On Friday Judge Curtis Karnow refused to halt the October 27 trial that will determine if the Accrediting Commission for Community and Junior Colleges (ACCJC) properly evaluated City College of San Francisco (CCSF) before voting to revoke its accreditation. (Links to my previous posts on the CCSF accreditation controversy will be found at the conclusion of this post.) San Francisco City Attorney Dennis Herrera is suing the commission to seek a reversal of its decision. As a matter of course, both sides had asked the court for a summary judgment in favor of its position.
While Karnow refused to make such a judgment either way, his ruling offered supporters of the college considerable grounds for optimism. ACCJC had argued that it was not a “business” exempt from a California law against unfair business practices. But Karnow said the nonprofit commission appears to be a “business” because it charges fees for its services and uses the money to pay staff costs and expenses. He also agreed with Herrera that the commission violated federal rules by including only one faculty member on the eight-member team it sent to re-evaluate the school in 2013.
But the judge said the illegal composition of a single assessment team wasn’t enough to invalidate the entire process, particularly since the 2013 team’s report was actually more favorable to CCSF than the commission’s final decision later that year. Karnow had a similar response to Herrera’s claims of conflict of interest involving the inclusion of Peter Crabtree, husband of the commission’s president, Barbara Beno, on the 2012 assessment panel, and John Nixon, a commission executive, on the 2013 panel.
Herrera offered no evidence that Crabtree or Nixon were unqualified or that they “affected any outcome,” Karnow said. Likewise, he said, Herrera’s claim that the commission treated CCSF more harshly than other schools doesn’t count for much at this stage of the case, because no evidence has been presented about the degree of noncompliance at those schools.
But Karnow said evidence at a trial could establish that the commission’s overall process was unfair. He noted that the commission provided no advance notice to City College that it was planning to reject the 2013 assessment team’s findings that the school had fully or partially addressed all of its problems. The issues at trial, the judge said, will include “the actual impact of illegal or unfair acts on the commission’s findings” — an indication that he would overrule the revocation if he concluded it was the product of one-sided or unauthorized actions.
“I’m grateful for a decision that should help disabuse accreditors of the arrogant notion that their violations are somehow beyond the reach of California law,” said Herrera. “Lack of accountability has been consistent theme in this accrediting commission’s conduct, whether it has involved City College, or the legislature, or the law itself. Judge Karnow has issued a wise and extremely thorough ruling on the applicability of state law to unfair and unlawful practices, and I respect his decision to withhold judgment on several other issues until trial next month.”
In a news release the district attorney’s office added that the
ruling is a potentially critical factor in the litigation because the ACCJC has not meaningfully disputed Herrera’s factual allegations that accreditors allowed improper procedures and conflicts of interest to unfairly influence their evaluation of City College. Last August, the U.S. Department of Education independently determined that the ACCJC’s evaluation of City College violated multiple provisions of federal law: by failing to maintain effective controls against conflicts of interest; failing to ensure that academic personnel were reasonably represented on evaluation teams; and failing to clearly identify instances of non-compliance in a manner that afforded adequate due process to City College.
Judge Karnow denied the motions brought by ACCJC because he found them to lack legal basis. For example, he wrote that “the Commission contends that its accreditation activities are outside the scope of the UCL [unfair competition law] because they are not ‘business acts or practices'” because they are a nonprofit public benefit corporation engaged in educational activities. “There is little support for the Commission’s notion that there is an important distinction between educational activities and commercial activities.” He added: “it is pointless to note, as the Commission does, that some law allows agencies such as the Commission to set accreditation standards and perform evaluations…. The Commission isn’t being sued for performing evaluations; it is being sued for, e.g., having conflicts of interests and violating the College’s due process rights, as the People would phrase it. No law allows it to do that.”
Although he also denied all but one of the City Attorney’s motions, the reason he denied them was that “… the People have not supplied evidence to satisfy their initial factual burden.” This is a very significant difference. Between now and the trial date [October 27], the City Attorney can collect more evidence, but ACCJC will not be able to change the law or fix the faulty logic for the claims they are making.
As the San Francisco Chronicle suggested, Karnow’s ruling signals that CCSF “should shift its focus from alleged conflicts of interest and procedural missteps by the commission and instead try to show that the overall assessment process was unfair.” Of course, there appears to be quite a bit of evidence to support that conclusion. In the meantime, ACCJC’s order that CCSF’s accreditation would be revoked on July 1, 2014 continues to be stayed pending the results of the trial.
Here in chronological order are links to my previous posts on the CCSF accreditation controversy: