Ron DeSantis Takes On the Accreditation Monopoly

The core of Ron DeSantis’s philosophy of governing is that the elected government should not be constrained by unelected and unaccountable elite-controlled institutions, whether those are government bureaucracies or private businesses. I have dubbed this approach “the new republicanism.” It holds that the common man needs protection by institutions accountable to the people — or to the competitive free market — from those dominated by elites who are insulated from accountability and governed by no rules they need respect.

The new republicanism recognizes constraints on democracy that are both legal (the government must obey the written law, including the state and federal constitutions) and philosophical (the government should create as broad a space as possible for individual, private life). But within the government’s proper sphere, the elected leadership is supreme.

In battling for the primacy of democratic republicanism, DeSantis has been aided both by the strong powers of the Florida governorship and by unified Republican control of his state. But it has required endless combat, much of it yet to be settled in the courts. This morning, he opened another front: represented by Florida attorney general Ashley Moody, he filed a federal-court lawsuit against the U.S. Department of Education challenging the monopoly power of private accreditors to determine which colleges can receive federal funds. DeSantis focused his public argument on the absence of accountability:

Under the current system, the allocation of federal funds to colleges for various purposes is not dictated by Congress, but is conditioned upon the college being accredited. The accreditors are not government bodies whose personnel can be hired or fired by the elected government; they are private organizations. Yet, unlike, say, the New York Stock Exchange — whose rules can carry the force of federal law only when approved by the Securities and Exchange Commission (the FTC has similar schemes for private self-regulatory bodies), federal law prohibits the federal government from setting the accreditation standards. Moreover, the colleges are not free to choose who will accredit them, in the way that a business can hire a bond-rating agency when issuing debt or pick the stock market where it will list its shares. Despite a 2020 rule change under Betsy DeVos aimed at breaking up the regional monopoly of particular accreditors, the Biden administration has been fighting Florida’s plan to switch accreditors for its state universities. In the complaint, filed on behalf of the State of Florida in its capacity as operator of state universities, Florida challenges the DOE’s resistance to the switch under the Administrative Procedures Act.

The complaint goes further: It seeks to declare the entire scheme of accreditor power unconstitutional on the grounds that (1) it delegates lawmaking power to private organizations, (2) it violates the Spending Clause by allowing private regulators to decide who gets federal funds, (3) it violates the Tenth Amendment by unduly coercing the states, and (4) it violates the Appointments Clause because the heads of the accrediting agencies exercise significant de facto federal regulatory power but are neither appointed by the president, confirmed by the Senate, nor removable by the president.

This structure has attracted significant legal as well as policy criticism. George Leef has covered this debate extensively here at NRO, as the accreditors have increasingly used their leverage to push left-wing ideology on the colleges and professional schools. To the extent that accreditation is intended to provide some sort of government check on fly-by-night for-profit colleges, it makes no sense whatsoever to require it of state universities that are already created and supervised by state governments.

A core grievance in the complaint is about democracy: The Southern Association of Colleges and Schools Commission on Colleges (SACS) has routinely taken the position that state colleges are at risk of losing accreditation if they are not independent of their state’s elected government. The complaint recites a series of public threats by SACS:

For example, SACS recently threatened the accreditation of Florida State University (FSU) merely because FSU was considering the State’s Commissioner of Education for university president. . . . In another recent incident, SACS publicly boasted of its plan to prevent the University of North Carolina from establishing a program focused on ideological diversity. And in Georgia, SACS threatened the federal funding of every public college and university in the State over the possible appointment of a former governor to oversee the state university system. . . . then-Governor Rick Scott could not even speak out about a deadly hazing incident without drawing the ire of SACS. . . . In 2012, for example, SACS threatened the University of Virginia because the school’s governing board asked the president to resign. And in 2019, SACS threatened the University of South Carolina because Governor Henry McMaster, who serves as a member of the school’s board of trustees by law, S.C. Code § 59-117-10, was involved in selecting the university’s next president. . . .

SACS pins most of these “inquiries” on compliance with its requirement that institutions have a governing board that “protects the institution from undue influence by external persons or bodies.” In SACS’s view, “[g]overning boards are the ones that are responsible for ensuring the well-being of the institution, not the governor, not legislators, not Jane and John Citizen.” (Footnotes and citations omitted)

Jane and John Citizen are who DeSantis is standing up for here. It is their taxes that fund the state universities, and their children who attend them. They deserve a say.