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S.F. City College Battle Booted Out of Federal

SAN FRANCISCO (CN) - A state court must determine whether political bias drove a decision to revoke accreditation for City College of San Francisco, a federal judge ruled.

The Accrediting Commission for Community and Junior Colleges, which evaluates California's 112 community colleges, wanted to answer San Francisco's bias claims in federal court, but U.S. District Judge Susan Illston found last week that the claims are based on state law and that accreditation disputes may be heard in either state or federal courts.

San Francisco City Attorney Dennis Herrera sued the ACCJC in August to keep one of the largest community colleges in the country from losing its accreditation. Filing on behalf of the People of the State of California in Superior Court, Herrera sought vacatur of the commission's decision.

The school, which says it has more than 100,000 students, will remain open until the end of a one-year review and appeal period on July 31, 2014.

Herrera's lawsuit claims that the commission was evaluating City College's accreditation even as it fought the school over public policy.

City College faculty and staff have been "vocal advocates in the fight to maintain community colleges for anyone seeking educational and vocational training opportunities," the lawsuit states. "Others, however, are pushing an agenda that would fundamentally change and limit the mission of community colleges in California.

"Defendant ... has been an outspoken advocate of the push to eliminate the open access mandate for California's community colleges - actively supporting controversial task force recommendations and legislation that would eliminate the open access policy in favor of a narrower junior college model focused on degree completion.

"While publically opposing City College's open access mission, the ACCJC was in the

midst of evaluating City College for reaffirmation of its accreditation," the complaint states.

The suit alleged a single claim: that the commission's conflict of interest violated California's Business and Professions Code, or unfair competition law (UCL).

In remand the case back to Superior Court last week, Illston noted that "none of these allegations refer to or incorporate federal law and thus plaintiff's UCL claim does not require the resolution of a federal issue."

She found that the accreditation commission gave poor examples of case law to support its bid for a federal venue.

"Here, plaintiff's UCL claim can be resolved on alternative and independent state law theories regarding whether defendant has engaged in conduct that is unfair or fraudulent under state law," the 14-page ruling states.

The judge also rejected the commission's argument that the Higher Education Act (HEA) gives federal courts jurisdiction over accreditation disputes.

ACCJC had claimed that with the HEA, Congress "'intended to channel accreditation challenges to the federal courts in order to ensure objectivity, uniformity and consistency of ruling on issues critical to the Secretary's successful management of Title IV of the HEA.'"

Illston nevertheless concluded that federal law does not necessarily pre-empt state law where accreditation is at issue.

"None of the cases cited by defendant holds that the HEA provides a basis for federal subject matter jurisdiction over state law claims," she wrote, adding later that the commission failed to cite cases in which federal jurisdiction applied where the plaintiff was not the institution of higher learning. The plaintiff here is the People of the State of California, and not the college.

"In the absence of complete preemption, federal preemption is a defense and does not authorize removal to federal court," the opinion states.

Illston also rejected the commission's argument that the case should stay in federal court until the commission completes a review of its decision to revoke City College's accreditation. The commission's "arguments about the pending administrative review are misdirected because they do not go to whether this court has jurisdiction over plaintiff's complaint," she wrote. "It is defendant's burden to establish that the removal was proper, and defendant has not met its burden."

Last, the judge refused Herrera's request for attorneys' fees, finding that though "the court finds that the removal was improper, on this record the court does not find that defendant lacked an objectively reasonable basis for removal."

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