Florida v. Department of Education – Accreditation and Quality Control

The recently filed and highly publicized Florida versus the Department of Education lawsuit could change the face of higher education across the US. At stake is the ability of accreditors to set standards in the accreditation versus how much state governments can be involved in accreditation affairs. Essentially the lawsuit is pushing to allow institutions to change their accreditors without being restricted by the Department of Education and that, as the owner of state schools, the state has control over what these institutions can do.

In this podcast, Dr. Drumm McNaughton once again speaks with higher ed legal expert Michael Goldstein of Tyton Partners, who returns to Changing Higher Ed to discuss the background behind the lawsuit, its reasons, and its implications for higher education institutions and accreditation.

Podcast Highlights

• Florida’s Gov DeSantis directed his attorney general to file a lawsuit against the Department of Education. The case, Florida v. Department of Education, questions the authority of the Department to have a third party certify the quality of education, require independent boards, and a host of other things. Florida’s complaint was filed in federal district court on June 21. The US Department of Justice has yet to file a response.
• Before the lawsuit, Florida passed a law at Gov DeSantis’ direction that would require every institution in the State to change its accreditor in a relatively short cycle. The intent was to get Florida institutions out of the purview of SACSCOC and move to more conservative accreditors. This also had the intention of applying pressure on accreditors to back away from protecting the independence of institutional boards to allow states to take a more affirmative role in what they want to do.
• The legislation basically asked, “Why doesn't the Department of Education have an accreditation process for determining what institutions are qualified for the same way that the federal government decides what drugs are suitable for use in medical treatment through the U.S. Food and Drug Administration?"
• After a harsh reaction, the state changed its stance to say that within two years, the State required that all public institutions in Florida change their primary institutional accreditor.
• In the current accreditation process, states authorize institutions to grant degrees by their criteria, and then the school must be accredited by an accrediting agency that the Department has determined to be a reliable arbiter of institutional quality. Then, if the Department of Education determines that the institution has the financial stability and the administrative capability to manage the student aid programs, it could enter into a participation agreement, give Pell Grant loans, and be in the Federal Family Education Loan [FFEL] program, and in the direct loan program, enabling it to access trillions of dollars of student aid.
• The lawsuit says state governments are the owners of state institutions and that, as creatures of the state, these schools are responsible to the state legislature and the state government. So, if the legislature or the state government directs that these schools should act in a particular way, they should not be prohibited from doing so.
• This is analogous to an accreditation standard rule that was made to allow for-profit institutions to participate in student aid programs. The rule says that the board must be independent, and a majority of the members of the board are required to be 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. This supports the lawsuit’s theory that the state owns state institutions.
• The Florida lawsuit first asks the court to determine that outsourcing institutional assessment of institutional quality to a non-governmental entity is an unconstitutional delegation of governmental authority. If that argument is rejected, the lawsuit asks to prevent the Department of Education from restricting the ability of institutions to change their accreditor.
• Because institutional accreditors are no longer restricted by region or country, Florida winning the lawsuit could result in the creation of different rules regarding the kinds of issues that the institutions are dealing with in Florida. There are also questions on how this could impact how NACIQI and the Department of Education approve accreditors.
• This accreditation lawsuit is similar to the ongoing question of whether states have too much authority in SARA. If an institution is accredited, approved by a state, and that state is a participant in NC-SARA, SARA says that the state can offer its online courses anywhere in the US (except California, which is not a signatory to the SARA agreement) without further approval.

About Our Podcast Guest Mike Goldstein

Michael Goldstein has a long history of close engagement with higher education.  He was the founding Director of New York City Urban Corps, the nation’s first large-scale student intern program designed to support access for less affluent students through the use of the Federal Work-Study Program.  He went on to lead a Ford Foundation-supported effort to establish similar programs in cities across the U.S.  He returned to New York City government as Assistant City Administrator and Director of University Relations.  From there, Mike joined the then-new University of Illinois Chicago campus as Associate Vice Chancellor for Urban Affairs and Associate Professor of Urban Sciences.  In 1978 Mike joined the Washington, DC, law firm of Dow Lohnes to establish a new legal practice focusing broadly on issues confronting higher education.

By 2014 when his firm merged with the global law firm Cooley LLP, the higher education practice he headed was the largest and one of the highest regarded in the country.  Mike has been a pioneer in developing alternative mechanisms and institutional structures for delivering high-quality postsecondary education, including helping to accomplish substantial regulatory reforms that made telecommunicated and then online learning broadly available.  He is the recipient of the WCET Richard Jonsen Award, CAEL’s Morris Keeton Ward, the President’s Medal from Excelsior College, and USDLA’s Distance Learning Hall of Fame Award, as well as an honorary Doctor of Humane Letters from Fielding Graduate University for his contributions to the field of adult learning.  He graduated from Cornell University and New York University School of Law and was a Loeb Fellow at Harvard’s Graduate School of Design.  He and his spouse Jinny, an education and media consultant and former head of education for the Public Broadcasting Service, live in Washington, DC.

About the Host

Dr. Drumm McNaughton, the host of Changing Higher Ed®, is a consultant to higher ed institutions in governance, accreditation, strategy and change, and mergers. To learn more about his services and other thought leadership pieces, visit his firm’s website, https://changinghighered.com/.

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