The Paine College v. The Southern Association of Colleges and Schools Commission on Colleges, Inc. ( 2020 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-11088
________________________
D.C. Docket No. 1:16-cv-03503-TWT
THE PAINE COLLEGE,
Plaintiff-Appellant,
versus
THE SOUTHERN ASSOCIATION OF COLLEGES AND
SCHOOLS COMMISSION ON COLLEGES, INC.,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(April 16, 2020)
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Before WILSON and BRANCH, Circuit Judges, and RESTANI, * Judge.
PER CURIAM:
The Paine College (“Paine”), a private college in Georgia, appeals from a
grant of summary judgment to the Southern Association of College and Schools’
(“SACS”) sub-unit, the Commission on Colleges, Inc. (“the Commission”). The
college initially brought suit against the Commission after the Commission
revoked Paine’s SACS accreditation. Paine alleges that summary judgment was
inappropriate because the record revealed that the Commission failed to follow
procedural rules in evaluating Paine’s status such that the college’s common law
due process rights were infringed. After a review of the record, and with the
benefit of oral argument, we affirm.
I. Background
Paine is a private, co-educational, liberal arts college located in Augusta,
Georgia. “SACS. . . is one of six regional educational accrediting associations,
recognized by the Department of Education. . . . Accreditation by a recognized
accrediting agency, such as SACS, is a prerequisite for an institution’s students to
receive federal financial assistance.” Wilfred Acad. of Hair & Beauty Culture,
*
Honorable Jane A. Restani, Judge for the United States Court of International Trade,
sitting by designation.
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Hous., Tex. v. S. Ass’n of Colls. & Schs., 957 F.2d 210, 212 (5th Cir. 1992).1 The
Commission is one of four “specialized commissions” within SACS which “set
educational standards and make accreditation decisions.” Id. Paine College was
first accredited by a predecessor of the Commission in 1931 and has been
continuously accredited since then.
To gain or maintain accreditation with SACS, an institution must comply
with the standards contained in the Principles of Accreditation (“the Principles”),
which broadly set forth requirements in four areas: (1) institutional mission,
governance, and effectiveness; (2) programs; (3) resources; and (4) institutional
responsibility for Commission policies. As part of the accreditation review,
member institutions submit documentation demonstrating compliance with the
Principles to a committee particular to each institution that oversees the review
process. The committee reviewing member compliance, a review committee, then
makes a determination regarding that institution’s status. If a review committee
finds that an institution is not in compliance with the Principles, the review
committee makes a recommendation of action to the Executive Council, which
1
Accreditation is a prerequisite to federal funding because “[t]he Secretary recognizes
accrediting agencies to ensure that these agencies are, for the purposes of the Higher Education
Act of 1965 . . . reliable authorities regarding the quality of education or training offered by the
institutions or programs they accredit.” 34 C.F.R. § 602.1(a); see also 34 C.F.R. § 602.10.
These accrediting bodies rate both the educational success of institutions and certain business
aspects, such as the school’s “fiscal and administrative capacity as appropriate to the specified
scale of operations.” 20 U.S.C. § 1099b(a)(5)(E).
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votes to pass that recommendation on to the full Board. The Board can then place
the institution on “Warning,” a sanction that places the institution on a monitoring
period that can last, at most, two consecutive years. If the institution fails to show
compliance with the Principles after two years on Warning, the institution may be
removed from membership. If the institution fails to show compliance but shows
good cause for why it is not in compliance after the Warning period, the Board can
place it on Probation. The maximum consecutive time that an institution may be
on Probation is two years. As a result, if an institution has been on Warning for
two years followed by Probation for two years, it must either demonstrate full
compliance with the Principles at the final review of the review committee or be
removed from the Commission’s membership.
Paine had serious financial problems beginning around 2011. These issues
culminated in 2014, when Paine had a $10 million budget shortfall. On April 24,
2012, after adverse media attention regarding Paine’s alleged financial
mismanagement, the Commission’s vice president requested that Paine prepare a
report documenting its compliance with the Principles’ requirements relating to
financial stability and control of resources. After a review of Paine’s report, the
Board voted to place Paine on Warning in June of 2012. A special committee,
assigned specifically to track Paine’s financial progress, visited the school in 2013
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to re-evaluate the institution and informed Paine that it needed to demonstrate
compliance with the Principles or face removal from membership.
The special committee visited Paine each year from 2013 to 2016. After
each visit, the special committee drafted a report and provided Paine with a copy of
the report. The Commission’s rules gave Paine the opportunity to correct any
factual errors in the special committee report and provide written responses and
documents addressing the issues listed in the report to the Commission. Each year,
Paine provided such a response, including hundreds of pages of documents. Each
year the review committee found that Paine failed to comply with the Principles.
And each year, the Executive Council and Board of Trustees agreed with the
review committee and adopted their recommendations concerning the finding of
noncompliance. Paine progressed from two years of Warning to two years on
Probation without being able to comply with the Principles.
In 2016, a special committee visited Paine from March 29 through March
31, 2016. After the special committee submitted its report, the review committee
conducted an interview with a Paine delegation to make a final determination. The
review committee found Paine was still not in compliance with the Principles. The
Executive Council and the Board affirmed that determination. Since Paine had
been on Probation for the maximum time period and therefore could no longer be
continued on Probation, the Executive Council and the Board of Trustees
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unanimously voted to remove Paine from membership—in effect, revoking its
accreditation.
On July 7, 2016, Paine formally appealed the Board’s decision revoking
Paine’s accreditation. Commission appeals are governed by the Appeals
Procedures of the College Delegate Assembly (the “Appeals Procedures”) and by
20 U.S.C. § 1099b(a)(6). The Appeals Committee consists of twelve individuals
elected by the College Delegate Assembly. The procedures provide that an appeal
can be decided by a quorum of five or more members of the Appeals Committee.
The Chair of the Board must fill vacancies on the Appeals Committee—for
example, if a member has a conflict of interest or a quorum cannot be
established—with members appointed to the appeals committee for the purpose of
that appeal. The Appeals Procedures also have specific rules about conflicts of
interest. Among other conflicts, the procedures state that anyone who voted on the
“accreditation status” of the institution “at any time leading to the appealable
decision” has a conflict.
Carol Luthman, an administrative employee of SACS COC, carried out
several tasks on behalf of the Board relating to the appeal.2 Luthman performed an
2
The record shows that Luthman served as the coordinator for the appeals process
compiled the administrative record for the appeal, informed Paine when the rescheduled hearing
would take place, [provided Paine with a list of the members who would serve on the appeals
committee, invited the members of the committee to serve, and trained the hearing officer and
committee chair on the relevant rules and procedures—all normal parts of her job description.
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initial conflict check and determined that five of the twelve elected Appeals
Committee members had a conflict. And although another member—Dr.
Luckey—participated in votes to place Paine on Warning in 2012 and 2013,
Luthman ultimately concluded that he did not have a conflict. Luthman also sent
the emails which invited two non-elected members to the Appeals Committee after
the Chair of the Board confirmed their appointment.
The Appeals Committee, after a hearing during which Paine presented
evidence of its improved financial state, unanimously affirmed the Board’s
decision to revoke Paine’s accreditation. A week later, Paine filed this lawsuit,
challenging the revocation of its accreditation. Paine asserted claims for violations
of common law due process based on alleged irregularities in Paine’s appeal
process and other state law claims.
Following discovery, Paine filed for partial summary judgment and the
Commission filed for summary judgment. The district court granted the
Commission’s motion for summary judgment and denied Paine’s motion for partial
summary judgment. In brief, the court found that the review process was
“fundamentally fair.” The court also concluded that substantial evidence supported
the Committee’s ruling, even allowing for some evidence that pointed against it.
And, regarding the arguable procedural violations that Paine challenged, the
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district court found they did not affect the fundamental fairness of the process.
This appeal followed.
II. Standard of Review
“We review a district court’s grant of summary judgment de novo, applying
the same legal standards as the district court, and viewing all facts and reasonable
inferences therefrom in the light most favorable to the non-moving party.”
Arrington v. Helms, 438 F.3d 1336, 1341 (11th Cir. 2006).
III. Discussion
A threshold question to reviewing Paine’s challenge to the appeals
procedure is whether this court recognizes the legal right they claim: a common
law due process right. Our circuit, in the only reported case on this issue, declined
to decide whether such a right existed. See Hiwassee Coll., Inc. v. S. Ass’n of
Colls. & Schs., 531 F.3d 1333, 1335 (11th Cir. 2008) (per curiam). Instead, the
Hiwassee court borrowed the standard of review from a Sixth Circuit case3 that
recognized such a right and concluded that, even assuming such a right existed,
SACS complied with any such common law due process requirements. See id. at
1335 & n.4 (“The procedural components of Hiwassee’s argument fail to show a
3
See Thomas M. Cooley Law Sch. v. Am. Bar Ass’n, 459 F.3d 705, 712 (6th Cir. 2006)
(“This Court reviews only whether the decision of an accrediting agency . . . is arbitrary and
unreasonable or an abuse of discretion and whether the decision is based on substantial
evidence.”) (citations omitted).
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violation of common law due process, or that SACS’s decision to terminate
Hiwassee from membership based on its continuous troubled financial condition
was arbitrary and capricious.”). We follow suit today and hold, without deciding
whether such a right exists, that the process used to remove Paine’s accreditation
would not offend common law due process.
In reaching this conclusion, we apply the same deferential standard the
Hiwassee court utilized “and review ‘only whether the decision of an accrediting
agency . . . is arbitrary and unreasonable or an abuse of discretion and whether the
decision is based on substantial evidence.’” Id. at 1335 n.4 (quoting Thomas M.
Cooley Law Sch. v. Am. Bar Ass’n, 459 F.3d 705, 712 (6th Cir. 2006)). As the
Cooley court explained, the real question, under this standard of review, is whether
the process and decision were fundamentally fair:
[G]reat deference should be afforded the substantive rules of these
[accreditation] bodies and courts should focus on whether an
accrediting agency such as the ABA followed a fair procedure in
reaching its conclusions. We are not free to conduct a de novo review
or substitute our judgment for that of the ABA or its Council. Rather,
in analyzing whether the ABA abused its discretion or reached a
decision that was arbitrary or unreasonable, we focus on whether the
agency “conform[ed] its actions to fundamental principles of
fairness.”
Cooley, 459 F.3d at 713 (second alteration in original) (quoting Med. Inst. of Minn.
v. Nat’l Ass’n of Trade & Tech. Schs., 817 F.2d 1310, 1314 (8th Cir. 1987)). Thus,
we examine whether the process was “arbitrary and unreasonable or an abuse of
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discretion” and whether the decision was made with “sufficient reasoning.” Id. at
712, 715.
A. Whether the Commission’s Process Was Arbitrary and Unreasonable or an
Abuse of Discretion
A review of the record shows that due process is more than satisfied when
looking at the procedures used to revoke Paine’s accreditation. The Commission
has detailed rules and procedures for evaluating an institution’s accreditation
status. The review committees are comprised of professionals and peers who
evaluate every document the institution provides. The institution is measured
against objective standards detailed in the Principles. Moreover, the review
committee’s initial recommendation is further reviewed by two bodies: the
Executive Council and the Board of Trustees, both of which are comprised of
members elected from the body of member institutions as a whole. The appeals
process itself has an entirely separate hearing, a new set of judges who have served
in the academic accreditation field before, and gives yet another opportunity for an
institution to present its evidence and argument. These procedures are
fundamentally fair. Another way to put it: “The Commission’s procedures treat
applicants for accreditation like capable professionals seeking the evaluation and
recognition of their peers: we do not think that due process requires any more.”
Marlboro Corp. v. Ass’n of Indep. Colls. & Schs., Inc., 556 F.2d 78, 82 (1st Cir.
1977).
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Paine nonetheless contends that two minor errors in the selection of the
appeals committee deprived the process of fundamental fairness such that due
process was offended. First, says Paine, one of the Appeals Committee
members—Dr. Luckey—should not have served on Paine’s appeal because he had
a conflict of interest from having voted to place Paine on Warning a few years
prior. Second, Paine argues the Committee jumped the gun, so to speak, in
inviting two unelected members—Drs. Martin and Early—to serve on the Appeals
Committee before all elected members had been contacted to determine if a
quorum existed. For the purposes of this appeal, we assume that these were errors
under the Appeals Procedures. Nevertheless, we do not find that Paine’s due
process rights were violated. 4
First, a conflict of interest is not a per se due process violation. We have
held, in the context of a due process claim regarding a government decision to
deny benefits, that “the existence of a conflict of interest should merely be a factor
for the district court to take into account when determining whether an
administrator’s decision was arbitrary and capricious.” Doyle v. Liberty Life
Assurance Co. of Bos., 542 F.3d 1352, 1360 (11th Cir. 2008). And the Supreme
4
We note that Cooley held similar allegations of procedural violations did not rise to a
denial of due process: “The other errors alleged by Cooley—a conflict of interest by one
Committee member and the use of an incorrect fact sheet during one of the hearings—do not
amount to a due process violation.” Cooley, 459 F.3d at 715.
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Court has noted that “[p]ersonal bias or prejudice” is not enough, on its own, to
trigger the common law concept of a violation of due process. Caperton v. A.T.
Massey Coal Co., 556 U.S. 868, 876–77 (2009). Thus, even an admitted conflict
of interest does not automatically invalidate a decision.5
The same is true for the appointment of the two unelected members of the
Appeals Committee.6 Even if the rules did not permit these appointments, it is
hard to see how Paine was harmed at all, let alone to such an extent that due
5
Paine relies on a Supreme Court case that interpreted constitutional due process
requirements in the death penalty context to argue that a conflict of interest is per se error. In
Williams v. Pennsylvania, the Supreme Court held that “under the Due Process Clause there is an
impermissible risk of actual bias when a judge earlier had significant, personal involvement as a
prosecutor in a critical decision regarding the defendant’s case.” 136 S. Ct. 1899, 1905 (2016)
(vacating denial of postconviction relief because state justice who participated in decision to
deny relief had been the district attorney who approved decision to seek the death penalty in
defendant’s case). The Court reasoned that “an unconstitutional potential for bias exists when
the same person serves as both accuser and adjudicator in a case.” Id. at 1905. This case does
not carry Paine’s argument. Not only is the context radically different, but the Court in Williams
was also considering the “potential for [actual] bias” in the determination of the adverse
outcome, not merely a conflict of interest. Here, Paine has not shown any potential for actual
bias.
6
As noted earlier, we are assuming for the purposes of this appeal that the appointments
of the two unelected members of the Appeals Committee were erroneous. However, we note
that the record revealed that the Appeals Procedures state there must be a “minimum” of five
members to constitute a quorum. If a quorum cannot be reached from the 12 elected members,
the Chair of the Board is allowed to appoint other qualified academic employees from member
institutions. Of the 12 elected members, five of them had conflicts of interest. Another had
moved out of the country and retired. Another was unable to make the committee because his of
CPA obligations and an upcoming tax filing deadline. Another could not serve because of a
board meeting. That left only four elected members who could serve. It is a practice of the
Commission to have available at least six members who can serve in case one gets sick last
minute, and this reasonable precaution is not expressly prohibited by any of the rules. Thus, the
Chair of the Board was permitted to appoint other members to the committee to ensure a
quorum, which she did. In light of these circumstances, it is doubtful that the invitation to these
two members was, in fact, a procedural error.
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process was violated. Paine makes a passing argument that one of the unelected
members influenced the Appeals Committee’s choice to include certain language
in the letter sent to Paine after the hearing. But even if this committee member
advocated against Paine’s interest, that advocacy is insufficient to show a violation
of due process because (a) a quorum requires five members, so even if one member
of the six-member committee was extraneous, at least one new member was
required, (b) the decision was unanimous, meaning regardless of which of the two
unelected members had served, the vote would have been in favor of affirming the
removal of Paine’s accreditation, and (c) Paine put forward no evidence to show
that any elected members were actually available to serve in either of the unelected
member’s places.
In short, minor departures from an outlined procedure do not per se cause
injury and therefore would not amount to a violation of procedural due process.
Given the lengthy process the Committee utilized before the appeal even happened
and given that Paine has not produced any evidence to suggest these errors had an
effect on the ultimate decision, Paine has not demonstrated that it was denied due
process.
B. Whether the Commission’s Decision was Based on Substantial Evidence
This prong of the due process test requires little discussion. Paine argues
that the Commission’s decision to allow this particular Appeals Committee to hear
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Paine’s appeal was not based on substantial evidence. But Paine misses the thrust
of the analysis: the question is whether the Commission’s ultimate decision was
based on substantial evidence. See Cooley, 459 F.3d at 712, 715. And to that
question, the record shows that there was more than substantial evidence, over a
period of four years, to make the decision that the Committee made.
IV. Conclusion
Because Paine has not shown that any technical errors in the appeals process
rendered the loss of accreditation procedure as a whole arbitrary and unreasonable
or an abuse of discretion, and because the Committee’s decision to remove Paine
from SACS accreditation was based on substantial evidence, we affirm the grant of
summary judgment in the Committee’s favor.7
AFFIRMED.
7
Paine also argues that the district court erroneously required Paine to demonstrate an
injury in addition to the injury of the alleged due process violations. Because we hold that there
was no due process violation, thus necessarily holding there was no injury at all, we need not
reach this additional argument.
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