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The West Virginia Business College v. Accrediting Council For Independent Colleges and Schools

United States District Court, E.D. Virginia, Alexandria Division

June 19, 2019

THE WEST VIRGINIA BUSINESS COLLEGE, ET. AL., Plaintiffs,
v.
ACCREDITING COUNCIL FOR INDEPENDENT COLLEGES AND SCHOOLS, Defendant.

          MEMORANDUM OPINION

          CLAUDE M. HILTON UNITED STATES DISTRICT JUDGE.

         THIS MATTER comes before the Court on cross motions for summary judgement pursuant to Rule 56 of the Federal Rules of Civil Procedure.

         West Virginia Business College Incorporated ("WVBC") and John A. Tarr filed this action on April 9, 2018 against Accrediting Council for Independent Colleges and Schools ("ACICS") and Sarah Armstrong Tucker. The suit was initially filed in the Northern District of West Virginia. However, on July 20, 2018, that Court granted ACICS' motion to transfer venue to this Court, thereby severing the claims and transferring the action only as to ACICS. In its originally filed complaint, WVBC asserted claims of 1) violation of its rights under due process; 2) breach of contract; 3) tortious interference; 4) negligence; 5) defamation; and 6) declaratory judgement. ACICS filed a motion to dismiss, which the Court granted in part and denied in part. WVBC subsequently filed its First Amended Complaint, which contains the following counts: 1) constitutional due process violation (pursuant to 42 U.S.C. § 1983); 2) common law due process violation; 3) breach of contract; and 4) tortious interference.

         Plaintiff's claims arise out of ACICS' April 10, 2017 final decision to deny WVBCs application for renewal of accreditation. Discovery has concluded, and there are no material facts in dispute and this case is ripe for summary judgement.

         From 1989 to 2017, WVBC operated as a for-profit business college with campuses in Nutter Fort and Wheeling, West Virginia. ACICS accredits educational institutions that offer programs in professional, technical, and occupational fields. From 1956 to December 2016, ACICS was continuously recognized as an accrediting agency by the United States Department of Education ("DOE"). On December 12, 2016, ACICS lost its recognition as an accrediting agency by the DOE. On April 3, 2018, ACICS' recognition by the DOE was reinstated, retroactive to the date of the initial loss, December 12, 2016.

         The WV Council is an agency of the State of West Virginia charged with administering the West Virginia Community and Technical College System ("CTCS"). Among other things, the WV Council authorizes community and technical colleges to operate in the State by issuing permits. WVBC had a permit to operate in the State from 1989 to 2017. The ACICS Accreditation Criteria: Policies, Procedures and Standards ("Accreditation Criteria") is published and periodically revised by ACICS and sets forth the requirements and process for accreditation of educational institutions.

         WVBC was accredited by ACICS from 1989 to 2017. In 2012, WVBC submitted an application for renewal of accreditation to ACICS. ACICS conducted on-site evaluations at WVBCs Nutter Fort and Wheeling campuses and generated a team visit report on November 3, 2013. On November 12 and 13, 2013, WVBC submitted written responses to the team visit report. On December 27, 2013, ACICS issued a new grant deferral letter and show cause directive to WVBC. That notice identified nine areas of noncompliance at the Wheeling campus, fourteen areas of noncompliance at the Nutter Fort campus, and sixteen areas of noncompliance that affected both campuses. As a result of all of those problems, ACICS deferred WVBCs application for renewal of accreditation to allow WVBC additional time to attempt to come into compliance, and ACICS placed WVBC on "show-cause" status.

         After nearly 18 months of working towards coming into compliance, on April 23, 2015, ACICS issued a renewal of accreditation notice to WVBC granting accreditation through December 31, 2016 and vacating the show cause directive. That eventual renewal of accreditation came nearly eighteen months after the initial team visit report, and after ACICS issued four deferral and show cause notices, and after ACICS held three hearings.

         On September 30, 2015, WVBC submitted an application for renewal of accreditation to ACICS. ACICS conducted on-site evaluations at WVBC's Nutter Fort campus on September 12-13, 2016 and at WVBC's Wheeling campus on September 14-16, 2016. ACICS generated team visit reports as a result of the campus visits, which identified 26 issues requiring explanatory response to the Nutter Fort campus, and 22 issues requiring explanatory response as to the Wheeling campus. WVBC submitted written responses to ACICS in response.

         On December 22, 2016, ACICS issued a letter to WVBC denying renewal of WVBC's accreditation, which was set to expire on December 31, 2016, unless WVBC appealed, in which case the accreditation would expire on April 30, 2017. The Denial Letter identified 12 areas of non-compliance at the Wheeling campus, and 17 areas of non-compliance at the Nutter Fort campus. The Denial letter noted the following concerns: 1) the large number of findings, 2) that many of the findings repeated previous violations, and 3) that it was unlikely that WVBC could correct the findings and return to compliance within a reasonable period of time given the extended length of time that WVBC took to earn its prior renewal.

         ACICS sent the Denial Letter to Dr. Corley Dennison, Vice Chancellor of Academic Affairs for the WV Council and the West Virginia Higher Education Policy Commission ("WV Commission"), as well as to other government officials. ACICS own Accreditation Criteria, as well as federal regulations, required the letter be sent to the recipients of the letter.

         WVBC appealed ACICS' accreditation denial to the ACICS Review Board as permitted by the Accreditation Criteria. As a result of ACICS' recommendation, among other factors, on February 22 and 23, 2017, the WV Council sent its own visit team to WVBC's Nutter Fort and Wheeling campuses.

         WVBC had a hearing before the ACICS Review Board on February 28, 2017. On March 30, 2017, the Review Board issued a remand of the denial of renewal of accreditation to the ACICS Council. The Review Board issued a recommendation that the ACICS Council consider granting WVBC until the August 2017 ACICS Council meeting to demonstrate compliance with the Accreditation Criteria.

         The ACICS Council met on April 3-7, 2017, at which time it considered the remand by the Review Board. On April 10, 2017, the ACICS Council issued its written decision denying WVBC's application for renewal of accreditation ("Final Denial Letter"). The Final Denial Letter states that on remand, the ACICS Council reviewed the Review Board's remand and recommendation and reviewed the record again in response to that recommendation. After such review, the ACICS Council found no credible basis upon which to conclude that additional time would result in WVBC coming into compliance. ACICS made its ruling for at least the following reasons: 1) the number of findings; ...


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