Giving Due Process Its Due

Most injunctions don't end up making legal policy, let alone higher education policy.

But a court order this month that restored the accreditation of Edward Waters College, a historically black institution in Florida, may do just that. When a federal judge issued the injunction, it was viewed as saving the college from its possible demise. And there's no doubting the importance of the ruling to the college, which said that it was denied due process rights.

But as the injunction has circulated among college officials and accreditation experts in the last 10 days, a new view of the ruling has emerged: that it might force accreditors to give colleges significantly enhanced due process rights. Such a shift could help not only Edward Waters, but other struggling colleges, especially in the South.

Indeed on Monday, another federal judge extended a temporary restraining order that he first issued Thursday, requiring the continued accreditation of Hiwassee College, a private two-year liberal arts college in Tennessee. In that case, too, the college maintains that it was denied due process.

And at least one accreditor that has not been part of the recent litigation is considering changes in its rules -- to give colleges facing a loss of accreditation more opportunity to defend themselves.

In the Edward Waters case, the injunction blocks the Southern Association of Colleges and Schools from revoking the accreditation of college, and orders the two parties to seek mediation in their dispute.

In December, the regional accrediting group's Commission on Colleges revoked the college’s accreditation, citing documents Edward Waters officials had submitted to the association that appeared to have been plagiarized from Alabama A&M University. Loss of accreditation is deadly to just about any college because students can use federal aid only at colleges that are accredited by a regional or national association recognized by the U.S. Education Department.

Edward Waters went to court, demanding to remain accredited. In its filing, it said that it was denied basic due process rights and that the Southern accrediting group violated its own rules. Judge Timothy J. Corrigan largely agreed with the college's point of view, and in issuing the injunction said that the college would probably prevail in a trial.

Judge Corrigan said he understood that the accreditors were trying to promote the integrity of higher education. But he added that "good faith and good intentions do not necessarily equate to due process."

Specifically, he reviewed the way the Southern accreditor informed the college of the seriousness of the charges it was facing and the way it let the college respond. In both areas, the judge found the accreditor lacking. He also faulted the accreditor's appeals process, and the way it delegates certain decisions to various boards.

Summing up the problems, Judge Corrigan said: "With no opportunity to be heard by the actual decision-maker (the Commission) or the body on which it exclusively relied (the Executive Council), the college had now lost its accreditation, in part for reasons about which it had no notice."

Officials of the Southern Association declined to comment on the ruling, citing the current litigation. Likewise, officials of the Council for Higher Education Accreditation declined to say more than that they were reviewing the injunction with interest.

But lawyers who have long sought more leverage for their college clients in disputes with accreditors said that the injunction was extremely significant.

Michael B. Goldstein, a Washington lawyer who helped Edward Waters on the case and who has been involved in many other accrediting disputes, said that this ruling was much stronger than previous decisions about accreditation.

"The judge found fault with essentially the entire process from beginning to end," Goldstein said.

One of the important precedents established, he added, is that an accreditor has a particularly high responsibility in cases where a college could lose recognition and as a result could face its collapse. "If an accrediting decision is effectively a death penalty, what's the rush?" he said the judge was saying.

Michael Freed, a Florida lawyer who worked on the case, said that it could end up helping many other colleges, and especially historically black colleges like Edward Waters. Over the years, a number of those colleges have had accrediting disputes with Southern, which handles reviews in the region where most black colleges are located.

"There have been a number of historically black colleges and universities that have been adversely affected by SACS decisions in recent years," Freed said. But many of those colleges lacked the resources to bring a legal challenge. He said black institutions were particularly concerned about due process in accreditation.

"A good amount of what Edward Waters College complained about is what happens in the process with no record being maintained and in work involving private committees," Freed said. "We don't know what happens behind closed doors, so until now the opportunity for personal biases was present."

He added that the win by Edward Waters was "a victory not just for historically black colleges but for all colleges that feel that they are the victim of a heavy-handed or less than careful process followed by the agencies."

While Goldstein and Freed have plenty of reason to see the ruling as significant (their client won, after all), that opinion is shared by a number of people in the accrediting world, some of whom said that they did not want to comment publicly on the decision just yet.

One of those who was willing to talk was Steven D. Crow, executive director of the North Central Association of Colleges and Schools. Crow said that the decision was prompting accreditors generally to think about due process issues. His agency in fact is now considering a change it its rules.

Currently at North Central, a special review committee recommends sanctions such as the revocation of accreditation, and then the association's board votes on the recommendation. Up until now, a college facing loss of recognition appeared before the review committee, but not before the board. That may soon change, he said.

Crow said that adding more due process isn't quite as simple as some think. He said, for example, that many reviews start off without any expectation that they will end up with a serious sanction. So accreditors may not think that extensive formal due process is necessary until things have moved along quite far. "You don't always expect to get there," he said, and all of the sudden may realize that there is a need for hearings.

Another problem facing accreditors, Crow said, is that they are getting conflicting messages. In cases like Edward Waters's, courts are telling accreditors to focus more on due process. "But we all feel that the message we are getting from both Congress and the Department of Education is that we need to be able to weed out institutions."

Adding more due process, he said, can mean that a college with serious problems may continue enrolling students and using federal aid. Said Crow: "We need a happy balance between expecting us to be responsive and quick and getting caught in a due process situation that allows one more semester to get started."