When the private entity (1) acts as an agent of government in performing a particular task delegated to it by government (the delegated power theory) or (2) performs a function that is generally considered the responsibility of government (the public function theory), or (3) obtains substantial resources, prestige, or encouragement from its involvement with government (the government contacts theory), its actions may become state action subject to constitutional constraints.
Although courts have not historically treated private accrediting agencies as state actors, this may have changed since the 1992 amendments to the Higher Education Act, which “brought the Secretary of Education in a much closer relationship with the accrediting agencies’ actions.” Auburn University v. The Southern Association of Colleges and Schools, Inc., 2002 U.S. Dist. LEXIS 26478, *29 (N.D. Ga. Jan. 14, 2002). See also Edward Waters College, Inc. v. The Southern Association of Colleges and Schools, Inc., 2005 U.S. Dist. LEXIS 39443 (M.D. Fl. Mar. 11, 2005). With the 1992 amendments, the Department of Education enacted requirements as to the substance of accreditation. Specifically, after the 1992 amendments, the Department requires that accrediting agencies must “review student achievement, faculty, curricula, admissions practices, completion rates, default rates in student loan programs, and facilities….” Auburn, 2002 U.S. Dist. LEXIS at *16. The 1992 amendments created much closer “contacts” between NCATE and the government. As a result, NCATE may be a state actor subject to the First Amendment—which prohibits viewpoint discrimination.