The Biden Administration’s Attack on Florida Over College Accreditation

If you’re not familiar with higher education accreditation, you may want to get up to speed. Accreditation is rapidly shaping up to be one of the most important front lines in the never-ending battle between reformers and the establishment. The latest confrontation concerns the Biden administration’s effort to subvert recent reforms in Florida.

But first, a little background on accreditation is in order, since not everyone follows the issue closely. On paper, accreditors are private entities that review the quality of colleges. They serve as one of the three legs of the program-integrity triad that ensures colleges provide their students a decent education (the other two legs being the U.S. Department of Education (ED) and state authorization for colleges). For a college’s students to receive federal financial aid like Pell grants or student loans, the college must be accredited. Accreditors themselves must be approved by the Department of Education. So ED approves accreditors, which in turn approve colleges, which then allows ED to finance colleges via student aid.

Accreditation suffers from a host of severe structural problems. For example, you can’t be effective as both a consultant encouraging quality improvement (accreditation’s historical role) and as a regulator certifying adequate quality (accreditation’s gatekeeper-of-public-funding role). Consultant and regulator are mutually exclusive functions, yet accreditors try to be both.

Accreditation also suffers from implementation problems, functioning largely as a cartel protecting incumbent colleges while erecting barriers to entry for any new competitor colleges. Indeed, one recent analysis found that “accreditors – despite their powerful position as gatekeepers of public spending on US higher education and despite their assigned role by Congress and the US Department of Education as regulators of college quality – rarely take formal action towards colleges for breakdowns in academic programming or student outcomes.” A subsequent analysis found that regional accreditors have only approved 84 new colleges in the last 20 years. In other words, accreditors rarely sanction existing colleges or approve of new colleges—classic cartel behavior.

While no one who has examined accreditation seems entirely satisfied with it, there is no consensus on what to do. When the status quo is unsustainable but there is no agreement on the needed reforms, experimentation is highly valuable. Experiments can demonstrate whether potential reforms work or not. Yet Biden’s Department of Education is trying to squash one of the only accreditation experiments we’ve seen in decades.

The experiment unfolded slowly over the last three years. The seven regional accreditors are the biggest and most important entities in the accreditation system. Until recently, each regional accreditor was granted a monopoly on regional accreditation within their states (CHEA has a great map showing each accreditor’s historical territory). That rule was dropped in 2019, meaning that colleges could seek accreditation from any of the seven regional accreditors rather than being forced to use their traditional regional monopolist.

Florida recently passed a law requiring its public colleges to switch accreditors each renewal cycle (accreditation typically lasts for 5 to 10 years). From a policy perspective, this is an extremely valuable experiment, as it can help us determine if the benefits of switching accreditors, such as routinely bringing in a fresh pair of eyes and reducing the ability of accreditors to abuse their regulatory power, outweigh the costs of switching accreditors, such as the loss of long-term relationships and knowledge and the potential lack of accountability if colleges seek out rubber-stamp accreditors.

Yet rather than allowing us to learn from Florida’s experiment, ED is seeking to squash it by issuing new guidance, accompanied by a piece by Antoinette Flores on the Department’s official blog explaining their rationale.

The two big changes are 1) ED now claims that any switch in accreditor needs to be preapproved by the Department, and 2) ED believes that Florida’s law violates a requirement in federal law that accreditation be voluntary.

The Biden administration’s new guidance suffers from at least three severe breakdowns in logic.

1: Worrying about a race to the bottom when you get to control the bottom

The Department of Education has long restricted the ability of colleges to switch accreditors, arguing that a college facing sanction or the loss of accreditation shouldn’t be able to shop around to find a more lenient accreditor. The new guidance takes that one step further and requires colleges to get preapproval from ED before even submitting an application to a new accreditor. They are also applying this change retroactively. The stated goal of this change is to “prevent a race to the bottom,” that is, to stop colleges from shopping around for rubber-stamp accreditors.

There’s just one small problem with this logic: accreditors must be approved by ED. So if there are rubber-stamp accreditors out there, it is only because ED approved them. Even if competition among accreditors would lead to a race to the bottom (by no means a forgone conclusion, especially considering that accreditation began among high-quality colleges seeking to differentiate themselves from low-quality colleges), the requirement that accreditors be approved by ED gives the Department complete control over where that bottom is. If there is a race to the bottom and if that leads to a lack of accountability for colleges, it means that ED is failing in its responsibility to police the accreditors. If you claim to be worried about a race to the bottom when you control where the bottom is, then it seems more likely that you’re searching for an ex-post justification rather than expressing a legitimate concern.

2: Competition’s chilling effect

Flores writes that,

“Recent changes to the accreditation landscape, such as the expansion of former regional accreditors to now accredit institutions outside their typical geographic boundaries and a new law in Florida that mandates public institutions to switch accrediting agencies before their next accreditation cycle, have been confusing to institutions and may also have a chilling effect on accrediting agencies as they seek to effectively do their job.”

Dropping geographical restrictions on regional accreditors and Florida’s new law serve to increase competition among accreditors. ED is clearly worried that this will have “chilling effect” on them. But why would that happen?

Suppose an accreditor identifies a failing college and decides to revoke its accreditation. If they do, the college will no longer be a client (yes, accreditors earn their money from those they accredit, a clear conflict of interest), but if the college switches to a new accreditor instead, it is also no longer a client. Thus, no chilling effect occurs, as the outcome from the accreditor’s perspective is the same: the loss of a client.

Similar reasoning holds for warnings and sanctions. If a sanction is warranted by academic deficiencies, then that same sanction will be applied by other accreditors, giving the college no incentive to switch accreditors. If that is not the case, then as noted above, it means that ED is failing by rubber-stamping accreditors that in turn rubber-stamp colleges.

The only place where increased competition would have a chilling effect is when accreditors abuse their quasi-regulatory power. Accreditors have been known to push ideological agendas, interfere with academic decisions, and otherwise abuse their power. More competition will curtail these abuses by letting abused colleges flee their abuser, and far from lamenting this “chilling effect,” we should celebrate it.

3: Torturing the word “voluntary”

Under the new guidance, the “Department will also assess whether the institution’s desire to change accreditors is voluntary,” clearly referring to the Florida law that requires colleges to change accreditors.

Accreditation is required by law to be voluntary. But Florida isn’t forcing its colleges to use any particular accreditor; it is rather prohibiting the continued use of the same accreditor. In doing so, Florida is not doing anything different than ED, which also forbids colleges to use some accreditors, such as those it has not approved.

In addition, as per the veto power over switching accreditors in the new guidance, ED itself is telling colleges they can’t use certain accreditors. So according to the Biden administration’s twisted logic, when ED tells a college it can’t use an accreditor, it’s voluntary, but if Florida does the exact same thing, it’s involuntary.

Moreover, we’ve always used a loose definition of “voluntary.” Since very few colleges can survive without access to Pell grant or student loan funds, and accreditation is required to access those, accreditation has long been the higher education equivalent of a mobster making an offer you can’t refuse. A college isn’t forced to get accreditation per se, but if it doesn’t, it probably won’t survive without access to student aid programs.

Also consider the history of accreditation. For decades, ED forced Florida colleges to use a single regional accreditor. Now the 2019 rule and the new Florida law give Florida colleges a choice from among the six regional accreditors they aren’t currently using. Only by an Orwellian inversion of logic can the Biden administration consider mandating a single accreditor voluntary but choosing between six accreditors involuntary.

Reading between the lines, the Biden administration is clearly trying to kill the Florida reform in two ways. First, they hope they can convince courts that the Florida law violates U.S. law by engaging in some truly astounding rhetorical jujitsu regarding the word “voluntary.” Second, the requirement for ED preapproval before a college can even apply to a new accreditor gives the Biden administration the ability to quietly circumvent the Florida law by simply never granting permission.

Florida could engage in similar legal chicanery. Instead of requiring that colleges switch to a new accreditor, Florida could amend its law to simply cut off any public funding for a college that doesn’t switch accreditors. While the practical effects would be identical, the decision to drop its current accreditor each cycle would then be entirely up to the college, thus sidestepping any issues over the tortured use of the word “voluntary.”

But I honestly hope Florida (and its colleges) takes another route and fights back in court. Florida should win, but even if it loses, it would be pyrrhic victory for the Biden administration. It would give Florida everything it needs to hoist the administration by its own petard. After the Biden administration argues in court that placing conditions on accreditation violates the voluntary requirement, Florida could amend its law to simply require a new accreditor as a condition for state authorization. Colleges would then need one accreditor for federal financial aid eligibility, and a new accreditor for state authorization. If ED does not grant a request to let the new accreditor satisfy federal requirements, it would be ED, not Florida, forcing accreditation decisions on colleges. The courts could not coherently overturn Florida’s requirements without also gutting ED’s ability to veto accreditation-change requests.

Accreditation is simply too important to allow its problems to fester. By fighting and winning in court, Florida could expose the illogical position of the Biden administration and help improve the accreditation system for the whole country.