                           RECOMMENDED FOR FULL-TEXT PUBLICATION
                                Pursuant to Sixth Circuit Rule 206
                                      File Name: 06a0301p.06

                    UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT
                                    _________________


                                                    X
                              Plaintiff-Appellant, -
 THOMAS M. COOLEY LAW SCHOOL,
                                                     -
                                                     -
                                                     -
                                                         No. 05-1891
          v.
                                                     ,
                                                      >
 THE AMERICAN BAR ASSOCIATION, JOHN SEBERT,          -
                          Defendants-Appellees. -
                                                    N
                      Appeal from the United States District Court
                 for the Western District of Michigan at Grand Rapids.
                 No. 04-00221—David W. McKeague, District Judge.
                                     Argued: March 7, 2006
                              Decided and Filed: August 16, 2006
               Before: SILER, BATCHELDER, and GIBBONS, Circuit Judges.
                                      _________________
                                           COUNSEL
ARGUED: Michael L. Cioffi, BLANK ROME, Cincinnati, Ohio, for Appellant. Anne E. Rea,
SIDLEY AUSTIN, Chicago, Illinois, for Appellees. ON BRIEF: Michael L. Cioffi, BLANK
ROME, Cincinnati, Ohio, Michael W. Hartmann, Larry J. Saylor, MILLER, CANFIELD,
PADDOCK & STONE, Detroit, Michigan, for Appellant. Anne E. Rea, David T. Pritikin, Michael
P. Doss, SIDLEY AUSTIN, Chicago, Illinois, for Appellees.
    GIBBONS, J., delivered the opinion of the court, in which SILER, J., joined.
BATCHELDER, J. (p. 10), delivered a separate concurring opinion.
                                      _________________
                                          OPINION
                                      _________________
       JULIA SMITH GIBBONS, Circuit Judge. This case arises from a dispute between the
American Bar Association, the national accrediting body for law schools and its Consultant on Legal
Education John Sebert (collectively “ABA”), and the Thomas M. Cooley Law School (“Cooley” or
“the school”), an accredited law school located in Lansing, Michigan. The dispute centers on
Cooley’s attempts to begin two satellite programs – one at Oakland University in Rochester
(“Oakland campus”) and one in Grand Rapids (“Grand Rapids campus”). Cooley claims that the
ABA denied Cooley due process in failing to accredit the two proposed satellites and in imposing
sanctions on Cooley for operating the satellites without ABA prior acquiescence. The district court
denied these claims and granted judgment to the defendants. As we find that the ABA afforded
Cooley all due process in making its rulings, we affirm.

                                                1
No. 05-1891           Cooley Law School v. Amer. Bar Ass’n, et al.                             Page 2


                                                  I.
         The federal government does not directly accredit institutions of higher education. Rather,
the Secretary of Education approves accrediting agencies for different types of educational
programs, and these accrediting bodies set independent standards for accreditation. Accreditation
is important to a school for a number of reasons, not the least of which is that it allows the students
of the school to receive federally-backed financial aid. In addition, the majority of states use ABA
accreditation to determine whether an individual applying for admission to the Bar has satisfied the
state’s legal education requirement.
        The ABA’s Council on the Section of Legal Education (“Council”) is the organization
charged with accrediting law schools. The Council makes its decisions following a review and
recommendation by the ABA’s Accreditation Committee (“Committee”). The process is governed
by written Standards, Rules, and Interpretations that are adopted after both public review and
comment and review by the ABA House of Delegates (“House”). The Standards describe the
requirements that a law school must meet to obtain and retain ABA approval. Standard 105 states:
“Before a law school makes a major change in its program of legal education or organizational
structure it shall obtain the acquiescence of the Council for the change.” The opening of an
additional campus falls under Standard 105. Under ABA rules, a school may offer up to 20% of its
legal program at a separate campus without this being a “major change” requiring prior approval.
If a school offers more than 20% of its program, however, this does constitute a major change and
the ABA must grant acquiescence. Under pre-2003 ABA interpretations, any offering beyond the
20% limit was considered to be the opening of a full “branch campus” and was treated as the
creation of a new law school. In December 2001, the Council proposed a new interpretation of
Standard 105, which would add an intermediate “satellite campus” option. Under the new
interpretation, the opening of a satellite would constitute a major change requiring ABA
acquiescence but would not be subject to the same heightened review of a full branch campus. The
interpretations were not officially adopted until approved by the House in February 2003.
         In 2002, Cooley applied to the ABA to open a satellite at the Oakland campus. The school
structured its application to be consistent with the proposed interpretations of Standard 105, despite
its acknowledgment that the interpretations “remain[ed] pending” and had not been approved.
Under either the old or new interpretations, Cooley’s proposal constituted a major change that
required ABA acquiescence. While awaiting ABA approval, Cooley began a first-year program at
the Oakland campus, which did not require prior acquiescence because it constituted less than 20%
of Cooley’s official law program. The ABA conducted a full review of the application, including
a site visit, and the findings were reported to the Committee. As the new interpretations of Standard
105 had not been approved, the Committee considered Cooley’s application under the existing, more
stringent requirements for a branch campus and found it lacking. The Committee summarized its
findings in a report, and Cooley responded, expressing its disagreement but stating, “[W]e do not
contest that acquiescence is required.” The Council did not act on the Committee’s
recommendations and instead sent the matter back to the Committee for consideration of new
information submitted by Cooley. In the interim, Cooley submitted an application for a second
satellite campus, this one at Grand Rapids.
        In January 2003, the Committee again considered Cooley’s proposal using the existing
interpretation of Standard 105 and again recommended that the application be denied. The
Committee found problems with the proposal’s outline of student services, library resources, full-
time faculty, and facilities. The ABA also had previously expressed concern regarding Cooley’s
compliance with Standard 501, which mandates that law schools should only admit students who
appear capable of being admitted to the Bar; the Committee felt that adding a new campus, and thus
more students, would exacerbate this problem. In February 2003, the Council adopted the
No. 05-1891               Cooley Law School v. Amer. Bar Ass’n, et al.                                         Page 3


Committee’s recommendation and denied Cooley’s application. Two days later, the House adopted
the proposed interpretations of Standard 105 relating to satellite campuses.
        On the day Cooley received the Council’s ruling, the school informed the ABA that it was
increasing its program offering at both campuses above the 20% level, despite the fact that the
school had been denied acquiescence. Cooley attempted to justify this move through its reading of
ABA Rule 19(d). Rule 19(d) states:
         An approved law school must inform the Consultant prior to implementing any
         proposed major structural change(s) so that a site evaluation visit may be promptly
         scheduled. In the event that the major change in organizational structure is the
         opening of a branch or an additional location, the site evaluation visit shall take place
         within six months of the start of classes at the branch or additional location.
Cooley argued that the plain language of Rule 19 dictated that an existing accredited law school
must only “inform” the ABA of its decision to implement the major change of opening a branch
location, so that a site visit could be scheduled “within six months of the start of classes at the
branch or additional location.” The school reasoned that it had informed the ABA and thus could
operate for six months, allowing the ABA to make the necessary site visit.
        The ABA immediately informed Cooley that its reading of Rule 19 was “erroneous” and that
ABA regulations clearly required acquiescence prior to making any “major change.” The letter cited
Standard 105, which states: “Before a law school makes a major change in its program of legal
education or organizational structure it shall obtain the acquiescence of the Council for the change.”
Rule 19(d), the ABA wrote, dealt only with the scheduling of site visits and provided an exception
to the default ABA rule that site visits must occur within two years of approval. The ABA also cited
Rule 19(a)1 and Department of Education regulations, 34 C.F.R. § 602.22(a)(1)-(2)(vii), both of
which require approval of substantive changes (including adding a location) before the change takes
place. The ABA also informed Cooley that “operating either of these programs without prior
acquiescence of the Council would be a violation of Standard 105 and could subject the school to
sanctions.” The ABA reaffirmed this position in other letters sent in February, March and August
of 2003.
        In October 2003, Cooley submitted applications for the opening of full branch campuses at
both the Oakland and Grand Rapids locations. In November, Cooley appeared before the Committee
regarding its applications. The Committee concluded that Cooley was operating satellite campuses
without prior acquiescence in violation of Standard 105 and recommended that the Council not
acquiesce in the proposals. The Committee also requested that Cooley appear at its next meeting
in January to show cause why the school should not be sanctioned. The Council concurred both in
denying the application and in asking Cooley to appear at the show-cause hearing. The Council also
informed Cooley that no action would be taken on its October 2003 branch applications until the
school’s Oakland and Grand Rapids campuses were in compliance with the Standards.
       On March 30, 2004, Cooley filed the instant lawsuit. After Cooley filed a motion for a
preliminary injunction, the parties entered into a Stipulation and Agreed Order, by which Cooley
agreed to reduce its offerings at Oakland and Grand Rapids to comply with the 20% limit on non-
approved programs. Cooley further agreed not to expand the programs without ABA approval. The
ABA agreed to move the show-cause hearing to June. Both parties complied with the Order.

         1
           Rule 19(a) states: “A major change in the organizational structure of an approved law school raises concern
about the school’s continued compliance with the Standards. Before making a major change in its organizational
structure, a provisionally or fully approved law school shall apply for and obtain acquiescence in the proposed change.”
(emphasis added).
No. 05-1891           Cooley Law School v. Amer. Bar Ass’n, et al.                             Page 4


        At the June 2004 show-cause hearing, Cooley argued that the ABA did not have the authority
to impose sanctions under its own rules, because the school had reduced its program offerings and
was now “in compliance” with all ABA rules. The Committee disagreed and recommenced
sanctions. The Council adopted the Committee’s recommendation, censuring Cooley for its
“substantial and persistent noncompliance” with ABA standards and directives and ruling that the
school would be ineligible to operate branch or satellite campuses until July 31, 2006. The Council
also declined to address the merits of Cooley’s branch applications, noting its doubts about the
school’s ability to maintain a sound legal educational program and stating that any decision
regarding opening a satellite campus in 2006 would have to be made with more current information.
The Council informed Cooley that it could file a new application for a satellite or branch campus
in the summer or fall of 2005.
        Following this decision, Cooley filed an amended complaint, again challenging the ABA’s
refusal to acquiesce in its satellite programs and adding claims relating to the imposition of
sanctions. Specifically, Cooley claimed that the ABA denied its common law right to due process
and requested judicial review of the ABA’s decision. Cooley also brought claims under the Higher
Education Act (“HEA”), 20 U.S.C. § 1099b, and under state law. The district court dismissed the
HEA claim and state law claims for failure to state a claim, Fed. R. Civ. P. 12(b)(6), and granted
summary judgment on the common law due process claim. Cooley filed a timely appeal.
                                               II.
        Only the common law claims are properly before this court. Cooley makes no argument
regarding its state law claims except to “acknowledge[] that the district court’s holding is consistent
with Foundation [for Interior Design Education Research v. Savannah Coll. of Art & Design, 244
F.3d 521, 528-29 (6th Cir. 2001)], but submit[] that Foundation is wrongly decided for the reasons
set out in Cooley’s brief in the district court.” This statement is not sufficient to preserve a claim
of error, as a party is not allowed to incorporate by reference into its appellate brief the documents
and pleadings filed in the district court. Northland Ins. Co. v. Stewart Title Guar. Co., 327 F.3d 448,
452 (6th Cir. 2003); see also United States v. Layne, 192 F.3d 556, 566-67 (6th Cir. 1999) (“[I]ssues
adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation,
are deemed waived.”). Thus, Cooley has waived any argument of error pertaining to its state law
claims.
        Additionally, Cooley may not bring a claim under the HEA because the statute does not
create a private right of action. Although this court has never addressed the question of whether the
HEA creates such a right, “nearly every court to consider the issue in the last twenty-five years has
determined that there is no express or implied private right of action to enforce any of the HEA’s
provisions.” McCulloch v. PNC Bank Inc., 298 F.3d 1217, 1221 (11th Cir. 2002) (collecting cases);
see also College Loan Corp. v. SLM Corp., 396 F.3d 588, 598 (4th Cir. 2005); Parks School of
Business, Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995); Labickas v. Ark. State Univ., 78
F.3d 333, 334 (8th Cir. 1996); L’ggrke v. Benkula, 966 F.2d 1346, 1348 (10th Cir. 1992).
       Cooley acknowledges that the HEA does not expressly create a private right of action but
argues that one can be inferred from § 1099b(f), which states:
       Notwithstanding any other provision of law, any civil action brought by an
       institution of higher education seeking accreditation from, or accredited by, an
       accrediting agency or association recognized by the Secretary . . . and involving the
       denial, withdrawal, or termination of accreditation of the institution of higher
       education, shall be brought in the appropriate United States district court.
No. 05-1891           Cooley Law School v. Amer. Bar Ass’n, et al.                                  Page 5


This court has stated that it will “not [] infer the existence of private rights of action haphazardly.”
Pertuso v. Ford Motor Credit Co., 233 F.3d 417, 421 (6th Cir. 2000). In determining whether to
imply a private right of action, a court looks to four factors.
       First, we consider whether the plaintiff is one of the class for whose especial benefit
       the statute was enacted. Second, we examine legislative history to see if we can
       discern any intent either to create or to deny a right of action under the statute. Third,
       we weigh whether implying a right of action would be consistent with the purposes
       of the legislative scheme. Finally, we determine whether the cause of action is one
       traditionally relegated to state law, so that it would be inappropriate to infer a cause
       of action based solely on federal law.
Parks School, 51 F.3d at 1484 (citing Cort v. Ash, 422 U.S. 66, 78 (1975)). In examining these
factors, we see no reason not to follow the holdings of our sister circuits. The HEA was passed to
benefit students, not educational institutions. See 20 U.S.C. § 1070(a). Although educational
institutions derive protections from the statute, they are not the group “for whose especial benefit
the statute was enacted.” Implying a private right also would be contrary to the legislative scheme,
as the statute explicitly provides for enforcement through an administrative action brought by the
Secretary. See id. § 1099b(l)(1). Courts should imply private rights of action only if it finds
affirmative evidence that Congress intended to create such a right. See Alexander v. Sandoval, 532
U.S. 275, 286-87 (2001). No such evidence exists in this statute. Rather, § 1099b(f) is labeled
“Jurisdiction.” Its purpose is to give federal courts exclusive jurisdiction over disputes involving
accreditation, like the present case. Such disputes can be resolved, not through the HEA, but
through a common law claim for due process and adequate judicial review.
                                               III.
        We thus turn to the only remaining issue – Cooley’s claim that the ABA’s rejection of its
proposals and imposition of sanctions violated the school’s common law right to due process. The
district court granted summary judgment to the ABA, and we review this ruling de novo.
Lautermilch v. Findlay City Sch., 314 F.3d 271, 274 (6th Cir. 2003).
                                               A.
       Many courts, including this one, recognize that “quasi-public” professional organizations
and accrediting agencies such as the ABA have a common law duty to employ fair procedures when
making decisions affecting their members. See Foundation for Interior Design Education Research
v. Savannah Coll. of Art & Design, 244 F.3d 521, 527-28 (6th Cir. 2001); Chicago School of
Automatic Transmissions, Inc. v. Accreditation Alliance of Career Schools and Colleges, 44 F.3d
447, 450 (7th Cir. 1994); Wilfred Acad. of Hair & Beauty Culture v. Southern Ass’n of Colls. &
Schools, 957 F.2d 210, 214 (5th Cir. 1992); Medical Inst. of Minnesota v. National Ass’n of Trade
& Technical Schools, 817 F.2d 1310, 1314 (8th Cir. 1987). Courts developed the right to common
law due process as a check on organizations that exercise significant authority in areas of public
concern such as accreditation and professional licensing. See Majorie Webster Junior Coll., Inc.
v. Middle States Ass’n of Colls. & Secondary Sch., Inc., 432 F.2d 650, 655-56 (D.C. Cir. 1970);
Falcone v. Middlesex County Medical Soc., 170 A.2d 791, 799 (N.J. 1961); see also Foundation,
244 F.3d at 527-28 (recognizing the development of this right). The ABA is such an organization,
and we must therefore determine whether the ABA afforded Cooley adequate process in denying
the applications for satellite programs and imposing sanctions.
        To answer this question, we look to federal law. Although this court in Foundation applied
state law to resolve a similar dispute, the agency in that case was not at that time approved by the
Secretary of Education and thus was not subject to the HEA. Federal courts have exclusive
No. 05-1891           Cooley Law School v. Amer. Bar Ass’n, et al.                               Page 6


jurisdiction over any action brought by a school challenging an accreditation decision made by an
organization approved by the Secretary (such as the ABA). 20 U.S.C. § 1099b(f). This grant of
exclusive federal jurisdiction necessarily implies that federal law should govern disputes relating
to decisions made by those bodies. It would make little sense for state law to govern claims that
could not be heard in any state court. “It is hard enough to be a ventriloquist’s dummy in diversity
suits under Erie; it is all but impossible to see how federal courts could apply state law to the actions
of accrediting agencies when state courts have been silenced by the provision for exclusive
jurisdiction.” Chicago School, 44 F.3d at 449. If a grant of federal jurisdiction can justify the
creation of federal common law, see, e.g., Textile Workers v. Lincoln Mills, 353 U.S. 448, 456-57
(1957), a grant of exclusive jurisdiction necessarily implies the application of federal law.
        We must next determine under what principles of federal law we review a decision by an
accrediting agency. Both Cooley and the ABA argue that the Administrative Procedure Act (“Act”),
5 U.S.C. § 701, provides the proper framework for reviewing the accreditation process. If the
decision was made directly by the Secretary of Education, the presumption would be to review the
case under the principles set forth in the Act. The Secretary, however, has delegated his authority
regarding law school accreditation to the ABA, which is not a government authority and thus is not
governed by the Act. Id. §§ 701(b), 702. Despite this delegation, however, the ABA does act on
behalf of the Secretary and wields the quasi-governmental power of deciding which law schools are
eligible for federal funds. Thus, while the Act does not specifically apply to the ABA, principles
of administrative law are useful in determining the standard by which we review the ABA’s
decision-making process. See Chicago School, 44 F.3d at 450.
       A number of courts have used these principles in fashioning a standard of review. Though
some of the cases applied state law, see Foundation, 244 F.3d at 527, and others have left the
choice-of-law question unanswered, see Wilfred Acad., 957 F.2d at 214; Medical Institute of
Minnesota, 817 F.2d at 1314-15, courts have uniformly looked to administrative law in reviewing
accreditation decisions. We agree and apply the standard of review that has developed in the
common law. This court reviews only whether the decision of an accrediting agency such as the
ABA is arbitrary and unreasonable or an abuse of discretion and whether the decision is based on
substantial evidence. See Foundation, 244 F.3d at 529; Chicago School, 44 F.3d at 449.
        This standard of review resembles the review applied under the Act. See 5 U.S.C.
§ 706(2)(A) (“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the
law”). We emphasize, however, that while principles of federal administrative law provide guidance
in our analysis, judicial review of accreditation decisions is more limited than review under the Act.
Although accrediting agencies perform a quasi-governmental function, they are still private
organizations. Courts have made the policy decision to ensure that these organizations act in the
public interest and do not abuse their power, but judicial review is limited to protecting the public
interest. Recognizing that “the standards of accreditation are not guides for the layman but for
professionals in the field of education,” Wilfred Acad., 957 F.2d at 214 (quoting Parsons College
v. North Cent. Ass’n of Colleges & Secondary Sch., 271 F. Supp. 65, 73 (N.D. Ill. 1967)), great
deference should be afforded the substantive rules of these bodies and courts should focus on
whether an accrediting agency such as the ABA followed a fair procedure in reaching its
conclusions. We are not free to conduct a de novo review or substitute our judgment for that of the
ABA or its Council. Rather, in analyzing whether the ABA abused its discretion or reached a
decision that was arbitrary or unreasonable, we focus on whether the agency “conform[ed] its
actions to fundamental principles of fairness.” Medical Institute of Minnesota, 817 F.2d at 1314.
                                                B.
         Cooley argues that the ABA abused its discretion in refusing to consider the merits of its
satellite application at the 2004 hearing and in imposing sanctions in violation of the ABA’s own
No. 05-1891          Cooley Law School v. Amer. Bar Ass’n, et al.                                Page 7


rules. Cooley also alleges that a number of due process violations occurred during the three rounds
of hearings in 2002-2004.
1. Imposition of Sanctions
       Cooley makes two arguments regarding the ABA’s decision to impose sanctions that
prevented Cooley from operating a satellite or branch campus until July 31, 2006. First, Cooley
argues that the ABA abused its discretion by sanctioning the school in violation of its own rules.
Second, Cooley alleges that the sanction was arbitrary and unreasonable and violated due process.
An abuse of discretion can only be found if no evidence supports the decision or if the agency
misapplied the law. National Engineering & Contracting Co. v. OSHA, 928 F.2d 762, 768 (6th Cir.
1991).
       Cooley argues that the plain language of ABA Rule 13, which outlines hearings on show-
cause orders, prohibited the Council from imposing sanctions because, at the time of the hearing,
Cooley was in compliance with all ABA governing standards. Rule 13 states in relevant part:
       (b) Representatives of the law school, including legal counsel, may appear at the
       hearing and submit information to demonstrate that the school is currently in
       compliance with all the Standards or to present a reliable plan for bringing the school
       into compliance with all of the Standards within a reasonable time.
       (d) After the hearing, the Committee shall determine whether the law school is in
       compliance with the Standards and, if not, it shall direct the law school to take
       remedial action or shall impose sanctions as appropriate.
               (1) . . .
               (2) If matters of noncompliance are substantial or have been persistent, then
               the Committee may recommend to the Council that the school be subjected
               to sanctions other than removal from the list of approved law schools
               regardless of whether the school has presented a reliable plan for bringing the
               school into compliance.
               (3) . . .
       (e) If the Committee determines that the law school is in compliance, it shall
       conclude the matter by adopting an appropriate resolution . . . .
Cooley reads these subsections as stating that the purpose of the show-cause hearing is not to
determine whether the school has previously violated ABA rules, but rather to determine whether
the school “is currently in compliance” with the Standards. Regardless of its previous actions,
Cooley argues it had reduced its course offerings below the 20% level at the time of the show-cause
hearing; thus, it was “currently in compliance” and the ABA should have “conclude[d] the matter.”
By not doing so, Cooley contends, the ABA failed to follow the plain language of its own rules, and
thus, the decision is not entitled to deference.
       We agree with the ABA that Rule 13 cannot be given such a literal interpretation.
Subsections (d) and (e) must be read in conjunction with the remainder of Rule 13, as well as other
ABA rules. While not dispositive, subsection (d)(2) has a clear focus on past violations that “have
been persistent.” More importantly, Rule 11(b), which determines when a school can be called to
a show-cause hearing, does not require current noncompliance:
       If, upon a review of the information furnished by the law school in response to the
       Committee’s request and other relevant information, the Committee determines that
       the school has not demonstrated compliance with the Standards, the school may be
       required to appear at a [show-cause] hearing . . . (emphasis added).
No. 05-1891           Cooley Law School v. Amer. Bar Ass’n, et al.                              Page 8


The language of this rule exposes the fallacy of Cooley’s argument. Under Rule 11, the ABA can
require a school that “has not demonstrated compliance” to show cause as to why it should not be
sanctioned, regardless of whether the school is currently in compliance with the Standards. It would
make little sense for the ABA to require a currently-compliant school to make such a showing if it
had no power to sanction that school.
        Cooley’s interpretation of Rule 13 would also allow schools to come in and out of
compliance to avoid sanctions. In this case, the school remained in compliance through the February
2003 acquiescence decision, at which time it increased its course offerings and went out of
compliance. Following the Agreed Order and in advance of the June 2004 show-cause hearing, the
school quickly reduced its course offerings and came back into compliance. Cooley’s actions
demonstrate the danger of its reading of Rule 13, which would render the ABA powerless to
sanction such blatant disregard of its rules and standards. This court must defer to an agency’s
interpretation of its own rules unless plainly erroneous. See A.D. Transport Express, Inc. v. United
States, 290 F.3d 761, 766 (6th Cir. 2002). While Cooley’s proposed interpretation of Rule 13 is
perhaps plausible, the ABA’s reading is not clearly erroneous and in fact is more logical. Thus, the
ABA’s imposition of sanctions despite Cooley’s compliance with ABA standards at the time of the
hearing does not constitute an abuse of discretion.
        Cooley also argues that the sanction itself was arbitrary and unreasonable and violated due
process. An agency sanction, though, “if within the bounds of its lawful authority, is subject to very
limited judicial review,” and “the severity of the sanction is not open to review.” Goldstein v.
United States, 9 F.3d 521, 523 (6th Cir. 1993) (citation and internal quotation marks omitted); see
also Cobb v. Yeutter, 889 F.2d 727, 730 (6th Cir. 1989) (“We review only to ensure that the chosen
penalty is an allowable judgment under the law and the facts.”) (citations omitted). In this case, the
basis for the sanctioning decision was well-known and well-supported by the evidence. Cooley does
not dispute in this court its noncompliance during the February 2003 through April 2004 period.
The Committee’s report, which was adopted by the Council, carefully details the relevant findings
and rationales supporting the sanction. Even though the sanction may have had significant impact
on Cooley, it cannot be described as arbitrary and unreasonable, especially given the highly
deferential standard of review and the evidence of Cooley’s blatant and intentional noncompliance
with ABA rules.
2. The Acquiescence and Sanctioning Hearings
        Cooley next contends that the district court erred in failing to address its claims that the ABA
abused its discretion in denying the satellite applications in 2002 and 2003, before the school’s
noncompliance. The district court did, however, address these claims, and in any case, they are
meritless. Cooley was afforded ample process at each of the ABA hearings – it was notified well
in advance, afforded the opportunity to submit evidence to supports its case, and permitted to appear
before the body with counsel present. After each group of hearings, the Committee issued a detailed
written report outlining its findings and recommendations. The Council in turn wrote a letter
outlining its conclusions, referencing the findings of the Committee and the applicable rules and
standards.
        Cooley’s claim that the ABA erred in not using the new interpretations of Standard 105 in
the December 2002 and January 2003 evaluations of the school’s satellite applications, when those
interpretations were not officially adopted until February 2003, is equally baseless. We refuse to
hold that an accrediting agency abuses its discretion by following its existing regulations, rather than
ones that are proposed but not yet adopted. Such a ruling would turn rulemaking on its head and
leave accrediting agencies vulnerable to attack anytime a rule change was in process. The other
errors alleged by Cooley – a conflict of interest by one Committee member and the use of an
incorrect fact sheet during one of the hearings – do not amount to a due process violation. The
No. 05-1891           Cooley Law School v. Amer. Bar Ass’n, et al.                            Page 9


supposed conflict of interest arose because one Committee member was the dean of another law
school. After considering the matter, the Committee denied the request that the member be replaced,
finding no danger of bias and reasoning that Cooley’s logic would disqualify almost any member
of the Committee. As to the incorrect fact sheet, it was quickly corrected and there is no evidence
that the Committee relied on it in reaching its conclusion. As both of these claims of error were duly
considered by the ABA and rejected with sufficient reasoning, they do not constitute an abuse of
discretion and do not in any way violate Cooley’s right to a fair process.
        Cooley also argues that the Council abused its discretion in declining to act on its satellite
campus applications at the June 2004 hearing. The Council was well within its discretion not to rule
on the merits of the applications, as the imposition of sanctions meant that the satellites would not
open until 2006, and thus, the Council did not have sufficient information on which to base its
decision. The delay allowed the Committee to conduct an additional site visit in the summer of
2005, giving the ABA the most up-to-date information on which to base the accreditation decision.
Cooley has not argued that the decision to delay contradicted ABA rules or established policies. In
fact, the focus of Rule 19(d) is to ensure that the ABA makes decisions on satellite and branch
campuses based on current information. The decision to delay ruling on the satellite applications
did not constitute an abuse of discretion.
         Finally, Cooley raises a number of alleged procedural problems with the sanctions hearing:
the denial of its request to cross-examine witnesses, the combined prosecutorial and adjudicative
functions, and the possible introduction of ex parte evidence. As the district court correctly noted,
these allegations “do not even hint at the existence of prejudicial error” that would be needed to
justify relief. “[A] mistake that has no bearing on the ultimate decision or causes no prejudice shall
not be the basis for reversing an agency’s determination.” Coalition for Gov’t Procurement v. Fed.
Prison Ind., Inc., 365 F.3d 435, 468 (6th Cir. 2004). In light of the undisputed evidence of
substantial and persistent noncompliance, Cooley cannot show that it would not have been
sanctioned had these alleged errors not occurred.
                                               IV.
       For the foregoing reasons, the decision of the district court is affirmed.
No. 05-1891           Cooley Law School v. Amer. Bar Ass’n, et al.                              Page 10


                                     _______________________
                                         CONCURRENCE
                                     _______________________
        ALICE M. BATCHELDER, Circuit Judge. I concur in the court’s opinion. I write
separately because although my point of disagreement does not affect the outcome of this case, I
disagree with the majority’s interpretation of ABA Rule of Procedure 13(d). Both the plain
language and the structure of the rule make plain that the ABA could not sanction Cooley unless
Cooley was not in compliance with the ABA Standards at the time of the show cause hearing. At
the time of the hearing, the rule, by its plain language, instructed the Committee to determine
“whether the law school is in compliance with the Standards . . . .” ABA R. PROC. 13(d) (emphasis
added). If so, Rule 13(e) directed the Committee to “conclude the matter by adopting the
appropriate resolution . . . .” If not, Rule 13(d) required the Committee to “direct the law school to
take remedial action” or “impose sanctions.” The ABA’s use of “is” in the flush language of Rule
13(d) required it to make a present-tense determination of compliance. Therefore, the latter courses
of action were permitted only if the Committee found that the school was not in compliance at the
time of the hearing. In my view any other interpretation of the rule turns grammar on its head.
        That the rule required a determination of compliance at the time of the hearing is evident not
only from its plain language, but also from its structure. The subsections of Rule 13(d) that penalize
persistent noncompliance were available only upon an initial finding of current noncompliance as
required by the flush language of the rule. Furthermore, Rule 14, which described the Council’s
consideration of sanctions at the time of Cooley’s hearing, clearly contemplated that sanctions would
apply only to schools that were not currently in compliance. Rule 14(a) provided that the Council
“may direct the law school to take remedial action or subject it to sanctions . . . regardless of whether
the school has presented a reliable plan for bringing the school into compliance . . . .” Rule 14(c)
next provided that, if the Council imposed sanctions on a school that had no remedial plan, the
“Committee shall monitor the steps taken by the school to come into compliance.” By its plain
language, then, the rules contemplated sanctions for only two types of schools: those that were not
in compliance but had a remedial plan, and those that were not in compliance and had no such plan.
If, as Cooley alleges, it was in compliance at the time of the hearing, it fell into neither category and
sanctions were inappropriate.
        Finally, Rule 14’s focus on compliance makes clear that the ABA intended sanctions to be
remedial, not punitive, in nature. Accordingly, Rule 14’s final section provided that “[a]t any time
that the school presents information on which the Committee concludes that the school is in full
compliance with the Standards, the Committee shall recommend to the Council that the school be
taken off probation.” ABA R. PROC. 14(d). When read in light of Rule 14, the already clear
instructions of Rule 13 become inescapable. Under Rule 13(d), the Council was not permitted to
sanction Cooley unless Cooley was not in compliance with ABA standards at the time of the show
cause hearing.
