City Attorney vs ACCJC: Tentative Decision Unfair

by Rick Sterling on January 27, 2015

On January 16 Superior Court Justice Curtis Karnow issued a Tentative Decision on the law suit by SF City Attorney vs Accrediting Commission for Community and Junior Colleges (ACCJC). The judge is accepting objections and responses from each side until the deadline Feb 3. Under California law the judge can modify or reverse the tentative decision.

This is a very important case of deep concern to the education community and public. We believe it is appropriate for the public to consider, discuss and debate the tentative ruling.

Following are questions and comments related to the tentative ruling. I hope the City Attorney will file objections and appeal if necessary. That said, the City Attorney deserves huge thanks for pursuing this case on behalf of CCSF.

“SIGNIFICANT UNLAWFUL PRACTICES” by ACCJC

The tentative ruling says that ACCJC violated four federal regulations and California common law fair procedure by:

* failing to maintain adequate controls against the appearance of conflicts of interest in regard to selecting commissioners (34 CFR § 602.15)

* failing to include sufficient academics on the 2013 Show Cause team 34 CFR § 602.15
* failing to provide a detailed written report clearly identifying CCSF’s deficiencies 34 CFR § 602.18

* failing to provide CCSF an opportunity to submit a written response 34 CFR § 602.25

The judge’s suggested remedy is for ACCJC to give detailed description of all CCSF deficiencies at time of 2013 evaluation and allow CCSF to respond in writing to those claimed deficiencies. Then ACCJC will decide again regarding CCSF accreditation.

Unfortunately, requiring ACCJC to write a detailed list of deficiencies is akin to requiring a butcher to sharpen his knife. They love to do it. ACCJC “standards” and “requirements” are not national, nor are they set by the Dept of Education. ACCJC has an ever-expanding set of “standards” and “requirements” pertaining to management and administration instead of education. They could find problems in the most perfectly run institution. Furthermore, their unfair treatment of CCSF in the past does not inspire confidence that they will render a fair judgment when given another chance.

CCSF WAS NOTIFIED OF DEFICIENCIES IN 2012 NOT 2006

Another key element in the tentative ruling is regarding the question: When was CCSF notified that it was out of compliance with standards?   ACCJC has claimed that CCSF was out of compliance going back to 2006. CCSF supporters have said that ACCJC never gave notice before the 2012 imposition of Show Cause. In a key determination Judge Karnow agreed with the CCSF supporters:

“Beginning in 2006 the Commission raised various concerns regarding City College’s future ability to comply with accreditation standards. But the Commission did not at that time, or at any time between 2006 and 2012, find that City College failed to meet any accreditation requirement. In 2012, the Commission found that City College failed to meet numerous accreditation requirements and placed City College on show cause status. At that point, City College was given notice of the deficiencies identified by the Commission in issuing its show cause decision.” (p. 48)

WAS CCSF GIVEN FAIR PROCEDURE IN 2012?

Regarding the 2012 ACCJC decision to put CCSF on Show Cause sanction Judge Karnow has tentatively ruled against CCSF and the City Attorney:

“It would not be equitable to vacate a finding that City College was deficient with respect to specific standards in 2012 when it was afforded, on the whole, a fair procedure.” (p. 68)

This is puzzling. The request is not to vacate any finding regarding specific deficiencies in 2012. Rather, the request is to vacate the Show Cause sanction because it was based on overall unfair procedure.

This is because the the principal basis for the extreme Show Cause sanction was the ACCJC assertion that CCSF had been deficient for years before the 2012 evaluation. This is made clear in the July 2, 2012 letter from Beno to Interim Chancellor Fisher. ACCJC President Beno said:

“Show Cause is issued …. when the institution has not responded to the conditions imposed by the Commission.”

“CCSF … failed to follow Commission directives to address the deficiencies noted by the 2006 evaluation team.”

The tentative ruling that the 2012 evaluation/decision was “overall fair” is contradicted by the ruling that CCSF was only notified of deficiencies in 2012. How can the evaluation and decision be fair if they are based on false assertions and assumptions?

WAS CCSF GIVEN A FAIR HEARING IN 2013?

In his tentative ruling, Judge Karnow clarified that under California law there must be “substantial harm” for there to be a finding of “unfairness”. His tentative ruling says “The evidence does not support a finding of any unfair practices.”

This is curious because there is considerable evidence to the contrary:

* Inaccurate information on the fiscal condition of CCSF.

“Commissioner Steven Kinsella testified that the normal average amount of money spent on salary and benefits is 80%.” This was contrasted with 92% spent at CCSF to the dismay of ACCJC Commissioners.

However the number presented is not accurate. According to the FCMAT report, most community colleges spend around 86% of their budget on salaries and benefits. This is very different than the “normal average” claimed by Kinsella.

* Exclusion of CCSF Trustees and Academics from the Commission meeting.

Unknown to much of the public, CCSF has been publicly “led” for the past several years by outside appointed Interim Chancellors and Special Trustee who have no knowledge of City College in the years leading up to the crisis. Each of these retired administrators accepts part-time contracts which they receive in substantial measure because they are seen to be well connected to ACCJC. There is the appearance of a conflict of interest.

The conflicted positions of these “leaders” has been amply demonstrated as they have criticized students and faculty who questioned ACCJC decisions, voiced support for ACCJC, and even resisted the law suit by City Attorney in support of CCSF. In Fall 2013 both Agrella and Scott-Skillman wrote letters of support for ACCJC to the Dept of Education. Agrella claimed the 2013 Visiting Team “understated the depth of the problems” at City College.

At the 2013 Commission meeting, Agrella and Scott-Skillman undermined the overall positive assessment of the Visiting Team. Their testimony contributed to the Commission’s decision to Terminate Accreditation. As noted on page 13, “City College’s evidence indicated that it would take more than a year to achieve compliance ….. Thus the Commission’s termination decision became final.”

The only people nominally from CCSF who were allowed to attend the 2013 Commission meeting were Agrella, Scott-Skillman, the Accreditation Liason Officer and perhaps someone else they chose. Elected trustees and academic leaders from the college were excluded from the meeting. If they had been there, the hearing would have been dramatically different.

Some Commission members believed the absence of elected trustees from the meeting indicated little support for the college. As shown on page 56 of the Tentative Ruling, two commissioners explicitly questioned why CCSF Board of Trustee members were not at the meeting. “Commissioner Whitehurst-Payne testified she was surprised City College did not send its Board of Trustees to the commission meeting and what stood out to her from the presentation was that City College did not bring a lot of people, City College did not have a lot to say, and City College had not made good progress.”

The exclusion of any voices speaking for CCSF (except the conflicted appointed leaders) caused substantial harm to the cause of City College and very likely contributed to the Terminate Accreditation decision. It gave the false impression there was little support, it allowed the “conflicted” outside appointed administrators to speak on behalf of the college without CCSF supporters able to hear or question what they said, and it prevented the Commission hearing from other people who would have given a very different impression.

WAS THERE SUBSTANTIAL HARM TO CCSF?

As explained by Judge Karnow, for there to be a finding of unfairness there must be compelling evidence of substantial harm including monetary harm.

Regarding financial harm, the ACCJC decisions to impose Show Cause and Terminate Accreditation has been disastrous and led to the following:

* reduction of over 20,000 students at the college with dramatic decline in income revenue

* the college has spent enormous funds on a marketing campaign trying to counter negative media

* the state chancellor’s office has spent millions of dollars trying to assist the college

* the San Francisco mayor’s office has spent millions trying to assist the college in various ways

* legal expenses for the City Attorney, AFT teachers union and SaveCCSF community.

Has ACCJC acted in a manner which caused “substantial harm” and contributed to the negative conditions? Following are exceptional ACCJC actions regarding CCSF during 2012 – 2014.

* incorrectly asserted that CCSF was deficient since 2006

* rejected the recommendation of their own 2012 Visiting Team and imposed extreme Show Cause sanction

* rejected the argument that CCSF should have two years to come into compliance (after 2012 sanction)

* allowed CCSF only 8 months to come into full compliance (along with many other requirements)

* recommended the replacement of the elected Board of Trustees with “Special Trustee with Extraordinary Powers”

* ACCJC President influenced the Visiting Team leader to remove sentences favorable to CCSF from the team report

* added “deficiencies” not in the Visiting Team report

* rejected the recommendation of the 2013 Visiting Team and decided to Terminate Accreditation

* prevented CCSF supporters from attending the 2013 meeting which decided to Terminate

* dictated that only the Special Trustee could prepare the request for review of the Terminate decision

* dictated that the request for review was “confidential” and could not be seen by other members of the college

* created “independent” appeal panel chaired by presentation partner of ACCJC President Beno

The evidence shows a series of due process violations resulting in substantial damage to the college’s reputation, finances, and future.

ACCJC based its extreme decisions to impose Show Cause and then to Terminate Accreditation because of their false claim that the college had been deficient since 2006. They distorted facts in their presentations on the financial condition of the college. They violated basic due process by excluding CCSF supporters from participating in the preparation of the Review request. They violated due process by excluding CCSF supporters from the 2013 Commission meeting where the college’s fate was being decided.

THERE SHOULD BE A NEW AND FAIR EVALUATION

The evidence presented in court and touched on in this article, shows that ACCJC carried out unfair reviews of CCSF in 2012 and 2013. Given the pattern of ACCJC hostility and unfairness toward CCSF, it is naive to think the college will obtain a fair evaluation under “Restoration” where there is no appeal possible or under the “remedy” proposed by Judge Karnow.

The City Attorney requested the Judge to vacate the Show Cause and Terminate Accreditation decisions to allow for a new and fair evaluation. Judge Karnow remarks that “the specific order pressed by the People would wipe out years of work by ACCJC, likely interfere with the two year rule, and might compel the Commission to maintain accreditation contrary to federal criteria”.

This conclusion is at odds with the following facts:

* the vast majority of burden and “work” has been done by CCSF not ACCJC

* the two year rule includes provision for extension due to good cause

* Dept of Education has found ACCJC currently out of compliance with fifteen regulations and requirements. In other words, they are already “maintaining accreditation contrary to federal criteria”.

Given that ACCJC is doing comprehensive evaluations of twenty different colleges in 2015, what would be so onerous about requiring them to do a new and fair evaluation of CCSF as well? That would seem to be practical, to help move ACCJC beyond this conflict and to help finally bring more fairness to CCSF. They, not ACCJC, are the aggrieved party.

 

Rick Sterling can be reached at rsterling1@gmail.com

Filed under: San Francisco News

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