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Dept. of ED Changes Course Within Hours of Lawsuit Filed Demanding the Release of ACICS Records

NEW YORK, N.Y. (April 23, 2018) – Earlier today, less than two hours after a federal lawsuit was filed against it, the U.S. Department of Education made an abrupt decision to release its staff analysis regarding an embattled accreditor of institutions of higher education, the Accrediting Council for Independent Colleges and Schools (ACICS).

On December 12, 2016, the Department terminated ACICS’s status as a recognized accreditor, finding “pervasive noncompliance” with over 20 separate Department criteria such that ACICS would “not [be] capable of coming into full compliance within 12 months.” Following litigation brought by ACICS challenging that decision, on March 23, 2018, U.S. District Judge Reggie Walton remanded the matter back to the Department for consideration of additional evidence submitted by ACICS. See ACICS v. DeVos, et al., No.16-cv-2448 (RBW) (D.D.C. Mar. 23, 2018). Notably, Judge Walton’s Order did not vacate the December 2016 decision terminating ACICS’s authority to accredit institutions of higher education. But on April 3, 2018, Secretary DeVos took Judge Walton’s order a step further, unilaterally vacating the December 2016 decision and reinstating ACICS as a recognized accrediting agency.

On a parallel track, in the fall of 2017, ACICS filed an application to once again be recognized as an accreditor. As part of that process, the Department career staff was to conduct a rigorous analysis of ACICS and provide a copy of that analysis to ACICS no later than March 13, 2018. Shortly after that date passed, The Century Foundation (TCF) submitted a Freedom of Information Act request seeking a copy of that analysis. On Friday, April 20, the Department sent TCF an email stating that the request “seeks documents that will require a thorough search” and that it “regrets the delay.” As late as 2:01 pm this afternoon, the Department refused to commit to releasing a copy of the analysis, stating instead that they were still conducting a search for the materials, that they “do not have a specific completion time available” and to “[p]lease accept our apologies for any inconvenience.”

At 3:09 pm, just over one hour after receiving the Department’s communication, the National Student Legal Defense Network (NSLDN), on behalf of TCF, electronically filed a lawsuit in the U.S. District Court for the Southern District of New York (S.D.N.Y. Case No. 1:18-cv-0358) seeking to compel the Department to release the requested records. Less than two hours later, the Department capitulated and announced that it would be releasing the records “in full.”

“The Secretary’s decision to restore ACICS’s standing as an accreditor came just over two weeks after the Department’s career staff were to have submitted initial findings regarding ACICS’s compliance with the Department’s criteria,” said Alex Elson, senior counsel at NSLDN. “Now that the Secretary has summarily reinstated ACICS as gatekeeper to federal taxpayer funds, the public is looking forward to knowing the results of the career staff review.”

“It is deeply troubling that the public has to resort to a costly litigation process in order to receive documents which are supposed to be made public under federal open government laws,” continued Elson. “This suit highlights a practice by this Administration of refusing to release documents relating to its oversight of for-profit colleges, including by an accreditor that turned a blind eye to some of the most predatory actors in higher education.”

This is the second lawsuit in which NSLDN has represented TCF seeking copies of records relating to ACICS. In January 2018, TCF sought and obtained the first temporary restraining order against Secretary DeVos, which spurred the Department to release approximately 18,000 pages constituting the application submitted by ACICS. See The Century Foundation v. Betsy DeVos & U.S. Department of Education, Case No. 1:18-cv-00128-PAC (S.D.N.Y). NSLDN is separately representing TCF in two other lawsuits seeking the release of documents relating to Secretary DeVos’ oversight of for-profit colleges and injuries to student loan borrowers.