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118th Congress } { Report
HOUSE OF REPRESENTATIVES
2d Session } { 118-467
======================================================================
ACCREDITATION FOR COLLEGE EXCELLENCE ACT OF 2023
_______
April 23, 2024.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Ms. Foxx, from the Committee on Education and the Workforce, submitted
the following
R E P O R T
together with
MINORITY VIEWS
[To accompany H.R. 3724]
[Including cost estimate of the Congressional Budget Office]
The Committee on Education and the Workforce, to whom was
referred the bill (H.R. 3724) to amend the Higher Education Act
of 1965 to prohibit recognized accrediting agencies and
associations from requiring, encouraging, or coercing
institutions of higher education to meet any political litmus
test or violate any right protected by the Constitution as a
condition of accreditation, having considered the same, reports
favorably thereon with an amendment and recommends that the
bill as amended do pass.
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Accreditation for College Excellence
Act of 2023''.
SEC. 2. PROHIBITION ON POLITICAL LITMUS TESTS IN ACCREDITATION OF
INSTITUTIONS OF HIGHER EDUCATION.
(a) Operating Procedures Required.--Section 496(c) of the Higher
Education Act of 1965 (20 U.S.C. 1099b(c)) is amended--
(1) by striking ``and'' at the end of paragraph (8);
(2) in paragraph (9), by striking the period at the end and
inserting ``; and''; and
(3) by adding at the end the following:
``(10) confirms that the standards for accreditation of the
agency or association do not--
``(A) except as provided in subparagraph (B)--
``(i) require, encourage, or coerce any
institution to--
``(I) support, oppose, or commit to
supporting or opposing--
``(aa) a specific partisan,
political, or ideological
viewpoint or belief or set of
such viewpoints or beliefs; or
``(bb) a a specific viewpoint
or belief or set of viewpoints
or beliefs on social, cultural,
or political issues; or
``(II) support or commit to
supporting the disparate treatment of
any individual or group of individuals
on the basis of any protected class
under Federal civil rights law, except
as required by Federal law or a court
order; or
``(ii) assess an institution's or program of
study's commitment to any ideology, belief, or
viewpoint;
``(B) prohibit an institution--
``(i) from having a religious mission,
operating as a religious institution, or being
controlled by a religious organization (in a
manner described in paragraph (1), (2), (3),
(4), (5), or (6) of section 106.12(c) of title
34, Code of Federal Regulations (as in effect
on the date of the enactment of this
paragraph)), or from requiring an applicant,
student, employee, or independent contractor
(such as an adjunct professor) of such an
institution to--
``(I) provide or adhere to a
statement of faith; or
``(II) adhere to a code of conduct
consistent with the stated religious
mission of such institution or the
religious tenets of such organization;
or
``(ii) from requiring an applicant, student,
employee, or contractor to take an oath to
uphold the Constitution of the United States;
or
``(C) require, encourage, or coerce an institution of
higher education to violate any right protected by the
Constitution.''.
(b) Limitation on Scope of Criteria.--Section 496(g) of the Higher
Education Act of 1965 (20 U.S.C. 1099b(g)) is amended to read as
follows:
``(g) Limitation on Scope of Criteria.--
``(1) In general.--The Secretary shall not establish criteria
for accrediting agencies or associations that are not required
by this section.
``(2) Institutional eligibility.--An institution of higher
education shall be eligible for participation in programs under
this title if the institution is in compliance with the
standards of its accrediting agency or association that assess
the institution in accordance with subsection (a)(5),
regardless of any additional standards adopted by the agency or
association for purposes unrelated to participation in programs
under this title.''.
Purpose
H.R. 3724 amends the Higher Education Act of 1965 to
prohibit recognized accrediting agencies and associations from
requiring, encouraging, or coercing institutions of higher
education to meet any political litmus test or violate any
right protected by the Constitution as a condition of
accreditation.
Committee Action
115TH CONGRESS
Second Session--Hearings
On April 27, 2017, the Committee on Education and the
Workforce held a hearing on ``Strengthening Accreditation to
Better Protect Students and Taxpayers.'' The purpose of the
hearing was to review the concerns that the current
accreditation system is no longer focused on ensuring a high-
quality education experience and examine ways to strengthen its
mechanics to provide accountability for both students and
taxpayers. Testifying before the Committee were Dr. Mary Ellen
Petrisko, President, WASC Senior College and University
Commission, Alameda, CA; Dr. George A. Pruitt, President,
Thomas Edison State University, Trenton, NJ; Mr. Ben Miller,
Senior Director for Postsecondary Education, Center for
American Progress, Washington, D.C.; and Dr. Michale S.
McComis, Executive Director, Accrediting Commission of Career
Schools and Colleges, Arlington, VA.
116TH CONGRESS
Second Session--Hearings
On April 3, 2019, the Committee's Higher Education and
Workforce Investment Subcommittee held a hearing on
``Strengthening Accountability in Higher Education to Better
Serve Students and Taxpayers.'' The purpose of the hearing was
to review the triad accountability system of higher education,
of which accrediting agencies and associations compromise one-
third of the entities responsible for holding institutions
accountable to students and taxpayers. Testifying before the
Committee were Dr. Nicholas Hillman, Associate Professor of
Education Leadership and Policy Analysis, University of
Wisconsin-Madison, Madison, WI; Ms. Melissa Emrey-Arras,
Director of Education, Workforce, and Income Security, United
States Government Accountability Office, Washington D.C.; Mr.
Noe Ortega, Deputy Secretary of the Office of Postsecondary and
Higher Education, Pennsylvania Department of Education,
Harrisburg, PA; and Dr. Barbara Brittingham, President, New
England Commission of Higher Education, Wakefield, MA.
118TH CONGRESS
First Session--Hearings
On July 27, 2023, the Committee's Higher Education and
Workforce Development Subcommittee held a hearing on ``Lowering
Costs and Increasing Value for Students, Institutions, and
Taxpayers.'' The purpose of the hearing was to discuss with
policy experts the root causes of student debt and how to lower
the cost of college through reforms to the postsecondary
education accountability system, including reforms to the
accreditation system that prioritize academics over a social
justice agenda. Testifying before the Subcommittee were Mr.
Michael B. Horn, Author and Co-Founder of the Clayton
Christensen Institute for Disruptive Innovation, Lexington, MA;
Mr. Stig Leschly, President and Founder, Postsecondary
Commission, Boston, MA; Dr. Stephanie Cellini, Professor of
Public Policy and Public Administration, and of Economics,
George Washington University, Washington, D.C.; and Dr. Andrew
Gillen, Senior Policy Analyst, Texas Public Policy Foundation,
Austin, TX.
Second Session--Hearings
On March 7, 2024, the Committee's Higher Education and
Workforce Development Subcommittee held a hearing on
``Divisive, Excessive, Ineffective: The Real Impact of DEI on
College Campuses.'' The purpose of the hearing was to examine
ways in which institutions and accreditors are engaging in
harmful diversity, equity, and inclusion practices (DEI),
including accreditors with DEI-based standards that
institutions are obligated to meet. Testifying before the
Subcommittee were Dr. Erec Smith, Associate Professor of
Rhetoric, York College of Pennsylvania, Cato Research Fellow,
York, PA; Dr. James Murphy, Director of Career Pathways and
Post-Secondary Policy, Education Reform Now, Washington, D.C.;
Dr. Stanley Goldfarb, Chair, Do No Harm, Bryn Mawr, PA; and Dr.
Jay Greene, Senior Research Fellow, The Heritage Foundation's
Center for Education Policy, Fayetteville, AK.
Legislative Action
On May 25, 2023, Higher Education and Workforce Development
Subcommittee Chairman Burgess Owens (R-UT) introduced the
Accreditation for College Excellence (ACE) Act of 2023 (H.R.
3724) with Representatives Brandon Williams (R-NY), Byron
Donalds (R-FL), and Erin Houchin (R-IN). The bill was referred
solely to the Committee on Education and the Workforce. On
March 21, 2024, the Committee considered H.R. 3724 in
legislative session and reported it favorably, as amended, to
the House of Representatives by a recorded vote of 24-14. The
Committee considered the following amendments to H.R. 3724:
1. Representative Owens offered an Amendment in the
Nature of a Substitute (ANS) that makes technical
changes to the text to align the language more closely
to the same prohibition included in the text of H.R.
6951, the College Cost Reduction Act, which the
Committee passed on January 31, 2024. The amendment was
adopted by voice vote.
2. Representative Suzanne Bonamici (D-OR) offered an
amendment to require religious institutions that seek a
core curricula exemption from their accreditor to
publish a description of the request and final
determination by the accreditor. The amendment failed
by a recorded vote of 14-23.
Committee Views
INTRODUCTION
Accrediting agencies or associations (accreditors) that
force institutions to subscribe to certain partisan beliefs or
viewpoints, such as DEI, quash academic freedom and therefore
are antithetical to American exceptionalism. Further, the
prevalence of DEI-based standards is concerning at a time when
the value of a degree has decreased\1\ and the cost of college
has increased.\2\ Accreditors that require colleges to adopt
DEI initiatives are forcing colleges to make the DEI
bureaucracy a priority instead of lowering college costs for
students and taxpayers. H.R. 3724, the Accreditation for
College Excellence Act, would allow institutions to regain
academic freedom by prohibiting accreditors from requiring
institutions to meet partisan and ideological litmus tests to
receive accreditation.
---------------------------------------------------------------------------
\1\https://freopp.org/is-college-worth-it-a-comprehensive-return-
on-investment-analysis-1b2ad17f84c8.
\2\https://www.bls.gov/opub/ted/2023/college-tuition-and-fees-up-4-
7-percent-since-february-2020.htm.
---------------------------------------------------------------------------
TODAY'S IDEOLOGY
There is no one definition of DEI. Rather, DEI is a
framework of practices that has ideological roots in neo-
Marxist theory that attribute virtually all group differences
to systemic discrimination.\3\ These practices are grounded in
``critical race theory'' (CRT), which is a legal framework
developed in the 1970s and 1980s\4\ that argues that racism is
always subconsciously occurring and impacting society, even if
it does not exist in the law. The CRT movement has spread
beyond the legal field to become an activist crusade that
questions and seeks to change mainstream institutions. Kimberle
Crenshaw, the theorist who coined the term CRT, has called for
the creation of a ``counter-hegemony'' to challenge traditional
liberalism.\5\ On its surface, DEI seems to promote values that
all people would agree with, but in practice modern DEI works
against the definitions of its own values of ``diversity,''
``equity,'' and ``inclusion'' by prioritizing certain groups
over others. DEI argues that, regardless of equal treatment
under the law, discrimination always will be present within
society due to power struggles between social groups. According
to DEI in its current form, inequality of outcome is
discrimination; therefore, inequality of outcome must be
prevented to be sure that discrimination has been truly
addressed. Further, merit, fairness, and equality under law are
insufficient to remedy this inequality of outcomes, so equal
opportunity is abandoned for favored treatment of certain
groups so as to achieve the desired equal outcomes.
Fundamentally, modern DEI divides individuals into groups based
on stereotyped social constructs and treats them according to
their group identity rather than as autonomous agents with the
freedom to make their own choices and shape their own lives.
---------------------------------------------------------------------------
\3\https://thehill.com/opinion/education/3718803-what-do-we-really-
mean-by-diversity-equity-and-inclusion/.
\4\https://www.edweek.org/leadership/what-is-critical-race-theory-
and-why-is-it-under-attack/2021/05.
\5\https://www.aei.org/wp-content/uploads/2022/07/Prohibit-
Diversity-Equity-and-Inclusion-Statements.pdf?x91208.
---------------------------------------------------------------------------
Unfortunately, postsecondary education has embraced Marxist
ideology through DEI, to inform many aspects of university
life. Beyond problems with Marxist theory itself, more
generally no partisan viewpoints or ideologies should ever be
taken as a framework for postsecondary education. Universities
should be marketplaces for all ideas, and this is undermined by
the embrace of any one ideological framework.
There are multiple ways in which DEI has manifested in
postsecondary education. First, standardized tests, and
universities' use of them as evaluative measures, have been
criticized by DEI proponents as being ``inequitable'' due to
different student outcomes. The National Education Association
described standardized tests as ``instruments of racism and a
biased system.''\6\ Advocate group FairTest says that
standardized testing poses ``racial, class, gender, and
cultural barriers''\7\ and as a result reports that over 2,000
U.S. colleges are now test-optional or test-free when it comes
to SAT or ACT scores. To fight supposed ``systemic racism,'' at
least 40 medical institutions have dropped the requirement that
all applicants take the MCAT.\8\ Arguments against standardized
testing embody DEI's framework for outcomes. Standardized
tests, by nature, ask all students the same questions
regardless of their diverse background, objectively evaluating
the individual's ability without consideration of their race,
gender, or socioeconomic class. To DEI advocates, however,
standardized tests are designed to target certain social
groups. Rather than seeing difference of outcome as a sign of
individual capability, DEI advocates see it as symptomatic of a
system of oppression, again focusing on the group rather than
the individual. Despite these criticisms of standardized tests,
some universities that were previously test-optional have
recently announced a return to standardized tests because they
recognize that eliminating standardized tests can have the
opposite effect. In announcing its decision, Dartmouth said,
``SAT/ACTs can be especially helpful in identifying students
from less-resourced backgrounds who would succeed at Dartmouth
but might otherwise be missed in a test-optional
environment.''\9\ In other words, DEI values ultimately
undermine the very individuals it purports to help, reducing
them to victims of circumstance and members of a monolithic
group rather than as individuals with potential.
---------------------------------------------------------------------------
\6\https://www.nea.org/nea-today/all-news-articles/racist-
beginnings-standardized-testing.
\7\https://fairtest.org/about/.
\8\https://breakpoint.org/medical-education-infected-with-dei/.
\9\https://thehill.com/homenews/education/4458907-the-days-of-
optional-sat-scores-may-be-coming-to-an-end/.
---------------------------------------------------------------------------
A further effect of DEI on postsecondary education can be
seen in changing tenure standards. The American Association of
University Professors found that over 20 percent of
institutions responding to a recent survey said they include
DEI criteria in their tenure standards and another almost 40
percent reported they are considering adding them.\10\ These
DEI statements are not simple ``anti-discrimination''
statements but rather are coerced commitments to a larger
ideology. Further, a 2021 American Enterprise Institute report
found that one out of every five American professors is hired
based on his or her commitment to the principles of DEI instead
of on his or her merit.\11\ Conformity toward any ideology is
directly at odds with the principles of academic freedom, and
it is troubling that increasingly tenure is being granted not
solely based on the academic and teaching excellence of
professors but rather based on their commitment to an ideology.
This proliferation of DEI administrators places importance on
adherence to a social and ideological movement rather than on
education and serving students.\12\ Although DEI costs
significant resources, there is very little evidence such
efforts help students.\13\ What there is evidence of is the
rising cost of college.\14\ Every dollar a university puts into
a DEI administrator hire is a dollar a university is not
putting toward faculty devoted to core curriculum, direct
student resources, or lowering tuition for students.
---------------------------------------------------------------------------
\10\https://www.aaup.org/file/
2022_AAUP_Survey_of_Tenure_Practices.pdf.
\11\https://www.aei.org/research-products/report/other-than-merit-
the-prevalence-of-diversity- equity-and-inclusion-statements-in-
university-hiring/.
\12\https://www.heritage.org/education/report/diversity-university-
dei-bloat-the-academy.
\13\https://www.heritage.org/education/commentary/dei-doesnt-work-
taxpayers-shouldnt-pay-it.
\14\https://www.bls.gov/opub/ted/2023/college-tuition-and-fees-up-
4-7-percent-since-february-2020.htm.
---------------------------------------------------------------------------
Another effect of DEI on universities is the ballooning of
administrative positions and resources dedicated to DEI
initiatives. These DEI offices and staff at universities share
similarly vague mission statements but seem to have little
practical impact on student success outcomes.\15\ The 2021
report Diversity University: DEI Bloat in the Academy found
that large public universities averaged 45 DEI personnel, with
some institutions well surpassing that number: the University
of Michigan had 163 DEI staff, the University of Virginia and
the Ohio State University each had 94 DEI staff, and Virginia
Tech, the University of California Berkley, Stanford
University, the University of Illinois, and the University of
Maryland all had between 70 and 90 DEI personnel on campus.\16\
This hiring spree of DEI administrators further injures
students by deprioritizing hiring for other chronically
understaffed departments and offices. For example, the
University of Michigan has roughly 14 DEI staff for every one
person providing services to students with disabilities.\17\ An
updated 2024 analysis of the University of Michigan's DEI
office found there to be 241 paid DEI employees and that
payroll costs for those employees exceeding $30 million
annually.\18\ To put that amount in context, with that same
amount the University could instead cover in-state tuition for
over 1,700 undergraduate students. Further, DEI officers are
often paid at significantly higher rates than professors. For
example, the university's Chief Diversity Administrator has a
salary of $402,800, over two times the average salary of a
professor.\19\
---------------------------------------------------------------------------
\15\https://www.heritage.org/education/report/diversity-university-
dei-bloat-the-academy.
\16\Ibid.
\17\Ibid.
\18\https://www.thecollegefix.com/umich-now-has-more-than-500-jobs-
dedicated-to-dei-payroll-costs-exceed-30-million/. The institution
disputes the total number because some faculty are part-time and have
other responsibilities at the institution.
\19\Ibid.
---------------------------------------------------------------------------
ACCREDITORS' ROLE
Accreditation is a non-governmental peer review process
created by colleges and universities to review and improve the
academic quality of postsecondary institutions and programs.
Accreditors are voluntary, private organizations composed of
members from accredited schools. The postsecondary
accreditation system predates the Higher Education Act of 1965
(HEA), but within the HEA Congress required institutions to be
accredited by a nationally recognized accrediting agency or
association as a condition of receiving federal funding.\20\ In
order for an accreditor to assess institution quality for the
purposes of HEA funding, the accreditor must first be
recognized by the Department of Education (ED). Section 496 of
the HEA outlines the operating procedures accreditors must meet
before they can be a recognized accreditor.\21\ H.R. 3724
amends section 496(c) of the HEA to specifically require that
an accreditor confirm it has no standards in place to require,
encourage, or coerce an institution to support or oppose a
partisan or ideological litmus test. Additionally, accreditors
that wish to be recognized must renew recognition every five
years. Therefore, H.R. 3724 will ensure that accreditors
regularly confirm that no litmus test standards exist before
recognition is renewed, providing ongoing protection from
future attempts to push ideological standards on institutions.
---------------------------------------------------------------------------
\20\Higher Education Act of 1965, Pub. L. No. 89-329, Sec. 801.
\21\HEA Section 496(c).
---------------------------------------------------------------------------
Section 496 also outlines the process which institutions
must undergo to be recognized by an accreditor and the
requirements accreditors may hold institutions to maintain
their accreditation status. Accreditation of colleges and
universities generally serves the following two purposes:
assuring quality and fostering continuous improvement. The
federal government and the public rely on accreditation as a
signal that an accredited institution meets at least a minimum
standard of quality and that federal funds are flowing only to
credible, legitimate, and high-quality institutions.
Conversely, colleges and universities use the accreditation
process as a way to help shape and guide the continuous
improvement of their institutions and academic programs. There
are 10 statutory standards of accreditation that are most
commonly referenced when discussing what the law requires
accreditors to consider and require institutions to measure
themselves against. Accreditors, in coordination with their
member institutions, develop criteria around the required
statutory standards. To gain accreditation, an institution or
program must be evaluated through a number of steps outlined by
an accreditor. These procedures are guided, in part, by the
federal requirements in the HEA and by regulation; however, the
specific procedures for evaluation reviews adopted by
accreditation agencies vary by agency. Importantly, section
496(g) of the HEA also includes an ``elastic clause'' that
allows accreditors to impose additional conditions for HEA
Title IV eligibility.\22\ This provision has allowed
accreditors to impose many additional requirements on
institutions and is the authority that accreditors can assert
to create additional litmus test standards for institutions.
H.R. 3724 would close this loophole and confirm that neither
the Secretary nor the accreditor can require additional
standards for institutions to receive Title IV federal
financial aid not otherwise outlined in statute.
---------------------------------------------------------------------------
\22\Section 496(g).
---------------------------------------------------------------------------
DIVERSITY, EQUITY, AND INCLUSION IN ACCREDITATION
Colleges and universities are not the only postsecondary
education entities that push a required commitment to a
partisan ideology or viewpoint. Accreditors have begun
including a commitment to DEI as a required standard for
accreditation.\23\ For example, one of the largest formerly
regional accreditors, the Western Association for Schools and
Colleges, Senior College and University Commission (WSCUC),
includes in its standard for all institutions to develop their
institutional mission a requirement that the mission ``makes
explicit commitment to diversity, equity, and inclusion.''\24\
This is not an isolated instance: the only formerly regional
accreditor that does not have an explicit standard requiring
commitment to DEI is the Southern Association of Colleges and
Schools Commission on Colleges (SACSOC). But even SACSOC does
have a position statement supporting institutions that may want
to adopt DEI-based activities.\25\ Most concerning of all is
the extension of this new DEI priority to medical schools. The
Liaison Committee on Medical Education, a programmatic
accreditor, has been measuring the success of a medical school
by the identity of the faculty hired and whether or not the
medical school also requires the same type of identity-only
diversity of its student applicants.\26\ Standards such as this
should be scrutinized for the potential of racial
discrimination. While accreditors are self-governing
organizations in which standards are often adopted through a
participatory process involving input from the institution
members as a form of self-regulation, accreditors and member
institutions are still promoting a forced commitment to
ideologies like DEI, and any opposition to the adoption of
these standards is likely chilled or dismissed as a minority
view.
---------------------------------------------------------------------------
\23\https://www.chronicle.com/article/the-new-accountability.
\24\https://www.wscuc.org/handbook2023/#standards-of-accreditation.
\25\https://sacscoc.org/app/uploads/2019/08/DiversityStatement.pdf.
\26\https://www.bcm.edu/about-us/community-engagement-health-
equity/equity-and-inclusion-policies/accreditation.
---------------------------------------------------------------------------
Another example of conformity to the DEI agenda is found
throughout the accreditation hierarchy. The Council for Higher
Education Accreditation (CHEA) is a non-profit membership
organization of institutions and accreditors that has a
commitment to DEI. In CHEA's standards for accreditation
structure and organization, CHEA states that a recognized
accrediting organization should demonstrate that it manifests a
commitment to DEI. An example of such a commitment is the
inclusion of a value statement regarding DEI in an
institution's official mission statement and evidence of
integration of DEI in policies and procedures.\27\ In order to
be recognized by CHEA, an accreditor must meet this standard.
CHEA currently recognizes approximately 60 accreditors.\28\
With CHEA's influence, it is easy to understand how many
accreditors and thus institutions now are holding themselves to
DEI-based standards.
---------------------------------------------------------------------------
\27\https://www.chea.org/sites/default/files/other-content/
CHEA_Standards_and_Procedures_for _Recognition-FINAL.pdf.
\28\https://www.chea.org/about-recognition.
---------------------------------------------------------------------------
Because accreditors play such a prominent role in the
adoption of an ideological framework in postsecondary
education, H.R. 3724 rightly stops accreditors from continuing
to proliferate standards that require institutions to adopt or
commit to support or oppose any partisan, political,
ideological viewpoint or belief. H.R. 3724 also requires an
accreditor to confirm it does not have standards in place that
would cause an institution to support the disparate treatment
of any protected class. H.R. 3724 would provide appropriate
protections for religious institutions to be able to adhere to
their religious tenets. It is troubling that accreditors have
become enforcers of institutions' DEI standards but have not
made more progress in holding institutions accountable for
producing workforce-ready graduates. H.R. 3724 rejects
ideological and partisan agendas from being embedded into
postsecondary education and returns a focus on academic quality
to postsecondary education.
Conclusion
At every level of postsecondary education, administratively
powerful entities, such as institutions, accreditors, and large
postsecondary membership bodies that advise on accreditation,
have committed to and are coercing other postsecondary
institutions into adopting non-academic agendas, like DEI-based
standards or programs. The DEI Marxist framework should not be
forced on any institution. Partisan ideologies have no place in
postsecondary education, and H.R. 3724 would protect and
promote a return to academics instead of conformity to ideology
as a priority for universities and accreditors.
Summary
H.R. 3724 SECTION-BY-SECTION SUMMARY
The Accreditation for College Excellence (ACE) Act,
introduced by Representative Owens, prohibits accreditors from
mandating that institutions adopt DEI standards in order to
receive accreditation. Specifically, the ACE Act:
Section 1--Short title
Accreditation for College Excellence Act of
2023
Section 2--Prohibition on political litmus tests in accreditation of
institutions of higher education
Requires an accreditor to confirm that
standards do not require, encourage, or coerce an
institution to support or oppose specific partisan or
political beliefs or viewpoints on social or political
issues or to support the disparate treatment of any
individual or group;
Requires an accreditor to confirm that it
does not assess an institution's commitment to any
ideology, belief, or viewpoint for the purposes of
receiving accreditation for HEA funding;
Requires an accreditor to confirm that its
standards do not prohibit an institution from having a
religious mission and ability to require adherence with
religious practices or codes of conduct;
Ensures that an accreditor cannot require,
encourage, or coerce an institution to violate any
right protected by the Constitution; and
Closes the ``elastic clause'' loophole and
limits accreditors from requiring institutions to adopt
any additional standards for accreditation to receive
HEA funding.
Explanation of Amendments
The amendments, including the amendment in the nature of a
substitute, are explained in the body of this report.
Application of the Law to the Legislative Branch
Section 102(b)(3) of Public Law 104-1 requires a
description of the application of this bill to the legislative
branch. H.R. 3724 prohibits accrediting agencies from
requiring, encouraging, or coercing institutions of higher
education to meet political litmus tests or violate
constitutional rights as a condition of accreditation, and
therefore does not apply to the Legislative Branch.
Unfunded Mandate Statement
Pursuant to Section 423 of the Congressional Budget and
Impoundment Control Act of 1974, Public Law No. 93-344 (as
amended by Section 101(a)(2) of the Unfunded Mandates Reform
Act of 1995, Public Law No. 104-4), the Committee adopts as its
own the cost estimate prepared by the Director of the
Congressional Budget Office (CBO) pursuant to section 402 of
the Congressional Budget and Impoundment Control Act of 1974.
Earmark Statement
H.R. 3724 does not contain any congressional earmarks,
limited tax benefits, or limited tariff benefits as defined in
clause 9 of rule XXI of the Rules of the House of
Representatives.
Roll Call Votes
Clause 3(b) of rule XIII of the Rules of the House of
Representatives requires the Committee Report to include for
each record vote on a motion to report the measure or matter
and on any amendments offered to the measure or matter the
total number of votes for and against and the names of the
Members voting for and against.
Statement of General Performance Goals and Objectives
In accordance with clause (3)(c) of rule XIII of the Rules
of the House of Representatives, the goal of H.R. 3724 is to
prohibit recognized accrediting agencies and associations from
requiring or encouraging institutions of higher education to
meet political litmus tests or violate rights protected under
the Constitution as a condition of accreditation.
Duplication of Federal Programs
No provision of H.R. 3724 establishes or reauthorizes a
program of the Federal Government known to be duplicative of
another Federal program, a program that was included in any
report from the Government Accountability Office to Congress
pursuant to section 21 of Public Law 111-139, or a program
related to a program identified in the most recent Catalog of
Federal Domestic Assistance.
Statement of Oversight Findings and Recommendations of the Committee
In compliance with clause 3(c)(1) of rule XIII and clause
2(b)(1) of rule X of the Rules of the House of Representatives,
the Committee's oversight findings and recommendations are
reflected in the body of this report.
Required Committee Hearing
In compliance with clause 3(c)(6) of rule XIII of the Rules
of the House of Representatives the following hearing held
during the 118th Congress was used to develop or consider H.R.
3724: On March 29, 2023, the Subcommittee on Higher Education
and Workforce Development held a hearing entitled, ``Diversity
of Thought: Protecting Free Speech on College Campuses.''
New Budget Authority and CBO Cost Estimate
With respect to the requirements of clause 3(c)(2) of rule
XIII of the Rules of the House of Representatives and section
308(a) of the Congressional Budget Act of 1974 and with respect
to requirements of clause 3(c)(3) of rule XIII of the Rules of
the House of Representatives and section 402 of the
Congressional Budget Act of 1974, the Committee has received
the following estimate for H.R. 3724 from the Director of the
Congressional Budget Office:
H.R. 3724 would prohibit accrediting agencies from
requiring institutions of higher education to support or oppose
certain political or ideological beliefs as a criterion for
accreditation. The bill also would prevent those agencies from
denying accreditation to an institution of higher education
based on that institution's religious mission.
Accrediting agencies are private educational associations
that develop evaluation criteria and conduct peer evaluations
to assess whether institutions of higher education meet those
criteria. Generally, institutions must meet those criteria to
be accredited, and thus be eligible to participate in the
federal student aid programs.
In CBO's current baseline projections, we do not expect any
change in the number of schools that would be accredited with
respect to the criteria that would be prohibited in the bill.
On that basis, CBO estimates that enacting the bill would not
affect federal spending or revenues.
The CBO staff contact for this estimate is Margot Berman.
The estimate was reviewed by H. Samuel Papenfuss, Deputy
Director of Budget Analysis.
Phillip L. Swagel,
Director, Congressional Budget Office.
Committee Cost Estimate
Clause 3(d)(1) of rule XIII of the Rules of the House of
Representatives requires an estimate and a comparison of the
costs that would be incurred in carrying out H.R. 3400.
However, clause 3(d)(2)(B) of that rule provides that this
requirement does not apply when, as with the present report,
the Committee adopts as its own the cost estimate of the bill
prepared by the Director of the Congressional Budget Office
under section 402 of the Congressional Budget Act.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italics, and existing law in which no
change is proposed is shown in roman):
HIGHER EDUCATION ACT OF 1965
* * * * * * *
TITLE IV--STUDENT ASSISTANCE
* * * * * * *
PART H--PROGRAM INTEGRITY
* * * * * * *
Subpart 2--Accrediting Agency Recognition
SEC. 496. RECOGNITION OF ACCREDITING AGENCY OR ASSOCIATION.
(a) Criteria Required.--No accrediting agency or association
may be determined by the Secretary to be a reliable authority
as to the quality of education or training offered for the
purposes of this Act or for other Federal purposes, unless the
agency or association meets criteria established by the
Secretary pursuant to this section. The Secretary shall, after
notice and opportunity for a hearing, establish criteria for
such determinations. Such criteria shall include an appropriate
measure or measures of student achievement. Such criteria shall
require that--
(1) the accrediting agency or association shall be a
State, regional, or national agency or association and
shall demonstrate the ability and the experience to
operate as an accrediting agency or association within
the State, region, or nationally, as appropriate;
(2) such agency or association--
(A)(i) for the purpose of participation in
programs under this Act, has a voluntary
membership of institutions of higher education
and has as a principal purpose the accrediting
of institutions of higher education; or
(ii) for the purpose of participation in
other programs administered by the Department
of Education or other Federal agencies, has a
voluntary membership and has as its principal
purpose the accrediting of institutions of
higher education or programs;
(B) is a State agency approved by the
Secretary for the purpose described in
subparagraph (A); or
(C) is an agency or association that, for the
purpose of determining eligibility for student
assistance under this title, conducts
accreditation through (i) a voluntary
membership organization of individuals
participating in a profession, or (ii) an
agency or association which has as its
principal purpose the accreditation of programs
within institutions, which institutions are
accredited by another agency or association
recognized by the Secretary;
(3) if such agency or association is an agency or
association described in--
(A) subparagraph (A)(i) of paragraph (2),
then such agency or association is separate and
independent, both administratively and
financially of any related, associated, or
affiliated trade association or membership
organization;
(B) subparagraph (B) of paragraph (2), then
such agency or association has been recognized
by the Secretary on or before October 1, 1991;
or
(C) subparagraph (C) of paragraph (2) and
such agency or association has been recognized
by the Secretary on or before October 1, 1991,
then the Secretary may waive the requirement
that such agency or association is separate and
independent, both administratively and
financially of any related, associated, or
affiliated trade association or membership
organization upon a demonstration that the
existing relationship has not served to
compromise the independence of its
accreditation process;
(4)(A) such agency or association consistently
applies and enforces standards that respect the stated
mission of the institution of higher education,
including religious missions, and that ensure that the
courses or programs of instruction, training, or study
offered by the institution of higher education,
including distance education or correspondence courses
or programs, are of sufficient quality to achieve, for
the duration of the accreditation period, the stated
objective for which the courses or the programs are
offered; and
(B) if such agency or association has or seeks to
include within its scope of recognition the evaluation
of the quality of institutions or programs offering
distance education or correspondence education, such
agency or association shall, in addition to meeting the
other requirements of this subpart, demonstrate to the
Secretary that--
(i) the agency or association's standards
effectively address the quality of an
institution's distance education or
correspondence education in the areas
identified in paragraph (5), except that--
(I) the agency or association shall
not be required to have separate
standards, procedures, or policies for
the evaluation of distance education or
correspondence education institutions
or programs in order to meet the
requirements of this subparagraph; and
(II) in the case that the agency or
association is recognized by the
Secretary, the agency or association
shall not be required to obtain the
approval of the Secretary to expand its
scope of accreditation to include
distance education or correspondence
education, provided that the agency or
association notifies the Secretary in
writing of the change in scope; and
(ii) the agency or association requires an
institution that offers distance education or
correspondence education to have processes
through which the institution establishes that
the student who registers in a distance
education or correspondence education course or
program is the same student who participates in
and completes the program and receives the
academic credit;
(5) the standards for accreditation of the agency or
association assess the institution's--
(A) success with respect to student
achievement in relation to the institution's
mission, which may include different standards
for different institutions or programs, as
established by the institution, including, as
appropriate, consideration of State licensing
examinations, consideration of course
completion, and job placement rates;
(B) curricula;
(C) faculty;
(D) facilities, equipment, and supplies;
(E) fiscal and administrative capacity as
appropriate to the specified scale of
operations;
(F) student support services;
(G) recruiting and admissions practices,
academic calendars, catalogs, publications,
grading and advertising;
(H) measures of program length and the
objectives of the degrees or credentials
offered;
(I) record of student complaints received by,
or available to, the agency or association; and
(J) record of compliance with its program
responsibilities under title IV of this Act
based on the most recent student loan default
rate data provided by the Secretary, the
results of financial or compliance audits,
program reviews, and any such other information
as the Secretary may provide to the agency or
association;
except that subparagraphs (A), (H), and (J) shall not
apply to agencies or associations described in
paragraph (2)(A)(ii) of this subsection;
(6) such an agency or association shall establish and
apply review procedures throughout the accrediting
process, including evaluation and withdrawal
proceedings, which comply with due process procedures
that provide--
(A) for adequate written specification of--
(i) requirements, including clear
standards for an institution of higher
education or program to be accredited;
and
(ii) identified deficiencies at the
institution or program examined;
(B) for sufficient opportunity for a written
response, by an institution or program,
regarding any deficiencies identified by the
agency or association to be considered by the
agency or association--
(i) within a timeframe determined by
the agency or association; and
(ii) prior to final action in the
evaluation and withdrawal proceedings;
(C) upon the written request of an
institution or program, for an opportunity for
the institution or program to appeal any
adverse action under this section, including
denial, withdrawal, suspension, or termination
of accreditation, taken against the institution
or program, prior to such action becoming final
at a hearing before an appeals panel that--
(i) shall not include current members
of the agency's or association's
underlying decisionmaking body that
made the adverse decision; and
(ii) is subject to a conflict of
interest policy;
(D) for the right to representation and
participation by counsel for an institution or
program during an appeal of the adverse action;
(E) for a process, in accordance with written
procedures developed by the agency or
association, through which an institution or
program, before a final adverse action based
solely upon a failure to meet a standard or
criterion pertaining to finances, may on one
occasion seek review of significant financial
information that was unavailable to the
institution or program prior to the
determination of the adverse action, and that
bears materially on the financial deficiencies
identified by the agency or association;
(F) in the case that the agency or
association determines that the new financial
information submitted by the institution or
program under subparagraph (E) meets the
criteria of significance and materiality
described in such subparagraph, for
consideration by the agency or association of
the new financial information prior to the
adverse action described in such subparagraph
becoming final; and
(G) that any determination by the agency or
association made with respect to the new
financial information described in subparagraph
(E) shall not be separately appealable by the
institution or program;
(7) such agency or association shall notify the
Secretary and the appropriate State licensing or
authorizing agency within 30 days of the accreditation
of an institution or any final denial, withdrawal,
suspension, or termination of accreditation or
placement on probation of an institution, together with
any other adverse action taken with respect to an
institution; and
(8) such agency or association shall make available
to the public, upon request, and to the Secretary, and
the State licensing or authorizing agency a summary of
any review resulting in a final accrediting decision
involving denial, termination, or suspension of
accreditation, together with the comments of the
affected institution.
(b) Separate and Independent Defined.--For the purpose of
subsection (a)(3), the term ``separate and independent'' means
that--
(1) the members of the postsecondary education
governing body of the accrediting agency or association
are not elected or selected by the board or chief
executive officer of any related, associated, or
affiliated trade association or membership
organization;
(2) among the membership of the board of the
accrediting agency or association there shall be one
public member (who is not a member of any related trade
or membership organization) for each six members of the
board, with a minimum of one such public member, and
guidelines are established for such members to avoid
conflicts of interest;
(3) dues to the accrediting agency or association are
paid separately from any dues paid to any related,
associated, or affiliated trade association or
membership organization; and
(4) the budget of the accrediting agency or
association is developed and determined by the
accrediting agency or association without review or
resort to consultation with any other entity or
organization.
(c) Operating Procedures Required.--No accrediting agency or
association may be recognized by the Secretary as a reliable
authority as to the quality of education or training offered by
an institution seeking to participate in the programs
authorized under this title, unless the agency or association--
(1) performs, at regularly established intervals, on-
site inspections and reviews of institutions of higher
education (which may include unannounced site visits)
with particular focus on educational quality and
program effectiveness, and ensures that accreditation
team members are well-trained and knowledgeable with
respect to their responsibilities, including those
regarding distance education;
(2) monitors the growth of programs at institutions
that are experiencing significant enrollment growth;
(3) requires an institution to submit for approval to
the accrediting agency a teach-out plan upon the
occurrence of any of the following events:
(A) the Department notifies the accrediting
agency of an action against the institution
pursuant to section 487(f);
(B) the accrediting agency acts to withdraw,
terminate, or suspend the accreditation of the
institution; or
(C) the institution notifies the accrediting
agency that the institution intends to cease
operations;
(4) requires that any institution of higher education
subject to its jurisdiction which plans to establish a
branch campus submit a business plan, including
projected revenues and expenditures, prior to opening
the branch campus;
(5) agrees to conduct, as soon as practicable, but
within a period of not more than 6 months of the
establishment of a new branch campus or a change of
ownership of an institution of higher education, an on-
site visit of that branch campus or of the institution
after a change of ownership;
(6) requires that teach-out agreements among
institutions are subject to approval by the accrediting
agency or association consistent with standards
promulgated by such agency or association;
(7) makes available to the public and the State
licensing or authorizing agency, and submits to the
Secretary, a summary of agency or association actions,
including--
(A) the award of accreditation or
reaccreditation of an institution;
(B) final denial, withdrawal, suspension, or
termination of accreditation of an institution,
and any findings made in connection with the
action taken, together with the official
comments of the affected institution; and
(C) any other adverse action taken with
respect to an institution or placement on
probation of an institution;
(8) discloses publicly whenever an institution of
higher education subject to its jurisdiction is being
considered for accreditation or reaccreditation; [and]
(9) confirms, as a part of the agency's or
association's review for accreditation or
reaccreditation, that the institution has transfer of
credit policies--
(A) that are publicly disclosed; and
(B) that include a statement of the criteria
established by the institution regarding the
transfer of credit earned at another
institution of higher education[.]; and
(10) confirms that the standards for accreditation of
the agency or association do not--
(A) except as provided in subparagraph (B)--
(i) require, encourage, or coerce any
institution to--
(I) support, oppose, or
commit to supporting or
opposing--
(aa) a specific
partisan, political, or
ideological viewpoint
or belief or set of
such viewpoints or
beliefs; or
(bb) a a specific
viewpoint or belief or
set of viewpoints or
beliefs on social,
cultural, or political
issues; or
(II) support or commit to
supporting the disparate
treatment of any individual or
group of individuals on the
basis of any protected class
under Federal civil rights law,
except as required by Federal
law or a court order; or
(ii) assess an institution's or
program of study's commitment to any
ideology, belief, or viewpoint;
(B) prohibit an institution--
(i) from having a religious mission,
operating as a religious institution,
or being controlled by a religious
organization (in a manner described in
paragraph (1), (2), (3), (4), (5), or
(6) of section 106.12(c) of title 34,
Code of Federal Regulations (as in
effect on the date of the enactment of
this paragraph)), or from requiring an
applicant, student, employee, or
independent contractor (such as an
adjunct professor) of such an
institution to--
(I) provide or adhere to a
statement of faith; or
(II) adhere to a code of
conduct consistent with the
stated religious mission of
such institution or the
religious tenets of such
organization; or
(ii) from requiring an applicant,
student, employee, or contractor to
take an oath to uphold the Constitution
of the United States; or
(C) require, encourage, or coerce an
institution of higher education to violate any
right protected by the Constitution.
(d) Length of Recognition.--No accrediting agency or
association may be recognized by the Secretary for the purpose
of this Act for a period of more than 5 years.
(e) Initial Arbitration Rule.--The Secretary may not
recognize the accreditation of any institution of higher
education unless the institution of higher education agrees to
submit any dispute involving the final denial, withdrawal, or
termination of accreditation to initial arbitration prior to
any other legal action.
(f) Jurisdiction.--Notwithstanding any other provision of
law, any civil action brought by an institution of higher
education seeking accreditation from, or accredited by, an
accrediting agency or association recognized by the Secretary
for the purpose of this title and involving the denial,
withdrawal, or termination of accreditation of the institution
of higher education, shall be brought in the appropriate United
States district court.
[(g) Limitation on Scope of Criteria.--Nothing in this Act
shall be construed to permit the Secretary to establish
criteria for accrediting agencies or associations that are not
required by this section. Nothing in this Act shall be
construed to prohibit or limit any accrediting agency or
association from adopting additional standards not provided for
in this section. Nothing in this section shall be construed to
permit the Secretary to establish any criteria that specifies,
defines, or prescribes the standards that accrediting agencies
or associations shall use to assess any institution's success
with respect to student achievement.]
(g) Limitation on Scope of Criteria.--
(1) In general.--The Secretary shall not establish
criteria for accrediting agencies or associations that
are not required by this section.
(2) Institutional eligibility.--An institution of
higher education shall be eligible for participation in
programs under this title if the institution is in
compliance with the standards of its accrediting agency
or association that assess the institution in
accordance with subsection (a)(5), regardless of any
additional standards adopted by the agency or
association for purposes unrelated to participation in
programs under this title.
(h) Change of Accrediting Agency.--The Secretary shall not
recognize the accreditation of any otherwise eligible
institution of higher education if the institution of higher
education is in the process of changing its accrediting agency
or association, unless the eligible institution submits to the
Secretary all materials relating to the prior accreditation,
including materials demonstrating reasonable cause for changing
the accrediting agency or association.
(i) Dual Accreditation Rule.--The Secretary shall not
recognize the accreditation of any otherwise eligible
institution of higher education if the institution of higher
education is accredited, as an institution, by more than one
accrediting agency or association, unless the institution
submits to each such agency and association and to the
Secretary the reasons for accreditation by more than one such
agency or association and demonstrates to the Secretary
reasonable cause for its accreditation by more than one agency
or association. If the institution is accredited, as an
institution, by more than one accrediting agency or
association, the institution shall designate which agency's
accreditation shall be utilized in determining the
institution's eligibility for programs under this Act.
(j) Impact of Loss of Accreditation.--An institution may not
be certified or recertified as an institution of higher
education under section 102 and subpart 3 of this part or
participate in any of the other programs authorized by this Act
if such institution--
(1) is not currently accredited by any agency or
association recognized by the Secretary;
(2) 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
(3) has withdrawn from accreditation voluntarily
under a show cause or suspension order during the
preceding 24 months, unless such order has been
rescinded by the same accrediting agency.
(k) Religious Institution Rule.--Notwithstanding subsection
(j), the Secretary shall allow an institution that has had its
accreditation withdrawn, revoked, or otherwise terminated, or
has voluntarily withdrawn from an accreditation agency, to
remain certified as an institution of higher education under
section 102 and subpart 3 of this part for a period sufficient
to allow such institution to obtain alternative accreditation,
if the Secretary determines that the reason for the withdrawal,
revocation, or termination--
(1) is related to the religious mission or
affiliation of the institution; and
(2) is not related to the accreditation criteria
provided for in this section.
(l) Limitation, Suspension, or Termination of Recognition.--
(1) If the Secretary determines that an accrediting agency or
association has failed to apply effectively the criteria in
this section, or is otherwise not in compliance with the
requirements of this section, the Secretary shall--
(A) after notice and opportunity for a hearing,
limit, suspend, or terminate the recognition of the
agency or association; or
(B) require the agency or association to take
appropriate action to bring the agency or association
into compliance with such requirements within a
timeframe specified by the Secretary, except that--
(i) such timeframe shall not exceed 12 months
unless the Secretary extends such period for
good cause; and
(ii) if the agency or association fails to
bring the agency or association into compliance
within such timeframe, the Secretary shall,
after notice and opportunity for a hearing,
limit, suspend, or terminate the recognition of
the agency or association.
(2) The Secretary may determine that an accrediting agency or
association has failed to apply effectively the standards
provided in this section if an institution of higher education
seeks and receives accreditation from the accrediting agency or
association during any period in which the institution is the
subject of any interim action by another accrediting agency or
association, described in paragraph (2)(A)(i), (2)(B), or
(2)(C) of subsection (a) of this section, leading to the
suspension, revocation, or termination of accreditation or the
institution has been notified of the threatened loss of
accreditation, and the due process procedures required by such
suspension, revocation, termination, or threatened loss have
not been completed.
(m) Limitation on the Secretary's Authority.--The Secretary
may only recognize accrediting agencies or associations which
accredit institutions of higher education for the purpose of
enabling such institutions to establish eligibility to
participate in the programs under this Act or which accredit
institutions of higher education or higher education programs
for the purpose of enabling them to establish eligibility to
participate in other programs administered by the Department of
Education or other Federal agencies.
(n) Independent Evaluation.--(1) The Secretary shall conduct
a comprehensive review and evaluation of the performance of all
accrediting agencies or associations which seek recognition by
the Secretary in order to determine whether such accrediting
agencies or associations meet the criteria established by this
section. The Secretary shall conduct an independent evaluation
of the information provided by such agency or association. Such
evaluation shall include--
(A) the solicitation of third-party information
concerning the performance of the accrediting agency or
association; and
(B) site visits, including unannounced site visits as
appropriate, at accrediting agencies and associations,
and, at the Secretary's discretion, at representative
member institutions.
(2) The Secretary shall place a priority for review of
accrediting agencies or associations on those agencies or
associations that accredit institutions of higher education
that participate most extensively in the programs authorized by
this title and on those agencies or associations which have
been the subject of the most complaints or legal actions.
(3) The Secretary shall consider all available relevant
information concerning the compliance of the accrediting agency
or association with the criteria provided for in this section,
including any complaints or legal actions against such agency
or association. In cases where deficiencies in the performance
of an accreditation agency or association with respect to the
requirements of this section are noted, the Secretary shall
take these deficiencies into account in the recognition
process. The Secretary shall not, under any circumstances, base
decisions on the recognition or denial of recognition of
accreditation agencies or associations on criteria other than
those contained in this section. When the Secretary decides to
recognize an accrediting agency or association, the Secretary
shall determine the agency or association's scope of
recognition. If the agency or association reviews institutions
offering distance education courses or programs and the
Secretary determines that the agency or association meets the
requirements of this section, then the agency shall be
recognized and the scope of recognition shall include
accreditation of institutions offering distance education
courses or programs.
(4) The Secretary shall maintain sufficient documentation to
support the conclusions reached in the recognition process,
and, if the Secretary does not recognize any accreditation
agency or association, shall make publicly available the reason
for denying recognition, including reference to the specific
criteria under this section which have not been fulfilled.
(o) Regulations.--The Secretary shall by regulation provide
procedures for the recognition of accrediting agencies or
associations and for the appeal of the Secretary's decisions.
Notwithstanding any other provision of law, the Secretary shall
not promulgate any regulation with respect to the standards of
an accreditation agency or association described in subsection
(a)(5).
(p) Rule of Construction.--Nothing in subsection (a)(5) shall
be construed to restrict the ability of--
(1) an accrediting agency or association to set, with
the involvement of its members, and to apply,
accreditation standards for or to institutions or
programs that seek review by the agency or association;
or
(2) an institution to develop and use institutional
standards to show its success with respect to student
achievement, which achievement may be considered as
part of any accreditation review.
(q) Review of Scope Changes.--The Secretary shall require a
review, at the next available meeting of the National Advisory
Committee on Institutional Quality and Integrity, of any change
in scope undertaken by an agency or association under
subsection (a)(4)(B)(i)(II) if the enrollment of an institution
that offers distance education or correspondence education that
is accredited by such agency or association increases by 50
percent or more within any one institutional fiscal year.
* * * * * * *
MINORITY VIEWS
INTRODUCTION
H.R. 3724, the Accreditation for College Excellence Act of
2023, amends the Higher Education Act of 1965 (HEA) in ways
Committee Democrats firmly believe will lower the quality of
higher education. The bill proposes changes to the standards
under which accrediting bodies determine the quality of
institutions of higher education. These changes are solutions
in search of problems. The provisions in this bill are largely
a rehash of proposals the Committee marked up earlier this
session in H.R. 6951, the so-called College Cost Reduction Act,
which the Committee passed on a party-line vote.\1\ They were
bad policy then, and remain so now.
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\1\The majority provided no rationale as to why they chose to mark
up nearly identical language less than two months after its initial
consideration by the Committee. However, the use of Committee time to
consider a bill with no meaningful chance of consideration or passage
in the Senate, let alone approval by the President is what explains the
fact that the analysis that follows largely mirrors that which will
appear in forthcoming minority views on H.R. 6951.
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BACKGROUND
Current law mandates operating procedures that any
accrediting agency seeking federal recognition must follow when
making determinations of school or program quality.\2\ The
procedures currently mandated by HEA are designed to ensure
accreditors are monitoring schools in a timely and common sense
fashion to ensure quality. This includes conducting ad hoc
supervision as needed when schools create new programs or
expand to new campuses, ensuring schools have policies around
the transfer of credit that students are aware of, and that
schools have plans in place to support students completing
their education in the event of loss of accreditation.\3\
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\2\Higher Education Act of 1965, Sec. 496, 20 U.S.C. 1099b.
\3\Id.
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``Litmus Tests''
On its face, H.R. 3724 makes slight modifications to the
requirements HEA places on federally recognized accrediting
agencies. First, the bill adds a provision\4\ under which
accrediting agencies must confirm that they do not require or
entice a school to take a stance on any ``specific partisan,
political, or ideological viewpoint or belief or set of such
viewpoints and beliefs.''\5\ At markup, Chairwoman Virginia
Foxx (R-NC) stated this provision ``ensures colleges are not
forced to commit to the principles of DEI to receive
accreditation.''\6\
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\4\H.R. 6951, Sec. 311(c)(5). This same provision is titled the
``Prohibition on Litmus Tests'' in H.R. 6951, the College Cost
Reduction Act. Although this phrase does not appear in H.R. 3724, this
provision is nearly identical to the ``Prohibition on Litmus Tests''
provision included in H.R. 6951, marked up by the Committee on Jan. 31,
2024.
\5\H.R. 3724, Sec. 2(a)(3).
\6\Press Release, H. Comm. on Educ. & the Workforce, Chairwoman
Foxx Delivers Opening Remarks at Markup to Bolster Workforce and
Advance Academic Freedom, Mar. 21, 2024, https://edworkforce.house.gov/
news/documentsingle.aspx?DocumentID=410332.
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Diversity, Equity, and Inclusion (DEI) programs on college
campuses are designed with the recognition that most college
campuses are currently serving students from demographics they
were not initially designed to serve. While no two DEI programs
are identical, The Century Foundation has provided a broad
definition of the three key terms as they are used in practice
on college campuses.
Diversity refers to the range of different identities
within a particular space, whether it is based on race,
gender identification, sexual orientation, or other
factors; organizations seeking diversity value having a
community that represents humanity across the full
range of identities. Equity refers to the allocation of
an adequate amount of attention and/or resources toward
each identity to ensure that all groups can reach a
similar outcome; an organization seeking equity would
counter a community member's disadvantage by allocating
more resources and support toward that person. Finally,
inclusion refers to an organization's policies that
ensure its overall culture is welcoming to all
identities; an organization seeking inclusion could
create rules for conducting meetings or guidelines for
what would be considered inappropriate conversations .
. . DEI programs in colleges and universities aim to
create a campus culture that values and celebrates all
students' diverse life experiences and cultural
backgrounds. The central values of DEI are to ensure
equal access to success in higher education and provide
extra resources to specific populations to achieve
success standards similar to their peers. Universities
must provide adequate resources and tools for students
from different backgrounds to excel, considering
historical circumstances that often hindered their
access to higher education. In short, DEI programs
strive to foster an inclusive and equitable educational
environment for all students.\7\
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\7\Jordan Nellums, Universities Need to Mount and Offensive for
Diversity, Equity, and Inclusion, The Century Foundation, Aug. 17,
2023, https://tcf.org/content/commentary/universities-need-to-mount-an-
offensive-for-diversity-equity-and-inclusion/. For a thorough debunking
of the myths surrounding DEI, and a direct refutation of much of the
anti-DEI rhetoric espoused in Committee proceedings during the 118th
Congress, see USC Race & Equity Ctr., Truths About DEI on College
Campuses, 2024, https://race.usc.edu/wp-content/uploads/2024/03/Harper-
and- Associates-DEI-Truths-Report.pdf.
Republicans have not wasted a chance to denounce DEI
initiatives in industry, governmental, and educational
settings. For example, the ruling in the Havard and UNC
affirmative action cases--in no way related to DEI--has been
used as pretext for many Republicans to declare all DEI
initiatives unconstitutional. Thirteen Republican state
attorneys general wrote a joint letter to the CEOs of the
Fortune 100 companies stating that ``diversity, equity, and
inclusion'' (DEI) efforts may amount to ``overt and pervasive
racial discrimination . . . [that] violates both state and
federal law.''\8\ This initial insistence of DEI's prima facie
illegality has diminished as more states have passed laws to
actually prohibit DEI programs in higher education--laws that
would arguably be unnecessary if those initial claims of DEI
illegality were true.\9\ And in the most absurd sign of
irrationality toward DEI, Republican state officials have taken
to claiming DEI efforts are the cause of any and all societal
ills including school fights, airplane malfunctions, and the
collision of a container ship with a bridge and its subsequent
collapse.\10\
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\8\Letter from Kris Kobach, Atty. Gen. of Kan. & 12 other State
Attys. Gen. to the CEOs of the Fortune 100 Companies (July 13, 2023),
https://ago.mo.gov/wp-content/uploads/corporate-
racial-discrimination-multistate.pdf.
\9\DEI Legislation Tracker, Chron. of Higher Educ., https://
www.chronicle.com/article/here-are-the-states-where-lawmakers-are-
seeking-to-ban-colleges-dei-efforts?sra=true (last visited Mar. 29,
2024).
\10\Summer Ballentine, Missouri attorney general is accused of
racial bias for pinning a student fight on diversity program,
Associated Press, Mar. 26, 2024; Ayana Archie, The Texas attorney
general is investigating a supplier of Boeing 737 parts, Nat'l. Pub.
Radio, Mar. 29, 2024 (``Paxton's office will be requesting documents
related to `the company's organization, conduct and management,' as
well as its diversity, equity, and inclusion (DEI) practices to examine
`whether those commitments are unlawful or are compromising the
company's manufacturing processes,'''); Erin Alberty, Utah lawmaker
blames DEI for Baltimore bridge collapse despite cargo ship collision,
Axios, Mar. 27, 2024.
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H.R. 3724 also prohibits an accrediting agency from
requiring, encouraging, or coercing schools to ``support or
commit to supporting the disparate treatment of any individual
or group of individuals on the basis of any protected class
under Federal civil rights law, except as required by Federal
law or a court order''.\11\ This statement only makes sense in
a context where one believes DEI programs result in such
disparate treatment. This is counter to what DEI programs are
designed to do, which is to make campuses welcoming
environments for all students.\12\
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\11\H.R. 3724, Sec. 2(a)(3).
\12\USC Race & Equity Ctr., supra note 6, at 49 (``Claims that DEI
programs mandate racial bias education or promote unequal treatment of
individuals are unfounded and ignore many of the core principles of
DEI, which are addressing systemic barriers to equity and ensuring that
all individuals have equal opportunities to succeed.'').
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In a recent article examining this issue, the Chronicle of
Higher Education found that while accreditors are examining
college DEI policies as part of their assessment, that
examination is largely focused on determining whether schools
are living up to what the universities themselves are claiming
they are doing.\13\ For example the article cites Cal Lutheran,
a school whose accreditor raised concerns around their
treatment of faculty of color (30% of the school's
instructional staff) and the school's outcomes measures for
varying student populations. The school's President was quoted
as saying the school was not taking action ``. . . because [the
accreditor] says we have to, . . . . [W]e're doing it because
it's the right thing to do and it's mission-driven.''\14\
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\13\Eric Kelderman, The New Accountability: How accreditors are
measuring colleges' diversity, equity, and inclusion efforts, The
Chronicle of Higher Education, Apr. 3, 2023, https://www.chronicle.com/
article/the-new-accountability (``Today, six out of the seven major
institutional accreditors are developing ways to assess how colleges
serve historically underrepresented students, by examining
institutions' mission statements, the disparate outcomes between white
students and students of color, the diversity of their faculties, and
testimonies of community members about discrimination they face at the
colleges.'')
\14\Id.
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Absent any evidence that accreditors are denying schools
accreditation based on DEI policies, the question occurs as to
why are these provisions in H.R. 3724 necessary? Committee
Democrats believe the litmus test provision's desired effects
are two-fold.
Republicans have long sought to politicize the academy and
blur the lines between academic theory, research, scientific
method, political viewpoints, and belief.\15\ H.R. 3724's first
effect will be to further this effort by inserting this
blurring of lines directly into the assessment of academic
quality of a school's programs itself. Any academic discipline
that includes a ``controversial'' view could be one that
accreditors fear assessing, lest they run afoul of this
provision. Accreditors are further refrained from assessing an
institution or program of study's commitment to any ideology,
belief, or viewpoint.\16\ For example, if H.R. 3724 became law,
would a program accreditor, in assessing the quality of a
university environmental science program, be forced to ignore
that the program banned the teaching of the consensus
scientific belief that man-made climate change is real because
it was seen as ``political'' or merely a ``viewpoint''? The
litmus test provision will result in a chilling effect setting
in among accreditors, scaring them from taking an honest look
at a school's claims as to its mission or the quality its
programs, for fear they may wade into waters that could be
considered ``controversial''.
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\15\E.g., Luke Jones, Ohio bill would ban colleges from discussing
diversity, climate change, WKRC, May 8, 2023, https://dayton247now.com/
news/local/ohio-bill-would-ban-colleges-discussing-diversity-climate-
change-senate-bill-sb-83-controversial-topics-banned-public-private-
universities-schools-inclusion-equity-illegal-topics-chinese-
government-schools-cincinnati-ohio; Columbia L. Sch., Sabin Ctr. for
Climate Change L., Silencing Science Tracker, https://climate.
law.columbia.edu/content/silencing-science-tracker.
\16\H.R. 3724, Sec. 2(a)(3).
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Second, the litmus test provisions will dissuade
accreditors from making any assessment of what a school
purports to do in the field of DEI. This will allow schools to
stand up Potemkin DEI policies that promise an institutional
focus on creating a campus welcoming to all, knowing full well
their accreditor will not actually hold them accountable for
these policies. As the racial demographics of college students
continue to diversify,\17\ this could result in students
attending schools that claim to welcome them, only to find
those claims have never been verified.
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\17\See, e.g., Audrey Williams June, As America Grows More Diverse,
a State's Colleges Follow Suit, Chron. of Higher Educ., Sept. 7, 2021.
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Religious Institutions
The second half of H.R. 3724 focuses on accreditation for
religious colleges and universities. Religiously affiliated
institutions of higher education have been a part of our nation
since its early beginnings.\18\ Data from Integrated
Postsecondary Education Data System shows that during the 2022-
2023 Academic Year, 14.5 percent of U.S. institutions of higher
education were religiously affiliated.\19\ And though the total
number of higher education institutions fell by 14.4 percent
from 2010 to 2020, the number of religiously affiliated
institutions fell only 3.3 percent during this same time
period.\20\
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\18\Jessica Rose Daniels & Jacqueline N. Gustafson, Faith-Based
Institutions, Institutional Mission, and the Public Good, High. Learn.
Res. Commun., https://files.eric.ed.gov/fulltext/EJ1132798.pdf (last
visited on Feb. 12, 2024).
\19\U.S. Dep't of Educ., Integrated Postsecondary Education Data
System (IPEDS), Data Collection 2022 for Title IV-participating IHEs
with a Religious affiliation.
\20\Ricardo Azziz, Are Faith-Based Colleges in Trouble? It
Depends., Higher Ed Dive (Aug. 14, 2023), https://www.highereddive.com/
news/are-faith-based-colleges-in-trouble-it-depends/690597/.
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Under current law, accreditors must consistently apply and
enforce standards that respect an institution's mission,
including its religious mission, by basing decisions only on
the standards of accreditation.\21\ Current regulations also
already provide certain safeguards for the missions of
religious institutions while still maintaining the authority of
accreditors to require that curricula at such institutions meet
core components. Specifically, regulations state that an agency
meets its obligations related to consistency in decision-
making, if an accrediting agency
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\21\20 U.S.C. Sec. 1099b(a)(4); 34 C.F.R. Sec. Sec. 600.18(a)-
(b)(3).
Bases decisions regarding accreditation and
preaccreditation on the agency's published standards
and does not use as a negative factor the institution's
religious mission-based policies, decisions, and
practices [in the following areas: (1) curricula; (2)
faculty, (3) faculties, equipment, and supplies; (4)
student support services; (5) recruiting and admissions
practices, academic calendars, catalogs, publicans,
grading, and advertising] provided, however, that the
agency may require that the institution's or program's
curricula include all core components required by the
agency.\22\
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\22\34 C.F.R. Sec. 602.18(b)(3) (emphasis added).
Thus, current regulations already restrict accrediting
agencies from interfering in a religious institution's
religious mission and operations in several areas, while
importantly affirming the continued authority of accrediting
agencies to ensure institutions meet required core curricula
components. It should be noted that the regulations mentioned
above were promulgated by the Trump administration in 2019, and
the U.S. Department of Education acknowledged, at that time, it
had ``not received any formal complaints about an institution's
negative treatment during the accreditation process because of
its adherence to a religious mission.''\23\
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\23\Student Assistance General Provisions, The Secretary's
Recognition of Accrediting Agencies, The Secretary's Recognition of
Procedures for State Agencies, 84 Fed. Reg. 58834, 58861 (Nov. 1, 2019)
(codified at 34 C.F.R. Parts 600, 602, 603, 654, 668, and 674).
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In contrast, H.R. 3724 proposes to protect the religious
mission and operations of religious institutions without
including that second vital policy piece: ensuring that
accrediting agencies maintain the authority to require
institutions to meet their curriculum standards. Moreover, H.R.
3724 is the second proposal considered by this Committee in
several weeks to weaken the accreditation process specifically
for religious institutions. H.R. 6951, the College Cost
Reduction Act, as passed by the Committee in January, proposed
a sweeping exemption allowing religious institutions to skirt
accreditation standards for core curricula requirements when
those standards were not consistent with the institution's
religious mission.\24\ Taken together, these legislative
proposals could undermine the accreditation process and
potentially mislead students that their chosen program of study
meets the stated accreditation standards without exception. As
a result, students may not be aware if they are not being
instructed in the core curriculum for their chosen program of
study. Committee Democrats believe that students have a
fundamental right to know if their program of study does not
meet accreditation standards. Under H.R. 3724, building upon
the already-reported H.R. 6951, students at religious
institutions may not be afforded the opportunity to learn what
other students in their field do, putting them at an unrealized
disadvantage when entering the workforce.
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\24\The College Cost Reduction Act, H.R. 6951, 118th Congress (as
reported by the Committee on Education and the Workforce, January 31,
2024).
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In summation, H.R. 3724 fails to preserve the important
function of accreditors to confirm that programs of study meet
stated core curricula standards. Since religious institutions
are currently able to execute the requirements of the law to
meet accreditation standards while maintaining their religious
identities, in addition to the fact that the current system
works for schools, the provisions in H.R. 3724 are a solution
in search of a problem.
DEMOCRATIC AMENDMENTS OFFERED DURING MARKUP OF H.R. 3724
Committee Democrats felt strongly the provisions of H.R.
3724 were antithetical to the determination of quality in
higher education, so there was little that could be done to
improve upon the bill. However, we recognized a need to ensure
that schools that relied upon new loopholes in quality
assessment had to do so in a transparent manner. To that end,
Rep. Suzanne Bonamici (D-OR) offered the one Democratic
amendment to H.R. 3724. That amendment would require an
institution that sought exemption from core curricula
components required by an accrediting agency to publicly
disclose that information to students and faculty. The
amendment merely required a school to tell its students and
faculty that it had sought and received an exemption from
required core curricula and provide a description of those
affected core curricula components. The amendment failed on a
party line vote.
CONCLUSION
If enacted into law, H.R. 3724 will do nothing to improve
the quality of higher education in America, and all serious
analysis suggests the result will be exactly the opposite. For
this and the reasons stated above, Committee Democrats
unanimously opposed H.R. 3724 when the Committee on Education
and the Workforce considered it on March 21, 2024. We strongly
urge the House of Representatives to do the same.
Robert C. ``Bobby'' Scott, Ranking
Member.
Joe Courtney,
Gregorio Kilili Camacho Sablan,
Suzanne Bonamici,
Mark Takano,
Alma S. Adams,
Mark DeSaulnier,
Members of Congress.
