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Accreditation After Edward Waters

December 13, 2005

A year after the Southern Association of Colleges and Schools revoked the accreditation of Edward Waters College, prompting a legal battle that ended with the college regaining its approval, higher education lawyers and accreditors are still debating just how much the case has changed the traditional process by which colleges assess the quality of their peers.

Last December, the Southern Association's Commission on Colleges exacted its ultimate penalty on Edward Waters after concluding that the private institution in Florida had submitted plagiarized documents to the group during its accreditation review. Officials of the college sued the regional accrediting group, arguing that it had denied Edward Waters due process by failing to follow its own procedures. After a federal judge's preliminary injunction in March concluding that Edward Waters had a "substantial likelihood" of proving its case at trial, the association reached a settlement in which it agreed to restore the college's accreditation, although Southern officials insisted that the accreditor had not done so to make the lawsuit vanish.

On Monday, several experts on accreditation, at a session on the lawsuit's aftermath at the 2005 Education Industry Finance & Investment Summit, discussed whether the Edward Waters case had "fundamentally changed" the accreditation process and the cooperative but sometimes adversarial relationship between colleges and accrediting groups. The session -- which included in its title the phrase "First We Kill All the Lawyers" -- wound up focusing on two questions: (1) the extent to which the courts are now more likely to muck around in a process to which they have traditionally given significant latitude, and (2) how much more (and at what stages) lawyers should be involved in the accreditation process, and at what cost.

The panelists were largely agreed that the ruling in the Edward Waters case did not represent a huge new encroachment by the courts into the accreditation process or the policies of accrediting groups, although Judith S. Eaton, president of the Council for Higher Education Accreditation, said she believed that the "deference of courts with regard to accreditation has been at least pierced."

Eaton also argued that the Edward Waters case had emboldened members of Congress to push for changes in accreditation as they consider legislation to renew the Higher Education Act, including a provision that would require accreditors to give institutions more rights to appeal accreditation decisions. 

The other participants in the discussion said that in the wake of Edward Waters, accreditors might find themselves in trouble mainly when they don't abide by their own policies. "I think most procedures are just fine," said John Przypyszny, a lawyer with the Washington firm of Drinker Biddle Reath who has represented accreditors. "What's at issue here is whether the application of these procedures is deficient. If those procedures are not followed, you're going to have the courts intervene."

The more significant question stemming from the Edward Waters case, is to what extent should colleges should view the accreditation process as adversarial instead of collegial -- and involve their lawyers.

Michael B. Goldstein, who heads the higher education law practice at Dow Lohnes & Albertson and helped represent Edward Waters, staked out the most aggressive position, arguing that colleges should involve their lawyers -- and accreditors should not only let them, but encourage them to -- at the earliest point at which an institution's officials are told that it faces possible penalties, rather than just when it is appealing a negative finding, as it typically the case now.

The stakes are very high to adverse accreditation decisions, which can strip a college of its right to award federal financial aid, he said. "If the possible outcome is that you're going to be lined up and shot," Goldstein said, that's the time to let the lawyers in.

"Had we been involved early in Edward Waters," he said, "the case probably would not have gone to court." 

Martin Michaelson, a lawyer at Hogan & Hartson, was wary of involving lawyers in a more significant way. While he said it was wise for an institution to talk to its lawyers and let them review its accreditation documents, they should stay out of accreditation discussions themselves. "In general it's a bad thing for lawyers to be taking over advocacy" in accreditation discussions, he said. "If we let the lawyers come in, before you know it, we've judicialized the accreditation process."

Despite some possible short-term pain, Michaelson said he believed the Edward Waters lawsuit could ultimately help accreditors by getting them to pay more attention to the fairness of their policies and procedures. 

While Eaton rejected the idea that the lawsuit was a positive for the accreditors, she acknowledged that the Edward Waters case and the scrutiny from Congress during the Higher Education Act reauthorization had prompted many of the associations to do "a kind of policy audit," asking "what are our terms and conditions for ensuring fairness?" Some of them, she said, are concluding that "maybe we need to enrich what we do."

 

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