Herrera seeks preliminary injunction to halt accreditors' race to shutter City College
Saying ACCJC's legal strategy aims 'to run out the clock,' City Attorney blames accreditors' delay tactics, refusal to honor discovery for need for interim relief
SAN FRANCISCO (Nov. 25, 2013) -- City Attorney Dennis Herrera today moved for a preliminary injunction to block the Accrediting Commission for Community and Junior Colleges, or ACCJC, from racing to terminate the accreditation of City College of San Francisco in eight months' time. The motion filed in San Francisco Superior Court this morning comes in the context of the civil lawsuit Herrera filed in August charging the private accrediting body with unlawful conflicts of interest and retaliatory bias in its evaluation of college standards. If successful, the interim injunction would remain in place for the duration of the litigation, and also prevent the Novato, Calif.-based ACCJC from taking similarly adverse actions against other California colleges until its policies and practices fully comply with state and federal law.
In August, the U.S. Department of Education determined that the ACCJC's evaluation of City College violated two separate provisions of federal law: failing to maintain effective controls against conflicts of interest, and failing to have academic personnel reasonably represented on its evaluation teams. According to Herrera's motion, either of the two violations is alone sufficient to establish a likelihood to prevail on the merits, which courts require to grant such interim relief. A second factor courts consider in deciding whether to issue a preliminary injunction -- balancing the parties' relative harms -- overwhelmingly favors plaintiffs, Herrera argues, for the clearly catastrophic effect disaccreditation would hold for City College's 80,000 students and the community at large.
"It is obvious to me, and should be obvious to the court, that the ACCJC's legal strategy is to run out the clock," Herrera said. "Their lawyers waited a month to remove the case to U.S. District Court. Their flimsy rationale for doing so was later rejected by a federal judge, who then sent us back to state court. For nearly two months they have refused to honor our discovery requests. It seems the only thing the ACCJC doesn't want delayed is City College's termination. It's regrettable that accreditors' dilatory tactics require us to petition the court for interim relief. But the stakes are too high, and the potential for injustice too great, for the judicial process to need to race the clock to accommodate the ACCJC's dubious deadline for terminating City College's accreditation. The facts and the law strongly support our motion for a preliminary injunction, and I think the court will agree that the imperatives of thorough judicial review demand it."
Nearly a month after Herrera filed his civil suit -- and more than two weeks after the City Attorney's Office hand-served its discovery request, on the first day discovery was permitted under state law -- ACCJC lawyers on Sept. 20 removed the case to U.S. District Court. Federal law extends most state court defendants the right to such removals when a dispute involves or requires resolution of federal issues. Herrera opposed the move, however, arguing in a motion to U.S. District Court Judge Susan Illston that his office's allegations turned on violations of California's Unfair Competition Law, and should therefore be remanded back to state court. On Nov. 4, four days before a scheduled hearing on the dispute, Judge Illston agreed with Herrera in a 14-page ruling that the case "does not require the resolution of a federal issue." Judge Illston also rejected ACCJC's argument that the U.S. Higher Education Act gives federal courts jurisdiction over accreditation disputes with colleges, correctly noting that the "plaintiff here is the People of the State of California, and not the college." The ACCJC has still not responded to Herrera's discovery requests.
The increasingly embattled ACCJC has been a leading policy advocate to dramatically reshape the mission of California's community colleges through more restrictive policies focusing on degree completion rather than vocational, remedial and non-credit offerings. The accrediting body's political agenda -- shared by conservative advocacy organizations, for-profit colleges and student lender interests -- represents a significant departure from the abiding "open access" mission repeatedly affirmed by the California legislature and pursued by San Francisco's Community College District since it was first established. Herrera's civil action filed on Aug. 22 alleges that the commission acted to withdraw accreditation "in retaliation for City College having embraced and advocated a different vision for California's community colleges than the ACCJC itself."
Herrera's civil suit offers extensive evidence of ACCJC's demonstrable double standard in evaluating City College of San Francisco as compared to its treatment of six other California colleges under identical "show cause" sanctions during the preceding five years. Though several of the sanctioned schools failed to adequately correct their alleged deficiencies, none saw its accreditation terminated. City College had never once been sanctioned previously, Herrera's complaint contends, noting that the ACCJC's retaliatory bias is evidenced in part by the college's clear educational success by multiple objective standards. City College boasts a remedial progress rate in English as a Second Language, or ESL, of 52.3 percent -- more than double that for California community colleges statewide. Its completion rate of 55.6 percent exceeds the California community college average of 49.2 percent; and its 75.2 percent overall persistence rate (which gauges student matriculation over consecutive semesters) far outpaces the system-wide average of 65.8 percent. City College students transferring to the California State University system achieve a higher grade point average at Cal State than the statewide average for community college transfers.
The case is: People of the State of California ex rel. Dennis Herrera v. Accrediting Commission for Community and Junior Colleges, et al., San Francisco Superior Court No. 13-533693, filed Aug. 22, 2013. Accompanying declarations and exhibits available at: http://www.sfcityattorney.org.
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