Is the Department of Education’s Radical New Accreditation Plan Actually Illegal?

The same section of the Higher Education Act that their predecessors ignored for decades is most likely being reviewed by attorneys somewhere in a conference room at a regional accrediting body. The purpose of the statute, particularly §1099b, is to maintain a distance between the federal government and the organizations that determine which colleges and universities are eligible for federal student aid. After a Republican senator from Tennessee spent years fearing that Washington would try to use accreditors as political tools, it was written with purpose. It looks like that day might have come.

In April 2025, President Trump issued an executive order directing the Secretary of Education to reform the accreditation system. The order threatened to deny, suspend, or terminate recognition to accreditors who apply what the administration claims are discriminatory DEI-based standards. The order directed the attorney general and the education secretary to decide whether to take legal action against the American Bar Association and the medical school accreditation body LCME. It claimed that accreditors had spent years pressuring institutions into racial practices that were illegal under federal civil rights law, framing the entire initiative as a restoration of legal order. It was referred to as a necessary correction by the White House. Critics referred to it as something quite different.

In an essay published in the Harvard Law Review in March 2026, Jonathan Glater, a professor of law at UC Berkeley, outlined the legal framework that makes this complex and potentially very messy in court with remarkable clarity. It’s not a partisan argument. It is mandated by law. The 2008 amendment to the Higher Education Act expressly prohibits the Secretary of Education from creating criteria that outline or mandate the standards accrediting agencies must apply when evaluating institutions. Regulations pertaining to curriculum, faculty composition, facilities, administrative capacity, and student support services are also prohibited by Section 1099b(o). The legislative history is clear: Senator Lamar Alexander, a conservative Republican, specifically pushed for that clause out of concern that higher education institutions would be taken over by the federal government. The same thing was stated in letters from the presidents of Vanderbilt, Duke, and the University of North Carolina that were added to the congressional record. Shut the door. Keep Washington out.

At the heart of this argument is a real conflict that neither side is able to completely resolve. The ABA’s stance in the years between Grutter and the 2023 Students for Fair Admissions ruling was, by any honest reading, intended to produce racially diverse outcomes through mechanisms that institutions had to figure out on their own. The administration’s argument is not new; some accreditors have in fact pushed diversity standards that put real pressure on institutions. Gail Heriot, a member of the U.S. Commission on Civil Rights and a law professor at the University of San Diego, documented this in great detail, citing instances such as George Mason University Law School, where ABA pressure to diversify enrollment resulted in outcomes that the dean of the school described as a form of institutional harm to the admitted students. The administration’s concern is supported by a substantial body of factual evidence.

However, legal scholars continue to run into problems with the mechanism the administration has selected to address it. One of the order’s specific directives, requiring accreditors to “prioritize intellectual diversity among faculty,” appears to be precisely the kind of prescription for accreditation standards that §1099b(o) was intended to avoid. A court might interpret the clause narrowly and conclude that “intellectual diversity” is not one of the protected categories. Additionally, a court might interpret it precisely as Senator Alexander’s legislative history indicates, which is as a ban on any federal attempt to instruct accreditors on faculty evaluation. Even Heriot, who wrote in favor of the executive order’s overall course, pointed out that the intellectual diversity clause was a mistake and predicted that it would result in precisely the kind of federal micromanagement of academic hiring that conservative legal scholars have traditionally opposed.

It is hard to overestimate the stakes involved in this battle. Federal student aid totaling more than $126 billion is only given to accredited universities each year. Losing federal recognition not only damages an accreditor’s reputation, but it also prevents the schools it accredits from receiving any of the federal grants and loans that their students depend on. That is existential for the majority of institutions. The administration is aware of this power. In the Harvard Law Review essay, President Trump referred to accreditation as his “secret weapon” against higher education. Whether on purpose or not, this statement reveals a great deal about the strategy’s underlying logic.

It is important to remember that the battle for deselection against the Department of Education is not merely theoretical. The Accrediting Council for Independent Colleges and Schools case from 2018 lasted for years, with the accreditor winning a crucial procedural battle before the Department finally ended it with a second review. The ABA, for example, is a well-resourced accreditor that could mount a long-term legal challenge, citing specific statutory protections. The claim that a deselection based on policy disagreement, disguised as a finding of “unlawful conduct,” amounts to arbitrary and capricious agency action under the Administrative Procedure Act is not a weak one. Agencies that use procedural levers to achieve objectives that the statute was intended to prevent are viewed negatively by courts.

Observing this develop across federal registers, law reviews, and university president offices gives the impression that American higher education is undergoing a constitutional stress test for which it did not choose and is ill-prepared. The administration feels that the law is on its side and that the system is flawed. When legal scholars read the same statute, they interpret it differently. The correct interpretation will probably need to be determined by a federal court, and the outcome of that case will have a lasting impact on Washington’s relationship with the academy.