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On September 24, a perceptive federal judge in California pointed out the obvious and cleared a lot of thick overgrowth from the landscape of postsecondary oversight in the United States. In brief, Judge Margaret Morrow concluded that a state cannot treat regional accreditors differently from each other in order to favor colleges based in the state over those based elsewhere.
Judge Morrow’s preliminary opinion in Daghlian v. DeVry, with which I agree for the most part, concludes that differences among regional accreditors are insufficient to sustain California’s contention that the state can in effect exempt locally based colleges from state oversight because they are accredited by the Western Association of Schools and Colleges (WASC), while requiring colleges based elsewhere to get state approval to operate because they are accredited by a different regional accreditor.
This decision may cut part of the knot that has plagued proposed revisions of California postsecondary approval laws. WASC has been actively opposing some of the changes, even though they don’t affect WASC schools, apparently on a camel’s nose theory: any hint of state interference in collegiate self-governance must be sprayed with hot and cold running lobbyists. Ultimately, WASC is lobbying the tide not to come in.
The DeVry case may therefore serve to drag into the open one of the less-well-understood aspects of education law and policy. One of the commonest fallacies in higher education, and one which is amazingly ill-understood even by professional educators, is that colleges get to offer degrees because their accreditor allows them to. Not so. Colleges, including private ones, get to offer degrees because state governments give them the authority to do so.
Let me say that again for maximum clarity: Private colleges in the United States have no inherent right to issue degrees. That right comes to them through a grant of authority from a state government. With the exception of Congress and Indian tribes, I know of no other source for degree authority in the United States. The authority may come as a charter, a constitutional provision or a statute, but it must have an origin in state law. No accreditor can give that authority and no accreditor can take it away. Nor can the federal government do either, except for its own colleges.
The federal government recognizes this area of state supremacy in its regulations governing accreditors. A federally recognized accreditor is prohibited by federal rules from accrediting a college unless that college has appropriate state authority to issue degrees prior to accreditation. That is why one current California proposal to allow schools accredited by the Western Association to operate without a separate grant of state authority cannot work. This chicken chasing its own egg is a turkey. Judge Morrow’s preliminary decision serves to add top-quality stuffing to this defunct bureaucratic poultry.
California (and every other state) must formally give authority to issue degrees to every college based in the state that wants to grant degrees. Instead, it seems simpler for states to just punt the function of postsecondary approval to the local accreditor. Sorry, it can’t be done that way. Likewise, accreditors have no ability to grant degree authority to a foreign school -- only the government of the nation, or its properly designated authority, can do that.
In theory, every state diligently determines which colleges can issue degrees and, ideally, exercises at least some baseline quality control. In practice, this does not always happen, and in California today, it can’t happen, for there is no state agency in existence to issue the approval. The consequences are significant.
Right now as I write, it is impossible to start a new degree-granting institution in California, because any such institution requires state approval. It requires state approval not only to get accredited, but to have any legal authority to issue degrees. And it can’t get this approval. On these grounds alone, California is flirting with a Commerce Clause problem: The legislature has de facto protected all existing California colleges from competition. Florida tried this a few years ago and was squashed in federal court.
Also, any California institution that comes up for renewal by its current accreditor has to show that it has current state approval to issue degrees. Some won’t be able to. Even if all parties accepted the convenient but illegal fiction that WASC can stand in for the state, Judge Morrow has killed any attempt by the state to claim that WASC accreditation works as a stopgap but that accreditation by the North Central Association’s Higher Learning Commission doesn’t.
With luck, one side effect of the DeVry case will be to hose out once and for all some of the fictions that states, colleges and accreditors have erected around the curiously opaque process of college and program approval. When the false fronts have collapsed -- the collegial slurry panned for its limited nuggets and the agencies of various states (e.g., loopholed Alabama, grandfathered New Mexico, AWOL Hawaii and disinterested Idaho) subjected to the need to perform -- we can hope for useful changes.
What should emerge from this helpful legal reality check on the role of states and accreditors? First, absolute clarity that each state is legally responsible for the private colleges based there. That includes program quality. No more hibernating under the accreditorial dust storm. Accreditors are owned by their dues-paying member schools and should never be expected to serve as enforcement arms of state or federal governments. They are arms of the colleges, dedicated to advancing the interests of their member schools. There is nothing wrong with that, but let’s give it the right name: a club of schools with similar interests and approaches, not an enforcement body (certainly not of federal standards), and not remotely capable of handling student complaints.
States that have perched primly in the back pews, hands clasped and eyes downcast while the U.S. Department of Education brutalizes accreditors into doing oversight work for which they are unsuited, unfunded and unprepared, need to stop shirking their duties and hoping that the feds will do it for them. Who on earth, looking with unclouded eyes at the federal government, would entrust it with quality control?
I have argued for some time that the Department of Education should make its own decisions about financial aid eligibility based on its own standards, properly enforced by itself. That is a different and appropriate role: You want our money? Here are our rules.
Right now, the Department of Education is incompetent, in the technical sense, to perform college oversight. They can deal, sort of, with the most obvious cases, but they have no real structure in place for meaningful Title IV eligibility oversight. Regional accreditors need not fear losing their recognition, since the feds have no replacement process in place. Therefore regional accreditors and the larger national and specialized accreditors can ignore most federal noises.
Finally, the federal government has no business assuming a duty that constitutionally belongs to the states. The federal government would love to move in on territory that has belonged to the states for over 200 years. It is trying to persuade accreditors to do the dirty work. The states should not let this happen. If Judge Morrow’s case is nominally about the comparability of accreditors, its real impact may be on states that have taken their responsibilities lightly for too long.
