Fairness in Higher Education Accreditation Act

II 118TH CONGRESS 1ST SESSION S. 1795 To modify the criteria for recognition of accrediting agencies or associations for institutions of higher education. IN THE SENATE OF THE UNITED STATES JUNE 1, 2023 Mr. RUBIO (for himself, Mr. LEE, and Mr. SCOTT of Florida) introduced the following bill; which was read twice and referred to the Committee on Health, Education, Labor, and Pensions A BILL To modify the criteria for recognition of accrediting agencies or associations for institutions of higher education. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Fairness in Higher 4 Education Accreditation Act’’. 5 SEC. 2. CRITERIA FOR RECOGNITION OF ACCREDITING 6 AGENCIES OR ASSOCIATIONS. 7 Section 496 of the Higher Education Act of 1965 (20 8 U.S.C. 1099b) is amended— 9 (1) in subsection (a)— 10 VerDate Sep 11 2014 23:48 Jun 20, 2023 Jkt 039200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S1795.IS S1795 kjohnson on DSK79L0C42PROD with BILLS 2 •S 1795 IS (A) in paragraph (5)— 1 (i) in subparagraph (I), by striking 2 ‘‘and’’ after the semicolon; 3 (ii) in subparagraph (J), by inserting 4 ‘‘and’’ after the semicolon; and 5 (iii) by inserting after subparagraph 6 (J), and before the flush text, the fol- 7 lowing: 8 ‘‘(K) except in the case of an institution 9 described in subsection (r)(2), success in ensur- 10 ing a right of free inquiry (as defined in sub- 11 section (r)(1));’’; 12 (B) in paragraph (7), by striking ‘‘and’’ 13 after the semicolon; 14 (C) in paragraph (8), by striking the pe- 15 riod at the end and inserting ‘‘; and’’; and 16 (D) by adding at the end the following: 17 ‘‘(9) as part of the accrediting process, such an 18 agency or association shall not consider— 19 ‘‘(A) the diversity, equity, and inclusion 20 policies of an institution of higher education; 21 and 22 ‘‘(B) the racial composition of the accepted 23 applicants, students, or the faculty or staff, of 24 an institution of higher education.’’; 25 VerDate Sep 11 2014 23:48 Jun 20, 2023 Jkt 039200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S1795.IS S1795 kjohnson on DSK79L0C42PROD with BILLS 3 •S 1795 IS (2) in subsection (g), in the second sentence, by 1 striking ‘‘Nothing in this Act’’ and inserting ‘‘Sub- 2 ject to subsection (a)(9), nothing in this Act’’; 3 (3) in subsection (p), by striking ‘‘Nothing in 4 subsection (a)(5)’’ and inserting ‘‘Subject to sub- 5 section (a)(9), nothing in subsection (a)(5)’’; and 6 (4) by adding at the end the following: 7 ‘‘(r) FREE INQUIRY.— 8 ‘‘(1) FREE INQUIRY.—In this section, the term 9 ‘free inquiry’ means— 10 ‘‘(A) in the case of a public institution of 11 higher education that is legally required to 12 abide by the First Amendment to the Constitu- 13 tion, compliance with— 14 ‘‘(i) the First Amendment to the Con- 15 stitution, including protections for freedom 16 of speech, association, press, religion, as- 17 sembly, and petition; and 18 ‘‘(ii) the institution’s own written poli- 19 cies regarding academic freedom; or 20 ‘‘(B) in the case of a private institution of 21 higher education, adherence to the institution’s 22 written institutional policies concerning freedom 23 of speech, association, press, religion, assembly, 24 petition, and academic freedom. 25 VerDate Sep 11 2014 23:48 Jun 20, 2023 Jkt 039200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S1795.IS S1795 kjohnson on DSK79L0C42PROD with BILLS 4 •S 1795 IS ‘‘(2) RELIGIOUS EXEMPTION.—An institution 1 described in any of subparagraphs (A) through (F) 2 shall not be subject to the free inquiry requirements 3 of subsection (a)(5)(K). Such exempt institutions 4 shall include: 5 ‘‘(A) An institution that is a school or de- 6 partment of divinity. 7 ‘‘(B) An institution that requires its fac- 8 ulty, students, or employees to be members of, 9 or otherwise engage in religious practices of, or 10 espouse a personal belief in, the religion of the 11 organization by which it claims to be controlled. 12 ‘‘(C) An institution that in its charter or 13 catalog, or other official publication, contains 14 an explicit statement that it is controlled by a 15 religious organization or an organ thereof, or is 16 committed to the doctrines or practices of a 17 particular religion, and the members of its gov- 18 erning body are appointed by the controlling re- 19 ligious organization or an organ thereof, and it 20 receives a significant amount of financial sup- 21 port from the controlling religious organization 22 or an organ thereof. 23 ‘‘(D) An institution that has a doctrinal 24 statement or a statement of religious practices, 25 VerDate Sep 11 2014 23:48 Jun 20, 2023 Jkt 039200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S1795.IS S1795 kjohnson on DSK79L0C42PROD with BILLS 5 •S 1795 IS along with a statement that members of the in- 1 stitution community must engage in the reli- 2 gious practices of, or espouse a personal belief 3 in, the religion, its practices, or the doctrinal 4 statement or statement of religious practices. 5 ‘‘(E) An institution that has a published 6 institutional mission that is approved by the 7 governing body of an educational institution 8 and that includes, refers to, or is predicated 9 upon religious tenets, beliefs, or teachings. 10 ‘‘(F) An institution with respect to which 11 there is other evidence sufficient to establish 12 that the institution is controlled by a religious 13 organization, pursuant to section 901(a)(3) of 14 the Education Amendments of 1972 (20 U.S.C. 15 1681(a)(3)).’’. 16 SEC. 3. CIVIL ACTION. 17 An institution of higher education (as defined in sec- 18 tion 102 of the Higher Education Act of 1965 (20 U.S.C. 19 1002), and including both public and private institutions 20 as so defined) that is subject to a denial, withdrawal, or 21 termination of accreditation as a result of an accrediting 22 agency or association’s violation of the prohibition estab- 23 lished in paragraph (9) of section 496(a) of the Higher 24 Education Act of 1965 (20 U.S.C. 1099b(a)), as added 25 VerDate Sep 11 2014 23:48 Jun 20, 2023 Jkt 039200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S1795.IS S1795 kjohnson on DSK79L0C42PROD with BILLS 6 •S 1795 IS by section 2 of this Act, may pursue a civil action in ac- 1 cordance with subsections (e) and (f) of such section 496. 2 Æ VerDate Sep 11 2014 23:48 Jun 20, 2023 Jkt 039200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6301 E:\BILLS\S1795.IS S1795 kjohnson on DSK79L0C42PROD with BILLS