459 F.3d 705 (6th Cir. 2006), 05-1891, Thomas M. Cooley Law School v. American Bar Ass'n

Docket Nº:05-1891.
Citation:459 F.3d 705
Party Name:THOMAS M. COOLEY LAW SCHOOL, Plaintiff-Appellant, v. THE AMERICAN BAR ASSOCIATION, JOHN SEBERT, Defendants-Appellees.
Case Date:August 16, 2006
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 705

459 F.3d 705 (6th Cir. 2006)

THOMAS M. COOLEY LAW SCHOOL, Plaintiff-Appellant,

v.

THE AMERICAN BAR ASSOCIATION, JOHN SEBERT, Defendants-Appellees.

No. 05-1891.

United States Court of Appeals, Sixth Circuit.

Aug. 16, 2006

Argued: March 7, 2006.

Page 706

[Copyrighted Material Omitted]

Page 707

ARGUED:

Michael L. Cioffi, Blank Rome, Cincinnati, Ohio, for Appellant.

Anne E. Rea, Sidley Austin, Chicago, Illinois, for Appellees.

ON BRIEF:

Michael L. Cioffi, Blank Rome, Cincinnati, Ohio, Michael W. Hartmann, Larry J. Saylor, Miller, Canfield, Paddock & Stone, Detroit, Michigan, for Appellant.

Anne E. Rea, David T. Pritikin, Michael P. Doss, Sidley Austin, Chicago, Illinois, for Appellees.

Before: SILER, BATCHELDER, and GIBBONS, Circuit Judges.

GIBBONS, J., delivered the opinion of the court, in which SILER, J., joined.

BATCHELDER, J. (p. 716), delivered a separate concurring opinion.

OPINION

JULIA SMITH GIBBONS, Circuit Judge.

This case arises from a dispute between the American Bar Association, the national accrediting body for law schools and its Consultant on Legal Education John Sebert (collectively "ABA"), and the Thomas M. Cooley Law School ("Cooley" or "the school"), an accredited law school located in Lansing, Michigan. The dispute centers on Cooley's attempts to begin two satellite programs--one at Oakland University in Rochester ("Oakland campus") and one in Grand Rapids ("Grand Rapids campus"). Cooley claims that the ABA denied Cooley due process in failing to accredit the two proposed satellites and in imposing sanctions on Cooley for operating the satellites without ABA prior acquiescence. The district court denied these claims and granted judgment to the defendants. As we find that the ABA afforded Cooley all due process in making its rulings, we affirm.

I.

The federal government does not directly accredit institutions of higher education. Rather, the Secretary of Education approves accrediting agencies for different types of educational programs, and these accrediting bodies set independent standards for accreditation. Accreditation is important to a school for a number of reasons, not the least of which is that it allows the students of the school to receive federally-backed financial aid. In addition, the majority of states use ABA accreditation to determine whether an individual applying for admission to the Bar has satisfied the state's legal education requirement.

The ABA's Council on the Section of Legal Education ("Council") is the organization charged with accrediting law schools. The Council makes its decisions following a review and recommendation by the ABA's Accreditation Committee ("Committee"). The process is governed by written Standards, Rules, and Interpretations that are adopted after both public review and comment and review by the ABA House of Delegates ("House"). The Standards describe the requirements that a law school must meet to obtain and retain ABA approval. Standard 105 states: "Before a law school makes a major change in its program of legal education or organizational structure it shall

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obtain the acquiescence of the Council for the change." The opening of an additional campus falls under Standard 105. Under ABA rules, a school may offer up to 20% of its legal program at a separate campus without this being a "major change" requiring prior approval. If a school offers more than 20% of its program, however, this does constitute a major change and the ABA must grant acquiescence. Under pre-2003 ABA interpretations, any offering beyond the 20% limit was considered to be the opening of a full "branch campus" and was treated as the creation of a new law school. In December 2001, the Council proposed a new interpretation of Standard 105, which would add an intermediate "satellite campus" option. Under the new interpretation, the opening of a satellite would constitute a major change requiring ABA acquiescence but would not be subject to the same heightened review of a full branch campus. The interpretations were not officially adopted until approved by the House in February 2003.

In 2002, Cooley applied to the ABA to open a satellite at the Oakland campus. The school structured its application to be consistent with the proposed interpretations of Standard 105, despite its acknowledgment that the interpretations "remain[ed] pending" and had not been approved. Under either the old or new interpretations, Cooley's proposal constituted a major change that required ABA acquiescence. While awaiting ABA approval, Cooley began a first-year program at the Oakland campus, which did not require prior acquiescence because it constituted less than 20% of Cooley's official law program. The ABA conducted a full review of the application, including a site visit, and the findings were reported to the Committee. As the new interpretations of Standard 105 had not been approved, the Committee considered Cooley's application under the existing, more stringent requirements for a branch campus and found it lacking. The Committee summarized its findings in a report, and Cooley responded, expressing its disagreement but stating, "[W]e do not contest that acquiescence is required." The Council did not act on the Committee's recommendations and instead sent the matter back to the Committee for consideration of new information submitted by Cooley. In the interim, Cooley submitted an application for a second satellite campus, this one at Grand Rapids.

In January 2003, the Committee again considered Cooley's proposal using the existing interpretation of Standard 105 and again recommended that the application be denied. The Committee found problems with the proposal's outline of student services, library resources, full-time faculty, and facilities. The ABA also had previously expressed concern regarding Cooley's compliance with Standard 501, which mandates that law schools should only admit students who appear capable of being admitted to the Bar; the Committee felt that adding a new campus, and thus more students, would exacerbate this problem. In February 2003, the Council adopted the Committee's recommendation and denied Cooley's application. Two days later, the House adopted the proposed interpretations of Standard 105 relating to satellite campuses.

On the day Cooley received the Council's ruling, the school informed the ABA that it was increasing its program offering at both campuses above the 20% level, despite the fact that the school had been denied acquiescence. Cooley attempted to justify this move through its reading of ABA Rule 19(d). Rule 19(d) states:

An approved law school must inform the Consultant prior to implementing any proposed major structural change(s) so

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that a site evaluation visit may be promptly scheduled. In the event that the major change in organizational structure is the opening of a branch or an additional location, the site evaluation visit shall take place within six months of the start of classes at the branch or additional location.

Cooley argued that the plain language of Rule 19 dictated that an existing accredited law school must only "inform" the ABA of its decision to implement the major change of opening a branch location, so that a site visit could be scheduled "within six months of the start of classes at the branch or additional location." The school reasoned that it had informed the ABA and thus could operate for six months, allowing the ABA to make the necessary site visit.

The ABA immediately informed Cooley that its reading of Rule 19 was "erroneous" and that ABA regulations clearly required acquiescence prior to making any "major change." The letter cited Standard 105, which states: " Before a law school makes a major change in its program of legal education or organizational structure it shall obtain the acquiescence of the Council for the change." Rule 19(d), the ABA wrote, dealt only with the scheduling of site visits and provided an exception to the default ABA rule that site visits must occur within two years of approval. The ABA also cited Rule 19(a) 1 and Department of Education regulations, 34 C.F.R. § 602.22(a)(1)-(2)(vii), both of which require approval of substantive changes (including adding a location) before the change takes place. The ABA also informed Cooley that "operating either of these programs without prior acquiescence of the Council would be a violation of Standard 105 and could subject the school to sanctions." The ABA reaffirmed this position in other letters sent in February, March and August of 2003.

In October 2003, Cooley submitted applications for the opening of full branch campuses at both the Oakland and Grand Rapids locations...

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