Every year, the federal government distributes money to colleges, universities, and trade schools across the country in the form of subsidized loans and grants. Federal education funding is essential to these institutions—losing it is often a death sentence. But under the Higher Education Act, decisions about which schools can and cannot receive government money rest not with Congress or the secretary of education, but with private accreditation agencies that the secretary of education deems reliable. The groups are largely composed of education-industry stakeholders—and they are given wide latitude not only to enforce, but also to set, the standards that determine which schools are eligible for federal funds.
These accreditors exercise their authority in an increasingly arbitrary manner, failing to ensure educational quality while obstructing effective university governance and educational innovation. It is now clearer than ever that the federal government’s delegation of gatekeeping power to accreditation agencies is bad public policy.
It may also be unconstitutional.
On July 17, the American Council of Trustees and Alumni (of which I am vice president of policy), along with the John W. Pope Center for Higher Education Policy and the Judicial Education Project, filed an amicus brief in the Fourth Circuit Court of Appeals in the case of Professional Massage Training Center Inc. v. Accreditation Alliance of Career Schools and Colleges. We argue that the delegation of government authority to a private party with a conflict of interest is grossly at variance with legal precedent and jeopardizes the political accountability that the Constitution is designed to safeguard.
For nearly 80 years, the Supreme Court has restricted Congress’s ability to delegate the powers of government to private parties. This kind of statutory delegation is valid only if the role of the private party acts in a “ministerial or advisory” capacity, not if it is given “core governmental power.” The latter better describes the role of accreditors: Like a government agency, they enforce rules that they themselves have made. And surely the accreditors’ ad-lib standard-setting and gleeful intrusion into matters rightfully under the purview of state government or statutorily constituted governing boards meet and exceed the definition of a “core governmental power.”
Accreditation requirements exist in order to ensure that postsecondary institutions receiving taxpayer money meet basic standards of quality, but accreditors too often fail to achieve this simple goal. Many college graduates cannot reliably answer questions that require the comparison of viewpoints in two editorials, or compute the cost per ounce of food items. Richard Arum, Josipa Roksa, and Esther Cho have demonstrated that many students graduate college without experiencing significant cognitive gains. These facts become far less surprising when one considers that many accrediting bodies’ standards do not make any attempt to deal directly with student learning outcomes.
Accreditors do seem to find time to interfere with the internal governance of the schools they accredit, though. The Southern Association of Colleges and Schools Commission of Colleges placed the University of Virginia on “warning” status because the association disapproved of the process by which the school’s governing board attempted to fire the university’s president. The Accrediting Commission for Community and Junior Colleges revoked the City College of San Francisco’s accreditation largely on the basis of failures to reform matters of administration and governance.
As the law stands, there is virtually nothing that can be done about this. Under the statute, the accreditors approved by the secretary of education have the sole authority to set standards. And without a legislative change, the judiciary remains the only authority with the power to oversee this arrangement.
But as vital as judicial review is to prevent the misuse and overreach of delegated federal authority, true reform must come from Congress. Only when accreditors return to their role as voluntary peer reviewers, and the government starts focusing on creating more transparency and choice, will we begin to see real change in higher education.