Case 2:17-cv-13708-AJT-DRG ECF# 42 Filed 12/12/17 Pg 1 of 11 Pg ID.

2028

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

THOMAS M. COOLEY LAW SCHOOL, Case No. 17-13708

Plaintiff, SENIOR U.S. DISTRICT JUDGE

v. ARTHUR J. TARNOW

THE AMERICAN BAR ASSOCIATION, U.S. MAGISTRATE JUDGE

DAVID R. GRAND
Defendant.
/

ORDER DENYING PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER

AND PRELIMINARY INJUNCTION [3]

On November 14, 2017, Plaintiff Thomas M. Cooley Law School

(“Cooley”) filed a Complaint [1] and a Motion for Temporary Restraining Order

(“TRO”) and Preliminary Injunction. The Court held a Status Conference on

November 15, 2017. Defendant American Bar Association (“ABA”) filed a

Response [21] on November 17, 2017. Plaintiff filed a Reply [25] on November

19, 2017. Defendant filed a Surreply [28] on November 27, 2017. The Court held a

final pre-hearing conference November 30, 2017.

For the reasons stated below, Plaintiff’s Motion for TRO [3] is DENIED.

FACTUAL BACKGROUND

This case concerns a law school’s attempt to prevent current and prospective

students from having access to accurate information about its accreditation status.

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Plaintiff Cooley is a law school based in Lansing, Michigan. Defendant

ABA is the agency approved by the U.S. Department of Education to accredit

programs leading to the J.D. degree.

Each year, the ABA Council establishes Standards and Rules of Procedure

for Approval of Law Schools (“ABA Standards”). The ABA Standards set forth

the criteria law schools must meet in order to obtain and retain accreditation.

The ABA Council delegates authority to the ABA Accreditation Committee

to perform “interim monitoring” to evaluate whether law schools remain in

compliance with ABA Standards.

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[.]” Letter from Barry A. Currier,

Managing Dir., Am. Bar Ass’n, to Dean Don LeDuc, President and Dean, Cooley

Law Sch., Re: Interim Monitoring of Law Schools (May 19, 2016). In response to

the request, Cooley submitted additional information to demonstrate compliance.

The Committee met on September 14-15, 2017 to review Cooley’s

compliance with the Standards. Following the meeting, the Committee sent Cooley

a Letter and Accreditation Decision (“Decision”) on October 4, 2017. The

Decision set forth the Committee’s findings of fact and conclusions. The

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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). See

infra pp. 6, Rule 4.

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On November 14, 2017, the Letter was posted on the ABA website in the

Adverse Actions section.1 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 [3], 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.

ANALYSIS

“A preliminary injunction is reserved for only the most egregious case, and

should not be extended to cases which are doubtful or do not come within well-

established principles of law.” Bonnell v. Lorenzo, 241 F.3d 800, 826 (6th Cir.

2001). When evaluating a motion for preliminary injunction, the Court must

consider four factors:

(1) whether the movant has a strong likelihood of success

on the merits; (2) whether the movant would suffer
irreparable injury without the injunction; (3) whether
issuance of the injunction would cause substantial harm
to others; and (4) whether the public interest would be
served by issuance of the injunction.

1
Additional non-compliance letters are posted on this section of the ABA website.
See ADVERSE ACTIONS (Dec. 11, 2017),
https://www.americanbar.org/groups/legal_education/news_announcements/public
-notice/adverse-actions.html.
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Id. at 809 (quoting Rock & Roll Hall of Fame v. Gentile Prods., 134 F.3d 749, 753

(6th Cir. 1998)).2

The moving party bears the burden of proving that the circumstances clearly

demand injunctive relief. Overstreet v. Lexington-Fayette Urban Cty. Gov’t, 305

F.3d 566, 573 (6th Cir. 2002).

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

34 C.F.R. § 602.26(c) requires the ABA to provide written notice to the

public within 24 hours of notifying a law school of the following decisions: “(1) A

final decision to place an institution or program on probation or an equivalent

status; (2) A final decision to deny, withdraw, suspend, revoke, or terminate the

accreditation or preaccreditation of an institution or program; and (3) A final

decision to take any other adverse action, as defined by the agency, not listed in

paragraph (b)(2) of this section[.]”

The ABA Standards and Rules of Procedure set forth the following

applicable rules and practices:

2
The ABA submits that Cooley must satisfy a substantially higher burden of proof
in this case because it involves a prior restraint on speech. In Procter & Gamble
Co. v. Bankers Tr. Co., 78 F.3d 219, 226–27 (6th Cir. 1996), opinion clarified
(May 8, 1996) (internal citation omitted), the Sixth Circuit explained: “the inquiry
that the court must conduct [in the case of a prior restraint on speech] is different.
In the case of a prior restraint on pure speech, the hurdle is substantially higher:
publication must threaten an interest more fundamental than the First Amendment
itself.” Despite citing Procter, the ABA does not apply the Procter standard in its
analysis. Because both parties set forth their arguments under the Bonnell factors,
the Court conducts its analysis accordingly.
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Rule 49: Except as otherwise provided in these Rules or

Internal Operating Practices, all matters relating to the
accreditation of a law school, including any proceedings,
hearings or meetings of the Committee or Council, shall
be confidential.

Internal Operating Practice 4(c): Managing Director shall

provide written notification to the public within 24 hours
of the time the Managing Director notifies the law school
in writing of any final decision to . . . find a law school
significantly out of compliance with one or more
Standards[.]

Rule 4: An Appeals Panel has authority to consider

appeals of the following decisions of the Council: (a)
Denial of provisional approval; (b) Denial of full
approval; or (c) Withdrawal of provisional or full
approval.

Cooley submits that it is likely to succeed on its claim that the ABA acted

illegally because 34 C.F.R. § 606.26 does not authorize the ABA to publish the

Letter. Cooley argues that the Letter is not a “final decision to take adverse action,”

but rather, a preliminary and remediable finding of non-compliance with Standard

501(b).

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. In its

Complaint [1], Cooley alleges, among other things, that the ABA violated

common-law due process (Count V) and the Higher Education Act (Count VII).

But, Cooley’s Motion [3] and Reply [25] overlook the underlying claims and

strictly address the applicability of 34 C.F.R. § 606.26. In its Proffer [37], Cooley

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abruptly concludes that the Council neither conducted substantial evidence review

nor reviewed the record as a whole. However, Cooley does not offer any evidence

(or case law) to support such claims.

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.3 34

C.F.R. § 606.26 plainly requires that the ABA publish final decisions to take

adverse action, as defined by the agency.

First, Cooley has failed to persuade the Court that the Council’s Decision is

not final. Cooley is not entitled to appeal the Decision under ABA Standards Rule

4.

Second, Cooley has failed to persuade the Court that “adverse action”

excludes findings of non-compliance. Internal Operating Practice 4(c) explicitly

requires that the ABA provide written notification to the public of any final

decision to find a law school significantly out of compliance with one of the

Standards. In the context of 34 C.F.R. § 602.26, the Department of Education has

3
In deciding this Motion for TRO [3], the Court need not, and does not, address the
ABA’s argument that its speech on accreditation is protected by the First
Amendment. Nevertheless, the Court notes that while the ABA has cited to several
cases in which courts have held that the ABA’s speech is protected by the First
Amendment, see, e.g., Lincoln Mem’l Univ. Duncan Sch. of Law v. Am. Bar Ass’n,
No. 3:11-CV-608, 2012 WL 137851, at *19 (E.D. Tenn. Jan. 18, 2012);
Massachusetts Sch. of Law at Andover, Inc. v. Am. Bar Ass’n, 937 F. Supp. 435,
442 (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), Cooley has not cited to any authority
that supports its argument to the contrary.
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explained: “noncompliance is viewed as significant if . . . the area of non-

compliance implicates institutional integrity . . . or the area of noncompliance is

one for which notice to the public is required in order to serve the best interests of

students and prospective students.” Letter from Ted Mitchell, Under Sec’y, U.S.

Dep’t of Educ., to Federally Recognized Accrediting Agencies, Clarification of

Terminology and Requirements for Accrediting Agency Reporting to the U.S.

Dep’t. of Educ. (Nov. 16, 2016).

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.

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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. See Hampton Univ. v.

Accred. Council For Pharm. Edu., 611 F. Supp. 2d 557, 566 (E.D. Va. 2009)

(considering whether an injunction “would set a precedent that might lead every

pharmacy school or program accredited by ACPE to sue and move for a

preliminary injunction if ACPE places it on probation.”).

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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. See Philadelphia Wireless Tech. Inst. v. Accrediting

Comm’n of Career Sch. & Colleges of Tech., No. CIV. A. 98-2843, 1998 WL

744101, at *8 (E.D. Pa. Oct. 23, 1998).

IV. A preliminary injunction is not in the public interest

Ensuring that prospective students receive prompt and accurate information

is in the public interest. See Suntrust Bank v. Houghton Mifflin Co., 268 F.3d 1257,

1276 (11th Cir. 2001) (noting that the “public interest is always served in

promoting First Amendment values and in preserving the public domain from

encroachment.”); Lone Star Steakhouse & Saloon, Inc. v. Alpha of Virginia, Inc.,

43 F.3d 922, 939 (4th Cir. 1995) (explaining that preventing future consumers

from being misled serves the public interest); Lincoln Mem’l Univ., 2012 WL

137851, at *20 (holding that “there is a public interest in having those who look to

the Section’s evaluation of legal education receive prompt and accurate

information.”); Allen, Allen, Allen & Allen v. Williams, 254 F. Supp. 2d 614, 629

(E.D. Va. 2003) (noting that the public has a strong interest in the ability to access

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truthful information about lawyers). That “prospective law students deserve

accurate, reliable information about a school’s accreditation status” [Dkt. #25 at 2]

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.

Accordingly,

IT IS ORDERED that Plaintiff’s Motion for TRO [3] is DENIED.

SO ORDERED.

s/Arthur J. Tarnow
Arthur J. Tarnow
Dated: December 12, 2017 Senior United States District Judge

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