• Gov. Ron DeSantis and Attorney General Ashley Moody are filing a lawsuit against the federal government to challenge a law that requires public postsecondary schools to be accredited by private entities to receive federal funding.
• The lawsuit argues that private accrediting agencies in higher education have been given too much power by Congress, violating constitutional principles and undermining accountability.
• The complaint cites incidents where accrediting agencies interfered with state institutions and their decision-making processes, and highlights the violation of the Appointments Clause, the Spending Clause, and the Administrative Procedure Act.

In conjunction with state Attorney General Ashley Moody, Gov. Ron DeSantis announced litigation against the federal government on Thursday to challenge a federal law requiring public postsecondary schools to submit to private accreditors to qualify for federal funding.

In the lawsuit, state officials contend that Congress has given too much power to private accrediting agencies in higher education, asserting that the agencies set education standards for colleges and universities and have the authority to determine whether institutions are eligible for approximately $112 billion in federal funding.

The complaint further claims that delegating power to private entities violates constitutional principles and undermines accountability, highlighting specific incidents where accrediting agencies have interfered with state institutions and their decision-making processes. The complaint additionally argues that the current accreditation scheme violates the Appointments Clause, the Spending Clause, and the Administrative Procedure Act.

“All post-secondary educational institutions must — it’s not voluntary — be accredited by a private accrediting agency to be eligible for federal funding,” said Moody during a press conference on Thursday morning. “Congress cannot delegate its authority to a private institution that is not accountable to the people. That’s unchecked power.”

Per Moody, Florida’s postsecondary accreditor, the Southern Association of Colleges (SACS)and Schools Commission on Colleges, regularly wield this power in Florida and other states to “keep the public from running their own institutions.”

The complaint anecdotally cites an instance in 2021 when SACS threatened the accreditation of Florida State University (FSU) because it was considering hiring the then-Commissioner of Education Richard Corcoran as university President.

“As a result, private accrediting agencies act as gatekeepers to $112 billion in annual federal student aid—“proxies for the federal department whose spigot they open and close,” continues the complaint. “Colleges and universities cannot freely choose their masters, as federal law requires them to show “reasonable cause” to change accreditors.”

The Governor stated that state officials believe the delegation of power to accreditors violates the federal nondelegation doctrine, which serves as a fundamental principle in administrative law that restricts Congress from delegating its legislative powers to entities other than itself.

Typically, this prohibition involves the delegation of powers to administrative agencies or private organizations. In the landmark case of J.W. Hampton v. United States, the Supreme Court provided clarification, stating that when Congress delegates regulatory authority, it must provide the agencies with an “intelligible principle” upon which to base their regulations. This standard is considered fairly permissive and has rarely, if ever, resulted in the invalidation of legislation.

“You know, they [SACS] try to stick their beak into different things. You cannot take legislative power and delegate it to an unaccountable private body and let them administer that kind of power without any types of checks and balances,” said DeSantis, echoing Moody’s sentiments.