While we may have to wait until 2024 to see a Biden vs. DeSantis battle royale, we might have a preview in the skirmish over accreditation in Florida.
To recap developments to date (see here for more), accreditors are private entities that have been entrusted with determining which colleges and universities are eligible for federal financial aid. If an institution wants its students to receive Pell grants or federal student loans, it needs the approval of an accreditor. Accreditors are themselves approved by the U.S. Department of Education (ED).
Traditionally, there were seven regional accreditors that had a quasi-monopoly on colleges and universities within their region, but in 2019, these quasi-monopolies were disbanded, allowing any institution to use any of the regional accreditors. Earlier this year, Florida, which was historically forced to use the worst regional accreditor, passed a law requiring its public colleges and universities to switch to a better accreditor. The Biden administration then announced new federal policies designed to overrule the Florida law.
There have been two exciting new developments in this struggle.
To begin with, we are starting to see real changes at the college level. Higher Ed Dive’s Natalie Schwartz notes that the University of Arizona is seeking to switch accreditors, in one of the biggest publicly disclosed switches we’ve seen so far. Meanwhile, Inside Higher Ed’s Josh Moody reports that the state of Florida and Florida universities aren’t backing down. The vice chair of the Florida Board of Governors didn’t mince words in describing how Florida institutions are treated by their current accreditor, bluntly stating that “we’ve suffered a little bit from a body who currently oversees accreditation who views the Florida system as captive, and the Florida universities as captive.” Satisfied clients don’t use the word “captive.” In addition, Florida universities themselves have been shopping around for new accreditors, and seem eager to switch:
… seven state higher ed leaders mentioned HLC [the Higher Learning Commission, a different regional accreditor] as the preferred accreditation destination, including the presidents of the University of Central Florida and Florida Polytechnic University, which could potentially be the first two institutions to switch accreditors.
The other exciting development is that some former ED big guns just released a letter eviscerating the Biden administration’s new policies. The letter explains the new policies—which include requiring ED pre-approval for switching accreditors, imposing new criteria for such approval, and accusing Florida of undermining the voluntary requirement of accreditation.
The letter then walks through ten reasons why these new policies are unconstitutional or illegal.
First, federal law established the program-integrity triad, consisting of accreditors, the federal government through the Department of Education, and state governments. The triad gives each of these a set of responsibilities and seeks to balance their authority to avoid any one leg from dominating higher education.
Congress was clear about the Department’s two primary responsibilities regarding the program integrity triad established in the HEA: 1) to ensure the “administrative capacity and financial responsibility” of participating Title IV institutions; and 2) to ensure the quality of independent higher education accreditors. The Department’s recent guidance far exceeds either mandate and is, in fact, an affront to the balanced authority of the triad envisioned in the law. It is aimed to weaponize accreditation to protect the status quo from needed reforms.
Second, the Department has no authority to require pre-approval for switching accreditors.
… the Department never interpreted federal law to require it to pre-approve a postsecondary institution’s decision to change accreditors. The simple reason is that the Department has no statutory authorization to do so… Federal law on this point is simple and uncontroversial.
Third, the Department manufactured new requirements for schools changing accreditors:
In an overtly political effort to undermine Florida’s duly enacted law, the Department has suddenly decided to change the rules to require institutions to provide much more than “reasonable cause” for their accreditor change. This decision is beyond the Department’s authority under the HEA.
Fourth, the Department’s actions violate the Administrative Procedure Act:
The Administrative Procedure Act (APA) requires courts reviewing federal agency actions to set them aside if they are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Inventing new policy through Dear Colleague Letters, correspondence, and blog posts is the epitome of arbitrary and capricious agency action.
Fifth, the “race to the bottom” argument is bogus. ED sent a threatening letter to the accreditor that Florida schools are fleeing because it found 28 instances of noncompliance by the accreditor. So, on the one hand, the Department is threatening to revoke the recognition of an accreditor that it has found to be out of compliance, and on the other hand, it is fighting tooth and nail to ensure that Florida universities are forced to keep using that exact same accreditor.
Sixth, the Biden administration is attempting to impose a double standard regarding the voluntary requirement.
Just as Congress can direct institutions to obtain institutional accreditation from a Department-recognized agency for purposes of academic quality assurance, the Florida Legislature can direct its postsecondary institutions to seek and obtain accreditation from a new agency every five years as a full member of our constitutional system and regulatory triad. Either both of these conditions are allowed, or neither is allowed. The Department’s apparent intention to enforce a double standard when it comes to SB 7044 is arbitrary and capricious.
Seventh, the Administrative Procedure Act requires that legislative rules undergo notice and comment or be struck down by courts as invalid.
By imposing new duties on postsecondary institutions and accreditors without offering the public the opportunity to comment on these new requirements, the Department has violated the APA, and its sub-regulatory guidance is invalid.
Eighth, ED is forbidden from interfering with state education policy in this manner.
The Department of Education Organization Act (DEOA), which established the Department in 1979, expresses Congress’s clear intention to circumscribe the extent of the Department’s power to prevent it from interfering with states’ lawful exercise of policymaking in the area of education… The Department’s interference with Florida’s sovereign authority over its public higher education system is unlawful.
Ninth, the Department is illegally trying to coerce states into doing the federal government’s bidding.
The Department is unlawfully coercing public postsecondary institutions in Florida and across the United States to participate in its extra-statutory review of their change in accreditor under penalty of the loss of all Title IV funding. Such coercion—a shift in kind rather than degree because, for the first time ever, it places the Department in charge of pre-approving all applications to change accreditors—is not compatible with the law or with our system of federalism.
Tenth, there is no authority for the Biden administration to invent new requirements.
The Department unilaterally applies a new condition, not found anywhere in the statute enacted by Congress and contrary to its own interpretation of that law since its enactment, for postsecondary institutions to receive Title IV funds. 20 U.S.C. § 1099b(h) provides no authority to the Department to deny such funding to institutions that notify the Secretary of their change of accreditors and that demonstrate that the change was for “reasonable cause.” The Biden administration has no authority to construct additional hurdles for such institutions seeking to change accreditors, and it has no authority to require the pre-approval of such a change.
This letter provides very convincing reasons to believe that Florida will prevail in court if the Biden administration doesn’t cease interfering with Florida.
Image: Unsplash, Public Domain