Lawsuits against accrediting agencies becoming routine

Two recent lawsuits by universities against an accrediting organization underscore the sometimes-contentious relationship between the groups that monitor quality in higher education and the institutions that try to meet those accreditors' benchmarks.

The Accreditation Council for Pharmacy Education placed four universities' pharmacy programs on probation in January for not meeting some of the council's standards and gave the institutions until June to shape up or risk losing the programs' accreditation altogether.

Those actions seemed unfair and undeserved to at least some of the universities, so they fought back through legal action. In February Xavier University of Louisiana filed a lawsuit in U.S. District Court in New Orleans alleging that the council had violated its own rules and damaged the university's reputation.

Then in March Hampton University, in Virginia, filed a similar lawsuit in federal district court in its state.

Nova Southeastern University, in Florida, also is considering legal action even as it tries to remedy the problems identified by the council.

Palm Beach Atlantic University, also in Florida, was the fourth college placed on probation by the pharmacy council this year. David W. Clark, the university's president, said in a written statement that he believes the university has "addressed all the accreditors' concerns" and expects the institution's status to be restored in June.

Legal and accreditation experts said it is not uncommon for colleges to file lawsuits against accreditors, who risk a backlash as they try to enforce standards in ways that don't damage institutions' reputations or threaten their ability to improve.

Edward Waters College, in Florida, and Hiwassee College, in Tennessee, successfully went to court in 2005 to get their accreditation reinstated while their challenges to the accreditation process were being resolved.

An accreditor's negative ruling could discourage potential faculty members from seeking employment at an institution and scare prospective students from enrolling.

Colleges must be accredited by an organization that is recognized by the U.S. Department of Education for its students to be eligible to receive federal financial aid. In addition, state licensing boards often require professional programs in the health fields to be accredited in order for students in those programs to be able to practice within the state.

"I think there’s a fine line the accreditors have to walk between taking actions that uphold their standards, but working with and fostering improvement in the institution," said Cynthia A. Davenport, executive director of the Association of Specialized & Professional Accreditors, a Chicago-based group representing about 50 national and regional accrediting organizations.

Xavier University settled its lawsuit with the accreditation council last month. The council rescinded the university's probation, but no other details of the settlement were made public.

Hampton University also did not meet the accreditor's standard for what it considers to be an adequate number of faculty members and was only partially compliant with the criterion for faculty salaries. The council has not filed a response to Hampton's complaint, and no hearings have yet been scheduled in the case.

Nova Southeastern was also told that it had too few faculty members and paid them too little.

Officials from those three universities argue that the benchmarks, especially for the number of faculty members, are not specifically defined by the pharmacy council. And the colleges say their situations are not unlike those at many other institutions across the country. They cited a recent survey by the American Association of Colleges of Pharmacy, which found that faculty vacancies at pharmaceutical programs are a persistent national problem.

The main argument in the lawsuits filed by both Hampton and Xavier is that the accreditor did not follow due process, said Mark L. Pelesh, a lawyer and accreditation expert who now lobbies Congress and the U.S. Department of Education for Corinthian Colleges Inc. Courts generally give deference to the actual decisions and standards of accreditors, he said, so institutions are more likely to challenge accreditors' procedures.

In its complaint to the federal district court, Xavier said the council should have given the institution written notice that it was not in full compliance with accrediting standards before voting to place the pharmacy program on probation. Instead, Xavier said, the accreditor's board did not send that information until more than two weeks after making its judgment. The university also asserted it should have been given one year, rather than just six months, to fix the problems accreditors noted in a July letter to the institution.

Although probation is generally considered a limited action that gives the institution time to fix problems before facing more-severe sanctions, Hampton officials say that such a designation still hurts a university's reputation and that the courts are the only place for the institution to turn to repair the damage. Under the council's rules, Hampton cannot appeal probation to the accreditor's board and must place a notice on its School of Pharmacy's Web site that its doctoral program has been placed on probation.

Hampton has "no recourse, except for this suit, to challenge something that we feel is completely unfair and unwarranted," said Joyce M. Jarrett, the university's provost. "If they thought that only six months was necessary [to correct the problems], why put us on probation?"

Although students who graduate from the program while it is on probation will not be barred from practicing in Virginia, Ms. Jarrett worries that potential students might shy away from the university because of the uncertainty over whether the program will remain accredited until they graduate.

Andrés Malavé, dean of Nova Southeastern's College of Pharmacy, said that publicizing the university's probation by posting it on the Web site creates a stigma, making it more difficult to fix the very problems that the council has identified. The accreditor, he said, is saying probation "is not a negative action, but if anyone reads that we are on probation, they will not want to come here, faculty or students."

After July, Nova Southeastern will be spending about $500,000 more per year on faculty salaries, and all faculty members will be paid at least the national average for their positions, which Mr. Malavé believes will satisfy the accreditor's concern.

At the same time, the option to sue the pharmacy council is "still on the table," said Ken Ma, a spokesman for the university.

Frank B. Murray, an expert in accreditation and a professor in the School of Education at the University of Delaware, said the lawsuits highlight many of the classic tensions between universities and accreditors, such as differences over whether benchmarks should be measured broadly, which allows lots of flexibility but also creates the potential for misunderstanding, or be based on more-rigid standards that leave no room for institutions to design programs that meet their particular needs.

For example, colleges and accreditors can have completely different views of how to provide adequate staffing if such a standard is not clearly defined. A college may decide to hire professionals who work in specific fields to teach part time in order to give students more exposure to real-world experience. But accreditors may want to see more full-time faculty members and accuse the college of trying to operate on the cheap.

Hampton's legal complaint raises another issue. The university noted that four historically black universities that operate pharmaceutical programs have been placed on probation by the pharmacy council over the past three years. In addition to the programs at Hampton and Xavier, those at Florida A & M and Howard Universities have been on probation.

At the same time, the pharmacy council last year gave six-year accreditation terms to two pharmacy programs elsewhere that were partially compliant or noncompliant with two of the council's standards, Hampton's complaint states, and gave two-year accreditation to seven programs that had three or more deficiencies.

Hampton is not charging the council with racial discrimination, Ms. Jarrett said. But she added that she has concerns about the council's recent actions against minority-serving institutions.

"I think one needs only look at the evidence. I am troubled that there seems to be a pattern," she said.