Introduction

Accreditors, especially regional accreditors, traditionally have possessed a quasi-monopoly over institutions of higher education. They have been able to impose increasingly politicized and bureaucratic requirements on the institutions they accredit precisely because the institutions cannot escape them. Colleges and universities, and the states who charter and fund public university systems, ought to have far greater freedom to switch accreditors, and states should be able to create their own accrediting systems.

Education reformers already have done substantial work to establish how such reforms should be carried out. In 2019, the Office of Postsecondary Education (OPE) finalized rules (§ 600.11 Special rules regarding institutional accreditation or preaccreditation.) that removed regional accreditors’ monopoly and allowed institutions to choose their own accreditor nationwide. OPE also allowed institutions to receive multiple accreditations—a reform that eased the switching process and which made it easier for new accrediting organizations to receive the experience that would facilitate their own recognition by the federal government. The OPE carefully drafted its regulations so as to ensure that failing or fraudulent institutions could not abuse these new freedoms.

Meanwhile, Senator Mike Lee, Representative Ron DeSantis, and Representative Francis Rooney introduced the HERO Act in multiple sessions of Congress, which would authorize states to provide alternative forms of accreditation. The HERO ACT would greatly strengthen the freedoms established by the OPE reforms, since the freedom to switch accreditors means far more when every institution actually can choose between multiple existing accreditors, and the states have the resources to establish a network of accreditors swiftly.

The Accreditation Freedom Act joins together the 2019 OPE regulatory reforms with the accreditation provisions of the HERO Act, to provide a framework for comprehensive reform to free institutions of higher education from accrediting monopolies. This reform also strengthens accountability within higher education, by removing the all-too-convenient excuse that institutions have to do what accreditors tell them to do, and they have no means to escape from te accrediting monopoly.

The Act will strengthen the 2019 OPE regulatory reforms by grounding them in statute. Statute generally is more permanent than regulation—and the Education Department already has sought to gut the practical effect of the 2019 reforms in follow-up guidance in 2022. The Acreditation Freedom Act includes provisions to address the Education Department’s sabotaging guidance.

The Act naturally focuses on accreditors in their role as gatekeepers for federal education funds. We wish to emphasize, however, that professional accreditation by organizations such as the American Bar Association and the Liaison Committee on Medical Education also has served more broadly to impose political screens on professional education and licensure. States and other organizations should concentrate on creating new accrediting organizations for the professions, even where this does not touch directly on access to federal education funds. If policymakers believe that this subject warrants explicit mention, they should modify the Accreditation Freedom Act accordingly.

We have framed the Accreditation Freedom Act as an amendment to 20 U.S. Code § 1099b - Recognition of accrediting agency or association, 20 U.S. Code § 1099a – State responsibilities, and 20 U.S. Code § 1088 – Definitions. We would welcome bills that achieve the same intent by adaptation of other parts of the federal statutes.

Model Legislative Text

SECTION A. SHORT TITLE

This Act may be cited as the “Accreditation Freedom Act of {20XX}”.

SECTION B. CHANGE OF ACCREDITING AGENCIES

1. In General.—20 U.S. Code § 1099b - Recognition of accrediting agency or association is amended by adding at the end the following new section:

“1. For purposes of §§ 600.4(a)(5)(i), 600.5(a)(6), and 600.6(a)(5)(i), the Secretary does not recognize the accreditation or preaccreditation of an otherwise eligible institution if that institution is in the process of changing its accrediting agency, unless the institution provides the following to the Secretary and receives approval:

“a. All materials related to its prior accreditation or preaccreditation.

“b. Materials demonstrating reasonable cause for changing its accrediting agency. The Secretary will not determine such cause to be reasonable if the institution—

“i. Has had its accreditation withdrawn, revoked, or otherwise terminated for cause during the preceding 24 months, unless such withdrawal, revocation, or termination has been rescinded by the same accrediting agency; or

“ii. Has been subject to a probation or equivalent, show cause order, or suspension order during the preceding 24 months.

“2. Notwithstanding paragraph (1)(b) of this section, the Secretary shall determine the institution’s cause for changing its accrediting agency to be reasonable if the agency did not provide the institution its due process rights as defined in § 602.25, the agency applied its standards and criteria inconsistently, or if the adverse action or show cause or suspension order was the result of an agency’s failure to respect an institution’s stated mission, including religious mission.

“3. An institution does not need to receive prior clearance or any sort of permission from the Secretary to submit an application to a new accrediting agency.

“4. For purposes of § 602.14, the Secretary will recognize that no state law regarding a public university’s choice of accreditor infringes upon the voluntary nature of a public university’s membership in an accrediting agency.”

SECTION C. MULTIPLE ACCREDITATION

1. In General.—20 U.S. Code § 1099b - Recognition of accrediting agency or association is amended by adding at the end the following new section:

“1. For purposes of §§ 600.4(a)(5)(i), 600.5(a)(6), and 600.6(a)(5)(i), the Secretary does not recognize the accreditation or preaccreditation of an otherwise eligible institution if that institution is accredited or preaccredited as an institution by more than one accrediting agency, unless the institution –

“a. Provides to each such accrediting agency and the Secretary the reasons for that multiple accreditation or preaccreditation;

“b. Demonstrates to the Secretary reasonable cause for that multiple accreditation or preaccreditation.

“i. The Secretary determines the institution’s cause for multiple accreditation to be reasonable unless the institution—

“A. Has had its accreditation withdrawn, revoked, or otherwise terminated for cause during the preceding 24 months, unless such withdrawal, revocation, or termination has been rescinded by the same accrediting agency; or

"B. Has been subject to a probation or equivalent, show cause order, or suspension order during the preceding 24 months.

“ii. Notwithstanding paragraphs (b)(i)(A) and (B) of this section, the Secretary may determine the institution’s cause for seeking multiple accreditation or preaccreditation to be reasonable if the institution’s primary interest in seeking multiple accreditation is based on that agency’s geographic area, program-area focus, or mission.

“c. Designates to the Secretary which agency’s accreditation or preaccreditation the institution uses to establish its eligibility under this part.”

SECTION C. STATE ALTERNATIVE ACCREDITATION

1. In General.—20 U.S. Code § 1099a – State responsibilities is amended by adding at the end the following new section:

"1. In General.—Notwithstanding any other provision of law, a State may establish an alternative accreditation system for the purpose of establishing institutions that provide postsecondary education and postsecondary education courses or programs as eligible for funding under title IV if the State submits a plan to the Secretary for the establishment of the alternative accreditation system. Such institutions, courses, or programs may include—

"a. institutions that provide postsecondary education that culminates in a certification, credential, or degree;

"b. postsecondary apprenticeship programs that culminate in a certification, credential, or degree;

"c. any other postsecondary education course or program offered at an institution of postsecondary education, a nonprofit organization, or a for-profit organization or business, that culminates in a certification, credential, or degree; and

"d. any of the entities described in paragraphs (a) through (c) that do not award a postsecondary certification, credential, or degree, provided that such entity provides credit that will be accepted toward a postsecondary certification, credential, or degree at one or more of the entities described in paragraphs (a) through (c).

"2. Alternative Accreditation Notification.—The alternative accreditation plan described in subsection (1) shall include the following:

"a. The State’s plan for designating one or more authorized accrediting entities within the State, such as the State Department of Education, another State agency, an industry-specific accrediting agency, or another entity, and an explanation of the process through which the State will select such authorized accrediting entities.

"b. The standards or criteria that an institution that provides postsecondary education and a postsecondary education course or program must meet in order to—

"i. receive an initial accreditation as part of the alternative accreditation system; and

"ii. maintain such accreditation.

"c. A description of the appeals process through which an institution that provides postsecondary education or a postsecondary education course or program may appeal to an authorized accrediting entity if such institution, course, or program is denied accreditation under the State alternative accreditation system.

"d. Any State policy regarding public accessibility to certain information relating to institutions that provide postsecondary education and postsecondary education courses and programs accredited under the State alternative accreditation system, including—

"i. the information described in subsection (5)(a); and

"ii. information about the rates of job placement for individuals that have graduated from an institution or completed a course or program that is accredited under the State alternative accreditation system, if available.

"e. An assurance by the State that under the State alternative accreditation system, only institutions that provide postsecondary education and postsecondary education courses or programs that provide a postsecondary certification, credential, or degree, or credits toward a postsecondary certification, credential, or degree (as defined by the State in accordance with paragraph (f)) will be accredited.

"f. The State’s definition of a postsecondary certification, credential, or degree, as such term applies to the requirement described in paragraph (e).

"g. A description of the agreements that the State will enter into with institutions that provide postsecondary education and postsecondary education courses or programs that are accredited under the alternative accreditation system for purposes of accreditation regarding requirements for instructional time, in lieu of the requirements described under section 481(a)(2).

"h. A description of the agreements that the State will enter into with institutions that provide postsecondary education and postsecondary education courses or programs that are accredited under the alternative accreditation system regarding requirements for credit hours or clock hours, or other measures of student learning, in lieu of the requirements described under section 481(b).

"3. Review and Approval.—Not later than 30 days after the Secretary receives a plan from a State regarding an alternative accreditation system, the Secretary shall submit to the State and Congress, and make publicly available, a response to the State’s plan. The Secretary shall approve the plan and allow the State to establish the alternative accreditation system if the plan meets the requirements described in subsection (2).

"4. Time Limit.—Each plan approved under subsection (3) shall allow a State to carry out an alternative accreditation system in the State for a period of 5 years.

"5. Reporting Requirements.—States that establish an alternative accreditation system shall submit a report to the Secretary every 3 years following the implementation of the alternative accreditation system. The report shall include—

"a. in the case of a postsecondary education course or program that is accredited through the State alternative accreditation system—

"i. the number and percentage of students who successfully complete each such postsecondary education course or program; and

"ii. for postsecondary education courses or programs that lead to a certification, credential, or degree, the number of students in such course or program; and

"b. in the case of an institution that provides postsecondary education that is accredited through the State alternative accreditation system—

"i. the number and percentage of students who successfully obtain a postsecondary certification, credential, or degree from such institution; and

"ii. the number and percentage of students who do not successfully obtain a postsecondary certification, credential, or degree from such institution but do obtain credit from such institution toward a postsecondary degree, credential, or certification; and

"c. a description of any requirements for third-party verification of information contained in the report.”

SECTION D. STATE ALTERNATIVE ACCREDITATION—TITLE IV ELIGIBILITY REQUIREMENTS

1. In General.—20 U.S. Code § 1088 – Definitions is amended by adding at the end the following new section:

"1. State Accredited Institutions, Programs, or Courses.—Notwithstanding any other provision of law, an institution, program, or course that is eligible for funds under this title in accordance with section 102(a)(1)(B) and meets the requirements of {State Alternative Accreditation}—

"a. shall not be required to meet the requirements of section 496; and

"b. shall not be required to meet the requirements described in subsections (a)(2) and (b) of section 481.”

SECTION E. SEPARABILITY

If any provision of this Act, or the application of any provision to any person or circumstance, is held to be invalid, the remainder of this Act and the application of its provisions to any other person or circumstance shall not be affected thereby.