Law: Request from a reader regarding Hiwassee College

Dear Jim,

I am a retired professor (Georgia St. Univ. in Atlanta) who is now the President-Elect of the Alumni Association Board of Governors at Hiwassee College in Madisonville, TN. Thus, I read with interest your recent Greentree Gazette article pertaining to Hiwassee College vs. SACS. As you will recall, the court ruled in favor of SACS almost three weeks ago.

My understanding is that the administrative officials of Hiwassee College plan to pursue accreditation by another agency, most likely TRACS (Transnational Association of Christian Colleges and Schools). What are the implications of accreditation by TRACS rather than SACS? I must say that I had never heard of TRACS prior to the unfavorable SACS ruling with regard to Hiwassee's accreditation. Also, what might we expect with regard to fall enrollments at Hiwassee?

Even though my three degrees are from The University of Tennessee at Knoxville, my heart is with Hiwassee College. Like many small two-year schools, its alumni have many wonderful memories of the place where they began their post-secondary education.

Thank you very much for any information and opinions you have time to provide.

Ben Layne

Here's the e-zine article to which he refers:

Hiwassee may go out with a squeak instead of a roar

Jim Castagnera

April 2008

A year ago, in a magazine article titled “Mice That Roar,” I reported, “If the Southern Association of Colleges and Schools (SACS) gets its way, Hiwassee College has no future.” SACS was intent on yanking the rural, religious college’s accreditation.

Jim Castagnera

On April 14th the U.S. Court of Appeals for the 11th Circuit, which has jurisdiction over much of America’s southland, moved the accrediting organization one very big step closer to having its way with the 500-student, sectarian school.
The three-judge appeals panel made short shrift of Hiwassee’s legal arguments, and affirmed summary judgment in SACS’s favor. In a two-page opinion, the justices first disposed of Hiwassee's claim of a private right of action against the accreditor. Relying on its own 2002 precedent, the court held that no such private right exists in the Higher Education Act. (The Supreme Court has long held that students and parents have no such cause of action against their colleges and universities under the HEA.)

Hiwassee also argued that SACS is so entwined with the U.S. Department of Education that it is, in effect, a government actor. If so, said the college’s advocates, the “due process” clause of the U.S. Constitution’s Fifth Amendment applies and has been violated by the accreditor’s rough treatment of this mouse of a college. Not so, said the appellate court: “The overwhelming majority of courts who have considered this issue have found that accrediting agencies are not state actors.”

Lastly, in a final snap of the mousetrap that may break the plaintiff-college’s back, the court concluded that, “SACS complied [with any common law duty it may have] in terminating Hiwassee’s accreditation.”

With that opinion, the appellate judges dissolved the emergency legal stay, which, since last year, has prevented SACS from stripping Hiwassee’s accreditation.

Jim Castagnera is a Philadelphia lawyer and writer, who is the associate provost and associate counsel at Rider University.
From the Greentree Gazette.