to help that she could. This is inherently reasonable and the APA would say nothing about a counselor who was a rape victim from not counseling rapists, instead finding another counselor more able to help that client.
Augusta State essentially wanted to subject her to the opposite of conversion therapy and Keeton objected. What I said then — and am saying now — is that this isn’t really about Keeton as much as it is about the APA (and ABA) being able to require that public universities violate the Constitutional rights of their students as a condition of the program being permitted to allow its graduates to obtain a state-issued professional license.
ABA-Approval of law schools is an easier to understand concept because law schools are largely independent of the larger university while counseling and psych programs are within larger departments where other students in other programs aren’t seeking an APA-regulated license. For example, the UMass School Counseling program is within the School of Education where other students are seeking a teacher’s certificate or (in my case, neither as I was already a certified teacher).
Law schools either are or are not ABA approved — and while states can permit the graduates of non-ABA-approved law schools in their state to take their state’s bar exam, it is very difficult for these graduates to become a lawyer in any other state. For reasons I don’t understand, this exemption doesn’t apply to the APA-approved programs — if the program isn’t approved, you can’t apply for a license *anywhere.*
Hence the APA revoking program approval would be the kiss of death, which is why Augusta State was permitted to do this for the greater good of the other students, although I still don’t see why the APA isn’t considered a “state actor” and bound by the First Amendment as well.
Not that I wish to diminish what the regional accreditors are attempting to do, but the APA started doing the same thing 15 years ago — and has gotten away with it….