Accrediting Council for Indep. Colls. & Sch. v. Devos

• Decision Date: 23 March 2018
• Docket Number: Civil Action No. 16–2448 (RBW)
• Citation: 303 F.Supp.3d 77
• Parties: ACCREDITING COUNCIL FOR INDEPENDENT COLLEGES AND SCHOOLS, Plaintiff, v. Betsy DEVOS, in her official capacity as Secretary of the United States Department of Education, and the United States Department of Education, Defendants.
• Court: U.S. District Court — District of Columbia

303 F.Supp.3d 77

ACCREDITING COUNCIL FOR INDEPENDENT COLLEGES AND SCHOOLS, Plaintiff,

v.Betsy DEVOS,¹ in her official capacity as Secretary of the United States Department of Education, and the United States Department of Education, Defendants.

Civil Action No. 16–2448 (RBW)

United States District Court, District of Columbia.

Signed March 23, 2018

Andrew T. Hernacki, Meredith L. Boylan, Allyson B. Baker, Venable LLP, Washington, DC, Hillary S. Profita, Pro Hac Vice, Venable LLP, New York, NY, for Plaintiff.

Stephen J. Buckingham, Lisa Zeidner Marcus, U.S. Department Of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION

REGGIE B. WALTON, United States District Judge

The plaintiff, the Accrediting Council for Independent Colleges and Schools (the "Accrediting Council"),² brings this civil action under the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701 – 706 (2012), challenging the decision of the Secretary of the United States Department of Education (the "Department") to revoke the Accrediting Council's recognition as an "accrediting agency" for certain institutions of higher education. See Complaint ("Compl.") ¶¶ 1, 6, 37–42. Currently before the Court are the parties' cross-motions for summary judgment. See generally Plaintiff's Motion for Summary Judgment ("Pl.'s Mot."); Defendants' Cross[–]Motion for Summary Judgment ("Defs.' Cross–Mot."). Upon careful consideration of the parties' submissions,³ the Court will grant in part and deny in part the Accrediting Council's motion, deny the defendants' motion, and remand this case for further proceedings consistent with this memorandum opinion.

I. BACKGROUND

A. Statutory and Regulatory Framework

Title IV of the Higher Education Act of 1965 ("HEA") "provides billions of dollars [every year] through loan and grant programs to help students pay tuition for their postsecondary education." Ass'n of Private Sector Colls. & Univs. v. Duncan, 681 F.3d 427, 433 (D.C. Cir. 2012) ; see also 20 U.S.C. § 1070 (2012) (stating that the purpose of the Act is to "assist in making available the benefits of postsecondary education to eligible students ... in institutions of higher education by" "providing Federal Pell Grants ... [,] supplemental educational opportunity grants ... [, and] payments to the States to assist them in making financial aid available"). To participate in these programs, an institution of higher education must have certain qualifications, including the requirement that it must be accredited by a nationally recognized accrediting agency or association. See 20 U.S.C. § 1002(a) (incorporating 20 U.S.C. § 1001(a)(5) ); see also id. § 1099c.

The Secretary of the Department (the "Secretary") determines which accrediting agencies are nationally recognized for the purposes of the HEA. See id. § 1099b; see also 34 C.F.R. § 602.1 (2016). To be recognized, an accrediting agency must satisfy certain criteria designated by the HEA and the Secretary's implementing regulations. See 20 U.S.C. § 1099b(a) ; see also 34 C.F.R. pt. 602, subpt. B. Those criteria require an accrediting agency to demonstrate, inter alia, that it: (1) has "standards for accreditation" that effectively address areas such as "student achievement," "[r]ecruiting and admissions practices," and compliance with its responsibilities under Title IV, see 34 C.F.R. § 602.16(a)(1)(i), (vii), (x) ; (2) has "effective mechanisms for evaluating an institution's ... compliance with the [accreditation] standards," id. § 602.17; (3) has "a set of monitoring and evaluation approaches that enables the [accrediting] agency to identify problems with an institution's ... continued compliance with [accreditation] standards," id. § 602.19(b); (4) enforces the accreditation standards against institutions that are not in compliance with them, see id. § 602.20(a); and (5) "maintain[s] a systematic program of review that demonstrates that its standards are adequate to evaluate the quality of the education ... provided by the institutions," id. § 602.21(a). The statute provides that in order to determine whether an accrediting agency is in compliance with these criteria, the Secretary "shall conduct a comprehensive review and evaluation of the [agency's] performance," as well as "an independent evaluation of the information provided by [the] agency." 20 U.S.C. § 1099b(n)(1). Additionally, the statute requires the Secretary to "consider all available relevant information concerning the compliance of the accrediting agency ... with the criteria." Id. § 1099b(n)(3).

Pursuant to the HEA, the Secretary has promulgated regulations establishing procedures for the review of an accrediting agency's application for recognition. See 20 U.S.C. § 1099b(o) (providing that "[t]he Secretary shall by regulation provide procedures for the recognition of accrediting agencies"). First, the staff of the Department's Office of Postsecondary Education (the "Department staff") "analyzes the [accrediting] agency's application ... to determine whether the agency satisfies the criteria for recognition, taking into account all available relevant information concerning the compliance of the agency with those criteria and in the agency's effectiveness in applying the criteria." 34 C.F.R. § 602.32(b). The Department staff's analysis includes, inter alia, "[r]eview of [ ] public comments and other third-party information the Department staff receives ..., [ ] the agency's responses to third-party comments, ... as well as any other information [the] Department staff assembles for purposes of evaluating the agency." Id. § 602.32(b)(2). Once it completes its evaluation, the Department staff prepares and sends to the accrediting agency "a written draft analysis" that "includ[es] any identified areas of noncompliance and a proposed recognition recommendation" and that "[i]nvites the agency to provide a written response ..., specifying a deadline that provides at least [thirty] days for the agency's response." Id. § 602.32(f)(1)–(3). Upon receipt of the accrediting agency's response, the Department staff reviews the response and "prepares [a final] written [ ] analysis," which "includes a recognition recommendation to the senior Department official, ... including ... a recommendation to approve, deny, limit, suspend, or terminate recognition, [or] require the submission of a compliance report and continue recognition pending a final decision on compliance." Id. § 602.32(f)(4). The Department staff must "[p]rovide [its final written analysis] to the agency[ ] no later than seven days before the [National] Advisory Committee [on Institutional Quality and Integrity (the "Advisory Committee") ] meeting," which is the next step in the process. Id. § 602.32(f)(5).

The Department staff then submits its final written analysis and certain other relevant materials to the Advisory Committee for its review. See id. § 602.34(c).⁴ Thereafter, the Advisory Committee holds a public meeting to "consider[ ] the materials provided ... and invites [the] Department staff, the [accrediting] agency, and other interested parties to make oral presentations during the meeting." Id. § 602.34(e). At the meeting, the Advisory Committee adopts "a written motion ... regarding the agency's recognition," id. § 602.34(f), which it then "forwards to the senior Department official" in the form of "a recommendation to[, inter alia,] approve, deny, limit, suspend, or terminate recognition, ... or to require the agency to submit a compliance report and to continue recognition pending a final decision on compliance," id. § 602.34(g). "Within ten days following the Advisory Committee meeting, the [accrediting] agency and [the] Department staff may submit written comments to the senior Department official," id. § 602.35(a); however, neither party "may submit additional documentary evidence ... unless the Advisory Committee[ ] ... proposes finding the agency noncompliant with ... a criterion ... not identified in the [ ] Department staff['s final] written analysis," id. § 602.35(c)(1).

"The senior Department official [then] makes a decision" on the accrediting agency's application for recognition "based on the record compiled" in the prior proceedings, including all materials submitted to the Advisory Committee, the Advisory Committee meeting transcript, the Advisory Committee's recommendation, and any written comments from the accrediting agency or the Department staff in response to the Advisory Committee's recommendation. See id. § 602.36(a). "[I]f the agency either fails to comply with the criteria for recognition, ... or to apply those criteria effectively, the senior Department official denies, limits, suspends, or terminates recognition" and "specifies the reasons for this decision, including all criteria the agency fails to meet and all criteria the agency has failed to apply effectively." Id. § 602.36(e)(2)(i)–(ii). However, "if ... the senior Department official concludes that the agency will demonstrate or achieve compliance with the criteria ... and effective application of those criteria within [twelve] months or less, the senior Department official may continue the agency's recognition, pending submission by the agency of a compliance report [and] review of the report." Id. § 602.36(e)(3)(i). The senior Department official must notify the agency of his or her decision in writing "regarding the agency's recognition within [ninety] days of the Advisory Committee meeting." Id. § 602.36(d).

"[An accrediting] agency may appeal the senior Department official's decision to the Secretary." Id. § 602.37(a). On appeal, the Secretary considers the senior Department official's decision, the accrediting agency's and the senior Department official's written submissions on appeal, and the entire record that was before the senior Department official. Id. § 602.37(d). If the Secretary determines that the agency has failed to demonstrate compliance with or effective application of any of the recognition...