Home Legal and Regulatory Issues ACICS Recognition Review Continues to be a Dynamic Process
ACICS Recognition Review Continues to be a Dynamic Process

ACICS Recognition Review Continues to be a Dynamic Process


By Jay Vaughan, Partner and Chair of Education Practice Group, and Naomi Harralson May, Associate, Cooley LLP

The Accrediting Council for Independent Colleges and Schools (“ACICS”) and its remaining member schools received an unexpected reprieve in late March, only a few months away from an impending statutory deadline for schools to obtain accreditation from an alternative agency in order to maintain eligibility to participate in federal student aid programs and, in some cases, authorization to operate or grant degrees in their states.

District court decision

On March 23, 2018, Judge Reggie B. Walton of the United States District Court for the District of Columbia issued a decision concluding that that the former Secretary of Education erred procedurally in not considering more than 36,000 pages of relevant materials before denying ACICS’ petition for continued federal recognition before the U.S. Department of Education (“ED”) in December 2016. Judge Walton’s opinion stated definitively:

[U]nder the circumstances presented here – where the Department solicited the data, represented that it was “important” to the recognition process, and then refused to consider it with practically no explanation – and given the sheer volume of the data and the fact that the defendants do not dispute its relevance, the Court does not have difficulty concluding that [ED] acted arbitrarily and capriciously by failing to consider [relevant material submitted by ACICS].

Accrediting Council for Independent Colleges & Schools v. DeVos, No. CV 16-2448 (RBW), 2018 WL 1461958, at *41 (D.D.C. Mar. 23, 2018). Refraining from making any substantive determination regarding the merits of ACICS’s compliance with federal requirements, Judge Walton not only remanded the recognition determination to the Secretary, but also opened the door for the Secretary to determine how the reconsideration process would proceed. Specifically, the opinion made clear that the Secretary could, but did not have to, return ACICS’s petition to Department staff for review rather than making the decision herself de novo and also that she could take into account evidence of ACICS’s compliance subsequent to the meeting of the National Advisory Committee on Institutional Quality and Integrity (“NACIQI”) in June 2016.1 See id. at *64-65.

Secretary’s reinstatement order

Accordingly, a week and a half after Judge Walton’s order, Secretary Betsy DeVos issued a decision to reinstate ACICS’s recognition retroactively to December 2016 and reopen consideration of ACICS’s January 2016 petition for recognition. See Accrediting Council for Independent Colleges and Schools, Docket No. 16-44-O (U.S. Dep’t of Ed., Order of the Secretary, April 3, 2018). In addition to confirming that ED’s consideration of ACICS’s petition would include review of the previously ignored 36,000 pages of information that the agency submitted in support of its compliance (referred to as the “Part II Submission”), the Secretary indicated that ACICS would have the ability to provide a written submission by May 30, 2018 and this supplemental filing could include additional evidence relevant to its compliance with the recognition criteria.

Under the procedures laid out in the Order, ACICS’s original petition, the Part II Submission, and the supplementary written submission will not be returned to Department staff for review or submitted to NACIQI for consideration. Rather, an individual specified by the Secretary and referred to as the Senior Department Official (“SDO”) will be responsible for making a determination regarding ACICS’s continued status. Unless ACICS appeals the SDO’s decision to the Secretary, the SDO’s decision is final. Although ACICS had submitted a new petition for recognition in December 2017, the Secretary’s order expressly removed consideration of this separate petition from the May 2018 NACIQI agenda.

The Secretary’s Order further previewed potential outcomes of the review. If ACICS convinces the SDO that it meets all regulatory criteria, its recognition status will continue to 2021.

If ACICS is not persuasive, ACICS still might be allowed an additional 12 months from the time of the decision to demonstrate compliance.

In either case, ACICS will remain a federally recognized accreditor until the SDO (or the Secretary, if the agency appeals the SDO’s determination) reaches a decision on ACICS’s January 2016 petition.

Title IV impact on ACICS-accredited schools

At the time of the District Court decision and the Secretary’s reinstatement order, ACICS accredited schools that had not yet achieved accreditation from an alternative federally recognized agency were running out of options for continued participation in the federal student aid programs. Pursuant to the Higher Education Act, once the Secretary withdraws the recognition of an institution’s accrediting agency, the Secretary has discretion to grant the institution provisional certification to participate in federal student aid programs for a period of time no longer than 18 months from the date of the final decision to withdraw recognition. See 20 U.S.C. § 1099c(h); see also 34 C.F.R. § 668.13(c). Attempts to extend the 18 month period by Congressional action were unsuccessful, including removal of a provision in the omnibus federal spending bill in March 2018.

Under the Secretary’s order, however, schools are no longer subject to the June 12, 2018 deadline to secure accreditation from a different federally recognized agency in order to retain Title IV eligibility. ACICS schools previously required to sign Provisional Program Participation Agreements (“PPPAs”), including the binding addenda, to retain Title IV eligibility during the transition period have been receiving letters from ED that provide guidance regarding the current status of these agreements. According to this correspondence, schools no longer need to comply with the addenda conditions (including those previously triggered by failure to complete a site visit with a new accrediting agency by February 12, 2018), regardless of their certification status prior to ACICS’ loss of recognition. For a school that was fully certified at the time of the December 2016 withdrawal of recognition and whose Program Participation Agreement (“PPA”) would not have expired between December 12, 2016 and June 12, 2016, ED is stating that the school is “now in fully certified status until the original period of certification expires, so long as the institution is currently accredited by ACICS or another recognized accreditor.”

It remains to be seen how ED intends to document this fully certified status, whether by issuing a new PPA or rescinding the PPPA, but the certification status nonetheless reverts to the period prior to the action.

With respect to a school previously subject to a PPA (including month-to-month) that would have expired between December 12, 2016 and June 12, 2018, regardless of whether the institution was fully or provisionally certified, ED is stating that it must “submit a new application for certification within 30 days of the date of this letter, including demonstrating accreditation by ACICS or another recognized accreditor.” It is unclear whether ED expects that schools that withdrew from ACICS accreditation to focus on seeking approval from another agency must actually achieve accreditation by the May 3 filing deadline, but ED has indicated that this and other uncertainties related to schools’ certification status will be addressed in the coming weeks, including the status of schools with PPPAs at the time of ACICS’ withdrawal of recognition that would not have expired between December 12, 2016 and June 12, 2018.

Reactions of other agencies

Although Judge Walton’s decision and the Secretary’s order allow ACICS accredited institutions to continue participating in federal student aid programs, these determinations are not binding on other agencies that rely on federally recognized accreditation as part of their own authorization processes. These agencies have generally been reserved in their reactions, and while several are confirming that they will consider ACICS to be a federally recognized accreditor pending the ED decision, many have also noted that they are evaluating ACICS schools on a case-by-case basis.

With regard to federal agencies, the Department of Homeland Security, Immigration and Customs Enforcement, announced that the Student Exchange and Visitor Program (“SEVP”) – which communicated shifting positions in the wake of ACICS’s withdrawal of recognition – would accept ACICS as a federally recognized accrediting agency for certification purposes as a result of Secretary DeVos’s reinstatement order. However, SEVP also indicated that it would evaluate the impact of the order on schools’ existing certifications on an individual basis.

Likewise, some state agencies as well as the National Council for State Authorization Reciprocity Agreements (“NC-SARA”) that rely on a school’s approval status with a federally recognized accreditor as a condition of licensure have indicated that, for the purpose of satisfying their requirements, they are considering ACICS to be a federally recognized accreditor. Mirroring the federal action, they are generally communicating that the June 12, 2018 deadline for school’s to obtain alternative accreditation no longer stands. For example, in California, ACICS accredited schools that were approved by means of accreditation prior to the ACICS withdrawal of recognition and that the Bureau for Private Postsecondary Education had required to go through the more rigorous “full” approval process over the last year and a half are now being told that they can reapply for approval by means of accreditation using their ACICS accreditation – unless they want to wait until obtaining accreditation from a different federally recognized accreditor and apply at that time. However, other agencies that require federally recognized accreditation as a condition for operating or granting degrees are taking a more cautious approach and indicating that some ACICS schools – particularly those with additional compliance concerns – will be addressed individually and that the agency will provide further information regarding their options in the coming weeks.

What’s next for ACICS and its member schools?

As ACICS prepares to submit its May response and ED’s decision-making process begins to unfold, political pressures have begun to intensify in anticipation of a SDO decision this summer. Ten Senators sent a letter to Secretary DeVos in late April questioning the appointment of what they believe to be a conflicted individual as the SDO who will be issuing the ACICS decision, and various organizations filed a Freedom of Information Act (“FOIA”) request with the Department requesting a copy of the draft ED staff report prepared in response to ACICS’s submission in December 2017 and for the agency’s since-canceled appearance at NACIQI in May 2018. Although ED agreed to release the draft staff report, it has not yet done so at the time of this writing, and ACICS has stated publicly that it intends to challenge the release through legal action. Regardless of whether ED ultimately releases the draft report, the SDO will not be obligated to take it into account in making her decision. In the event that the SDO again issues a decision to withdraw ACICS’s recognition, ACICS will have the opportunity to appeal to the Secretary.

And, if the Secretary’s final decision is to withdraw federal recognition, the 18 month clock for ACICS schools to obtain alternative accreditation will start again – demonstrating that this ACICS recognition review continues to be a dynamic process that is likely to unfold with even more unexpected twists in the coming months.


  1. Pursuant to ED regulations at 34 C.F.R. §§ 602.32, 34-37, once an accrediting agency submits a petition for recognition, it is first reviewed by Department staff, who prepare a recommendation for consideration by NACIQI. Following its meeting, NACIQI makes a recommendation to a Senior Department Official designated by the Secretary to make a determination, which is considered final unless appealed to the Secretary, who is then required to “conduct an independent evaluation” of the agency’s petition. See 20 U.S.C. § 1099b(n)(1).

Jay Vaughan

JAY VAUGHAN is chair of Cooley LLP’s education practice group, working with colleges and universities, alternative content providers, and innovative education companies to navigate the dynamic regulatory environment, advise on strategic planning, and assist with operational opportunities. A former manager with an accrediting agency, Jay assists organizations with understanding accreditation, advises on compliance with state and federal laws regulating the field of postsecondary education, and represents clients before state agencies, accreditors, and the U.S. Department of Education.

Contact Information: Jay Vaughan // Partner // Cooley LLP // 202-776-2031 // jvaughan@cooley.com // www.cooley.com


NAOMI HARRALSON MAY is an associate in Cooley LLP’s education practice group and works with colleges, universities, and other educational providers to develop effective, compliant practices – and then translate them to accreditors, state educational agencies and the U.S. Department of Education. She joined the firm in 2013, bringing with her prior experience at both public and private postsecondary institutions and in ED’s Office of the General Counsel.

Contact Information: Naomi Harralson May // Associate // Cooley LLP // 858-550-6025 // nmay@cooley.com // www.cooley.com



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