How Legal, Political, and Financial Forces Shape Higher Ed Accreditation

Scott Schneider

Hello and welcome to Campus Docket, a Volt podcast about the legal challenges reshaping higher education. I’m Scott Schneider, attorney and adjunct professor at the University of Texas School of Law. And I’m joined by Eric Kelderman, senior writer at the Chronicle of Higher Education. Each episode will unpack the key legal developments that matter to higher ed leaders — student rights, faculty contracts, DEI lawsuits, and government oversight. Campus Docket is produced by Volt, the go-to news source for higher ed leaders and decision makers. Remember to visit Volt at voltedu.com, and subscribe to Campus Docket on Apple Podcasts, Spotify, or wherever you get your podcasts to make sure you never miss an episode. Let’s get into this week’s show.

Is this season two? Is this what we’re calling this? This is season two of the podcast.

Eric Kelderman

This is season one plus, one A.

Scott Schneider

I think it’s technically season two. It’s been a brutal work stretch, but we’re going to get back to regular recording in season two. Cool?

Eric Kelderman

We are. We’re going to crank it out. There’s been some amazing developments — legal developments, higher education developments — in the news in recent weeks. Let’s do some quick hot takes on some of the big issues. I know Scott’s primed and ready to weigh in with some really strong opinions and insightful comments on some of these issues.

Scott Schneider

Boy, you’re setting me up for failure here. I could definitely do the strong opinions. I don’t think there’s anything I can say that’s all that insightful, but we’ll give it a try.

Eric Kelderman

Well, sure, let’s go. So most recently, of course, we had the Supreme Court decision this week on transgender athletes. Notably, the court ruled nine to zero that the laws in Idaho and West Virginia did not violate Title IX, and then we saw a six-three split on whether those laws barring transgender athletes violated the equal protection clause of the Fourteenth Amendment. Did anything in this ruling surprise you, Scott?

Scott Schneider

No, this is about how I expected this to come out. There is a little significant nugget in there. I saw the great Janet Judge, Title IX lawyer extraordinaire, opine on this as well. First off, Kavanaugh writes the decision for the majority. It’s a really easy to read decision. As somebody who knows a lot about the history of the passage of Title IX, he gets the history a hundred percent right.

But one of the more interesting takeaways — and again, Janet alluded to this on LinkedIn and I kind of picked it up at the time — was there’s this really open question. So there was a decision a couple of years ago called Loper Bright, which in essence said, “Hey, we’re not so keen on giving what was dubbed Chevron deference to the interpretations that administrative agencies give to statutes.” And so there was this interesting open question under Title IX, because so much of the athletics portions of the legal infrastructure of Title IX comes from regulations that were issued in 1975. There was this interesting legal question about, well, does Loper Bright mean those regulations — which talk about things like athletic participation, compliance obligations, participation counts, and all of that sort of stuff — does that go out the window? There’s a case pending in the Fifth Circuit where the Attorney General of the state of Texas is arguing in part that those regulations are no longer entitled to deference.

What Justice Kavanaugh did in this decision, in addition to making a ruling on the merits, was to basically come out and bless those 1975 regulations. He said two things: that they were contemporaneous with the passage of the statute, and those regulations have been consistently applied for over 50 years — such that even under Loper Bright, given those two facts, there is deference given to those agency interpretations of the statute. That was sort of part of the architecture of the entire decision. Well, that’ll have a significant impact on a lot of the Title IX litigation that’s now in the pipeline, where schools have started to cut maybe some women’s programs. You’re starting to see these creative arguments about you can’t look to the 1975 regulations to assess how does Title IX work here. Well, the Supreme Court has weighed in — that’s dicta, it’s not the holding of the case, but the Supreme Court has weighed in and at least provided some really persuasive precedent for, “No, the ’75 regulations are entitled to deference, and they provide the architecture for assessing, in essence, when you cut a women’s program, does that violate Title IX or not?” So I thought that was an interesting part of the decision.

There’s also a footnote — the first footnote in the decision — where the court refused to weigh in on a question that has really been at the forefront of the Trump administration’s enforcement efforts with Title IX, which is the extent to which Title IX compels schools to bar transgender student-athletes from participating in female sports. Kavanaugh in his opinion, in that first footnote, says, “Hey, we’re not going to opine on this.” So you see in states like California and Minnesota, which allow transgender females to participate in women’s sports, this decision has no impact on those laws. That will continue to be litigated. But certainly the Trump administration has taken a different view, which is Title IX specifically prohibits that. I’ve always said I think that’s a stretch. But we’ll see that get worked out over time in various court cases.

Eric Kelderman

That’s a very interesting take. I’m still sort of amazed at the amount of attention this issue has gotten, given the very, very, very tiny number of transgender women athletes that are trying to participate in athletics. It seems sort of outsized.

Scott Schneider

It’s a hard one to process.

Eric Kelderman

It really is. But it’s getting a lot of attention. Anyway, let’s move on. A bunch of faculty and staff got fired after Charlie Kirk was assassinated on the campus of Utah University. We’re starting to see the results of some of those lawsuits, and as one of my colleagues wrote recently, the three cases have come about with basically about three million dollars in settlements. There’s one point nine million paid to a professor at the University of Tennessee at Knoxville. Austin Peay also paid out an amount to a faculty member there, a half a million dollars. And then there was a health administrator that sued Ball State University and they settled for about two hundred and twenty-five thousand dollars. I’m wondering, in hindsight, did the universities feel like they had to take these actions and it was just going to be worth the price of the settlement?

Scott Schneider

What a great question. Who’s the guy that runs FIRE? What’s his name? The beard…

Eric Kelderman

Greg Lukianoff.

Scott Schneider

Gotta love that guy. I have such a man crush on him. It’s like a generational thing. But this is like part of the culture wars that I just find so ridiculous — there’s just not a principled take. The First Amendment jurisprudence on this is, I think, reasonably clear. First off, they’re an employee of a public university, so the First Amendment applies. They get the protection of the most sacrosanct amendment in the Constitution, in my opinion, which enshrines the freedom of expression. In essence — look, I’ll keep it simple — public universities, or government actors, can’t punish employees for private political speech just because donors, politicians, alumni, or social media are angry. There are heightened issues, by the way, when someone is an academic, because there is an argument that goes back probably 70 years about academic freedom and how important that is, and it’s entitled to heightened First Amendment protection.

So it’s a long way of saying nothing about First Amendment jurisprudence has changed. When all of this was happening — and by the way, we go through these moral panics in a variety of different ways; 20 years ago it was some guy in a fraternity said something wildly inappropriate, and you’d have the president of a university going, “We’re going to kick this kid out of school,” and you’d go, “No, there are First Amendment issues here” — nothing about the law has changed.

I would have loved to have been in — well, I was in some rooms when there was this political pressure to start punishing professors. And what I would have loved to have been in is some of these rooms where you’re seeing these enormous settlements, to hear what the lawyers have to say. Because it was clear to me, when we started going down this road, and I said it at the time, that this violates the First Amendment. There’s maybe some argument you can make about how this disrupted the campus and all that sort of stuff — maybe there’s something you can do there. So my hunch is the lawyers were saying the exact same thing. And I think you hit the target on this: somebody is coming up and going, “I don’t care in essence what the law is. I know this is going to cost us money, but for whatever reason this person needs to go.” And look, in some of these cases, they’ve basically paid money to get rid of a professor who said something, and they’re not going to be reinstated. In others of these cases, as I understand it, they’ve paid money to these folks and now they’re being reinstated.

I hope we can get back to a principled approach — that there’s no culture war exception for the First Amendment. It’s super important here. It’s the First Amendment for a reason. Public university professors and employees have First Amendment rights to speak on things that are matters of public concern, and just because somebody’s offended or bothered by it doesn’t give you the right, at least without access to legal recourse, to discipline them or terminate them. So very interesting. I say interesting, but it was also very predictable. When these were happening — and I think we may have hit a podcast episode on this — I came out and said, “I don’t understand how a lawyer, I feel really bad for the lawyer, who’s going to have to sit here and argue that this doesn’t violate the First Amendment.” And you see that playing itself out in really substantial settlements. I think the one for the professor at UT Knoxville, was it 1.9 million dollars?

Eric Kelderman

Yeah. One point nine million.

Scott Schneider

Even in a crazy inflationary economy, 1.9 million dollars is a lot of money. And look, there’s an added piece here — you kind of see this playing itself out — where there are professors with tenure who were not getting due process before disciplinary action was being taken. So not only do you have First Amendment issues, you have due process issues. And by the way, there are tons of areas of law that are super complicated. Like our guest will be talking about accreditation — that’s way above my pay grade. I’m of mediocre intelligence, all right? But the case law on this is well settled, and this was easy. To your point, it just sounds like a lot of people were bowing to political pressure of the moment. No one felt comfortable standing on principle — the principle being the First Amendment and why it’s important. And here are the consequences: a lot of public dollars going to fund attorneys and settlements and cases, and in some cases having to bring back the professor or employee who was fired.

Eric Kelderman

Right. Last thing — a few weeks ago the Education Department announced some of these new interagency agreements. I guess they’re going to share responsibility for the Office of Civil Rights between the Department of Justice and HHS. HHS is going to take on some of the disability rights things, and Justice will be responsible for things like Title IX, Title VI cases. Big deal or not a big deal?

Scott Schneider

Well, it’s a big deal in this sense. What this administration is doing, up to the point that they have it within their control, is basically gutting the Department of Education, which has been a Republican promise since the Reagan administration. Now, as I understand it, that would require an act of Congress. I don’t think they have any appetite to do that. So what they’re doing is, in essence, in a very indirect way — I have a contrarian view on all of this, which is: for the existence of the Department of Education, it has just not been an effective agency in enforcing the civil rights laws that are in its portfolio.

You can look at the cases which develop the private rights of action for violations of Title IX, for instance, and they talk specifically — and then it was HEW — specifically talk about the lack of enforcement. So historically, HEW and the Department of Education, when it was created, have not been particularly good at enforcing civil rights compliance. Now, in their defense, the argument has been — and I think correctly — that they’ve never been adequately funded to basically regulate civil rights laws, some of which are very complicated, at hundreds and thousands of institutions, public K-12 through higher education. So is the Justice Department, or Justice in particular, better suited? Do they have more tools in their arsenal to do a better job of enforcement in this space? Who knows. It remains to be seen.

I think the reality is — I mentioned this earlier — the tactics that the Trump administration have brought to bear on civil rights issues that it considers to be a priority are unprecedented, don’t require, by the way, a whole lot of staffing within the Department of Education, and will undoubtedly be used by other administrations to pursue different policy goals. That precedent that has been created there, I think, is the big deal. If you get a change of administration in three or seven years, will they restaff the Department of Education? Or will they say, “You know what, we like going through the Department of Justice on enforcement activities when it comes to colleges and universities. Wow, they have a whole bunch of tools in their toolbox that the Department of Education doesn’t have.” That remains to be seen. But big picture, the department is being dismantled as much as it can be dismantled without an act of Congress.

Eric Kelderman

Good stuff. See, you came up with some really strong takes. That was great stuff.

Scott Schneider

None of it was insightful, but all of it was given with a lot of enthusiasm, which is the story of my career.

Eric Kelderman 

A lot of gusto. Style over substance — I’ll take it anytime.

Scott Schneider

Hey Eric, I think it’s time to introduce our guest.

Eric Kelderman

Let’s do it. We have with us today Maria Toyoda. She’s the president of the WASC Senior College and University Commission. She’s worked at a variety of colleges and universities during her 20-plus year career as a faculty member and administrator, and immediately before taking over at WASC, she was the executive vice president and provost at Western New England University in Springfield, Massachusetts — which, by the way, is also the home to the Naismith Basketball Hall of Fame, which I personally have visited during my one time at Western New England U. Welcome, Maria.

Maria Toyoda

Thank you, Eric. It’s Springfield College that actually is the originator of that basketball hall of fame. But you’re right, downtown Springfield, it’s actually a beautiful venue. It’s a wonderful venue. I recommend anyone passing through Springfield, Massachusetts to stop by.

Eric Kelderman

And today we’re going to be talking about accreditation — maybe the only topic that we will ever have on this podcast in which I know marginally more than Scott Schneider.

Scott Schneider

Yeah, well that’s a low bar because I know nothing. So there.

Eric Kelderman 

Exactly. So Maria, tell us a little bit about the commission, and give us the elevator pitch about what accreditation is and how it works.

Maria Toyoda

Yeah, so thank you, Eric, and thank you, Scott. As you mentioned, I’m the president and CEO of WASC. We are a formerly regional accreditor. We accredit institutions, not programs, but institutions. Traditionally a lot of the institutions we accredit have been in the western part of the US and the Pacific Islands, but increasingly we are becoming a global accreditor. I think we focus very much at WASC on outcomes-based accountability. We focus on innovation, we focus on stability — financial stability — we focus on the sorts of partnerships and innovations that can really provide a strong foundation for student success. All institutional accreditors increasingly are having to move towards more outcomes-based evaluations, but this is something that WASC has long been a leader in.

Eric Kelderman

Yeah, and let me just break it down to an even more basic level for some folks. Accreditation is a peer review process. WASC and six other accreditors across the country used to accredit institutions based on geographic boundaries that were set in regulation. And in 2020, those boundaries were eliminated — or as Jamienne Studley told me recently, accreditors were allowed to expand beyond those boundaries. It’s a technical detail, but I guess an important one to some folks. So now all accreditors are, in a sense, national and not what used to be called regional. And it’s important because you serve essentially as the gatekeepers to federal financial aid, to Title IV dollars, that almost all colleges and universities rely on to keep the doors open.

Maria Toyoda

Yeah. I think Jamienne has the right orientation on this, because we do see this as opportunity. It’s not a constraint. At the time when the decision was made to move from being regional to national, this was a decision made for us, mainly out of concerns that increasingly being based in a region and having protected territories were violating antitrust provisions. I think there’s a good case that that was the truth. Even with this last round of negotiations, the recent negotiations, we’re finally seeing codified the fact that we’re no longer regional. It’s opening things up to greater competition. Those are things that WASC supports, and we do see this as opportunity. We don’t see it as a constraint, and we don’t see it as taking away any particular protections that aren’t due to us.

Eric Kelderman

Sure. 

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Eric Kelderman

So as of late, accreditation has come under a lot of scrutiny — although I think that may have been the case really since it was created, or enabled, as a gatekeeper in the Higher Education Act of 1965. There’s been a lot of debate about its role and purpose. But certainly President Trump and other conservative politicians in particular have focused on what they see as the flaws in the accreditation system. And Maria, from your point of view, what are the strengths and weaknesses of our current accreditation system? What’s good and bad about it?

Maria Toyoda

It’s a fine balancing act — and this precedes anything that this administration has put forward as reforms. It’s always been a balancing act where you are trying to stay true to your original purpose and your original mission, which is essentially quality assurance and continuous improvement, and now overlaid on top of this is more of a regulatory and compliance role. With this latest round of negotiations and these proposed rules, that compliance role is really tipping the scales more than it has in the past. What’s going to be an important thing for all accrediting commissions and agencies to do is to figure out how to restore some balance between our original mission and purpose — again, the quality assurance and continuous improvement — and the regulatory side of things. There are parts of regulatory tasks that we should play a role in, mainly because at the end of the day, we’re very concerned about the outcomes that students have. You can’t really separate what we’re doing around quality assurance from other things like the sorts of outcomes that a lot of these newly proposed rules are focused on. How do we maintain the proper amount of focus on quality? I think is going to be the task ahead for all of us.

Eric Kelderman

Right. These sort of longstanding questions about accreditation — under the Higher Ed Act, you’re required to monitor ten certain specific things. You’re supposed to have standards on ten issues that include financial stability and academic outcomes, although the Ed Department can’t tell you what those should be, right? Some of the complaints about accreditation have been that the accreditors have had standards that are overreaching. So you’re required under the statute to monitor ten specific areas, but you’re also allowed to set standards outside of that — things like governance and integrity of the institution. And then one of the complaints recently has been, from the Trump administration and conservatives, that you have had standards on diversity, equity, and inclusion. I think almost all the regionals — the former regionals, let’s say — have gotten rid of those now, or at least paused them. Can you explain the difference between what the law requires and what accreditors are asking for outside of the statutory?

Maria Toyoda

Yeah, so this goes back to the question of balance. What do accreditors do to ensure that institutions maintain quality and that they put students first? Some of the standards — and they’re all different; every agency has a different set of standards — all agencies construct their standards in a way that both incorporates what’s required in the Higher Education Act along with other kinds of standards and areas for review and for evaluation that agencies and commissioners feel are valuable to maintain quality assurance and to put students first. I think that all accreditors are always going to follow the law. I don’t really see us coloring outside the lines of the law to do what we are doing. We are in a period of uncertainty about what the law exactly is, and a lot of this is still being adjudicated, still being litigated in some areas. But WASC and other agencies have always made sure that when we apply our standards and when we apply our review processes, and when we update our policies and communicate with our institutions, we always pay attention to the jurisdictions that we’re working in. So if we’re working in California, we’re going to make sure that we’re abiding by state law; we want to abide by federal law. And even when we work outside of the country, we will follow the law in whatever country we’re working in.

Eric Kelderman

Another one of the complaints we commonly hear about accreditation is that accreditors don’t act very often to remove accreditation for poorly performing institutions. And when they do act, it’s usually because of financial concerns. Can you talk a little bit about what happens when a college loses accreditation? What’s that process like? And why are so few colleges, I guess, kicked out?

Maria Toyoda

Yeah. Here’s the thing: accreditors first and foremost — and this is dictated by the regulations — have to follow due process. This is due process that both the agency has put into its policies and process that might be required by the Department of Education. I think there’s a lot of work that can be done here — not just by accreditors, but there’s work that can be done within the Department of Education to make orderly closure and, I think, the appropriate decisions for institutions that do have to close.

I will say this: there’s a reason why financial issues are usually the reason why institutions lose accreditation. It’s the leading indicator. For a lot of institutions, you can look at them, and when they’re financially stable, you can see the kinds of efforts and investments that they can make into improvement. Even if you start with a relatively low base of, let’s say, retention or other sorts of outcomes — the graduation outcomes — an institution that has the resources and is able to allocate them towards improvement will do so. We’ve seen that with WASC-accredited institutions. It’s at the point when finances really make it hard for institutions to keep investing in student success, then you see the other dominoes start to fall. So it’s not a surprise to me that finance is usually the leading reason for why institutions are either sanctioned or ultimately withdraw or have accreditation withdrawn from them.

Eric Kelderman

It’s hard to maintain a high-quality academic program if you don’t have any money to pay your faculty and provide resources for students.

Maria Toyoda

That’s right.

Eric Kelderman

We’re actually going to jump into some legal issues here. We’re going to bring it back to the legal side. Institutions sued in state court or federal court over the loss of accreditation usually don’t win. And we’ll preface this — we know that you’re not a lawyer, but you have some basic understanding of this. What’s the court’s role in adjudicating accreditation decisions?

Maria Toyoda

Well, I would say first of all, not every institution uses the recourse of litigation, and many of them do. And of course we have the arbitration route also. But I’ll just say that the courts can be, and often are, helpful in providing guidance both to accreditors and institutions about process and about the role of accreditors. Just as one example — accreditation, it’s a voluntary agreement or arrangement between the accrediting agency and the institution. It may not feel voluntary because of the Title IV funds involved. But institutions now have a choice of accreditors — they’ve always had a choice of accreditors. And I think for institutions, the thing that they should realize is that because it is a voluntary agreement, this is not a contract. The mistake that a lot of institutions might be making when they decide to litigate is that they view it as a contract, or that they view things as not having had the proper due process. I think that’s the one thing — accreditors are very, very careful because it’s a serious thing to have your accreditation withdrawn, and every institution deserves its due process. It deserves an appeals process, and any reputable accreditor is going to have a well-formed infrastructure to go through that process, and should have the infrastructure of policies and appellate bodies and those sorts of things to make sure that every institution gets its due process.

Eric Kelderman

And typically courts have not sought to offer their own expertise. In other words, it’s very unlikely when courts get involved that they would just summarily reverse an accreditation decision, right?

Maria Toyoda

Yeah, again, not a lawyer, and I don’t really follow this as much, but at least in my experience I haven’t seen that happen too often. I think there was one recently involving SACSCOC, but I think it was just an injunction. It might have just been a stay.

Eric Kelderman

Are these the kinds of things, Scott, you work with a lot of general counsels on campus. Are these the kinds of things that a typical campus general counsel is equipped to handle, or do they usually look for outside expertise on these sorts of questions?

Scott Schneider

Yeah. I’ve been involved in accreditation processes when I was in-house and now as external counsel. It’s a very rigorous — when we were in-house, I would work closely with our provost office to gather all the information that was needed and all of that sort of stuff. It’s a very rigorous and time-consuming process. And my old friends at Husch Blackwell — I’ll give a shout out to Annie Cartwright at Husch Blackwell — whenever I had questions about accreditation, legal questions about accreditation, or practical questions, there were a handful of lawyers who were subject matter experts, and she was certainly one of them. I’d go talk to her about it, and she was fantastic. So yeah, the short answer is, I just remember when I was at Tulane, we were going through that process, and it was very time-consuming, really intense, and at the time had a very intense provost. So it was a lot of work for me. But yeah, the sort of esoteric legal issues, you’re looking for a handful of lawyers, and there are a handful of them that really have real expertise in this space.

Eric Kelderman

I want to jump now to — the department just went through a negotiated rulemaking process. Two of the very interesting elements that came out of that are that the department wants accreditors to ensure that institutions have policies that protect civil rights on campus — First Amendment speech, Title VI, race and national origin protections, things like that. That’s a new sort of thing, right? I heard the hashing out of that during the negotiated rulemaking. I wonder what you make of those new requirements. Is it really reasonable for an accreditor? Does it present new sort of legal risks, both for you and for the institution?

Maria Toyoda

Yes, of course it does. This is the area, I think, that for all accreditors is a bit of a head-scratcher. As accreditors that monitor institutions, we monitor any open disputes, any open issues with OCR, and we ask the institution to keep us informed of what’s happening, and we often ask for information related to those sorts of things. But we certainly aren’t equipped — we’re not First Amendment lawyers, we’re not Title IX lawyers. We depend on those administrative offices to be able to adjudicate that for us. What we do is then take whatever finding or whatever adjudication occurs and act on that. We’re those who really act on the evidence that is produced. We’re not creating evidence. We’re consumers of the evidence.

Eric Kelderman

From what I took from the rulemaking process — the way the department explained it eventually — was that they’re not, they say at least, asking you to replace OCR. But they want you to ensure that the college has policies and a process, and that they’re enforced consistently, which is typical in the accreditation realm. But I also wonder — Scott, the department and the White House in particular have been very keen on particular civil rights issues, the antisemitism issue; they’re keen on certain aspects of the First Amendment free speech issues. But asking accreditors to look into these things seems like a responsibility that wouldn’t normally be delegated to an agency that is not the federal government. I don’t know if you have any thoughts about how we are making other sort of private nonprofit associations responsible for ensuring compliance with these issues. Is that even possible or reasonable?

Scott Schneider

Yeah, I’m trying to think if there were historical analogues to that, and I just don’t know. I can’t think of any that immediately jumped to mind. And I don’t know if it was tied up in the accreditation piece, but one of the strategies around sexual misconduct and Title IX during the Obama administration — there was certainly a big push from OCR, but there was also a push to leverage a whole host of different participants in creating expectations for institutions to have robust processes and policies for dealing with sexual misconduct. I can think of things — grant funding requirements. I can’t think of a historical analog where accrediting bodies were kind of thrust in the middle of, in essence, being part of the civil rights enforcement architecture. But when there have been some moments at the Department of Education, for instance, or within a presidential administration — again, Obama is the one that comes to mind because that was really a robust period of time and when I was really involved — yeah, it was trying to find, are there any other people, are there any other organizations, that we can leverage here to help, in essence, emphasize this point?

Eric Kelderman

And the other thing that I think merits maybe a little mention here is the fact that we’ve seen an enormous diminishment of the staff at OCR. I wonder too to what extent this is, I guess, a way to try and enforce laws and regulations that the department simply doesn’t have the capacity to monitor anymore. We’re talking about several thousand institutions to begin with. And accreditors are made up mostly of volunteer staff that read the self-studies and do the site visits and things like that.

Maria Toyoda

Yeah. There are two parts to this. The first is what you mentioned — the part where the accreditor ensures that an institution has some policies around civil rights and making sure that they have this readily available, publicly findable, that sort of thing. The second half of it is what I think is complicated: when we bring a peer review team to campus, how will they decide whether a campus or institution has been compliant with their own policies around civil rights? That’s the part where we’re not the lawyers. And what exactly is the department seeking from us to do in that case? That’s also not very clear — what it is that the department wants from us other than ensuring that campuses are being compliant with their own policies.

Eric Kelderman

The proposed rules have not been issued yet. I think they’re expected sometime in the fall, right? They have to be done by, I think, November 1st.

Maria Toyoda

Yeah, the notice of proposed rulemaking will have to be done in enough time to give at least a minimum thirty days of public comment period. And they would pretty much have to be ready to go — final rules published, I think, by the first of November — in order for it to be in effect by July 1st of 2027. Otherwise they’ll have to wait another year.

Eric Kelderman

You obviously have your own sort of legal team, I’m sure, gaming out how this might work. Can you talk to us a little bit about how you’re thinking about how your standards might change, how your policies and procedures might change?

Maria Toyoda

Yeah. Well, we certainly have our advisors — very good advisors — and that includes Annie and Julie over at Husch Blackwell, and Julie Scanlon, who is our outside general counsel, and we’re dependent on all of these fine minds to help us navigate this. We have a sense — not a great sense, but a developing sense — of which of these regulations may ultimately outlast any kind of public comment challenges or even legal challenges that might be coming through. I think it’s important not to deny the fact that there are a lot of new policies being proposed that in some way or another make sense. So we are seeking clarification. That’s the most important thing. There are some things in the redline proposals that are out there where, on the face of it, it looks like that might be doable — it might even be desirable to go forward with these proposals — but we don’t yet have clarification on how, or even the what, in terms of “How do you want us to do this?” and “What do you mean by these things?” Because there’s a lot left unsaid. I mean, this was negotiated rulemaking. Eric, you listened to countless hours of negotiation, and so you and I and others who were glued to the video stream may have a sense of the context. But when you write this down in black and white in a proposed document, you don’t have that context. So we have a lot of questions, a lot of requests around clarification for a lot of these measures.

Eric Kelderman

I’ve heard this from others, and you bring up this possibility as well, that there may be legal challenges to these rules down the road.

Maria Toyoda

There might be, but it’s — who’s to say who brings those legal challenges? I think it’s important to note here that accreditors are nonpartisan. We don’t have a political dog at all in this fight. What we want to do is stay true to our mission, and we want to be compliant with the law. But if you don’t understand what the law is, or you have questions about what something means, it’s incumbent on us to try and find that out. And it’s incumbent on, whether it’s the Department of Education or the Department of Justice, to explain this to us.

Eric Kelderman

One thing that I’d like to hear Scott opine on a little bit — because he always has strong opinions for us — is we see this sort of pushing the envelope by the Trump administration on certain issues. I think we saw a ramp-up to that during the Obama administration in Title IX, and now we see the questions over Title VI and free speech. And I wonder, asking accreditors to monitor civil rights and free speech laws — does this just take us further down the path of sort of expansive executive authority into areas that have typically been reserved for institutional autonomy and things like that? Do you see an expansiveness here? And what happens when we have a Democratic president and Congress? In theory, do they ask accreditors to monitor for DEI, anything like that?

Scott Schneider

Yeah. Look, I think what you see with this administration — I mean, at some level it feels like it’s fizzled out a little bit. There was a lot of activity, and then things sort of — I don’t know, attention being focused elsewhere. But what you see are really historically unprecedented tactics. Historically there was a conservative critique of civil rights laws, and if we’re going to put it on a bumper sticker, it was, “Hey, the federal government ought to stay out of, or be reticent about getting in, the affairs of institutions of higher education.” And in terms of enforcement, deference given to institutions even at the enforcement stage was reflected in a lot of different ways.

Now, what you’ve had certainly for the last year is a completely different approach in terms of tactics — really aggressive enforcement about civil rights issues that this administration considers to be a priority, and sort of unprecedented tactics to get schools into compliance with their interpretation of civil rights laws. You see that in a big way about the transgender issue in Title IX. You see that certainly in the DEI space.

From a practical standpoint, as a lawyer who’s worked in this space a long time, you start going, “These are clearly new tactics that are being used to advance the ends of this particular administration.” When the civil rights priorities of another administration change — I mean, President AOC or President Gavin Newsom — those tactics that have been effective in really getting schools to bend and basically comply with the interpretations by the Department of Education will undoubtedly continue to be used again, right? But with different compliance priorities.

People complain all the time about higher ed administrative bloat, and I know at NACUA — I don’t know how many lawyers showed up at the conference, but I can tell you in 15 years it’s gone from a pretty intimate affair of 100 or 200 lawyers to now every law firm in the country is there, and it’s thousands of lawyers who’ve taken an interest in this space. I just don’t see that going away anytime soon. These tactics are really powerful, and with a new administration with different compliance priorities coming in, assuming that’s the case in three years or seven years, that pendulum of “Well, what does Title VI compliance look like? What is antisemitism? What are Title IX obligations with respect to transgender students, etc.? Housing, ADA issues?” — it’s just going to continue to be a fertile field for lawyers.

And yeah, at some level, to the extent you throw accreditors into that mix, and your role is primarily obviously not legal, that just probably adds to all the compliance obligations. It’s a long way of saying, if you’re complaining about administrative bloat and the role of lawyers in higher education, the tactics this administration is using here, which will be borrowed by subsequent administrations, are only going to make that problem worse.

Maria Toyoda

Yeah, I have to agree that the level of creativity with these administrative tactical moves has been really tremendous. Accreditors don’t like volatility. We like stability. We look for stability in our institutions, we look for innovation, but what we’re not looking for are those extreme pendulum swings that come about when you use these kinds of tactics rather than trying to get things through statute or through, let’s say, a renewal of the Higher Education Act. So I think Scott’s absolutely right. There’s a brave new world out there where the creative tactics that are there at the sub-regulatory level — down to whether program participation agreements have fine print added to them, or even the FERPA applications have fine print added to them — those are the things that I think often go unnoticed but may end up having the biggest impact.

Eric Kelderman

Well, terrific. I don’t have any other questions for you, Maria. You’ve handled it well. I think we’re going to extend your accreditation as a guest. And I want to point out here that Husch Blackwell is not giving us any money for this episode, by the way. But if they want to, we’ll take it.

Maria Toyoda

No, but I hope you guys get Christmas chocolates from them, ’cause they are good.

Eric Kelderman

I will say this: at the conferences I go to where Husch Blackwell shows up, they have a big table with free candy that they hand out. That’s how I always know it’s the Husch Blackwell table.

Maria Toyoda

And they will be at our conference in April. So I’ll just put in a little plug there — we always have Julie, we always have Annie, coming by.

Eric Kelderman

Okay, there you go. We have one thing before you go that we always do at the end, which is we ask what’s one good thing you’re looking forward to in the next week, two weeks? What’s coming up in your life, Maria, that you think is good, that you’ve really set your sights on?

Maria Toyoda

Our nation’s 250th anniversary. And I have a brand new Kamado-type barbecue that I’ve become very attached to. I’m going to be doing smoked baby back ribs and some pulled pork.

Eric Kelderman

Excellent. Scott and I will be there.

Scott Schneider

Where am I flying?

Maria Toyoda

I make a good Carolina gold sauce that goes along with it.

Eric Kelderman

Impressive. Very good. We have not heard that phrase uttered on this podcast, so that’s a first. Scott, what do you got coming up?

Scott Schneider

I am going on the Fourth of July — we’re going to go float the Comal River outside of New Braunfels, so that’ll be fun. And then after that we’re going to go see Willie Nelson, man — 93-year-old Willie Nelson, who does his Fourth of July here in Austin. Opening for Willie will be Wilco, and one of my favorite — my probably favorite artist right now, who is Billy Strings. I think I’m going to wear an American flag shirt and some jorts to that. So I’m hoping there are no cameras, but I’m really looking forward to seeing Willie. At 93, what an inspiration he is.

Maria Toyoda

What a lineup.

Eric Kelderman

That’s amazing. Well, I may go downtown Friday night for the 11 p.m. fireworks, which are supposed to go on for 90 minutes in extreme heat. I’m not sure what I’m signing up for here, but that’s one possibility. The other thing is my wife and I are going to take a road trip up to the Midwest in a couple of weeks. We’re going to see ball games in Cleveland and Chicago at the White Sox — Rate Field, which I’ve been to, is not one of my favorites, I’ll say, but we’ll go back there — and then Cincinnati, which I think is a park I haven’t been to. A good old-fashioned road trip.

Scott Schneider

This is outrageous. Go, Cubs, go. An outrageous itinerary that Eric has. And it’s disgusting that I think he is a White Sox fan.

Eric Kelderman

Oh gosh, no. Definitely not a White Sox fan. I’m a big Nationals fan. I’ve been to Wrigley a couple of times. It’s an amazing experience. It’s a shrine to baseball. Guaranteed Rate Field is awful. The only thing to go there for is the Chicago Dogs, which come with relish and pickles and mustard, of course. But the White Sox are playing well, and they’ll be playing the Yankees, and so that’ll be a good contest.

Scott Schneider

Good deal.

Eric Kelderman

Thanks, Maria. Take care.

Maria Toyoda

Safe travels. Bye.

Scott Schneider

There you go. Well look, thanks for tuning into Campus Docket. You’ll find links to everything we discussed today, including related cases, articles, and a full transcript, in the show notes and on voltedu.com. Be sure to follow Campus Docket wherever you get your podcasts. And while you’re there, check out Trusted Voices and Higher Voltage, two more podcasts in the Volt lineup that look at higher ed through different lenses. On behalf of the Volt team and my friend Eric Kelderman, thanks again for listening. We’ll see you next time.