ORDER GRANTING PLAINTIFFS' APPLICATION FOR PRELIMINARY INJUNCTION
Until the matter can be decided on the merits, the Court issues anorder to preserve the status quo, preliminarily enjoining the ABA fromimplementing any final decision to withdraw Western State's provisionalaccreditation or remove Western State from the list of approved lawschools.
In 1998, Defendant American Bar Association granted provisionalapproval to Plaintiff Western State University of Southern Californiad/b/a Western State University College of Law. Provisional approvalrequires the school to (1) be in "substantial compliance" with ABA'sPage 2standards and (2) present a reliable plan for coming into full compliancewith the ABA's standards within three years. ABA STANDARDS FOR APPROVALOF LAW SCHOOLS, STANDARD 102(a). A law school had a total of five yearsin which to qualify for full approval, which requires "full compliance"with the ABA standards. STANDARDS 102(b) and 103(a). The five-yearprovisional approval period may be extended "[i]n extraordinary cases andfor good cause. . . ." STANDARD 102(b). Western's five-year provisionalapproval was to expire in August 2003.
In March 2002, Western notified ABA of its intent to seek fullapproval. After visiting the school and affording Western an opportunityto be heard, the ABA Accreditation Committee concluded the school had not"made satisfactory progress toward achieving full approval, norimplemented a reliable plan for bringing the school into full compliancewith the [ABA] Standards." Defendants' Exhibit ("DX") 3 at 215.
In June 2003, after affording Western an opportunity to be heard, theABA Council of the Section of Legal Education and Admissions to the Barissued a letter concurring with the Accreditation Committee that Westernshould not be granted full approval. DX 4 at 220-21. Although the timefor Western's provisional approval had not yet run out, the Councilnotified Western the school had not demonstrated "good cause" or an"extraordinary case" to justify extending its provisional approval beyondfive years. Id. at 221. The ABA provided the school an opportunity toshow cause to both the Accreditation Committee and the Council, inNovember 2003 and December 2003 respectively, why its provisionalapproval should not expire and it should not be removed from the list ofABA-approved law schools. Id.
At the ABA's request, Western submitted its material to thePage 3Committee approximately five weeks before its November 7 meeting. OnNovember 19, 2003, having not yet received a written report from theCommittee, Western requested a postponement of the Council's December 5meeting because it contended the time between the Committee meeting andthe Council meeting was impermissibly and unfairly short under the ABARULES OF PROCEDURE FOR THE APPROVAL OF LAW SCHOOLS numbers 5 and 7. DX9. On November 20, 2003 the ABA responded that Rule 6[fn1/] governed theproceeding, so "there is nothing to appeal" and no specific time framebound the ABA. Plaintiffs' Exhibit ("PX") 19. On November 21, 2003, theCommittee transmitted to Western a report entitled "The Action of theAccreditation Committee," in which the Committee determined Western wasnot in compliance with the ABA standards, and Western had notdemonstrated it was an extraordinary case. DX 6 at 232-33. The Committeerecommended Western be removed from the list of ABA-approved lawschools. Id. at 233.
The timing of the Committee's written report left the Council one dayto review the Committee's report, Western's written appeal, and newevidence Western sought to present.
On December 11, 2003, the Council concurred with the AccreditationCommittee and notified Western the Council had adopted a motion towithdraw provisional approval. DX 7 at 307-08. In its letter, the Councilinformed Western the matter would be submitted to the ABA House ofDelegates at its meeting on February 9-10, 2004. Id. at 308.
On December 19, 2003, within 30 days of the Committee's action letterand pursuant to ABA Rule 5, Western filed a request forPage 4reconsideration of the Committee's action letter. PX 13. The Councilrefused to accept Western's motion for reconsideration. PX 14.
On December 24, 2003, the ABA informed Western of its right to appealthe Council's action to the House pursuant to Rule 45.9 of the ABA RULESOF PROCEDURE OF THE HOUSE OF DELEGATES. PX 5. Western objected to theFebruary date, contending it impermissibly and unfairly cut short thetime frame under House Rule 45.9©) for Western to file its appealand respond to the Council's formal report. PX 7.
On January 9, 2004, the ABA recognized the time irregularity under Rule45.9 and noted Western's appeal could not be automatically calendered atthe February House meeting. PX 8. Instead, the House Rules and CalendarsCommittee must first recommend the calendaring of the appeal at itsFebruary 7-8, 2004 meeting, the days immediately before the full Housemeets. Id. If the appeal is recommended to be calendered, the House mustapprove the calendering of the item by a two-thirds vote. Id.
Pursuant to House Rule 45.9©)(1), Western filed its appeal withthe House on January 12, 2004. PX 23. In their letter, Western reiteratedits concern that, if the House hears the appeal at its February meeting,Western will be denied its rights under Rule 45.9©). Id.
Along with individual students Plaintiffs Michael Bender and KerryZeiler, Western filed suit against Defendant, claiming Defendant'sfailure to follow its rules and its animus toward Western violated theHigher Education Act, common law due process, the AdministrativeProcedures Act, the Fifth Amendment, and the Sherman Antitrust Act.Plaintiffs now apply for a preliminary injunction preventing Defendantfrom reviewing the Council's decision to withdraw provisional approvalPage 5at the House of Delegates' February 2004 meeting. In their application,Plaintiffs claim three due process violations: (1) the Committeeimpermissibly failed to consider Western's reconsideration request; (2)the time allowed for Western's appeal to the Council was cutimpermissibly short; and (3) the time allowed for Western's appeal to theHouse was cut impermissibly short. Defendant contends it has givenWestern ample notice and many opportunities to be heard.
The parties have further presented their positions at a hearing of thismatter.
Traditionally, in order to obtain a preliminary injunction, a movingparty must demonstrate: (1) a strong likelihood of success on the merits,(2) the possibility of irreparable injury if preliminary relief is notgranted, (3) a balance of hardships favoring the moving party, and, incertain cases, (4) advancement of the public interest. Johnson v. Cal.State Bd. of Accountancy, 72 F.3d 1427, 1430 (9th Cir. 1995). The NinthCircuit also recognizes an alternative test, under which the moving partymust demonstrate either: (1) probable success on the merits and thepossibility of irreparable injury; or (2) the existence of seriousquestions on the merits[fn2/] and the balance of hardships tippingsharply in its favor. Southwest Voter Registration Educ. Project v.Shelley, 344 F.3d 914, 917 (9th Cir. 2003) (citing Clear Channel OutdoorPage 6Inc. v. City of Los Angeles, 340 F.3d 810, 813 (9th Cir. 2003)).
The two parts of the alternative test are not entirely separate.Rather, "[t]his analysis creates a continuum: the less certain thedistrict court is of the likelihood of success on the merits, the moreplaintiffs must convince the district court that the public interest andbalance of hardships tip in their favor." Id. (citing Fund for Animals,Inc. v. Lujan, 962 F.2d 1391, 1400 (9th Cir. 1992)).
Plaintiffs have demonstrated serious questions on the merits of two oftheir claims, a possibility of irreparable harm if injunctive relief isnot granted, and a balance of hardships tipping sufficiently in theirfavor. The Court also finds the public's interest in fair and promptaccrediting information will not be substantially harmed if thepreliminary injunction is granted.
A. Likelihood of Success on the Merits
Plaintiffs contend they have a strong likelihood of success on themerits for violations of (1) the Administrative Procedures Act ("APA");(2) Fifth Amendment due process; (3) the Higher Education Act ("HEA");and (4) common law due process. The Court finds there is insufficientlikelihood of success on the first two claims, but "serious questions" onthe merits of the third and fourth claims.
1. Administrative Procedures Act
Plaintiffs' APA claim has little likelihood of success. The APA allowsjudicial review for persons "suffering legal wrong because of agencyaction, or adversely affected or aggrieved by agency action," and defines"agency" as "each authority of the Government of the United States. . . ."5 U.S.C. § 701(b)(1), 702. By its own language, the APA does notextend to an entity that is not a federal agency, such as the ABA. SeeNational Wildlife Federation v. Espy, 45 F.3d 1337, 1344 (9thPage 7Cir. 1995) (holding non-agency defendants were properly joined asindispensable parties under Rule 19, but recognizing no APA cause ofaction could stand against them); accord Sierra Club v. Hodel,848 F.2d 1068, 1077 (10th Cir. 1988) ("We know of no cases explicitlypermitting a private suit under § 702 against a nonagencydefendant. . . .") overruled on other grounds by Village of Los Ranchos DeAlbuquerque v. Marsh, 956 F.2d 970 (10thCir. 1992); Hayne Blvd. Camps Preservation Ass'n, Inc. v.Julich, 143 F. Supp.2d 628, 632 (E.D. La. 2001) ("[TheAPA] does not provide a route through which plaintiffs can obtaininjunctive relief against nonfederal defendants.") (citing Vieux CarreProperty Owners. Residents. & Assocs., Inc. v. Brown, 875 F.2d 453, 456(5th Cir. 1989)).[fn3/]
2. Fifth Amendment Due Process
"The United States Constitution protects individual rights only fromgovernment action, not from private action. Only when the government isresponsible for a plaintiff's complaints are individual constitutionalrights implicated." Single Moms, Inc. v. Montana Power Co., 331 F.3d 743,746-47 (9th Cir. 2003) (citing Brentwood Academy v. Tenn. Secondary Sch.Athletic Ass'n., 531 U.S. 288, 295 (2001)) (emphasis in original).
The Supreme Court has held challenged action by a private actor may bestate action when: (1) the government compelled the action usingPage 8its "coercive power" or provided "significant encouragement, either overtor covert," for the private action; (2) the government and the privateactor willfully participated in joint activity; (3) the governmentcontrolled or was excessively intertwined with a nominally private actor;or (4) the government delegated a "public function" to the privateactor. Id. at 747 (collecting cases).
Plaintiffs contend the third theory is present here because "the ABA'sfunction as an accrediting agency is essentially controlled by theDepartment of Education, through the HEA and its implementingregulations." Plaintiffs rely on Auburn Univ. v. S. Ass'n of Colleges &Schs., Inc., 2002 U.S. Dist. LEXIS 26478 (N.D. Ga. 2002). However,Plaintiffs concede the Georgia district court in Auburn University didnot reach the issue of whether an accrediting agency may be a "stateactor" under the Fifth Amendment, and the case law does not supportPlaintiffs' position. E.g. Chicago School of Automatic Transmissions,supra, 44 F.3d at 449 n.1 ("A governmental body may rely on the decisionsof a private association without turning that association into `thegovernment' itself.") (citing Sanjuan v. American Board of Psychiatry &Neurology, Inc., 40 F.3d 247, 250 (7th Cir. 1994)); Medical Institute ofMinnesota v. National Ass'n of Trade and Technical Schools. 817 F.2d 1310,1314 (8th Cir. 1987) ("[T]hat the DOE regulates the procedures to be usedin deciding whether to accredit is not enough to compel a finding ofgovernmental action."); see also McKeesport Hosp. v. Accreditation Councilfor Graduate Medical Educ., 24 F.3d 519, (3d Cir. 1994) ("In casesinvolving accrediting organizations . . ., a number of courts have notfound state action. . . . We have uncovered only one case where stateaction was found. . . .") (citations omitted).
There is insufficient showing the ABA is a state actor. BecausePage 9the ABA is not shown to be a state actor, Plaintiffs cannot demonstratesufficient likelihood of success on their Fifth Amendment due processclaim.
3. Higher Education Act
Defendant first contends Plaintiffs are unable to demonstrate anylikelihood of success on their HEA claim because no private right ofaction exists for violations of the HEA. At first glance, this argumentseems convincing because "[t]here is no express right of action under theHEA except for suits brought by or against the Secretary of Education."Parks School of Business, Inc. v. Symington, 51 F.3d 1480, 1484 (9thCir. 1995) (citing 20 U.S.C. § 1082(a)(2)). As noted by the EleventhCircuit, "nearly every court to consider the issue in the lasttwenty-five years has determined that there is no express or impliedprivate right of action to enforce any of the HEA's provisions." McCullochv. PNC Bank Inc., 298 F.3d 1217, 1221 (11th Cir. 2002) (collectingcases); see also Parks, 51 F.3d. at 1485 (HEA provides no private right ofaction by school against lender).
However, these cases have not addressed the applicability of20 U.S.C. § 1099b(f) of the HEA, which, under the heading "Jurisdiction,"provides
any civil action brought by an institution of higher education seeking accreditation from, or accredited by, an accrediting agency or association recognized by the Secretary . . . and involving the denial, withdrawal, or termination of accreditation of the institution of higher education, shall be brought in the appropriate United States district court.Citing the Georgia district court in Auburn University, supra,Page 10Plaintiffs contend the jurisdictional statement in § 1099b(f) implies aprivate right of action by a school against an accrediting agency. Whilethe district court in Auburn noted this section "is susceptible of aninterpretation that the HEA would allow" a suit by a school against theaccrediting agency, the issue was not reached.[fn4/] 2002 U.S. Dist.LEXIS 26478, *48. The district court's language in Auburn is dicta, butit is helpful to consider it. If there were no right of action byWestern, it could be argued, this section might be superfluous.
The cases Defendant cites are distinguishable because none involve suitby a school against an accrediting agency under § 1099b(f).
The Court does not now decide whether Plaintiffs may proceed under theHEA. For purposes of this preliminary injunction request, the issue isdecided under the principle of common law due process.
4. Common Law Due Process
In the accreditation context, common law due process requires theaccrediting body's decision not be "arbitrary, capricious, an abuse ofdiscretion, or otherwise not in accordance with law" or reached "withoutobservance of procedure required by law." Chicago School of AutomaticTransmissions, supra, 44 F.3d at 449-50 (quoting 5 U.S.C. § 706(2)(A),(D)); accord Foundation for Interior Design Educ. Research v. SavannahCollege of Art & Design, 244 F.3d 521, 528 (6th Cir. 2001). ThePage 11Court's review is very deferential, but review includes the inquirywhether the accrediting body followed its own rules. See Chicago Schoolof Automatic Transmissions, 44 F.3d at 450-51; see also Yesler TerraceCommunity Council v. Cisneros, 37 F.3d 442, 448 (9th Cir. 1994) (dueprocess requires an agency to follow its own rules) (citing Morton v.Ruiz, 415 U.S. 199, 235 (1974)).
Ordinarily, the Court defers to the agency's reasonable interpretationsof its own rules. See, e.g., Chicago School of Automatic Transmissions at450 ("In administrative law . . . the first question is how the agencyunderstands its own rules — for an agency possessed of the ability toadopt and amend rules also may interpret them, even if the interpretationchosen is not the one that most impresses an outside observer.") (citingStinson v. United States, 508 U.S. 36 (1993)); Foundation for InteriorDesign Educ. Research v. Savannah College of Art and Design,39 F. Supp.2d 889, 896-97 (W.D. Mich. 1998) ("The Court defers to [theaccrediting agency's] interpretation of its own rules. . . . Accreditingprocedures are guides that, if construed by courts too strictly, wouldstrip the accrediting bodies of the discretion they need to assess theunique circumstances presented by different schools.")
Defendant contends Plaintiffs' claim has no likelihood of successbecause Plaintiffs are unable to point to any substantive due processviolations. At the hearing, Defendant contended Plaintiffs have beenafforded several noticed opportunities to be heard on this issue sinceApril 2003. Defendant also contended Western has waived any right toappeal by withdrawing its appeal to the House in November 2003. Ascorrectly noted by Plaintiffs at the hearing, the issue of Western'sapplication for full approval, not the withdrawal of provisional approvaland the removal from the list of approved law schools, was thePage 12subject of both the Spring 2003 hearings and Western's withdrawnappeal. The issues are different and are governed by different rules.
From the recent deposition of John Sebert, the administrator of theABA's law school accreditation process, it appears the ABA contendsWestern has no right to seek reconsideration and limited appeal rights ofthe Committee and Council decisions to withdraw provisionalaccreditation. See Transcript of January 30, 2004 Deposition of John A.Sebert at 33:5-35:2, 36:2-37:14, 59:14-61:14, 71:11-71:18, 144:23-145:8.Due process questions are raised by the one day period of review betweenWestern's appeal to the Council and the hearing. These issues raise"serious questions" as to the denial of Western's due process right to afair and effective appeal.
Plaintiffs also point to Sebert's deposition testimony to contend theABA is changing the definition and usage of the terms "action" and"action letter," denying Western State a fair and effective appeal.Sebert Depo. at 18:3-19:22, 23:21-26:9, 54:10-55:23, 90:24-91:18,94:4-94:23, 102:4-102:21, 106:12-108:11, 123:22-124:6, 130:5-134:1,137:2-137:6, 179:14-179:21. They contend the same is true of ABA'sapparent view of Western's right to reconsideration and appeal. See id. at33:5-35:2, 36:2-37:14, 59:14-61:14, 144:23-145:8, 155:17-156:8.[fn5/]
This may show of a change in rule interpretation that harmed Western.For example, the ABA's rules provide a school may seekPage 13reconsideration and take an appeal from a "Committee Action Letter."[fn6/]ABA RULES OF PROCEDURE FOR THE APPROVAL OF LAW SCHOOLS, RULES 5, 7. Theserules provide a time line in which the school has 30 days to seekreconsideration from the Committee. Id., Rule 5. If the Committee deniesreconsideration, the school has 30 days to appeal that decision to theCouncil. Id., Rule 7. In his deposition, however, Mr. Sebert testified aschool may only appeal or seek reconsideration of an "action letter"which is a final decision, final judgment, or final action of theCommittee, and the actions taken here were recommendations-not finalactions. Sebert Depo. at 18:3-19:22, 23:21-26:9, 33:5-35:2, 36:2-37:14,58, 94:4-94:23, 106:12-108:11. The rules appear to make no distinctionbetween "final" action letters and other action letters,[fn7/] and thecorrespondence items sent to Western were called "action letters."[fn8/]It does not appear Western was informed of the this fluid definition of"action letter" or its consequences. In addition, although Seberttestified there are matters in which the Committee has "primaryjurisdiction" and matters in which the Council has "primaryPage 14jurisdiction," id. at 47:17-48:23, 66:5-66:20, no distinction appears inthe rules or was explained to Western.
The timing of Western's House Appeal is important. A school has onlyone opportunity to present an appeal to the House, so the need forprocedural fairness is critical.[fn9/]
House Rule 45.9(c) sets a time frame for appeals to the House in whichthe school has 30 days to file a notice of appeal of the Council'saction. The Council thereafter has 15 days to deliver to the Secretary ofthe ABA its formal report stating its actions and its reasons for theseactions. This report was apparently never filed. Western did not have areport to which to respond. The matter was scheduled for the FebruaryHouse meeting without presentation of the issues. This raises serious dueprocess questions.
Defendant contends these claims cannot amount to a due processviolation because Western has still been afforded an opportunity to beheard. At the hearing and in their papers, Plaintiffs detailed some ofthe harms arising from the shortening of the time frame: (1) theinability to file all of their materials, including new evidence; (2) theinability to fully address all aspects of the Committee's and Council'saction letters; and (3) the inability to properly address factual errorsin the Committee's action letter. Western is also harmed if the appellatebodies have neither sufficient time nor sufficient materials to make afair and reasonable determination of the issue. ThePage 15question is not whether Western has had some opportunity to be heard, butwhether Western has had a fair and effective opportunity to be heard.
These apparent inconsistencies and potentially unreasonableinterpretations, coupled with the apparent failure to fully informWestern of the fluid rule definitions guiding Defendant, raise "seriousquestions" on the merits. Plaintiffs have offered evidence and argumentsthat indicate, at least at this early stage, the ABA may be failing tofollow its own rules, thereby violating due process and precludingPlaintiffs' right to a fair and effective appeal. These matters remain tobe litigated and are not decided now. The Court needs to preserve thestatus quo to permit resolution of these questions. Gilder, supra, 936F.2d at 422.
B. Irreparable Harm
"Regardless of how the test for a preliminary injunction is phrased,the moving party must demonstrate irreparable harm." American PassageMedia Corporation v. Cass Communications. Inc., 750 F.2d 1470, 1473 (9thCir. 1985). A showing of irreparable harm is the "basis of injunctiverelief" and a district court may not issue an injunction unless themoving party shows a risk of such harm. Los Angeles Memorial ColiseumCommission v. National Football League, 634 F.2d 1197, 1202 (9th Cir.1980) (citations omitted).
Defendant contends Plaintiffs' claim of irreparable harm is toospeculative because the House may or may not vote to withdraw Western'saccreditation at its upcoming meeting. The harm if accreditation iswithdrawn is real and substantial. Western need not wait for the axe tofall before seeking an injunction. The Court finds a sufficientpossibility of irreparable harm if the preliminary injunction is notPage 16granted.
C. The Public Interest and the Balance of Hardships
Defendant is correct that there is a strong public interest in havingthose who look to accrediting decisions receive prompt and accurateinformation. The injunction, Defendant contends, would mislead the publicabout Western's status. Western notes it has informed every applicantsince June 2003 of its status before the ABA, providing applicants withthe Council's June 2003 action letter. There is reduced harm to thepublic interest when applicants are fully informed.
Te public's interest in prompt, fair and accurate accreditinginformation is not served if the accrediting agency does not observe aschool's due process rights during the accreditation process. The Courtfinds the public interest is best served by issuing a preliminaryinjunction to preserve the status quo, and setting an early trial of theissue, provided Western continues to fully inform applicants and studentsof its current accreditation status and the status of these proceedings.Nothing prevents the ABA from also informing the public about theseproceedings.
The balance of hardships tips sufficiently in Plaintiffs' favor at thisearly point. The loss of reputation and good will resulting from the lossof accreditation could be very damaging to a law school.
A preliminary injunction is appropriate to maintain the status quountil the significant issues presented here can be litigated. The Courtwill not enjoin the House from voting on this issue. The ABA may continuewith its normal process, if it wishes. The Court will enjoin the ABA fromimplementing any final decision to withdraw Western State's provisionalaccreditation or remove Western State from the list ofPage 17approved law schools.
The parties agree a bond is not necessary, and the Court will notrequire a bond.
As discussed at the hearing, the Court will advance and accelerate thelitigation of this matter. The Court sets a status conference forFebruary 13, 2004 at 10:00 A.M. to discuss the discovery and trialschedule.
Plaintiffs' application for a preliminary injunction is GRANTED.
Pending further order of the Court, the ABA is enjoined fromimplementing any final decision to withdraw the provisional accreditationof Plaintiff Western State University College of Law, or remove it fromthe list of ABA-approved law schools. Western State is ordered to makefull disclosure to students and applicants concerning the ABA's actionsand these proceedings.Page 18
RULE 5. Accreditation Committee Reconsideration of Previous ActionTaken.
(a) A law school may request Accreditation Committee reconsideration ofa Committee Action Letter by filing a request for reconsideration withthe Chair of the Committee. The request must be filed within 30 daysafter the date of the Accreditation Committee Action Letter.
(b)The Chair of the Accreditation Committee shall grant the request forreconsideration upon good cause shown. If the request is granted,reconsideration shall take place at the next regularly scheduled meetingof the Accreditation Committee, if feasible.
(c)The record upon which the law school seeking reconsideration mayproceed shall consist of the following: (1) The record before the Committee at the time of its initial decision of the matter. (2) The Committee Action Letter. (3) The law school's request for reconsideration. (4) Any new evidence upon which the request for reconsideration is based. Such new evidence must be submitted with the request for reconsideration and must be verified at the time of submission. Unverified new evidence will not be considered by the Committee. (5) Examples of appropriate verification include (this is not an exclusive list): (a) For a publicly supported law school, a copy of legislation verifying that the state legislature has included funding for a law school building project in a recently passed appropriations bill. (b) A letter from a foundation officer verifying that funds have been deposited to the law school's account. (c) A certificate of completion or occupancy issued by the appropriate governmental body, or other evidence of readiness for occupancy provided by the contractor or architect of a law school building project. (d) A letter from the University president authorizing the hiring of a new faculty member. (e) A letter from the dean verifying that offers have been made and accepted, accompanied by the copies of the faculty resumes.
(f) A copy of a written collection development plan for the Law Library accompanied by the minutes of the faculty meetingPage 19 where the plan was adopted or accepted.
(g) Recent bar admissions data published or certified by the appropriate bar admissions authority.(d) There shall be no right of appearance before the Committee inconnection with reconsideration.
RULE 6. Council Consideration of Recommendation of AccreditationCommittee.
(a) In those circumstances in which the Council takes final action onan Accreditation Committee recommendation (e.g., recommendations underStandards 102, 103, 105, 307, and 802, and Rule 14), the law school has aright of appearance before the Council.
(b) In considering the recommendation of the Committee, the Councilshall adopt the Accreditation Committee's findings of fact unless theCouncil determines the findings of fact to be unsupported by substantialevidence on the record.
(c) The Council may adopt or modify the Accreditation Committee'srecommendation, or it may refer the matter back to the Committee forfurther consideration.
(d) Council consideration of the Committee's recommendation shall,subject to sections (c), (e) and (f), be based on the following record: (1) The record before the Committee at the time of the Committee's decision. (2) The Committee Action Letter. (3) The school's appearance before the Council, if any.(e) The Council will not accept new evidence submitted by the schoolexcept upon a two-thirds vote of the Council based on findings that: (1) The new evidence was not presented to the Accreditation Committee, and (2) The new evidence could not reasonably have been presented, and (3) A reference back to the Accreditation Committee to consider the new evidence would, under the circumstances, present a serious hardship to the school.(f) In addition to the requirement of (e) above, the evidence maybe received by the Council only if the evidence is:
(1) Submitted at least 14 days in advance of the Council meeting, andPage 20
(2) Appropriately verified at the time of submission.
(g) Examples of appropriate verification include (this is not anexclusive list): (1) For a publicly supported law school, a copy of legislation verifying that the state legislature has included funding for a law school building project in a recently passed appropriations bill. (2) A letter from a foundation officer verifying that funds have been deposited to the law school's account. (3) A certificate of completion or occupancy issued by the appropriate governmental body, or other evidence of readiness for occupancy provided by the contractor or architect of a law school building project. (4) A letter from the University president authorizing the hiring of a new faculty member. (5) A letter from the dean verifying that offers have been made and accepted, accompanied by the copies of the faculty resumes. (6) A copy of a written collection development plan for the Law Library accompanied by the minutes of the faculty meeting where the plan was adopted or accepted. (7) Recent bar admissions data published or certified by the appropriate bar admissions authority.
RULE 7. Council Consideration of Appeal from Accreditation CommitteeAction Letter.
(a) A school may take an appeal from the Accreditation Committee ActionLetter by filing a written appeal with 30 days after the date of theAccreditation Committee Letter. If the school has requested AccreditationCommittee reconsideration, then the 30-day time period begins to run fromthe date of the Action Letter containing the Committee's decision onreconsideration. If the Accreditation Committee Chair denies the requestfor reconsideration, the 30-day time period begins to run from the dateof the letter of denial.
(b) The Council shall consider the appeal at its next regularlyscheduled meeting, if feasible.
(c) The Council may affirm or modify the Accreditation Committeedecision, or it may refer the matter back to the Committee for furtherconsideration.
(d) In considering the Appeal from the Accreditation Committee action,the Council shall adopt the Accreditation Committee's findings of fact,unless the Council determines that the findings of fact are unsupportedPage 21by substantial evidence on the record.
(e) The record upon which the law school may base its appeal shallconsist of the following: (1) The record before the Committee at the time of the Committee's decision. (2) The Committee Action Letter. (3) The Committee response to the appeal, if any. (4) The law school's written appeal. The written appeal may not contain, nor may it refer to, any evidence that was not in the record before the Committee at the time of its action.
(f) There shall be no right of appearance before the Council inconnection with the appeal.
HOUSE OF DELEGATES CONSTITUTION AND BYLAWS, § 45.9. Law SchoolAccreditation.
(a) A Report of an action of the Council of the Section of LegalEducation and Admissions to the Bar granting provisional or full approvalto a law school or withdrawing, suspending or terminating approval of alaw school shall comply with the provisions of this Article and beconsidered in the same manner as other reports containingrecommendations, except that a representative of the school shall havethe privilege of the floor with time limitations equal to those of therepresentative of the Section presenting the report but without a vote.The House shall vote either to agree with the action of the Council orrefer it back to the Council for reconsideration based on reasonsspecified by the House. An action granting provisional or full approvalmay be referred back to the Council a maximum of two times. The action ofthe Council after the second referral shall be final. An actionwithdrawing, suspending or terminating approval may be referred back tothe Council one time. The action of the Council after referral shall befinal.
(b) The Council of the Section of Legal Education and Admissions to theBar shall advise the House of an action denying provisional or fullapproval to a law school. No action of the House is required unless thelaw school appeals the action pursuant to Section 45.9(c).
(c) An appeal to the House of Delegates from an action of the Councilof the Section of Legal Education and Admissions to the Bar denyingprovisional or full approval to a law school or withdrawing, suspendingor terminating approval of a law school shall be considered in accordancewith the following procedure:
(1) Notice of the appeal must be delivered to the Secretary of the Association at the ABA offices within 30 days after receipt of notification by the Section of the action of its Council;Page 22
(2) The Section shall deliver to the Secretary a report with recommendations stating its action and the reasons therefor, within 15 days of the date notice of the appeal is delivered to the Secretary; (3) The school shall be provided with a copy of the Section's report and may file a response, provided that such response must be delivered to the Secretary within 30 days after receipt of the report; (4) The Chair of the House shall include the matter on the calendar at the meeting of the House following filing, or the expiration of the time for filing, the response provided for in subparagraph (3); and (5) All these materials shall be made available to the delegates prior to the meeting at which the appeal will be considered.During any consideration of such a matter by the House, a representativeof the school shall have the privilege of the floor with time limitationsequal to those of the representative of the Section but without a vote.The House shall vote either to agree with the action or refer it back tothe Council for reconsideration based on reasons specified by the House.An action denying provisional or full approval may be referred back tothe Council a maximum of two times. The action of the Council followingthe second referral shall be final. An action withdrawing, suspending orterminating approval may be referred back to the Council one time. Theaction of the Council following the referral shall be final.
[fn1/] The text of Rules 5, 6 and 7 is reproduced in the Appendix atthe end of this order. The text of House Rule 45.9, discussed below, isalso reproduced.
[fn2/] "Serious questions" are those which are reasonable subjects oflitigation and have some chance of success on the merits, though notnecessarily a strong "likelihood." Gilder v. PGA Tour, Inc., 936 F.2d 417,422 (9th Cir. 1991) (citations omitted). They are questions "as to whichthe court perceives a need to preserve the status quo [to permit]resolution of the questions or execution of any judgment." Id.
[fn3/] Plaintiffs' reliance on Chicago School of AutomaticTransmissions, Inc. v. Accreditation Alliance of Career Schools andColleges, 44 F.3d 447 (7th Cir. 1994), is misplaced. The court stated,"We think that principles of federal administrative law supply the rightperspective for review of accrediting agencies' decisions." 44 F.3d at450. The court did not decide the issue of whether a private plaintiffcould bring an APA claim against a private defendant.
[fn4/] This conclusion is supported by Massachusetts School of Law atAndover, Inc. v. American Bar Ass'n, 914 F. Supp. 688 (D.Mass. 1996),aff'd 142 F.3d 26 (1998), in which a law school denied accreditation bythe ABA sued on a variety of tort theories. Citing the HEA's § 1099b(f),the ABA removed the action to federal court, contending the issue was thedenial of accreditation and not the alleged torts. 914 F. Supp. at 689.The court held removal was proper under this statute, but the issue ofwhether the action was proper under the HEA was not discussed. The ABA'sposition in Massachusetts School of Law appears contradictory to theirposition before this Court.
[fn5/] Western appears, at least at this early stage, to have reliedupon the ABA's own statements and a reasonable interpretation of theABA's rules to its detriment. For example, Sebert testified that,although the ABA informed Western Rules 4 through 8 were applicable totheir situation, the ABA actually meant that only Rule 6 applied.Id. at 135:2-136:11.
[fn6/] Rule 1 defines an "action letter" as "A letter transmitted bythe Consultant to the president and dean of a law school reportingCommittee or Council action." This broad definition appears to encompassall of the ABA correspondence at issue.
[fn7/] Sebert testified the term "action letter" is either improvidentlyused in certain rules or the term means different things in differentrules and in different circumstances. Sebert Depo. at 94:4-94:23,102:4-102:21, 106:12-108:11, 179:14-179:21. At this early stage, thisinterpretation of the Rules does not appear reasonable.
[fn8/] Some of the correspondence used language such as "letter on theCommittee's action" or "letter on the Council's action," instead of"action letter." Given Rule 1's broad definition, the documents at issueappear to be "action letters."
[fn9/] The House cannot overturn the Council's decision to withdrawaccreditation. Under the ABA House rules, "The House shall vote either toagree with the action of the Council or refer it back to the Council forreconsideration based on reasons specified by the House." ABA HouseRule 45.9(a). Once the House has voted on this issue, the Council has finalsay on the issue; thus, a school has only one appeal to the House.Id.Page 1