Pretrial Resolution Is Slim for City College SF

SAN FRANCISCO (CN) - Whether conflicts of interest undermined the process that threatens to strip City College of San Francisco of its accreditation is a question for trial, a judge ruled.

Both City College and the Accrediting Commission of Community and Junior Colleges had sought to avoid a trial over the commission's disqualification decision in dueling motions for pretrial final judgment.

Judge Curtis Karnow rejected all but one of the motions on Friday and laid out various terms for a trial set to begin Oct. 27.

San Francisco filed suit last year on behalf of City College, soon after the commission, a division of the Western Association of Schools and Colleges, decided to decertify the school.

Judge Karnow imposed a temporary injunction on the commission in January, waiting for a trial to vet claims that political bias and procedural flaws led to the revocation decision.

Among the reasons for the relief he cited was the "catastrophic" impact that disqualification would have on enrollment at the school, which claims to have 80,000 students, making it one of the largest community colleges in the United States.

San Francisco City Attorney Dennis Herrera says that the commission was driven to disqualify the school by legislative and philosophical differences with City College over the purpose of California community colleges. He claims in the lawsuit that the commission's conflict of interest violated California's Business and Professions Code and Unfair-Competition Law.

Specifically, the city says the commission had stacked the panel that reviewed the school with opponents, including commission president Barbara Beno's husband.

The one motion Karnow's 39-page Friday ruling grants favors Herrera.

Karnow held that the commission violated federal regulations by including just one academic on the team it assembled last year to evaluate whether City College was making progress toward commission goals.

While the regulations do not reveal how many academics would be enough, Karnow relied on a Department of Education finding in saying that the team needed more than one. How many, he said, would be determined at trial.

The commission had argued that its activities in accrediting community colleges are not business acts and are therefore outside the scope of California's Unfair Competition Law.

But Karnow found several ways that the UCL could be applied.

The UCL was intended to "protect both consumers and competitors by promoting fair competition in commercial markets for goods and services," according to the ruling.

Karnow found that "the fact that the commission is a nonprofit public benefit corporation engaged in work related to education is not decisive," and that "there is little support for the commission's notion that there is an important distinction between educational activities and commercial activities."

Further, because it charges a fee for its accreditation services, "the commission has some businesslike attributes," according to the ruling.

Karnow used the remainder of the decision to indicate how he is framing the case.

The commission sought safe harbor in the fact that its accreditation activities are legal, but the court ruled that the commission is not being sued for the types of activities it performs but how it performed them.

Karnow also deemed it too early to tell whether substantial evidence supports the disqualification decision, which cited problems with finances and administration at the school, not with academics.

He quickly dispatched with the commission's argument that the nature of its work confers quasijudicial immunity.

While acknowledging that U.S. Department of Education regulations are ambiguous about how accreditation agencies should operate, a letter the agency sent to the commission in August was not, according to the ruling.

At this point in the case, Karnow said that "violations of federal regulations can serve as predicate unlawful conduct for the UCL."

The ruling withholds judgment on whether the presence of Commission President Barbara's Beno's husband on the team that evaluated City College in 2012 amounted to a conflict of interest.

Without evidence from Herrera of alleged conflicts of interest on the 2012 team or on one assembled in 2013, Karnow said he cannot "weigh the intangible harm to the perceived fairness of the process against any skills and abilities" of the team members with alleged conflicts.

There is also not enough evidence yet for a ruling on whether the commission's accreditation activities were unfair, the ruling states.

Federal courts have been reluctant to take on disparate-treatment claims involving accrediting bodies because of the "large number and broad scope of accreditation standards," he added.

Herrera had moved for the commission vacate its past decisions and start over, but Karnow said that, "materiality, causation, and the actual impact of illegal or unfair acts on the commission's findings ... are probably relevant" to a decision on what, if any, relief the city is due.

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