It was an accreditor’s nightmare in the making. Edward Waters College’s accreditation was withdrawn after the college tried to pass off a self-study by another institution as its own. It then sued the accrediting agency, and a federal judge issued a scathing preliminary ruling supporting the college’s claim that it had been denied due process. The judge ordered accreditation temporarily restored.
Fearing that it might lose the case, the Southern Association of Colleges and Schools’ Commission on Higher Education agreed to re-accredit the college last week in exchange for its dropping the lawsuit.
It was an embarrassing turn of events for the association. But by accepting the out-of-court settlement, the accreditor averted something far worse: the risk of a judge’s deciding the case in the plaintiff’s favor and then telling the accreditor how to resolve the problem.
“What we want to avoid is some judge, who may not know much about this, deciding what should be done,” says Steven D. Crow, executive director of the North Central Association of Colleges and Schools’ Higher Learning Commission, another accreditor.
Still, the settlement could encourage other institutions that suffer accreditors’ sanctions to consider legal action. “If everything you do is going to be judged by the lens, Are we going to be sued?, you’re going to bring the process to a halt,” says Judith S. Eaton, president of the Council for Higher Education Accreditation, which represents most American accrediting organizations.
The case, in which Edward Waters claimed that it had been denied a meaningful opportunity to defend itself, was the first in which a college sued to get reaccredited and won -- at least out of court. “David stood up against Goliath,” says Michael L. Lomax, president of the United Negro College Fund, which was a vocal backer of the lawsuit.
Edward Waters’s success appears to have been due in part to support from political heavyweights. Florida Governor Jeb Bush, a Republican, and several state legislators had publicly backed the college, a historically black institution, in its fight with the accrediting agency.
And unlike many institutions that have lost their accreditation over the years -- often small colleges on the brink of bankruptcy -- “Edward Waters College was not on weak financial ground,” says Michael R. Freed, a lawyer representing the institution.
In fact, the college mounted a robust, well-organized campaign to regain its accreditation. It retained three law firms to press its lawsuit and a public-relations firm to organize a media campaign. A stream of e-mailed news releases celebrated every advance in the lawsuit and every positive development at the college, no matter how small.
Edward Waters’s victory, and the publicity surrounding the case, has brought more attention to efforts to introduce stronger guarantees of due process when accreditors consider penalizing an institution. The United Negro College Fund, which maintains that the Southern association has been unfairly harsh with its members, has been the main champion of such moves.
For several years, the fund has lobbied Congress and the nation’s seven regional accreditors -- which deal with most of the colleges in the United States -- in favor of such guarantees. Congress is working to renew the Higher Education Act, which governs most federal student-aid programs. Accreditation is required to participate in many of those programs.
In its latest proposals, the United Negro College Fund calls for the right of institutions to appeal any action taken against them (not just the loss of accreditation, as is now the case) and the right to have any hearing that could result in a removal of accreditation recorded by a court stenographer (not just an appeal, as is now typically the case).
The group is also proposing that appeals of the loss of accreditation be heard not by a committee of the accrediting agency, as is now the case, but by three outside arbitrators. One would be named by the accreditor, one by the institution, and the third by the first two arbitrators.
Accreditors, who would like to prevent any strengthening of due-process requirements in the Higher Education Act, say they have become more reasonable on the issue. “The latest draft is dramatically less troubling than the first draft,” says Mr. Crow, of the North Central Association of Colleges and Schools, who chairs a council of the regional accreditors.
Accreditors feel pressure to show that they are doing everything reasonable to guarantee the rights of institutions being considered for sanctions. But they also feel that legislation obliging them to allow lawyers into the process more often, or requiring the use of court stenographers at an earlier stage, would undermine the collegial nature of the system based on review by fellow educators.
Due process “has emerged as a significant issue,” says Ms. Eaton, of the accreditation council, “and we should consider it very carefully. But we should be responding. It should not be introduced by legislation.”
This article should have noted that The Chronicle had attempted unsuccessfully to reach a representative of the Southern Association of Colleges and Schools for comment. James T. Rogers, executive director of the association, says that, if contacted by a reporter, he would have said that SACS did not agree to restore the accreditation of Edward Waters because the association feared it would lose the lawsuit. The out-of-court settlement “was a victory for both of us” and a recognition of the college’s progress, says Mr. Rogers.
http://chronicle.com Section: Money & Management Volume 51, Issue 43, Page A23