Accreditation experts fire back on Florida HEA lawsuit
In a case that could have national impact, Florida’s complaint, filed in the Federal district court in Fort Lauderdale, contends that the part of the HEA that mandates that only institutions “accredited by a nationally recognised accreditation agency or association” – as in Florida’s case, the Decatur, Georgia-based Southern Association of Colleges and Schools Commission on Colleges – are eligible for Federal funding is unconstitutional.
“I will not allow Joe Biden’s Department of Education to defund America’s #1 higher education system all because we refuse to bow to unaccountable accreditors who think they should run Florida’s public universities,” said DeSantis on his website the day the suit was filed, 22 June.
“Throughout my time in office, I have made it a priority to bring transparency and accountability to higher education and to reorient the mission of our colleges and universities away from purveying destructive ideologies and back toward the pursuit of truth and the preparation of our students for success.
“The Biden administration’s attempts to block these reforms is an abuse of federal power, and with this lawsuit, we will ensure that Florida’s pursuit of educational excellence will continue,” said DeSantis, a graduate of Harvard University’s law school, who is running for the 2024 Republican nomination for president.
Ashley Moody, Florida’s attorney general, who filed the complaint said: “For too long, private academic accreditors have been holding our colleges and universities hostage. Thanks to the fearless leadership of Governor DeSantis, we are fighting to take back our public post-secondary education system from unelected private organisations that have no accountability or oversight.”
Professionals familiar with how the accreditation system works, like Cynthia Jackson Hammond, president of the Washington DC-based Council of Higher Education Accreditation (CHEA), held little back when responding to Florida’s lawsuit.
“Let’s be clear. Recognised accrediting organisations meet all regulatory requirements of the CHEA and the US Department of Education (USDE). The CHEA and USDE standards are rigorous and require extensive evidence of accountability in order to implement the accreditation process.
“To suggest that the accreditation agencies are not responsible and or accountable is an indication that much additional knowledge is needed to fully understand accreditation processes,” she said.
“There is no end ‘win’ by discrediting the work of professional experts who work with institutions to ensure quality at all levels. The ‘win’ occurs when students, their families and the public are assured that higher education is providing the best collegiate preparation possible.”
Professor Andrew Gothard, president of the United Faculties of Florida, the union that represents professors at all of Florida’s public colleges and universities, was scathing in his assessment of DeSantis’ government’s decision to go to court.
“I think it’s telling, and it should be telling to anyone observing this lawsuit, that not a single faculty member, student, member of administration, donor supporter, nobody in the higher education community in Florida was asking for this.
“We are all happy with higher education accreditation, and we like that our institutions are being held to a high standard. That’s part of what helped us get to the number one ranking [of public universities] in the country,” he said.
After referencing the culture war that DeSantis has been waging for the past several years – through laws banning the teaching of critical race theory (CRT), weakening tenure, limiting academic freedom, dissolving the Diversity, Equity and Inclusion offices and programs in the state’s public colleges and universities and the replacement of the board at New College with one that is making over the one-time progressive liberal arts college into a conservative bastion – Gothard continued:
“What this fundamentally comes down to is Governor DeSantis wants to have unilateral authority to control what does and does not get taught in higher education classrooms across Florida. One of the most significant barriers to the kind of authoritarian control is higher education accreditation.
“In order to get access to federal dollars for student financial aid, faculty research programs, institutional funding, higher education institutions have to demonstrate to these bodies that they have met a very high standard of quality and accountability. Governor DeSantis doesn’t want this accountability.”
DeSantis’ ‘will to authoritarianism’
Echoing the philosopher Friedrich Nietzsche’s best-known phrase, ‘the will to power’, Gothard describes DeSantis’ higher education politics as “the will to authoritarianism” that, he predicted, would be copied around the country if Florida’s case were successful in the courts.
Were the case to reach the Supreme Court, it is more than likely that like-minded governors such as Greg Abbott in Texas or Kristi Noem in South Dakota would file amicus briefs supporting Florida’s position.
And were the Supreme Court to accept Florida’s and the amicus arguments, the court would, as it did two weeks ago when it ruled against LGBTQ+ rights and against race-conscious admissions, invalidate the section of the HEA that authorises the use of accreditors.
Florida’s long fight against accreditation
The lawsuit filed on 22 June is the latest round in Florida’s fight against the accreditation system, the antecedents of which date back to the 19th century.
The first salvo was Senate Bill 7044 (SB 7044), which became law just over a year ago. It required colleges and universities to change accreditation agencies every accreditation cycle, roughly every two years.
Although the part of SB7044 that deals with accreditation agencies does not refer to banning CRT to the cutting of funding for DEI offices and programs (which occurred a few months ago), observers had little doubt that changing the law to require colleges and universities to change accreditors every two years was part of DeSantis’ culture war against accreditors, which included DEI programs as part of their evaluations.
At the bill’s signing ceremony, Taylor Walker, a student at Florida State University said: “There still are some individuals out there who believe that woke narratives are the only narratives that should be taught on college campuses.
“My professors hold me to high standards, as they should. But this bill gives me the opportunity to hold them to the same high standards that they should be held to.
“If we are paying an institution to guide me in expanding my mind, should we not be able to hold that institution accountable?”
For their part, Democratic leaders in Florida presciently warned that DeSantis and his legislative supporters would soon be back to deal with the accreditation agencies.
Unlike countries such as France or Italy, where higher education is tightly regulated by the national government, in the United States, colleges and universities are chartered by state governments.
Prior to the GI. Bill (1944) that paid for some 11 million Second World War veterans to go to college, the US government was a bit player in financing American higher education. The passage of the Higher Education Act of 1965 cemented the Federal government’s place – as the guarantor of student loans, contributor of funds for capital improvements, scholarship and fellowship, and other programs.
According to the lawsuit, today. “Private accreditors act ‘[a]s gatekeepers to US$112 billion in annual federal student aid” alone.
Aversion to centralising power
The American aversion to centralising power in the national government and the doctrine of ‘states’ rights’- led Congress in 1965 to shy away from creating a federal accreditation agency and, instead, to outsource this function to various private agencies based in different parts of the country.
Congress has amended the HEA a number of times, requiring, for example, that agencies must assess curriculum, student achievement, the rate of default on student loans and other issues.
In 1992 Congress also allowed agencies to adopt “additional standards not provided for” by Congress itself.
Although Florida’s complaint does not single out any standard, among the standards that Republicans in both houses of Congress have assailed are those dealing with an institution’s DEI policies and programs, for example.
Standards ‘insulated from review’
According to Florida’s complaint, Congress created something of a Frankenstein’s monster when it first wrote into the HEA that the Federal government could not “exercise direction, supervision or control . . . over any accreditation agency or association” and provided no mechanism for the Department of Education (DoE) to review adverse decisions.
Further, the HEA said that colleges and universities could not change accreditation agencies without the permission of the DoE and that required “reasonable cause.” Florida also contends that the HEA stripped state courts of their jurisdiction in hearing civil actions involving “the denial, withdrawal, or termination of accreditation”.
“In short, accreditors’ standards are insulated from meaningful review by the Department. Similarly, accreditors’ decisions in applying those standards are subject to only deferential review in court,” says the complaint.
As a result, accrediting agencies have the power to hold billions of federal education dollars hostage based on the formulation and application of substantive education standards that are immune from meaningful government supervision.”
John Przypyszny, a partner with the law firm of Faegre Drinker Biddel & Reath, who has worked with accreditors for years and been involved in numerous lawsuits that involved accreditors, pushed back against this characterisation of the accreditation agencies as somehow operating on their own.
Review process ‘extensive’
“This isn’t something that the agency made up. The department [DoE] reviews each accrediting agency. To be recognised as accredited, you go through a very, very thorough, and extensive process. There’s an application and a site review. The department comes in and they send the reviewer to sit in meetings; they look at files. There’s a whole section of the regulations of the Higher Education Act that talks about what they [the reviewers] have to do,” he said.
Florida has submitted three constitutional arguments to the court. The first is that the part of the HEA that authorises the use of accrediting agencies is suspect for two interconnected reasons.
Citing a 2023 case in which the 6th Circuit court found that “the government may not empower a private entity to exercise unchecked legislative or executive power,” Florida argues that the use of accreditation agencies violates the ‘Private Non-Delegation Doctrine’.
The state also cited a 1936 case in which the court ruled that to allow a private entity to be the principal decision maker amounts to “legislative delegation in its most obnoxious form”.
Linked to this argument, is Florida’s claim that: “Any person who exercises ‘significant authority pursuant to the laws of the United States’ on a ‘continuing’ basis is an ‘Officer of the United States’, and must, therefore, be appointed in the manner prescribed by the Appointments Clause [of the US Constitution].”
After noting that these were novel augments, Przypyszny said that doesn’t make them strong arguments. The argument about delegation appears to turn on there being no oversight, and that’s “just not true.”
He also finds the invocation of the Appointments Clause to be tenuous at best.
“If they’re saying that the appointment of an accreditor is on the same level as a US Senator [if a senate seat becomes vacant, the governor of the state has the power to appoint a replacement until an election can be held in the regular cycle of elections] or a judge or Secretary of State or undersecretary [all of which require the “advice and consent of the Senate”] that also not true.”
Florida also argues that the HEA violates the Tenth Amendment to the US Constitution and the “Spending Clause” found in the Constitution’s First Article.
The complaint says that “the HEA violates the Spending Clause because it does not provide Florida institutions fair notice of the conditions that will be attached to receipt of funds made available under the HEA and exerts undue influence over the States by conditioning continued receipt of funds on acceptance of new conditions.”
However, Przypyszny explained to University World News, this argument too does not hold water.
“I don’t know what they mean. Ask any institution. They know what the conditions are. First of all, all the regulations and conditions are in the program participation agreement, which they get. The accreditors put up their standards for notice and comment. It’s not like they don’t know what those requirements are to be accredited,” says Przypyszny.
Przypyszny also says Florida’s argument is misleading. “I don’t think there’s an institution that just doesn’t know what the requirements are to be accredited. They’re sort of saying, ‘Well, you know, maybe these standards should be promulgated by the government.’ But the Department of Education and the Higher Education Act list areas which accreditors have to have standards for.
“And remember, the federal government in the United States, unlike other countries, cannot get directly involved in educational matters; they can’t prescribe curriculum. That’s why you rely on accreditors for that.”
A constitutional ‘Hail Mary pass’
Although it has been used, infamously, a decade ago to invalidate parts of the Voting Rights Act of 1965, which has opened the door to voter suppression law, including those proposed by DeSantis, the Tenth Amendment is one of least cited parts of the Constitution. Florida’s appeal to it can be seen as something of a constitutional ‘Hail Mary pass’, the American football term for a last, desperate effort.
The amendment reads: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively or to the people.” By appealing to it Florida is asking the court to find that the HEA injures an unenumerated right that belongs to the state or the people of Florida.
Przypyszny, Gothard and Hammond underscored that Florida’s case has as much to do with the government of Florida’s view that it is entitled to Federal dollars but does not want to submit itself to Federal requirements.
“They want to have the universities be accountable only to themselves,” says Przypyszny. “They’re bristling over the fact that to get federal student aid, they are required to go through the private accreditation process.
“Look at their complaint. They don’t like that. And so, they’re thinking, well, let’s just kind of see if we can take this whole reliance on accreditation out. Let’s see if we can take this whole part of the HEA out.”
Potentially ‘major detrimental impact’
Przypyszny quickly answered the rhetorical question, “What would it mean if they win?” He predicted it would have a major detrimental impact on higher education in the US.
“There’s a reason that this structure, what we call a triad, with one leg being the accreditors, one the states and one the federal government, was set up. If you remove one leg, you have a two-legged stool, which can’t really be balanced. If you remove the accreditors, who does that job? The states? But the states are terribly inconsistent.”
According to Gothard, despite DeSantis’ rhetoric of wanting to restore accountability to Florida’s higher education sector, the governor is not interested in accountability.
“He wants to get all the benefits of federal tax dollars without any of the requirements for academic freedom, respect for Constitutional rights and authority, and maintaining high levels of instruction.”
For her part, Hammond concluded her statement to University World News by saying: “Accreditation is quality assurance and has been part of American culture for centuries. To wage a culture war on higher education and accreditation is a disservice to the American public.
“This is the time to work collaboratively to ensure an intellectual citizenry is supported. There has not been a precedent where institutional autonomy has been threatened in this way, and I hope none will be set by this lawsuit.”