The comment letter is useful as a preview of potential future legal challenges to the final rule, which, depending on their success, could impact the timing of any regulatory changes.

Key Takeaways

• On September 21, 2026, a coalition of 23 state attorneys general submitted a comment letter opposing key provisions of the U.S. Department of Education’s proposed Accreditation, Innovation and Modernization (AIM) Rule, published as a notice of proposed rulemaking (NPRM) at 91 Fed. Reg. 53,940 (Aug. 20, 2026).
• The attorneys general contend that the NPRM’s proposed amendments to current federal accrediting agency recognition standards, governing which institutional and programmatic accrediting agencies can serve as gatekeepers to students’ Title IV federal student loan and grant access, exceed in certain areas the Department’s statutory authority under the Higher Education Act (HEA), violate the prohibition on federal control of curriculum and administration (20 U.S.C. §1232a) and conflict with the Administrative Procedure Act (APA).
• The letter argues that proposed changes to accreditor recognition, peer review and oversight would weaken quality-assurance mechanisms and facilitate a “race to the bottom” in higher education standards, resulting in reduced ability of states to rely on accreditation for quality assurance and increased cost in state agency oversight.
• The attorneys general letter also expresses concern regarding proposed changes to faculty standards (academic freedom, intellectual diversity, viewpoint neutrality), student achievement metrics and race-based preferences that the attorneys general say raise constitutional vagueness and chilling-effect concerns.
• Proposed modifications to teach-out requirements that could leave students at closing institutions without adequate protections are another focus of the attorneys general comment.

What This Means

The Department of Education has not yet published the accreditation final rule. The Department must consider and respond to all significant public comments before promulgating a final rule under the APA. The 23-state coalition objection will likely receive discussion in the final rule preamble.

The comment letter is useful as a preview of potential future legal challenges to the final rule, which, depending on their success, could impact the timing of any regulatory changes. Its framing around statutory-authority limits, constitutional vagueness and APA arbitrary-and-capricious standards establishes the outlines for judicial review should the Department finalize the rule substantially as proposed.

Accrediting agencies and institutions should continue to expect publication of the final rule by November 1, 2026, with a likely effective date of July 1, 2027, and expect the possibility of legal challenges by impacted stakeholders, including states.

Background

On August 20, 2026, the U.S. Department of Education published the AIM NPRM, proposing sweeping changes to the federal regulations governing the recognition and oversight of accrediting agencies under Title IV of the HEA and resulting from the AIM rulemaking committee, which reached consensus on the parameters of the proposed rule. The NPRM largely implements Executive Order 14279, “Reforming Accreditation to Strengthen Higher Education,” signed on April 23, 2025, which directed the Department to modernize accreditation standards and reduce regulatory barriers.

On September 21, 2026, the attorneys general of Colorado, Massachusetts, New York and Oregon—joined by the attorneys general of Arizona, California, Connecticut, Delaware, the District of Columbia, Hawaii, Illinois, Maine, Maryland, Michigan, Minnesota, Nevada, New Jersey, New Mexico, Rhode Island, Vermont, Virginia, Washington and Wisconsin—submitted the public comment letter to Education Secretary Linda McMahon.

The letter raises constitutional, statutory and administrative-law objections, framing the proposal as a departure from the longstanding “triad” model in which the federal government, states and accrediting agencies each play complementary and independent roles in safeguarding higher education quality and protecting students and taxpayers. The state attorneys general assert that the proposed rule is likely to lead to harm to institutions of higher education, students and accrediting agencies, including by incentivizing lowered accreditation standards and oversight.

The state attorneys general comment letter makes three general categories of arguments. First, that the proposed regulations exceed statutory authority. Second, that the changes would weaken oversight over institutions and programs. And third, that the proposed amendments to agency requirements regarding teach-out plans and agreements would undermine student protections when schools close.

Argument 1: The Proposed Accreditation Standards Exceed Statutory Authority

The most extensive attorneys general objection targets proposed 34 C.F.R. § 602.17 (and related amendments to Sections 602.16 and 602.18), which would require accrediting agencies to apply Department-prescribed conditions within the 10 existing statutory accreditation criteria. The letter argues that these provisions violate multiple HEA provisions including:

• 20 U.S.C. § 1099b(g): The statute prohibits the Secretary of Education from establishing criteria beyond those enumerated in the statute, bars federal student achievement standards and affirms that accreditors “may adopt additional standards.” The attorneys general contend that the NPRM’s detailed, Department-defined conditions within the 10 existing statutory criteria categories under 20 U.S.C.§ 1099b(a)(5) effectively create impermissible subcriteria.
• 20 U.S.C. § 1099b(o): This provision prohibits the Secretary of Education from regulating with respect to the 10 statutory standards. The attorneys general argue that the NPRM directly contravenes this prohibition.
• 20 U.S.C. § 1232a: The letter invokes the General Education Provisions Act’s prohibition on federal direction, supervision or control over curriculum, program of instruction, administration or personnel of any educational institution.

Specific provisions the attorneys general challenge include:

Faculty Standards (Section 602.17)

Requirements that accreditors evaluate institutional policies on First Amendment compliance, civil rights, academic freedom and “intellectual diversity”—along with written faculty evaluation processes—are criticized as vague and susceptible to ideological enforcement. The attorneys general argue that undefined terms such as “academic freedom,” “intellectual diversity” and “lawful viewpoints” fail the constitutional vagueness standard articulated in Grayned v. City of Rockford.

Race-Based Preferences (Section 602.17(g))

The proposed provision bars accreditation standards that “encourage [or] direct” race-based preferences. The attorneys general note this is not limited to unlawful preferences and could chill lawful diversity efforts.

Student Achievement Metrics (Section 602.17(a)(1)(ii)(D))

A requirement to track post-graduation standardized test results is criticized as impracticable and beyond the Department’s authority to set student achievement standards.

Cost/Benefit Analysis for Facilities

The NPRM would require accreditors to conduct cost/benefit analyses for institutional facilities, which the attorneys general view as an administrative function outside the Department’s regulatory authority.

Plagiarism/Research Misconduct and Safety Compliance

New requirements for institutions to maintain plagiarism and research misconduct policies and demonstrate compliance with safety standards are challenged as beyond the statutory framework.

Limitation on Additional Accreditor Standards (Section 602.16(f))

The attorneys general argue this proposed provision conflicts with Section 1099b(g)’s express authorization for accreditors to adopt standards beyond the statutory minimum.

Viewpoint-Neutrality Procedures (Section 602.18(b)(4))

Requirements for accreditors to adopt viewpoint-neutrality procedures are challenged as unconstitutionally vague.

Argument 2: Proposed Changes Would Weaken Oversight and Institutional Integrity

The second major category of objections concerns structural changes to accreditor recognition and oversight that the attorneys general contend would undermine the gatekeeping function of accreditation. The states argue that lowering the quality of agency oversight will lead to increased oversight costs for states and harm to consumers.

Elimination of the Two-Year Rule and Federal Link Requirement

Proposed Sections 602.10(c) and 602.12 would eliminate the requirement that an agency must have been operating for at least two years before seeking initial recognition and remove the requirement of a federal link at the time of recognition (i.e., a connection to Title IV funding decisions). Under the proposal, an agency could operate in a recognized capacity for up to two years without demonstrating a federal link. The attorneys general argue these changes lack supporting data—noting the Department itself acknowledged a lack of data when it considered similar changes in 2019 (84 Fed. Reg. 58,834)—and conflict with the HEA’s comprehensive review requirements under Section 1099b(n) and quality-assurance mandate under Section 1099b(m).

Two-Tier Review Framework

Proposed Section 602.31 would replace uniform review of all accreditors with a bifurcated system: a “comprehensive” review for agencies overseeing a “substantial portion” of Title IV funds and a “standard” review (limited to five criteria) for others. Classification would also depend on subjective factors such as complaints and legal actions. The attorneys general argue this contradicts Section 1099b(n)(1)’s requirement that the Secretary of Education review all accreditors against all statutory criteria. They also criticize an expedited 120-day review timeline and a provision for automatic extension of recognition pending review as insufficient safeguards.

Weakened Peer Review and Constituency Engagement

The NPRM would make peer review optional (Section 602.3), remove requirements for constituency engagement and demonstrated support when accreditors seek scope expansion (Section 602.12(d)), and replace the requirement for accreditor decision-making bodies to include educators, practitioners and employers with a broader category of “representatives of the public” (Section 602.15). The attorneys general argue these changes conflict with the HEA’s requirement for third-party information in accreditor reviews (Section 1099b(n)(1)(A)) and would diminish the expertise and independence of accreditation decisions.

Accreditor Switching and Multiple Accreditation

Under proposed Section 600.11, institutions would no longer need prior Secretary of Education approval to switch accreditors. The existing two-year lookback period for adverse actions would be replaced with a subjective “intent-to-evade” test, and institutions could maintain multiple accreditors even after adverse action. The attorneys general argue these provisions conflict with Section 1099b(h)’s “reasonable cause” standard and risk enabling institutions to circumvent accountability.

Credit Transfer Provisions

Proposed Sections 602.24(e) and 668.43 include credit transfer requirements that the attorneys general find underexplained and potentially contrary to the HEA. The letter notes, however, that the signatory states broadly support efforts to facilitate credit transfer—a point of partial agreement with the NPRM’s objectives.

Argument 3: Teach-Out Protections Would Be Undermined

The attorneys general raise several objections to proposed amendments to Section 602.24 governing teach-out plans and agreements, which are designed to protect students when institutions close. The attorneys general state:

• The proposed 30-day timeline in Section 602.24(c)(1) should be clarified to permit shortening when circumstances require more urgent action.
• Public institutions placed on provisional accreditation status for routine administrative shifts—absent indicators of insolvency risk—should be exempt from teach-out requirements.
• The triggers under Section 602.24(c)(2) should require both a teach-out plan and a teach-out agreement, consistent with the HEA’s requirements at Section 1099b(c)(3).
• A proposed provision at Section 602.24(c)(2)(iv) would create a loophole allowing institutions to conduct their own teach-outs (“self-teach-out”), which the attorneys general argue is inadequate to protect students.
• The removal of equitable treatment guidelines (Section 602.24(c)(8)) and the elimination of the requirement that accreditors receive notice of teach-out communications (Section 602.24(c)(10)) would reduce transparency and student protections.

For More Information

If you have any questions about this Alert, please contact Katherine D. Brodie, Edward Cramp, Anthony J. Guida Jr., Kristina Gill, Daniel R. Walworth, Jen DeMay, any of the attorneys in our Higher Education Group, any of the attorneys in our State Attorneys General Group or the attorney in the firm with whom you are regularly in contact.

Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.