Accrediting agencies recognized by the U.S. Department of Education are gatekeepers to more than $120 billion in federal funds that colleges receive in the form of federal grants and loans. A new Florida law reveals how the regulations put in place under Secretary DeVos lower quality and oversight in the accreditation process. Florida legislators seized on the new flexibility to force public colleges to switch accreditors, apparently because the legislators were unhappy that their current accreditor, the Southern Association of Colleges and Schools Commission on Colleges (SACSCOC), raised concerns about ethics and academic freedom.
Unfortunately, the accreditation system was trouble even before the changes under Secretary DeVos. It is important for the Biden administration to work not only to undo the damage done during DeVos’ tenure but also to address faults in the system that predate the Trump administration. But because implementing new regulations will take time, the Biden administration must take advantage of the tools at its disposal beyond the standard rule-making process.
This column highlights just one example of how the changes in the 2019 regulations weakened the accreditation system and explains how the Biden administration can undo or minimize the damage they might cause.
Enabling political interference
In May 2021, SACSCOC, the accreditor that oversees colleges in Florida, raised concerns about a possible conflict of interest during Florida State University’s presidential search because one of the candidates was serving on the institution’s board of governors, which was tasked with choosing the new president. And in November 2021, SACSCOC launched an investigation into the University of Florida for allegedly violating the accreditor’s academic freedom standards when it tried to prevent faculty members from testifying in a voting rights trial. The SACSCOC Board of Trustees Committee on Compliance and Reports will meet sometime in June 2022 to review its findings and make a decision on the matter.
Not long after these moves, a bill sailed through the Florida legislature—S.B. 7044, signed by Florida Gov. Ron DeSantis (R) in April—that forces colleges to switch accreditors every time their accreditation is up for renewal. In practice, the law prevents colleges from being accredited by the SACSCOC for consecutive cycles It also allows institutions to sue their accreditor for taking “retaliatory action,” which may prevent accreditors from holding institutions accountable, and limits tenure for faculty members whose teachings do not align with state and parent priorities, which raises serious concerns about academic quality.
In the past, Department of Education regulations limited most accreditors to working with colleges in specific geographic regions, which prevented Florida institutions from switching to a new accreditor. But under the regulations issued under Secretary DeVos, accrediting agencies need only report the list of states in which they have institutions or programs, opening the door for institutions to switch to agencies with lower standards—including as a result of political meddling. Similarly, allowing accreditors to consider institutions outside their regions may incentivize them to focus on expediting the process in order to gain profits, rather than ensuring quality.
It remains to be seen whether colleges can actually carry out the steps the law mandates. S.B. 7044 ignores the difficulties that colleges and universities face when seeking approval from a new accreditor. In order to receive accreditation, institutions are required to provide thorough assessments of their outcomes and undergo site visits, and they also are required to pay an application fee of thousands of dollars. Once that assessment is complete, the accreditor determines whether or not to accredit the institution or program. If it denies the institution accreditation, that institution has to start the process again.
In March 2022, Education Department Undersecretary James Kvaal sent Gov. DeSantis a letter outlining this concern—and several others—as they related to the Florida bill. Kvaal wrote that the bill could put students and institutions at risk of losing access to federal funding, yet Gov. DeSantis still signed S.B. 7044 into law.
How the department can undo the damage
The 2019 accreditation regulations could make it easier for lower-quality colleges to harm students even while benefiting from taxpayer funds. To head off further damage, the Department of Education must begin the process of replacing the regulations implemented under Secretary DeVos, which also presents an opportunity to remedy a variety of problems in the accreditation system that precede the Trump administration. Unfortunately, to allow time for institutions to incorporate the changes, new regulations likely could not go into effect before 2024.
But the department still has options to address the damage of the 2019 regulations in the short term. The department can host listening sessions to hear from stakeholders on the effects the 2019 regulations are having on students and institutions, and it can also issue subregulatory guidance to help clear up confusion on how accreditors, colleges, and other participants in the system should be interpreting the regulations until they can be replaced.
Negotiated rule-making
Negotiated rule-making is a process that the Department of Education is required to use to get feedback from stakeholders and the public on Title IV programs authorized under the Higher Education Act. Under the Biden administration, the department has conducted negotiated rule-making sessions on affordability, student loans, Pell Grants for prison education, and institutional and programmatic eligibility. These sessions have yet to address accreditation.
When the department announced upcoming rule-making sessions in the summer of 2021, the Center for American Progress provided oral comments during the public hearing stage detailing that accreditation should be included among the topics because the department has a significant opportunity to improve student outcomes by reforming accreditation. That is still very much the case, and the department should revisit these regulations and allow interested individuals to make the case for changes.
Host listening sessions and allow for written public input
Before the negotiated rule-making process, the department typically hosts public hearings to allow individuals to comment on proposed topics and make suggestions for additional topics. However, if the department decides to hold off on the negotiated rule-making process, it can still seek public input. Indeed, the department has previously created similar opportunities for listening sessions with the public. By bringing together individuals and organizations who are interested in accreditation, the department would help identify all the problems with the current accreditation regulations that are not adequately protecting and maintaining quality higher education opportunities.
Currently, the only opportunity for the public to voice its concerns with the accreditation process to the department is during meetings of the National Advisory Committee on Institutional Quality and Integrity (NACIQI), which occur twice per year. During the February 2022 meeting, organizations urged the department to practice more transparency by releasing relevant documents to the public.
In addition to listening sessions, the department can allow for written public input, which would give the public another avenue for bringing suggestions and concerns to the department.
Subregulatory guidance
Until it creates and implements new regulations, the Education Department is bound by the regulations issued during Secretary DeVos’ tenure, but it can still provide guidance on how those regulations should be interpreted. This subregulatory guidance can come in the form of a Dear Colleague Letter, which is a mechanism the department uses to communicate the meaning of regulations. The department has regularly sent out Dear Colleague Letters on topics ranging from accreditation to Title IX to distance education.
In summer 2021, members of NACIQI requested that the department hold an in-depth training on how these new regulations should affect their decision-making when reviewing accrediting agencies. This is a sign that there is a need for greater clarity on the current regulations until they are replaced.
Conclusion
The new Florida law is a warning sign that accreditation regulations implemented under Secretary DeVos will result in real-world damage, and it is only the first hint of the potential consequences. If these issues are not corrected, institutions, accreditors, and politicians will continue to use accreditation for personal gain. The Department of Education has a duty to restore and expand the safeguards around accreditation that protect students and taxpayers alike.