Filed by the National Student Legal Defense Network, Lawsuit Alleges Department Violated Administrative Procedure Act (APA) and Freedom of Information Act (FOIA) 

TCF Seeks Immediate Release of Pending Application Materials for Two Accrediting Agencies With History of Noncompliance

The Century Foundation (TCF) today filed a federal lawsuit against the U.S. Department of Education, alleging that the agency has failed to fulfill its duties under both the Administrative Procedure Act (APA) and the Freedom of Information Act (FOIA). The complaint, filed in the U.S. District Court for the Southern District of New York by counsel from the National Student Legal Defense Network, seeks the immediate release of records related to two higher education accrediting agencies currently under federal review, the Accrediting Council for Independent Colleges and Schools (ACICS) and the American Bar Association (ABA).

The lawsuit comes just two days after the Department declined to expedite the processing of two FOIA requests made by TCF on January 23, in response to a solicitation for public comment issued by the Department that same day. TCF submitted the requests, seeking expedited processing, after the Department set an exceedingly short timeframe—a mere 15 business days—for public comment on ACICS’s application for federal recognition and the ABA’s compliance report. Under non-expedited processing (20 business days), the relevant application materials, documents that are essential to allow for informed public comment, would be made available only after the February 16 deadline for comment.

“By setting an extremely short window for public comment and then rejecting TCF’s request for expedited processing, the Department of Education has effectively rendered the public comment period useless,” said Alex Elson, Senior Counsel at the National Student Legal Defense Network, a non-profit legal organization representing TCF in the lawsuit. “How is TCF supposed to provide informed comment to the Department when the most essential materials are actively being kept secret and hidden?”

Both agencies under review by the Department have well documented recent histories of substandard performance. In September 2016, the ABA was found noncompliant with five regulatory criteria, prompting the Department to require them to “achieve compliance” within 12 months and submit a “report… documenting compliance.” In December 2016, the Department terminated its recognition of ACICS as an accreditor, finding that the institution was pervasively noncompliant with numerous criteria. To date, neither ABA’s compliance report nor ACICS’ application for renewed recognition has been made available to the public.

“In refusing to disclose the documents at the heart of its own request for public comment, the federal government is not only making informed debate impossible, it is skirting the law,” said Robert Shireman, senior fellow at TCF and former deputy undersecretary in the Department of Education. “ACICS has a shameful record as an accreditor. For the Department to consider the agency for possible reinstatement, without providing the agency’s application materials, makes a mockery of the public input process.”

Under federal law, an accreditor recognized by the Department must accredit any higher education institution that seeks federal student aid. In turn, the Department is required by Congress to “conduct a comprehensive evaluation” to ensure that all accrediting agencies serve as a “reliable authority” of the “quality of education or training offered” by a college or university. Among the requirements of this “comprehensive evaluation,” Congress mandated that the department solicit “third-party information concerning the performance of the accrediting agency or association” under review. The Department’s solicitation on January 23 constitutes such a request, stating further that “only written material submitted by the [February 16] deadline will… become part of the official record… and [be] considered by the Department and NACIQI in their deliberations.”

“The federal Higher Education Act clearly states that Secretary DeVos is required to take into account public input on the performance of ACICS and the ABA when considering their applications,” said NSLDN’s Elson. “The Department has acknowledged that it is required to seek out public comment, but has withheld the documents fundamental to allow TCF to comment effectively.”

Additional Background

On January 23, 2018, The Century Foundation filed two FOIA requests with the Department, seeking documents related to two institutions currently under consideration by the Department for recognition as higher education accrediting agencies. TCF submitted the FOIA requests on the same day as the Department solicited public comment, via a Federal Register announcement, “specifically concerning the performance of accrediting agencies under review by the Secretary.”

The first request pertains to ACICS, which was the largest accreditor of for-profit colleges and universities before losing its recognition in December 2016 as a result of the Department finding pervasive noncompliance with numerous regulatory criteria. At that time, the Department of Education detailed numerous ways in which ACICS neglected its responsibility to provide a high-quality review process for programs seeking federal financial aid, and continued to green light student aid for many of the worst performing institutions, including Corinthian Colleges, ITT Technical Institutes, FastTrain, and others. TCF’s FOIA request seeks ACICS’ application for renewed accreditation, which is currently under review by the Department.

The second request pertains to the American Bar Association (ABA), a national accreditor of numerous freestanding law schools. In the fall of 2016, the Department required the ABA to “achieve compliance” with five regulatory criteria, and to subsequently submit to the Department a “compliance report . . . documenting compliance.” TCF’s FOIA request seeks a copy of that compliance report, because the Department’s request for comment expressly requires commenters to relate comments to the “issues identified in the compliance report.” As NSLDN’s Elson asked: “How can the Department call for comment about a compliance report that it has failed to make public?”

The Department set an exceedingly short timeframe when it solicited public input, requiring responses by February 16, 2018—a mere 15 business days after publication in the Federal Register. TCF made the FOIA requests on an expedited basis, since the non-expedited FOIA processing time (20 business days) would have resulted in the documents, if disclosed under FOIA, being made available only after the closure of the public comment period. Federal guidelines state that an agency must decide whether to grant or deny expedited processing within 10 calendar days of receipt of a FOIA request. The Department failed to meet that deadline.

On Tuesday, February 6—four days after the deadline—the Department notified TCF that it had denied its request for expedited processing, but stopped short of making a decision on the underlying FOIA requests. On Thursday, February 8, lawyers at the National Student Legal Defense Network filed a federal lawsuit on behalf of TCF, seeking judicial relief to compel the Department to immediately release the requested materials and extend the comment period.

The complaint is available in full here. For more information, contact Alex Edwards at [email protected]rg.

Additional Resources

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The Century Foundation (TCF) is a progressive public policy think tank that seeks to foster opportunity, reduce inequality, and promote security at home and abroad. Founded in 1919, TCF pursues its mission by conducting timely, nonpartisan research and policy analysis that informs citizens, guides policymakers, and reshapes what government does for the better. TCF is based in New York, with an office in Washington, D.C. Follow the organization on Twitter at @TCFdotorg and learn more at www.tcf.org.

The National Student Legal Defense Network (NSLDN) is a non-profit organization that works, through litigation and advocacy, to advance students’ rights to educational opportunity and to ensure that higher education provides a launching point for economic mobility. Follow the organization on Twitter at @StudentLegalNet and learn more at www.nsldn.org.