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UncategorizedJudge hears City College case -- and schools ACCJC

Judge hears City College case — and schools ACCJC

Judge Karnow tells the ACCJC’s lawyer where to look for his car keys. Photo by Khaled Sayed


By Tim Redmond

SEPTEMBER 10, 2014 – Judge Curtis Karnow heard arguments today on the immensely complicated flurry of litigation in the City College lawsuit, and while a formal ruling is probably a day or two away, the judge didn’t seem in any mood to derail the city’s case.

City Attorney Dennis Herrera has sued the Accrediting Commission for Junior and Community Colleges, arguing that the agency unfairly yanked accreditation for City College.

Karnow has already issued an injunction preventing the ACCJC from shutting down the school. The case could go to trial this fall.

But the ACJC has asked for summary judgment – in essence arguing that the undisputed facts in the case don’t amount to grounds for the city’s case to move forward. Herrera filed a similar motion, saying that the judge should rule in favor of the city without the need for a trial.

Judges in complicated cases rarely accept summary judgment motions, but the hearing showed the essence of both side’s cases.

The ACCJC lawyer, Andrew Sclar, argued that the city’s case is moot: Herrera filed under the state’s Unfair Practices Act (also known by its code section, 17200), which governs the actions of businesses. The ACCJC, he said, isn’t a business at all; it’s a nonprofit that doesn’t engage in commerce.

Sclar cited a case from Massachusetts where an agency that regulated mortuaries was found not to be a business under that’s state’s unfair practices law.

Karnow was dubious. The agency charges fees, he said, and pays salaries to people who make it their livelihood. As for using a case from Massachusetts – which has no bearing on California law – he said:

“You’re like the person who is looking for his lost car keys under the streetlight. He agrees the keys probably aren’t there, but it’s the only place where there’s enough light to look for them.”

The notion that a nonprofit doesn’t engage in commerce is a bit of a stretch. Sutter Health, which runs California Pacific Medical Center, is a nonprofit created to provide the public benefit of health care. But no sane person would argue that what happens at CPMC is not commerce: Customers (or their insurance companies) pay a fee for treatment; that fee pays the salaries and overhead of the operation.

City Attorney Dennis Herrera confers with his staff at the hearing
City Attorney Dennis Herrera confers with his staff at the hearing

The ACCJC charges community colleges a fee for its accreditation services. That fee goes for salaries and overhead. Seems pretty simple – and the judge gave no indication that he was going to buy the ACCJC argument and shut the city’s case down.

Sclar also made a stunning claim: Even if the ACCJC had done something wrong, he said, it no longer matters, since the agency has now allowed City College to re-apply for accreditation. The school is open, he said; the conflict-of-interest provisions that were obvious problems in the original accreditation process have been changed. No harm, no foul.

I ran into John Rizzo, president of the College Board, outside the hearing, and he was shaking his head. “It’s incredible,” he said. “We have lost 20 percent of our students, teachers have lost their jobs – and he says there’s no impact of what they did?”

And, of course, as Deputy City Attorney Tom Lakritz noted, the new accreditation process is pretty shaky and allows no appeal.

Lakritz focused on the basics of the case: City College has a right to due process, and it was violated, over and over, by the ACCJC. Some facts that are not in dispute: The ACCJC didn’t follow its own policies. The federal Department of Education says the ACCJC didn’t follow proper procedures. The ACCJC has essentially admitted it screwed up and has since changed its rules.

“The commission amended its bylaws to change has the process works after the DOE said it was a violation of federal rules,” he said. “This is about the integrity of the process,” he said. “We seek an opportunity for City College to get a fair accreditation.”

The way the panel selected members, the fact that the appraisal team violated its own policies (which the commission admitted and changed later), the fact that the visiting team reported that City College had, in fact, completed many of the changes that the ACCJC wanted to see … all of that adds up to an unfair process, Lakritz said.

Karnow didn’t rule on any of this from the bench. If past practices are any indication, he’ll issue a written decision within the next 48 hours or so. My guess is that he won’t even consider the ACCJC’s motion for summary judgment, and will set this for trial.

At which point even more information will come out that will damage the ACCJC’s reputation and push the agency even further toward profound change or extinction.

If the accreditors had any sense, they’d cut their losses: Settle with Herrera, restore CCSF’s accreditation, and live to fight another day. Because I’m not sure the agency will survive a full public trial.

Tim Redmond
Tim Redmond has been a political and investigative reporter in San Francisco for more than 30 years. He spent much of that time as executive editor of the Bay Guardian. He is the founder of 48hills.
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  1. Top photo is the city lawyer (assistant city attorney, I think) , not the ACCJC lawyer. So the photo shows the judge “schooling” the City attorney! But you are right, in overall terms, the judge asked more pointed questions and offered more pointed correctives to the ACCJC dude.

  2. It is not true that Agrella was voted in as a special trustee with extraordinary powers by the CCSF Board of Trustees. Agrella was appointed to his current position by the CC Board of Governors. Before that he was brought in as a consultant by the Board of Trustees.

    It’s interesting that you mention the Chinatown campus. Earlier this week I heard David Chiu crow about his role in getting that campus approved and built and how successful it’s been. He also called the ACCJC a “rouge” agency and defended his support of Rodrigo Santos because the CCSF trustees need a business focus. If properties are to be sold off I wonder who will have a voice in which ones and how it happens? Lee? Santos (who will be a stand in for Lee if he wins election)? Chiu?

    And what about the 20% of students who have gone away? What opportunities have they given up are what are their options now?

  3. Interesting “conspiracy” theory re Lee and Harris (though Lee is not an independent operator, he’s a tool of the Natty Prince). I don’t mean to debunk cavalierly, you may be in part right. But some facts:

    1) Fact: The Board of Trustees VOTED itself out of power AGAINST the vocal opposition of radical students who could see where installing a special trustee would lead. Opinion: The Board is spineless and criminally irresponsible to voters, students and faculty. FIRE THEM ALL.

    2) Fact: CCSF has many campuses, so many they didn’t know where all their satellites were when I was involved. Many are high value real estate. Opinion: Given the capital and operating needs, CCSF should consider selling the real estate. They absolutely don’t need the marginal Gough St. site. They should consider selling 4th and Mission. Despite the fiscal reality at the time, the Trustees and the SF Democratic political class built a very expensive Chinatown campus that is NOT a necessity, given the crisis.

    3) Fact: CCSF finances are dicey. The 20% loss of enrollment translates to a huge operating budget hit. Brown’s Prop 30 and SFs Prop A parcel tax are not secure income sources for the future. Opinion: Given the low information and bad press about CCSF, there is zero chance a new Brown administration will fully fund CCSF at its present cost structure. Something HAS to be done, and only tough choices lie ahead.

  4. Nicely said. It’s been obvious for some time that one of the goals of the ACCJC was to drive down enrollment, and the real estate connection suggests that Ed Lee and Brice Harris may be complicit in the process.

    You could throw in Ed Lee’s appointment of developer advocate Rodrigo Santos to the Board of Trustees in 2012 (he was turned out in the election) and the SF Democratic Central Committee’s recent back door endorsement of Santos for trustee in the upcoming election. Note that the central committee’s chair is a real estate lobbyist.

    Sleazy doings all around.

  5. Tim, you do not have to be a lawyer to know that when you go to the Tenant’s Union for advice, they ask you to either join for a year at an annual fee or make a donation. I don’t think they insist if you are genuinely broke but most people pay.

    My point was that you cannot argue that an entity is a business just because some money may change hands or because some of the staff are paid from that.

    I’m glad you appreciate my enthusiasm for your site, however.

  6. David, thanks for your thoughts. Much of what you have asked for has been provided. The results were a disaster.

    The board WAS fired and replaced by a special trustee who makes unilateral decisions in closed-door meetings that are highly questionable, both politically and legally. Look at how much the budget for consultants and administrators has increased while the faculty has decreased.

    The entire administration WAS fired and many were rehired in a bizarre and cruel game of musical chairs. The result has been a lot of newbies who don’t know their way around, and even more CYA behavior by the previous administrators who managed to survive.

    All faculty committees were shut down for about a year so even critical programs that served students were stopped. The department chairs have been stripped of their hours for managing the department, but do you think the administration has stepped up to, you know, make decisions and manage the faculty departments? See the previous paragraph.

    Ironically, the goal of all this drama has been suspected to be a plot by Ed Lee to do exactly what you described – take all that sweet real estate in the FiDi, Mid-Market, Mission, and turn it into condos or office towers.

    You can’t do that when 100,000 students are crowding the halls. Run down enrollment by scaring students away and suddenly you have free space which “seems unjustified.”

    Apparently State Chancellor Brice Harris and Mayor Ed Lee were in cahoots the whole time, with ACCJC helping by throwing in all these exaggerated sanctions.

  7. There is another thing wrong with the ACCJC’s argument. If the commission is not subject to the Business and Professions Code, why wasn’t this point made earlier. The commission seems to keep coming up with new theories about why this case shouldn’t be considered.

  8. I was active in the CCSF accreditation drama as it began to unfold in the spring of 2012. I took courses at CCSF, helped organize CCSF students, attended many Board of Trustee meetings, got to know the activists, teachers and staff and was there when the students took over the trustee meeting at which the board voted to accept the special trustee, an act students were energetically and militantly against.

    The many hours I put into the CCSF crisis, including hours of studying the recent institutional history of CCSF brought me to this analysis: 1) Barbara Beno and her ACCJC accreditation group were out of control, 2) the Board of Trustees headed by John Rizzo had been grossly incompetent for a long time, 3) the teachers and their unions ran the school through an amorphous, ameobic, inefficient but operational grassroots democracy that paid teachers and staff well and also provided a good education but with little attention to the fiscal bottom line.

    The crisis at CCSF can be laid squarely at the feet of the San Francisco political class and the trustees, incompetent for decades. The Board of Trustees were either on the make Democrats at a stepping stone assignment, retired Democrat hacks coasting towards retirement, or window dressing Democrat ethnics. The Board, in the face of the accreditation crisis, was rudderless, fractious and far too pliant.

    San Francisco voters should fire– with prejudice– all of the current trustees and elect competent people capable of restoring CCSF, assuming the accreditation crisis ends.

    If and when the crisis ends, CCSF will be a damaged institution for years. A 20% drop in enrollment is a crisis in and of itself. And finances will remain in very bad shape with the drop in income from student loss against a backdrop of shrinking state funding, the end of Brown’s Prop 30 funds and the spend down of the SF Prop A special parcel tax.

    CCSF needs strong, visionary leadership. It seems to have a good new chancellor though the jury is still out. But without a competent Board of Trustees, CCSF will remain a basket case. CCSF will need to shrink and consolidate, losing some teachers, definitely losing campuses, tightening the fiscal ship but hopefully maintaining its historical mission to be a real community college with ESL, lifelong learning for seniors and offering the core programs for transfer students along with basic training for culinary and other blue collar trades.

    Sell or master lease the Chinatown campus, sell the 4th and Mission campus, sell the Gough St. admin campus. Close the satellite campuses. Push for a new, ongoing Prop A type SF special parcel tax. But mostly, fire the trustees and train a new board in best practices through the programs that ACCJC does provide and then market a revitalized CCSF to SF voters and students.

  9. I’m not a lawyer, Sam (and I’m glad you have a job/life that let you monitor 48hills almost instantly 24/7) but as far as I know, the SFTU doesn’t charge tenants for services. It has members who give money and other donors, but I don’t think there’s a fee for help. That might be an issue that distinguishes the two organizations. But as far as 17200 goes, it’s a pretty broad statute.

  10. So are you saying that the SF Tenants’ Union is engaged in commerce and is a business because it charges fees to the tenants it advises and pays Gullicksen a salary based on those fees?

    If ACCJC is a business then so is the SFTU.

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