Cases & Developments

The National Conference of State Legislatures’ Task Force on Higher Education published a Final Report on Higher Education for the first time since 2006. The bipartisan Report was created by legislators from thirty-two states to provide clarity and urgency for policymakers and leaders in higher education. The Report details trends in higher education regarding policy and outcomes; the state-federal relationship in higher education; and proposes a state-led strategy to enhance the value of degrees. 

Order granting Defendants’ Motion to Dismiss without prejudice. Plaintiff, the State of Florida challenged the constitutionality of the federal government’s use of private accreditation agencies as part of its process to approve postsecondary institutions as eligible institutions within the meaning of the Higher Education Act (HEA). Plaintiff sought an injunction on the continued enforcement of the accreditation requirement, alleging that the HEA violates the Constitution; specifically: (1) the private nondelegation doctrine; (2) the Spending Clause; and (3) the Appointments Clause. Alternatively, plaintiff alleged that the three letters issued by the U.S. Department of Education in July 2022 violated the Administrative Procedure Act (APA). Plaintiff alleges that the delegation of authority to accreditors is improper since it is beyond the plain language of the HEA, and that permitting accreditors to alter their standards creates ambiguity for institutions, which imperils their access to Title IV funds. Lastly, plaintiff contends that the Department’s July 2022 “Dear Colleague” letters in response to SB 7044’s mandate that all public institutions switch accreditors are contrary to law. Relying on Carter v. Coal Company, the court found that postsecondary accreditation does not involve any recognized federal regulatory action, and as such, is not an exercise of a legislative function. It reasoned that accreditation alone does not end the eligibility inquiry for Title IV funding and “mere reliance on private entities does not equate to granting them governmental power or final authority.” The court also found that absent an exercise of legislative function by accreditors, plaintiff’s Appointments Clause claim fails for want of significant authority sufficient to transform a private entity into a public office. It concluded that the Spending Clause is inapplicable when at issue federal funds go to students, rather than states, and that the HEA is neither ambiguous nor coercive. Finally, the court found that plaintiff failed to adequately allege any way the 2022 DCLs adversely impacted the State of Florida or its institutions, that no additional legal consequences inured, and that claims that the letters are contrary to law are “untethered to the language of the [l]etters themselves.” 

Summary from the National Association of College and University Business Officers on legislative and regulatory actions that occurred from September 24-30. This summary highlights the short-term funding package Congress passed to fund the federal government through mid-December; the recent report from the Government Accountability Office (GAO) on the Department of Education’s struggles with 2024-2025 FAFSA; and a FAFSA update letter released by Secretary of Education Miguel Cardona acknowledging the numerous failures and the ED’s effort to improve user experience.  

Letter from the American Council on Education (ACE) and six other organizations to the U.S. House of Representatives concerning H.R. 3724, the End Woke Higher Education Act. The letter referred to prior opposition to the Respecting the First Amendment on Campus Act and requested removal of Title II from H.R. 3724 positing that it would undermine efforts to protect free speech and provide safe learning environments free from discrimination. The letter goes on to explain how Title II would create new counterproductive federal mandates and undermine the very goals it seeks to advance with a rigid, highly prescriptive, and costly regulatory enforcement framework across nearly 1,900 institutions forcing them to develop “objective, content- and view-point neutral and exhaustive standards” in allocating funds to student organizations.

Letter from the American Council on Education to the current U.S. Presidential Candidates outlining several proposals to adopt once in office. The proposals review the top concerns in the categories of making college affordable; supporting students; advancing research; campus safety; Title IX; and Higher Education Tax Policy. The letter goes into further detail about increasing the purchasing power of the Pell Grant; increased federal funding for Student Mental Health; repealing the taxability of scholarship and grant aid; and improving Visa processing.