FTC Staff Comment Before the U.S. Department of Education Concerning Accreditation, Innovation, and Modernization

September 21, 2026
UNITED STATES OF AMERICA
Federal Trade Commission
WASHINGTON, D.C. 20580
Office of Policy Planning
Bureau of Competition
David Barker
Assistant Secretary for the Office of
Postsecondary Education
U.S. Department of Education
400 Maryland Avenue, SW
Washington, DC 20202
Re: 	Accreditation, Innovation, and Modernization: The Secretary’s Recognition of
Accrediting Agencies, Institutional Eligibility Under the Higher Education Act of
1965, as Amended, Student Assistance General Provisions (Docket ID ED-2025-
OPE-1042)
Dear Assistant Secretary Barker:
We are the Directors of the Federal Trade Commission’s (FTC or Commission) Office of
Policy Planning and Bureau of Competition.1 The Office of Policy Planning engages with federal
agencies, state legislatures, regulatory boards, and other government officials on competition and
consumer protection issues to champion the interests of the American people. The FTC’s Bureau
of Competition enforces America’s antitrust laws. Competition is the lifeblood of the American
economy, spurring innovation, expanding output and employment, lowering prices, improving
quality, and increasing access to goods and services. Eliminating regulatory barriers that raise
prices, prop up entrenched monopolies, or otherwise restrain the competitive economy is key to
achieving these goals.2
Combating anticompetitive regulatory failures at the federal and state level is a central
mission of the Commission. Indeed, President Trump’s Executive Order 14267, “Reducing Anti-
Competitive Regulatory Barriers,” directed the FTC to work with other agencies, including the
Department of Education (Department), to “eliminat[e] anti-competitive regulations to revitalize
the American economy.”3 Last year, Executive Order 14279, “Reforming Accreditation to
Strengthen Higher Education,” also called on the Department “to increase competition and
accountability” among agencies that accredit higher education institutions.4 President Trump
recognized that these “accreditors are the gatekeepers that decide which colleges and universities”
1 The views expressed in this statement represent the views of the Commission.
2 Letter from Andrew N. Ferguson, Chairman of the FTC, to Russell Vought, Dir. of the Off. of Mgmt. and Budget, 1
(Sept. 16, 2025) [hereinafter Ferguson Vought Letter], https://www.ftc.gov/system/files/ftc_gov/pdf/Anticompetitive-
Regulations-Ferguson-Letter.pdf (“Over the years, the Federal Register has swollen with all manner of regulations
that create barriers to competition, entrepreneurship, and innovation that hinder American growth[] . . . and lock out
new competitors.”).
3 Exec. Order No. 14267, Reducing Anti-Competitive Regulatory Barriers, 90 Fed. Reg. 15629, 15629 (Apr. 15, 2025).
4 Exec. Order No. 14279, § 3(b)(i), Reforming Accreditation to Strengthen Higher Education, 90 Fed. Reg. 17529,
17,529 (Apr. 28, 2025).

2
are eligible for billions in federal student loan funding.5 He noted that accreditors have “abused
their enormous authority” and failed to ensure that “colleges and universities focus on delivering
high-quality academic programs at a reasonable price.”6 To address these concerns, the
Department issued an August 20, 2026 notice of proposed rulemaking (NPRM), “proposing a
comprehensive modernization of the regulations for recognition of accrediting agencies.”7 This
letter responds to the NPRM’s request for comment.
The 	Commission 	has 	substantial 	experience 	evaluating 	the 	competitive 	effects 	of
accreditation, professional licensing, and related restrictions across the U.S. economy. The
Commission’s prior advocacy highlights the risks of entrusting market participants to act as
gatekeepers for their profession or to set the terms on which they and their competitors may
compete.8 The Commission has also warned that incumbent providers can harm competition by
imposing 	costly 	educational 	requirements 	to 	discourage 	new 	competitors 	from 	seeking
professional licensure.9 Professional associations can impose such competitive harms through their
control over accreditation.10 As Part II discusses below, the American Bar Association (ABA) is
a cautionary tale for the competitive harms that a monopolist programmatic accreditor can
impose.11
The Department’s proposed rulemaking addresses competition issues directly. We applaud
the Department for recognizing that “increasing competition among recognized accrediting
5 Id. § 1.
6 Id.
7 Dep’t of Education, Accreditation, Innovation, and Modernization: The Secretary’s Recognition of Accrediting
Agencies: Institutional Eligibility Under the Higher Education Act of 1965, as Amended, Student Assistance General
Provisions, 91 Fed. Reg. 53940, 53940 (Aug. 20, 2026) [hereinafter NPRM].
8 See M AUREEN K. O HLHAUSEN, FED. T RADE COMM ’ N, PREPARED STATEMENT OF THE FEDERAL T RADE COMMISSION
BEFORE THE U NITED STATES SENATE COMMITTEE ON THE JUDICIARY SUBCOMMITTEE ON A NTITRUST , COMPETITION
POLICY AND CONSUMER RIGHTS, “L ICENSE TO COMPETE : O CCUPATIONAL L ICENSING AND THE STATE A CTION
D OCTRINE ,” 1–2 (Feb. 2, 2016) [hereinafter Ohlhausen Senate Statement], https://www.ftc.gov/system/files/
documents/public_statements/912743/160202occupationallicensing.pdf (“[W]hen regulatory authority is delegated to
a board composed of members of the occupation it regulates,” their “private interests may lead to . . . restrictions that
discourage new entrants, deter competition among licensees and from providers in related fields, and suppress
innovative products or services that could challenge the status quo.”); Selected Advocacy Relating to Occupational
Licensing, FED. T RADE COMM’ N, https://www.ftc.gov/policy/advocacy-research/advocacy/economic-liberty/selected-
advocacy-relating-occupational-licensing (last visited Sept. 16, 2026) (linking to over 20 such advocacies).
9 Fed. Trade Comm’n, FTC Staff Comment Letter on Washington Administrative Code 4-25-710, § IV (Mar. 18,
1996), 	https://www.ftc.gov/sites/default/files/documents/advocacy_documents/ftc-staff-comment-honorable-jean-
silver-concerning-washington-administrative-code-4-25-710-require/v960006.pdf (cautioning that requiring 150
hours of undergraduate coursework to sit for the CPA examination could “increase the cost of entry and may raise
prices to consumers of CPA services,” and recommending that the state “seek persuasive evidence that,
notwithstanding these concerns, the net effect of the amendment on consumers would be positive”).
10 See Press Release, Fed. Trade Comm’n, FTC Announces Investigation of American Medical Association (Apr. 13,
1976) (on file with Fed. Trade Comm’n) (announcing that the FTC had “commenced an investigation to determine
whether the American Medical Association may have illegally restrained the supply of physicians and health care
services through activities relating to . . . accreditation of medical schools and graduate programs”).
11 The Commission recently emphasized these concerns in letters advocating that state supreme courts reduce their
reliance on American Bar Association (ABA) accreditation in determining eligibility to take state bar examinations.
See Fed. Trade Comm’n, FTC Staff Comment to the Ohio Supreme Court Regarding Amendments to the Supreme
Court Rules for the Government of the Bar of Ohio (July 10, 2026) [hereinafter FTC Ohio Supreme Court Letter],
https://www.ftc.gov/legal-library/browse/advocacy-filings/ftc-staff-comment-supreme-court-ohio-concerning-
amendments-supreme-court-rules-government-bar-ohio.

3
agencies is likely to improve the quality, responsiveness, and effectiveness of accreditation.”12 To
that end, the Department has proposed reforms to reduce regulatory barriers that impede the entry
of new accreditors and to promote competition by making it easier for education institutions to
switch accreditors.13 The NPRM also includes steps to limit the ability of trade and professional
associations to use their influence over accrediting agencies to restrain competition.14 Trade and
professional associations have inherent incentives to induce accreditors to adopt excessive
educational standards, and the reforms in the NPRM are laudable efforts to prevent such abuse.
I. 	Accreditation offers benefits, but limited competition and adverse incentives risk
anticompetitive harm.
Effective accreditation in American higher education can benefit students and consumers.
Higher education can open doors to many rewarding careers, but it is often quite expensive and
may saddle students with heavy debt. Accreditation could provide prospective students with
reliable information they need to make such consequential decisions.15 Accreditation could also
protect taxpayers. American students receive more than $100 billion per year in federal student
loans and Pell Grants.16 To qualify their students for such funding, higher education institutions
must 	obtain 	accreditation 	from 	an 	accreditor 	recognized 	by 	the 	Department.17 Effective
accreditation could help ensure that federal funds pay for worthy educational programs that
enhance loan recipients’ employment prospects.18 Finally, accreditation could benefit employers
and consumers of professional services by providing useful information about whether a
professional received a quality education.19
At the same time, anticompetitive accreditation harms prospective students, consumers,
taxpayers, and the broader American economy. It can facilitate coordination by educational
institutions to impose excessive costs and exclude lower cost competitors, leading to higher
tuition.20 Overly burdensome or restrictive accreditation standards also stifle innovation and
12 NPRM, supra note 7, at 53944.
13 See Part III.A, infra.
14 See Part III.B, infra.
15 Judith S. Eaton, Council for Higher Educ. Accreditation, An Overview of U.S. Accreditation 2 (2015),
https://files.eric.ed.gov/fulltext/ED569225.pdf (explaining that “[a]ccredited status is a signal to students and the
public that an institution or program meets at least threshold standards”).
16 Exec. Order No. 14279, supra note 4, § 1.
17 Cong. Rsch. Serv., An Overview of Accreditation of Higher Education in the United States, Summary
(Apr. 12, 2024), https://www.congress.gov/crs_external_products/R/PDF/R43826/R43826.12.pdf (“Postsecondary
schools seeking to participate in these federal programs must meet a variety of requirements, including being
accredited by an agency recognized by the U.S. Department of Education (ED) as a reliable authority on the quality
of the education being offered.”).
18 See id., at Summary (explaining that accrediting agencies should “assess student achievement in relation to the
institution’s mission, including, as applicable, course completion, passage of state licensing examinations, and job
placement rates”).
19 Eaton, supra note 15, at 3 (accreditation “is important to employers when evaluating credentials of job
applicants”).
20 See, e.g., Roger E. Meiners & Andrew P. Morriss, Accreditation as Cartelization: Applying Antitrust Principles to
Higher Education, 18 D REX. L. REV. 633, 650 (2025) (accreditation is “[t]he primary way colleges are able to collude
to the detriment of their consumers (students)” since it “solves a fundamental problem of cartelization”); Lindsey M.
Burke & Stuart M. Butler, Accreditation: Removing the Barrier to Higher Education Reform 8, Heritage Foundation
(Sept. 21, 2012), https://perma.cc/292J-SYLX (accreditation “can [] become a barrier to entry in a market, enabling
existing providers to use licensing to thwart competition”); NPRM, supra note 7, at 53961 (“An ineffective and

4
prevent higher education institutions from competing to attract students with inventive, creative
programs that may offer a better, more cost-effective education for some students.21
Competition among accreditors could encourage accreditors to provide the quality-
assurance benefits of accreditation without imposing undue burdens.22 Universities faced with an
accreditor that imposes unnecessary costs or unduly limits innovation could choose another
accreditor 	with 	more 	reasonable, 	flexible 	standards.23 	Unfortunately, 	as 	the 	Department
recognizes, “[a]ccreditation has historically seen very little competition.”24 Many institutions are
“accredited by a handful of institutional accrediting agencies,”25 and “both new accrediting agency
recognition and changes in agency by institutions are rare.”26 Further, despite the Department’s
2019 decision freeing the former major regional accreditors to operate outside of their traditional
territories, little has changed. These incumbents continue to largely accredit institutions within
those geographic confines, while few institutions have switched between accreditors.27
The composition of accreditors may also cause a misalignment in incentives that can
discourage innovation and promote higher costs.28 Many accreditors are dominated by higher
education interests, such as university administrators, faculty, and lobbyists. For example, 21 out
of the 27 commissioners for the Middle States Commission on Higher Education are college or
university faculty or administrators.29 Such individuals may offer valuable experience and
expertise that informs accreditation standards. But incumbent universities’ employees also have
strong anticompetitive incentives to impose excessive accreditation standards.30 Expensive tuition,
often financed by crushing student debt, funds their salaries and provides them with job security;
outdated accrediting agency is not a good use of taxpayer dollars via the institutions or programs it accredits and may
leave students without a good return on investment and with insurmountable student loan debt that they may struggle
to repay . . . .”).
21 See, e.g., Mary Watson Smith & Joshua Hall, Keeping College Pricey: The Bootlegger and Baptist Story of Higher
Education Accreditation, 44 O KLA. CITY U. L. REV. 33, 53 (2019) (describing how the University of Virginia was
sanctioned by its accreditor, the Southern Association of Colleges and Schools, when it “remove[d] the university
president . . . in favor of one more focused on cost controls”) (footnote omitted).
22 NPRM, supra note 7, at 53944 (“institutions seek credible signals of educational quality, and [] in a competitive
accreditation market, agencies would compete to provide those signals”).
23 Ibid. (“Competition creates incentives for agencies to innovate, respond to workforce changes, expand choices for
institutions among agencies engaged in various types of innovative activities and to develop new measures for
assessing student success by institutions.”).
24 Ibid.
25 Ibid.
26 Id. at 53984. In part, this is because “institutions face difficulty in changing accrediting agencies due to high
switching costs and potential risks in maintaining eligibility for Federal student aid for their students.” Id. at 53944.
27Id. at 53984 (“since 2020, only ten institutions have voluntarily switched from one of the agencies formerly known
as a regional accrediting agency, and that fewer than 50 have ever voluntarily switched away from these accreditors”).
28 See id. at 53944 (“barriers to switching generally reduce competition and increase market power through a lock-in
effect”).
29 See Commissioners, Middle States Commission on Higher Education, https://www.msche.org/commissioners/ (last
visited Sept. 16, 2026). Other former regional accreditors have similar compositions. See, e.g., 	Commissioner
Directory, Northwest Commission on Colleges and Universities, https://nwccu.org/commissioners/ commissioner-
directory/ (last visited Sept. 16, 2026) (20 out of 26 commissioners are college or university faculty or administrators);
Meet the Commission, New England Commission of Higher Education, https://www.neche.org/about/#commission
(last visited Sept. 16, 2026) (22 out of 31 commissioners are college or university faculty or administrators); HLC
Board of Trustees, Higher Learning Commission, https://www.hlcommission.org/about-hlc/leadership/board-of-
trustees/ (last visited Sept. 16, 2026) (15 out of 18 trustees are college or university faculty or administrators).
30 See, e.g., FTC Ohio Supreme Court Letter, supra note 11, at 3–4.

5
their livelihoods depend on the expensive status quo. This reality provides a strong incentive for
accreditors dominated by higher education interests to impose burdensome requirements that
prevent the development of lower cost education models that could reduce tuition and the demand
for incumbent universities.
The situation for programmatic accreditors—accreditors for specific education programs,
including those preparing students for entry into a profession such as law schools or medical
schools—is often worse. Like institutional accreditors, many programmatic accreditors are
influenced by higher education interests.31 But programmatic accreditors are also often guided by
incumbent members of the profession and are affiliated with the professional associations that
represent the current professionals’ interests.32 These two groups, educators and incumbent
professionals, dominate many programmatic accrediting boards.33 While higher education
interests and incumbent professionals (and their professional associations) may have valuable
expertise regarding the education needed to prepare students for the profession, they also have
inherent anticompetitive incentives. Crucially, both groups share similar incentives to use
influence over accreditation to raise educational costs and impede the introduction of lower-cost
alternatives.34 Doing so enables incumbent professionals to keep their wages and prices high by
raising the cost for others to enter the profession.35
To make matters worse, many programmatic accreditors are monopolists who dictate the
requirements 	for 	nearly 	every 	school 	for 	certain 	professions 	(e.g., 	law).36 	When 	these
programmatic accreditors go too far, the professional schools may have little choice but to comply
if there are no competing accreditors. Granting professional associations a monopoly to dictate the
education requirements for entering their profession is therefore inimical to the principles on which
competition law rests. Professional and trade associations have violated the antitrust laws by
31 See infra Part II (discussing accreditation of law schools by the ABA Council).
32 See Meiners & Morriss, supra note 20, at 688 (describing how “AICPA [the American Institute of CPAs], AMA,
and ABA leverage accreditation requirements to restrict entry into their professions through excessive educational
mandates”).
33 	See, 	e.g., 	Section 	of 	Legal 	Education 	and 	Admissions 	to 	the 	Bar 	Leadership, 	ABA,
https://www.americanbar.org/groups/legal_education/about/leadership/ (last visited Sept. 16, 2026) (showing the
professional titles of the 21 Council members, including 15 listing current or former positions at law schools or
universities and three practicing lawyers); Board of Commissioners, Accreditation Commission for Education in
Nursing, https://www.acenursing.org/about/board-of-commissioners (last visited Sept. 16, 2026) (listing 17 members,
including seven nurses and seven nursing school educators); Accreditation, American Board of Funeral Service
Education, https://www.abfse.org/html/committee.html (last visited Sept. 16, 2026) (stating that the Committee on
Accreditation is composed of 12 members, including six representing funeral service educators and three representing
funeral home organizations).
34 FTC Ohio Supreme Court Letter, supra note 11, at 7–9.
35 Id. at 4–6.
36 See NPRM, supra note 7, at 53990 (“there are usually, at most only one or two, and in rare cases multiple,
programmatic agencies that provide recognition for a given field or occupation,” so they “very often have dominance
in their field”).

6
entering into agreements unduly restricting competition among themselves,37 or by interfering
with the ability of others to compete.38
The Commission has repeatedly emphasized harm to competition that can result from
relying on the members of a professional association to control accreditation, and thereby
determine the education required to enter into the profession.39 This “inherent conflict of interest
and a risk of anticompetitive abuse” arises “in any accreditation program where market participants
wield the power to exclude”—“for even the most selfless and well-intentioned decision makers”
may be influenced when decisions “direct[ly] implicat[e] their own status . . . and well-being.” 40
These concerns are particularly strong when a professional association and the accreditor share an
organization structure, for example, when the professional association has a role in selecting those
who wield accreditation authority.41
II. 	The ABA’s anticompetitive use of its law school accreditation monopoly shows the
harms of insufficient accreditation competition, particularly for professional
programs.
The ABA’s abuse of its monopoly control over law school accreditation illustrates the
harms that may arise when professional associations exercise control over accreditation. The ABA
is the largest voluntary professional organization in the world; its purported “mission is to be the
national representative of the legal profession,” serving a membership filled with practicing
attorneys.42 The ABA’s Council of the Section of Legal Education and Admissions to the Bar
(ABA Council) establishes the standards that law schools must meet to become accredited,
covering areas such as faculty, admissions, curriculum, governance, and libraries and other
facilities.43 It also determines whether law schools have complied with these standards and warrant
ABA accreditation.44 The ABA Council has twenty-one members who are predominantly current
or former law school or other university administrators or faculty; the remainder include practicing
37 See, e.g., Goldfarb v. Va. State Bar, 421 U.S. 773, 783 (1975) (holding that a county bar association rule establishing
a minimum fee schedule enforced via potential disciplinary action was “a classic illustration of price fixing” by the
state bar); FTC v. Ind. Fed’n of Dentists, 476 U.S. 447, 456–65 (1986) (affirming an FTC order that an Indiana
Federation of Dentists policy requiring its members to withhold x-rays violated the antitrust laws).
38 See, e.g., E. States Retail Lumber Dealers’ Ass’n v. United States, 234 U.S. 600, 611–14 (1914) (affirming a
Sherman Act violation against associations of retail lumber dealers who conspired to prevent competition from
wholesale dealers); Fashion Originators’ Guild, Inc. v. FTC, 312 U.S. 457, 463–65 (1941) (affirming an FTC order
that a trade association of garment manufacturers cease an organized boycott designed to thwart the sale of lower-
priced garments that are similar to the trade association members’ original styles).
39 See, e.g., FTC Ohio Supreme Court Letter, supra note 11.
40 Marina Lao, Discrediting Accreditation?: Antitrust and Legal Education, 79 WASH. U. L. Q. 1035, 1036–37 (2001).
41 See Bryan Cutsinger & Siri Terjesen, Captured Gatekeepers: Structural Conflicts of Interest in U.S. Higher
Education 	Accreditation, 	E UR . 	E CON. 	REV. 	(forthcoming 	2026), 	https://www.sciencedirect.com/science/
article/pii/S0014292126002114 (assessing the degree of capture of accreditors by professional associations with close
organizational ties).
42 Consumer FAQs, ABA, https://www.americanbar.org/groups/professional_responsibility/resources/resources_
for_the_public/consumer_faqs/ (last visited Sept. 16, 2026).
43 See ABA SECTION OF L EGAL E DUC . AND A DMISSIONS TO THE BAR , STANDARDS AND RULES OF PROCEDURE FOR
A PPROVAL OF L AW SCHOOLS 2026–2027 [hereinafter ABA Standards], https://www.americanbar.org/groups/
legal_education/accreditation/standards/standards-rules/ (last visited Sept. 16, 2026).
44 Schools Seeking Council Approval, ABA, https://www.americanbar.org/groups/legal_education/accreditation/ (last
visited Sept. 16, 2026). The law school accreditation application process is lengthy, including payment of a fee,
preparation of studies by the applicant, collection of data, and a site evaluation team visit and report. See id.

7
lawyers, judges, and a law student.45 These ABA Council members are selected by an ABA
Section largely composed of law school faculty and administrators.46
The ABA currently has a monopoly on the accreditation of American law schools.47 There
are over 200 law schools in the United States, and the ABA accredits over 80% of them.48 The
ABA is the sole law school accreditor recognized by the Department and the only one to operate
on a national level across multiple states. Law schools therefore lack alternatives to ABA
accreditation through which to signal quality or obtain access to federal student-loan funding.49
This monopoly power is further protected by rules and regulations in most states that make
eligibility for their respective bars depend either entirely or heavily on graduation from an ABA-
accredited law school.50
The ABA, unfortunately, has a long history of using its law school accreditation monopoly
to harm competition. Thirty years ago, the United States Department of Justice (DOJ) brought a
Sherman Act complaint against the ABA and challenged conduct that dated back to 1973.51 The
DOJ alleged that the ABA allowed “[l]egal educators” to capture the accreditation process, “at
45 	Section 	of 	Legal 	Education 	and 	Admissions 	to 	the 	Bar 	Leadership, 	ABA,
https://www.americanbar.org/groups/legal_education/about/leadership/ (last visited Sept. 16, 2026) (showing the
professional titles of the 21 Council members, with 15 listing current or former positions at law schools or universities
and three listing positions as lawyers). The ABA Council’s standards setting committee is likewise dominated by
current and former faculty members. Id. (showing that nine of the eleven members of the ABA Council’s Standards
committee are current or former law school or university faculty or administrators or are lawyers).
46 The ABA’s Section of Legal Education and Admissions to the Bar has over 17,000 members. About the Section of
Legal Education and Admissions to the Bar, ABA, https://www.americanbar.org/groups/legal_education/about/ (last
visited Sept. 16, 2026); New to Bar Admissions? What You Might Like to Know About: The ABA’s Connection to Bar
Admissions, 90 T HE BAR E XAMINER 86 (Spring 2021), https://thebarexaminer.ncbex.org/article/spring-2021/new-bar-
admissions-aba-connections/ (reporting that the Section’s “membership is generally composed of legal educators and
bar examiners” but “is open to any ABA member”).
47 See WORKGROUP ON THE ROLE OF THE A MERICAN BAR A SSOCIATION IN BAR A DMISSION REQUIREMENTS: FINAL
REPORT 	16 	(Oct. 	27, 	2025) 	[hereinafter 	Florida 	Workgroup 	Report], 	https://www-media.floridabar.org/
uploads/2025/10/Final-Report-of-the-Workgroup-on-the-Role-of-the-ABA-in-Bar-Admission-Requirements.pdf
(“[T]he [ABA], through its Council, holds a near monopoly over legal education accreditation in the United States.”);
George B. Shepherd & William G. Shepherd, Scholarly Restraints? ABA Accreditation and Legal Education, 19
C ARDOZO L. REV. 2091, 2198 (1998) (“The ABA accreditation system creates almost complete monopoly control
over each of the three markets for hiring law faculty, for legal training, and for legal services.”).
48 See Council-Approved Law Schools, ABA SECTION OF L EGAL E DUC . AND A DMISSIONS TO THE BAR ,
https://www.americanbar.org/groups/legal_education/accreditation/approved-law-schools 	(last 	visited 	Sept. 	16,
2026) (reporting that 198 law schools have ABA accreditation); Other Law Schools, L. SCH. A DMISSION C OUNCIL ,
\\https://www.lsac.org/choosing-law-school/find-law-school/other-law-schools (last visited Sept. 16, 2026) (listing 32
non-ABA-accredited law schools in the United States).
49 Independent law schools rely on ABA accreditation to make their students eligible for federal financial aid. Students
at law schools attached to a university that has its own accreditation, which includes most law schools, could rely on
the university’s accreditation to access federal financial aid. See Emma Cueto, ABA Faces Uphill Battle to Remain as
Law School Accreditor, ABA J. (Aug. 27, 2026), https://www.law360.com/competition/articles/2518015.
50 See, e.g., Comprehensive Guide to Bar Admission Requirements, N AT ’ L CONFERENCE OF BAR E XAM ’ RS,
https://reports.ncbex.org/comp-guide/charts/chart-3/ (last visited Sept. 16, 2026) (summarizing the requirements in
each state); Florida Workgroup Report, supra note 47, attach. B: Chart of Educational Requirement to Sit for the Bar
Examination in the United States (same).
51 	See 	Compl., 	United 	States 	v. 	Am. 	Bar 	Ass’n, 	No. 	95-cv-01211 	(D.D.C. 	June 	27, 	1995),
https://www.justice.gov/atr/case-document/file/485696/dl; Competitive Impact Statement, United States v. Am. Bar
Ass’n, No. 95-cv-01211 (D.D.C. July 14, 1995), https://www.justice.gov/atr/case-document/file/485691/dl.

8
times act[ing] as a guild that protected the interests of professional law school personnel.”52 The
complaint stated that ABA “salary standards and their application . . . unreasonably restricted
competition in the law school labor market and” forced accredited schools to “ratchet[] up law
school salaries.”53 According to the DOJ, other restrictions “deterr[ed] effective competition from
[non-ABA-accredited] law schools.”54 The ABA settled, resolving the lawsuit through a consent
decree.55 In 2006, the U.S. District Court for the District of Columbia found that “on multiple
occasions the ABA ha[d] violated clear and unambiguous provisions” of that consent decree; it
ordered the ABA to comply and pay $185,000 to compensate the DOJ for the costs of the
investigation.56
Nonetheless, the ABA continues to wield its law school accreditation monopoly in a
manner that harms competition. When it strikes the right balance, 	accreditation can be
procompetitive and serve the state’s interest in “safeguard[ing] a baseline of legal educational
quality and support.”57 The ABA fails to do so. It forces every law school to follow its preferred
costly, elitist model of legal education.58 Over twenty years ago, Professor Marina Lao scrutinized
the ABA’s accreditation standards, finding that they “reflect the profession’s preference for the
elite-model law school,” and exclude schools providing a “nonelite legal education [that] is
perfectly adequate for many types of legal practice.”59
Secure in its state-protected monopoly position, the ABA Council has brushed off such
calls for a commonsense approach that sets baseline requirements to ensure a law school’s
graduates are competent to practice law. Instead, the ABA’s standards impose excessive
restrictions that unnecessarily “drive up costs for law schools”60 and protect the interests of
incumbent higher education institutions and their faculty.61 By increasing the costs of legal
52 Competitive Impact Statement, supra note 51, at 2, 4.
53 Compl., supra note 51, ¶ 16.
54 Competitive Impact Statement, supra note 51, at 6–7.
55 The consent decree prohibited standards relating to compensation paid to law school faculty and administrators,
restricted the collection and dissemination of information regarding compensation, and eliminated certain restrictions
on accepting transfer credits from state-accredited law schools or enrolling graduates of such schools in post-J.D.
programs. It also included structural provisions designed to insulate the ABA Council’s conduct from influence by
interested parties such as legal educators. See United States v. Am. Bar Ass’n, 934 F. Supp. 435, 436–37 (D.D.C.
1996). The decree was modified in 2001 to limit the role of the ABA House of Delegates in reviewing Council
decisions and conform with Department of Education regulations. United States v. Am. Bar Ass’n, 135 F. Supp. 2d
28, 30, 32 (D.D.C. 2001).
56 United States v. Am. Bar Ass’n, No. 95-cv-1211, 2006 U.S. Dist. LEXIS 42645, at *2 (D.D.C. June 26, 2006);
Petition by the United States for an Order to Show Cause Why Defendant ABA Should Not Be Found in Civil
Contempt ¶¶ 11–17, United States v. Am. Bar Ass’n, No. 95-cv-1211 (D.D.C. June 23, 2006), Dkt. No. 101.
57 Florida Workgroup Report, supra note 47, at 17 (footnote omitted).
58 See, e.g., Letter from Robert Chesney, Dean of the University of Texas School of Law, to the Honorable Chief
Justice and Justices of the Supreme Court of Texas § 2 (June 30, 2025) (on file with FTC).
59 Lao, supra note 40, at 1102. See also Shepherd & Shepherd, supra note 47, at 2103 (“Formal study at an elite-style
law school is certainly one way to train lawyers. But it is not necessarily the best or most cost-effective method for all
potential lawyers.”).
60 Florida Workgroup Report, supra note 47, at 21.
61 See Shepherd & Shepherd, supra note 47, at 2096 (explaining that “faculty control the law schools, and, consciously
or not, they operate them to maximize benefits for faculty”). Moreover, ABA Council members from colleges or
universities without law schools have an interest in the ABA’s insistence that law school students obtain an
undergraduate degree prior to starting law school.

9
education, the ABA’s excessive accreditation standards also limit the supply of new lawyers.62
Thus, ABA accreditation serves the interests of lawyers and law school faculty who dominate the
ABA and Council, while potentially injuring consumers of legal services and saddling law students
with high costs.63
The excesses of ABA accreditation take various forms. There are longstanding concerns
that the ABA standards “focus on inputs” that increase costs more than “educational outputs” that
ensure the schools provided actual educational benefits.64 For example, critics question the ABA’s
requirements for physical libraries, demands for full-time (rather than adjunct) faculty, strict limits
on faculty teaching loads, and emphasis on faculty research.65 ABA standards also severely limit
online courses and programs that could provide lower cost educations.66
Moreover, in recent years, the ABA has even dictated that law schools enact measures that
conform to controversial ideological views prevalent among legal elitists, notwithstanding public
opposition and the measures’ irrelevance to ensuring a baseline level of legal education. Of
particular concern has been the ABA’s use of ABA Standard 206 to impose DEI requirements on
American law schools to obtain accreditation.67 Attorneys General of 21 states declared that
Standard 206 “all but compels law schools to consider race in both the admissions and employment
contexts” and thereby “to defy the [Supreme] Court’s clear directive” in Students for Fair
Admissions, Inc. v. President & Fellows of Harvard College, 600 U.S. 181 (2023).68
62 See, e.g., FTC Staff Comment Letter on Washington Administrative Code 4-25-710, supra note 9, § III (explaining
that an increase in the course work hours required for CPA exam eligibility can increase the costs of entry into the
profession, and therefore serve the “economic self-interest” of incumbent suppliers).
63 The other members of the ABA Council also have anticompetitive incentives. University faculty and administrators
benefit from the Council’s requirement that students complete an undergraduate degree to qualify for admission to
law school. See FTC Ohio Supreme Court Letter, supra note 11, at 8 n.51. Student representatives on a programmatic
accreditor also “have little incentive to promote standards that lower costs” because they expect to soon enter the
profession and would then benefit from high education costs that deter others from entering the profession and
becoming their competitors. See id. at 9 n.53.
64 Florida Workgroup Report, supra note 47, at 18 (quoting Benjamin M. Lepak, Breaking the ABA’s Law School
Cartel: A Proposal to Make Oklahoma Top-Ten in Innovative Lawyer Education 4, 1889 I NST . (2020),
https://1889institute.org/wp-content/uploads/2020/10/1889_ABAaccreditation_PolicyAnalysis.pdf); 	id. 	at 	19
(including criticisms from a former ABA Accreditation Committee member that input requirements “have no real
connection to the quality of education”).
65 Florida Workgroup Report, supra note 47, at 18–21; Lao, supra note 40, at 1040–43, 1074–78 (describing the wide
range of law school operations covered by the ABA’s “elite-style law school” standards and their anticompetitive
impact); John S. Elson, Why and How the Practicing Bar Must Rescue American Legal Education from the Misguided
Priorities of American Legal Academia, 64 T ENN. L. REV. 1135, 1141–42 (1997) (noting that these standards “keep
out of the legal education market schools that would prefer to focus their resources on preparing students for practice”).
66 Generally, ABA accreditation requires that law schools offer no more than half their courses online. See ABA
Standards, supra note 43, at 26–27 (Standard 306).
67 See ABA Standards, supra note 43, at 17 (Standard 206).
68 Letter from State Attorneys General to David A. Brennen, Council Chair, ABA Section of Legal Educ. and
Admissions to the Bar, at 2 (Jan. 6, 2025), https://www.scag.gov/media/ru4dwwfm/multistate-comment-re-standard-
206-filed.pdf; see also Letter from Pamela Bondi, Att’y Gen., U.S. Dep’t of Justice, to David A. Brennen, Council
Chair, 	ABA 	Section 	of 	Legal 	Educ. 	and 	Admissions 	to 	the 	Bar, 	at 	1 	(Feb. 	28, 	2025),
https://www.justice.gov/ag/media/1392081/dl?inline (stating that Standard 206 “blatantly violates our nation’s civil
rights laws and conflicts with the Supreme Court’s decision in Students for Fair Admissions, Inc. v. President &
Fellows of Harvard College”). After much delay, the ABA Council finally voted to repeal Standard 206 on September
8, 2026. See Julianne Hill, ABA Legal Ed council repeals DEI standard, ABA J. (Sept. 8, 2026),
https://www.abajournal.com/web/article/legal-ed-council-kills-dei-standard.

10
Competition in law school accreditation could blunt the ability of the ABA to insist that
law schools provide expensive, ideologically biased educations. If other, differentiated law school
accreditors existed, schools that wished to compete by offering a distinct, more affordable product
could seek accreditation from those ABA alternatives. Competitive market forces could thus spur
innovation in the stagnant market for legal education. Even the ABA’s allies, including a former
managing director for the ABA Council, recognize that alternative accreditors could offer valuable
options to “[s]chools that think that the current ABA process is too expensive, too slow, too
burdensome, or too intrusive on matters that should be left to schools to determine.”69 Fortunately,
as discussed directly below, the Department recognizes the importance of promoting competition
among accreditors, and has made this outcome a central goal of the accreditation reforms proposed
in the NPRM. The Department has also proposed changes to attempt to reduce the anticompetitive
incentives that plague some programmatic accreditors, like the ABA.
III. 	The Department’s proposed reforms promote competition in markets for
accreditation and educational services, while protecting against professional and
trade associations’ abuse of accreditation to impede competition.
The NPRM addresses concerns with anticompetitive abuses by accrediting agencies in two
ways. First, several reforms seek to increase competition in accreditation markets by encouraging
the entry of new accreditors and increasing competitiveness among existing accreditors. Second,
the NPRM attempts to reduce the extent to which accreditors’ incentives favor the interests of
incumbent universities and professionals over students and taxpayers.
A. 	Reforms to increase competition in accreditation markets.
The NPRM emphasizes the importance of accreditation competition to “promote high-
quality, high value, and affordable education for students.”70 The Department recognizes that
competition in accreditation has been limited by historical factors and the costs institutions face in
switching accreditors.71 Its reforms “are intended to increase competition among accrediting
agencies by reducing barriers to entry, facilitating institutional mobility among recognized
agencies, and reducing regulatory requirements that may unnecessarily discourage the formation
of innovative accrediting organizations.”72 With these proposed reforms, the hope is that “more
agencies will choose to enter the marketplace and greater numbers of institutions will choose to
change accreditors, thereby enhancing competition.”73
The Department wisely proposes reducing the regulatory barriers that inhibit the entry of
new accreditors. It would eliminate the requirement that an accrediting agency engage in
accrediting activities for at least two years prior to seeking recognition, explaining that this
“removes a significant competitive barrier to entry.”74 This proposed change enhances the
Department’s ongoing effort to reduce the “cumulative four-to-five year timeframe” for new
69 Letter from Barry Currier to Justices of the Tx. Sup. Ct., Comments on the Court’s Reliance on the ABA Law
School Accreditation System 4 (June 23, 2025) (on file with Fed. Trade Comm’n). Mr. Currier “wr[o]te as the former
Managing Director of Legal Education and Accreditation at the American Bar Association (2012–2020), which
manages the law school regulatory process for the Council.” Id. at 1.
70 NPRM, supra note 7, at 53943; see also EO 14279, supra note 4, § 3(a)(i).
71 NPRM, supra note 7, at 53944, 53984.
72 Id. at 53944.
73 Id. at 53984.
74 Id. at 53951.

11
accreditors to obtain recognition, which substantially increases entry costs.75 The Department
explains that it “expects [this action] will induce more accreditation agencies to pursue recognition
and ultimately increase competition in the accreditation market.”76 The logic is sound and
consistent with the Commission’s competition advocacy and enforcement. The elimination of
regulatory barriers to entry was a centerpiece of the FTC Chairman’s list of anticompetitive
regulations that warrant revision or elimination, prompted by President Trump’s executive order
on “Reducing Anti-Competitive Regulatory Barriers.”77 Protecting the ability of new firms to enter
and compete is crucial to combatting monopoly power and promoting innovation.78
The proposed reforms also “incorporate the policies and practices” designed to reduce the
costs institutions face in switching accreditors, many of which the Department outlined in a Dear
Colleague Letter in May 2025.79 Notably, the proposed regulations provide that the Secretary will
generally accept an institution’s stated reason for switching accreditors or seeking accreditation
from multiple accreditors to “promote flexibility and innovation while maintaining necessary and
robust guardrails.”80 These proposed reforms appear well-suited to encourage competition among
accreditors because high costs and delays to switch accreditors can greatly reduce a university’s
incentive to switch to competing accreditors. Indeed, the antitrust caselaw acknowledges that high
switching costs can allow incumbents to exploit locked-in customers,81 and economic research
shows that lowering barriers to switching encourages incumbent firms to compete more
aggressively.82 In addition, high switching costs can discourage the entry of new accreditors, as
successful entry would likely depend on the ability of the new accreditors to attract institutions
willing to switch from an incumbent accreditor.83
B. 	Reforms to prevent anticompetitive abuse of accreditation by professional or trade
associations.
Recognizing that concentrated, even monopolistic accreditation markets will not transform
overnight, the NPRM seeks to reduce incumbent accreditors’ willingness and incentives to behave
75 U.S. Dep’t of Educ., Regulatory Guidance Relating to the Criteria and Process for Initial Recognition of an
Accrediting Agency, 91 Fed. Reg. 9709, 9709–11 (Feb. 27, 2026) (quoting 34 C.F.R. § 602.12(a)).
76 NPRM, supra note 7, at 53951 (explaining that this reform enables the Department to begin its process).
77 Ferguson Vought Letter, supra note 2.
78 See Dep’t of Just. & Fed. Trade Comm’n, Merger Guidelines § 2.4 (Dec. 18, 2023) (recognizing that the entry of
new firms into a market can provide considerable benefits to consumers, and, as a result, “[m]ergers can substantially
lessen competition by eliminating a potential entrant” or otherwise creating barriers to entry that block new
competitors from entering a market).
79 NPRM, supra note 7, at 53947; Dep’t of Educ., Office of Postsecondary Education, Changes to the Approval Process
for Changing Accrediting Agencies, at 3 (May 1, 2025), https://www.ed.gov/media/document/dear-colleague-letter-
changes-approval-process-changing-accrediting-agencies-may-1-2025-109941.pdf.
80 NPRM, supra note 7, at 53947.
81 Eastman Kodak Co. v. Image Technical Servs., Inc., 504 U.S. 451, 476 (1992) (“If the cost of switching is high,
consumers who already have purchased the equipment, and are thus ‘locked in,’ will tolerate some level of service-
price increases before changing equipment brands.”).
82 Jiawei Chen et al., Reducing Switching Costs to Promote Competition: The Case of Mobile Number Portability, 68
REV. I ND. ORG. 461 (2026) (finding that the implementation of mobile number portability reduced consumers’ costs
of switching mobile phone providers and led to substantial price reductions and shifts to higher quality providers).
83 Aaron S. Edlin & Robert G. Harris, The Role of Switching Costs in Antitrust Analysis: A Comparison of Microsoft
and Google, 15 Y ALE J. L. & T ECH. 169, 185 (2012-2013) (explaining that, in U.S. v. Microsoft, “‘the applications
barrier to entry’” arose from the “difficult[y] for a rival operating system to attract users when users who switch from
Windows will bear a large compatibility switching cost”) (citing U.S. v. Microsoft Corp., 253 F.3d 34, 55 (D.C. Cir.
2001); U.S. v. Microsoft Corp., 87 F. Supp. 2d 30, 36 (D.D.C. 2000)).

12
anticompetitively. Proposed Section 602.13 makes clear that Department recognition does not
immunize accreditors’ conduct that violates the antitrust laws, a point that courts have also made
clear.84 Proposed Section 602.23(i) requires accrediting agencies to have “internal controls to
ensure compliance with antitrust laws.”85 And proposed Sections 602.31(d) and 602.32(a)(3)
provide that the Department can view “anticompetitive conduct that is violative of the antitrust
laws” as a negative factor in evaluating accreditors, specifically including collusion between an
accreditor and professional association to inflate the requirements for entry into the profession.86
Robust antitrust enforcement is essential to enabling effective competition, and highlighting that
regulators are attuned to the antitrust risks may deter violations.
The Department places special emphasis on limiting the ability of professional and trade
associations to use influence over programmatic accreditors to impose excessive educational
requirements and costs on entrants. The NPRM proposes “major new changes that mandate
separation between trade associations or affiliated organization and accrediting agencies.”87 As
discussed above, this threat to competition is a central theme of the Commission’s recent filings
in state supreme courts regarding ABA influence over law school accreditation.88 Professional
associations should not be given the capacity to erect barriers to entry by competitors.89 Moreover,
state regulators and boards frequently rely on the standards set by these accreditors when setting
licensing requirements for professionals in their states. In such cases, the harm from excessive
educational requirements is exacerbated, since it is backed by state power.90
Some of the most extensive changes are proposed requirements in Section 602.15(e) for
“clear and effective controls” accreditors must adopt to protect against anticompetitive abuses,
which are designed “to increase the specificity of these requirements.”91 The Department starts by
proposing to amend Section 602.3 to better identify the organizations that must maintain “clear
firewalls” designed to “ensure the independence of accrediting bodies” and prevent “undue
influence.”92 The Department’s regulations currently permit sharing of facilities and personnel
between accreditors and affiliated associations if the accreditor “pays the fair market value for its
proportionate share of the joint use.”93 Proposed Section 602.15(e)(4) prohibits “shared resources,
such as personnel, services, equipment, facilities, [] information technology, . . . [or] office
space.”94 The Department explained that the current regulations “did not adequately restrict []
84 NPRM, supra note 7, at 53951–52; see, e.g., Mass. Sch. of Law at Andover, Inc. v. Am. Bar Ass’n, 107 F.3d 1026,
1038–39 (3d Cir. 1997); Found. for Interior Design Educ. Rsch. v. Savannah Coll. of Art & Design, 244 F.3d 521,
531–32 (6th Cir. 2001).
85 NPRM, supra note 7, at 53963.
86 Id. at 54016–17; see also id. at 53971–72.
87 Id. at 53986.
88 See FTC Ohio Supreme Court Letter, supra note 11, at 2–3.
89 See Maureen K. Ohlhausen & Gregory P. Luib, Brother, May I?: The Challenge of Competitor Control over Market
Entry, 4 J. A NTITRUST E NF’ T 111, 111 (2016).
90 See FTC Ohio Supreme Court Letter, supra note 11, at 2–3.
91 NPRM, supra note 7, 53954. This proposed Section in part implements the revised requirement of proposed Section
602.14(b)(3) that accreditors have “established and implemented mandatory conflict of interest controls.” Id. at 53952.
92 Proposed Section 602.3 identifies a “related, associated, or affiliated trade association” as one that “prepare[s]
students to enter the work force of the same or substantially the same line of commerce, business, industry, or
profession that organization promotes.” Id. at 53948.
93 34 C.F.R. § 602.15(e)(4) (also requiring that the sharing does not “compromise the independence and
confidentiality” of the accreditation process).
94 NPRM, supra note 7, at 53954.

13
influence” that can result from “proximity” and relationships.95 This proposal to enforce a true
separation of the operations of the professional association and the accrediting agency is a wise
prophylactic measure. The sharing of facilities of personnel and facilities creates opportunities for
anticompetitive conduct and undue influence.96
Proposed Section 602.15(e)(7) represents perhaps the most direct attack on anticompetitive
use of accreditation by professional and trade associations. It prohibits an accreditor from taking
an action that “restrict(s) access to employment in a profession . . . unless the [accreditor] provides
notice of clear and convincing evidence to the Secretary that: (A) the restriction is necessary to
protect the public interest; (B) the expected public benefits outweigh the costs to the public from
reduced access to the profession . . . ; and (C) no less restrictive alternative would adequately
protect the public interest.”97 This requirement applies broadly to precisely the types of accreditor
actions that can adversely limit the supply of professionals and impose a high standard for
justifying decisions that may harm competition.98 If this provision becomes final, we encourage
the Department to ensure that it is enforced effectively. As the ABA has demonstrated, the
potential for anticompetitive actions by professional accreditors is substantial.
IV. 	Conclusion
We commend the Department for its focus on reforming its accreditation regulations to
encourage competition and “promote high-quality, high value, and affordable education for
students.”99 As the ABA has demonstrated, a monopolist accreditor can impose overly burdensome
requirements that drive up tuition, limit consumer choice, and inhibit innovation. The risk is
particularly acute because many accreditors are controlled by incumbent providers of education
and professional services invested in the status quo. We endorse the NPRM’s reforms to encourage
new accreditors to emerge and its steps to thwart anticompetitive incentives.
Sincerely,
/s/ Brendan Chestnut 	/s/ Daniel Guarnera
Brendan Chestnut 	Daniel Guarnera
Director 	Director
Office of Policy Planning 	Bureau of Competition
95 Id. at 53953. In addition, proposed Section 602.15(e)(5) includes a provision prohibiting “shar[ing] or solicit[ing]
feedback” from associations regarding the accreditor’s polices or decisions with respect to an institution or program.
Id. at 53954.
96 See, e.g., Christopher R. Leslie, The Decline and Fall of Circumstantial Evidence in Antitrust Law, 69 A M . U. L.
REV. 1713, 1730–31 (“Adam Smith famously asserted that ‘[p]eople in the same trade seldom meet together even for
merriment or diversion, but the conversation ends in a conspiracy against the public and in some contrivance to raise
prices.’ Although Smith overstated the case, competing firms do often find opportunities for collusion in trade
association conferences and other seemingly legitimate get-togethers.”) (quoting U.S. v. Taubman, 297 F.3d 161, 164
(2d Cir. 2002) (per curiam) (quoting Adam Smith, A N I NQUIRY INTO THE N ATURE AND CAUSES OF THE WEALTH OF
N ATIONS 55 (Great Books ed. 1952) (1776))) (footnotes omitted).
97 NPRM, supra note 7, 54007.
98 Ibid. (providing that the requirement covers “(A) taking steps to increase credentialing standards; (B) increasing the
cost or level of required education or training; or (C) decreasing the availability of education or training in a manner
that may benefit any related, associated, or affiliated trade association or professional organization”).
99 Id. at 53943; see also EO 14279, supra note 4, § 3(a)(i).

14