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Startling conclusion to City College trial as ACCJC lawyers...
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Startling conclusion to City College trial as ACCJC lawyers say the accreditors can freely operate outside the law

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Deputy City Attorney Sara  Eisenberg presented the case against the ACCJC
Deputy City Attorney Sara Eisenberg presented the case against the ACCJC

By Tim Redmond

DECEMBER 10, 2014 – The two sides in the City College trial presented final arguments yesterday – and while most of the material was a summary of facts already in evidence, attorneys for the Accrediting Commission for Community and Junior Colleges made some astonishing remarks.

In essence, they said, the ACCJC could violate the law, operate without the permission of the US Department of Education, allow obvious conflicts of interest – and still be immune to any challenge.

It was a stunning show of how deeply the agency believes that it’s above the law and accountable to nobody.

Deputy City Attorney Sara Eisenberg opened with a clear statement: This case is about fairness. The ACCJC failed to give City College a fair review and acted unlawfully, she said, and the only fair remedy is to throw out the accreditation report and start again.

She went through the evidence that was presented during the trial: The role of a Laney College administrator who was married to the president of the ACCJC in evaluating City College was an actual conflict of interest (since his school would get more students if CCSF shut down) and an apparent conflict, since any reasonable person who knew he was married to ACCJC President Barbara Beno would have lost faith in the process, she said.

The Department of Education in 2013 made clear to the ACCJC that its conflict policy wasn’t valid – and the agency has since changed its rules, she noted. “The ACCJC says that there can’t be a conflict because it didn’t violate their conflict-of-interest policy,” she noted. “But the fact that they didn’t have a valid conflict-of-interest policy in place is exactly the problem.”

The agency, she explained, was required by federal rules to have a representative number of academics – that is, teachers, not just administrators – on the team that evaluated City College. But of the 16 members of the team, only three had any valid credentials as teachers – and the Department of Education said that wasn’t enough.

Alisa Messer, a leader in the City College teachers union, and former Assemblymember Tom Ammiano were among those in the packed courtroom
Alisa Messer, a leader in the City College teachers union, and former Assemblymember Tom Ammiano were among those in the packed courtroom

Then – and probably most important – she pointed out how City College never got a fair chance to understand and respond to the charges against it. She went through a long list of items that the commission had used to terminate the school’s accreditation and noted that many of them were never included in the report that was presented to the college.

“The ACCJC acknowledges that they relied on facts not in the published accreditation standards,” she said.

She ended by saying that it’s not necessary to prove that a flawed procedure changed the outcome of the case. There’s no way to know that. The only solution is to make the ACCJC go back and do it again – legally and properly.

“The remedy for a violation of due process is a fair process,” she said. “We need to wipe away the Scarlet T.”

ACCJC attorney Kenneth Keller spent much of his time saying that there was no evidence that the commission wanted to terminate the accreditation of City College. In fact, he insisted, the agency created a whole new program – “restoration” – to give the school a second change. If anything, he said, the ACCJC went out of its way to be fair to the school.

That, of course, ignores the politics of the situation: As the ACCJC pursued its efforts to force City College to shut down, a long list of political leaders, including senior members of Congress, got into the action and put pressure on the Department of Education. The union representing City College teachers filed a complaint with the DOE, which forced the ACCJC to change its procedures.

At some point in the process, it’s pretty clear to me that the ACCJC realized it was facing a political firestorm that could undermine its very existence and was looking for a way out. That’s what “restoration” was all about.

Then Keller got into a discussion with Judge Curtis Karnow about the difference between “deficient” and “deficiency.” Kind of like arguing what the meaning of “is” is.

“One is a noun and one is a verb,” Keller said.

Actually, neither is a verb, as far as I know. “Deficient” is an adjective. But never mind: The whole discussion was about how well City College had been warned about problems, and whether those warnings actually let the school know that it was about to have its accreditation terminated.  I don’t think the judge bought it.

Then Keller opened the door for the truly amazing part of the afternoon. “There is,” he said, “no law that dictates how an accrediting agency operates.”

At which point he turned things over to his colleague Andrew Sclar, who started making some remarkable claims.

ACCJC lawyer Andrew Sclar said the agency can operate with or without legal sanction
ACCJC lawyer Andrew Sclar said the agency can operate with or without legal sanction

Judge Karnow asked Sclar what an “academic” was, for the purposes of determining the fair makeup of an accrediting team. Sclar: “The ACCJC can define academic.” In other words, that word means whatever the hell the agency wants it to mean.

Then he went further:  “Even if the ACCJC doesn’t comply with any criteria and is not recognized by the Department of Education, it can still engage in accreditation conduct,” he said. “It’s lawful to be an accreditor with no recognition at all.”

The packed courtroom erupted in a kind of stunned laughter.

He dug himself deeper: There was no conflict for the spouse of Beno, he said, because unless he was working for the same school that he was evaluating, “there was no interest.”

Wow.

Judge Karnow will issue a tentative ruling in early January.

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.

20 COMMENTS

  1. SAM, 85,000 + students are about to be thrown out into the street from a community college with a long history of extraordinary academic standards ( no one has ever questioned this fact not even the ACCJC) therefore your idiotic & moronic statements about “respect” and courtroom decorum are enough to make anyone with a brain GAG!!! Of course the SF community it’s outraged don’t you get it? There is an extremely vital relationship between CCSF and the economic vitality of San Francisco….. Don’t you get it??? Wake up !!!!!

  2. Education is worthwhile. That does not imply that every educational institute is well managed. The money could be better spent elsewhere. CCSF has failed.

  3. The real problem with ACCJC, the Western Association of Colleges and Universities, an the other regional accrediting organisations in so far as City College and other state Colleges and Universities are concerned, is that they are agencies of the state created by the legislature acting in the name of the People, but their management, rule making and supervision has been delegated to a private corporation that is self perpetuating and acknowledges responsibility to no one, not to the state, not to the legislature, not to the courts, and not to the People.

    California should remove its public colleges and universitites from the control and supervision of such bodies and assign their accreditation and oversight to a state agency answerable to the legislature and to the People. The current state of affairs is a betrayal of the public interest and, I submit, an unconstitutional delegation of state power.

  4. Genuine and spontaneous amusement is fine. A partisan crowd seeking to create a biased reception to testimony is not. A courtroom is not a theater.

  5. I’m Sorry but at times I have seen 9th circuit Court of Appeals break out into chuckle over a complete wasted argument. Including the judges. It does happen from time to time.

  6. Tim wrote:
    Then he [Sclar] went further: “Even if the ACCJC doesn’t comply with any criteria and is not recognized by the Department of Education, it can still engage in accreditation conduct,” he said. “It’s lawful to be an accreditor with no recognition at all.”

    Actually, Sclar is correct. ACCJC is incorporated as a public-benefit (?!) private membership organization. It CAN conduct accrediting activity without Federal Recognition.

    However, without Federal Recognition no school would need to use such an accreditor, An accreditor is only useful if it is recognized and can consequently open the doors to Federal and State funds.

    Sclar’s line of thought parallels their contention that Termination of Acccreditation doesn’t actually mean that ACCJC is shutting CCSF down. CCSF could still continue to accept and teach students without accreditation (and without Federal and State funding).

    In any case, I think Sclar’s proposition is great. Folks should take them up on this idea.

    Educators, practitioners and employers should send in letters to Dept of Ed expressing non-support for ACCJC’s “standards, policies, procedures, and decisions to grant or deny accreditation”. This would show that ACCJC’s accrediting activities are NOT “widely accepted…” (34 CFR 602.13).

    If and when ACCJC’s recognition is removed, they can go ahead and continue their accrediting activity (that nobody will use)!

  7. Nobody likes to be overseen, but everyone has to deal with it. Quit whining about being accountable and instead think of ways that you don’t fail next time

  8. The ACCJC has treated just about all of the 118 community colleges in the state unfairly. We community college faculty have to spend extra hours each week dealing with reports, studies, committee meetings, etc. all to keep the accrediting agency happy. And there is no research evidence that spending all this time complying with accjc edicts helps students achieve their goals in the classroom.

  9. You don’t “applaud”, laugh or cheer at a trial. It perhaps matters less for a bench trial with no jury to intimidate, But still, I’m surprised the judge didn’t clear the courtroom.

  10. Yes, ACCJC feels that is above the law; moreover it feels that it IS the law. Whether it’s conflict of interest, academics, deficiencies, or anything else, ACCJC makes its OWN definitions of what constitutes conflict of interest, deficiencies, etc……..

    Sclar brought up the fact that Dept of Ed gives ACCJC broad latitude which allowed them to draw up their own definition of COI (which only dealt with the relation to the examined institution and nothing else) and their own definition or academics.

    Unfortunately, Dept of Ed does endow accrediting agencies broad (excessive, I believe) latitude in a couple of CFR sections.

    ABUSE OF THE PUBLIC TRUST
    Accrediting agencies are awarded the public trust by Dept of Education to be gatekeepers to federal funds to validate “quality of education or training.” Recognized accrediting agencies are given great freedom in setting standards and policies. However ACCJC has taken advantage of this freedom to abuse their power.

    FEDERAL REGULATIONS: KEYS TO THE KINGDOM WITH A LICENSE TO KILL

    Here are the Federal regs that enabled ACCJC to go wild:

    34 CFR § 602.16 (e) Accreditation and preaccreditation standards.
    (e) An agency that has established and applies the standards in paragraph (a) of this section may establish any additional accreditation standards it deems appropriate.

    34 CFR § 602.23 (f) Operating procedures all agencies must have.The agency may establish any additional operating procedures it deems appropriate.

    ACCJC has taken advantage of the apparent license and unrestrained authority given by § 602.16 (e) and 602.23 (f) to gain the keys to the kingdom. These two Sections give a “license to kill” (more politely, BROAD LATTITUDE) to unscrupulous agencies. ACCJC is an unscrupulous agency. It has set up criteria, procedures and processes that are intrusive, prescriptive, costly, granular, and-–most importantly—unrelated to quality of education for institutions.

    Two CFR sections that have allowed ACCJC to abuse the public trust given to it by Dept of Ed’s Recognition of ACCJC.

    Although the overarching purpose of accreditation is clearly enunciated in both 20 USC 1099 (b) (a) and 34 CFR 602.1, ACCJC has knowingly, and with malice aforethought, taken advantage of the broad latitude provided by CFR 602.16 (e) and CFR 602.23 (f) to abuse the public trust and cause severe harm to our students.

    It is my belief that legislation is needed to reign in the accreditors because the accreditation community (CRAC, CHEA) has failed to police themselves. Instead of calling ACCJC to account for their misbehavior, the leaders of the regional accreditors have rallied around, and come to the defense of ACCJC in order to protect their own. The regional accreditors appear to be acting as a cartel to protect their own privileges at the expense of the public good.

    Finally, a big thanks to Sara Eisenberg for tearing apart the ACCJC BS during her final rebuttal at the end of the session. The applause for her and the City Attorney team was more than well deserved. Thanks to Herrera, and not Ed Lee.

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