Testimony Concludes in CCSF Accreditation Trial

On Friday, five days of testimony concluded in the trial of San Francisco City Attorney Dennis Herrera’s case against the Accrediting Commission for Community and Junior Colleges (ACCJC), which last year denied accreditation to the City College of San Francisco, with nearly 80,000 students, effective July 1, 2014, a decision that is now on hold pending the results of this trial. The parties will return to court for closing arguments before Judge Curtis Karnow on December 9. (Links to my previous posts on this controversy may be found at the close of this post.)

The California Federation of Teachers, which represents instructional faculty at CCSF, has posted detailed accounts of each day’s testimony here: http://cft.org/your-work/community-college/news/924-this-case-is-about-fairness.html. I urge anyone interested in this case to read them. Here I will only quote a few highlights:

Day One (October 27):

After kicking off the day with a spirited early morning demonstration outside the San Francisco Superior Court building, about a hundred City College of San Francisco faculty, students and community supporters moved en masse into the courthouse to attend the opening day of the trial to keep the college open.

They heard Deputy City Attorney Yvonne Mere deliver the opening argument. She began simply, with “This case is about fairness.” For the next half hour she told Judge Curtis Karnow that the People’s case would prove three things: that the Accrediting Commission for Community and Junior Colleges violated federal regulations and their own policies when it failed to control for conflicts of interest; it failed to create site review teams that were adequately balanced with academics and administrators; and it failed to give due process to City College.

She also noted that the ACCJC acted in violation of California law when it failed to follow the law and its own procedures; that it deprived CCSF of the opportunity to participate in a process of peer review; and that it acted unfairly when it chose to evaluate CCSF while embroiled with the college in a very public debate over the future of the mission of community colleges in California. . . .

After spending a great deal of time setting up an easel, the ACCJC’s lawyers presented an overview of the accrediting process, and said that CCSF did not meet the standards necessary to be reaccredited in 2012 and 2013. They charged that CCSF didn’t pay attention to recommendations delivered to the college as early as 2006, and said that the college had been in “perilous financial condition.”

They asserted that the college lacked capacity to deal with its problems due to its “dysfunctional” Board of Trustees, which instead of engaging in proper governance through votes attempted to assert influence over the college improperly through direct contact with members of the college community. The presentation, featuring large printed charts placed on the easel, lasted considerably longer than the City Attorney’s, and concluded with the proposition that the college had had many opportunities to engage in due process, to appeal the ACCJC’s “show cause” and termination orders, could sue in federal court if it had so chosen, and was just about to have yet another opportunity to show its fitness for staying in business through a site review about to begin in a couple weeks through the brand new “restoration status” process. . . . .

In the afternoon the City Attorney’s team called to the witness stand State Community College Chancellor Brice Harris, former CCSF administrator Peter Goldstein, and California Community College Independents president Rich Hansen.

State Chancellor Harris interpreted for the courtroom the numbers in the Student Success Scorecard, a report published annually by the California Community College Board of Governors. The City Attorney’s lawyers presented slides of the data in the report, which is a performance measurement system tracking student achievement in all 112 community colleges in the state.

In Harris’s view, the Scorecard is an accurate measure of student success in various ways. This is important for the People’s case, since CCSF scored at or above the state average in many categories at the time the college was being evaluated. Harris stated flatly that “There was a lot of good teaching and learning going on [at CCSF],” and “teaching and learning at CCSF continues to be excellent and gets better all the time.” He said that in his opinion the action taken by the ACCJC was stronger than it needed to be, and that he appointed the “supertrustee” to take control over the college only because Barbara Beno had led him to believe that it was the only path to saving the college’s accreditation.

Peter Goldstein, who oversaw the college’s budget for many years, testified that the reason the college had a $17 million “deficit” in June of 2011, cited by ACCJC as evidence that the college’s finances were in desperate straits, was that the state of California was late in making its $25 million apportionment payment, which arrived a month later. He also stated that CCSF had appropriate levels of financial reserves throughout the Great Recession. . . .

Day Two (October 28)

In what could be a decisive moment in the City College trial, the head of the ACCJC admitted today that the agency’s decision to yank accreditation from City College violated the agency’s own standards and denied due process to the San Francisco school.

Barbara Beno, president of the accrediting commission, also admitted that she personally edited the report of the visiting team responsible for evaluating the school, and that her changes – which were detrimental to City College – were adopted in the final document.

Among those changes were the removal of language stating that the school administration, faculty, and board had shown “a high level of dedication, passion, and enthusiasm and provided compelling evidence to address the issues” that lead to a loss of accreditation.

Under the ACCJC’s rules, Beno — a staffer, not a commission member — should have had no role in deciding whether City College kept its accreditation.

She also denied that the commission’s decision to put her husband on the team that evaluated City College was a conflict of interest – and insisted that she had never once discussed the school’s accreditation with him. That, one City College supporter told me, “strains credulity.”

Beno was on the stand for more than two hours, and at times, it felt as if Deputy City Attorney Ron Flynn was a dentist pulling a painful and deeply impacted molar. Over and over, Beno resisted answering the questions. Over and over, she ducked and diverted and tried to avoid the key admission.

But Flynn persisted, taking Beno methodically through the ACCJC’s own processes, outlined in the agency’s own policies and procedures manual. A January, 2011, version of that manual notes that colleges subject to the panel’s oversight have the right to due process.

Here’s the key point: When the ACCJC sends a team to visit a school, that team – made up of volunteers who are supposed to be peers of the institution – writes up a report and makes recommendations. The school gets a copy of the draft report and has the right to respond.

But if the full commission recommends sanctions that are tougher than what the visiting team wanted, and bases that decision on information and conclusions not in the team report, the rules say the school gets additional time to respond in writing to that decision.

In this case, there’s no question that the visiting team recommended probation, a lower sanction than the “show cause” that led to the loss of accreditation. The final report of the ACCJC – after Beno’s edits – was changed; some areas in which the team said City College met the applicable standards were changed to say that the school failed to meet those standards.

And the termination report, everyone agrees, included new charges that City College never had a chance to challenge. That would certainly appear to be a violation of the ACCJC’s own rules. . . .

Flynn then asked her about the politics that some say are behind this entire trial – the move by some state officials, backed by Beno, to change the mission of community colleges in California.

The so-called Student Success Task Force, and a bill that sought to implement its recommendations, were aimed to limiting community colleges to a curriculum aimed at students who sought to gain two-year degrees or transfer to four-year schools.

The more open policy at City College – which offers continuing adult education, English as a second language classes, and a wide range of programs aimed at a diverse community – was at odds with the vision that Beno openly and actively supported.

At the same time that City College was under accreditation review, college students, administrators, and faculty were engaged in a strong battle to defeat the measure that Beno wanted to see enacted. . . .

Day Three (October 29):

Beno attempted to separate “deficiencies” from noncompliance with standards, in order to dodge its own policies around giving colleges additional time to respond when the ACCJC issued its disaccreditation letter to City College in July 2013. She claimed that this action letter does not list additional deficiencies, but does list additional standards that are not met, as compared with the Show Cause team report. It’s a spurious distinction that the CAO [City Attorney’s Offce] attorney later unravels.

Beno repeatedly said that deficiencies are college behaviors leading to non-compliance. And yet, when asked later by the CAO attorney as to whether colleges that meet standards even though they exhibited behaviors indicating “deficiencies” should be sanctioned, Beno did not have an answer. Attorney Ronald Flynn said that nowhere in the ACCJC’s policy on good practices and relations does it define “deficiency” as referring to a college’s behaviors. . . .

In drafts of the Show Cause evaluation team’s report, Beno, as the staff reader, questioned the team’s assessment around the college’s meeting of various standards. Attorney Flynn showed the activist hand of Barbara Beno with two examples, where the visiting team concluded that the college had met Standards IIB4 and IVA1, while the commission moved to terminate citing those standards, among others, as not being met. In fact, the ACCJC decided in eleven instances that standards had not been met, despite the visiting team’s first-hand assessment that City College had complied with those very standards.

Beno again made the claim that the ACCJC’s support of the Student Success Task Force was incidental to the imposition of Show Cause on City College months later. She said without any hint of irony that the ACCJC did not get notified in advance when the DOE put the commission on its own Show Cause in fall 2013.

ACCJC’s renegade actions have also gotten attention from state legislators. At midday, Assemblyman Phil Ting held a press conference announcing forthcoming legislation to keep the ACCJC’s runaway legal bills from draining state education funds. “The ACCJC seems focused on the courtroom, not the classroom,” he said. In December, Ting will take this up through legislative changes or the state budget process. . . .

Day Four (October 30)

Another ACCJC witness, Marie Smith, was a commissioner whose terms of office ended in June 2013. Her testimony provided a window into just how deeply—or not—the commissioners delved into matters like the college’s finances before dropping their nuclear bomb on 80,000 students and two thousand employees of the college.

She said that she had voted for “show cause” and for termination because of the college’s “failure to address the recommendations.” Under cross examination by the People’s lawyer, she remarked she was disappointed that only “supertrustee” Bob Agrella had shown up to the college’s appeal of its termination in front of the commission, stating that she thought members of the Board of Trustees should have been there too. It then emerged that the Commission had directed Agrella alone to appear.

Smith said that while “there were many well-meaning people at all levels of the institution,” there “were forces not in support of change” there, too. Asked to elaborate, she repeated the vague charge.

She said she was especially troubled by financial issues at the college, which created a situation in which she was worried the institution was “in jeopardy of not being able to continue.”

When asked what the financial situation at the college was in 2012-2013, she said that 92% of the budget went to salary and benefits, and that the college “hadn’t been able to balance their budget, and spending an inordinate amount…” she paused, “…not inordinate,” and trailed off. She then delivered a line that demonstrated a complete lack of understanding, or perhaps bias, about what financial tools were available to a college during the worst recession since the Great Depression: “The team report showed that the college was having difficulties meeting its obligations without external funding like parcel taxes.”

The attorney asked if she was aware the college was receiving funds from Prop A and Prop 30, which helped to address the financial situation. She replied, “I took that into consideration. However, the college hadn’t looked at their own operations and made the changes they needed to.” Asked if she knew the faculty and staff had taken pay cuts, she said they weren’t enough. And she admitted when asked about the furlough days that she was unaware of this measure. . . .

Day Five (October 31):

The ACCJC then brought forward four commissioners to testify, and here is where things got interesting. Each one, in lockstep response to ACCJC attorney questions, announced that he or she had voted for show cause in 2012 and for termination of accreditation in 2013. Each one maintained that the evidence from the site team report and a meeting with “CCSF representatives” convinced them that CCSF was in danger of going under financially, and that its governance was “dysfunctional” and unable to deal with the situation. Each said they were disturbed, or shocked, or alarmed, that no progress had been made during the show cause period; that usually colleges understand the difficulty they are in during show cause and work hard to address the problems—but not City College. . . .

Each commissioner also insisted that part of what had convinced them to vote the way they did was when the commission invited representatives of CCSF to address them. Frank Gornick said that during the meeting with CCSF representatives—“Supertrustee” Bob Agrella and Interim Chancellor Thelma Scott-Skillman—“they painted a picture of a college in disarray” in terms of its finances and governance. He said they told the commissioners that “there were individuals who were supportive of what needed to be done, but they were in an intimidating environment” created by unnamed but presumably powerful forces. . . .

Timothy Brown, the only faculty member (from Riverside City College) among the commissioners on the stand, said that Scotts-Skillman and Agrella had told them about the “great resistance” by faculty to implementing necessary changes to Student Learning Outcomes to meet the SLO standard, and here cited the other statistic mentioned by three of the four witnesses—just 28% had complied with their SLO requirement. “Normally,” he said, “all the elements of the institution pull together on show cause; that didn’t happen here.”

The Deputy City Attorney then had Brown look through the site team report, which demonstrated that in their investigation they had found that the college had met or partially met nearly all the standards on which it had been found deficient. She also asked if he remembered the line from the team report about the college’s passionate commitment to correcting its deficiencies. He didn’t recall. She told him this line was stricken by the report’s reader, Barbara Beno. Brown recovered by asserting that the commission must make sure that a college is in full compliance at all times with all standards.

Current ACCJC chair Steven Kinsella was the last witness to be called to the stand. Kinsella, the president of Gavilan College, gave the same answers to the same questions as his predecessors, with one continuous embellishment: as a man with many business and accounting degrees and certifications, he spoke confidently and in slightly more detail about the budget of CCSF than the others had.

He stated that in his experience “the reason why an organization typically is in financial difficulties is a lack of leadership;” he voted for show cause and termination of accreditation because once a college is in this condition, “it’s just a matter of time before students are affected.” In response to cross exam by Deputy City Attorney Ron Flynn, he said he considered the financial situation at CCSF to have been “dire.” Going one step further than the other commissioners, he said that the point of comparison on the 92% figure was an average of 80% at other colleges.

He told the court that in this situation “a college had to take some kind of action, either raise some revenue or take some kind of other action” to fix the problem. Flynn asked like what? Kinsella responded, “like sell off assets, reduce the number of sites, how to do it is entirely up to the governing board”—neglecting, perhaps, to remember that CCSF had no governing board in between being placed on show cause and the disaccreditation vote.

After questions by Flynn about the passage of Prop A, which brought $15 million in parcel taxes per year to CCSF, and Prop 30, which stabilized state apportionments, Kinsella dismissed—to gasps of laughter from the crowd— the notion that either could improve CCSF’s financial condition.

Flynn then asked about Kinsella’s view of union involvement in the CCSF situation. Clearly caught off guard, Kinsella said that he thought unions “had a tremendous amount of influence,” and that they were engaged in “an attack on the ACCJC’s actions.” Flynn asked if the 80% figure for salaries and benefits is an accreditation standard, or part of ACCJC policy? Kinsella said, “No.”

Flynn took Kinsella page by page through CCSF’s financial documents submitted as evidence in the trial. What emerged over an extraordinary half hour was that Kinsella’s picture of CCSF finances as “dire” had been cherry picked from a couple snapshots in time that ignored not only the effects of Prop A and Prop 30, but the late payment by the state of California of its funding to CCSF, so that what Kinsella characterized as a huge deficit of $25 million dollars one week was in fact no deficit at all after the state made its late payment to the district.

After Kinsella attempted to suggest that CCSF had moved money around in its accounts inappropriately, Flynn asked, “You have no information, do you, that CCSF used funds meant for students for something else?” Kinsella paused, and replied, “No, I do not.”

Flynn returned to a statement Kinsella had made about how CCSF could remain viable after the termination vote. “Wouldn’t losing accreditation mean losing financial aid?” “Yes, but that wouldn’t end the viability of City College of San Francisco,” said Kinsella. At this point Flynn mercifully brought his cross examination to an end.