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Thursday, December 14, 2017

Federal Court Chides Western Michigan-Thomas Cooley Law School For Seeking TRO To Block ABA's Release Of Letter On School's Noncompliance With Accreditation Standards

Thomas Cooley Logo (2014)Following up on last month's post, Western Michigan-Cooley Law School Seeks TRO To Prevent ABA From Releasing A Letter About Its Accreditation Status:  the U.S. District Court for the Eastern District of Michigan has denied the TRO in a blistering opinion (Thomas M. Cooley Law School v. American Bar Association, No. 17-13708 (E.D. Mich. Dec. 12, 2017):

This case concerns a law school’s attempt to prevent current and prospective students from having access to accurate information about its accreditation status. ...

The ABA last reapproved Cooley in 2014. On May 19, 2016, the ABA sent a letter to Cooley asking the School to provide the ABA with “additional information so that the Committee can determine if the Law School continues to operate in compliance with [six] Standards[.]” ... The Committee concluded that Cooley remained in compliance with Standards 202(a), 301(a), 309(b), and 501(a); however, it determined that Cooley was not in compliance with Standard 501(b) and Interpretation 501-1. In its Decision, the Committee requested that Cooley submit a report by February 1, 2018 with all relevant information necessary to demonstrate compliance with Standard 501(b).

Standard 501(b) requires that law schools “only admit applicants who appear capable of satisfactorily completing its program of legal education and being admitted to the bar.” Interpretation 501-1 sets forth factors to be considered in assessing compliance with 501(b).

Cooley appealed the Committee’s Decision to the Council. The Council held a hearing on November 4, 2017. On November 13, 2017, the Council sent a Letter to Cooley affirming the Committee’s Decision and notifying Cooley that the Letter would be posted in accordance with Department of Education Regulation 34 C.F.R. § 602.26 within 24 hours.

Upon its receipt of the November 13, 2017 Letter, Cooley emailed the Council requesting that the ABA refrain from publication and expressing its intent to appeal the Decision. The ABA Standards and Rules do not authorize an Appeals Panel to review the Council’s finding of non-compliance with Standard 501(b). ...

On November 14, 2017, the Letter was posted on the ABA website in the Adverse Actions section. The publication of the November 13, 2017 Letter is the subject of this action. Over the past few weeks, the Letter and information about this lawsuit have been widely disseminated in the public sphere.

In its Motion for TRO, Cooley asks the Court to: find that the ABA acted illegally in publishing the Letter; require the ABA to remove the Letter from its website; and order the ABA to withdraw letters sent to other agencies. ...

I. Cooley has not demonstrated a likelihood of success on the merits ...

As the ABA notes in its Response [21], Cooley fails to even argue that it has shown a likelihood of success on the underlying merits of the case. ... Even assessing the merits of Cooley’s claim concerning 34 C.F.R. § 606.26, the Court finds that Cooley has not demonstrated a likelihood of success. 34 C.F.R. § 606.26 plainly requires that the ABA publish final decisions to take adverse action, as defined by the agency. ...

Cooley’s non-compliance with Standard 501(b), which requires that the School only admit applicants who appear capable of satisfactorily completing its program and being admitted to the bar, certainly implicates the School’s integrity. Furthermore, it is in the best interests of Cooley’s students to be made aware of its non-compliance with Standard 501(b). As future applicants to the bar, students should have access to reliable information to enable them to make informed decisions on where to attend law school.

II. Cooley will not suffer irreparable harm

Cooley argues that it continues to suffer irreparable reputational harm because of the publication of the Letter. Cooley further argues that a Court order in its favor would send a powerful message to bloggers, journalists, and the public that the ABA acted illegally.

The Court is unsympathetic to this argument. Now that word is out, Cooley’s alleged reputational injury may not be remedied by the relief it seeks. Cooley’s decision to institute, and proceed with, this action is the primary cause for the reputational harm alleged. See Lincoln Mem’l Univ., 2012 WL 137851, at *19 (holding that the law school failed to demonstrate that the alleged reputational harm would be undone by removing the memorandum from the ABA’s website, particularly where the school’s filing of the lawsuit garnered the attention of the media). Cooley’s argument ignores the reality that prospective students have already drawn conclusions about the School because of this lawsuit. Cooley is free to try to mitigate any reputational injury by broadcasting its belief that the ABA acted illegally in the public arena.

III. A preliminary injunction may cause substantial harm to others

Granting Cooley the injunctive relief it seeks may substantially harm the ABA and prospective students. With respect to the ABA, issuing such an order may disrupt the agency’s accreditation processes and prevent it from executing duties delegated to it by the Department of Education. ...

More importantly perhaps, an order requiring the ABA to retract truthful information from the public will harm prospective law students who are in the midst of the application process. Withdrawing the Letter may also mislead prospective students into believing that the ABA has found Cooley in compliance with all of its Standards.

IV. A preliminary injunction is not in the public interest

Ensuring that prospective students receive prompt and accurate information is in the public interest. ... That “prospective law students deserve accurate, reliable information about a school’s accreditation status” is uncontroversial.

CONCLUSION

Cooley has failed to meet its burden of demonstrating that the circumstances clearly demand a preliminary injunction. Cooley may continue to litigate its claim that the ABA acted illegally in publishing the Letter; but, granting a TRO that would remove accurate information from the public sphere is wholly inappropriate at this juncture in the proceedings.

National Law Journal, Troubled Law School Loses Restraining Order Bid Against ABA Over Admissions Practices:

A federal judge has chided Western Michigan University Thomas M. Cooley Law School for creating its own public-relations problems and has denied its bid to block the American Bar Association from posting a noncompliance letter about the school’s admissions practices.

Judge Arthur Tarnow, in dismissing Cooley’s motion for a temporary restraining order against the ABA, said the school made the bed it claimed to be lying in. ...

The ABA website at issue includes noncompliance letters issued to other schools, including Florida Coastal School of Law, Atlanta’s John Marshall Law School, Thomas Jefferson School of Law, University of Buffalo Law School-SUNY and Appalachian School of Law.

Since August 2016, the ABA has publicly disciplined 10 law schools for admitting students that it says are unlikely to graduate and pass the bar—an unprecedented crackdown, given that such actions historically are rare.

Cooley’s bar pass rate, according to the latest data available through the ABA, was 59.75 percent for test takers in February and July of 2015. The state pass rate was 71.77 percent.

ABA Journal, Cooley Law School Loses Request for Temporary Restraining Order in Lawsuit Against ABA:

An ABA spokesman said the Council of the Legal Education Section said was “pleased with the decision of the court in denying the TRO.”

https://taxprof.typepad.com/taxprof_blog/2017/12/federal-court-chides-western-michigan-thomas-cooley-law-school-for-seeking-tro-to-block-abas-release.html

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Comments

As the ABA notes in its Response [21], Cooley fails to even argue that it has shown a likelihood of success on the underlying merits of the case. ...

Why oh why don't federal judges like use Rule 11 in frivolous cases? If a law school failing to plead the first and most essential item necessary for their motion doesn't count, what does?

Posted by: Eric Rasmusen | Dec 14, 2017 10:37:05 AM

I sent that comment in too quickly:

As the ABA notes in its Response [21], Cooley fails to even argue that it has shown a likelihood of success on the underlying merits of the case. ...

Why oh why don't federal judges like use Rule 11 in frivolous cases? If a law school failing to plead the first and most essential item necessary for their motion for an order to prevent someone from saying they are not competent to be a law school doesn't count, what does?

Posted by: Eric Rasmusen | Dec 14, 2017 10:38:45 AM