Regulating Speech, Viewpoint Diversity, and Tenure at Colleges and Universities

What Do You Think About the Proposals Coming Soon from the Department of Education?

Recently I prepared a memo to guide a private discussion of proposed regulations that are expected in the next few weeks from the Trump Administration. Among other things, the regulations would increase the involvement of the federal government, through its recognition of accrediting agencies, in issues of tenure, free speech and so-called viewpoint diversity at colleges and universities. I am sharing the memo to encourage others to take a close look at what is coming. Part I is background. Part II starts with some questions and lays out the proposed regulatory language. What are your thoughts?

CAVEAT: Much of this memo is about the law, but I am not a lawyer, so nothing here should be relied upon. Instead, it is my lay understanding for feedback and discussion.

Part I. How Federal Accreditor Recognition Works

Anyone can start an organization and call it an accreditor. But to be officially “recognized” by the U.S. Department of Education, an accreditor must have a federally-relevant reason for needing recognition, and must comply with a number of requirements. One federally-relevant reason for recognition is to serve as a gatekeeper for federal financial aid – primarily Pell Grants and student loans – under Title IV of the Higher Education Act. The other rationale for recognition is that a federal agency uses the accreditation to determine eligibility for a program, such as health care research.

The Secretary of Education currently recognizes about 50 accrediting agencies, 35 of them as “institutional” gatekeepers for Title IV. While some of those agencies accredit traditional broad-focus colleges and universities or vocational institutions, some of the agencies are quite narrow or specific in scope, such as Bible Colleges or schools training morticians, lawyers, Montessori teachers, or Rabbis.¹ Of the accreditors that are programmatic only (no Title IV link), all but one are in health care;² the exception being English Language learning.³

The current regulatory requirements for all recognized accreditors include:

• The accreditor must have standards for student achievement,⁴ curricula, faculty, facilities, student support services, recruiting and admission practices, and fiscal and administrative capacity.

• The accreditor must have at least two years of demonstrated experience accrediting one or more institutions,⁵ must enforce its standards, and must keep adequate records.

• The accreditor has a voluntary membership, and its decision-making entity (usually a board or commission) includes educators, practitioners, and at least one member representing the public.

• The accreditor must have “adequate” administrative staff and financial resources to carry out its responsibilities, and uses “competent and knowledgeable individuals” to conduct on-site reviews.

• The accreditor must provide institutions with due process, and must have controls against conflicts of interest.

Additional requirements that apply to Title IV accreditors include:

• Standards for program length for the credentials offered, and records of compliance with Title IV programs.

• The accreditor must be separate and independent from any other organization (unless the requirement is waived), and at least one-seventh of the members its decision-making bodies must represent the public.

• The accreditor must review branch campuses.

• The accreditor must work with institutions at risk of closure to make sure that teach-out plans and agreements are in place to allow students to complete their programs.

Current ED regulations do not provide specificity regarding the details of the standards adopted by accreditors, and accreditors have been recognized with standards that vary from quite general and vague (here is one example, presumably relying heavily on peer review) to standards that lay out very detailed and specific expectations.

Federal recognition can be granted for up to five years. To seek or to renew recognition, an accreditor submits a petition and supporting documentation to ED’s Accreditation Group staff. The staff works with the agency to attempt to address identified shortcomings, and then all of the information is made available to the bipartisan appointees of the National Advisory Committee on Institutional Quality and Integrity (NACIQI). At a public meeting, the record is reviewed and the ED staff and the accreditor are questioned by NACIQI members. All of the records, including recommendations from the staff and NACIQI, are forwarded to a Senior Department Official, who makes a decision, anything from a clean five-year recognition, to a shorter and/or restricted recognition, or denying recognition. In either of the latter two situations, the accreditor can appeal to the Secretary.

In addition to reviewing agencies when their recognition term is up, the Accreditation Group staff can initiate a compliance review based on a complaint or other information. If the issue is not resolved, the compliance report goes through the same NACIQI process, with resolution by the SDO and Secretary if appealed.

A Purposely Restricted Federal Role

College accreditation began more than a century ago as a private, voluntary method for groups of schools to clarify where secondary school ends and postsecondary begins, and what qualifies as which. After abuses of the early GI Bill, the government latched on to preexisting accrediting agencies as a method of peer-review quality control, acknowledging the federal government’s inability to monitor the industry and make the judgement calls required in education. Building on this arm’s-length approach, Congress tapped the Education Commissioner’s list of recognized accreditors in the HIgher Education Act of 1965. And in 1968, as President Johnson’s Great Society programs were initially being implemented, Congress enacted a prohibition on federal officials exercising “any direction, supervision, or control over the curriculum, program of instruction, administration, or personnel of any educational institution.” That restriction remains in statute today.

Indirect quality assurance through accrediting agencies has played a large part in preventing the type of political control that has plagued higher education systems in most other countries in the world. Congress has reaffirmed the firewall in amendments to the Higher Education Act intended to prevent the Secretary of Education from imposing requirements on accreditors. While the HEA lists the general topics that standards must include (curriculum, faculty, etc. as listed above), the statute specifically prohibits the Secretary from specifying any content of the standards: “Notwithstanding any other provision of law, the Secretary shall not promulgate any regulation with respect to the standards of an accreditation agency or association. . .”

Perhaps unaware of the prohibition, the Department proposed, in its first draft version of AIM regulatory changes in April, new detailed provisions described as standards, an apparent direct violation of the prohibition. Alerted to the problem, the Department changed the next version of its proposal so that the new requirements, rather than “being” standards, are described instead as criteria for the Department to use in judging the application of the accreditor’s standards (new Section 602.17).

To me, a non-lawyer, the proposed new section reads as a giant violation of the statutory prohibition. But for the purposes of discussing the draft provisions, I am setting that question aside.

An Inappropriate Delegation of Power?

Conservative critics of accrediting agencies have frequently complained that the agencies are inappropriately using government powers to impose requirements on colleges. Florida Governor DeSantis filed a lawsuit based on this constitutional claim and lost in a unanimous federal appeals court decision. That said, while delegating government authority to private entities is common, there are some limits under the U.S. Constitution; an entity can go too far in using its power to regulate “the affairs of an unwilling minority.”⁶

Under the HEA, accrediting agencies must be private and voluntary: colleges willingly choose among options as their ED-recognized accreditor.⁷ Even before the regional lines were erased, colleges could escape their regional accreditor by seeking to be accredited by a national accreditor. Granted, prestige and other marketplace factors generally prevented that move except in desperate circumstances, but they were not actually forced or trapped. The Trump Administration’s 2020 elimination of the regional lines have addressed that prestige factor, allowing universities to move from one formerly regional accreditor to another, as many are doing.

The free-exercise rights of religious institutions are protected in several ways by provisions of the HEA. First, accrediting agencies have long judged institutions in the context of their religious missions, an expectation that is mirrored in the HEA. Second, the Department recognizes several different Christian and Jewish accrediting agencies catering to versions of those faiths for those institutions that do not want to subject themselves to the perspectives of a secular accreditor. Finally, if a school loses its accreditation due to a religious factor, the Secretary may continue that school’s Title IV aid eligibility while it seeks a new accreditor.

What about the Establishment Clause? Unfortunately, 2020 regulations of the Trump Administration went too far in pandering to the Christian Right, requiring recognized accreditors to set aside their standards to accommodate religious beliefs.⁸ My non-lawyer view is that this provision is unconstitutional: the government cannot require a private entity to adopt or accept a religious belief it does not hold. While accreditors should consider an institution’s mission, the accreditor should use its own judgement in deciding how far to bend its principles, if at all, to accommodate an institution’s mission.

Part II. The Anticipated AIM Regulations

The Department of Education held negotiated rulemaking sessions in the Spring, providing a draft that addressed numerous issues and evolved as a result of the discussion. The negotiators reached consensus (no outright nay votes) on a final draft, which means that the NPRM will reflect that consensus draft (with some possible technical and clarifying changes). A short comment window is expected once the NPRM is published in the Federal Register, assuming the Administration wants to meet a November 1 deadline for adopting a final regulation (in order for it to go into effect in July 2027).

Below are a selection of new proposed provisions relating to three topics: civil rights, viewpoint diversity, and faculty independence/tenure. In considering the language, keep in mind that these provisions would not be applied directly to colleges. Instead, they are requirements on what college accreditors must do in reviewing colleges. For each provision, consider questions such as:

• Is the meaning of the provision clear? Do the exemptions of private and/or religious institutions make sense?

• To the extent that the provision is aimed at a worthy goal, is this a good way to achieve it?

• Does the provision maintain the autonomy of accrediting agencies to develop and implement the standards that they believe are appropriate for their mission or discipline?

• Do the provisions provide opportunities for a militant Secretary of Education to exercise too much control over accreditors or institutions?

First Amendment and Civil Rights

Under “§ 602.15 Administrative and fiscal responsibilities,” the draft would insert this new paragraph:

(f) The agency’s accreditation standards, policies and enforcement practices must not restrict public institutions from fulfilling their obligations under the First Amendment to the Constitution of the United States. These standards similarly also must not restrict any private institutions that, through their institutional policies, guarantee the same or similar protections for students or faculty, unless the institution has a religious mission.

Under “§ 602.17 Application of standards in reaching accreditation decisions,” part (a) effective mechanisms, specifically referencing the faculty standard in the prior section:

(iii) Academic freedom protections that are clearly articulated and applied consistently to faculty regardless of appointment classification, race or other immutable characteristics, viewpoint, or ideology, unless the institution has a religious mission. If an institution has a religious mission, the agency evaluates whether the institution maintains academic freedom protections that are consistent with the institution’s religious mission and applied consistently to faculty regardless of appointment classification, race or other immutable characteristics;

* * *

(v) In the case of public institutions, consistently applies policies that protect the First Amendment to the Constitution of the United States. The agency should similarly evaluate any private institutions that, through their institutional policies, guarantee the same or similar protections for students or faculty;

* * *

(vii) A policy or policies to protect civil rights and, as applicable, First Amendment rights, and whether such policy or policies include:

(A) Academic freedom protections that are clearly articulated and applied consistently to faculty regardless of appointment classification, race or other immutable characteristics, viewpoint, or ideology, unless the institution has a religious mission. If an institution has a religious mission, the agency evaluates whether the institution maintains academic freedom protections that are consistent with the institution’s religious mission and applied consistently to faculty regardless of appointment classification, race or other immutable characteristics;

(B) Academic freedom and freedom of inquiry protections for faculty in teaching, scholarship and research within the subject matter of a course and research within their academic discipline, including conditions under which a range of academic perspectives may be expressed and examined without adverse action based on lawful viewpoints unrelated to professional or academic competence, unless the institution has a religious mission; and

(C) In the case of a private institution, policies, that if established, guarantee the same or similar protections as those described subsections (A) and (B) above.

Under the same section, but applying broadly (not just to a faculty standard):

(g) The agency may not have standards that encourage, direct, or otherwise require institutions or programs to violate Federal or State law, including by having policies that provide any preferences on the basis of race.

Viewpoint Diversity

In the same section, again with reference to faculty:

(viii) A policy that is designed to support, promote, and appropriately prioritize intellectual diversity and the free exchange of ideas amongst faculty, to include elements that address intellectual inquiry and student learning, and measures student and faculty perceptions on the range of viewpoints and perspectives offered by the institution or program, unless the institution or program has a religious mission. If an institution or program has a religious mission, the policy shall include elements that address intellectual inquiry and student learning that are consistent with the institution’s religious mission.

Under “§ 602.18 Ensuring consistency in decision-making,” the draft includes this new paragraph:

(4) Has adopted and followed procedures to ensure that agency decisions are neutral with respect to viewpoint and ideology that are unrelated to its accrediting policies or standards, except that nothing in this paragraph requires an accrediting agency with a religious mission to be neutral with respect to viewpoints.

Provisions That May Implicate Tenure or Faculty Independence

Under “§ 602.17 Application of standards in reaching accreditation decisions,” part (a) effective mechanisms, specifically referencing the faculty standard, the draft says:

(ii) …applies written faculty performance evaluation policies that include defined performance criteria and are conducted on a periodic basis;

* * *

(iv) Sufficient flexibility in instructional staffing policies and procedures to respond to persistent material changes in student demand, program viability, or financial conditions;

* * *

(vi) Policies regarding the integrity of scholarly activity and research and practices designed to prevent, detect, and address fabrication, material misrepresentation or falsification, plagiarism, and other forms of research misconduct as well as mechanisms for timely investigation, corrective actions, and, as appropriate, public disclosure;

1. For some of those 35 agencies, the number of schools actually using the accreditor as their Title IV gatekeeper is quite small, suggesting that the purpose of federal recognition in those cases may be more an attempt to claim credibility in marketing for increased membership (“we are a federally-recognized accreditor”) than to provide access to financial aid.

2. Medical/physician, naturopathy, public health, midwifery, pharmacy, optometry, physical therapy, occupational therapy, dentistry, psychology, audiology, nursing, nurse practitioner, veterinary.

3. Relevant for immigration-related programs at the Department of Homeland Security

4. While an accreditor must have student achievement standards, the Higher Education Act severely restricts any Department of Education say over them.

5. The experience can be less than two years if the accreditor had been part of a different recognized accrediting agency.

6. Some background on the “nondelegation doctrine” can be found here: https://www.congress.gov/crs-product/R44965

7. Caveat: Some specialized accreditors are referenced by states in their occupational licensing regulations, conferring on the accreditor government authority that goes beyond any power that comes from being an ED-recognized accreditor.

8. The regulation says accreditors may not “use as a negative factor [an] institution’s religious mission-based policies, decisions, and practices…“ https://www.law.cornell.edu/cfr/text/34/602.18