Ambrose v. New England Ass'n of Schools & Colleges, Inc.

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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