By Jim Saunders The News Service of Florida
TALLAHASSEE — Siding with the Biden administration, a federal judge Wednesday rejected a challenge by Florida to the constitutionality of the accreditation system for colleges and universities.
The system plays a critical role in higher education because schools must be accredited for students to receive federal financial aid. Florida alleged, in part, that the federal government delegates too much authority to private accrediting agencies to carry out the system.
But U.S. District Judge Jacqueline Becerra issued a 45-page decision that granted the federal government’s motion to dismiss the case. She wrote that the state’s “sweeping criticism of the legislative scheme by which the federal government provides students with financial aid for their postsecondary education collapses distinct functions of the process, disregards undisputed facts, and then uses legal standards that are not controlling to urge the court to deny the (federal government’s) motion.”
“The state, of course, is not without recourse,” Becerra wrote. “It can seek to change the law in Congress, provide its own funding to students attending its schools, or compete in the marketplace without the use of federal funds, just to list a few examples. But this court is only empowered to look at the facts as they are plead, not rhetorical conclusions, and then apply the law as it exists, not as the state would like it to be. By those lights, what the state presented, at least in this complaint, cannot stand.”
Florida Attorney General Ashley Moody’s office filed the lawsuit last year after clashes between state officials and the Southern Association of Colleges and Schools Commission on Colleges, the longtime accrediting agency for colleges and universities in Florida.
The lawsuit, for example, cited a dispute involving the accrediting agency’s president, Belle Wheelan, in 2021 taking issue with the possibility of then-state Education Commissioner Richard Corcoran becoming president of Florida State University. Corcoran did not get the FSU job but is now president at New College of Florida.
In 2022, the Republican-controlled Legislature and Gov. Ron DeSantis approved a bill requiring public universities and colleges to periodically change accreditors.
The lawsuit, filed in South Florida, made a series of constitutional allegations, including that the accreditation system violates what is known as the “private nondelegation doctrine.” Becerra described the doctrine as preventing Congress “from granting unchecked legislative power to a private entity.”
Attorneys for the state argued that “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.”
“Congress’ desire that federal funds flow to legitimate institutions is understandable,” the lawsuit said. “But it must rely on government actors — both state and federal — to provide those assurances. It cannot lend the power of the purse to private entities by giving them the keys to billions in federal education dollars.”
But in their motion to dismiss the case, Biden administration attorneys wrote that the accreditation system was created by colleges before the federal financial-aid system existed.
“No accreditor receives congressional appropriations; rather, all are funded through dues paid from member institutions,” the motion said. “Far from the authoritarian-like entities that Florida portrays, accreditors’ substantive standards are developed with the participation of member schools, and those standards are enforced by decision-making bodies comprised of peers. Moreover, accreditation standards determine the metrics by which schools and educational programs are evaluated for quality control — they do not operate directly to ‘regulate state conduct,’ even if the state chooses to operate public colleges and universities.”
In her ruling, Becerra cited a federal law known as the Higher Education Act and said accrediting agencies “do not, as the state argues, determine which postsecondary institutions qualify to receive federal funds from students. The determination of which institutions are eligible to participate in the scheme set out by the HEA (the Higher Education Act) is a separate function that the Department (of Education) undertakes.”
“This process is outlined in the HEA and encompasses several other factors, including, but not limited to, whether the postsecondary institution is accredited by a private agency,” Becerra wrote. “Accreditation does not, however, end the eligibility inquiry. As such, the state’s argument that the federal government delegates the power to set eligibility standards for the receipt of federal funds to these agencies collapses what the private agencies do (accredit postsecondary institutions) with what the federal government does with that information (use it along with various other factors to make decisions as to what institutions are eligible). The two functions are not the same.”
While Becerra granted the motion to dismiss, she left open the possibility that the state could file a revised lawsuit. She gave it two weeks to do so.