On June 21, 2023, the State of Florida filed a lawsuit against the Department of Education, Florida vs Department of Education. The implications of this lawsuit can be far-reaching. This lawsuit has the potential to change how much influence state governments can have on both higher education accreditation and their institutions. The US Department of Justice has yet to file a response.
The Background – Leading Up to the Lawsuit
The lawsuit has been coming for a while, especially considering we’re in the presidential election cycle with the Governor of Florida vying for the presidency.
Florida’s current and former governor have had issues with their accreditor, the Southern Association of Colleges and Schools (SACS), for what they view as undue meddling in the State’s affairs. Then Florida, at the request of their current Governor, Ron DeSantis, recently passed a law requiring institutions to change their accreditor after four years. Then, the State changed its position to require public higher education institutions to change their primary institutional accreditor within two years. The law also prevented accreditors from protecting the independence of institutional boards so states could adopt a more affirmative role in what schools do.
The likely intent was so Florida institutions could leave what they view as a “more liberal” accrediting body, the Southern Association of Colleges and Schools (SACS), and join more conservative accreditors that would allow for more “guidance” to come from the state “owners.”
The Question at Issue
The primary question at issue with this lawsuit is the requirement for a governing board to be independent of outside influence. SACS and the other former “regional” accreditors have clear policies in place that state an institution’s board of trustees is responsible for governing the institution and should act independently, i.e., without influence from donors, politicians, and others who might want to tell a college or university how to run, whom to hire, etc.
This is contrary to how Florida’s recent governors believe how things should be. Florida believes that as “owners” of their state’s universities, they should have more say in how the institutions are governed and what is taught there. For example, in one case, Governor DeSantis’ predecessor proposed appointing a person to the presidency of an institution, essentially telling the board that that’s who they should select. SACS objected to that.
More recently, DeSantis replaced the politically progressive president and board at the New College of Florida with more conservative alternatives. Many opponents of the move claim this is undue political influence on the institution.
What does the Florida lawsuit request?
The Florida lawsuit first asks the court to determine that the accreditation requirements that outsource institutional assessment of institutional quality to a non-governmental entity are an unconstitutional delegation of government authority. This is in response to the current practice based on the Higher Education Act of 1965, which permits the Department to delegate to non-governmental accrediting agencies, e.g., SACS, the authority to accredit colleges and universities.
In addition to delegating the authority to accreditors, the law requires the Department to determine whether the agencies are acting effectively, efficiently, and with integrity. This is done by NASIQI, the National Advisory Committee on Institutional Quality and Integrity, the Department’s oversight mechanism that “accredits the accreditors.” The Department only gets involved to determine if the institution has the financial stability and the administrative capability to manage student aid programs, which is one of the main reasons colleges and universities apply for accreditation.
The lawsuit argues that rather than outsourcing this process, the Department should function more like the U.S. Food and Drug Administration, which performs its processes internally. This conflicts with the General Education Provisions Act (GEPA), a provision in the general legislation that says the federal government is prohibited from exercising any direction, supervision, or control over the administration of curriculum programs or the personnel of any educational institution, school, or school system.
This isn’t how it always was. The federal government was originally directly involved and didn’t outsource to these independent third parties like SACS. Initially, the government was fully involved in the Federal Student Aid Program when it was created in 1965 to determine what institutions would be qualified to participate in Pell Grants and the federal loan program. Non-governmental accrediting entities only helped accredit programs enrolling veterans under the GI Bill before taking over the process as it is today.
In other words, the Department originally functioned the way DeSantis is requesting the Department to act despite passing the GEPA. Also, accreditors like SACS were originally only helping institutions remain in compliance with the GI Bill – they weren’t in control of the whole accrediting process. In essence, DeSantis is requesting to return to past practices, something that would be impossible given the level of staffing and funding at the Department.
Restricting Institutions from Changing Accreditors
If the court rejects this first request, the lawsuit then asks to prevent the Department of Education from restricting the ability of institutions to change accreditors. This would enable Florida’s institutions to move away from SACS without getting the Department’s authorization.
The basis for this argument is that state governments own state institutions, which are therefore responsible to the state legislature and government. So, if the legislature or the state government directs that these schools act in a particular way, like changing their accreditor, they should not be prohibited from doing so.
This conflicts with the Department’s new rule in response to Florida passing its earlier law, which says institutions must show good cause to change accreditors. And in choosing an accreditor, the institution has to be acting voluntarily. The Department is saying that if you are acting by compulsion of law, you may change your accreditor. But if you’re not acting voluntarily, you don’t meet the standard and cannot change your accreditor.
Florida’s Lawsuit Shares Similarities to Other Aspects of Education
Much like how the lawsuit compares current Department practices to other parts of government, this definition of “ownership” actually relates to how accreditation processes work outside of the non-profit education sector. When for-profit institutions initially requested to participate in student aid programs, it was allowed, but only after an accreditation standard for board independence was applied, i.e., the school board and the majority of the board members are required to remain independent of ownership to provide some level of insulation between the financial interests of the parent company, who is the owner, and, by law, the conduct of the institution.
Florida’s accreditation lawsuit also shares similarities to the ongoing question of whether states have too much authority in the State Authorization Reciprocity Act (SARA). The act says that if an institution is accredited, is approved by its home state, and that state is a participant in the National Council for the State Authorization Reciprocity Act or NC-SARA, the institution can offer its online courses anywhere in the US without further approval (excepting California, who is not a signatory on the NC-SARA agreement). Opponents say states should have more authority since SARA does not provide enough consumer protection.
Relationship Between Florida’s Governors and SACS President
At the center of this is the current and previous Florida governors’ contentious relationship with SACS president Dr. Belle Wheelan.
Before the lawsuit, Governor DeSantis and his predecessor had been at odds with SACS for years. Their main complaint (among many) was that SACS was “interfering” in institutions’ affairs, which should have been their prerogative as owners of the university.
Florida Governors blame Dr. Wheelan for these issues, but they are wrong. Dr. Wheelen is responsible for enforcing policies that her Commission has put in place. Thus, it is not Dr. Wheelan making these policies but her Commission. She is merely a scapegoat.
The Implications – What Could Happen if the State of Florida Wins?
Although still in the early stages, a Department of Education loss could impact states outside of Florida. But the resulting rules would undoubtedly differ partly because of how much more freedom accreditors have now. In addition to accreditors no longer being restricted by region, which presents its own complications, some accrediting bodies still function outside the norm. Case in point, SACS not only stays within its region of the US, much like how accreditors used to function, but even accredits institutions outside of the country.
Regardless, Florida’s lawsuit is causing higher education to grapple with questions that have never been asked before, mostly because of the unprecedented nature of Florida’s direct interventions in the education process.
The jury isn’t out on this one – it hasn’t even been seated. Much maneuvering will take place with this, depending on many factors, including the 2024 presidential election and what party is in the White House.
To be continued…