united states district court middle …...in 2016, the committee asked coastal for additional...

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

FLORIDA COASTAL SCHOOL OF LAW, INC. and INFILAW CORPORATION, Plaintiffs, v. AMERICAN BAR ASSOCIATION; COUNCIL OF THE SECTION OF LEGAL EDUCATION AND ADMISSIONS TO THE BAR, AMERICAN BAR ASSOCIATION; and ACCREDITATION COMMITTEE OF THE SECTION OF LEGAL EDUCATION AND ADMISSION TO THE BAR, AMERICAN BAR ASSOCIATION, Defendants.

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

Civil Action No. 3:18-cv-621-J-320

DEFENDANTS’ MEMORANDUM OF LAW IN OPPOSITION TO

PLAINTIFFS’ MOTION FOR TEMPORARY RESTRAINING ORDER AND FOR PRELIMINARY INJUNCTION

Case 3:18-cv-00621-BJD-JBT Document 30 Filed 06/25/18 of 38 PageID 210

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TABLE OF CONTENTS

FACTUAL BACKGROUND ................................................................................................4 A. The ABA and Law School Accreditation ........................................................4 B. The Committee’s Determination of Coastal’s Non-Compliance ......................5 C. Coastal’s Appeal To The Council ................................................................. 12

ARGUMENT ...................................................................................................................... 13 I. Plaintiffs Have Not Established Likelihood of Success on the Merits. ...................... 13

A. The Committee’s March 2018 Decision Was Neither Arbitrary and Unreasonable Nor An Abuse of Discretion. .................................................. 15 1. The ABA Process is Ongoing and Judicial Review Is

Premature. ........................................................................................ 15 2. Coastal Has Already Received Fair Process. ..................................... 16

B. The Committee’s Decision Was Supported by Substantial Evidence............. 17 II. Coastal Has Not Demonstrated that it Will Suffer Irreparable Harm from the

ABA’s Decision or that an Injunction Would Prevent Such Harm. ........................... 23 A. Coastal Has Not Shown the Student Notice Will Cause Irreparable

Harm. ........................................................................................................... 24 B. Coastal Has Failed to Show That the Website Notice Causes

Irreparable Harm, and an Injunction Would Not Prevent the Harm Coastal Alleges. ........................................................................................... 26

C. Coastal Has Not Shown That Additional Fact Finding By the ABA Will Cause Irreparable Harm Or Warrants An Injunction. ............................ 28

III. An Injunction Would Harm the ABA, the Profession, and the Public. ...................... 29 CONCLUSION ................................................................................................................... 30


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TABLE OF AUTHORITIES

Page(s)

Cases

Ambrose v. New Eng. Ass’n of Sch. & Colls., 252 F.3d 488 (1st Cir. 2001) .............................................................................. 13, 18, 21

Ass’n of Private Sector Colls. & Univs. v. Duncan, 681 F.3d 427 (D.C. Cir. 2012) ....................................................................................... 25

Boyd v. Northern Trust Co., No. 8:15-cv-2928-T-33TBM, 2016 WL 640529 (M.D. Fla. Feb. 18, 2016) ...................... 5

Bristol Univ. v. Accrediting Council for Indep. Colls. & Sch., 691 F. App’x 737 (4th Cir. 2017) ............................................................................. 14, 21

Campbell Soup Co. v. ConAgra, Inc., 977 F.2d 86 (3d Cir. 1992) ............................................................................................. 27

Casey v. Fla. Coastal School of Law, Inc., 14-cv-1229-J-39PDB, 2015 WL 10818746 (M.D. Fla. Sep. 29, 2015) (Davis, J.) ...................................................................................................................... 30

CTIA-The Wireless Ass’n v. City of Berkeley, 854 F.3d 1105 (9th Cir. 2017) ........................................................................................ 25

Cuomo v. Dreamland Amusements, Inc., 2008 WL 4369270 (S.D.N.Y. Sept. 22, 2008) ................................................................ 29

Found. for Int. Design Educ. v. Savannah Coll. of Art & Design, 39 F. Supp. 2d 889 (W.D. Mich. 1998) .......................................................................... 22

Hiwassee Coll., Inc. v. S. Ass’n. of Colls. & Sch., Inc., No. 1:05-cv-0951, 2007 WL 433098 (N.D. Ga. Feb. 5, 2007) ................................. passim

Hiwassee Coll. Inc. v. S. Ass’n. of Colls. & Sch., Inc., 531 F.3d 1333 (11th Cir. 2008) ...................................................................................................... passim

Kazal v. Price, 2017 WL 6270086 (M.D. Fla. Dec. 8, 2017) .................................................................. 27

Lincoln Mem’l Univ. v. Am. Bar Ass’n, No. 3:11–CV–608, 2012 WL 137851 (E.D. Tenn. Jan. 18, 2012) ............................ passim


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Margate Sch. of Beauty, Inc. v. Nat’l Accrediting Comm’n of Cosmetology Arts & Scis., 2006 WL 8432528 (S.D. Fla. Mar. 10, 2006) ................................................................. 14

Marlboro Corp. v. Ass’n of Indep. Colls. & Sch., 416 F. Supp. 958 (D. Mass. 1976), aff’d, 556 F.2d 78 .................................................... 14

Marlboro Corp. v. Ass’n of Indep. Colls. & Sch., 556 F.2d 78 (1st Cir. 1977) ............................................................................................ 22

Mass. Sch. of Law at Andover, Inc. v. Am. Bar Ass’n, 937 F. Supp. 435 (E.D. Pa. 1996), aff’d, 107 F.3d 1026 (3d Cir. 1997) .......................... 27

McKeesport Hosp. v. Accreditation Council for Graduate Med. Educ., 24 F.3d 519 (3d Cir. 1994) ............................................................................................. 14

Med. Inst. of Minn. v. Nat’l Ass’n of Trade & Tech. Sch., 817 F.2d 1310 (8th Cir. 1987) .................................................................................. 18, 23

Mountain State Univ. v. Higher Learning Comm’n, 2017 WL 963043 (S.D. W. Va. Mar. 10, 2017) .............................................................. 22

Phila. Wireless Tech. Inst. v. Accrediting Comm’n of Career Sch. & Colls. of Tech., 1998 WL 744101 (E.D. Pa. Oct. 23, 1998)..................................................................... 14

Prof’l Massage Training Ctr. v. Accreditation All. of Career Sch. & Colls., 781 F.3d 161 (4th Cir. 2015) ................................................................................... passim

Romero v. Drummond Co., 480 F.3d 1234 (11th Cir. 2007) ........................................................................................ 5

S. Cal. Inst. of Law v. Biggers, 613 F. App’x 665 (9th Cir. 2015) ................................................................................... 25

Siegel v. LePore, 234 F.3d 1163 (11th Cir. 2000) (en banc) .......................................................... 23, 24, 28

Sierra Club v. U.S. Nuclear Regulatory Comm’n, 825 F.2d 1356 (9th Cir. 1987) ........................................................................................ 16

Sojourner-Douglass Coll. v. Middle States Ass’n of Colls. & Sch., 2015 WL 5091994 (D. Md. Aug. 27, 2015) ................................................................... 14

St. Andrews Presbyterian Coll. v. S. Ass’n of Colls. & Sch., Inc., 679 F. Supp. 2d 1320 (N.D. Ga. 2009) ........................................................................... 19


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Staver v. Am. Bar Ass’n, 169 F. Supp. 2d 1372 (M.D. Fla. 2001) ................................................................... passim

Thomas M. Cooley Law Sch. v. Am. Bar Ass’n, 2017 WL 6342629 (E.D. Mich. Dec. 12, 2017) ............................................ 14, 16, 27, 29

Thomas M. Cooley Law Sch. v. Am. Bar Ass’n, 376 F. Supp. 2d 758 (W.D. Mich. 2005) .................................................................. 21, 22

Thomas M. Cooley Law Sch. v. Am. Bar Ass’n, 459 F.3d 705 (6th Cir. 2006) ................................................................................... passim

Thunder Basin Coal Co. v. Reich, 510 U.S. 200 (1994) ...................................................................................................... 16

United States v. Ill. Cent. R. Co. 291 U.S. 457 (1934) ...................................................................................................... 16

Whittier Coll. v. Am. Bar Ass’n, 2007 WL 1624100 (C.D. Cal. May 7, 2007) ............................................................ 14, 30

Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (2008) .......................................................................................................... 13

Wreal, LLC v. Amazon.com, Inc., 840 F.3d 1244 (11th Cir. 2016) ...................................................................................... 13

Zavaletta v. Am. Bar Ass’n, 721 F. Supp. 96 (E.D. Va. 1989) .................................................................................... 27

Statutes

20 U.S.C. § 1001, et seq. ..................................................................................................... 14

Other Authorities

59 Fed. Reg. 22250 ............................................................................................................. 29

U.S. Const. Amend. I .................................................................................................... 24, 27


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The American Bar Association’s Council of the Section of Legal Education and

Admissions to the Bar (“Council”) is the entity approved by the U.S. Department of

Education to accredit law schools. To gain and maintain accreditation, law schools must

comply with standards issued by the Council (“Standards”) after public notice and comment.

The Standards are designed to ensure, among other things, that accredited schools provide an

education that equips their students to enter the legal profession, and admit and take tuition

from only students who appear capable of successfully completing their education and

passing the bar. By accrediting a school, the Council provides the public the Council’s

assurance that the school is in compliance with the Standards.

Florida Coastal School of Law (“Coastal” or “the School”) has been fully accredited

by the ABA since 2002. As recently as 2012, the first-time bar passage rate for Coastal’s

graduates was as high as 76%—just four points shy of the state average. Then things

changed. Bar passage rates plummeted: in July 2017, only 42.5% of Coastal’s first-time

takers passed the Florida bar, 26.3% below the state average. Meanwhile, entering students’

qualifications dropped substantially, and many more of those who entered were unable to

complete the academic program. Academic attrition for first-year students more than

doubled. Indeed, around one in four first-year students who arrived at Coastal in the 2015-

2017 academic years was gone by the end of their 1L year.

Coastal’s downward trajectory was noted by the Council’s Accreditation Committee

(“Committee,” and together with the Council and the American Bar Association, the

“ABA”), which monitors ABA-approved schools on behalf of the Council. In 2016, the

Committee asked Coastal for additional information to evaluate the school’s compliance with


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specified ABA Standards about which the Committee had concerns. In a series of

submissions, and in testimony at a hearing, Coastal recognized its problems—conceding

among other things that its bar pass rates were “too low.” But, it contended, due to recent

changes to admissions standards and academic offerings, “Florida Coastal today is a very

different school” from the one that had experienced those bad outcomes.

The Committee did not discredit Coastal’s submissions. Instead, the Committee found

in the decision Coastal now challenges that “recent changes to the admissions policy of the

Law School and its academic support programs have not been in place for a sufficient time to

provide evidence that they have been or will be effective in improving the Law School’s

outcomes.” (Ex. 2 at 605.) So the Committee appointed a fact-finder to obtain the

information needed to assess compliance, and directed the School to provide current and

prospective students with factually accurate information related to its compliance. In the

meantime, Coastal remains fully accredited.

And the ABA process continues. Coastal has filed a 135-page appeal of the

Committee decision that the Council will consider at its August 2018 meeting. The Council

may affirm, reverse, amend, or remand the Committee’s decision. Perhaps Coastal will

persuade the Council that it should now be found in compliance. Or perhaps the Council will

determine that no remedial actions need to be taken.

But Coastal does not want to wait to hear what the Council says. It wants the Court to

take the extraordinary step of injecting itself into the merits of a private accreditor’s first-

level finding of noncompliance with the accreditor’s standards—at the same time the Council

is evaluating Coastal’s appeal of the same finding. But, as Judge Presnell held in Staver v.


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American Bar Association, the pendency of the School’s appeal to the Council is alone

sufficient grounds to deny a preliminary injunction. 169 F. Supp. 2d 1372, 1377 (M.D. Fla.

2001); accord Lincoln Mem. Univ. v. Am. Bar Ass’n, No. 3:11–CV–608, 2012 WL 137851,

*5 (denying preliminary injunction when school had not completed ABA’s internal appeal

process) (E.D. Tenn. Jan. 18, 2012).

The relief sought by the School is all the more extraordinary given the “great

deference” that courts give to the decisions of accreditors. Thomas M. Cooley Law Sch. v.

Am. Bar Ass’n, 459 F.3d 705, 713 (6th Cir. 2006) (“Cooley I”). Rather than “substitute their

judgment for that of the ABA or its Council,” courts “focus on whether an accrediting agency

such as the ABA followed a fair procedure in reaching its conclusions.” Id. Here, the School

does not suggest the ABA’s procedure has been unfair, and no court has ever probed the

substance of an accreditation decision in the way Coastal’s motion contemplates.

Worse, the School’s request for extraordinary and drastic relief is not justified by an

imminent threat of serious injury. Coastal focuses primarily on a notice the Committee

directed it to send to its students. The School never previously complained, but now that it

has, the Council has stayed that requirement pending its disposition of Coastal’s internal

appeal. (The notice is, in any event, truthful information that the School may supplement

with truthful information of its own.) So the School is left with a challenge to a public notice

posted on both the ABA’s website and Coastal’s for months, and to a fact finder’s visit that

will occur after the Council’s decision, if at all.

Coastal cites no case in which any court has entered a preliminary injunction on

remotely similar facts. Coastal relies heavily on Edward Waters College, Inc. v. S. Ass’n of


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Colls. & Schs., Inc., No. 3:05-cv-180, 2005 WL 6218035 (M.D. Fla. Mar. 11, 2005), but that

case has no precedential value here. That school had lost its accreditation and all internal

appeals were concluded—meaning the school’s “entire future” was at stake. Id. at *6. The

school had received no notice that it was required to address the standards that the accreditor

later relied on in withdrawing accreditation. Id. at *10. After the parties settled their dispute,

the preliminary injunction order was vacated, and the Court instructed that it “shall not serve

as precedent in subsequent cases.” (Order of Dismissal with Prejudice, Dkt. 41, No. 3:05-cv-

180 (June 30, 2005).) Edward Waters does not support granting the relief Coastal seeks.

On the other hand, any preliminary injunction would disrupt the ABA’s ongoing

process and harm the public. If, as Coastal says, students will be influenced by reading the

notice Coastal is required to post, then the proposed injunction will take true information

from those who need it most. Coastal’s motion (“Mot.”) should be denied.

FACTUAL BACKGROUND

A. The ABA and Law School Accreditation

As a Department of Education–recognized accreditor, the Council adopts Standards

for Approval of Law Schools and Rules of Procedure that govern accreditation. (Ex. 1 at vii.)

The Standards require schools to provide programs that ensure that students they admit—

many of whom use non-dischargeable student loans to pay hundreds of thousands of dollars

in tuition and expenses—are likely to be able to complete their legal education and enter the

legal profession. To further that objective:

• Standard 301 requires a law school to “maintain a rigorous program of legal education” that prepares students “for admission to the bar and for effective, ethical, and responsible participation as members of the legal profession.” (Id. at 15.)


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• Standard 309(b) requires a law school to “provide academic support designed to afford students a reasonable opportunity to complete the program of legal education, graduate, and become members of the legal profession.” (Id. at 21.)

• Standard 501(b) requires a law school to “only admit applicants who appear capable

of satisfactorily completing its program of legal education and being admitted to the bar.” (Id. at 31.)

• Interpretation 501-1 states that among the factors considered in assessing

compliance with Standard 501 are (i) entering student credentials, (ii) academic attrition, (iii) bar passage rates, and (iv) effectiveness of the academic support program. (Id.)

B. The Committee’s Determination of Coastal’s Non-Compliance

In May 2016, the Committee informed Coastal that it needed additional information

to determine whether the School was in compliance with the Standards. In particular, the

Committee noted that the School had reported low “entering class credentials” for the prior

three years, with a “25th percentile LSAT score of 141 in 2015, 140 in 2014 and 141 in

2013.” (Ex. 21 at 1-2.) As a result, the Committee asked Coastal to demonstrate that it was in

compliance with Standards 301, 309(b), and 501(b). (Id.) In a December 2016 response,

Coastal represented that it had moved its 25th percentile LSAT score up to 143 in 2016, and

had just made or planned to make academic and curriculum changes. (Id. at 25.) But Coastal

acknowledged problems with its bar pass rate, stating it was “not . . . comfortable with” a

20% first-time bar pass rate for the 2016 class’s bottom quartile and believed “it is likely

1 Attached as Exhibit 2 is the complete Accreditation Record of the Committee’s review of Coastal that began in May 2016 through the April 2018 decision. While accreditation records are typically confidential under ABA Rule 49, Coastal submitted to the Court portions of the Record and broadly described the Record in its Motion and Complaint. When a school files a lawsuit challenging an accreditation decision, it must accept the disclosure of its otherwise-private information. See Romero v. Drummond Co., 480 F.3d 1234, 1245 (11th Cir. 2007) (“material filed in connection with pretrial motions that require judicial resolution of the merits is subject to the common-law right of access”); Boyd v. Northern Trust Company, No. 8:15-cv-2928-T-33TBM, 2016 WL 640529, at *2 (M.D. Fla. Feb. 18, 2016).


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Florida Coastal will fall below” the minimum first-time bar pass level ABA Standard

316(a)(2) requires. (Id. at 30-31.)

March 2017 Decision. Upon review of Coastal’s submission, the Committee issued a

decision concluding that it could not find Coastal in compliance. Among other things, the

Committee found that Coastal’s 25th-percentile LSAT was 141 in 2016, not 143 as Coastal

claimed. (Id. at 75.) It also found that Coastal’s academic attrition rate had increased from

5.1% in 2013 to 23.6% in 2015. (Id. at 76.) And, although Coastal predicted improving bar

pass rates for later class years, the Committee noted that the School had “experienced

declining first-time bar pass rates” from 2013 to 2015 and predicted the following first-time

bar pass rates for students in the 25th percentile by entering class year. (Id. at 75):

Based on this information, the Committee could not conclude that Coastal was in

compliance with Standards 301(a), 309(b), and 501(b), and Interpretation 501-1. It requested

that Coastal provide additional information on these topics. (Id. at 76-77.)

Coastal July 2017 Submission. Coastal’s response admitted that, for several years its

“data models over-predicted future student success; this resulted in the admission of students

with a lower probability of passing the bar exam on the first attempt than was actually

predicted.” (Id. at 84.) Coastal also acknowledged that “some of [its] academic policies and

procedures were supporting student under-performance,” and that its academic support

program “did not maximize learning outcomes for students.” (Id. at 81, 91.)


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Coastal also reported a significant decrease in its first-time bar pass rates in all states,

particularly when compared to the state average:

(Id. at 170.) Coastal further noted that “only 25% of the February 2017 first-time takers

passed the overall Florida Bar.” (Id. at 138.) None of the students in the bottom quartile by

GPA passed. (Id. at 139.)

The School asserted, however, that “Florida Coastal today is a very different school

from the Florida Coastal of 2013 through 2016.” (Id. at 81.) The School said, for example,

that it “expect[ed] to have at least a 145 bottom 25th percent quartile for calendar year 2017,”

and asserted that its academic support program would improve. (Id. at 81-82.) The effect of

these changes remained to be seen, as the School acknowledged the median LSAT of

students taking the bar would not change significantly until after the 2019 exam. (Id. at 139.)

September 2017 Decision. The Committee issued a 16-page decision concluding that

it could not find the School in compliance. The Committee first provided a detailed review of

the poor outcomes for students in the bottom 25th percentile who matriculated from 2013-

2016. (Id. at 171-77.)2 The Committee further found that, in February 2017, the School had

2 In 2013, of 139 students in the bottom quartile, 98 graduated and had a 15% first-time pass rate and a 15% repeat taker pass rate. (Id. at 171-72.) In 2014, of 115 students in the bottom quartile, 28 (24%) were academically dismissed, 63 graduated, 19 sat for the bar and 4 passed the bar by February 2017. (Id. at 172-74.) In 2015, of 103 students in the bottom quartile, 33 (32%) were academically dismissed, 4 graduated, and only


8

its lowest first-time bar pass rate of 24%, and repeat takers passed at a rate of 31%. (Id. at

170.) This was despite Coastal’s payment of a monthly stipend to 14 May 2016 graduates

who deferred taking the Florida bar; only one of that group passed. (Id. at 181-82.)

The Committee also addressed some of the School’s reported changes to its academic

support program. For example, the School had “tried . . . different methods” to improve the

effectiveness of its academic support, with mixed results. (See id. at 178.) It engaged BarBri

to provide an intensive student orientation program on “Lawyering Fundamentals,” which

had led to successful results elsewhere—but the School “did not experience the desired

results.” (Id. at 178-79.) Describing some of the School’s new efforts, the Committee found

that “[b]ecause these changes took place recently, their full impact will not be known until

the current classes sit for the bar examination.” (Id. at 177.)

The Committee requested additional information to demonstrate compliance with

Standards 301(a), 309(b), and 501(b), and Interpretation 501-1. (Id. at 183.)

Coastal’s November 2017 Submission. Describing its academic program, the

School reported that it had made various “changes.” (Id. at 193.) The School also reported

that “its academic attrition rates for the years 2015-16 and 2016-17 were unsatisfactory.” (Id.

at 242.) The School further noted, as it had previously, that it had increased the 25th-

percentile LSAT of its entering classes, and that it “expect[ed]” this change would in the

future cause its “first- and ultimate-pass rates for each class to improve.” (Id. at 235-36.)

18 (17%) were not on probation or academic alert. (Id. at 174-75.) In 2016, of 112 students in the bottom quartile, 37 (33%) were academically dismissed, and only 24 (21%) were not on probation or academic alert. (Id. at 176-77.)


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December 2017 Decision. The Committee issued another written decision finding the

School out of compliance. The Committee noted that the previously reported downward

trend in Coastal’s bar pass rate from 2012-2016 had continued: Coastal’s first-time pass rate

for the July 2017 Florida bar was only 42.53%, 26.31 percentage points below the Florida

state average of 68.84%. (Id. at 438-39.) The Committee noted the School’s improvement in

25th-percentile LSAT for newly admitted students, and information related to attrition and

academic support, but required that data be updated after the Fall semester. (Id. at 439-40.)

The Committee requested that Coastal provide updated 2017 information and preliminary

admissions data on the 2018 class, and that Coastal’s President and Dean attend the March

Committee hearing to address compliance with the Standards the Committee had identified.

(Id. at 437-41.)

March 2018 Hearing. Coastal submitted updated information in writing (id. at 442)

and through the in-person appearance of Coastal’s President, Dean, and Dean of Academic

Programs, along with counsel. (Id. at 460.)

Regarding attrition, the Dean acknowledged that Coastal had academically dismissed

30% (20 of the 66) of its first-year students who matriculated in Fall 2017, even though it had

raised that class’s 25th percentile LSAT. (Id. at 491.) Meanwhile, the academic programs

director was working to address “what she has noticed with the other faculty as deficiencies”

of the remaining 2017 1L students. (Id. at 496.) The Dean also said: “unfortunately, what we

have found is that there are no objective factors” to identify students at risk of attrition. (Id. at

489.) Coastal also could not reach statistically supported conclusions about its academic

support program’s effectiveness. (Id. at 484-85.)


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The Dean volunteered twice that the School’s bar passage rate was “too low.” (Id. at

464, 516.) And, while Coastal had increased its entering student LSAT scores in 2017, those

students would not be reflected in the School’s bar pass rates until at least July 2019. (Id. at

517.) The Dean projected a February 2018 bar pass rate of 63% but “to be conservative,”

noted it was “more likely to be in the low to mid 50s.” (Id. at 464.)

April 27, 2018 Decision. The Committee found that “recent changes to the

admissions policy of the Law School and its academic support programs have not been in

place for a sufficient time to provide evidence that they have been or will be effective in

improving the Law School’s outcomes,” citing Findings 8, 9-12. (Id. at 605.)

Bar Passage. The Committee found that Coastal had revised its July 2017 Florida

first-time pass rate: it was “actually only 43 percent, six points lower than originally

submitted,” and nine points below the School’s July 2016 Florida first-time pass rate of 52%.

(Id. at 605.) Coastal’s repeat taker pass rate was 24%, also below its July 2016 repeater rate

of 25%. (Id.) Additionally, the Committee noted with respect to the July 2017 Florida bar,

“[t]he Law School’s -26.31 percentage point difference from the state pass rate continu[ed]

the negative trend in the Law School’s bar exam passage outcomes.” (Id. at 606.)

Further, the Committee noted that while the School had satisfied Standard 316’s

minimum bar pass requirements from 2012-2015 “based on the Law School’s first-time pass

rate not being more than 15 percentage points below the weighted average state first-time

pass rate,” “[t]here was a steep drop in 2016, which continued in 2017,” and took Coastal’s

first-time pass rate to more than 22%-26% below the state average. (Id.)

February 2018 Bar. The Committee recognized the Dean had reported that 46


11

students had taken a bar exam for the first time in all states in February 2018. (Id.) The

Committee noted, and did not question, the School’s expected “bar pass rate on the February

2018 [Florida] bar conservatively in the low 50s and more optimistically in the 60s.” (Id.)

Although the School emphasizes in this Court that the passage rate for the 28 Coastal

students who took the Florida bar in February 2018 was actually 62.1% (e.g., Mot. at 13), the

actual results were not available (and thus not submitted) at the time of the Committee

hearing. But the Dean projected an improved pass rate in the 50s or 60s, and the results

matched the School’s projection, which the Committee accepted.

Attrition. The Committee noted that the Law School’s overall attrition rate had

increased from 10% in 2013, to 19% (2014), 23% (2015), 26% (2016), and then 30% (2017).

(Id. at 604.)

Conclusions. The Committee concluded “based on the information provided” that

Coastal’s “efforts and programmatic changes made have not sufficiently improved its

outcomes” (Ex. 2, at 608), and Coastal was not in compliance with Standards 301(a), 309(b),

and 501(b) and Interpretation 501-1. (Id.) It cited Findings 5-15, containing its findings and

comments on attrition, bar pass results, and academic support. (Id.)

The Committee further concluded that the issues of noncompliance “are substantial

and have been persistent. The School’s plans for bringing itself into compliance with the

Standards have not been demonstrated to be effective or reliable.” (Id.) The School was

directed to “develop a written reliable plan for bringing itself into compliance,” which is due

by October 1, 2018. The Committee directed the appointment of a fact finder “to review the

Law School’s admissions data and methodology and the rigor of the academic program” and


12

“provide information concerning” several topics. (Id. at 611-12.) A fact finder has not yet

been appointed, and a date will not be set for the visit until the Council decides Coastal’s

appeal in August. (Currier Decl. ¶ 97.) The Committee also directed the Managing Director

to state the Committee’s conclusions publicly along “with an explanation of the procedural

steps in further consideration of the matter,” and for Coastal to publish a statement of the

remedial action within five business days (May 4). (Ex. 2, at 609.) Coastal voluntarily

complied, and the notice it posted notes that the Committee’s decision “is subject to appeal

under Rules 15(b), 23, and 24 of the Rules of Procedure.” (Id. at 612.) The Committee also

required Coastal to provide its students with information about bar pass rates of prior

students by class quartile.

Finally, the Committee stated that it would “evaluate the Law School’s compliance

with Standards 301(a), 309(b), and 501(b) and Interpretation 501-1 based on the record, the

Law School’s reliable plan, the fact finder’s report,” and any response submitted by the

School (Id. at 610.)

C. Coastal’s Appeal To The Council

Under Rule 23, Coastal has a right to appeal the Committee’s April 2018 decision to

the Council. On May 29, 2018, Coastal appealed. It asked the Council to consider seven

categories of new evidence, including its February 2018 bar results, and challenged the three

remedial actions it has asked this Court to enjoin. (Currier Decl. ¶ 102.) The Council will

consider the appeal at its next meeting in August 2018. (Id. ¶ 103.) The Council has stayed

the July 2 notice requirement pending the Council’s decision on Coastal’s appeal. (Id. ¶ 105.)


13

ARGUMENT

A preliminary injunction is “an extraordinary remedy.” Winter v. Nat. Res. Def.

Council, Inc., 555 U.S. 7 (2008). To obtain such relief, Plaintiffs have the burden to

establish: (1) they are likely to succeed on the merits; (2) they are likely to suffer irreparable

harm in the absence of injunctive relief; (3) the balance of equities tips in their favor; and (4)

an injunction is in the public interest. Id. at 20; Wreal, LLC v. Amazon.com, Inc., 840 F.3d

1244, 1247 (11th Cir. 2016).

I. Plaintiffs Have Not Established Likelihood of Success on the Merits.

Recognizing “the patent undesirability of having courts attempt to assess the efficacy

of the operations of academic institutions,” courts are reluctant to intrude on private

accreditors’ application of their standards. Ambrose v. New Eng. Ass’n of Sch. & Colls., 252

F.3d 488, 497–99 (1st Cir. 2001). Accreditation standards “are not guides for the layman but

for professionals in the field of education.” Hiwassee Coll., Inc. v. S. Ass’n. of Colls. & Sch.,

Inc., No. 1:05-cv-0951, 2007 WL 433098, at *4 (N.D. Ga. Feb. 5, 2007) (quoting Cooley I,

459 F.3d at 713), aff’d 531 F.3d 1333 (11th Cir. 2008).

In the Eleventh Circuit, judicial review of private accreditors’ decisions is limited.

Courts may only review for violations of common law due process as described in Cooley I.

Hiwassee Coll. Inc. v. S. Ass’n. of Colls. & Sch., Inc., 531 F.3d 1333, 1335 (11th Cir. 2008).3

In Cooley I, the Sixth Circuit held the substantive rules of accreditors are entitled to “great

deference,” and courts should simply ask whether the accreditor’s actions were

3 The Fourth Circuit has also adopted the Cooley I standard. Prof’l Massage Training Ctr. v. Accreditation All. of Career Sch. & Colls., 781 F.3d 161, 172 (4th Cir. 2015).


14

fundamentally fair. 459 F.3d at 713. Thus, under Cooley I, courts may “review ‘only [1]

whether the decision of an accrediting agency such as [the ABA] is arbitrary and

unreasonable or an abuse of discretion and [2] whether the decision is based on substantial

evidence.’” Hiwassee Coll., 531 F.3d at 1335 n.4 (quoting Cooley I, 459 F.3d at 712).

Review is “extremely limited,” Margate Sch. of Beauty, Inc. v. Nat’l Accrediting Comm’n of

Cosmetology Arts & Scis., 2006 WL 8432528, at *6 (S.D. Fla. Mar. 10, 2006), and courts

reviewing accreditation actions routinely deny preliminary injunctions.4

Coastal repeatedly relies on the Higher Education Act and its implementing

regulations. (See Mot. at 6-7.) But it is “well-established” that schools have no “express nor

implied right of action to sue [accreditors] under the HEA.” Hiwassee Coll., 531 F.3d at

1335. Coastal may not use common law due process to do an end-run around this established

law: whether an accreditor’s action “meets the requirements of the Department of Education

is not a matter of due process.” See Hiwassee Coll., 2007 WL 433098, at *15.5

4 See, e.g., Margate Sch. of Beauty, 2006 WL 8432528, at *10; Staver v. Am. Bar Ass’n, 169 F. Supp. 2d 1372, 1377 (M.D. Fla. 2001); Thomas M. Cooley Law Sch. v. Am. Bar Ass’n, 2017 WL 6342629 (E.D. Mich. Dec. 12, 2017) (Cooley II); Lincoln Mem’l. Univ. Duncan Sch. of Law v. Am. Bar Ass’n, 2012 WL 137851 (Jan. 18, 2012 E.D. Tenn.); Sojourner-Douglass Coll. v. Middle States Ass’n of Colls. & Sch., 2015 WL 5091994, at *45 (D. Md. Aug. 27, 2015), aff’d 685 F. App’x 209 (Mem) (4th Cir. 2017); Whittier Coll. v. Am. Bar Ass’n, 2007 WL 1624100, at *10 (C.D. Cal. May 7, 2007); Phila. Wireless Tech. Inst. v. Accrediting Comm’n of Career Sch. & Colls. of Tech., 1998 WL 744101, at *12 (E.D. Pa. Oct. 23, 1998); Marlboro Corp. v. Ass’n of Indep. Colls. & Sch., 416 F. Supp. 958, 960 (D. Mass. 1976), aff’d, 556 F.2d 78; see also Bristol Univ. v. Accrediting Council for Indep. Colls. & Sch., 691 F. App’x 737 (4th Cir. 2017) (reversing and vacating preliminary injunction); McKeesport Hosp. v. Accreditation Council for Graduate Med. Educ., 24 F.3d 519, 526 (3d Cir. 1994) (same).

5 Coastal points to Edward Waters as declaring that the Higher Education Act sets the “contours” of a common law due process claim. (Mot. at 7.) In fact, the footnote cited described a party’s position that the contours of any rights under the Act would be “informed by the Secretary’s definition,’” 2005 WL 6218035, at *5, n.7, but the court for its part declined “to identify the precise source or sources of the College’s due process rights.” Id. The Eleventh Circuit subsequently made clear in Hiwassee College that there is no private right of action under the Act. Nor does Bristol University support plaintiffs. It noted an accreditor was “subject to” the Act, but it did not hold that the Act provides the standard. 691 F. App’x at 741. To the contrary, Bristol’s standard was identical to Cooley I’s: the Fourth Circuit “consider[s] only whether the decision of an accrediting agency . . . is


15

A. The Committee’s March 2018 Decision Was Neither Arbitrary and Unreasonable Nor An Abuse of Discretion.

Although the “focus” of judicial review under Cooley I is procedural, 459 F.3d at

713, Coastal says virtually nothing about the process it has received. Coastal’s procedural

claims fail because (1) ABA procedures are ongoing, making judicial review premature, and

(2) Coastal has already received fair and ample process.

1. The ABA Process is Ongoing and Judicial Review Is Premature.

The ABA’s review of Coastal is not over. The School has filed an appeal raising the

same challenges Coastal raises before this Court. The Council will hear that appeal in

August, and may affirm, amend, reverse, or remand. (Ex. 1, at 62 (Rule 25(b)).) Moreover, in

its decision, the Committee ordered additional process: the ABA will send a fact finder to the

campus to meet with Coastal representatives and make findings, and the School will have an

opportunity to respond and its compliance will be considered again.

In this way, Coastal’s case stands in stark contrast to the two cases on which Coastal

primarily relies. In Edward Waters, the accrediting agency had decided to withdraw the

school’s accreditation, and an internal appeal was concluded—so the school’s “entire future”

as an accredited institution turned on obtaining a preliminary injunction. 2005 WL 6218035,

at *6. In Florida College of Business v. Accrediting Council for Independent Colleges &

Schools, the school originally sought a preliminary injunction when (as in Coastal’s case),

the accreditor’s Review Board had yet to consider the school’s appeal, but the court denied

relief due to the school’s “failure to exhaust administrative remedies.” 954 F. Supp. 256, 258 arbitrary and unreasonable or an abuse of discretion and whether the decision is based on substantial evidence.” Id. (emphasis added) (internal quotation marks omitted).


16

(M.D. Fla. 1996). Only after “the administrative proceedings were concluded” and the

school’s accreditation had been finally resolved did the Court agree to weigh in. Id. With its

appeal in progress and a final decision yet to issue, judicial review of Coastal’s compliance is

premature. Cf. United States v. Ill. Cent. R. Co. 291 U.S. 457, 463 (1934) (requiring

“administrative process [to] be completed before the extraordinary powers of a court of

equity may be invoked.”). The Council should review the Committee’s decision first,

because Coastal’s compliance with ABA Standards “fall[s] squarely within [the Council’s]

expertise.” Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 214 (1994).

For just this reason, courts have repeatedly refused to intervene in ongoing ABA

processes. See Staver, 169 F. Supp. 2d at 1377 (denying preliminary injunction and finding

that because Barry University’s application was still pending before the Council, “the

Plaintiffs’ claims are not ripe”); Lincoln Mem’l, 2012 WL 137851, *5 (denying preliminary

injunction when school had not yet utilized the ABA’s internal appeal process); Cooley II,

2017 WL 6342629, at *4 (refusing to preliminarily enjoin finding of noncompliance because

it would “disrupt the agency’s accreditation processes”). Indeed, the Council’s decision could

make this Court’s review unnecessary. See Sierra Club v. U.S. Nuclear Regulatory Comm’n,

825 F.2d 1356, 1362 (9th Cir. 1987) (refusing to review when “pending administrative

proceedings or further agency action might render the case moot and judicial review

completely unnecessary”).

2. Coastal Has Already Received Fair Process.

The Committee has provided fair process to date. The School got “ample” notice: the

Committee first raised concerns about its compliance with specifically identified Standards


17

two years ago; Coastal has had four opportunities to submit information; Coastal has

appeared, represented by counsel, at a hearing; and Coastal has received four written

decisions. Cooley I, 459 F.3d at 715 (finding ABA process “ample” when a school “was

notified well in advance [of a hearing], afforded the opportunity to submit evidence to

support its case, and permitted to appear . . . with counsel present.”). Indeed, the School has

not challenged the notice it received or its opportunity to be heard.

In light of these facts, Coastal’s reliance on Edward Waters is misplaced. There, an

accreditor removed a school’s accreditation through a process rife with defects: for example,

the accreditor “had not given the College notice” that it would consider compliance with

standards relating to governance and leadership—and then withdrew accreditation on that

ground. 2005 WL 6218035 at *5, *10. “[S]o unique” were the facts in Edward Waters that

other courts have declared it to be “distinguishable” and “of limited value.” Hiwassee Coll.,

2007 WL 433098, at *5 n.4; Lincoln Mem’l, 2012 WL 137851, at *19 n.10. Here, Coastal was

notified of the Standards at issue and given ample opportunities in writing and at a hearing to

present relevant evidence. It will have additional opportunities to do so going forward.

B. The Committee’s Decision Was Supported by Substantial Evidence.

In the second part of the Cooley I review, the Court asks only whether an accreditor’s

decision is supported by substantial evidence. It should conclude that it is when, as here,

there is evidence that a “reasonable mind might accept . . . as adequate to support [the

agency’s] conclusion.” Prof’l Massage, 781 F.3d at 174 (citation omitted). The circuits agree

that courts may not intrude on the substance of accreditation decisions: ABA Standards are

entitled to “great deference,” and courts will not “conduct a de novo review” of the merits “or


18

substitute [their] judgment for that of the ABA.” Cooley I, 459 F.3d at 713.

The uncontested record facts provide abundant support for the Committee’s

conclusions. There is no dispute that, beginning in 2013, Coastal’s entering student

credentials declined significantly, followed by a “steep drop” in bar pass rates in 2016 and

2017. (Ex. 2 at 606.) Coastal’s attrition rate also rose—about one in four students left without

a degree in 2015, 2016, and fall 2017. (Id. at 606-07.) Although the 19 students entering in

spring 2018 had higher credentials, and Coastal correctly projected a higher bar pass rate in

February 2018, the Committee found “recent changes . . . ha[d] not been in place for a

sufficient time to provide evidence that they have been or will be effective in improving”

outcomes, and required more information to determine whether the School’s efforts are

sufficient to bring it into compliance. (Id. at 605.) Patently, a reasonable mind could reach

this conclusion.

However, Coastal asks this Court to reweigh the evidence, including by comparing

accredited institutions, to reach an independent judgment that Coastal’s attempts to improve

have brought it into compliance. “This Court [should] not substitute its judgment for that of

the ABA.” Staver, 169 F. Supp. 2d at 1379.

ABA Standards. Coastal complains that the ABA Standards at issue are “vague” and

“lack objective metrics for determining compliance.” (Mot. at 11.) Courts routinely rebuff

such attempts to force accreditors to use only “strict guidelines.” Med. Inst. of Minn. v. Nat’l

Ass’n of Trade & Tech. Sch., 817 F.2d 1310, 1314 (8th Cir. 1987); Ambrose, 252 F.3d at

494–95 (“[F]lexibility in fashioning accrediting standards long has been recognized as a

virtue.”). In Hiwassee College, the district court rejected the argument that standards


19

requiring “financial stability, and adequate physical resources” were invalid for lack of

“definite requirements.” 2007 WL 433098 at *5 n.5 (quotation omitted). The Eleventh

Circuit affirmed. Hiwassee Coll., 531 F.3d at 1335; see also St. Andrews Presbyterian Coll.

v. S. Ass’n of Colls. & Sch., Inc., 679 F. Supp. 2d 1320, 1329 (N.D. Ga. 2009) (rejecting

argument that a standard was too “vague” for omitting “set standards or benchmarks”).

Indeed, the Fourth Circuit recently reversed a decision that an accreditor’s standard was too

“general[ ]” and did not provide “practical guidance,” stating “[i]t was not necessary, or

indeed practical, for the Standards to outline more specific numerical goals.” Prof’l Massage,

781 F.3d at 174. Coastal cites no authority invalidating any accreditation standard as too

flexible.

The School can hardly argue that it lacked notice of what information the Committee

required to show compliance with the Standards. Each of the four Committee decisions

identified the same issues: bar pass rates, admissions criteria (and specifically LSAT scores),

academic support, and academic attrition. See p. 5-12, supra. These are, unsurprisingly, the

issues the School addressed in its submissions to the Committee, see id., and now in this

Court. (Mot. at 15-17.) There is no mystery here.

Reweighing Evidence. The School maintains the uncontested facts do not support the

Committee’s conclusions. (Mot. at 14–17.) But Coastal’s request that the Court reweigh the

evidence is outside the Court’s purview. See Prof’l Massage, 781 F.3d at 174 (courts may not

“re-weigh conflicting evidence, make credibility determinations, or substitute [their]

judgment for that of the agency”) (quotation and citation omitted); Hiwassee Coll., 2007 WL

433098, at *5 n.6 (refusing to consider school’s “disagree[ment] with [the accreditor’s] view


20

of the data”).

Specifically, Coastal says the Committee unreasonably “failed to account for”

February 2018 Florida bar results. (Mot. at 12–13.) It is undisputed, however, that the

February 2018 bar results were not available—and thus were not submitted—to the

Committee prior to its March 2018 hearing. (Id. at 13.) A school may offer new evidence to

supplement the record on appeal to the Council (Rule 24(d), Ex. 1 at 62), and Coastal has

submitted its February 2018 bar results to the Council under this Rule.

Regardless, Coastal ignores that the Committee adopted Coastal’s projected bar pass

rate for February 2018, explicitly citing that projection in its decision. (Ex. 2 at 606.) There is

no reason to believe that considering Coastal’s actual pass rate (62.1%), which mirrored the

projected range, would have changed the decision. See Cooley I, 459 F.3d at 716 (even error

cannot constitute a common law due process violation if it “causes no prejudice”) (quotation

omitted). Coastal contends that its pass rate for the 28 students who took the Florida bar for

the first time in February 2018 should overcome its lengthy and poor historical performance

in this and other areas like attrition and avert a noncompliance finding. But the Committee

considered that argument, and it “chooses [what weight] to give” the evidence. Hiwassee

Coll., 2007 WL 433098, at *5. Unlike in Florida College of Business, the Committee did not

rely on evidence that was wrong as a matter of fact. 954 F. Supp. at 258, 259–60. It accepted

an accurate projection and found it insufficient to overcome other evidence.

The School also argues that because it complied with a different Standard requiring

minimum bar pass rates—Standard 316—the Committee could not permissibly conclude that

it had failed to comply with other Standards that consider bar pass rates. (Mot. at 15.) But the


21

Committee can reasonably conclude that a steep decline in bar pass rates, as Coastal

experienced, raises concerns about the school’s admissions and educational program, even if

the school has not sunk below the floor in Standard 316. The accreditor’s job is to assess

whether—when all relevant factors are considered—the school has demonstrated that it

warrants approval. See Ambrose, 252 F.3d at 494 (an accreditor may “apply[ ] the standards

in a way that lets an institution’s strengths compensate for its weaknesses, thus allowing the

standards as a whole to be satisfied by the overall assessment of the institution as a whole”).

Adequate Explanation. If there is a “rational connection” between the evidence and

an accreditor’s conclusions, there is no common law due process violation. Thomas M.

Cooley Law Sch. v. Am. Bar Ass’n, 376 F. Supp. 2d 758, 770 (W.D. Mich. 2005). Against

this backdrop, Coastal cites a series of APA cases suggesting that courts should review the

adequacy of a federal agency’s written decisions. (See Mot. at 12.) But Coastal fails to

identify a single case holding an accreditor’s explanation legally inadequate, and with good

reason: judicial review of accreditors’ decisions is more deferential than review under the

APA. Cooley I, 459 F.3d at 713.

An accreditor affords “ample process” by providing a “written report outlining its

findings and recommendations.” Id. at 715. Courts reject arguments that an accreditor’s

“failure to articulate its reasoning confounds meaningful judicial review.” Cooley, 376 F.

Supp. 2d at 769. For example, the Fourth Circuit recently reversed a district court that found

fault with an accreditor’s explanation much less robust than the ABA’s. See Bristol Univ.,

691 F. App’x at 741–42 (noting that the challenged decision letter “identified” “24

unresolved violations” without elaboration); see Letter, 16-cv-00307, Dkt. 18-5 (E.D. Va.


22

Mar. 25, 2016) (Ex. 3). In the words of the Fourth Circuit: “[n]othing more was required to

satisfy due process.” Bristol Univ., 691 F. App’x at 742.

In any event, the challenged decision is more than adequate: the Committee provided

a “detailed written report outlining its findings” and conclusions, citing the relevant

Standards and Rules and noting which findings supported which conclusions. Cooley I, 459

F.3d at 715 (Ex. 2.) There is also a rational connection between the findings—including a

history of “unacceptably low” bar pass rates, increasing attrition, and unproven academic

support programs—and the Committee’s conclusions that the School was substantially and

persistently out of compliance. See Cooley, 376 F. Supp. 2d at 770 (“Because a rational

connection between the facts found and choice made [could] reasonably be discerned, the

decision must be upheld.”).

Disparate Treatment. Instead of focusing on its own performance, Coastal argues that

other schools—specifically Thomas M. Cooley Law School (“Cooley”)—are worse and yet

deemed compliant. For decades, courts have rejected attempts to challenge accreditation

actions by pointing to other schools. First, “delving into the comparators and their treatment

. . . reduces the court’s role to conducting ‘de novo review of [a defendant’s] evaluative

decisions.’ This is impermissible.” Mountain State Univ. v. Higher Learning Comm’n, 2017

WL 963043, at *14 (S.D. W. Va. Mar. 10, 2017) (quoting Transp. Careers v. Nat’l Home

Study Council, 646 F. Supp. 1474, 1485–86 (N.D. Ind. 1986)); see also Marlboro Corp. v.

Ass’n of Indep. Colls. & Sch., 556 F.2d 78, 80 n. 2 (1st Cir. 1977); Found. for Int. Design

Educ. v. Savannah Coll. of Art & Design, 39 F. Supp. 2d 889, 894 (W.D. Mich. 1998).

Second, accreditation is not a one-size-fits-all endeavor. Accreditors exercise


23

discretion in applying flexible standards to “varied institutions ranging over many different

fields and disciplines.” Prof’l Massage, 781 F.3d at 174. As Coastal admitted in a recent

filing, “no single law school’s situation is identical to that of any other.” Opp., MDL No.

2855 (Dkt. 11) (June 22, 2018). The School cites one case that considered but rejected a

claim of inconsistent treatment (Mot. at 18), holding that the school would need to show any

comparator school was “similar . . . in all other relevant respects.” Med. Inst. of Minn., 817

F.2d at 1314 (emphasis added). The plaintiff’s limited comparison—another school “was in

worse financial condition” and “had similar placement statistics”—“ignore[d] all of [the

schools’] other attributes.” Id. This illustrates the problem. Courts are ill-prepared to evaluate

every relevant consideration for every accredited school.6

II. Coastal Has Not Demonstrated that it Will Suffer Irreparable Harm from the ABA’s Decision or that an Injunction Would Prevent Such Harm.

Even if Coastal could establish a likelihood of success, injunctive relief would not be

proper because the School has not shown it will suffer irreparable harm absent an injunction.

See Siegel v. LePore, 234 F.3d 1163, 1176 (11th Cir. 2000) (en banc). The School argues it is

entitled to a preliminary injunction to avoid (a) potential adverse reactions from current

students to factually accurate notices regarding bar pass rates, (b) potential adverse reactions

from current and prospective students to a factually accurate disclosure of the Committee’s 6 Coastal’s argument makes even less sense than the argument rejected in Medical Institute of Minnesota. Coastal asserts that Cooley’s case stands for the proposition that a school must be found in compliance when it takes “concrete steps” toward improvement, and declares that “Coastal’s changes clearly satisfy the ‘concrete steps’ test applied by the ABA in Cooley’s case.” (Mot. at 18-19.) Coastal ignores that it started much further back on key criteria than Cooley did—with, for example, significantly lower first-time bar pass rates in Florida than Cooley had in Michigan (66% in 2016 for Cooley compared to 42% for Coastal) and much higher non-transfer 1L attrition rates (8.9% in 2016-2017 for Cooley compared to 25.25% for Coastal). (Compare Ex. 6, Cooley Feb. 1, 2018 Resp. at 33, 35, with Ex. 2 at 242, 251, 605.) Thus, there is no possible argument that the schools were “similar in all other relevant respects.” Med. Inst. of Minnesota, 817 F.2d at 1314.


24

decision that has been posted on Coastal’s website for almost two months, and (c) the future

appointment of a fact finder. None of these purported harms can justify extraordinary relief.

A. Coastal Has Not Shown the Student Notice Will Cause Irreparable Harm.

Coastal cannot show imminent or irreparable injury from the student notice

requirement. The Committee instructed the School to communicate to students the “Florida

and Georgia first-time bar examination passage rates, by class quartiles, for Law School

graduates sitting for the Florida and Georgia bar examinations over the six administrations

preceding the semester,” and “the class quartile in which the student then falls.” (Ex. 2 at

610.) The decision initially required Coastal to provide this information “within 30 days of

the completion of the assignment and distribution of semester grades.” (Id.) Based on the law

school’s calendar, this implied a deadline of July 2, 2018—and Coastal’s claim to need the

Court’s urgent intervention is pegged to this date. (See, e.g., Mot. at 1.)

In fact, there is no urgency. Coastal never asked the ABA to stay the student-notice

requirement pending its appeal. (Currier Decl. ¶ 104.) After Coastal filed its motion for a

TRO on June 15, 2018, the Council approved a stay of the student-notice requirement to

facilitate orderly review of Coastal’s appeal. (Id. ¶ 105.) Thus, Coastal is not currently under

any requirement to provide the notice—and any such requirement will take effect only if the

Committee’s decision is affirmed. Given the stay, Coastal has no claim of harm that is

“actual and imminent.” Siegel, 234 F.3d at 1176.

In fact, Coastal cannot establish cognizable harm of any sort. Coastal argues that

requirements that it provide notice “implicate[] the same concerns, especially as to

irreparable injury, as those underlying the First Amendment’s general prohibition against the


25

government’s compulsion of speech from private parties.” (Mot. at 20.) But the First

Amendment does not apply to the ABA as a private accreditor, Hiwassee, 531 F.3d at 1335,

and it is commonplace—and not “generally prohibited”—for an accreditor to require an

accredited school to provide accurate information such as bar pass rates to current and

prospective students. See, e.g., S. Cal. Inst. of Law v. Biggers, 613 F. App’x 665, 666 (9th

Cir. 2015) (accreditor has “legitimate interest in ensuring that prospective law students do not

overestimate their prospects of passing the bar after attending an accredited law school”).

The School does not dispute the factual accuracy of the notice the Committee has

called for, but contends that it is “misleading” because the School’s current students are not

similarly situated to former students. (Mot. at 21.) But if the information at issue is factually

accurate, any “harm” that may flow from the subjective interpretation of the information by

its audience is not cognizable. See S. Cal. Inst. of Law, 613 F. App’x at 666 (“[The school’s]

concern regarding the implications a reader may take from bar passage rates does not alter

our inquiry [that the factual disclosure was proper].”); cf. also CTIA-The Wireless Ass’n v.

City of Berkeley, 854 F.3d 1105, 1117–18 (9th Cir. 2017) (“subjective impact on the

audience” is not relevant to compelled speech analysis where, as here, the required disclosure

is factually accurate).7

In any event, Coastal’s speculation about how students may use the bar passage

information does not justify the extraordinary relief it seeks. Coastal asserts that students will

7 For this reason, the notice also is not “out of step” with regulations prohibiting Coastal from making a “misrepresentation” to students. Mot. at 22, citing 34 C.F.R. § 668.71. See Ass’n of Private Sector Colls. & Univs. v. Duncan, 681 F.3d 427, 452–53 (D.C. Cir. 2012).


26

infer from this information that they should drop out, transfer, or become less engaged. (Mot.

at 22–23.) This unsupported hypothesizing is too speculative to constitute irreparable harm.

See Lincoln Mem’l, 2012 WL 137851, at *18 (denying injunction when potential harm that

students would transfer or choose to attend another school was unsupported and speculative).

The speculative nature of the alleged harm to Coastal is especially pronounced

because the School is free to supplement the bar passage communication with clarifying (but

not misleading) information. Coastal is free to note, for example, that current students have

higher LSAT scores than their predecessors, alleviating any concern with supposed “apples-

to-oranges” comparisons. (Mot. at 22.)

B. Coastal Has Failed to Show That the Website Notice Causes Irreparable Harm, and an Injunction Would Not Prevent the Harm Coastal Alleges.

Coastal also argues that it will be irreparably harmed if it is not relieved of the

obligation to inform the public of its compliance status in a notice on its website. The notice,

which has been on the School’s website since at least May 4 (Mot. at 9), states that “the

Committee concluded that the Law School . . . remains in non-compliance with Standards

301(a), 309(b), and 501(b) and Interpretation 501-1, and has directed the Law School to take

the following specific remedial actions.” (DeVito Decl. Ex. 3 at 1.) Again, the notice’s

accuracy is undisputed—the Committee has reached the stated conclusion—but the School

argues that it “harms Coastal’s ability to attract and retain higher credentialed students,”

“deters prospective students from applying and matriculating,” and “encourages current

students to transfer or end their law studies.” (Mot. at 20.) These assertions fall flat.

Not only has the notice been on the School’s website for almost two months, but an


27

identical notice has been on the ABA’s website since the decision was entered.8 That notice

will remain even if the School’s notice is removed. In addition, legal news outlets have

reported the information in the notice, and Coastal and InfiLaw have actively publicized this

lawsuit. See Ex. 5 (press release by Coastal counsel titled “Florida Coastal School of Law

Files Suit Against American Bar Association”); Ex. 6, “Florida Coastal School of Law Sues

ABA, Alleges Failure to Provide Due Process,” Jacksonville Daily Record (May 10, 2018),

available at https://tinyurl.com/y97h6sc4 (last visited June 18, 2018). Because Coastal’s

compliance status is already public, Coastal cannot demonstrate irreparable harm from its

notice. See Campbell Soup Co. v. ConAgra, Inc., 977 F.2d 86, 92 (3d Cir. 1992) (“A threat of

disclosure may establish immediate irreparable harm but ‘further’ disclosure of something

already revealed cannot.”); Kazal v. Price, 2017 WL 6270086, at *3 (M.D. Fla. Dec. 8, 2017)

(no irreparable harm where the information “remains easily accessible elsewhere on the

Internet”). Indeed, courts have declined to enjoin publication of notices on ABA

accreditation decisions for this very reason. See Cooley II, 2017 WL 6342629, at *4 (“Now

that word is out, Cooley’s alleged reputational injury may not be remedied by the relief it

seeks.”); Lincoln Mem’l, 2012 WL 137851, at *19 (same).

Coastal’s claim of irreparable harm also is undermined by its website’s presentation

of the notice. The notice is not on the website’s front page, but linked from a separate page

listing “ABA Required Disclosures.” The notice states that the decision is “subject to

8 See https://tinyurl.com/ya48o8wt. Coastal has not sought an order requiring the ABA to remove the notice from its website, and no such order could be available in light of the ABA’s First Amendment right to publish its views about law school quality. See, e.g., Mass. Sch. of Law at Andover, Inc. v. Am. Bar Ass’n, 937 F. Supp. 435, 442–44 (E.D. Pa. 1996), aff’d, 107 F.3d 1026 (3d Cir. 1997); Zavaletta v. Am. Bar Ass’n, 721 F. Supp. 96, 98 (E.D. Va. 1989).


28

appeal.” (See DeVito Decl., Ex. 3 at 2.) Thus, as in Lincoln Memorial, anyone who reads the

notice knows the decision is “not yet final.” 2012 WL 137851, at *19. Moreover, as noted,

Coastal is free to tell prospective and current students that, for example, it disagrees with the

decision, intends to appeal, and remains an ABA-accredited school. (Currier Decl. ¶ 98.)

In sum, the only possible “harm” from the website notice is that there might be a

student who learns of the school’s compliance status from the website (and not the other

public sources containing the same information), who might be influenced to choose another

school or work less hard at Coastal—in spite of whatever clarifying information Coastal

provides. This speculative harm cannot justify the drastic and extraordinary remedy of a

preliminary injunction. See Siegel, 234 F.3d at 1176; Lincoln Mem’l, 2012 WL 137851, at 18.

C. Coastal Has Not Shown That Additional Fact Finding By the ABA Will Cause Irreparable Harm Or Warrants An Injunction.

Coastal also claims irreparable harm from the appointment of a fact-finder to provide

the ABA with information relevant to Coastal’s compliance with ABA Standards. Coastal

concedes that additional fact finding “is not objectionable in light of the issues before the

ABA.” (Mot. at 23.) But it argues that this particular appointment is problematic because it

involves inquiry into “irrelevant financial matters.” (Id.) Those “irrelevant financial matters”

include the “rate of default on loans taken by the Law School’s graduates,” “the employment

status of the graduates,” and “[t]he finances of the Law School.” (Id.) Citing only the Dean’s

declaration, Coastal asserts that the fact finder is “scheduled to visit the law school in Fall

2018.” Id. (citing DeVito Decl. ¶ 18).


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There are two problems with this argument.9 First, additional fact finding is not

irreparable harm. Gathering more information to use in making decisions about Coastal’s

compliance status enhances—rather than detracts from—the process Coastal receives. Cf.

Cuomo v. Dreamland Amusements, Inc., 2008 WL 4369270, at *12 (S.D.N.Y. Sept. 22,

2008) (denying request to enjoin ongoing investigation because the costs of participating in

an investigation do not constitute irreparable injury). Coastal complains about the relevance

of this additional fact finding, but fails to explain why additional information would cause

irreparable injury. (See Mot. at 23–24.)

Second, Coastal’s assertion that the fact finder’s visit has been scheduled for Fall

2018 is not supported. No fact finder has been appointed and no date has been set for a visit.

(Currier Decl. ¶¶ 94-6.) None will be until the Council has decided Coastal’s appeal in

August, including the appeal of the decision to appoint a fact finder. (Id. at ¶¶ 96-100) Thus,

any harm allegedly caused by additional fact finding is not “actual and imminent.”

III. An Injunction Would Harm the ABA, the Profession, and the Public.

Coastal asks for an injunction for the purpose of withholding two pieces of relevant

information from consumers of legal education. But the current and prospective students of

Coastal, who are deciding whether to invest thousands of dollars in tuition, have a strong

interest in receiving complete and accurate information about the School. See Cooley, 2017

WL 6342629 at *4; Lincoln Mem’l, 2012 WL 137851 at *20.

9 The School’s argument that the factfinder cannot inquire into these issues is also wrong. The School cites Rule 12(b) (Mot. at 23-24), but that Rule does not limit the information the Committee can request via fact-finder. Rather, it limits the actions the Committee can take upon receipt of information—a question even less imminent than the appointment of the fact-finder. The School is also wrong to argue that its tuition and its students’ rate of default are irrelevant, as the Committee accredits schools “that provide students with quality education or training worth the time, energy, and money they invest in it.” 59 Fed. Reg. 22250.


30

Against this interest, Coastal argues that it disagrees with the merits of the ABA’s

decision, and argues that the past performance of its graduates may not tell the whole story

because the qualifications of its classes have recently improved—and therefore students

should not be exposed to the facts about the School’s recent history. But “consumers of a

legal education . . . are college graduates and ‘[b]y anyone’s definition a sophisticated subset

of education consumers, capable of sifting through data and weighing alternatives.’” Casey v.

Fla. Coastal School of Law, Inc., 14-cv-1229-J-39PDB, 2015 WL 10818746, at *3 (M.D.

Fla. Sep. 29, 2015) (Davis, J.) (citation omitted). No school agrees with the unfavorable

decisions of its accreditor, and schools, like Coastal, are free to express that disagreement

and provide additional context. But an injunction takes relevant information from the people

who need it most. See Lincoln Mem’l, 2012 WL 137851, at *20 (noting the strong public

interest “in having those who look to the Section’s evaluation of legal education receive

prompt and accurate information”); Whittier Coll., 2007 WL 1624100, at *10 (“the integrity

of the ABA’s accreditation process” and “the interests of prospective students in being

informed of the history of poor first-time bar passage rate[s] of [the law school’s] graduates

[weigh] against the issuance of the injunctive relief [the law school] seeks”).

Indeed, the fundamental premise of Coastal’s request for relief is that these

concededly factually accurate notices may influence some current or prospective students not

to spend their money at Coastal. (Mot. at 20.) If Coastal is correct, then it is all the more

imperative that such students have access to the truth.

CONCLUSION

The ABA respectfully requests that this Court deny the Plaintiffs’ Motion.


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Dated: June 25, 2018

Respectfully submitted, /s/ Anne E. Rea Kevin E. Hyde FL Bar No. #0768235 [email protected] Emily Friend O'Leary FL Bar No. #73042 [email protected] FOLEY & LARDNER LLP One Independent Drive, Suite 1300 Jacksonville, FL 32202-5017 Telephone: 904.359.2000 Facsimile: 904-359-8700

and James A. McKee FL Bar No. 0638218 [email protected] 106 East College Avenue, Suite 900 Tallahassee, FL 32301 Telephone: 850-222-6100 Facsimile: 850-561-6475 Anne E. Rea (IL 6188384)* [email protected] Tacy F. Flint (IL 6284806)* [email protected] SIDLEY AUSTIN LLP One South Dearborn Chicago, IL 60603 Telephone: (312) 853-7000 Facsimile: (312) 853-7036 *Admitted pro hac vice Attorneys For Defendant American Bar Association; Council Of The Section Of Legal Education And Admissions To The


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Bar, American Bar Association; And Accreditation Committee Of The Section Of Legal Education And Admissions To The Bar, American Bar Association


CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 25th day of June, 2018, I electronically filed the

foregoing document with the Clerk of Court by using the CM/ECF system, which will send

notice of electronic filing to all participants.

/s/ Anne E. Rea Attorney


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