Superior Court Judge Karnow Issues Preliminary Injunction January 2, 2014
On January 2, 2014, Superior Court Judge Karnow issued a preliminary injunction against the ACCJC which bars “the Commission from finalizing their dis-accreditation decision pending further order of the court or final adjudication of the merits in this case. That order expressly contemplates that the Commission will proceed with the current process, for example working with the College to resolve the Commission's concerns, as well as taking any and all other actions, except to implement a dis-accreditation order such as had been scheduled for July 31, 2014. In the meantime it is my intent to expedite this case and set it for trial at the earliest practicable date.”
The preliminary injunction was based on the motion of the San Francisco City Attorney. The decision stated that “The City Attorney's motion for preliminary injunction is granted, but solely to the extent of enjoining the Commission from terminating the College's accreditation until further order of the court or final judgment in the City Attorney's case; the motion is otherwise denied.” The right for ACCJC to continue to sanction other colleges is not affected by this ruling.
In this case the judge issued the preliminary injunction without a trial and before the parties to the suit had the opportunity to present their full cases including the necessary evidence and witnesses. In this case the judge looked at how strong the San Francisco City Attorney’s case is as opposed to the harm suffered by either issuing or not issuing the injunction. Judge Karnow came down on the harm done to students, faculty, and City itself side. He wrote: "There is no question, however, of the harm that will be suffered if the Commission follows through and terminates accreditation as of July 2014. Those consequences would be catastrophic. Without accreditation the College would almost certainly close and about 80,000 students would either lose their educational opportunities or hope to transfer elsewhere; and for many of them, the transfer option is not realistic. The impact on the teachers, faculty, and the City would be incalculable, in both senses of the term: The impact cannot be calculated, and it would be extreme."
At the same time Judge Karnow denied the ACCJC motions to dismiss the case and to dismiss the CFT’s lawsuit based on California's Strategic Lawsuits Against Public Participation (Anti-SLAPP) statute (which dismiss cases and actions that intend to chill the valid exercise of First Amendment rights of freedom of speech and petition). The ACCJC had claimed that the CFT suit was an attempt to stifle ACCJC’s free speech rights. In short, both of the ACCJC’s motions were denied.
The cases are being considered under California's Unfair Competition Law (UCL). In the words of the Court: “The UCL allows a suit against a defendant if the defendant has done anything illegal or unfair, or fraudulent. The act can be illegal under any law- including the laws and regulations of the federal government. The acts can be unfair, too, but there can be difficult legal issues in trying to decide if an act is "unfair" as the UCL uses that word. Although the UCL is a broad statute allowing a wide variety of claims, the sort of relief one can get after winning a UCL case is quite limited. For example, a successful plaintiff can't get money damages, as she might in other sorts of cases. The successful UCL plaintiff might be able to get an order from a judge telling the defendant to do something, or stop doing something, as well as some other sorts of relief.”
The judge did not grant CFT’s request for an injunction based on a higher standard than that required of the San Francisco City Attorney’s. In the words of Judge Karnow “Some of the plaintiffs (the union, teachers and students) have a problem with their case. They have probably shown enough to conclude that the Commission imposed unfair procedures, but they have not shown that those procedures led to the Commission's adverse decision. As far as the evidence presented to the court shows, the Commission might have issued exactly the same decisions with fair procedures. The plaintiffs have argued that they can win by just showing unfair procedures, and it doesn't matter if the Commission would have done the same thing or not. But under the UCL, it does matter, at least as far as the union, teachers, and students are concerned. They have at least to show they were harmed by the specific acts they say were unfair or illegal under the UCL. They didn't do that. It's not good enough to argue that the Commission's ultimate decisions (for example, threatening to terminate accreditation) causes harm.
The situation is different with respect to the case brought by the City Attorney. As a law enforcement officer he is empowered, along with other City Attorneys and the state's Attorney General, to enforce the UCL without showing that any particular person was harmed.”
The CFT and San Francisco City Attorney combined case will now go to trial. With the chance to provide full evidence, the CFT case could still prevail.
Documentation from the City Attorney’s case can be found at http://www.sfcityattorney.org. The Case Number is CGC 13-533693.
ACCJC January 13, 2014 Misleading Press Release
ACCJC Press Release, Jan. 13, 2014
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ACCJC Press Release
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Comments by M. Hittelman
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On January 2, 2014, the Honorable Curtis Karnow ruled on preliminary motions in two related lawsuits filed against the Accrediting Commission for Community and Junior Colleges, Western Association of Schools and Colleges (ACCJC).
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The Press Release is just another attempt to spin-doctor rulings against them. It contains misleading interpretations and factual errors.
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The judge's decision was to order a preliminary injunction to delay for a short time, if necessary, the actual termination of City College of San Francisco, so that questions by the City Attorney in one of the lawsuits could be fully explored by the court. The court indicated that the trial would be scheduled quickly, so as not to extend the delay beyond a month or two.
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Actually both the City Attorney and the CFT law suits will be heard by the judge. The judge ruled in favor of the temporary injunction sought by the City Attorney. The judge did not state that it was his intent not to delay the closure of the college as suggested by ACCJC.
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The lawsuits are unusual, in that suits against accrediting commissions generally are filed by colleges affected by an accrediting action. Here, the college was not a part of the lawsuits filed. City College of San Francisco (CCSF) is not suing the ACCJC.
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No suit was filed by the “college” - meaning the Special Trustee appointed by the Community College State Chancellor did not file a suit. So far, the Special Trustee has shown no indication that he will effectively challenge the ACCJC. In fact, he was appointed by a State Chancellor who himself was once a member of the Commission.
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In fact, there is no question that the college is seriously deficient in meeting the accreditation standards as was found by the ACCJC when it reviewed the college and made the decision to terminate the accreditation of CCSF.
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There are certainly questions concerning the findings of the ACCJC and the methods used to reach that conclusion. These questions are central to the law suits filed. In addition, Complaints have been received from members of Congress, the State Legislature, the Superintendent of Public Instruction, and organizations across the state as well as the U.S. Department of Education.
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Because of this, the judge questioned whether the parties bringing the lawsuits could ultimately be successful. However, in preliminary motions of the sorts heard in this case, the court is required to take whatever is said by the plaintiffs at face value, giving them the benefit of the doubt until the facts can be brought out in trial.
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This statement is factually incorrect. The judge actually ruled that the City Attorney’s law suit was likely to be upheld and issued the temporary injunction.
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While both lawsuits are similar, the court ruled that even given the benefit of the doubt to plaintiffs, it was not likely the parties in the suit brought by the AFT and CFT (faculty labor unions) and related others could be successful. That is why the request for a preliminary injunction was denied.
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This statement is factually incorrect. The question, in the AFT case, revolved around whether the same decision would have been made by the Commission if it had correctly followed its procedures. The judge ruled that this issue had not been addressed in the briefings. He did write that the plaintiffs (the union, teachers and students) "have probably shown enough to conclude that the Commission imposed unfair procedures." AFT needed to show that these actions led to the adverse action, the City Attorney did not need to do so- and so the judge imposed the temporary injunction requested by the City Attorney.
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In the second lawsuit, the judge noted that California statutes allow City Attorneys to file suits of this nature. Thus, while ultimate success was questionable, the judge would allow the preliminary injunction delay.
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The judge will take up these issues during the trial on the basis of information presented during the court case.
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Other more extreme requests by the City Attorney and the other parties were denied by the judge, including a request to block the ACCJC from enforcing standards of academic quality and institutional effectiveness against colleges who are deficient in these areas. The request to reverse the ACCJC decision against CCSF was also denied. In fact, the court ruling specified that the various steps that follow a termination decision should continue to go forward, up to the actual termination implementation.
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The judge actually wrote that “The City Attorney's motion for preliminary injunction is granted, but solely to the extent of enjoining the Commission from terminating the College's accreditation until further order of the court or final judgment in the City Attorney's case.”
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The second motion was to point out various circumstances that might make the City Attorney's lawsuit premature or inappropriate at this time. The points included that the college is not a party to the lawsuit, that steps preceding actual implementation of a termination are not completed, and that the ACCJC is in the process of its regular review by the U.S. Department of Education, which will likely answer many of the questions being asked. The judge decided these issues would not be used to dismiss the lawsuit at this time, but that they were issues that would likely impact the ultimate decision in the lawsuit.
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In fact the judge wrote that “plaintiffs' evidence (setting aside defendants' evidence and explanations) shows, as a function of reasonable inferences which I must draw in AFT's favor, that the Commission might not have had reached the results it did in 2012 and 2013 had it (i) staffed the evaluation teams differently, (ii) allowed the College more time to respond (as it is doing now which, as the Commission now tells me at argument, may {or may not} result in the withdrawal of the show cause notice), (iii) found that the financial management issues such as the way in which pension funds are handled do not in fact violate accepted procedures.
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In response to these actions, the ACCJC also filed two preliminary motions. The first was to point out the lawsuit by AFT and CFT was primarily intended to block the ACCJC's free speech, and this sort of lawsuit cannot be brought simply to harass an organization who is exercising its free speech. The judge agreed that when an accrediting commission acts on the accredited status of a college, that decision and the related opinions released involve free speech by the accreditor. However, given that the standard for these types of motions is very low - that if there is even some possibility the plaintiff might win a part of its case, taking what is accused at face value-then this early motion will not be used to dismiss the lawsuit.
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Accordingly AFT has met its burden under the second prong of the anti-SLAPP law, and so I deny the special motion to strike.”
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ACCJC's purpose is to uphold the quality of education of its member institutions. Accredited institutions commit to continuously meet accreditation standards. The public's confidence in accreditation as a signal of quality depends on continued compliance and very swift adjustments when any noncompliance is found. When the instructional curriculum and other educational plans are not up to date, assessments are not being conducted, when student learning is not tracked and monitored, when career-technical program facilities are in disrepair and equipment is extremely dated, when budget decisions are not connected to the needs of instructional programs, or when a college is near financial crisis for its inability to match revenues with financial obligations, the ACCJC's concern is raised. When a college exhibits all of these conditions among others, it is then essential that ACCJC take action on the institution's accreditation for the protection of students and for the community. In that kind of situation, the harm to the college and its employees that may come from closing the institution and having other colleges take its students is far outweighed by the harm to students who are committing their time, money, and effort to such an institution.
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The ACCJC is just repeating arguments that were rejected by the judge. The question is to what degree was this happening at CCSF and was it enough to warrant closing the college to the over 85,000 students who benefit from the high level education that they receive at CCSF? The “protection” in this case was to close the college. Few would consider eliminating an educationally effective college as “protecting” the students being served.
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The ACCJC is confident that its decision taken in the CCSF case will be upheld. At the same time, the ACCJC urges all individuals and groups connected with CCSF to focus intensely on correcting the issues that put academic quality and the sustainability of the institution at risk.
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The ACCJC has still not laid out a process by which CCSF’s progress will be evaluated by the Commission. As it currently stands, there is no procedure to change the decision to dis-accredit the college. The review and appeal process state that no new evidence can be presented.
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Other community colleges in California which have larger enrollments than CCSF, and other community colleges which serve the diverse needs of students with many challenges, are able to meet accreditation standards when their college community commits itself to do what is necessary to achieve the accreditation standards set by the member colleges of ACCJC- even in the face of severe economic challenges.
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Only about half of the colleges in the last few years have escaped an ACCJC sanction. In this respect ACCJC is totally out of step with the rest of the accreditation agencies around the country. The standards are not set by the colleges but rather by the ACCJC with little opportunity for input. A look at the agenda of the January 2014 meeting illustrates the lack of input by member colleges and their communities.
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The students of CCSF, the people of San Francisco, and the California taxpayers have the right to expect the same levels of quality in this community.
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And by many measures, CCSF has performed to provide quality education to its students. It should not be allowed to be dis-accredited.
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