[Updated (1/16/2015, 8:13 p.m.) with analysis of and reaction to the court ruling.]
A state judge in California has concluded that a regional accreditor denied due process to City College of San Francisco, and has ruled that the two-year college must be given a new opportunity to argue against being closed.
In a draft decision handed down on Friday, Judge Curtis E.A. Karnow of the state’s Superior Court in San Francisco said the Accrediting Commission for Community and Junior Colleges had violated federal regulations and a law requiring that the college be given due process when the commission decided to revoke the college’s accreditation, in 2013.
Judge Karnow’s ruling said he planned to issue an injunction requiring the accreditor to revisit its decision after first giving the college a chance to respond to its allegations. The ruling leaves the door open for the accreditor to again decide to terminate the college’s accreditation if a fuller hearing of the facts warrants such an action.
The decision said: “This relief directly accounts for the significant unlawful practices I have found, it pays attention to the extensive federal regulations which surround the accreditation process, and it respects, as it must and as all parties agree, the fact that under federal law it is the ACCJC, and not this court, which exercises its discretion with respect to accreditation decisions.”
The ruling, in a lawsuit filed against the accreditor by the San Francisco city attorney’s office rather than by the college itself, marks the latest twist in a long-running battle to keep the college open in the face of the accreditor’s charges that it is poorly governed and in a perilous financial position. The decision came just two days after the ACCJC decided to grant the college an additional two years to meet all of its accreditation standards.
The city’s lawyers had urged the state court to restore the college to a clean slate, with fully accredited status, by overturning all of the ACCJC’s actions toward the college since first warning it, in 2012, of its possible loss of accreditation. In the ruling he handed down Friday, however, Judge Karnow said that such a remedy would go too far, considering the nature of the accreditor’s lapses.
Conflicting Views
Both sides in the dispute claimed victory in response to Friday’s ruling.
At a news conference, Joshua Pechthalt, president of the California Federation of Teachers, which had joined its local affiliate in fighting the accrediting commission’s action, said the ruling “says you have got to do this review of City College over again.” He also said the decision provides his union with “tremendous evidence and ammunition” to lobby state legislators to change laws governing accreditation in response to assertions that the ACCJC had overstepped its powers in dealing with community colleges.
Mr. Pechthalt argued that the ruling also requires the ACCJC to set aside its decision this week to give the college a newly created two-year accreditation status called “restoration.” The union had called that status “deceptive,” arguing that it would impose a higher bar for accreditation than other colleges faced, and offered no way for the college to appeal the commission’s decision in two years.
Tim Killikelly, president of the American Federation of Teachers local that represents instructors at City College, said one outcome of the decision should be the immediate restoration of the college’s Board of Trustees, to help “return us back to normal.” The California Community Colleges system had stripped the board of power and placed the college under the sole control of a system-appointed special trustee in July 2013, after concluding that the college was not responding to the accreditor’s demands for improvement quickly enough.
For her part, Barbara Beno, president of the accrediting commission, argued in a statement issued on Friday that “Judge Karnow essentially found that the ACCJC did not do anything wrong” with respect to the college’s accreditation. Her statement listed several accusations against the commission that the judge did not uphold, including assertions that she had improperly influenced the college’s evaluation team or that the commission had based decisions on factors not spelled out in its accrediting standards.
Judge Karnow plans to issue a final ruling after hearing from lawyers for the city and the commission, which have until February 3 to respond.
Business Considerations
The city’s lawsuit hinged entirely on assertions that the ACCJC’s actions had violated California’s unfair-competition law, which seeks to protect consumers and businesses from wrongful business conduct. Judge Karnow described as apparently unprecedented the city’s use of that law to challenge an accreditor’s actions.
The ACCJC argued that the unfair-competition law did not apply to it because it is a nonprofit organization, it does not compete in a commercial market, and its accreditation activities should not be thought of as business-related conduct.
Judge Karnow, in allowing the lawsuit to proceed, held that he would have agreed with the ACCJC if the state law sought only to protect business competition, but the law’s other goal of protecting consumers made it applicable in this case. In Friday’s decision, he said: “Because ACCJC receives compensation to provide accreditation reviews, including the one at issue here, and maintains a paid full-time support staff to facilitate the provision of accreditation services, the conduct at issue in this case can properly be described as a ‘business’ practice.”
Judge Karnow also rejected the ACCJC’s argument that the federal law that provides for federal recognition of accreditors and gives weight to their decisions precludes third-party challenges to those decisions by making no mention of them.
Among the federal regulations the judge found the accrediting commission to have violated, he said it had failed in 2013 to include enough academics on an evaluation team for the college, neglected to provide the college with a detailed written report clearly defining its deficiencies, and did not give the college sufficient opportunity to respond to deficiencies identified by the commission but not the evaluation team.
Both the city and the U.S. Education Department had asserted that a conflict of interest was created by the presence of Laney College’s president, Peter Crabtree—the husband of Ms. Beno, the ACCJC’s president—on the accreditation team evaluating the college. Judge Karnow, while finding no evidence directly establishing such a conflict, concluded that the ACCJC had nonetheless violated the state’s unfair-competition law by not taking adequate steps to prevent conflicts of interest or their appearance in selecting its commission and evaluation-team members.
Peter Schmidt writes about affirmative action, academic labor, and issues related to academic freedom. Contact him at peter.schmidt@chronicle.com.
