American presidents have long abused their authority in order to harm their opponents, for instance by having the IRS pursue targeted tax audits against them or having the FCC threaten the licenses of broadcasters who air too much criticism. Often, the mere threat of a federal “investigation” is sufficient to achieve the desired end, and, if not, the cost of the ensuing legal process is tantamount to punishment. Those tactics are supposed to be illegal, but presidents have difficulty resisting them. They are eager to, as Richard Nixon put it, “maximize the incumbency” and don’t foresee any adverse consequences in trying to hurt real or perceived enemies.
The Biden administration apparently wants to include Grand Canyon in its war against for-profit schools. Joe Biden’s administration has been rife with abuses of power, and a perfect example is his Education Department’s regulatory jihad against Grand Canyon University (GCU). That Arizona-based school was founded in 1949 and operated as a non-profit entity until 2004, when it partnered with private investors to secure the capital it needed to continue operations. During that period of time, it encountered no trouble with state or federal regulatory bodies.
In 2018, GCU chose to return to non-profit status, a move approved by the IRS and the Higher Learning Commission of Arizona. The U.S. Department of Education, however, has declined to accept that change, for no stated reason. The Biden administration apparently wants to regard GCU as a for-profit institution so the university can be included in its war against for-profit schools, which it tars as being “bad actors.” Some indeed have been, but GCU is not. Nevertheless, the Education Department (ED) has concocted some pretexts for going after it.
Since 2021, GCU has been swamped by the ED with demands for documents—an obvious fishing expedition. All the ED came up with were some minor, highly dubious complaints. One was that, in its promotional materials, GCU stated that “cybersecurity experts are in high demand,” which is objectively true but which the minions in the ED chose to call “erroneous and misleading.” Had any GCU student who took its cybersecurity program complained? No, but the government doesn’t need any actual complaints, much less harm, to unleash its power.
Also, GCU was accused of deceiving Ph.D. students regarding the full cost of their programs, even though the school’s materials were perfectly clear as to the requirements and had never before been questioned by either the ED or the state of Arizona.
GCU’s October 5, 2023, press release provides a full discussion of these matters.
Despite the university’s willingness to cooperate, in April of this year the ED levied a fine of $37.7 million against it—the largest fine ever. There were no hearings, no chance for GCU to defend itself. If that makes you suspect bad faith by the ED, your hunch will be strengthened by the vitriolic language used by Education Secretary Miguel Cardona in his public statement about the case and ensuing fine, in which he declared that GCU had “lied” to students and “preyed upon them.” That’s the standard language used by leftists against for-profit schools, but here it simply has no basis in fact. The Department conducted no hearing to ascertain the truth about the school’s operations, which have gotten glowing reviews from its accreditor, the Higher Learning Commission, and from the state.
Grand Canyon is unabashedly traditionalist in its orientation, which makes it an attractive target for “progressive” zealots. Why the blatant animosity from the Biden administration? The apparent reason is that GCU is unabashedly traditionalist and Christian in its orientation, which makes it an attractive target for zealots who object to schools that are not on the “progressive” bandwagon.
The ED’s actions against GCU led the Goldwater Institute to file a freedom of information request, seeking any documents that would shed light on the targeting of the school and the unprecedented fine against it. As Goldwater attorney Stacey Skankey points out here, “By comparison, the Department assessed a mere $2.4 million fine against Penn State for failing to report the crimes of serial pedophile Jerry Sandusky.”
When the ED stonewalled that request, Goldwater filed a lawsuit seeking to compel it to comply as the law requires. The administration’s scofflaw attitude on transparency is just what one has come to expect.
Several observers detect in all of this an abuse of power. Writing on Minding the Campus, Cato Institute fellow Andrew Gillen states, “There is a high probability that the Biden administration is weaponizing fines to punish political opponents.” Similarly, Michael Brickman of the American Enterprise Institute points to the GCU case (and others) to conclude, “Each of these examples represents an overreach by regulators more interested in taking out targets than protecting students or applying the law.” Everything the ED has done (and refused to do) supports those views.
The GCU case underscores the serious problem with allowing executive-branch bureaucrats to wield the powers they do, combining law-making, adjudication, and punishment. Here, the ED intends to inflict a huge penalty on a school without the slightest semblance of due process of law. In fact, it is thumbing its nose at due process by stiff-arming the Goldwater Institute’s efforts to discover what is animating its attack on the school.
Gillen, Brickman, and I are not alone in our opposition to the misuse of federal administrative power. Columbia University law professor Philip Hamburger set forth a compelling argument, in his 2014 book Is Administrative Law Unlawful? (which I reviewed here), that what we call “administrative law” is unconstitutional. It’s unconstitutional because it violates the Founders’ plan for a government of divided and limited powers, which they thought was the best way to protect the rights of the people. They had lived under the rule of undivided and unrestrained governmental power as subjects of the British monarchy and wanted to keep their new nation from experiencing anything like that.
Only in recent years has the Supreme Court begun to curtail the power of administrative agencies. The ED (and other administrative agencies) get to make the law when they issue rules, decide if they’ve been violated, and then enforce penalties. That is emphatically not how Americans were supposed to be governed. Instead, it is a throwback to royal prerogative power.
Our vast administrative state mushroomed over the years, going back to the New Deal, as the Supreme Court ignored the Constitution in favor of the expanded federal control that appealed to most of the justices. Only in recent years has the Court begun to curtail the power of administrative agencies.
If Grand Canyon University were to challenge the way it has been treated by Biden’s Department of Education, it would be an ideal case for the Court to drive a stake through the heart of the abuse of administrative law to damage people and institutions simply because the party in power happens to have a grudge against them.
Originally published by The James G. Martin Center for Academic Renewal.
Republished with permission.
For more great content from School Reform News.
For more from The Heartland Institute.
