United States District Court, E.D. Virginia, Alexandria Division
THE WEST VIRGINIA BUSINESS COLLEGE, ET. AL., Plaintiffs,
ACCREDITING COUNCIL FOR INDEPENDENT COLLEGES AND SCHOOLS, Defendant.
M. HILTON UNITED STATES DISTRICT JUDGE.
MATTER comes before the Court on cross motions for summary
judgement pursuant to Rule 56 of the Federal Rules of Civil
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.
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.
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,
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.
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
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
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.
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.
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
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.
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
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; ...