United States Court of Appeals
For the First Circuit
No. 00-2176
JAMIE AMBROSE ET AL.,
Plaintiffs, Appellants,
v.
NEW ENGLAND ASSOCIATION OF SCHOOLS AND COLLEGES, INC.,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Gene Carter, U.S. District Judge]
Before
Selya, Circuit Judge,
Stahl, Senior Circuit Judge,
and Lynch, Circuit Judge.
Ralph A. Dyer, with whom Law Offices of Ralph A. Dyer, P.A.,
was on brief, for appellants.
Margaret Coughlin LePage, with whom Ann L. Rudisill and
Pierce Atwood were on brief, for appellee.
Martin Michaelson, Alexander E. Dreier, and Hogan & Hartson
L.L.P. on brief for Council for Higher Education Accreditation
and American Council on Education, amici curiae.
June 8, 2001
SELYA, Circuit Judge. Under the distinct impression
that their post-secondary schooling, in the Dickensian phrase,
left them with "a smattering of everything, and a knowledge of
nothing," Charles Dickens, Sketches by Boz (1839), seven
erstwhile students brought suit against the organization that
had accredited the college at which they had matriculated.
Their complaint raises novel questions anent an accreditor's
tort liability to third persons. The district court granted
summary judgment in favor of the accreditor. We affirm.
I. BACKGROUND
We recount the facts in the light most favorable to the
nonmovants (here, the plaintiffs), consistent with record
support. See Nieves v. McSweeney, 241 F.3d 46, 50 (1st Cir.
2001).
Thomas College (the College) is a private institution
of higher education in Waterville, Maine. Plaintiffs-appellants
Jamie Ambrose, Kimberly Bonneau, Monica Bryant, Heather Cool,
Lorna Goodwin, Laurie Pelletier, and Brenda Tracy all attended
the College between 1994 and 1999. Defendant-appellee New
England Association of Schools and Colleges, Inc. (NEASC) is an
independent nonprofit organization that accredits degree-
granting institutions. NEASC first accredited the College in
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1969. The College has maintained its accreditation continuously
from that date forward.
Each of the appellants enrolled in the College's two-
year associate degree program in medical assisting expecting to
be qualified, upon graduation, for an entry-level position as a
medical assistant. But the program had myriad shortcomings;
most conspicuously, it contained no clinical component. Since
clinical tasks comprise an important part of a medical
assistant's job description, six of the seven appellants were
unable to find work as medical assistants after they graduated.
The only exception — Ambrose — was hired as a medical assistant
but was cashiered in short order due to perceived inadequacies
in her knowledge and training.
Disgruntled by this sad state of affairs, the
appellants banded together and brought suit against the College
in a Maine state court. They sued NEASC in a separate action.
See Ambrose v. NEASC, 100 F. Supp. 2d 48, 49 (D. Me. 2000)
(describing the two actions). In their suit against NEASC, the
plaintiffs alleged that the accreditation statements which
appeared in the College's course catalogs were actionable under
three distinct theories: (1) fraud, (2) negligent
misrepresentation, and (3) deceptive business practices. NEASC
promptly removed the case against it to the federal district
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court based on diversity of citizenship and the existence of a
controversy in the requisite amount. See 28 U.S.C. §§
1332(a)(1), 1441(a). This left the case against the College
pending in a different forum, but the district court quite
properly refused to order a remand. Ambrose, 100 F. Supp. 2d at
49-53.
After the parties had engaged in some discovery, NEASC
moved for summary judgment. See Fed. R. Civ. P. 56. Judge
Carter referred the motion to a magistrate judge. Concluding
that no misrepresentation had been made and that the appellants,
at any rate, failed to show that they had relied justifiably on
the accreditation statements, the magistrate judge recommended
brevis disposition. Judge Carter reviewed the magistrate
judge's recommended ruling de novo, accepted it, and entered
judgment accordingly. This appeal followed.
II. THE ACCREDITATION STATEMENTS
Since the accreditation statements lie at the epicenter
of the dispute between the parties, we pause to place them into
perspective. NEASC wrote two "approved" versions of an
accreditation statement and supplied both versions to accredited
institutions of higher education. It permitted those
institutions to publish either or both of the statements, but
did not require them to do so.
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Six of the appellants claim that, prior to
matriculating at the College, they read course catalogs which
contained the "long-form" version of the accreditation statement
(used in the College's 1993-94, 1994-95, and 1995-96 catalogs).
This statement reads in pertinent part:
Thomas College is accredited by the
New England Association of Schools and
Colleges, Inc., a non-governmental,
nationally recognized organization whose
affiliated institutions include elementary
schools through collegiate institutions
offering post-graduate instruction.
Accreditation of an institution by the New
England Association indicates that it meets
or exceeds criteria for the assessment of
institutional quality periodically applied
through a peer group review process. An
accredited school or college is one that has
available the necessary resources to achieve
its stated purposes through appropriate
educational programs, is substantially doing
so, and gives reasonable evidence that it
will continue doing so in the foreseeable
future. Institutional integrity is also
addressed through accreditation.
Accreditation by the New England Association
is not partial but applies to the
institution as a whole. As such, it is not
a guarantee of the quality of every course
or program offered or the competence of
individual graduates. Rather, it provides
reasonable assurance about the quality of
opportunities available to students who
attend the institution.
The remaining appellant (Pelletier) claims to have consulted the
1996-97 catalog, which contained the "short-form" version of the
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accreditation statement. That version provides in pertinent
part:
Thomas College is accredited by the New
England Association of Schools and Colleges,
Inc., a non-governmental, nationally
recognized organization whose affiliated
institutions include elementary schools
through collegiate institutions offering
post-graduate instruction.
III. ANALYSIS
Maine law controls in this diversity case. See Crellin
Techs., Inc. v. Equipmentlease Corp., 18 F.3d 1, 4 (1st Cir.
1994). We review the lower court's application of that law and
its entry of summary judgment de novo. Nieves, 241 F.3d at 50.
In that review, we focus on whether "the pleadings, depositions,
answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine issue
as to any material fact and that the moving party is entitled to
a judgment as a matter of law." Fed. R. Civ. P. 56(c).
The appellants' complaint is composed of three
substantive counts (the fourth count is nothing more than a
prayer for punitive damages, and need not be addressed). In the
last analysis, all of those counts depend upon the existence of
a false or misleading representation. We explain briefly.
Under Maine law, a party alleging fraud must make a
five-part showing which encompasses (1) a false representation
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(2) of material fact (3) with knowledge of its falsity or in
reckless disregard of whether it is true or false (4) for the
purpose of inducing another to act in reliance upon it, as well
as a showing that (5) the plaintiff justifiably relied upon the
representation as true and acted upon it to his detriment.
Diversified Foods, Inc. v. First Nat'l Bank, 605 A.2d 609, 615
(Me. 1992). In contrast, a negligent misrepresentation occurs
when
[o]ne who, in the course of his business,
profession or employment, or in any other
transaction in which he has a pecuniary
interest, supplies false information for the
guidance of others in their business
transactions, is subject to liability for
pecuniary loss caused to them by their
justifiable reliance upon the information,
if he fails to exercise reasonable care or
competence in obtaining or communicating the
information.
Chapman v. Rideout, 568 A.2d 829, 830 (Me. 1990) (emphasis
omitted) (citing Restatement (Second) of Torts § 552(1) (1977));
see also Jordan-Milton Mach., Inc. v. F/V Teresa Marie, II, 978
F.2d 32, 36 (1st Cir. 1992). Thus, these two torts, though
distinct, possess a common element: a false representation.
The appellants' third count, as pleaded and pressed,
shares this element, albeit in a slightly altered form. That
count alleges a violation of Maine's Deceptive Trade Practices
Act, Me. Rev. Stat. Ann. tit. 10, §§ 1211-1216. The appellants'
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brief focuses this count on two subsections of section 1212(1)
of that statute. Under the first subsection, a party is guilty
of a deceptive trade practice if it "[r]epresents that goods or
services have sponsorship, approval, characteristics,
ingredients, uses, benefits or quantities that they do not
have." Id. § 1212(1)(E). The other subsection renders a party
liable for a deceptive trade practice if it engages in conduct
of any kind that "creates a likelihood of confusion or
misunderstanding." Id. § 1212(1)(L). Thus, liability under
this count turns on the existence of a false or misleading
representation.1
The foregoing discussion suggests an appropriate
analytic framework for our consideration of this appeal. We
will begin by examining the representations contained in the
accreditation statements. If we find that those representations
are true and not misleading, it follows inexorably that the
1The magistrate judge concluded that the appellants, in
order to prevail on any of their three counts, "must prove . .
. that [NEASC's] representation to them was untrue." Ambrose v.
NEASC, 2000 WL 1195363, at *3 (D. Me. Aug. 7, 2000). As applied
to the deceptive practices count, this is too isthmian a view.
Although subsection 1212(1)(E) requires a false representation,
subsection 1212(1)(L) may be satisfied by any conduct that
creates a likelihood of confusion or misunderstanding. Under
that standard, a misleading representation may be actionable.
Cf. Odom v. Fairbanks Mem'l Hosp., 999 P.2d 123, 132 (Alaska
2000) (construing similar language in Alaska's unfair trade
practices statute to require only that "acts and practices were
capable of being interpreted in a misleading way").
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district court did not err in entering summary judgment for
NEASC on all the appellants' claims. Only if there is an untrue
or misleading representation must we go further.
The appellants' effort to persuade us that the
accreditation statements contain false or misleading material
pinpoints four representations.2 We deal directly with the
central thrust of their argument — which concerns the first
representation — and then address the remaining three
representations as a group.
A.
The appellants assert that the following excerpt from
the long-form accreditation statement is false or misleading:
"Accreditation of an institution by [NEASC] indicates that it
meets or exceeds criteria for the assessment of institutional
quality periodically applied through a peer group review
2NEASC asseverates that it made no representations at all to
the appellants because the College, under no compulsion from
NEASC, opted to publish the accreditation statements in its
course catalogs. This asseveration strikes us as disingenuous.
After all, NEASC wrote and supplied the accreditation
statements, knowing that the College was highly likely to use
them for promotional purposes (as, indeed, it did). Given this
background, we conclude that the appellants have tied NEASC
sufficiently to the accreditation statements to survive a motion
for summary judgment addressed to attribution. See Restatement
(Second) of Torts § 533 (1977) (explaining that the maker of a
fraudulent misrepresentation can be liable when the
misrepresentation is made to a third party and "the maker
intends or has reason to expect that its terms will be repeated"
to the individual who relied on it).
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process." To set the stage for further analysis, we recount
what the record reveals concerning the relevant phase of NEASC's
peer review process.
Once NEASC has accredited an institution of higher
education, it typically places the institution on a ten-year
evaluation cycle. When this decennial review looms, the
institution first must evaluate itself. After the institution
submits a report of its self-assessment, NEASC's Commission on
Institutions of Higher Education (the Commission) swings into
action. The Commission chooses an evaluation team and arranges
a campus visit. The team, composed of educators and other
professionals from unaffiliated schools, grades the institution
in eleven substantive areas. These areas, referred to as
"standards," are: (1) mission and purposes, (2) planning and
evaluation, (3) organization and governance, (4) programs and
instruction, (5) faculty, (6) student services, (7) library and
information resources, (8) physical resources, (9) financial
resources, (10) public disclosure, and (11) integrity. The team
then writes a report detailing its findings in each area. After
considering both the school's self-study and the evaluation
team's appraisal, the Commission decides whether to renew the
institution's accreditation.
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The College went through this process in 1993-94.
Following its receipt of a comprehensive self-study prepared by
the College, the Commission sent an eight-member evaluation team
to the campus in October of 1993. The team looked into the
eleven designated standards and issued a report addressing each
of them. As is customary, the team added a summary of its
findings.
The College survived this scrutiny. Based on the self-
study report and the evaluation team's assessment, the
Commission voted to renew the College's accreditation for ten
years. It warned, however, that it would perform an interim
evaluation of the institution's finances and off-campus programs
after five years.3
The appellants do not deny that this peer review
process took place. They argue instead that, in implementing
it, NEASC failed properly to apply the criteria described in the
accreditation statement and reaccredited the College even though
the College did not "meet[] or exceed[] criteria for the
assessment of institutional quality." To buttress this
argument, the appellants refer us to two pieces of evidence:
3
The record contains no conclusive information as to whether
this mid-term evaluation transpired (or, if so, what it
revealed). That deficiency is of no moment, however, because
all the appellants had already enrolled at the College before
the 1998-99 academic year began.
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(i) the deposition of the Commission's director, Dr. Charles M.
Cook, and (ii) the evaluation team's report. Neither item bears
the weight that the appellants pile upon it.
As the appellants read Dr. Cook's deposition, NEASC did
not require the College to meet or exceed each stated standard,
but, rather, engaged in a balancing process whereby shoddy
performance in one area could be offset by better-than-average
performance in another. This reading finds support in Dr.
Cook's holistic view of the process. He forthrightly admitted
that accreditation involves a "weighing of factors," and he
indicated more than once that the Commission, in applying the
standards, endeavors to "address[] the effectiveness of the
institution as a whole." Indeed, when asked if this meant that
an institution could be weak in one area and strong in another,
yet still gain accreditation, Dr. Cook answered in the
affirmative.
The appellants contend that this merging of the
standards belies the representation contained in the long-form
accreditation statement because the test for accreditation
should be "digital, up or down, pass or fail," so that "either
all the standards are met or they are not." But the
accreditation statements make no such commitment. The short-
form statement is entirely silent on the nature of the process
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for gaining accreditation. The long-form statement declares
that: "Accreditation of an institution by [NEASC] indicates
that it meets or exceeds criteria for the assessment of
institutional quality periodically applied through a peer group
review process." The appellants' gloss notwithstanding, nothing
in this statement indicates that each standard must be evaluated
separately ("pass or fail") or that an institution must satisfy
each and every standard in order to gain accreditation. The
plain language of the accreditation statement does not prohibit
NEASC from applying the standards in a way that lets an
institution's strengths compensate for its weaknesses, thus
allowing the standards as a whole to be satisfied by the overall
assessment of the institution as a whole.
Dr. Cook's testimony shows this to be the case.
Throughout his deposition, Dr. Cook emphasized that NEASC does
not accredit programs, and that the evaluation team probably
would not consider a programmatic shortcoming (if it came to the
team's attention at all) as fatal to accreditation, but, rather,
would treat it as a mundane problem touching upon the
institution's ability to monitor itself properly. The short of
it, then, is that the protocol actually employed by NEASC, as
described by Dr. Cook, is not at odds with the accreditation
statements published in the Thomas College catalogs.
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Nor do we think that either the law or sound scholastic
practices impose a contrary duty. A certain amount of
flexibility in fashioning accrediting standards long has been
recognized as a virtue. See, e.g., Parsons Coll. v. N. Cent.
Ass'n of Colls. & Secondary Sch., 271 F. Supp. 65, 73 (N.D. Ill.
1967) (explaining that an accreditor is "entitled to make a
conscious choice in favor of flexible standards to accommodate
variation in purpose and character among its constituent
institutions, and to avoid forcing all into a rigid and uniform
mold"). This makes perfect sense: after all, benchmarks for
accreditation are not intended as reference points for laymen.
To the contrary, their raison d'etre is to guide professionals
in a particular field of endeavor (here, education). In
constructing such benchmarks, standards that are definitive in
theory easily may become arbitrary in application. Flexibility
blunts the sharp edges of this potential hazard.
For these reasons, we conclude that NEASC's
accreditation process, as Dr. Cook describes it, recognizes the
real-world problems of attempting to gauge diverse institutions
by a universal barometer. Moreover, his characterization of
that process is fully consistent with the depiction of the
process found in the long-form accreditation statement. As a
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matter of law, the plaintiffs have failed to show any false or
misleading representation in this respect.
If more were needed — and we doubt that it is — our
conclusion is reinforced by context. See Sidell v. Comm'r, 225
F.3d 103, 109 (1st Cir. 2000) ("[C]ontext is critically
important in the interpretive process."). Reading the single
sentence highlighted by the appellants in the context of the
entire long-form accreditation statement, we note that the
statement goes on to say: "Accreditation by [NEASC] is not
partial but applies to the institution as a whole. As such, it
is not a guarantee of the quality of every course or program
offered or the competence of individual graduates." This is in
harmony with Dr. Cook's description of the accreditation process
and refutes the appellants' argument that the accreditation
statements must be interpreted to mean that each of the eleven
standards must be evaluated independently of the others. For
these reasons, we conclude that no rational factfinder could
determine that Dr. Cook's deposition demonstrates that the
challenged passage — "[a]ccreditation of an institution by
[NEASC] indicates that it meets or exceeds criteria for the
assessment of institutional quality periodically applied through
a peer group review process" — is false or misleading.
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The appellants have another blackbird baked in their
pie. Following the evaluation team's site visit, the team
issued a written report addressing each of the eleven standards.
The appellants assert that the report showed the College failed
to attain the benchmarks NEASC itself had set; that NEASC
blithely ignored this fact; and that NEASC proceeded to renew
the College's accreditation anyway. Thus, the appellants argue,
the representation that "[a]ccreditation of an institution by
[NEASC] indicates that it meets or exceeds criteria for the
assessment of institutional quality" was deliberately false
because NEASC knew, from the report, that the College had not
met or exceeded the applicable criteria, but had flunked. To
assay the validity of this charge, we turn to the report itself,
keeping in mind that the appellants' burden is to produce
probative evidence that the team found that the College did not
meet or exceed NEASC's own criteria.
According to the appellants, the report describes the
College as a financially troubled institution with insufficient
resources to implement its stated missions and programs, an
inadequate and overworked staff, and no programs in place to
measure and grade institutional effectiveness. We agree that
the report does not downplay the College's difficulties. The
introduction notes that the College has "survived many changes
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in leadership, severe financial difficulties, and all of the
growing pains associated with achieving maturity."
Be that as it may, nothing in the report indicates that
the team concluded that the College, overall, did not meet the
usual criteria for accreditation. In assessing the second
standard (planning and evaluation), the report relates that the
absence of a coherent institutional plan has limited the
College's self-evaluation efforts at all levels. But this
sharply-worded critique is not used as the basis for a
conclusion that the College failed the standard and, thus,
cannot be accredited. Instead, the team uses the observation as
a basis for suggesting that the College undertake the creation
of an institutional plan as the next step in its overall long-
range strategic planning process.
In analyzing standard four (programs and instruction),
the team concluded that "[a]ll programs are appropriate in scale
and rigor." Although the appellants have good reason to
disagree with that conclusion insofar as it pertains to the
associate's degree in medical assisting, the question before us
is not whether the College should have failed its accreditation
review, but, rather, whether the team found that it had failed
(and the Commission accredited it anyway). Here, the most that
can be said is that the evaluation team raised some red flags in
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its discussion of standard four (noting, for example, that
"[p]rogram quality is in danger of being compromised by the
consequences of overtaxing available human and material
resources"), but found that, on the whole, the College satisfied
the standard.
To say more on this subject would be supererogatory.
We have read the report carefully and it simply does not state
that the College failed to meet NEASC's criteria for
accreditation. The only reasonable inference to be drawn from
the report is that, pursuant to the peer review process, the
Commission found that the College had significant room for
improvement in some areas but was worthy of accreditation
because, viewed in an holistic manner, it attained the
benchmarks which NEASC had set. Thus, the report does not prove
that the challenged representation — that "[a]ccreditation of an
institution by [NEASC] indicates that it meets or exceeds
criteria for the assessment of institutional quality
periodically applied through a peer group review process" — is
either false or misleading.
B.
The appellants point to three more representations that
they consider false or misleading. All are contained within the
long-form accreditation statement. The first declares that
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"[a]n accredited school or college . . . has available the
necessary resources to achieve its stated purposes through
appropriate educational programs." The second proclaims that
accreditation "provides reasonable assurance about the quality
of opportunities available to students who attend the
institution." The third states that "[i]nstitutional integrity
is . . . addressed through accreditation."
In the appellants' view, NEASC touted accreditation as
a seal of approval, lulling prospective students into assuming
that accredited institutions possessed the attributes alluded to
in these passages (necessary resources, appropriate educational
programs, good employment opportunities for graduates, and
institutional integrity). Yet, it accredited the College
notwithstanding the fact that these attributes were lacking.
Accordingly, the appellants aver, NEASC's representations as to
the meaning of accreditation were false or, at least,
misleading.
Warding off summary judgment requires nonmovants to
produce materials of evidentiary quality, see Collier v. City of
Chicopee, 158 F.3d 601, 604 (1st Cir. 1998), and the appellants'
experience at the College comprises their evidence that these
representations are empty. But we do not think that this
evidence creates a genuine issue of material fact as to whether
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the cited excerpts from the long-form accreditation statement
are false or misleading. The excerpts themselves are little
more than bland generalities — not the sort of representations
that, under Maine law, can easily be shown to be actionably
false. See Coffin v. Dodge, 76 A.2d 541, 543 (Me. 1950) ("The
fraud must be a misrepresentation of a past or present fact and
not . . . an expression of opinion."); Weaver v. New Engl. Mut.
Life Ins. Co., 52 F. Supp. 2d 127, 133 (D. Me. 1999) (noting
that Maine law requires a claim for fraud to be based on a
misrepresentation of fact); see also Levinsky's, Inc. v. Wal-
Mart Stores, Inc., 127 F.3d 122, 129 (1st Cir. 1997) (observing
that the vaguer a term is, and the more meanings it reasonably
can convey, the less likely it is to be actionable).
Furthermore, the appellants' evidence is program-
specific. Their experience shows, they say, that the College
did not have the resources needed to offer appropriate
educational programs because their chosen course of study — the
medical assisting program — lacked the necessary clinical
courses. They add that the College's accreditation did not
provide them with any assurance about the quality of the
educational opportunities offered since their course of study,
though career-directed, did not prepare them to hold jobs as
medical assistants upon graduation. Finally, they lament that
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the College's accreditation did not assure integrity; to the
contrary, the College advertised courses (such as "Lab
Techniques") that had not been taught in years, and its promise
that it was preparing its graduates for careers in medical
assisting was little more than a cruel hoax.
As a factual matter, the appellants' grievances
engender considerable sympathy. As a legal matter, however,
they do not cut the mustard. The appellants attempt to give the
lie to general statements by attacking one specific program. As
discussed above, the accreditation statements speak to the
institution as a whole, not to any particular program. In fact,
the long-form accreditation statement explicitly disavows any
responsibility on NEASC's part for the excellence of individual
programs, declaring that accreditation "is not a guarantee of
the quality of every course or program offered." Showing that
one tree has borne no fruit does not prove that an entire apple
orchard is barren.
This aspect of the appellants' case suffers from an
even more fundamental flaw. Although the appellants cloak their
claim in the raiment of misrepresentation, this seems to be
little more than creative labeling. The claim, as the
appellants present it, boils down to a claim for negligent
accreditation — a claim that NEASC acted carelessly in
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conferring accreditation because the College did not in fact
meet NEASC's own accreditation requirements. Such a claim
invites us to substitute our judgment for that of professional
educators regarding the College's suitability for accreditation.
We decline the invitation.
We readily acknowledge that there is no Maine case law
directly on point. Our task, then, is to discern the rule the
state's highest court would be most likely to follow under these
circumstances, even if our independent judgment might differ.
See Blinzler v. Marriott Int'l, Inc., 81 F.3d 1148, 1151 (1st
Cir. 1996). In making this informed prophecy, we are guided,
inter alia, by persuasive case law from other jurisdictions and
relevant public policy considerations. Id.; see also FDIC v.
Ogden Corp., 202 F.3d 454, 460-61 (1st Cir. 2000). Analogous
cases strongly suggest the inappropriateness of a court
undertaking a substantive reevaluation of NEASC's decision to
accredit the College.
Perhaps the most instructive case is Marlboro Corp. v.
Association of Independent Colleges & Schools, Inc., 556 F.2d 78
(1st Cir. 1977). There, we considered a school's claim that its
rights were violated when it was denied accreditation. Id. at
79. We refused to second-guess the merits of the accreditation
decision:
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The claim that [the school] was denied equal
protection because the Commission granted
accreditation to schools in equally poor
financial condition . . . really amounts to
a claim that the Commission was incorrect in
its evaluation of either Emery or the other
schools. Whatever may be the proper scope
of judicial monitoring of [accrediting]
associations like AICS, it does not include
de novo review of their evaluative
decisions.
Id. at 80 n.2; accord Rockland Inst., Div. of Amistad Vocational
Sch., Inc. v. Ass'n of Indep. Colls. & Sch., 412 F. Supp. 1015,
1019 (C.D. Cal. 1976) (refusing to conduct a trial de novo on
the issue of accreditation).
This reasoning is applicable here. Since the only way
to reach the appellants' claim that the cited statements are
false or misleading is to review the substance of NEASC's
accreditation decision — to ask ourselves if the College, on the
whole, really had the needed resources, offered an appropriate
curriculum, helped to assure graduates of opportunities in the
job market, and possessed institutional integrity — the claim
sounds in negligent accreditation rather than in
misrepresentation. We conclude, therefore, that the claim is
not actionable.
To be sure, one can find cases in which courts have
entertained claims by educational institutions that accrediting
agencies have arbitrarily denied accreditation. E.g., Wilfred
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Acad. of Hair & Beauty Culture v. S. Ass'n of Colls. & Sch., 957
F.2d 210, 214 (5th Cir. 1992); Med. Inst. of Minn. v. Nat'l
Ass'n of Trade & Tech. Sch., 817 F.2d 1310, 1314 (8th Cir.
1987); Rockland Inst., 412 F. Supp. at 1016; see generally
Found. for Interior Design Educ. Research v. Savannah Coll. of
Art & Design, 244 F.3d 521, 527-28 (6th Cir. 2001) (tracing
development of this doctrine). We do not believe, however, that
the existence of this body of law undermines our conclusion.
Without exception, these cases involve disputes between
an accreditor and an institution seeking either to obtain or to
retain accreditation. The focus tends to be on the process of
accreditation, not on the merits of the accreditation decision.
E.g., Found. for Interior Design Educ. Research, 244 F.3d at
529; Med. Inst. of Minn., 817 F.2d at 1314-15; Rockland Inst.,
412 F. Supp. at 1016-18. Even so, reviewing courts invariably
have afforded the accrediting agency's determination great
deference. See Wilfred Acad., 957 F.2d at 214; Med. Inst. of
Minn., 817 F.2d at 1314; Transport Careers, Inc. v. Nat'l Home
Study Council, 646 F. Supp. 1474, 1482 (N.D. Ind. 1986); Parsons
Coll., 271 F. Supp. at 74; cf. Wynne v. Tufts Univ. Sch. of
Med., 932 F.2d 19, 25 (1st Cir. 1991) (en banc) ("When judges
are asked to review the substance of a genuinely academic
decision, . . . they should show great respect for the faculty's
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professional judgment." (quoting Regents of Univ. of Mich. v.
Ewing, 474 U.S. 214, 225 (1985))).
Moreover, none of these cases involves either a claim
of negligent accreditation or a claim by a person who is not a
party to the accreditation process. We very much doubt the
existence of a cause of action for negligent accreditation on
behalf of third parties.4 See generally Peter H. Schuck, Tort
Liability to Those Injured by Negligent Accreditation Decisions,
Law & Contemp. Probs., Autumn 1994, at 185; cf. Louisiana v.
Joint Comm'n on Accred. of Hosps., 470 So. 2d 169, 177-78 (La.
Ct. App. 1985) (finding that hospital accreditor had no
liability to patients harmed by malfunctioning dialysis machines
because accreditor had no duty to incidental beneficiaries of
accreditation).
Our skepticism is heightened by the strong policy
arguments that militate against endowing ill-served students of
accredited schools with a means to challenge the decisions of
accrediting agencies. These policy concerns include the lack of
a satisfactory standard of care by which to evaluate educators'
professional judgments and the patent undesirability of having
4
The appellants, who have disclaimed any reliance on such a
theory, see Appellants' Reply Br. at 13 ("Appellants repeat that
they are not asking this Court to review the accreditation
decision or to reverse it."), apparently share this skepticism.
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courts attempt to assess the efficacy of the operations of
academic institutions. On much the same policy grounds, courts
consentiently have rejected students' claims of "educational
malpractice" against schools. See Ross v. Creighton Univ., 957
F.2d 410, 414 n.2 (7th Cir. 1992) (collecting cases). We agree
with the amici that these policy reasons counsel just as
strongly in favor of rejecting students' claims of negligent
accreditation. More importantly, we believe that the Maine
Supreme Judicial Court would give great weight to these factors.
We predict, therefore, that Maine would not now recognize a
cause of action by or on behalf of a disgruntled student (or
former student) for negligent accreditation.
To sum up, we could only evaluate the appellants'
contention that the representations complained of were false or
misleading by engaging in a substantive review of the
correctness vel non of NEASC's decision to accredit the College.
We are confident that Maine would not blaze a new, unprecedented
trail and hold an accreditor liable to a consumer of the
accredited service under a negligent accreditation theory.
Accordingly, the appellants' claims insofar as they are based on
the "representations" about resources, programs, employment
opportunities, and institutional integrity, perforce must fail.
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IV. CONCLUSION
We need go no further.5 Taking the facts in the light
most flattering to the appellants, we conclude that they are
unable to show that any of the four cited excerpts from the
accreditation statements were false or misleading. In turn, the
absence of any false or misleading representation dooms all of
the appellants' putative causes of action.
Affirmed.
5
It is NEASC's position that Maine's Deceptive Trade
Practices Act, Me. Rev. Stat. Ann. tit. 10, §§ 1211-1216, does
not apply here because NEASC did not engage in a consumer
transaction with any of the appellants. Given our conclusion
that the appellants have not shown any false or misleading
representation, we need not reach the question of the Act's
applicability to situations of this genre.
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