The National Council for Accreditation of Teacher Education (NCATE) is a private organization that accredits education schools, and yet FIRE and the National Association of Scholars have both suggested that it may be violating the First Amendment by promoting standards that result in viewpoint discrimination. Since the First Amendment applies only to government actors, not to private actors, how is this possible? Let me explain.
Under certain circumstances, when a private entity is sufficiently entangled with the government, its actions are considered to be government action. In their treatise The Law of Higher Education, William A. Kaplin and Barbara A. Lee explain:
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.
NCATE, like all accrediting agencies, has a close relationship with the federal government pursuant to federal law. A federal statute, 20 U.S.C. § 1099b, sets forth detailed criteria for governmental recognition of accrediting agencies. This close relationship is described in further detail at 59 Fed. Reg. 22250 (April 29, 1994), which describes the “shared responsibility among accrediting agencies, States, and the Federal government to ensure that the ‘gate’ to [certain Department of Education] programs is opened only to those institutions that provide students with quality education or training worth the time, energy, and money they invest in it. The three ‘gatekeepers’ sharing this responsibility have traditionally been referred to as ‘the triad.’”
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.