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
