In June, after several years of sanctions over its financial troubles, Paine College lost its accreditation.
Not long after that, officials at Paine did what most colleges do in that situation: They filed a federal lawsuit against their accreditor, in this case the Southern Association of Colleges and Schools’ Commission on Colleges.
It’s standard practice for colleges to file suit when they are faced with the possibility of losing accreditation because the stakes are so high. Without accreditation, colleges are not eligible for federal student aid, and they are much more likely to have to close their doors.
Without accreditation, colleges are not eligible for federal student aid, and they are much more likely to have to close their doors.
Brent W. Herrin, a lawyer in Atlanta representing the college, said the Southern Association had failed to follow its own procedures and had not considered all the relevant financial information about Paine.
Complaints like those are common in suits against accreditors — largely because they are the only ones that are likely to persuade a judge to delay or overturn a negative action by an accrediting body.
But the college’s chances of succeeding are poor. Patrick W. McKee, a lawyer for the Southern Association, has represented the accreditor in more than two dozen suits over a quarter-century. A college has never won one of those cases based on the merits, he said, though in some cases the parties have settled.
Still, just because accreditors don’t lose doesn’t mean they’re not affected, he said. The suits are costly and time-consuming, especially for the volunteer reviewers who may be deposed or called into court to testify.
The lawsuits also represent a dilemma for accreditors. The agencies are under increasing pressure to be tough on underperforming colleges, said Robert M. Shireman, a senior fellow at the Century Foundation and a former deputy under secretary at the U.S. Department of Education. Yet when accreditors do take action, Mr. Shireman noted, they encounter not only lawsuits, but a political and public backlash.
Limited Legal Authority
The dilemma is due in part to the peculiar structure of accreditation in the United States.
Accrediting organizations act as gatekeepers for federal dollars, but they are not government agencies that have to make most of their decisions in public.
So colleges can use the courts to help ensure that accreditors are not making unfair or arbitrary decisions against the institutions they oversee, said Ben Miller, who has written about accreditation as a scholar with the Center for American Progress.
But because accreditors are private, nonprofit organizations — essentially, associations of member colleges — they don’t have nearly the same level of legal authority and protections as the Education Department.
Colleges don’t file lawsuits against the Education Department nearly as often as they do against accreditors, said John R. Przypyszny, a lawyer who has represented several accreditors for the firm Drinker Biddle. And when the department gets sued, it has unlimited resources, and lawyers from the Justice Department, to support its defense.
Accreditors, however, do have some advantages over colleges in the courtroom, Mr. Przypyszny said. Judges almost always defer to the organizations on whether a college is meeting their standards. That is similar to the way judges defer to federal agencies in the application of their rules and regulations, he said.
When colleges have successfully sued accreditors, it’s often because the accreditor has strayed from its own policies and procedures, said David A. Bergeron, a senior fellow at the Center for American Progress and a former acting assistant secretary for postsecondary education.
How many opportunities should a college get to plead its case? ‘How much due process is enough?’
Congress and the Education Department tried in the most recent renewal of the Higher Education Act to reduce the likelihood of lawsuits against accreditors, Mr. Bergeron said. For example, they allowed institutions to update the accreditor on any last-minute improvements in finances. A majority of negative accreditation decisions are based on a college’s flagging financial condition and the accreditor’s judgment that it can no longer support its programs.
But the question remains of how many opportunities a college should get to plead its case, he said: “How much due process is enough?”
The other problem, Mr. Bergeron said, is that lawsuits can get ugly. “So often these actions lead to the loss of normal sanity and reason,” he said. “They become pissing contests that don’t serve anyone well.”
Searching for Solutions
In many cases, however, the lawsuits serve simply as a way to delay an institution’s inevitable loss of accreditation. Sometimes, the delay itself is helpful, said Mr. McKee, the lawyer representing the Southern Association. The association now automatically agrees to a preliminary injunction, stalling the removal of accreditation until a case is settled between the parties or decided in court.
The association has also agreed to delay legal actions so colleges can try to find a buyer or another college with which to merge, he said.
Policy makers face the question of whether there is more that accreditors and the Education Department can do to prevent lawsuits in the first place.
Mr. Miller, from the Center for American Progress, said it might help to give accreditors the ability to impose more-serious intermediate sanctions against struggling institutions.
While accreditors can issue warnings or put a college on probation, those actions only require a college to report on how it intends to remedy any problems.
Mr. Shireman said the accreditors now have the flexibility to limit enrollment to prevent a college from growing beyond its means. “They just don’t do it, but I think they could,” he said.
Mr. Przypyszny, the lawyer from Drinker Biddle, said accreditors could limit the size of a particular program. But stopping enrollment could put an accreditor in danger of violating antitrust laws, he said, because such an action would give an advantage to an institution’s competitors.
Mr. Shireman said the Education Department, too, could take a stronger role in sanctioning struggling institutions based on the actions of accreditors. “Let’s pay attention to what accreditors are finding and take some action,” he said.
Mr. Bergeron and Mr. Miller, however, think the only way to protect accreditors from legal action is to remove their authority as gatekeepers of federal financial aid.
“It’s fair to say they shouldn’t make the final call” on removing accreditation, Mr. Miller said. “But then they can’t be the ones to grant access, either.”
Eric Kelderman writes about money and accountability in higher education, including such areas as state policy, accreditation, and legal affairs. You can find him on Twitter @etkeld, or email him at eric.kelderman@chronicle.com.
