Lincoln Memorial University Duncan School of Law v. American Bar Association (TV1)

Filing 54

REPLY to Response to Motion re 38 MOTION for Reconsideration re 35 Order on Motion for Preliminary Injunction, Order on Motion for Permanent Injunction, Order on Motion for TRO filed by Lincoln Memorial University Duncan School of Law. (Cioffi, Michael)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE

LINCOLN MEMORIAL UNIVERSITY,
DUNCAN SCHOOL OF LAW,

) Case No.
3:11-cv-608
)
)
) Judge Varlan
) Magistrate Judge Shirley
)
)
)
)
)
)

Plaintiff,
v.
THE AMERICAN BAR ASSOCIATION,
Defendant.

PLAINTIFF’S REPLY MEMORANDUM IN SUPPORT OF PLAINTIFF’S MOTION
FOR RECONSIDERATION
The Plaintiff Lincoln Memorial University, Duncan School of Law, (“DSOL”) hereby
submits this Reply Memorandum in support of Plaintiff’s Motion for Reconsideration and
Memorandum in Support thereof filed on February 8, 2012. (Docs. 38, 39). As demonstrated by
the DSOL’s Motion for Reconsideration, (Doc. 38), new facts have emerged since the Court
issued its decision. These new facts demonstrate that exhaustion of the ABA’s internal appeals
process is indeed futile and therefore the requirement that DSOL exhaust its remedies with
respect to its application for provisional accreditation should be excused.
New Facts Support the Conclusion that DSOL’s Failure to Exhaust Its Administrative
Remedies Should be Excused
The ABA mischaracterizes the nature of DSOL’s arguments concerning reconsideration
of the Court’s opinion with respect to exhaustion of administrative remedies. The “new fact”
identified by DSOL in its Motion for Reconsideration is not simply “the timing of the
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appointment of the Appeals Panel” as Defendant ABA contends. (See Doc. 47, ABA Response
in Opposition to Plaintiff’s Motion for Reconsideration (“ABA Response”), p. 7). Rather, the
DSOL seeks reconsideration of the Court’s decision on the issue of exhaustion because (1) the
ABA’s admission that the Appeals Panel was not appointed by the Council Chair to hear an
appeal of the Council’s denial decision until after the denial decision was made evinces bias on
the part of the Council and renders the process fundamentally unfair, and (2) the Appeals Panel
was not properly constituted pursuant to the ABA’s own Rules of Procedure 10(g) and this
procedural lapse denied DSOL’s fundamental substantive due process right to a fair, impartial,
and meaningful review. In addition, by permitting members of the Accreditation Committee to
attend and participate in the December 2, 2011 Council Hearing, the ABA violated its Rules of
Procedure 6 and IOP 2 and 19. These procedural anomalies clearly demonstrate the futility of
the ABA’s internal appeals process with respect to DSOL’s application for provisional
accreditation. DSOL’s arguments in support of reconsideration are based on several longstanding legal precepts governing the exhaustion doctrine and the judicial review of accrediting
authorities and other agency action.
First, as the Court and the ABA have acknowledged, the requirement that a plaintiff
exhaust administrative remedies before resorting to federal court is not absolute: “the underlying
test is whether the available procedures are adequate and reasonable in light of the facts of the
particular case.” Geddes v. Chrysler Corp., 608 F.2d 261, 264 (6th Cir. 1979). The facts of this
particular case demonstrate that the appeal procedures are neither adequate nor reasonable.
Under the ABA’s own Rules of Procedure, the Appeals Panel was supposed to be appointed in
May 2011 and serve as a standing appellate body prepared to hear any appeal from any school
seeking review of a Council decision on accreditation. However, as we now know, the Appeals
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Panel was not appointed by the Chair of the Council until over a month and a half after the
Council decision to deny provisional approval was rendered, five days after the deadline for
DSOL to file its appeal, and five months after the ABA rules mandate appointment of the Panel
members. The ABA was actually in receipt of DSOL’s written appeal when the Council Chair
selected and appointed the Appeals Panel members. These Appeals Panel members were thus
selected and appointed by the very Council Chair whose denial decision the Appeals Panel is
now charged with reviewing. As the Court’s colloquy with undersigned counsel at the January
6, 2012 Hearing illustrates, it can hardly be considered reasonable or fair for the decision-maker
whose decision is being reviewed to be empowered with the authority to appoint the reviewing
panel and to make such panel appointments after having rendered the decision to deny
accreditation. (See Doc. 36, January 6, 2012, TRO/Preliminary Injunction Hearing Transcript,
pp. 160-61).
Second, contrary to the ABA’s assertion, the burden is not on DSOL to demonstrate that
the individual members of the Appeals Panel hold some personal bias against the school and its
application for provisional approval where the ABA’s implementation of the appeal process
itself exhibits bias. See Utica Packing Company, et al. v. John R. Block, et al., 781 F.2d 71, 78
(6th Cir. 1986)(“It is of no consequence that Fenster and Utica were unable to prove actual bias…
manipulation of a judicial, or quasi-judicial, system cannot be permitted.”).
Third, the failure of the ABA to adhere to its own Rules of Procedure is in and of itself a
due process violation. “[I]t is an elemental principle of administrative law that agencies are
bound to follow their own regulations.” Wilson v. Comm’r of Social Security, 378 F.3d 541, 545
(6th Cir. 2004). Thus, where an agency’s procedural rule is intended “to protect the interests of a
party before the agency, ‘even though generous beyond the requirements that bind such agency,
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that procedure must be scrupulously followed’.” Id. (quoting Vitarelli v. Seaton, 359 U.S. 535,
547 (1957)). Accordingly, the Sixth Circuit adheres to the general administrative law rule that
the court will set aside agency action that does not follow the agency’s own regulations. Wilson,
378 F.3d at 546. Sixth Circuit precedent counsels that the Court cannot excuse the denial of a
mandatory procedural protection simply because, as the ABA urges, there is sufficient evidence
in the record for the decision and therefore a different outcome if the case were to be remanded is
unlikely. Id. “[A] procedural error is not made harmless simply because the aggrieved party
appears to have had little chance of success on the merits.” Id. (citing Mazaleski v. Truesdell,
562 F.2d 701, 719 n. 41 (D.C. Cir. 1977)).
As the Wilson Court aptly noted, “[t]o hold otherwise, and to recognize substantial
evidence as a defense to non-compliance with [an agency regulation] would afford the [decisionmaker] the ability to violate the regulation with impunity and render the protections promised
therein illusory.” Id. Accord, Rabbers v. Comm’r of Social Security, 582 F.3d 647, 662 (6th Cir.
2009)(“Of great importance in the present case is the Wilson court’s rejection of the argument
that failure to follow the regulation in that case was harmless error. The court held that even if
the record should show that there would be little chance for success if the case were remanded, a
violation of the agency’s own rules cannot be excused as harmless error.”). In its Memorandum
Opinion and Order, this Court cites to Jones v. Comm’r, 336 F.3d 469, 475 (6th Cir. 2003), a
social security case like Wilson and Rabbers, supra, for enunciation of the principals governing
review of agency decision-making based on substantial evidence. (Doc. 35, Memorandum
Opinion and Order, pp. 34-35).

Accordingly, it is clear that the Court recognizes the

applicability of this line of Sixth Circuit case law governing agency decision-making in the
context of this case.
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As outlined above, the ABA’s failure to follow its own Rules of Procedure resulted in
three procedural anomalies both with regard to the improper participation of Accreditation
Committee members at December 2, 2011 Council Hearing and with the post hoc appointment of
the Appeals Panel. One, the participation of Accreditation Committee members at the December
2, 2011 Council Hearing violates the ABA’s own Rules of Procedure 6 and IOP 2 and 19. Two,
the post hoc appointment of the Appeals Panel violates Rules of Procedure 10(g). Three, the
Chair of the ABA Council knew at the time he named the members of the Appeals Panel that he
and the Council had already decided to deny the DSOL’s application for provisional approval.
These procedural defects are not mere technical violations of agency rules that are meant simply
to guide the administrative aspects of the process, such as date, time or place of the hearing—
they violate due process. See Wilson, 378 F.3d at 547; Rabbers, 582 F.3d at 662. In simple
terms, the ABA’s violations of Rules of Procedure 10(g) and 6 and IOP 2 and 19 mean that
DSOL was deprived of a substantive right—the right to have a neutral appellate process, one that
is uninfluenced by the person who’s decision is being reviewed.
The Sixth Circuit has found that similar procedural irregularities in the appointment of
reviewing or appellate officers violate due process. In Utica Packing, supra, the Sixth Circuit
reversed an agency decision because the agency revoked the original hearing officer (who had
decided an issue against the agency) and “redelegated” the case to a “hand-picked” judge to
review the same issue on a motion to reconsider. 781 F.2d 71 (6th Cir. 1986). The irregularity
that violated due process, according to the Sixth Circuit, was that the agency “hand-picked” a
judge—after the original decision was made—to review and reconsider that decision. The Sixth
Circuit agreed with the appellant that “fundamental fairness was sacrificed to gain a desired
decision from a hand-picked judge and that all appearance of fairness was ‘shattered’.” Id. at 75.
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It is significant that the Sixth Circuit reversed in Utica solely because of the procedural
irregularities, even though appellants “were unable to prove actual bias”:
It is of no consequence for due process purposes that Fenster and
Utica were unable to prove actual bias on the part of Franke or
Davis. The officials who made the revocation and redelegation
decision chose a non-career employee with no background in law
or adjudication to replace Campbell. They assigned a legal advisor
to the new Judicial Officer who worked under an official who was
directly involved in prosecution of the Utica case.
Such
manipulation of a judicial, or quasi-judicial, system cannot be
permitted. The due process clause guarantees as much. As the
court stated in D. C. Federation of Civic Ass’ns v. Volpe, 148 U.S.
App. D.C. 207, 459 F.2d 1231, 1246-47 (D.C. Cir. 1971), cert.
denied, 405 U.S. 1030, 31 L. Ed. 2d 489, 92 S. Ct. 1290 (1972):
With regard to judicial decision-making, whether by
court or agency, the appearance of bias or pressure
may be no less objectionable than the reality.
…
Whether the Judicial Officer was correct or incorrect in his
application of the law, the Secretary’s efforts to change the result
by the methods described in this opinion cannot be permitted to
succeed.
Utica Packing, 781 F.2d at 78-79.
In this case, the ABA has violated this most basic precept of due process by permitting
the Accreditation Committee members whose recommendation was under review to participate
in the Council Hearing reviewing that Recommendation and by empowering the Council Chair
to appoint the Appeals Panel. Thus, the underlying Accreditation Committee decision-makers
improperly participated in the Council decision-making process, and the Council decisionmakers appointed the appeals tribunal charged with reviewing their decision after the ABA’s
received DSOL’s written appeal of the accreditation decision.

“Such manipulation of a

judicial or quasi-judicial, system cannot be permitted. The due process clause guarantees
as much.” Id. at 78. Basic fundamental notions of due process demand a separation between the
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decision-maker whose decision is being reviewed on appeal and the appellate decision-maker
undertaking the review. See Woods v. Willis, 2010 U.S. Dist. LEXIS 108197, at *15-16 (N.D.
Ohio Sept. 27, 2010)(“But minimum due process nevertheless requires a hearing before a neutral
adjudicator. . . . Where a plaintiff can show that a single individual performed more than one
function or where the same person acted as both adjudicator and legal representative for the
agency bias is more likely.”)(emphasis in original).
The Sixth Circuit has plainly stated that “the due process rights of an administrative
litigant are violated when “the risk of unfairness” to that litigant is “intolerably high.” Roadway
Express, Inc. v. Reich, 1994 U.S. App. LEXIS 22924, at *13 (6th Cir. Aug. 22, 1994)(citing Utica
Packing, 781 F.2d at 77, 78)(internal citations omitted). In this case the risk of unfairness is
unquestionably high given the Accreditation Committee’s participation in the Council decision
and the Council Chair’s post hoc appointment of the Appeals Panel. Consequently, meaningful
appellate review through the ABA’s administrative process is clearly unobtainable and the
appeals process is therefore futile. The Court, therefore, should excuse the DSOL’s failure to
exhaust its administrative remedies prior to filing this lawsuit.
Likelihood of Success on the Merits: Federal Due Process
Legal Standard
In declining to grant Plaintiff injunctive relief, this Court found that Plaintiff was unlikely
to succeed on the merits with respect to its claim that Defendant ABA had violated its right to
federal due process in denying its application for provisional accreditation. (Doc. 35, p. 34). In
reaching this decision, the Court applied the standard of review of accreditation decisions set
forth in Thomas M. Cooley Law School v. Am. Bar Ass’n., 459 F.3d 705 (6th Cir. 2006). This
Court did not, however, apply the Cooley standard to the decision of Defendant ABA without
error because the Court permitted Defendant ABA to evaluate only some facts in the record but
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not all the relevant factors. In other words, the ABA’s decision relied only on cherry-picked
facts and did not consider, weigh, or even mention the considerable and compelling evidence that
contradicted its decision. This cherry-picking of the facts, in the vernacular of the case law, is
referred to as arbitrary and capricious decision-making, or a decision not based on substantial
evidence.
Although this Court has recognized that a decision supported by substantial evidence
must be “based upon the record as a whole,” Lyons v. Astrue, 2012 U.S. Dist. LEXIS 20801, *3
(E.D. Tenn. Feb. 17, 2012)(Varlan, J.), it allowed the ABA to slip below this standard. In other
words, substantial evidence means all of the evidence taken as a whole – good or bad/up or down
– not just a subset of cherry-picked facts. The ABA’s decision is based only on cherry-picked
facts. However, the law requires that a decision-maker engage in a reasoned evaluation of the
evidence and the decision-maker’s conclusion must be well explained and well supported if
contradicted by other evidence. Adkins v. Astrue, 2011 U.S. Dist. LEXIS 85134, at *20 (E.D.
Tenn. Aug. 2, 2011)(Varlan, J.). The decision-maker must “properly outline[] … disagreement”
with contrary evidence. Lyons, 2012 U.S. Dist. LEXIS 20801, at *7. While the decision-maker
need not “discuss each piece of data that is a part of the record … [the decision-maker must]
consider[] the record as a whole and reach[] a reasoned conclusion.” Id. at *8 (emphasis added).
Standard 203
With respect to Standard 203, the ABA’s finding that DSOL does not engage in goal
setting and goal assessment is contradicted by the record evidence. The ABA Site Team found
that:
As a constituent LMU unit, DSOL regularly identifies specific
goals for improving itself, identifies the means to achieve these
goals, assesses the success in realizing these goals by assessing its
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activities daily, weekly, monthly, and annually, and uses this
information to re-examine and revise its means and goals.
(Doc. 21-9, p. 6). This finding is uncontroverted. Indeed, the Site Team observed that DSOL’s
self-assessment of its “goals for improving the law school program” is a model for assessment
driven legal education: “DSOL is at the forefront of outcomes-based and assessment driven
legal education.” (Doc. 21-9, p. 65). The Council fails to articulate why it discounted, rejected,
or ignored the uncontroverted evidence that DSOL “regularly identifies specific goals for
improving the Law School’s program, identifies means to achieve the established goals, assesses
its success in realizing the established goals, and periodically re-examines and appropriately
revises the established goals.”1
Specifically, the conclusion that DSOL “failed to establish that it has re-examined its
goals and means to achieve them in light of unanticipated economic conditions,” is directly
refuted by undisputed evidence and the record as a whole. For example, DSOL considered
changed national and regional economic conditions at its annual Strategic Planning Retreat in
February 2011. The DSOL faculty adopted a goal to increase the entering academic credentials
of the student body in light of lower student enrollment. (Doc. 1-1, p. 19). DSOL further
specifically informed the ABA Accreditation Committee that it had secured LMU’s
authorization to offer up to a fifteen percent tuition discount to prospective students through
scholarships to reduce student debt load and attract students with higher LSAT scores and
undergraduate grade point averages. (Doc. 21-7, p. 35). The Accreditation Committee
1

Regardless of whether the Site Team’s observations and conclusions are labeled as “findings” or not by the
ABA’s internal procedures, the semantics involved cannot and should not override the facts. The Site Team
evaluated and observed DSOL students, faculty, staff and facilities and recognized that the law school’s selfassessment process is a model for other schools. These facts are on the record and the ABA cannot simply push
them aside or ignore them by arguing that because they are facts presented by the Site Team, they do not warrant
consideration. Rather, the law requires the ABA to consider the record as a whole and to articulate in its decision
the reasons why evidence favorable to DSOL, such as this, was discounted, rejected, or ignored.

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acknowledges that the University has pledged its support of the law school until the school
achieves fiscal independence. (Doc. 21-6, p. 24). University President Dr. James Dawson and
LMU’s Chief Financial Officer testified at the Accreditation Committee Hearing regarding
LMU’s unequivocal support of resources, including financial resources, in support of the law
school program. (Doc. 21-5, pp 26-30). The record includes evidence that DSOL has revised
and continues to revise its pro forma budgets and its projected student enrollment numbers to
make strategic adjustments to sustain and improve the law school program.

In short, as

illustrated by testimony from the Council Hearing, the record makes clear that the law school has
considered the impact of “market conditions” on its strategic planning. (Doc. 21-5, pp 29-47).
All of this evidence was on the record before the Council. The Council neither discussed nor
explained this evidence vis-à-vis its decision. The ABA simply chose to ignore this evidence.
This cherry-picking is the essence of arbitrary and capricious agency decision-making.
Standard 303(a) and (c) and Interpretation 303-3
The ABA’s determination that DSOL was not in substantial compliance with Standard
303(a) and 303(c) and Interpretation 303-1 was based on the ABA’s conclusion that DSOL has
not demonstrated that: (1) it adheres to “sound academic standards”; (2) its standards for
academic dismissal and readmission are “sufficiently rigorous”; and (3) its academic support
program is “effective.” (Doc. 35, p. 31)(citing December 20, 2011 Council Decision Letter,
Doc. 21-4 at 3–4). Again, the ABA failed to base its conclusions on a rational evaluation of the
record as a whole.
The ABA concluded that DSOL permits the matriculation of underperforming students.
(Doc. 35, p. 32). The ABA bases its conclusion on DSOL’s readmission of six of 18 students
who were subjected to dismissal for academic underachievement. The ABA concluded, based
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on this raw data, that DSOL had a 33% readmission rate and that such a rate evinced a lack of
sound academic standards. However, the evidence is undisputed that these six students were
readmitted based on an individualized determination of “extraordinary circumstances” pursuant
to DSOL’s readmission policy. (Doc. 21-6, p. 16). The evidence is also undisputed that only
one of these six students was subsequently and permanently dismissed for academic
underachievement. (Doc. 21-6, p. 16). This represents a success rate of 85% in DSOL
readmissions. Rather than demonstrating unsound academic standards or a weak readmission
policy, the successful readmission of five of the six students demonstrates the effectiveness of
DSOL’s Academic Success Program. The readmitted students received academic support, and
as noted above, five of six students were successful on readmission. The success rate of 85%
indicates the effectiveness of both DSOL’s Academic Success Program as well as the Program
Director. (Doc. 21-6, p. 16).
The ABA bases its finding that DSOL has failed to demonstrate the effectiveness of its
academic success program on the Academic Success Program Director’s lack of “prior
experience in academic success.” The ABA has failed to articulate in any meaningful and
rational way how Professor Walker’s professional background, knowledge, and skills are
deficient with respect to his role as Director of the Academic Success Program. In addition to
having earned both a J.D. and a Masters of Library Science from Rutgers University, Professor
Walker has past experience as a law librarian, three years of experience teaching legal research
and writing, and experience as a judicial clerk on the Superior Court of New Jersey. Legal
research and writing is obviously critical to a student’s success in any law school course and an
essential element of that student’s success in the profession.

Contrary to the ABA’s

characterization of Professor Walker’s background, legal research and writing skills are an
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essential element of any academic success program and therefore experience teaching in that
field clearly qualifies him to direct the Academic Success Program. Stated differently, the
academic success of any law student depends on the student’s proficiency in legal research
(finding and understanding cases and other law) and legal writing (being able to organize and
express complex legal principals and conclusions). The ABA simply concludes that the lack of a
position title on Professor Walker’s resume equates with an ineffective program.

This

conclusion fails to take the entire record into account and represents an agency finding based
more on whim than reasoned decision-making.
Nor did the ABA explain why or how the depth and breadth of the Academic Success
Program is insufficient or ineffective under the Standard. The undisputed evidence shows that
the Academic Success Program is implemented by a collaborative team of faculty and staff,
including the Associate Dean for Academics, the Director of the Law Library, and several other
Associate and Visiting Professors, as well as the Director of Lawyering Skills and Academic
Success, David Walker. (Doc. 1-1, pp. 24-25; Docs. 28-8, 28-9). In addition, the undisputed
evidence demonstrates that the Academic Success Program encompasses a range of effective and
accessible academic support strategies including the following: Bridge Week; ASP courses
taught in small sections; ASP courses required of all first year students (ASP I) and those
students in subsequent years who are on academic probation (ASP II and III); a Bar Examination
Course required of students with a GPA of 2.5 or below; DSOL’s utilization of an interactive
computer software program, TurningPoint, and midterm exams to identify potentially at-risk
students prior to the end of the term so that academic support services can be initiated before the
end of the term; and counseling given to at-risk students which includes sessions with writing
tutors. (ABA Site Team Report, pp. 12, 22-23; Committee Hearing Transcript, pp. 41-43). The
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ABA never mentions, let alone explains or articulates why, given the full range and depth of the
Academic Success Program and the number of qualified faculty and staff charged with
implementing this multi-layered program, the program is nevertheless deemed deficient.
Finally, the ABA has failed to articulate or explicate its decision in a manner that
explains how it is that DSOL can be in compliance with Standard 301(a) and Interpretation 3013, but not in compliance with Standard 303(a) 303(c) and Interpretation 303-3. It is undisputed
that the ABA found DSOL in substantial compliance with Standard 301 and Interpretation 301-3.
Standard 301(a) provides that “[a] law school shall maintain an educational program that
prepares its students for admission to the bar, and effective and responsible participation in the
legal profession.” Interpretation 301-3 states that “the factors to be considered in assessing the
extent to which a law school complies with this Standard are the rigor of its academic program,
including its assessment of student performance, and the bar passage rate of its graduates.”
Thus, insofar as Standard 301 is concerned, DSOL has been found to have a sufficiently rigorous
academic program which prepares student to pass the bar and for responsible and effective
participation in the legal profession. Only by cherry-picking certain facts with respect to the
readmission of six students and the Academic Success Program Director’s lack of previous
experience in the particular field of “Academic Success” could the ABA find that DSOL fails to
comply with Standard 303 and Interpretation 303-1. Again, the ABA’s findings are not based on
a review of the entire record, nor does the ABA provide any explanation of why the favorable
evidence was discounted, ignored, or rejected.
Standard 501(b) and Interpretation 501-3
The ABA found that DSOL was not in substantial compliance with the requirement
within Standard 501 that a law school only admit students “capable of satisfactorily completing
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its educational program and being admitted to the bar.” Standard 501(b). The Court summarily
set forth the following quotation from the Council Letter as the reasoning underlying Defendant
ABA’s decision:
[I]n light of the comparatively low entering academic and
admission test credentials of a significant percentage of the Law
School’s students, the attrition rates of its inaugural classes, the
failure of the School to establish the effectiveness of the
academic support program, and the fact that the Law School’s
graduates have yet to sit for a bar examination, the Law School
has not demonstrated that it is not admitting applicants who do not
appear capable of completing the educational program and being
admitted to the bar. [Doc. 21-40 at 4].
(Doc. 35, p. 34)(emphasis added).
The ABA first finds that DSOL did not meet Standard 501 because of declining LSAT
scores. Yet these so called “declines” are de minimus and insignificant.

Specifically, the

Committee Letter presents as Finding of Fact (59) that DSOL experienced a decline in LSAT
scores from the DSOL inaugural class of 2009. (Doc. 21-6, pp. 14-15). At the 75th percentile the
“decline” is all of 1 point from 2008-2010 and absolutely no decline from 2010 to 2011:
2009/152, 2010/151, 2011/151. (Id.). At the 50th percentile, the decline is all of 2 points from
2009-2010 and absolutely no decline from 2010 to 2011: 2009/149, 2010/147, 2011/147. (Id.).
Similarly, at the 25th percentile, the “decline” is 2 points from 2009 to 2010 and absolutely no
decline from 2010 to 2011: 2009/146, 2010/144, 2011/144. (Id.). No rational mind can believe
that such a minor decline establishes by substantial evidence that DSOL admits applicants who
are not capable of completing law school and passing the bar.
Defendant ABA reaches a similar conclusion with respect to DSOL entering student
UGPAs. The Accreditation Committee draws further support in a “decline” in entering UGPAs
which is as insignificant as the “decline” in LSAT scores. The UGPA in the 75th percentile
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evidences a decline of merely 0.19 points from 2009 to 2011 – 2009/3.5, 2010/3.38, 2011/3.31 –
not even two tenths of a point. The 50th percentile UGPA declined merely .06 from 3.05 to 2.99
– six hundredths of a point: 2009/3.05, 2010/2.97, 2011/2.99. For the 25th percentile, the decline
was from 2.8 to 2.66 – a mere .14 – fourteen hundredths of a point: 2009/2.8, 2010/2.7,
2011/2.66. (Doc. 21-6, pp. 14-15). At a minimum, the ABA needs to explain why these de
minimus declines disqualify DSOL. Due process also requires the ABA to explain why the
fluctuations similar to other schools do not disqualify them, but disqualify DSOL.
The decline experienced by DSOL in entering student LSAT scores and UGPAs is no
different from the fluctuation experienced by the 8 fully accredited law schools that presented
lower entering student LSAT scores and UGPAs. From 2008 to 2011, Appalachian School of
Law, the very law school actively recruiting DSOL students, experienced a decline in both LSAT
scores and UGPAs. With respect to the LSAT, Appalachian School of Law declined 1 point from
2008 to 2011 at the 50th percentile: 2008/149 and 2011/148. The median UGPA for these years
declined .03 points, three-hundredths of a point, from 2.97 in 2008 to 2.94 in 2011. Florida A&M
University College of Law experienced a decline in UGPA of .07, seven-hundredths of a point,
in its 75th percentile from 3.39 in 2008 to 3.32 in 2011. North Carolina Central University
School of Law also experienced declines. It suffered a decline in the LSAT of 1 point in its 25th
percentile from 144 in 2008 to 143 in 2011 and 3 points in the 75th percentile from 153 in 2008
to 150 in 2011. Southern University Law Center experienced a decline of 1 LSAT point in its
75th percentile in these years from 149 in 2008 to 148 in 2011. Southern University Law Center
also experienced a decline in UGPAs: .31, over three-tenths of a point, at the 50th percentile
(2008: 3.15 to 2011: 2.84) and .13, over one-tenth of a point, at the 75th Percentile (2008:3.34 to
2011:3.21). Lastly, The Thomas M. Cooley Law School similarly experienced a decline in
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UGPAs – at the 25th percentile a decline of over a tenth of a point, .11, from 2.73 in 2008 to 2.62
in 2011 and at the 50th percentile a decline of .06, six-hundredths of a point, from 3.05 in 2008 to
2.99 in 2011.

2

Therefore, DSOL does not present a significant decline in LSAT scores and

UGPAs.
Finally, and perhaps most significantly, Defendant ABA did not reasonably consider the
importance of the fact that the LSAT scores and UGPAs of DSOL students are not
“comparatively low” and are in fact higher relative to eight law schools that Defendant ABA has
deemed worthy of full accreditation. (Doc. 1-1, p. 30). With this phrase “comparatively low,”
the Council itself introduces the comparison of DSOL to other schools. Having done so, due
process requires the Council to explain why it is that schools with lower scores meet Standard
501 but DSOL does not. Due process requires that the Council explain why it says DSOL’s
scores are “comparatively low” when they are not vis-à-vis 8 fully accredited law schools.
DSOL acknowledges that Defendant ABA is permitted to analyze the totality of an
applicant law school’s circumstances when reaching a decision. However, the “totality of the
circumstances” doctrine requires uniform and consistent decision-making based upon established
definitions and the presentation of explanation. PDK Laboratories, Inc. v. U.S. Drug
Enforcement Administration, 438 F.3d 1184, 1194 (D.C. Cir. 2006). Defendant ABA must
present a reasonable explanation for why a law school with higher entering credentials than fully
accredited schools is not worthy of provisional accreditation.
The Court summarized the ABA’s explanations as follows:
[A]ccreditation decisions are made on the totality of the
circumstances, and plaintiff’s argument seemingly overlooks the
2

http://www.lsac.org/LSACResources/Publications/official-guide-archives.asp

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range of facts the Committee and Council considered. As an
example, although plaintiff’s students may have similar or even
better LSAT scores than students of an accredited school, the
Council found the law school lacked an effective academic support
program and readmitted one-third of its academically dismissed
students despite its policy to readmit only for extraordinary
circumstances, which are circumstances that may not have been
present with respect to the accredited schools.
(Doc. 35, p. 37).
The due process problem with the ABA’s explanations—lack of an effective academic
success program and readmission of one-third of its academically dismissed students—is that it
is contradicted and undermined by the totality of the record and the ABA never explains (or even
acknowledges) the contradictions.
Specifically, the ABA conveniently overlooks without explanation the fact that five of
the six students readmitted were ultimately academically successful thus establishing the success
rate of 85% for readmissions. (Doc. 21-6, p. 16). The ABA Site Team, itself, reported that:
“[t]here appear to be adequate policies and procedures in place to determine whether such
students possess the ability to successfully complete law school studies.” (Doc. 21-9, p. 42).
This fact is further supported by the finding that six of eighteen students academically dismissed
prior to fall of 2011 had LSAT scores of 148 or greater indicating that DSOL could not have
concluded that they were likely to do poorly academically at the time of admission. (Doc. 11,
pp. 37-38). Again, none of these facts were even mentioned, let alone rationally explained and
incorporated into a reasoned decision.
The ABA’s conclusion that DSOL’s Academic Success Program was ineffective also is
not reasonable. The arbitrariness of this decision in light of the total record is fully discussed and
demonstrated above at pages 10-13.

17

Defendant ABA reached its decision that DSOL is not in substantial compliance with
Standards 203, 303(a) and (c), and 501(b) and Interpretations 303-3 and 501-3 without
undertaking a full, complete and reasoned review of the record. Defendant ABA looked at one or
two facts and reached a conclusion, disregarding other facts in contradiction without attempting
to reconcile the conclusions a reasoned analysis would reach. It is as if Defendant ABA were
visiting the Antarctic one day in the summer when the weather was relatively mild and offered a
finding that Antarctic weather was uniformly mild. This decision would not pass muster as a
reasoned decision because it does not consider the year as a whole. Defendant ABA should not
be permitted a similar method of reasoning here.
DSOL argues that the Court must realize that DSOL’s application for provisional
accreditation, when taken as a whole, presents evidence to support a reasonable conclusion that
DSOL is in substantial compliance with all relevant ABA Standards and Rules. There is a strong
likelihood that DSOL will be successful in its claim that Defendant ABA violated its right to
federal due process when Defendant ABA found that DSOL was not in substantial compliance.
This Court must review the record in this case in light of the more reasonable interpretation
DSOL has offered and revise its decision denying injunctive relief to DSOL.
Irreparable Injury
The Court erred in finding the evidence DSOL presented of the irreparable harm resulting
from Defendant ABA’s denial of provisional accreditation to be “unsupported or speculative.”
(Doc. 35, p. 39). The damage to an institution denied accreditation is an example of per se
irreparable harm. Western State University of Southern California v. American Bar Association,
301 F. Supp. 2d 1129, 1137-38 (C.D. Calif. 2004) (“The harm if accreditation is withdrawn is
real and substantial.”) (emphasis added); Wiki v. American Medical Association, 671 F. Supp.
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1465, 1490 (N.D. Il. 1987) (“Participation by hospitals in the accreditation program is voluntary
… However, obtaining accreditation is important to a hospital and loss of accreditation would be
devastating …’Denial or loss of accreditation can close a hospital.’”) (emphasis added).
Defendant ABA asserts that these cases are inapplicable because Western involves the
grant of an injunction to prevent withdrawal of accreditation previously granted by the ABA
rather than a denial of accreditation never granted, and Wiki involves the accreditation of a
hospital rather than a law school. (Doc. 47, pp. 20-21). Defendant ABA is incorrect in both of
these assertions.
Accreditation is a seal of approval that the public relies upon as an indication of quality
and acceptability in goods and services. Auburn University v. The Southern Association of
Colleges and Schools, Inc., 489 F. Supp. 2d 1362, 1368 (N.D. Geo. 2002) (emphasis added)
(“Congress continues to delegate to the Secretary of Education the responsibility of determining
whether an accrediting agency should be recognized as ‘a reliable authority as to the quality of
education or training offered.’ 20 U.S.C. § 1099b(a).”)(emphasis added; italics in original). The
accreditation of a hospital is not materially different from that of a law school. Once an
accrediting agency decides that an institution does not merit accreditation, the public
immediately concludes that it is of poor quality and that its goods and services should be
rejected. There is no difference between the withdrawal of accreditation and the denial of
accreditation. Both are unequivocal statements that the institution in question lacks quality. The
potential for irreparable harm exists for all institutions – regardless of whether law schools,
hospitals, or trade schools – when they undergo review of eligibility for accreditation. The court
stated in Western that: “[t]he loss of reputation and good will resulting from the loss of
accreditation could be very damaging to a law school.” 301 F. Supp. 2d at 1138.
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The Court acknowledges in its decision that: “Plaintiff cites a plethora of harms that
would result in the absence of an injunction.” (Doc. 35, p. 38). The Court lists these irreparable
harms in detail: 1) harm to DSOL’s reputation; 2) the inability of DSOL students to obtain
federal student loan funds; 3) “the likelihood that students and faculty will transfer to or seek
positions at other law schools;” 4) “the likelihood that recently admitted but non-matriculated
students will choose to attend another law school;” 5) “the inability of the school’s future
graduates to sit for certain state bar exams;” 6) the possibility that TBLE might withdraw its
grant of approval for plaintiff’s graduates to sit for the Tennessee bar exam; 7) that LMU will
find it difficult to financially maintain the law school; 8) that DSOL’s students “will not be able
to compete for scholarships, occupational positions, externships, or internships;” 9) “that
[DSOL] faculty members will be precluded from presenting at conferences, seminars, and panel
presentations open only to members of ABA approved law schools;” and 10) that DSOL’s “ very
existence will be compromised.” (Doc. 35, p. 38)The Court committed error in not concluding
that these examples of irreparable harm flowed per se from the ABA’s decision.
Nevertheless, faced with the Court’s decision, DSOL submitted Supplemental
Declarations of Dean Sydney Beckman that detailed the specific and immediate harm to DSOL.
(Docs. 7-3, 40-1, 46-1). As set forth in the Declarations of Dean Beckman, these harms are:


DSOL is experiencing fewer applications for admission since the ABA
accreditation decision for as of February 4, 2012, DSOL has received
approximately 26% fewer applications for admission into the fall 2012
matriculating class of full-time students compared to fall of 2011 and 15%
fewer part-time applications. (Doc. 40-1, p. 2).



Eight DSOL students have withdrawn from the law school and have cited
the ABA accreditation decision as the reason for their withdrawal. (Doc.
40-1, p. 2).



A greater number of students are requesting good standing letters in
preparation to transfer to another law school. (Doc. 40-1, p. 2).
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

DSOL is receiving telephone calls from prospective students who have
indicated that the ABA accreditation decision is preventing them from
attending DSOL. (Doc. 40-1, pp. 2-3).



The national publicity given to the ABA accreditation decision has caused
DSOL to lose goodwill and experience diminished standing before the
public. (Doc. 40-1, p. 3).



One Competitor Law School, Appalachian School of Law, has made a
direct and explicit solicitation for DSOL students considering transferring
offering DSOL students a “complete waiver of the application fee.” (Doc.
46-1, p. 1-2).

This case is very similar to Hampton University v. Accreditation Council for Pharmacy,
611 F. Supp. 2d 557, 566 (E.D. Va. 2009)(irreparable harm found when imposition of
probationary accreditation would “likely lead[] some current students to consider transferring, or
to apply to transfer … and current faculty members may well be currently seeking positions at
other schools …. Accepted prospective students may choose to attend another school and
students considering applying to the School may cross it off their lists.”). Although Hampton
involved the withdrawal of accreditation rather than the denial of initial accreditation, that fact is
not a material difference. In Hampton and here, the accreditor’s decision connotes the same fact:
the institution lacks quality.
For this reason, the Court was incorrect in its conclusion that these irreparable harms
result from DSOL’s continued status of being an unaccredited law school. (Doc. 35, p. 39). Prior
to the Council’s decision, DSOL, although unaccredited, had not been adjudged by the ABA as
lacking quality. Once the ABA, however, arbitrarily determined that the DSOL lacked quality
(even though it amply demonstrates quality greater than other fully-accredited law schools),
DSOL’s world turned upside down. It has now been unfairly branded. This brand is new, not
merely a continuation of the status of being unaccredited with an application pending.
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A Preliminary Injunction Will Not Harm The ABA
The ABA will not be harmed in any way by the issuance of a preliminary injunction.
Had the ABA followed its own Procedures, including properly constituting the Appeals Panel
and complying with Rule 6 and IOP 2 and 19 in the conduct of the Council Hearing, and had the
ABA reviewed DSOL’s application for provisional approval in light of the entire record, DSOL
would have been granted provisional approval and neither this lawsuit nor the request for
injunctive relief would have been necessary. DSOL does not seek relief that impinges on any
rights of the ABA. DSOL simply asks that the Court order the ABA to post the fact that this
Court has reconsidered DSOL’s request for a preliminary injunction and granted that request.
The ABA cannot justifiably argue that it will be harmed in any way by injunctive relief that
accurately reflects the findings of this Court in the present case. There is no harm to the ABA in
requiring that it adhere it its own Rules, apply its Standards in a consistent and rational manner,
and render an accreditation decision that is neither arbitrary nor capricious. See St. Andrews
Presbyterian College v. So. Ass’n of Colleges and Schools, 2007 U.S. Dist. LEXIS 87953, *7
(M.D. N.C. Nov. 29, 2007)(harm to accrediting agency caused by issuance of injunction is
minimal).
An Injunction Protects the Public Interest
As an accrediting agency approved by the Secretary of Education, the ABA is charged
with serving the public interest.

The public has an interest in a timely and trustworthy

accreditation process and in results from that process which the public can turn to as “reliable
authority as to the quality of training offered by an educational institution.” Auburn University,
489 F. Supp. 2d at 1368. DSOL’s amended request for relief does not seek to impose any prior
restraint on the ABA’s first amendment rights or serve to undermine the public’s interest in the
22

protection of those rights. Rather, upon reconsideration of the Court’s prior Memorandum
Opinion and Order, and upon a finding that the evidence demonstrates a likelihood of success on
the merits and a showing of irreparable harm, DSOL merely requests that the Court direct the
ABA to communicate these facts to the public. This would serve to protect the public from the
dissemination of inaccurate information based upon an accreditation decision that is arbitrary and
capricious and thereby violates due process.

Florida College of Business v. Accreditation

Council for Independent Colleges, 954 F. Supp. 256, 258-60 (S.D. Fla. 1996).
An injunction requiring the ABA to post notice of the Court’s reconsidered opinion on its
website and an announcement that its decision is currently subject to federal court review would
in no way confuse law school students, applicants, or the public at large. Moreover, the ABA’s
arbitrary and capricious decision as embodied in its posting of the decision to deny provisional
accreditation should not be allowed to stand before the public without question for a lengthy
period of time. The requested injunctive relief will serve to remedy the irreparable harm and
injury to DSOL and the harm to the public caused by publication of the ABA’s arbitrary and
capricious decision to deny accreditation.
Conclusion
The Memorandum Opinion and Order issued by the Court on January 18, 2012, (Doc.
35), must be revisited in light of the new facts now before the court that confirm DSOL’s earlier
assertions with respect to the unfair and improper method used by Defendant ABA in accrediting
law schools. The Court must review its finding that Defendant ABA acted reasonably and based
its decision on substantial evidence. Defendant ABA arbitrarily and capriciously denied
provisional accreditation to DSOL.

23

Respectfully submitted,

WATSON ROACH BATSON
ROWELL & LAUDERBACK
/s/ Robert H. Watson, Jr._____
Robert H. Watson, Jr. (001702)
Attorneys at Law
1500 Riverview Tower
900 South Gay Street
P.O. Box 131
Knoxville, TN 37901-0131
Telephone: [phone]
Facsimile: [phone]
[e-mail]

BLANK ROME LLP
/s/ Michael L. Cioffi______
Michael L. Cioffi (0031098)
1700 PNC Center
201 East Fifth Street
Cincinnati, OH 45202
Telephone: [phone]
Facsimile: [phone]
[e-mail]

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CERTIFICATE OF SERVICE

I hereby certify on March 8, 2012, I am filing the foregoing Reply Memorandum in
Support of Plaintiff’s Motion for Reconsideration via the Court’s CM/ECF system which will
automatically generate a Notice of Electronic Filing that will be emailed to the following
registered Filing Users:
Anne E. Rea
Sidley Austin LLP (Chicago)
One South Dearborn Street
Chicago, IL 60603

P. Alexander Vogel
O’Neil, Parker & Williamson
7610 Gleason Drive, Suite 200
Knoxville, TN 37919

Howard H. Vogel
O’Neil, Parker & Williamson
7610 Gleason Drive, Suite 200
Knoxville, TN 37919

Patricia J. Larson
American Bar Association
321 N. Clark Street
Chicago, IL 60654

Jeffrey R. Thompson
O’Neil, Parker & Williamson
7610 Gleason Drive, Suite 200
Knoxville, TN 37919

Stephanie A. Giggetts
American Bar Association
321 N. Clark Street
Chicago, IL 60654

Linda R. Friedlieb
Sidley Austin LLP (Chicago)
One South Dearborn Street
Chicago, IL 60603

Michael P. Doss
Sidley Austin LLP (Chicago)
One South Dearborn Street
Chicago, IL 60603

/s/__Michael L. Cioffi_____
Counsel for Plaintiff

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