National Files Lawsuit Against CCE for Placing School on Probation
CLICK HERE for related story about denial of appeal
In their lawsuit National states it ". . . seeks judicial review of the arbitrary and capricious decision of its programmatic accrediting agency, CCE, to place NUHS on Probation effective May 21, 2018, in violation of NUHS’s common law due process rights and in violation of CCE standards."
In its lawsuit against the CCE, National also goes after the Appeal Panel alleging that it:
- failed to follow its own standards
- substantially disregarded CCE Standards and the U.S. Code
- made an arbitrary and unreasonable decision by not addressing NUHS’s appeal grounds that the Council denied NUHS due process pursuant to the requirements of 34 C.F.R. § 602.25 by failing to provide written notice of noncompliance and sufficient opportunity for NUHS to respond to the noticed noncompliance before CCE placed NUHS on Probation; and
- made an arbitrary and unreasonable decision by not addressing NUHS’ appeal grounds that the Council denied NUHS due process by implementing an unfair procedure that included an arbitrary and capricious, discriminatory, and unreliable compliance determination in its determination to issue a sanction of Probation.
National claims that as a result of CCE’s imposition of Probation
- NUHS will lose current and prospective students
- other DCPs accredited by CCE will immediately attempt to poach NUHS’s current and prospective students,
- other DCPs accredited by CCE will immediately attempt to poach NUHS’s faculty,
- the value of NUHS’ Doctor of Chiropractic degrees will be adversely impacted,
- NUHS’s reputation will be adversely effected by suggesting to third parties that NUHS provides a poor education
- NUHS’s enrollment will decrease such that the NUHS resources will be limited to continue to implement the improvements that CCE recognized and encouraged NUHS to pursue.
In the complaint submitted to the United States District Court for the District of Arizona, National boasts that it is the only chiropractic program that requires a Bachelor's degree prior to admission and that CCE accreditation allows chiropractic students to get student loan money and laments that:
"Loss of accreditation means that DCP students are ineligible to receive student aid funds under Title IV programs. The vast majority of DCP students funds their education entirely with Title IV program funds and would not be able to enroll in a DCP without access to Title IV program funds."
Bearing in mind that National has not lost accreditation but has been put on probation, National concludes for the court that even the threatened loss of accreditation is a "death blow" to a chiropractic program:
"Therefore a DCP’s loss of accreditation or threatened loss of accreditation, e.g., Probation, is a death blow to a DCP."
National sought the following remedies from the court:
- An ex parte temporary restraining order until a preliminary injunction proceeding can be briefed and ruled upon, requiring CCE to stay its enforcement of probation and enjoining CCE from making public disclosure of its imposition of probation;
- Enter a preliminary injunction requiring CCE’s Appeals Panel to rescind its decision to affirm the Council’s February 2, 2018 decision to place NUHS on probation, requiring CCE’s Appeals Panel to reverse the Council’s February 2, 2018 decision to place NUHS on probation, and enjoining CCE from making public disclosure of its imposition of probation;
- Enter a permanent injunction requiring CCE to follow all procedures set forth in CCE’s Standards, Policies, Accreditation Manual, and Site Team Manual, and those required by the U.S. Code, Code of Federal Regulations, and federal common law;
- Enter a declaratory judgment that CCE Standards, as currently written, do not permit the Council to grant accreditation or reaffirmation of accredited status and, on the same record, impose a sanction of probation;
- Enter a declaratory judgment that CCE Standards, as currently written, do not authorize the Site Team to make conclusions of compliance or noncompliance and Final Site Team Reports, therefore, do not constitute notice of the deficiency of noncompliance to satisfy the due process requirements of 34 C.F.R. § 602.25(c) and (d) when the adverse action is based on a conclusion of noncompliance;
- Enter a declaratory judgment that CCE Policy 56 as applied to NUHS fails to comply with 20 U.S.C. § 1099b(a)(1)(i), is not applied with an even hand, and requires NUHS to report misleading and inaccurate data and, therefore, cannot be the basis of a decision to impose an adverse action;
The court did not buy National's pleas for a TRO or to seal the case. According to the court National did not follow the rules and their submission had ". . . several deficiencies and will be denied."
According to the decision:
- National failed to deliver to the court for the judge’s use paper copies of the filings.
- There is no basis for decision without notice to Defendant and opportunity to be heard.
- National's attorney did not certify “in writing any efforts made to give notice and the reasons why it should not be required.”
- There is no showing of “immediate and irreparable injury, loss, or damage [that] will result to National before the CCE can be heard in opposition.
- The injury described is not immediate. Rather, it is injury that would result from loss of accreditation, if and after it occurs, not from Probation.
- National could have given CCE and their counsel actual notice of this intended temporary restraining order promptly upon deciding to file this action and seek the restraining order. The failure to do so is unexplained and therefore unexcused.
- The embarrassment of public awareness that adverse action has been taken requiring relief does not distinguish this case from many others.
- The lodged proposed temporary restraining order does not meet the requirements of Rule 65(b)(2). That Rule requires that the temporary restraining order “describe the injury and state why it is "irreparable” and “state why the order was issued without notice.”
- The form of order says nothing about “why the order was issued without notice.”
- The Emergency Ex Parte Motion to File Action Under Seal (Doc. 1) does not demonstrate the high showing necessary to litigate a case out of public scrutiny.
- Plaintiff does not even discuss the standard for sealing. The Motion is in effect a request to litigate this entire case under seal.
- There is more than the usual public interest in transparency in this case than most.
- Moreover, no effort is made to show why sealing should be ordered without Defendant having an opportunity to be heard in opposition. The rules empower the Court to give prompt litigation and resolution. A preliminary injunction can be consolidated with final trial on the merits.
- This case could be resolved before the feared harm becomes serious, even assuming Defendant’s actions are unlawful.
The Court therefore ordered that National's Emergency Ex Parte Motion for Temporary Restraining Order was denied and National's Emergency Ex Parte Motion to File Action Under Seal was denied.
The Clerk was ordered to file the case in open court.
CLICK BELOW for LAWSUIT & RELATED DOCUMENTS
Higher Learning Commission Public Disclosure
Higher Learning Commission Action Letter
Denial of Temporary Restraining Order & Seal
National v. CCE Legal Complaint
Request for Temporary Restraining Order
Declaration of Stiefel and all Exhibits
Motion for Temporary Restraining Order and Memorandum in Support
