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Federal Judge Grants Century Foundation’s Temporary Restraining Order Against DeVos’ DOE

Ruling Extends Exceedingly Short Public Comment Period Set by Department for Two Accrediting Agencies with History of Noncompliance

Hearing on Century Foundation’s Lawsuit to Disclose Application Materials Critical to Providing Informed Comment Set for February 22

(New York, NY) – This morning, U.S. District Judge for the Southern District of New York Paul A. Crotty issued a temporary restraining order against the U.S. Department of Education and Secretary Betsy DeVos, blocking the agency from enforcing its February 16 deadline for public comment on information submitted by two higher education accrediting agencies with a history of regulatory noncompliance, the Accrediting Council for Independent Colleges and Schools (ACICS) and the American Bar Association (ABA).

The TRO—which is thought to be the first ruling of its kind against Sec. DeVos’ agency—sets a hearing for Thursday, February 22, on The Century Foundation’s (TCF) lawsuit seeking the release of ACICS’ application for initial accreditation and ABA’s compliance report, documents that are at the heart of the Department’s request for public comment. The Judge’s order, which is available in full online, states: “[B]y ending the comment period before TCF and other groups have an opportunity to review the application, the Department may very well be acting arbitrarily and capriciously.” It continues: “Absent emergency relief, TCF will be effectively barred from meaningful public engagement and will suffer irreparable harm.”

In response to the order, TCF and the National Student Legal Defense Network (NSLDN), a non-profit legal group representing TCF in the lawsuit, issued the following statements:

Alex Elson, Senior Counsel at NSLDN, who presented arguments on behalf of TCF at yesterday’s hearing “Today’s ruling is a victory—not just for The Century Foundation, but for transparency, accountability, and students. Accrediting agencies such as ACICS and the ABA are the gatekeepers of billions of dollars in federal student aid. As set out by law, the public has a clear right to comment on these accreditors and the government has a clear responsibility to consider those comments. Today’s ruling is consistent with what Congress envisioned when it established the accreditor approval process.  We look forward to TCF having the opportunity to provide meaningful comment on these materials.”

Robert Shireman, senior fellow at TCF and former deputy undersecretary in the Department of Education “Today, a U.S. federal judge affirmed what we have been saying: it’s outrageous for the Department of Education to ask for public comment on key documents, and then refuse to make those documents available to anyone before the close of an exceedingly short comment period. It makes a mockery of the regulatory process, and is made all the more egregious when considering the problematic record of the accrediting agencies in question. Fortunately, this ruling brings us one step closer to seeing what the Department is trying to hide. We’re hopeful that we can come to a simple resolution that allows TCF to review the documents, submit comment within a reasonable time period, and have those comments enter the official public record and be considered during the Department’s evaluation process.”

TCF filed its request for emergency relief on February 13, seeking materials it had previously requested—through two FOIA requests and a federal lawsuit alleging that the Department had failed to fulfill its duties under both the Administrative Procedure Act (APA) and FOIA. In granting the TRO, Judge Crotty determined that: “Specifically, at least with regard to its Administrative Procedure Act claim seeking to extend the comment period, TCF has demonstrated serious questions going to the merits to make them a fair ground for litigation, irreparable harm, and a balance of hardships tipping decidedly in its favor.”

Both agencies under review by the Department have well documented recent histories of substandard compliance with federal standards. 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. However, the Department has refused to release either ABA’s compliance report or ACICS’ application for recognition—documents at the heart of its request for public comment.