Feds push back against Florida in higher education fight

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University of Florida, Gainesville, at dawn. By Seán Kinane/WMNF News (Apr. 2023).

By Jim Saunders ©2023 The News Service of Florida

TALLAHASSEE — The Biden administration is asking a federal judge to toss out a lawsuit filed by Florida that challenges the constitutionality of accreditation requirements for colleges and universities.

Attorneys for U.S. Department of Education officials filed a 40-page motion Friday disputing Florida’s arguments that the decades-old accreditation system gives too much power to private accrediting agencies.

Accreditation plays a vital role in the higher education system, in part, because schools must be accredited for students to receive federal financial aid. As part of that, Friday’s motion to dismiss the lawsuit said the federal government relies on accrediting agencies to help ensure that colleges and universities meet standards.

“The department’s reliance on private accreditors’ evaluations to ensure the quality of educational programs does not transform their role into a governmental one,” U.S. Department of Justice attorneys wrote in the motion. “Accreditors may serve a gatekeeping function, but they certainly are not vested with final decision-making authority regarding the eligibility of institutions. And the fact remains that there are numerous accreditors through which schools can seek accreditation, and each of those accreditors must submit to a stringent recognition process by the department.”

Florida Attorney General Ashley Moody’s office filed the federal lawsuit in June 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 interim 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 raised a series of issues, including that the system unconstitutionally delegates too much authority to the accrediting agencies. The lawsuit said “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 the motion Friday, the 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.”

Also, the motion said that if Florida were correct that “accreditors unlawfully exercise delegated regulatory authority, the upshot would be that that power originates with and should revert to the federal government. But nowhere in its complaint does Florida suggest that its goal is to ensure that, instead of private accreditors, the department take on the mantle of determining educational standards for doctors, lawyers, teachers, electricians and beauticians. Such a role for the federal government would be unimaginable — because the authority accreditors exercise is not a federal function.”

The motion said five Florida schools have sought federal approval to change accreditors after the 2022 law passed. Two of those requests have been approved, while none have been denied, the motion said.

The lawsuit, filed in South Florida, is assigned to U.S. District Judge Rodney Smith.

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