Professional Documents
Culture Documents
Cooley v. ABA Order Denying TRO
Cooley v. ABA Order Denying TRO
2028
(“Cooley”) filed a Complaint [1] and a Motion for Temporary Restraining Order
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
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.
Page 1 of 11
Case 2:17-cv-13708-AJT-DRG ECF# 42 Filed 12/12/17 Pg 2 of 11 Pg ID.2029
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 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
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
compliance with the Standards. Following the meeting, the Committee sent Cooley
Decision set forth the Committee’s findings of fact and conclusions. The
Page 2 of 11
Case 2:17-cv-13708-AJT-DRG ECF# 42 Filed 12/12/17 Pg 3 of 11 Pg ID.2030
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
Standard 501(b) requires that law schools “only admit applicants who appear
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
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
Page 3 of 11
Case 2:17-cv-13708-AJT-DRG ECF# 42 Filed 12/12/17 Pg 4 of 11 Pg ID.2031
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
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
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.
Page 4 of 11
Case 2:17-cv-13708-AJT-DRG ECF# 42 Filed 12/12/17 Pg 5 of 11 Pg ID.2032
Id. at 809 (quoting Rock & Roll Hall of Fame v. Gentile Prods., 134 F.3d 749, 753
The moving party bears the burden of proving that the circumstances clearly
public within 24 hours of notifying a law school of the following decisions: “(1) A
status; (2) A final decision to deny, withdraw, suspend, revoke, or terminate the
decision to take any other adverse action, as defined by the agency, not listed in
The ABA Standards and Rules of Procedure set forth the following
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.
Page 5 of 11
Case 2:17-cv-13708-AJT-DRG ECF# 42 Filed 12/12/17 Pg 6 of 11 Pg ID.2033
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,”
501(b).
As the ABA notes in its Response [21], Cooley fails to even argue that it has
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
Page 6 of 11
Case 2:17-cv-13708-AJT-DRG ECF# 42 Filed 12/12/17 Pg 7 of 11 Pg ID.2034
abruptly concludes that the Council neither conducted substantial evidence review
nor reviewed the record as a whole. However, Cooley does not offer any evidence
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
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”
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
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.
Page 7 of 11
Case 2:17-cv-13708-AJT-DRG ECF# 42 Filed 12/12/17 Pg 8 of 11 Pg ID.2035
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.
School only admit applicants who appear capable of satisfactorily completing its
program and being admitted to the bar, certainly implicates the School’s integrity.
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
Page 8 of 11
Case 2:17-cv-13708-AJT-DRG ECF# 42 Filed 12/12/17 Pg 9 of 11 Pg ID.2036
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
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
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
Page 9 of 11
Case 2:17-cv-13708-AJT-DRG ECF# 42 Filed 12/12/17 Pg 10 of 11 Pg ID.2037
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
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
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
Page 10 of 11
Case 2:17-cv-13708-AJT-DRG ECF# 42 Filed 12/12/17 Pg 11 of 11 Pg ID.2038
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
Accordingly,
SO ORDERED.
s/Arthur J. Tarnow
Arthur J. Tarnow
Dated: December 12, 2017 Senior United States District Judge
Page 11 of 11