Florida Takes the Feds to Court Over Accreditation

Longstanding higher-ed oversight practices may well be unconstitutional.

[Editor’s note: This article concludes a two-part series on university accreditation. Below, George Leef looks at a push by Florida to reject the accreditation system on a constitutional basis. In part one, Richard K. Vedder considered the system’s fundamental flaws.]

College accreditation used to be the most soporific of topics. Almost nobody was interested in it because accreditation meant so little. Accrediting agencies had their standards that kept degree mills from fooling people into thinking they were real colleges. Nothing wrong with that, but it wasn’t a matter of national concern.

In recent years, however, accreditation has become highly controversial. The reason is that the accrediting agencies have ceased to be neutral parties who apply reasonable standards to ensure that students are not squandering their federal student-aid funds on dodgy schools that are just interested in cashing in on easy money. Instead, the accreditors have become activists who want to direct how colleges and universities will be run. They have badly overstepped their boundaries, and that has now triggered a lawsuit against the Department of Education.

If Florida’s case succeeds, it will require Congress to make a major revision to our student-loan programs.That lawsuit pits the State of Florida against the Secretary of Education, Miguel Cardona, and a host of his underlings. In its complaint, Florida makes the bold argument that the current accreditation system, whereby private accrediting organizations are the gatekeepers for eligibility for federal student aid, is illegal—unconstitutional, in fact.

If this case succeeds, it will require Congress to make a major revision to our student-loan programs.

Florida makes several strong arguments against the legality of the current accreditation system.

First, and foremost, there is a delegation problem. Under the Constitution, all legislative authority is given to Congress. It and it alone is empowered to make laws and may not delegate that authority to others. But that is what it has done with regard to eligibility to receive federal student-aid money: By making private organizations (which is what accrediting agencies are) the gatekeepers for eligibility, Congress has delegated its lawmaking authority. The agencies get to decide what the standards will be.

As Florida’s complaint states, “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.” Thus, instead of our elected representatives making policy concerning what educational institutions must do to be eligible to receive federal student-aid money, private accrediting organizations are doing so. That violates the Constitution.

Another argument Florida makes is that the accreditation system violates the Constitution’s Appointments Clause. Under the Constitution, officials who “exercise significant authority pursuant to the laws of the United States” must be appointed in a legally prescribed manner. The people in accrediting agencies have not been so appointed.

And third, the accreditation system violates the Constitution’s Spending Clause, which allows Congress to spend money and place conditions upon its receipt. The Supreme Court has held that any conditions must be unambiguous. The problem is that accreditors impose ambiguous and changing conditions upon colleges and universities.

It would be far better to do away with accreditation as the gatekeeper for eligibility for student-aid money.The case has just been filed, and it will no doubt be years before it is resolved. But let’s suppose that a federal court, and eventually the Supreme Court, agrees with Florida that the current system of tying eligibility for federal student-aid money to approval by an accrediting agency is unconstitutional. What then?

Congress could tinker with the current system, perhaps approving the existing accreditation standards and clarifying them to cure the constitutional defects. It would be far better, however, to do away with accreditation as the gatekeeper for eligibility for student-aid money.

The accreditation requirement goes back to 1952, and, back then, it made sense to limit eligibility for student-aid money only to schools that had accredited status. That’s because, at that time, accreditation actually meant that a school was serious, not a degree mill eager to take money in exchange for little or no educational value, issuing meaningless credentials. Since then, however, there has been a sea change in higher education. Academic standards have badly eroded such that accreditation no longer indicates educational integrity. Many graduates from accredited institutions now lack even basic language and math skills.

What used to keep college standards reasonably high was not the oversight by accrediting agencies but, rather, the fact that colleges and universities were run by people with a strong commitment to learning—to the scholarly enterprise. Unfortunately, most of those people were replaced long ago by managerial types who are far more interested in revenue maximization and artificial prestige than in ensuring that students gain in knowledge and skills. Those leaders made the Faustian bargain of admitting hordes of academically marginal students and keeping them enrolled (and paying tuition) by lowering standards and dumbing down the curriculum.

Once the kinds of leaders who insisted on educational integrity were gone, accreditation could do nothing but rubber-stamp their faltering institutions.

Congress should therefore stop relying on accrediting agencies as gatekeepers for eligibility for student-aid money. We need a system that creates a strong incentive for students and schools to make sensible decisions. Schools currently have no incentive to turn away students with poor prospects, and the accreditors don’t pay any price for approving schools that have mostly poor educational results.

We need a system that creates a strong incentive for students and schools to make sensible decisions.Here’s the policy that would create the right incentives—Congress should change the law so that any educational institution could receive federal money, provided that it agrees to repay that money in the event that students fail to pay off their debts. This is known as the “skin in the game” proposal because it gives schools a stake in the success of their students.

If school administrators had to consider the possibility of having to repay the loan money they receive if students don’t, they would have to once again pay attention to their academic standards and to the worth of the curriculum. Do our courses actually impart useful skills and knowledge? That’s the question that would consume administrators and faculty members, and it’s a question only they can answer, not an accrediting agency that makes a campus visit once per decade.

School leaders would do what accreditors can’t and don’t—they would scrutinize the institution continuously. They’d have an incentive to eliminate courses that are easy and fun. Same for courses that are exceedingly narrow (in which the professor is essentially teaching his dissertation or current research focus) and those that are heavy on opinion but short on facts. Administrators would also have a strong incentive to make sure that students are making academic progress and not merely piling up credits.

What about the accreditors? They would no longer have the life-or-death authority they wield today, authority they have often used where they have a political ax to grind. The Florida complaint provides numerous examples where accreditors have made threats to schools simply because they’re upset over some matter having nothing to do with education but, rather, with how the school is governed.

Without the captive market of colleges and universities that must be accredited to keep the federal student-aid money flowing, accrediting agencies would have to sink or swim based on their ability to provide services to their members that are worth the cost. Could they do that? I’m skeptical.

Finally, getting rid of the accreditation requirement would open the educational market up to new schools. The process of becoming accredited is costly and time-consuming, a barrier to entry into the market for postsecondary education. Removing the accreditation requirement would stimulate competition from new schools that are sufficiently confident of their ability to teach and train students that they’ll accept the responsibility of covering student-loan defaults.

Perhaps Congress will see the writing on the wall and take this crucial reform step even before the courts decide Florida’s suit. We should hope so.

George Leef is director of editorial content at the James G. Martin Center for Academic Renewal.