ACTA Files Amicus Brief Challenging Constitutionality of Accreditors’ Actions

WASHINGTON, DC—As Congress prepares to reauthorize the Higher Education Act, the American Council of Trustees and Alumni today filed an amicus brief in the Fourth Circuit Court of Appeals enumerating weighty concerns about the unconstitutional delegation of unchecked power to accrediting agencies, which are private organizations composed largely of education industry stakeholders.

ACTA and fellow amici argue that delegation to a private party with competing interests is grossly at variance with legal precedent and jeopardizes the political accountability that the constitutional separation-of-powers is designed to ensure.

In light of the virtually unchecked authority exercised by these accreditation agencies under federal law, the parties argue that “the limited judicial review conducted by the district court … presents the only real opportunity for any independent review of a particular accreditation decision.”

Rather than addressing the facts of the specific case, Professional Massage Training Center, Inc. v. Accreditation Alliance of Career Schools and Colleges, ACTA’s brief suggests to the Court that it take into account the serious constitutional problems of delegation of governmental authority to accreditors in its determination of the appropriate level of judicial review over the behavior of accrediting agencies.

“The constitutional problems raised here surely present another good reason that Congress should consider an overhaul of the Higher Education Act to decouple accrediting bodies from their gatekeeping role,” said Dr. Michael Poliakoff, ACTA vice president of policy. “Accreditors have an important role to play in peer review and assessment of educational quality. But so long as accreditors are gatekeepers to Title IV funds, institutions will face uncontrolled interference that undermines their autonomy, limits innovation and competition, and has virtually nothing to do with educational quality.”

ACTA is joined in the suit by The John W. Pope Center for Higher Education Policy and the Judicial Education Project.