The Sunshine State has accused private agencies charged with deciding whether public universities meet education quality standards to “withhold” billions of dollars in annual student aid.
ATLANTA (CN) – An 11th Circuit panel on Friday considered whether the Sunshine State can resume its constitutional challenge to the federal government’s use of private accrediting agencies in approving public colleges and universities as eligible institutions for financial aid.
Florida officials accuse accrediting agencies of “withholding” billions of dollars in federal funds by independently setting educational standards. They argue that accreditors are illegally exercising government power by determining which institutions qualify for financial aid.
Arguing on behalf of Florida, Deputy Attorney General Nathan Forrester asked the Atlanta-based appeals court to cancel the lawsuit dismissed by the state challenging the Higher Education Act, which requires schools to be accredited for students to receive federal aid. Students can receive federal financial aid only if they attend an accredited institution.
The federal government argues that Congress can delegate authority to private groups to develop educational standards. Justice Department attorney Steven Hazel said Friday that Congress “didn’t want to get into the business of federalizing educational quality” but still needed a way to ensure taxpayer dollars go to “quality institutions.”
But Forrester said the law gives accreditors “immense” authority with little federal oversight, and argued that Congress cannot delegate such power to private entities.
“If people outside government can use government power, then the government’s promised accountability to the people would be an illusion,” Forrester said, citing the Fifth Circuit’s 2022 decision in National Knight’s Benevolent and Protective Assn. c. The black. He argued that the agreement violates several clauses of the US Constitution, including the Spending Clause, the Appointments Clause and the private non-delegation doctrine.
“The constitution is sometimes inconvenient,” Forrester said. “It requires an accountability mechanism for the exercise of sovereign authority, and that accountability mechanism is simply missing here.”
The state says accreditors must be federal officers appointed by the president and confirmed by the Senate.
Hazel urged the panel to uphold the lower court’s dismissal of the case and warned against the potential consequences of a different outcome.
“A decision in Florida’s favor could force Congress to choose between not having quality standards for this money at all and having to federalize quality,” Hazel said. “Neither seem like particularly good options for Congress.”
U.S. District Judge Jacqueline Becerra credited the federal government’s support of private constitutional accreditors in the decision to dismiss the case.
“The state’s argument … collapses what 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 about which institutions are eligible),” Becerra ruled. “The two functions are not the same.”
The decision was a blow to Florida Gov. Ron DeSantis’ campaign against college accreditors.
DeSantis signed SB 7044 in 2022, requiring Florida’s 40 public colleges and universities to change accreditors every 10 years. Schools can choose from 61 recognized accrediting agencies.
The law’s passage came after tensions between the state and the Southern Commission on Colleges and Schools, which accredits all of Florida’s public institutions.
Florida says the agency threatened Florida State University’s accreditation after the school considered appointing the state’s education commissioner as university president. Accreditor too INVESTIGATE University of Florida from 2021 to 2022 after barring three professors from testifying against the state in a voting rights case.
The accreditor ultimately found that the university had not exercised undue political influence.
However, DeSantis has accused accrediting agencies of holding colleges and universities hostage. He said that of Florida suit seeks to “strike the authority of private and unaccountable accreditors to obstruct higher education reform in Florida.”
U.S. District Judge Nancy Abudu asked Friday whether the court should strike down an entire law just “because it’s inappropriate.”
“Florida shouldn’t get the money right? There are institutions that have decided because we want to have more autonomy over our program … we will not accept any federal funds. Organizations do this, schools do that,” said Abudu, a Joe Biden appointee.
The judge went on to note that the state can appeal accreditation decisions to the US Department of Education.
US District Court Chief Justice William Pryor also seemed swayed by some of the federal government’s arguments, agreeing that accreditors do not determine a university’s eligibility for funding.
“They just decide if you can hold yourself up as satisfying certain kinds of standards,” the George W. Bush appointee said.
The panel was rounded out by US District Judge Andrew Brasher, an appointee of Donald Trump. The judges did not say when they will issue a decision.
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