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Lawsuit Alleges Department Violated Administrative Procedure Act and Freedom of Information Act

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.”