United States District Court, E.D. Virginia, Alexandria Division
LIAM O'GRADY, District Judge.
This action was brought by the Plaintiff, a school for aspiring massage therapists, challenging the decision of the Defendant, an accrediting agency, to revoke the school's accreditation. The Court granted the Plaintiff a preliminary injunction restoring its accreditation in September 2012, and heard the case at a bench trial in July 2013.
I. Factual and Procedural History
The Accreditation Alliance of Career Schools and Colleges ("ACCSC") is a non-profit, non-stock Virginia corporation which is recognized by the Department of Education as a national accrediting agency. Recognition by the Department of Education means that ACCSC has been certified to accredit colleges and career schools, a process which vets the schools and designates those which are accredited as having exceeded a certain threshold of quality and competency. The criteria a school must meet to be accredited by ACCSC are laid out in ACCSC's own Standards of Accreditation, which have been approved by the Department of Education. Accreditation by an approved commission like ACCSC allows the students of accredited schools to apply for and receive financial aid under Title IV.
ACCSC accredits the Professional Massage Training Center ("PMTC"), a school for aspiring massage therapists in Springfield, Missouri. PMTC was founded in 1994 by Juliet Mee. Ms. Mee has owned the school and, for all practical purposes, served as its director continuously since it opened. The school's students have enjoyed employment rates significantly higher than the median among schools accredited by ACCSC.
Professional Massage Training Center first sought and received accreditation from ACCSC in 2000. In 2005, when PMTC applied to renew its accreditation, ACCSC asked the school to show that its management policies and procedures were keeping the school in compliance with ACCSC's accreditation standards. PMTC provided the necessary documents and ACCSC renewed the school's accreditation for the maximum five years.
The events which led to this litigation began when PMTC sought to renew its accreditation again in 2010. After PMTC filed its mandatory "self-evaluation report." ACCSC scheduled a team site visit to evaluate PMTC. Among the ACCSC representatives sent to evaluate PMTC on-site was Lisa Miles. After the visit, Lisa Miles sent a team summary report to PMTC detailing her findings and listing several deficiencies she observed. PMTC responded to the report by providing documents and explanations as requested in the report.
ACCSC did not consider PMTC's responses sufficient in certain areas of concern. In December 2010 ACCSC placed PMTC on probation, requiring the school to demonstrate compliance with the standards of accreditation in eleven different areas. PMTC submitted a voluminous response and also hired an additional administrator, April Durnell.
Shortly after PMTC's response, ACCSC vacated the December 2010 probation order and fully restored the school's accreditation. ACCSC then scheduled a second team site visit to the school. The second team visit, also led by Lisa Miles, resulted in a team summary report that raised some of the same concerns from the first visit. Primarily, PMTC had insufficient management, was not adequately developing its learning resource center ("LRS"), and had not properly verified the employment history of several instructors so could not vouch that they were experienced enough for their roles as teachers.
Just as before, PMTC had a chance to respond and it did so. In December 2011, ACCSC again placed PMTC on probation. The second probation order listed fewer areas of concern than the first, focusing on the three subjects enumerated in the second team summary report. Just as before, PMTC submitted a response to the probation order. This time, however, ACCSC decided to revoke PMTC's accreditation. The March 2012 revocation reiterated concerns about (i) adequacy and continuity of management; (ii) sufficiency of faculty verification; and (iii) adequacy of the LRS.
PMTC appealed the revocation using ACCSC's internal appeals process. That appeal was denied in July 2012. PMTC filed this lawsuit in August 2012, seeking restoration of its accreditation and damages. The Court granted a preliminary injunction ordering PMTC's accreditation to be restored to probationary status pending the outcome of the suit, and PMTC has been on probation since.
Several sections of the road to PMTC's loss of accreditation require closer examination because they are central to PMTC's claims.
The first site visit team to visit PMTC on behalf of ACCSC was led by a man named Michael Ackerman. Mr. Ackerman was an employee of ATI Enterprises, which operates for-profit schools. At the time of the visit, ATI was embroiled in a controversy regarding improper practices, including aggressive and potentially fraudulent recruiting techniques. PMTC believes it was improper to involve Mr. Ackerman in the peer review process because of his ties to ATI. PMTC considers his inclusion on the team negligent. The school buttresses its argument that Mr. Ackerman's inclusion on the team was improper with testimony from Ms. Mee that Mr. Ackerman was a large, intimidating man, and suggested her school use more aggressive recruiting techniques. He was removed as team leader in December 2010.
As a purely factual matter, the Court has not seen credible evidence to suggest that Mr. Ackerman's inclusion on the initial site visit team improperly influenced the outcome of that report, or eventually caused PMTC to lose its accreditation. Therefore the Court will not consider Mr. Ackerman further in making its determination on any of the counts.
The second site team visit, in June 2011, was led by Lisa Miles. She testified at trial that the visit lasted one day and did not include a visit to the Missouri State University library, even though Ms. Miles was aware that the school had an agreement whereby PMTC students could access MSU libraries, making those libraries part of PMTC's LRS.
Ms. Miles also testified that at the site visit she received two binders of documents responding to ACCSC's concerns. Ms. Miles testified that she read the binders before preparing her team summary report, but did not put them in the record or show them to the commission. She destroyed them at her home after reading them.
Before PMTC's reaccreditation was denied, a panel of three commissioners from ACCSC first voted, unanimously, to recommend denial. Following their recommendation, the full slate of twelve commissioners voted, again unanimously, for denial. The members of the three-commissioner panel ("Panel D") reviewed the December 2011 probation order and the school's response before the Panel D meeting. PMTC cites to testimony by panel member Mollis that he could not remember actually reading those materials. Mollis also testified, however, that it would have been the normal course of business to do so. The Court sees no reason to doubt him.
After Panel D's discussion and vote, staff members (not the commissioners themselves) prepared an "Institutional Compliance Summary." The summary was intended to present the Panel's findings to the rest of the commissioners before they held the full vote on PMTC's accreditation. At least one Panel D member, Allan Sharpe, did not review the staff's drafted summary before it was distributed to the full commission. Kristi Mollis, another of the Panel D commissioners, testified at trial that she had seen the Institutional Compliance Summary the night before it was presented to the full commission, but earlier at deposition she testified that she could not recall reviewing the summary before it was submitted to the full commission.
Allan Sharpe testified that the only topic of discussion at the full commission meeting was PMTC's Learning Resource System. The Court did not hear other testimony regarding the specific content of the meetings, and all commission members' notes from the meeting have been destroyed. PMTC claims this is a direct contravention of ACCSC's preservation policy. The commission voted unanimously to revoke PMTC's accreditation.
Following the vote, ACCSC staff wrote a revocation letter, which was delivered to PMTC in March 2012. The revocation letter recited the school's accreditation history and then gave two primary reasons for revoking PMTC's accreditation. First, the commission determined that PMTC "failed to demonstrate that the school ensures the continuity of management and administrative capacity through the reasonable retention of management and administrative staff." (Citing its own Standards of Accreditation, Section I(A)(4).) The second reason given was "PMTC failed to demonstrate that it maintains full-time or on-site supervision by an individual or team that has the demonstrated ability to lead and manage the institution." (Citing Standards of Accreditation, Section I(A)(1).) Within the second reason, the letter identified two direct effects of the lack of adequate supervision: an inadequate learning resource system and insufficient verification of faculty qualifications.
Both of the given reasons for revocation are citations to the ACCSC Standards of Accreditation Section I(A), which is dedicated to "Management and Administrative Capacity." As the Court noted in its denial of summary judgment in this case, Section I(A) is full of requirements of "adequate management" with "appropriate" education and experience, employed in "sufficient number, " whose continuity is ensured through "reasonable retention." But Section I(A) does not give any definition for "adequate, " "appropriate, " "sufficient, " or "reasonable." When pressed at trial, no witness could give a direct answer to the question of how a school should determine when it has satisfied each of those requirements, nor to the question of what metrics are used to measure sufficiency or adequacy of management and administrative capacity.
One metric which appears to have been omitted from the Panel D and full commission consideration is student outcomes. Testimony from ACCSC witnesses indicated that student outcomes were not considered in the commission's decision, and that the burden was on the school to present that evidence. Dr. McComis, head of the ACCSC, testified that if the school wished for student outcomes to be considered, it should have had its ...