Case Document 8 Filed 01/14/16 Page 1 of 6 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA CONSUMER FINANCIAL PROTECTION BUREAU Case No. IS?cv-183 8-RJ Petitioner, v. ACCREDITING COUNCIL FOR INDEPENDENT COLLEGES AND SCHOOLS Respondent. MOTION FOR LEAVE 0 FILE BRIEF OF AMICUS CURIAE IN OPPOSITION 0 THE PETITION ENFORCE CIVIL INVESTIGATIVE DEMAND Accrediting Council for Continuing Education and Training, Inc. Accrediting Bureau of Health Education Schools, Inc. Distance Education Accrediting Commission Council on Occupational Education National Accrediting Commission of Career Arts and Sciences and Council for Higher Education Accreditation (collectively ?the ?ling parties?), as amici curiae, by and through their undersigned counsel, submit this motion for leave to ?le a brief of amicus curiae in opposition to the Consumer Financial Protection Bureau?s (?Bureau? or petition for an order requiring the Accrediting Council for Independent Colleges and Schools to comply with the Augu 25, 2615 civil investigative demand and, in support thereof, state as follows: 1. The ?ling parties are each heavily involved in the ?eld of education accreditation and have a substantial interest in the actions being taken by CFPB against ACICS, as those actions will not only impact the Operations of ACICS, but will have a direct impact on the system of accreditation as a whole and the manner in which all accrediting bodies perform their functions. The ?ling parties seek leave to ?le their brief so that they may 1 Case Document 8 Filed 01/14/16 Page 2 of 6 provide the Court With their broader perspective, which will allow the Court to consider the magnitude of the impact that actions are expected to have on the industry. The proposed amicus curiae brief is appended hereto as Exhibit 1. . Accrediting Council for Continuing Education and Training ACCET is a membership corporation consisting of educational organizations af?liated for the purpose of improving continuing education and training. ACCET promulgates and sustains standards for accreditation and other policies and procedures that measure and ensure educational standards of quality for its member entities. ACCET is listed by the US. Secretary of Education as a nationally recognized accrediting agency. . Accrediting Bureau of Health Education Schools, Inc. ABHES has been nationally recognized by the US. Secretary of Education as a private, non?profit, independent accrediting agency since 1968. ABHES focuses on advancing the quality of health education programs throughout the country. . Distance Education Accrediting Commission DEAC is a private, non-pro?t organization founded in 1926 that operates as an institutional accreditor of distance education institutions. Accreditation by DEAC covers all distance education activities Within an institution and it provides accreditation from the secondary school level through professional doctoral degree-granting institutions. DEAC initially received federal recognition in 1959 and has continually held recognition by the US. Department of Education ever since. The Council on Occupational Education COE is a national accrediting agency that is focused on assuring quality and integrity in career and technical education. The Council's accreditation process oversees institutions that provide training to students across the Case Document 8 Filed 01/14/16 Page 3 of 6 nation who pursue careers in a variety of technical ?elds. COE is listed by the US. Secretary of Education as a nationally recognized accrediting agency. . National Accrediting Commission of Career Arts and Sciences -- NACCAS is an independent accrediting commission for the institutional accreditation of postsecondary schools and departments of cosmetology arts and sciences, including specialized schools. NACCAS is recognized by the US. Department of Education as a national accrediting agency. Council for Higher Education Accreditation CHEA is an association of 3,000 degree?granting colleges and universities and recognizes 60 institutional and programmatic accrediting organizations. CHEA is not an accreditor itself, but is instead a national advocate and institutional voice for promoting academic quality through accreditation. It is the largest institutional higher education membership organization in the United States. It is widely held that, ?it is solely within the discretion of the Court to determine the fact, extent, and manner of participation by the amicus.? Cobell v. Norton, et al., 246 F.Supp.2d 59, 62 (D.D.C. 2003). court may grant leave to appear as an amicus if the information offered is ?timely and useful.? Long v. Coast Resorts, Inc, 49 F. Supp. 2d 1177, 1178 (D. Nev. 1999) (citations omitted). Courts and commentators have noted the particular usefulness of amicus ?lings in cases that involve matters of public interest. In Andersen v. Leavitr, 2007 US. Dist. LEXIS 59108 (E.D.N.Y., August 13, 2007), the Court stated that, court is more likely to grant leave to appear as an amicus curiae in cases involving matters of public interest . . . . Accordingly, a public body clothed with powers and duties affecting the public interest, 10. 11. Case Document 8 Filed 01/14/16 Page 4 of 6 and involved in the subject matter presented before the court, may be entitled to the favor of appearing as amicus curiae.? Id. (quoting 4 Am. Jur. 2d Amicus Curiae 3 (updated May 2007)). One court has and simply noted that, ?[t]he usual rationale for amicus curiae submissions is that they are of aid to the court and offer insights not available from the parties.? The Onondaga Indian Nation 12. The State of New York, at al., 1997 US. Dist. LEXIS 9168 (N.D.N.Y. June 25, 1997). With the foregoing standards in mind, it is appropriate to permit the ?ling parties to submit their amicus curiae brief in this action. The matter at issue is of broad public interest, as actions interfere with the long?standing and already heavily-regulated accreditation system. In addition, the ?ling parties offer insight that is of aid to the Court as it considers the issues in this matter, in that it is critical for the Court to consider the magnitude of attempt to insert itself into the realm of accreditation oversight. The ?ling parties seek to make the Court aware that the issues reach well beyond the named target of actions, ACICS, and stand to upset the overall accreditation process. The information offered by the ?ling parties is thus ?timely and useful,? and the Court should exercise its discretion to permit the ?ling of the brief. Case Document 8 Filed 01/14/16 Page 5 of 6 WHEREFORE, the ?ling parties respectfully request that the Court grant their Motion and accept the attached amicus curiae brief for ?ling. Respectfully Submitted, Michael C. Gartner Michael C. Gartner, Esq. (DC. Bar No. 464756) WHITEFORD, TAYLOR PRESTON, LLP 3190 Fairview Park Drive, Suite 300 Falls Church, Virginia 22042 (703) 280-9260 (voice) (703) 280?9139 (facsimile) Counsel for Amici Curiae Case Document 8 Filed 01/14/16 Page 6 of 6 CERTIFICATE OF SERVICE I hereby certify that on this 14th day of January, 2016, I caused the foregoing to be served Via ECF upon all counsel of record, as follows: 105042 Allyson B. Baker, Esquire Benjamin E. Horowitz, Esquire Venable LLP 575 7th Street, NW. Washington, DC 20004-1601 Telephone: (202) 344?4000 Facsimile: (202) 344-8300 Email: abbaker@venable.com behorowitz@venable.com Benjamin Konop, Esq. Kristina Betts, Esq. Enforcement Attorney Consumer Financial Protection Bureau 1700 Street NW Washington, DC. 20552 Phone: 202?435?7265 Email: beniamin.konop@cfpb.gov Kristina.Betts@cfpb. gov Michael C. Gartner Michael C. Gartner Case Document 8-1 Filed 01/14/16 Page 1 of 6 EXHIBIT 1 Case Document 8-1 Filed 01/14/16 Page 2 of 6 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA CONSUMER FINANCIAL PROTECTION BUREAU Case No. 15-cv-l83 8-RJL Petitioner, V. ACCREDITING COUNCIL FOR INDEPENDENT COLLEGES AND SCHOOLS Respondent. BRIEF OF AMICUS CURIAE IN OPPOSITION TO THE PETITION TO ENFORCE CIVIL INVESTIGATIVE DEMAND Accrediting Council for Continuing Education and Training, Inc. Accrediting Bureau of Health Education Schools, Inc. Distance Education Accrediting Commission Council on Occupational Education National Accrediting Commission of Career Arts and Sciences and Council for Higher Education Accreditation (collectively ?the filing parties?), as amicz' curiae, by and through their undersigned counsel, submit the following in Opposition to the Consumer Financial Protection Bureau?s (??Bureatt? or petition for an order requiring the Accrediting Council for Independent Colleges and Schools to comply with the August 25, 2015 civil investigative demand Introduction Most of the ?ling parties are accreditors and are thus similarly situated to ACICS and perform essentially the same functions for their institutional members as ACICS performs for its members. The only non~accreditor among the ?ling parties, CHEA, is national advocate and institutional voice for promoting academic quality through accreditation. It is the largest institutional higher education membership organization in the United States. The filing parties Case Document 8-1 Filed 01/14/16 Page 3 of 6 therefore have a substantial interest in the actions being taken by CFPB against ACICS, as those actions will not only impact the operations of ACICS, but will have a direct impact on the system of accreditation as a whole and the manner in which all accrediting bodies perform their signi?cantly~regulated functions. it is critical for the Court to consider the magnitude of attempt to insert itself into the realm of accreditation oversight, and it is for that purpose that the filing parties submit this brief. The ?ling parties fully support and join the arguments set forth by ACICS in its Opposition, and offer the additional perSpectives set forth herein to assist the Court in fully considering the scope of actions. A. Attempted Intrusion Into Accrediting Agency Decisions Threatens The Viability Of The Long-Standing Peer Review Process By statute, accrediting agencies ?ensure that the courses or programs of instruction, training, or study offered by the institution of higher education, . . . are of suf?cient quality to achieve, for the duration of the accreditation period, the stated objective for which the courses or the programs are offered.? 20 U.S.C. 1099b(a)(4)(A). Each accrediting agency is independently reSponsible for assessing numerous aSpects of an institution, including, but not limited to, the success of student achievement in relation to the institution?s mission, curricula, faculty, and facilities; fiscal and administrative capacity; student support services; recruiting and admissions; academic calendars, catalogs, and publications; and records of the institution?s complaints and compliance. Id. 1099(b)(a)(5). Accreditation is a process of peer review in which an institution applies for accreditation to an accrediting body, which may accredit the institution for a period of time based on evaluation of the institution?s compliance with a series of criteria. See Peoria School of Business, Inc. v. Accrediting Council for Continuing Educ. Training, 805 F. Supp. 579 (N .D. Ill. 1992); Parsons College v. North Cent. Ass ?n of Colleges and Secondary Schools, 271 F. Case Document 8-1 Filed 01/14/16 Page 4 of 6 Supp. 65, 73 (ND. Ill 1967). Accrediting agencies rely on volunteer participation by quali?ed evaluators to meticulously review the operations of accredited institutions to ensure that those institutions are in compliance with all accreditation criteria. The launch of a federal investigation by CFPB has the potential to signi?cantly hamper accrediting agencies? ability to perform their functions, as individual volunteers may not want to be exposed to unbounded CFPB action. The established framework for oversight by the Secretary is well-known and clearly de?ned. initiation of a probe into accreditation, however, is completely open- ended and unpredictable. Accreditation evaluators will be justi?ably hesitant to involve themselves in a process that includes an unrestrained and indiscriminate risk of being pulled into a federal investigation. The accreditation process operates within well-known parameters, and actions in this matter fall far outside of those parameters, and those actions should therefore be stopped. C. The Functions Of The Accrediting Bodies Do Not Include Consumer Financial Products Or Services As is set forth in Opposition and supporting materials, jurisdiction is limited to matters involving consumer ?nancial laws. See ACICS Opposition at pp. 6 15 and Declaration of Dennis M. Cariello at 17 - 21. Like ACICS, the ?ling parties do not engage in consumer lending, do not provide substantial assistance in connection with ?nancial products or services, and do not otherwise engage in conduct that falls within the scope of consumer ?nancial laws. CFPB, therefore, has no jurisdiction over accrediting bodies. Accrediting bodies do not assist or support their accredited institutions in procuring and maintaining loan grants from the Department of Education, and they do not provide any service to their accredited institutions in connection with their ?nancial aid and loan programs. Rather, accrediting bodies deal with the educational quality of the institutions and not the lending Case Document 8-1 Filed 01/14/16 Page 5 of 6 process. it is the Department of Education that, by statute, independently determines the eligibility of an institution of higher education to participate in federal funding programs. See 20 U.S.C. 10990. It is a far stretch to assert, as CFPB does in this action, that accrediting agencies have any involvement in consumer ?nancial products or services when the statutory scheme and detailed regulations clearly establish that the accrediting agencies do not play that role. thoroughly addresses the lack of ?nancial involvement by accrediting agencies in its Opposition. Accordingly, the ?ling parties need only af?rrn here that the positions and arguments set forth in the ACICS Opposition apply equally to the accrediting bodies represented herein, and yield the conclusion that CFPB has no authority to pursue its investigation. 92mg; Accreditation of institutions of higher education is fully regulated and the existing process of oversight of accrediting agencies is thorough and active. CFPB has no role in that process and the action it is attempting to take only serves to undermine the effectiveness of the accreditation process. Signi?cantly, efforts to investigate ACICS will not only impact that body, but will greatly impact all accrediting bodies in the ?eld. actions exceed its own jurisdiction, and intrude upon the jurisdiction of the Department of Education. For all of the reasons set forth herein, as well as those set forth in the Opposition ?led by ACICS, the ?ling parties respectfully request that Petition be denied. Case Document 8-1 Filed 01/14/16 Page 6 of 6 Respectfully Submitted, Michael C. Gartner Michael C. Gartner, Esq. (D.C. Bar No. 464756) WHITEFORD, TAYLOR PRESTON, LLP 3190 Fairview Park Drive, Suite 300 Falls Church, Virginia 22042 (703) 280-9260 (voice) (703) 280?9139 (facsimile) Counsel for Amici Curiae CERTIFICATE OF SERVICE I hereby certify that on this 14th day of January, 2016, I caused the foregoing to be served via ECF upon all counsel of record, as follows: 103752 Allyson B. Baker, Esquire Benjamin E. Horowitz, Esquire Venable LLP 575 7th Street, NW. Washington, DC 20004-1601 Telephone: (202) 344-4000 Facsimile: (202) 344-8300 Email: abbakerGDvenablecom behorowitz@venable.com Benjamin Konop, Esq. Kristina Betts, Esq. Enforcement Attorney Consumer Financial Protection Bureau 1700 Street NW Washington, DC. 20552 Phone: 202-435?7265 Email: beniamin.konop@cfpb.gov Kristina.Betts@cfpb.gov Michael C. Gartner Michael C. Gartner Case Document 8-2 Filed 01/14/16 Page 1 of 1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA CONSUMER FINANCIAL PROTECTION BUREAU Case No. Petitioner, v. ACCREDITING COUNCIL FOR INDEPENDENT COLLEGES AND SCHOOLS Respondent. ORDER This matter having come upon the Motion of Accrediting Council for Continuing Education and Training, Inc., Accrediting Bureau of Health Education Schools, Inc, Distance Education Accrediting Commission, Council on Occupational Education, National Accrediting Commission of Career Arts and Sciences, and Council for Higher Education Accreditation (collectively ?the amici parties?) for leave to ?le a brief of amicus curiae in this action, and having considered the arguments contained therein and any opposition thereto, the Court ?nds good cause to grant said motion and permit the amici parties to ?le said brief, and it is accordingly, ORDERED that the brief of the amici parties in the form attached as an exhibit to their Motion shall be and hereby is accepted for filing ENTERED THIS Day of 2016. Judge, US. District Court