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ACCREDITATION APPEAL MUST PROVE ERROR

Feb. 11, 2002 – When the Virgin Islands makes its case on Feb. 28 for reversing the withdrawal of accreditation from three of the territory's four public high schools, it will do so before a tribunal operating within formalized procedures established by the Middle States Association of Colleges and Schools.
The "Procedures for Appeals from Decisions of an Accrediting Commission of the Association" have been in effect since they were approved by the membership of the association in 1994.
A appeal is a response to an "adverse accrediting action." In the Virgin Islands case, that action was a decision "terminating or denying renewal of the candidacy or accreditation status of an institution."
"It's all very legalese," Susan K. Nicklas, deputy executive director of Middle States' Commission on Secondary Schools noted Friday. And that's the way it's meant to be.
An appeal goes before a hearing panel which represents the Middle States Association, not the Commission on Secondary Schools. The commission is one of the adversarial parties making their case before the hearing panel; the appellant — in this case, the V.I. government — is the other one. Lawyers can get into the act from all sides: The chair of the hearing panel "shall be advised by counsel to the association respecting the course of proceedings," and "appellant and the commission may be represented by counsel, and their respective cases may be presented by counsel or any other designee or designees of their choice."
In a Feb. 2 release, Education Commissioner Ruby Simmonds said the Virgin Islands will be permitted to send four representatives to the hearing — one from the central administration and one each from the affected schools.
The appeal actually is the second step in seeking to get the commission to change its mind. The first is a "request for reconsideration" on the part of the commission executive committee. This must be submitted in writing within 30 days of receipt of the adverse accrediting action. The Virgin Islands schools were advised in mid-November of last year of the commission's decision to withdraw accreditation.
A request for reconsideration must "be based solely upon the evidence before the commission at the time the adverse accrediting action was made and shall specify the particular asserted error or errors in the adverse accrediting action," the "Procedures for Appeals" document states. However, the appellant also may submit new documentary evidence "demonstrating substantially changed circumstances that, if presented to the commission, may reasonably have resulted in a different accreditation action."
The burden for the appellant is to demonstrate "that the commission erred in issuing its adverse accrediting action." It is only if the executive committee denies the request for reconsideration that the appellant has the right to file an appeal, which the territory has done.
The appeal will be before a three-member hearing panel whose members are drawn from a 16-member pool approved by the president of the Middle States Association board of directors at its annual meeting.
Appeals are, as a general rule, to "be based solely on the evidence and record before the commission, inclusive of any evidence of substantially changed circumstances submitted as part of a request for reconsideration." The hearing panel is charged with determining whether evaluation errors or omissions, demonstrable bias and/or unsupported, arbitrary or capricious action entered into the commission's decision to take the adverse accrediting action.
The notice of intent to appeal must specify "the particular asserted error or errors in the adverse accrediting action."
At the hearing, the appellant has "the burden of proof in seeking to reverse or modify an adverse accrediting action," while the commission gets "to present argument in rebuttal, and each party shall have an opportunity to make a closing statement. The members of the hearing panel may question either party at any point … no evidence not already properly in the record on appeal shall be accepted, provided that the parties may offer witnesses for the limited purpose of elucidating the meaning of evidence properly before the hearing panel."
Beyond the hearing itself, the process also may involve the filing of post-hearing briefs by both parties.
Simmonds, in a release distributed to the news media on Friday, said that Central, Charlotte Amalie and Ivanna Eudora Kean High Schools "are still accredited." Noting that "in recent hearings and other forums, officials, in discussing this matter, continue to state that the schools have lost accreditation," she cited a provision of the "Procedures for Appeals" document:
"The accreditation status of an appellant automatically remains in effect until the expiration of the period within which appellant may file a request for reconsideration, or the completion of the association appeals process, whichever shall later occur."
Simmonds added, "This means that the three public high schools are still accredited, and will remain in that status pending the decision of the commission, which is expected to be announced following the commission's meeting in April."
Nicklas, asked on Friday whether that was a correct statement, said that she had recommended to Simmonds in a telephone conversation the day before that she "quote the actual policy language." The commissioner's stance is "accurate insofar that the adverse accrediting action remains in a pending state," Nicklas added.
In any event, the objective of the V.I. government and its Education Department is for the issue to become a moot point by action of the commission to rescind its action previously taken.
Nicklas said she will be presiding at the hearing, which will take place in Lawrenceville, New Jersey. Two of the three hearing panel members "have chaired accreditation teams in the Caribbean," she said.
The hearing panel will submit its recommendation to the commission, which is expected to act upon it — affirming, reserving or modifying its earlier action — at its semi-annual meeting April 26-27.

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