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Accrediting Agency Must Establish and Apply Review Procedures that Comply with Due Process; Agency Does Not Act Arbitrarily and Capriciously When it Simultaneously Reaffirms University’s Accreditation and Imposes Probation
The Council on Chiropractic Education, Inc. accredited chiropractic doctoral degree programs in the United States. National University of Health Sciences ran a program accredited by CCE. When the University sought reaffirmation of its accreditation in 2016, CCE concluded in 2017 that the University was not fully compliant with all accreditation standards but, nonetheless, CCE reaffirmed the University’s accreditation. At the same time, CCE notified the University it was placing its program on probation. The University filed an administrative appeal of the probation with the CCE appeals panel, but CCE denied the appeal. The University then filed a complaint in federal trial court, arguing CCE violated its due process rights, and asking the trial court to issue an injunction preventing CCE from imposing the probation. The trial court denied the University’s request, and the University appealed to the U.S. Court of Appeals.
An accrediting agency such as CCE must comply with 20 U.S.C. § 1099b to maintain recognition by the U.S. Secretary of Education. The statute required CCE to consistently and evenhandedly apply and enforce standards of accreditation and afford due process to the programs it accredited. Consistent with the statute, CCE adopted and published accreditation standards.
The University admitted it did not comply with two standards at the time CCE reaffirmed the University’s accreditation. However, the University asserted CCE violated its due process rights when CCE imposed probation on the University because the standards did not permit CCE to grant reaffirmation of accredited status and impose probation at the same time.
The University did not identify any standard specifically prohibiting CCE from placing a program on probation at the same time it reaffirmed accreditation. CCE standards set out a list of accreditation actions that CCE may take “at any time.” This list included reaffirming accreditation and imposing probation. Further, another standard permitted CCE to take any of the following actions against a program that was not in compliance with all the standards: (1) issue a warning, (2) place the program on probation, or (3) require the program to show cause why its accreditation should not be revoked. Because the standards contemplated that a program could remain accredited even if it was not fully in compliance with all accreditation standards, CCE did not act arbitrarily and capriciously when it simultaneously reaffirmed the University’s accreditation and imposed probation.
An accrediting agency such as CCE must also establish and apply review procedures that complied with due process. This included providing written notice of any deficiencies identified, providing an opportunity for a program to provide a written response regarding any deficiencies, and concerning the written response before imposing any adverse action. Here, the University argued CCE imposed probation without first providing written notification of any deficiencies and without providing the University an opportunity to submit a written response. Specifically, the University argued CCE did not provide it written notification prior to issuing a letter on February 2, 2018, notifying the University that CCE was placing it on probation.
However, the February 2, 2018, letter only contained CCE’s conclusion that the University did not comply with CCE standard and probation was appropriate. CCE did not take any action against the University on that date. Instead, CCE did not change the University’s probationary status until after the University exhausted the CCE appeal process.
Furthermore, the University had the opportunity respond in writing to the CCE site team’s final report that identified compliance deficiencies. CCE and University representatives also discussed the areas of concern identified by the site team at a status review meeting. Additionally, CCE notified the University in writing of its conclusion that probation was appropriate and have the University the opportunity to appeal that proposed action before it became final. The record showed CCE adequately apprised the University of its concerns regarding noncompliance and provided the University with multiple avenues to advocate for its position. Thus, CCE’s decision to impose probation was not arbitrary and capricious and did not violate CCE’s obligation to apply review procedures consistent with due process.
Accordingly, the Ninth Circuit Court of Appeals affirmed the trial court’s conclusion that CCE did not violate the University’s due process rights by (1) imposing a sanction of probation while contemporaneously reaffirming the University’s accreditation status and (2) providing the University with notice and opportunity to respond to identified deficiencies in the manner described.
Nat’l Univ. of Health Scis. v. Council on Chiropractic Educ., Inc. (2020) 980 F.3d 679.