                            PUBLISHED

                 UNITED STATES COURT OF APPEALS
                     FOR THE FOURTH CIRCUIT


                           No. 14-1086


PROFESSIONAL MASSAGE    TRAINING   CENTER,   INCORPORATED,   a
Missouri Corporation,

               Plaintiff - Appellee,

          v.

ACCREDITATION ALLIANCE OF CAREER SCHOOLS AND COLLEGES, d/b/a
Accrediting Commission of Career Schools and Colleges, a
Virginia Corporation,

               Defendant - Appellant.

------------------------

ACCREDITATION REVIEW COMMISSION ON EDUCATION FOR THE
PHYSICIAN    ASSISTANT;     ACCREDITATION    COMMISSION    FOR
ACUPUNCTURE AND ORIENTAL MEDICINE; ACCREDITATION COUNCIL FOR
PHARMACY EDUCATION; ACCREDITING BUREAU OF HEALTH EDUCATION
SCHOOLS, INCORPORATED; ACCREDITING COMMISSION FOR COMMUNITY
AND JUNIOR COLLEGES, WESTERN ASSOCIATION OF SCHOOLS AND
COLLEGES; ACCREDITING COUNCIL FOR CONTINUING EDUCATION &
TRAINING; ACCREDITING COUNCIL FOR INDEPENDENT SCHOOLS AND
COLLEGES; AMERICAN COUNCIL ON EDUCATION; ASSOCIATION OF
SPECIALIZED AND PROFESSIONAL ACCREDITORS; ASSOCIATION OF
TECHNOLOGY, MANAGEMENT, AND APPLIED ENGINEERING; COMMISSION
ON INSTITUTIONS OF HIGHER EDUCATION OF THE NEW ENGLAND
ASSOCIATION    OF   SCHOOLS    AND   COLLEGES;   COUNCIL   FOR
ACCREDITATION    OF   COUNSELING   AND   RELATED   EDUCATIONAL
PROGRAMS;   COUNCIL   FOR   HIGHER  EDUCATION   ACCREDITATION;
COUNCIL FOR PODIATRIC MEDICATION EDUCATION; COUNCIL ON
EDUCATION FOR PUBLIC HEALTH; COUNCIL ON OCCUPATIONAL
EDUCATION; DISTANCE EDUCATION AND TRAINING COUNCIL; MIDDLE
STATES COMMISSION ON HIGHER EDUCATION, THE; NATIONAL
ARCHITECTURAL ACCREDITING BOARD; SOUTHERN ASSOCIATION OF
COLLEGES AND SCHOOLS COMMISSION ON COLLEGES; WESTERN
ASSOCIATION   OF   SCHOOLS  AND   COLLEGES         SENIOR   COLLEGE
COMMISSION; HIGHER LEARNING COMMISSION,

                Amici Supporting Appellant,

AMERICAN COUNCIL OF TRUSTEES AND ALUMNI; THE JOHN WILLIAM
POPE CENTER FOR HIGHER EDUCATION POLICY; JUDICIAL EDUCATION
PROJECT,

                Amici Supporting Appellee.



                            No. 14-1136


PROFESSIONAL MASSAGE     TRAINING       CENTER,   INCORPORATED,   a
Missouri Corporation,

                Plaintiff - Appellant,

          v.

ACCREDITATION ALLIANCE OF CAREER SCHOOLS AND COLLEGES, d/b/a
Accrediting Commission of Career Schools and Colleges, a
Virginia Corporation,

                Defendant - Appellee.

------------------------

ASSOCIATION OF SPECIALIZED AND PROFESSIONAL ACCREDITORS;
ACCREDITING     BUREAU    OF    HEALTH     EDUCATION     SCHOOLS,
INCORPORATED; ACCREDITING COUNCIL FOR CONTINUING EDUCATION &
TRAINING; ACCREDITING COUNCIL FOR INDEPENDENT SCHOOLS AND
COLLEGES;   COUNCIL    ON  OCCUPATIONAL    EDUCATION;    DISTANCE
EDUCATION AND TRAINING COUNCIL; COUNCIL FOR HIGHER EDUCATION
ACCREDITATION; ACCREDITING COMMISSION FOR COMMUNITY AND
JUNIOR   COLLEGES,    WESTERN   ASSOCIATION    OF   SCHOOLS   AND
COLLEGES; ACCREDITATION COUNCIL FOR PHARMACY EDUCATION;
ASSOCIATION    OF    TECHNOLOGY,    MANAGEMENT,    AND    APPLIED
ENGINEERING; COUNCIL ON EDUCATION FOR PUBLIC HEALTH; COUNCIL
FOR PODIATRIC MEDICATION EDUCATION; MIDDLE STATES COMMISSION
ON HIGHER EDUCATION, THE; NATIONAL ARCHITECTURAL ACCREDITING
BOARD; COMMISSION ON INSTITUTIONS OF HIGHER EDUCATION OF THE
NEW ENGLAND ASSOCIATION OF SCHOOLS AND COLLEGES; SOUTHERN
ASSOCIATION OF COLLEGES AND SCHOOLS COMMISSION ON COLLEGES;

                                    2
AMERICAN   COUNCIL   ON   EDUCATION;  ACCREDITATION   REVIEW
COMMISSION ON EDUCATION FOR THE PHYSICIAN ASSISTANT; COUNCIL
FOR ACCREDITATION OF COUNSELING AND RELATED EDUCATIONAL
PROGRAMS; WESTERN ASSOCIATION OF SCHOOLS AND COLLEGES SENIOR
COLLEGE COMMISSION; ACCREDITATION COMMISSION FOR ACUPUNCTURE
AND ORIENTAL MEDICINE,

                Amici Supporting Appellee,

AMERICAN COUNCIL OF TRUSTEES AND ALUMNI; THE JOHN WILLIAM
POPE CENTER FOR HIGHER EDUCATION POLICY; JUDICIAL EDUCATION
PROJECT,

                Amici Supporting Appellant.



Appeals from the United States District Court for the Eastern
District of Virginia, at Alexandria.   Liam O'Grady, District
Judge. (1:12-cv-00911-LO-IDD)


Argued:   January 28, 2015               Decided:   March 24, 2015


Before WILKINSON, AGEE, and HARRIS, Circuit Judges.


Affirmed   in  part,   reversed  in   part,  and   remanded with
instructions by published opinion.     Judge Wilkinson wrote the
opinion, in which Judge Agee and Judge Harris joined.


ARGUED: Craig C. Martin, Michael Anthony Scodro, JENNER & BLOCK,
LLP, Chicago, Illinois, for Appellant/Cross-Appellee.    Matthew
Lorn Hoppock, DUNN & DAVISON LLC, Kansas City, Missouri, for
Appellee/Cross-Appellant.  ON BRIEF: Sarah A. Palmer, JENNER &
BLOCK, LLP, Chicago, Illinois, for Appellant/Cross-Appellee.
Ronald L. Holt, Julie G. Gibson, DUNN & DAVISON LLC, Kansas
City, Missouri, for Appellee/Cross-Appellant.   Mary E. Kohart,
Dean R. Phillips, Gregory S. Voshell, Michelle L. Modery,
ELLIOTT GREENLEAF & SIEDZIKOWSKI, P.C., Blue Bell, Pennsylvania;
Kenneth J. Ingram, Thomas Mugavero, WHITEFORD TAYLOR PRESTON,
LLP, Washington, D.C.; Ada Meloy, AMERICAN COUNCIL ON EDUCATION,
Washington, D.C., for Amici Accreditation Review Commission on
Education for the Physician Assistant, Accreditation Commission
for Acupuncture and Oriental Medicine, Accreditation Council for

                                 3
Pharmacy Education, Accrediting Bureau of Health Education
Schools, Incorporated, Accrediting Commission for Community and
Junior Colleges-Western Association of Schools and Colleges,
Accrediting   Council   for  Continuing   Education   & Training,
Accrediting Council for Independent Schools and Colleges,
American Council on Education, Association of Specialized and
Professional Accreditors, Association of Technology, Management,
and Applied Engineering, Commission on Institutions of Higher
Education of the New England Association of Schools and
Colleges, Council for Accreditation of Counseling and Related
Educational     Programs,   Council     for    Higher   Education
Accreditation, Council for Podiatric Medication Education,
Council on Education for Public Health, Council on Occupational
Education, Distance Education and Training Council, Higher
Learning Commission, The Middle States Commission on Higher
Education, National Architectural Accrediting Board, Southern
Association of Colleges and Schools Commission on Colleges, and
Western Association of Schools and Colleges Senior College
Commission.   Shannen W. Coffin, Jeffrey M. Theodore, STEPTOE &
JOHNSON LLP, Washington, D.C., for Amici American Council of
Trustees and Alumni, Judicial Education Project, and The John
William Pope Center for Higher Education Policy.




                                4
WILKINSON, Circuit Judge:

     The   Professional      Massage        Training    Center      (PMTC)     brought

this suit against the Accreditation Alliance of Career Schools

and Colleges (ACCSC or the Commission) for violation of its due

process rights after ACCSC denied the school’s application for

re-accreditation in 2010. Following a four-day bench trial, the

district court awarded PMTC more than $400,000 in damages and

reinstated the school’s accreditation.

     The   proper       standard       of   review     of   actions      by     private

accrediting     agencies    considers       only     whether      the   accreditation

decision   was       supported    by    substantial     evidence        or    otherwise

arbitrary and capricious. What the district court conducted here

amounted to a de novo approach to the accreditation process that

resulted   in    a    wholesale    substitution       of    the    judgment     of   the

court for that of the agency. Judged by the correct standard of

review, the accreditation decision here was well supported, not

arbitrary or capricious, and we thus reverse the judgment of the

district court in that regard. We affirm, however, its dismissal

of PMTC’s state law claims for breach of contract, negligence,

and tortious interference. We remand to the district court with

directions to enter judgment in favor of ACCSC on PMTC’s due

process claim and to dismiss the case.




                                            5
                                       I.

       ACCSC is a non-profit, non-stock corporation established in

Virginia    that   accredits       private   schools      of   higher   education

offering    career-oriented        programs.    It   is    recognized    by    the

Secretary of Education as an accrediting agency, see 20 U.S.C.

§ 1099b, and it accredits nearly 750 institutions nationwide.

Accreditation,      among      other     things,       entitles      educational

institutions to access Title IV federal student aid funding. See

20 U.S.C. §§ 1070 et seq. PMTC is a single-discipline massage

therapy training school in Springfield, MO. It has been owned

and operated by Juliet Mee since 1994. ACCSC first accredited

the school in 2000 and renewed its accreditation in 2005. The

case   at   bar    arose    from    PMTC’s     application     for   renewal    of

accreditation in 2010.

       ACCSC has set Standards of Accreditation that define both

the process for schools to seek or renew accreditation as well

as the substantive criteria schools must meet to be accredited.

See J.A. 4729-4858. ACCSC’s accreditation process begins when a

school sends a full-time on-site management representative to an

informational accreditation workshop, id. at 4747, which PMTC

did in December of 2009, id. at 1448. The school then submits an

application and a self-evaluation report. Id. at 4747-48. The

application is followed by an on-site evaluation, led by a team



                                        6
from ACCSC, which then provides to the school a Team Summary

Report.

      The Team Summary Report is a factual report and summary of

the team’s compliance findings, and does not include any final

recommendation for the Commission’s action on accreditation. Id.

at 4752. A team from ACCSC visited PMTC on August 9-10, 2010.

The   team   was   led     by     Michael   Ackerman,      the   Director      of     ATI

Enterprises, which operates for-profit career schools. Id. at

1455. The team also included other education and massage therapy

professionals and ACCSC staffers Courtney Kiesel Moraites and

Lisa Miles. Moraites, supervised by Miles, wrote the subsequent

Team Summary Report issued on September 23, 2010. Id. The report

detailed a number of areas of concern, including problems with

management      capability      and    retention     of    administrative       staff,

failures     in    strategic        planning,      lack    of    ongoing       faculty

assessment and professional development, failure to demonstrate

adequate student achievement and employment rates, failure to

comply     with    federal        financial     requirements,       as        well    as

deficiencies in the learning resource system and processes for

verification of faculty credentials. See id. at 1460-64.

      Pursuant to the ACCSC Standards, PMTC had 30 days to submit

additional      material     in    response     to   the    report.      It    did    so

following a brief deadline extension, at which point the entire

record    was   reviewed     by    a   preliminary    school     action       panel    of

                                            7
three Commissioners, and then by the full Commission. See id. at

435-37. Within ACCSC, the Commission is composed of four public

Commissioners       and     nine     private         Commissioners.      Id.       at    4848.

Public Commissioners are those “[p]ersons with an interest and

expertise in employment, education and training” who are not

connected to an institution accredited by ACCSC. Id. Private, or

School,      Commissioners           are       “[p]roprietors          or      bona          fide

executives” of institutions accredited by ACCSC. Id. In December

2010, the Commission issued a Probation Order listing eleven

areas in which PMTC had failed to establish compliance, and gave

PMTC until March 2011 to respond and demonstrate improvements in

areas   of   concern.       Id.    at   1781-91.        PMTC   submitted       a   response

including documentation in March of 2011, seven days after the

March 8 deadline. Id. at 1792-1867.

     In    June     2011,    the   Commission          notified      PMTC   that        it   had

vacated the Probation Order, “defer[ing] final action on the

school’s     Application       for      Renewal       of    Accreditation       until        the

November     2011     meeting      in        order     to    provide     PMTC      with       an

additional opportunity to demonstrate compliance.” Id. at 1868.

ACCSC   conducted      a    second      on-site        visit    to    focus     on      PMTC’s

Institutional         Assessment             and      Improvement        Plan         (IAIP),

specifically      with      regard      to    management       issues,      the    learning

resource     system,        faculty          qualification        verification,              and

financial stability. See id. at 1868-73.

                                               8
     The second on-site team was led by Mollie Hager and ACCSC

staff   member    Lisa    Miles.    Id.    at   1874.   Miles     wrote    the     Team

Summary Report, which identified five areas in which PMTC was

still failing to meet ACCSC Standards, specifically including

management,      learning       resources,      and     faculty     qualification

verification.     Id.     at    1878-99.      PMTC    submitted     a     number    of

documents   in    response,      and     notably     provided   Miles      with    two

binders full of documents as part of the on-site visit, which

Miles took to her home and did not share directly with the

Commission. In December 2011, following PMTC’s submission, the

Commission issued a second Probation Order instructing PMTC to

provide   evidence       of   compliance      with   accrediting    standards        on

management continuity and capacity, institutional assessment and

improvement      activities,       the    learning      resource     system,       and

faculty qualifications and verification. Id. at 2156-67. PMTC

submitted its response in January 2012. Id. at 2169-2373.

     In February 2012, a school action panel met and recommended

that ACCSC not renew PMTC’s accreditation. The panel expressed

concern   with    PMTC’s      continued    compliance     failures,       especially

relating to management turnover. Id. at 855, 858-60. The full

Commission voted 12-0 not to renew accreditation on the grounds

that PMTC had failed to demonstrate “continuity of management

and administrative capacity,” id. at 2377, had failed to bring

the learning resource system into compliance with accrediting

                                          9
standards,        and    had        failed     to     demonstrate         compliance       with

standards    on     faculty         qualifications         and       verification,     id.    at

2374-84. On April 5, 2012, PMTC appealed the denial decision to

an    independent         ACCSC        appeals        panel,         which     affirmed      the

Commission’s denial. Id. at 2574-92. The denial decision became

final on July 11, 2012 and the Department of Education began

withholding Title IV funds on July 27, 2012. Id. at 2574, 4030.

      On    August       16,    2012,        PMTC     filed      a    six-count     complaint

against ACCSC in the Eastern District of Virginia, sounding in

common     law    due    process,        breach       of   contract,          negligence     and

tortious     interference            with     various      business          and   contractual

relations. The district court granted a preliminary injunction

requiring        ACCSC    to        reinstate        PMTC’s    accreditation.         In     its

Amended Complaint, PMTC added allegations of bias by ACCSC’s

staff against PMTC.

      After a four-day bench trial, the court entered judgment in

favor of PMTC, finding that ACCSC had violated the school’s due

process rights. It awarded the school $429,016.62 in damages,

and   ordered      ACCSC       to    fully    reinstate        its     accreditation,        but

dismissed the remaining state law claims. The court found that

ACCSC’s Standards were not clearly defined and did not provide

guidance and metrics for schools to ascertain how to meet the

Standards. In addition, it found the agency had violated PMTC’s

due process rights by denying accreditation in a manner that was

                                                10
arbitrary and unreasonable. It reasoned that Juliet Mee, PMTC’s

owner and director, provided sufficient continuity of management

to    meet     ACCSC’s       performance      Standards     and      that    bias      had

impermissibly influenced the agency’s denial of accreditation.

ACCSC appealed the finding that PMTC was denied due process of

law   and     PMTC    cross-appealed         the   dismissal    of   its     state     law

claims       for     breach    of     contract,      negligence,       and        tortious

interference.

                                             II.

      ACCSC        contends    that    the     district   court       erred       in   not

according sufficient, if any, deference to the decision of the

accrediting        agency.     We    agree    that    elementary      principles       of

administrative         law    call    for    significant,       though      not    total,

deference      to     decisionmaking         by    accreditation      agencies.        See

Thomas M. Cooley Law Sch. V. Am. Bar Ass’n, 459 F.3d 705 (6th

Cir. 2006); Wilfred Acad. of Hair & Beauty Culture v. S. Ass’n

of Colls. & Schs., 957 F.2d 210 (5th Cir. 1992); see also Chi.

Sch. of Automatic Transmissions, Inc. v. Accreditation Alliance

of Career Schs. & Colls., 44 F.3d 447, 450 (7th Cir. 1994).

Unfortunately,         the    district       court    applied     this      deferential

standard in name only -- instead conducting what amounted to an

improper de novo approach to the accreditation process.




                                             11
                                        A.

       We begin the inquiry by considering the underlying claim at

issue: that ACCSC violated PMTC’s right to due process of law.

Accreditation agencies are private entities, not state actors,

and as such are not subject to the strictures of constitutional

due process requirements. See e.g., Med. Inst. of Minn. v. Nat’l

Ass’n of Trade & Technical Schs., 817 F.2d 1310, 1314 (8th Cir.

1987) (finding that accreditation agency was “not governed by

constitutional        guidelines”);    cf.    Moore    v.   Williamsburg       Reg’l

Hosp., 560 F.3d 166, 179 (4th Cir. 2009) (setting framework for

private entity’s actions to be considered state action).

       Moreover, “nearly every court to consider the issue” in the

last three decades agrees that there is no express private right

of action available to enforce the Higher Education Act (“HEA”),

which governs the administration of federal student aid programs

and    the    accreditation      of   institutions     of     higher     education.

McCulloch v. PNC Bank Inc., 298 F.3d 1217, 1221 (11th Cir. 2002)

(finding that the HEA “does not expressly confer a private right

of    action,”      but   only   provides    for   suit     by   or     against   the

Secretary of Education); see also Cooley, 459 F.3d at 710.

       This is not to say however that accreditation agencies are

wholly       free   of    judicial    oversight.      They,      like    all   other

bureaucratic entities, can run off the rails. We thus recognize,

along with our sister circuits, that there exists a “common law

                                        12
duty    on     the      part      of    ‘quasi-public’          private      professional

organizations         or    accreditation          associations       to     employ       fair

procedures       when      making      decisions      affecting       their       members.”

McKeesport      Hosp.      v.    Accreditation       Council      for      Graduate       Med.

Educ., 24 F.3d 519, 534-35 (3d Cir. 1994); see also Cooley, 459

F.3d at 711-12; Wilfred, 957 F.2d at 214; Med. Inst. of Minn.,

817     F.2d     at       1314     (finding        that    accreditation            agencies

“nevertheless         must       conform      [their]     actions       to       fundamental

principles of fairness”); Marjorie Webster Jr. Coll., Inc. v.

Middle States Ass’n of Colls. & Secondary Schs., Inc., 432 F.2d

650, 655-58 (D.C. Cir. 1970).

       Courts began to recognize this common law duty as early as

1938. See Found. for Interior Design Educ. Research v. Savannah

Coll.    of    Art    &    Design,      244   F.3d    521,      527   (6th       Cir.   2001)

(quoting North Dakota v. N. Cen. Ass’n of Colls. & Secondary

Schs., 99 F.2d 697, 700 (7th Cir. 1938) (noting that courts will

not uphold accreditation decisions if “arrived at arbitrarily

and    without       sufficient        evidence”)).       The    duty      was    meant    to

operate as a “check on organizations that exercise significant

authority in areas of public concern such as accreditation and

professional licensing.” Cooley, 459 F.3d at 712.

        The common law duty has several underpinnings. Congress,

in the Higher Education Act, delegated to accreditation agencies

a decisionmaking power that affects student access to federal

                                              13
education funding. Accreditation, as noted, is a prerequisite to

Title   IV    funding    and   it   provides    assurance     that   the   federal

loans   and    grants    are   awarded    to    students     who    will   get   the

education for which they are paying.                  By the same token, the

cost to an educational institution and its students of denial of

accreditation can be steep. An institution denied accreditation

is likely to “promptly [go] out of business -- as very few

people [are] willing [or able] to pay” tuition out of their own

pockets. Chi. Sch., 44 F.3d at 448.             The denial of accreditation

to an institution may also diminish the value of a degree earned

there   by    students    in   past    years.    So    the   accreditors       wield

enormous power over institutions -- life and death power, some

might say -- which argues against allowing such agencies free

rein to pursue personal agendas or go off on some ideological

toot. Their duty, put simply, is to play it straight.

     The federal common law duty on accreditation agencies also

derives in part from the fact that Congress has given exclusive

jurisdiction to United States district courts over “any civil

action brought by an institution of higher education seeking

accreditation      from,       or     accredited       by,     an      accrediting

agency . . . involving the denial, withdrawal, or termination of

accreditation.”     20    U.S.C.    § 1099b(f).       We   recognize    that     “the

vesting of jurisdiction in the federal courts does not in and of

itself give rise to authority to formulate federal common law.”

                                         14
Tex. Indus., Inc. v. Radcliff Materials, Inc., 451 U.S. 630,

640-41 (1981); see also United States v. Little Lake Misere Land

Co., 412 U.S. 580, 591 (1973). However, it is hard to imagine

that Congress intended federal courts to adjudicate only state

law claims at the same time it prohibited state courts from

participating. We are not alone in this supposition. See Cooley,

459 F.3d at 712 (“This grant of exclusive federal jurisdiction

necessarily     implies   that    federal    law   should     govern   disputes

relating to decisions made by [accrediting agencies].” (citation

omitted)); Chi. Sch., 44 F.3d at 449 (“If a grant of federal

jurisdiction sometimes justifies creation of federal common law,

a grant of exclusive federal jurisdiction necessarily implies

the application of federal law.”).

     However, recognition that such a common law duty exists

does not authorize courts to undertake a wide-ranging review of

decisionmaking    by   accreditation        agencies.   The    other   circuits

that have recognized this common law claim have consistently

limited   the     judicial       inquiry,    drawing    on     principles    of

administrative law and judicial deference. See Cooley, 459 F.3d

at 712; Chi. Sch., 44 F.3d at 449-50; Wilfred, 957 F.2d at 214;

Med. Inst. of Minn., 817 F.2d at 1314-15. Of course, we do not

go so far as to say the ACCSC is equivalent to a federal agency.

See Cooley, 459 F.3d at 712. But, “while the [APA] does not

specifically apply to [the accrediting agency], principles of

                                      15
administrative law are useful in determining the standard by

which we review the [agency’s] decision-making process.” Id.;

see   also   Chi.   Sch.,   44     F.3d   at     450.     Furthermore,      while    the

amendments to the HEA in 2008 and 2010 made changes to the

accreditation process, by strengthening, inter alia, the level

of    independent    agency       review,      nothing       in   those     amendments

purported to alter the level of judicial scrutiny established by

the above decisions. See Higher Education Opportunity Act, Pub.

L. No. 110-315, 122 Stat. 3078 (2008)(codified as amended 20

U.S.C. § 1099b(a)(6)(2008)).

      The most familiar standard of review is one in which the

court is authorized to consider “only whether the decision of an

accrediting agency such as [ACCSC] is arbitrary and unreasonable

or an abuse of discretion and whether the decision is based on

substantial    evidence.”     Cooley,          459    F.3d   at   712.    Under     this

standard, courts are “not free to conduct a de novo review or to

substitute their judgment for the professional judgment of the

educators involved in the accreditation process.” Wilfred, 957

F.2d at 214.

                                          B.

      We   adopt    the   above    standard,         in   part,   because    there   is

value to be gained in the uniformity of standards of review

throughout    the    circuits.     However,          while   we   think   our   sister

circuits correct, we do not embrace uniformity for uniformity’s

                                          16
sake. The quasi-public nature of the accrediting institutions

and their wide-ranging expertise in what may be highly technical

and specialized fields of education also provide justification

for a deferential standard.

     Although       accreditation         agencies     do     serve    an   important

quasi-public     role      in    the    dispersal     of     federal    student       aid

funding, they are also private entities.                    The U.S. Department of

Education    does    not    itself       accredit     educational      institutions,

instead    relying    on    a    number      of   select    nationally      recognized

accrediting agencies that the Secretary of Education deems to be

“reliable authorit[ies] regarding the quality of the education

or   training    provided        by”      schools.     34     C.F.R.    § 602.16(a).

Accrediting agencies must go through a certification process set

up   by    the   Department.           The    procedures       and     standards       of

accreditation       set     by     the       agency    must     “meet[]         criteria

established by the Secretary” in order to ensure they are a

“reliable authority.” 20 U.S.C. § 1099b(a).

     In    totality,       the    accreditation       process        operates    as    an

instrument of quality control on educational institutions. While

the visit of the accreditor may be as unwelcome as that of the

auditor,    accreditation          does       encourage      institutional        self-

examination and the attainment of high standards. It also gives

the public some assurance that professionals have received the



                                             17
training      commensurate       with       their        responsibilities           in    the

workplace.

       As with federal administrative agencies, the accreditation

agency’s expertise and knowledge merits a measure of deference

from    generalist    federal      courts.        See,    e.g.,       Chevron      U. S. A.,

Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984).

ACCSC     provides      a     representative           example;         staff       members,

Commissioners,       and    volunteers      have       significant         knowledge      not

just about the accreditation process and education generally but

also    in   the   specialized       fields      under     review.         The   Commission

itself is comprised of proprietors and executives of career-

oriented institutions of higher education as well as individuals

with expertise in education, training, and employment.

       The   agency’s       executive    staff         have     experience         with   the

accreditation       process     as      well      as      with       higher      education,

including but not limited to “curriculum development, faculty

and academic administration, and distance learning,” “regulatory

issues . . . including          changes          to,     and     interpretations          of,

federal      regulations       that      pertain          to        accrediting       agency

recognition,” and “nonprofit management experience.” J.A. 3019-

21. ACCSC also relies on occupational specialists with training

and involvement in the field of study for each school as part of

the     on-site    visits.     Here,     for       example,          the    2010     on-site

evaluation     team     included      the    director          of    for-profit       career

                                            18
training schools, an associate professor from the University of

North    Texas,       a    massage          therapist         and     esthetician,         a

representative from the Missouri Department of Higher Education,

and   representatives      from       ACCSC      staff      with    expertise       in   the

accreditation process and compliance with ACCSC Standards. In

the accreditation process, these experts perform important fact-

finding missions akin to investigative undertakings at federal

agencies. They review self-evaluations from applicants, conduct

on-site visits, and work with institutions to improve areas of

weakness in order to meet accreditation standards.

      Although    judicial     oversight         of    the    accreditation         process

surely   has   its    place,     it    is     not     realistic       to    think   courts

possess either the expertise or the resources to perform the

accreditation     function       ab    initio.        The     range    of    specialized

subjects taught at all levels of higher education is vast, and

the prospect that courts can replicate the required knowledge on

the bench is dim. We thus do not presume to be equipped to

“substitute [our own] judgment for the professional judgment of

the educators involved in the accreditation process.” Wilfred,

957 F.2d at 214. As the Fifth Circuit noted, the “standards of

accreditation        are   not        guides        for      the    layman      but      for

professionals in the field of education.” Id. (quoting Parsons

Coll. v. N. Cent. Ass’n of Colls. & Secondary Schs., 271 F.

Supp. 65, 73 (N.D. Ill. 1967)).                     In fact, due process claims

                                            19
dovetail nicely with administrative law concepts of substantial

evidence       and     arbitrary      and    capricious           review     because     the

prominent point of emphasis of due process is one of procedure.

When      adjudicating       common      law       due    process         claims    against

accreditation         agencies,       courts       should      “focus       primarily     on

whether the accrediting body’s internal rules provide[d] a fair

and impartial procedure and whether it [followed] its rules in

reaching its decision.” Id.

                                            III.

         The   district     court’s    review      here     did     not    adhere   to   the

appropriate standard in a number of regards. The court greatly

expanded the administrative record, held a full multi-day bench

trial, received depositions and live testimony in a way that

sought to make itself the primary investigator and finder of

fact, and went far beyond the focus on procedural fairness to

refashion the accreditation decision on the merits. To that end,

the district court was remedially aggressive not only in its

awarding of a large amount of damages, but also in ordering that

the institution in question be reaccredited, thereby overturning

the judgment and expertise of an agency that in this case rested

on   a    sound      and   supportable      basis.       All   in    all,    and    without

question, the district court conducted an impermissible de novo

review.



                                             20
                                              A.

       Judged       by    the   appropriate        standards,       the     accreditation

denial was in fact a permissible one. Indeed, we hold that the

agency did not act in an arbitrary and capricious manner but

rather    “conform[ed]          its   actions      to    fundamental       principles    of

fairness” through both the procedural and substantive standards

it employed in making the accreditation decision. Med. Inst. of

Minn., 817 F.2d at 1314.

       ACCSC         provided         PMTC     with           significant      procedural

opportunities to make its case over the course of almost two

years prior to the revocation of accreditation. Following the

first on-site visit in 2010, the Commission issued a Probation

Order even though it was not required prior to denial. J.A.

4781. It then conducted a second on-site evaluation to give PMTC

an additional opportunity to demonstrate that the school was

meeting       the    Commission’s      metrics      for       accreditation.    Following

that visit, the Commission issued a second Probation Order. PMTC

was given the opportunity to, and did, respond in writing to

each     of     the       reports     detailing         the     school’s     deficiencies

following both on-site visits and both Probation Orders. The

school    submitted         hundreds     of   pages       of    documentation    for    the

agency to consider. ACCSC also repeatedly granted the school’s

requests       for       additional    time    to       submit    its   responses.      The

decision to revoke PMTC’s accreditation was unanimous and the

                                              21
rationale was provided to PMTC. Subsequent to the revocation,

Mee,    accompanied    by   an   attorney,   filed   a    written   appeal   and

appeared before an independent appeals panel, which affirmed the

denial.

       In   addition   to   providing    numerous    procedural     safeguards,

ACCSC       measured    PMTC’s      performance       against       discernible

substantive       standards       embodied     in        the   Standards      of

Accreditation. Most importantly in this case, ACCSC’s Standards

of Accreditation require that accredited schools “have adequate

management and administrative capacity in place” that includes:

       a.   Full-time on-site supervision by an individual or
       team with the appropriate combination of education,
       experience, and demonstrated ability to lead and
       manage a post-secondary educational institution;
       b.   Owners,   members   of   school    management,    and
       administrative employees who are qualified for their
       particular roles and who possess the appropriate
       education, training, and experience commensurate with
       the level of their responsibilities;
       c. A sufficient number of managers and administrative
       employees    necessary   to    support     the    school’s
       operations,    student   services,     and     educational
       programs; and
       d.   Appropriate    administrative     and     operational
       policies and procedures to which the school adheres
       and reviews and updates as needed.

J.A. 4799 (ACCSC Standards Ch. 2 § I(A)(1)(a)-(d)). In addition,

the Standards require that the school ensure “the continuity of

management and administrative capacity” through “the reasonable

retention of management and administrative staff.” Id. (ACCSC

Standards Ch. 2 § I(A)(4)).


                                        22
     Also at issue here, the Standards necessitate that to be

accredited a school must provide a learning resource system that

“include[s] material commensurate with the level of education

provided and appropriate to the courses of study in sufficient

quantity and scope to meet the educational objectives of each

program.” Id. at 4805 (ACCSC Standards Ch. 2 § II(A)(6)(a)).

More specifically, such resources “must be integrated into a

school’s    curriculum     and   program      requirements”    and    “must    be

managed by qualified school personnel with sufficient experience

to provide oversight and supervision.” Id. (ACCSC Standards Ch.

2   § II(A)(6)(b),    (c)).      In   addition,    the   Standards       outline

faculty and administrator qualifications and require that “[t]he

school     must   verify     prior     work     experience      and     maintain

documentation of academic credentials of all faculty members and

administrators . . . to        demonstrate     compliance     with    applicable

[qualification] Standards.” Id. at 4814 (ACCSC Standards Ch. 2

§ III(A)(4)).

     Furthermore, the Commission outlines additional Standards

in strategic planning, financial stability and responsibility,

tuition,    admissions     and   recruiting      policies,    degree    program

qualifications,      student     achievement      metrics,      student       loan

repayment programs, and physical facilities, among others. See

id. at 4799-4834.



                                      23
       The district court took issue with the generality of these

Standards,       particularly             the   management          requirements,      finding

Chapter 2, Section I(A)(1)(c) to be “internally inconsistent,”

especially       with        regard       to    how    a     school       can    predict     what

constitutes           a     “sufficient”           number         of      management        staff

“necessary” to support the school’s operations. Prof’l Massage

Training Ctr., Inc. v. Accreditation Alliance of Career Schs. &

Colls., No. 1-12-cv-911, 2014 WL 201879, at *7 (E.D. Va. Jan.

17, 2014).        The district court explained that it “[could not]

imagine how a school seeking to gain or maintain accreditation

would obtain practical guidance” from the Standards. Id.

       The Standards are often general in nature, but we do not

think    to     the       point    of    invalidity.         It   was     not   necessary,    or

indeed practical, for the Standards to outline more specific

numerical       goals       for        management      and    staff.       Instead,    it    was

permissible       for        the       Standards       to     retain      some     element    of

flexibility. ACCSC accredits nearly 750 educational institutions

nationwide of many different sizes and types. A more specific

numerical       requirement             with    regard       to     how     many    management

personnel are sufficient would be nearly impossible to dictate.

ACCSC must maintain a balance between specificity, to provide

notice to those seeking accreditation, and generality, to allow

itself    flexibility             in    accrediting        varied      institutions    ranging

over     many    different             fields    and       disciplines.         Rewriting     the

                                                 24
Standards to contain more specific numerical requirements could

actually       harm    educational       institutions         themselves,         requiring

many fine programs and good colleges to reach targets that are

financially not sustainable, especially if tuition is to remain

at affordable levels. See Ambrose v. New England Ass’n of Schs.

&   Colls.,      Inc.,     252    F.3d    488,       495    (1st     Cir.       2001)   (“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.”); Med. Inst.

of Minn., 817 F.2d at 1314 (“Strict guidelines would strip . . .

[the    accreditor       of]     the   discretion          necessary     to      adequately

assess     the    multitude       of     variables         presented       by     different

schools.”).

       Given     the     procedures      afforded      to     PMTC,      including       the

opportunities it had to demonstrate compliance and the time it

was given to make improvements and meet ACCSC’s Standards, we

cannot     say    the     accreditation         revocation         was   arbitrary       and

capricious. PMTC was afforded ample notice that it was not in

compliance with ACCSC’s Standards and numerous opportunities to

remedy   identified        deficiencies.        We    do    not    think      due   process

required more than that.

                                           B.

       Furthermore, the denial decision was clearly supported by

substantial evidence. The Supreme Court has defined substantial

                                           25
evidence to be anything “more than a mere scintilla” provided

that a “reasonable mind might accept [the evidence] as adequate

to support a conclusion.” Almy v. Sebelius, 679 F.3d 297, 301

(4th Cir. 2012) (internal quotations omitted) (quoting Consol.

Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). Federal courts do

not     undertake          to     “re-weigh        conflicting      evidence,       make

credibility determinations, or substitute [their] judgment” for

that of the agency. Craig v. Chater, 76 F.3d 585, 589 (4th Cir.

1996).       In    considering      whether       the   denial    was   supported     by

substantial evidence, we confine ourselves to the record that

was considered by the accrediting agency at the time of the

final decision.

        Under the ACCSC Standards, accreditation can be revoked in

a     case    of       “[f]ailure    to     demonstrate     compliance      with     the

Standards of Accreditation or other accreditation requirements.”

J.A. 4783 (ACCSC Standards Ch. 1 § VII(P)(1)(b)). Here, PMTC

demonstrated           multiple    and    continued     failures   in   a   number    of

areas. The 2010 on-site evaluation Team Summary Report listed

thirteen areas in which the school failed to comply with ACCSC

Standards. Although the school made progress in some areas, it

continued         to    fall      short    with    regard    to    sufficiency       and

continuity of management, as well as with its learning resource

system and the verification of faculty credentials. See id. at

2377-83.

                                             26
       The    continuity          and   sufficiency      of     management         and       staff

presents the most obvious deficiency in PMTC’s application for

accreditation. The ACCSC Standards require “adequate management

and administrative capacity” that includes “[f]ull-time on-site

supervision        by      an    individual      or    team     with       the    appropriate

combination of education, experience, and demonstrated ability

to lead and manage.” Id. at 4799. In addition, “the continuity

of   management         and      administrative       capacity       [must       be]    ensured

through        the         reasonable         retention         of      management             and

administrative staff.” Id. The record is replete with evidence

that PMTC failed to comply with these requirements.

       In response to the 2010 Probation Order, PMTC acknowledged

that   eight       of   its      sixteen      administrative         employees         had    been

employed      at     the     school     for    less    than    a     year,       that    in   the

previous      year      it      had   fired    two    School    Administrators           within

their first ninety days, and that three other employees had been

terminated recently. Id. at 1809. In August 2011, the 2011 Team

Summary Report following the second on-site visit noted that the

school       had   “had       three     administrators         in    the     previous         nine

months” and found that while Juliet Mee provided “a constant

influence as the school’s director,” the “shifting management

structures [had] had a negative impact on the operation of the

school.” Id. at 1886.



                                               27
     At the time of the 2011 on-site visit, PMTC again presented

a new management team which included Juliet Mee, Rebecca Cox

(who was hired as School Director in June of 2011), and April

Durnell (hired as School Administrator in March of 2011) and

argued    the    new    team     would      help   to     rectify      ACCSC’s    concerns

regarding the management and administration of the school. Id.

at 1884; see also id. at 2378. However, by December 2011, as

explained       in     PMTC’s      response        to     the     Commission’s         second

Probation       Order,      both     Cox     and        Durnell    had       already     been

terminated      due    to   a     “poor     job    match”       and    the     “evasion    of

relevant information” respectively. Id. at 2225; 2378.

     Despite         this    upheaval,         the       Commission          extended     the

evaluation      period      for      PMTC     twice,       placing       the    school     on

probation following both the 2010 and 2011 on-site evaluations

on the grounds that “additional information was necessary in

order    to   determine        the    school’s       compliance        with    accrediting

standards.” Id. at 2377. In response, PMTC repeatedly presented

ACCSC with new and shifting management structures. By December

2011,    in   response      to    the     second     Probation        Order,    the    school

listed its management team as Juliet Mee, Owner/School Director,

Jeremiah      Mee,    Director       of   Finance,       Jeremy    Beatty,      Compliance

Administrator, and Linda Mayhugh, Curriculum Administrator. Id.

at 2187, 2378-79.



                                             28
       ACCSC expressed concern in its written explanation of the

denial that Jeremiah Mee, the brother of Juliet Mee, who started

as Director of Finance in August 2011, had made clear that he

was buying his own firm and intended to “guide and direct the

hiring of a new on-site Director of Finance,” implying he too

would soon be leaving. Id. at 2378. In addition, the Commission

found that PMTC “failed to demonstrate” that Jeremy Beatty and

Linda Mayhugh met either the school’s qualifications for their

administrative positions or that either was “qualified to meet

the Commission’s expectations to serve in this capacity.” Id. at

2379.    Thus,     even   after    multiple      opportunities       to    remedy    the

deficiency, the final management structure submitted in response

to the 2011 Probation Order still presented problems. See id. at

2379; see        also   id.   at   1896,    2099,   2163,   2179-81,        2205-2224,

2228.

       The District Court took issue with this conclusion, and

stated    that     ultimately,       Juliet     Mee’s    role   as    the       “primary

manager of PMTC since she founded the school in 1994” should

have    satisfied       ACCSC’s    management       standards.    Prof’l        Massage

Training Ctr., 2014 WL 201879 at *6-*8. While it may be true

that “the Standards of Accreditation do not require multiple

staff members [to constitute adequate management],” id. at *6,

the     record    abounds     with    evidence      of   repeated         and   ongoing

turnover.    Given      the   turmoil      in   administrative       and    management

                                           29
staff at PMTC, it would stretch the imagination, to say the

least, to credit PMTC’s contention that ACCSC lacked substantial

evidence to support its decision. There is more than a “mere

scintilla” of evidence that PMTC’s management and administration

was in shambles. Almy, 679 F.3d at 301.

       We note also that in reviewing for substantial evidence, it

is    not   within    the   purview      of    this       court    to   measure   whether

Juliet Mee as an individual manager was sufficient to comply

with Chapter 2, Section I(A)(1)(a)-(d) or to what degree her

presence     might     provide     for        “continuity          of   management      and

administrative        capacity”    in     light       of     the    significant      staff

turnover. J.A. 4799 (ACCSC Standards Ch. 2 § I(A)(4)). Nor do we

profess     any      expertise     as    to        what     extent      an   educational

institution can ignore its own stated job qualifications when

hiring underqualified management without running afoul of the

Standards for management personnel.

       In sum, the well-documented disorder, constant turnover and

questionable qualifications of PMTC’s management staff provided

substantial evidence that the school was out of compliance with

accreditation        Standards.    The    record      also        provides   substantial

evidence     to   support    the    Commission’s            additional       findings    of

deficiencies regarding both the learning resource system and the

faculty qualification verification processes. See id. at 2380-

83.

                                              30
      In   the    Team    Summary          Report    following       the   2010    on-site

evaluation,      ACCSC      explained         that    a     significant        number     of

students         surveyed         during            the      evaluation           reported

“dissatisfaction         with   the    school’s       learning       resource     system.”

Id. at 1464. Students said that the “library [was] not adequate

for their educational needs,” and “they [did] not have access to

the   library     resources     at     Missouri       State    University         (MSU)    as

advertised by the school.” Id.; see also id. at 1788-89. While

the 2011 Probation Order found that PMTC had made satisfactory

progress    on     the     materials         available,       PMTC     still      did     not

demonstrate that “the school’s learning resource system [was]

managed    by    qualified      school       personnel”       or   that    “use    of     the

learning   resource       system      materials       [was]    integrated         into    the

school’s curriculum and program requirements.” Id. at 2162. PMTC

hired a part-time administrator to manage the learning resource

system prior to its response to the 2011 Probation Order, but

stated that it did not “feel that [it would] need a full time

person who dedicate[d] themselves 100% to the Learning Resource

System until [it was] able to increase the resources within the

on-site    facility.”       Id.       at    2264.     The    Commission        took      this

admission as acknowledgment that the learning resource system

“continued to be out of compliance with accrediting standards.”

Id. at 2381.



                                              31
       In addition, the 2010 Team Summary Report also noted that

“[t]he school did not demonstrate that the prior work experience

of     faculty      members       [was]        verified          or     that     the     school

maintain[ed]        documentation          of       academic          credentials       of   all

faculty members” in violation of Chapter 2, Section III(A)(4).

Id. at 1464. In the 2010 Probation Order, ACCSC explained that

PMTC    had     submitted        some     examples          of    instructor         files    to

demonstrate faculty qualifications, but had failed to provide

documentation         that      such     credentials         were       verified       for   all

faculty members. Id. at 1789-90. In response, PMTC provided only

blank verification forms and an explanation of how the process

should be completed. See id. at 1872, 2303, 2382.

       The 2011 on-site evaluation team found that these forms

were    not    consistently        completed          and    that      April    Durnell      was

marking       faculty       qualifications           as     verified          when     she   had

“conducted the verification process, even if she had not been

successful       in       verifying      the        information         provided        by   the

instructor.”        Id.    at    1892.    The       results      of     the    team’s    review

indicated      that     some    faculty        members’      qualifications          had     been

verified in June of 2011, but many faculty members’ backgrounds

remained      unverified.         Id.     at     1892-93,         1897-98.       The     record

supports      ACCSC’s        conclusion        that       PMTC    “failed       to     properly

address”      the   concern      that     the    school       did      not    verify    faculty

qualifications nor maintain adequate documentation in violation

                                               32
of the Standards Chapter 2, Section III(A)(4). Id. at 2383. It

is    not    surprising        that    an     accreditation               agency      would     find

recurring      questions       about    something            so    elementary         as    faculty

qualifications to be problematic. It is basic to the functioning

of an educational institution that the qualifications of its

teachers and instructors be both accurate and available.

                                               C.

       PMTC contends, and the district court agreed, that bias

against      the    school     on     the   part        of       the   ACCSC     staff     members

justified       a       less   deferential              inquiry          into     the      agency’s

decisionmaking and resulted in a denial of due process owed to

the school. See Appellee’s Br. 45-48; Prof’l Massage Training

Ctr., 2014 WL 201879, at *7 (“Deeply negative staff bias against

Ms.    Mee    completely       infected       the        record        that     the     commission

reviewed and as a result denied PMTC due process.”).

       This court has made clear that an “impartial decisionmaker

is    an    essential       element    of     due       process.”         Morris      v.   City   of

Danville, 744 F.2d 1041, 1044 (4th Cir. 1984) (quoting Bowens v.

N.C. Dept. of Human Res., 710 F.2d 1015, 1020 (4th Cir. 1983)).

That   ACCSC       is   a   private     entity       (albeit           one    with    significant

public      responsibilities)          does       not    alter         this     imperative.       And

although      we    are     considering       a     common         law    due    process        claim

rather      than    a    constitutional           one,       a    “fair       trial   in    a   fair

tribunal” remains a basic requirement of due process. Withrow v.

                                               33
Larkin,     421   U.S.   35,   46-47     (1975)   (internal      quotations     and

citations omitted) (applying the due process requirement of an

unbiased tribunal to administrative agencies). A federal court

may be justified in conducting a more searching inquiry into the

motivations of administrative decisionmakers in the case of “a

strong showing of bad faith or improper behavior.” Citizens to

Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 420 (1971),

abrogated on other grounds by Califano v. Sanders, 430 U.S. 99

(1977). However, the evidence presented here does not rise to

that level.

       An   administrative       decisionmaker         “[is]   entitled    to    a

‘presumption of honesty and integrity.’” Morris, 744 F.2d at

1044 (quoting Withrow, 421 U.S. at 47). However, personal bias

may disqualify an adjudicator if it “stem[s] from a source other

than knowledge . . . acquire[d] from participating in a case.”

Bowens, 710 F.2d at 1020. As the Supreme Court has explained,

“various    situations    have    been      identified    in   which   experience

teaches that the probability of actual bias on the part of the

[agency] is too high” to allow the adjudicator to consider the

case. Withrow, 421 U.S. at 47. For instance, the potential for

bias   is   impermissibly      high    in     “those   [cases]    in   which    the

adjudicator has a pecuniary interest in the outcome and in which

he has been the target of [prior] personal abuse or criticism

from the party before him.” Id. (internal citations omitted).

                                         34
Neither    of     those       situations      is     present     here.      There     was      no

pecuniary interest at stake for members of the Commission, nor

were any members of the Commission targeted for abuse by Juliet

Mee   or   PMTC       prior    to    the    proceeding.     In    fact,      there       is    no

allegation       that     the       individual       members      of     the      Commission

themselves       were     biased      or     had    an   identifiable          conflict        of

interest.

      Rather, PMTC alleges that frustration and dislike of Juliet

Mee by the staff at ACCSC influenced the creation of the record

on    which     the    Commission          relied    when   casting         its    vote       for

revocation of PMTC’s accreditation. See Appellee’s Br. at 53-54.

PMTC cites to a number of instances in which ACCSC staff members

expressed frustration with Mee or a negative opinion of PMTC’s

application.           However,        the         “expressions        of         impatience,

dissatisfaction, annoyance, and even anger, that are within the

bounds of what imperfect men and women . . . sometimes display”

are not sufficient to “establish[] bias or partiality.” Liteky

v.    United     States,       510    U.S.     540,      555-56    (1994);         see    also

Consolidation Coal Co. v. Williams, 453 F.3d 609, 620 (4th Cir.

2006) (“[T]he tone and tenor of frustration expressed in the

ALJ’s comments do not, in and of themselves, establish bias.”).

An unfavorable impression of an applicant on the part of the

accreditation agency is likewise not bias. To find otherwise



                                              35
would    render   every    denial      of    accreditation      subject       to   a

searching inquiry for lack of impartiality.

     As evidence of bias, PMTC primarily points to emails and

testimony     where   ACCSC   staff     members,        primarily    Lisa    Miles,

Christopher    Lambert,    and   Sean       Forman, 1    expressed    an    alleged

“disdain for PMTC and for Juliet Mee.” Appellee’s Br. at 53. In

addition, the school contends that Miles failed to present to

the Commission two binders of documents that were provided to

her during the 2011 on-site visit and that she instead took them

to her home and destroyed them. See id.; see also J.A. 2819. The

district court found there was evidence sufficient to support

the claim that ACCSC staff “intentionally drafted the report in

a negative light to cause the commissioners to vote to withdraw

PMTC’s   accreditation.”      Prof’l    Massage     Training    Ctr.,       2014   WL

201879, at *7.


     1
       Lisa Miles was a Manager of Accreditation at ACCSC and
served as part of the on-site evaluation teams in both 2010 and
2011.   She   was   responsible   for   editing   and  drafting,
respectively, the Team Summary Reports following the each visit.
See J.A. 243, 1455, 1874, 3022.    Christopher Lambert served as
ACCSC’s Director of External Affairs and here supervised the
process of drafting the Compliance Summary presented to the
Commission prior to its vote and the written explanation for the
revocation sent to Mee. Id. at 3020; see also id. at 2826-76
(correspondence between Forman and Lambert and partial drafts of
revocation letter and Compliance Summary). Sean Forman was a
Senior Analyst for Institutional Review and Development and here
participated in the drafting of the Compliance Summary and of
the 2012 revocation letter under Lambert’s supervision. See id.
at 2826-76.


                                       36
       We think this is not a balanced characterization of the

record. Emails between staff members revealed that Mee was upset

by the possibility that PMTC might lose accreditation and was

often difficult to deal with or even hostile. See, e.g., J.A.

2821-23, 2866. However, staff frustration with Mee, justified or

not,       is    not     dispositive         evidence       of    bias.    Furthermore,       the

record          does     not       demonstrate       that        ACCSC    was    impermissibly

building a case against PMTC. The emails between Lambert and

Forman          paint        a    picture    of      a    subordinate          and   supervisor

discussing and revising the drafts of the Compliance Summary

(which is presented to the Commission prior to the vote) and the

revocation letter. See, e.g., id. at 2826-39, 2866-74, 2886.

Discussions of this sort are inevitable if the staff is to do

its job.

       Due       process          requires    that       the   basis     for    revocation     of

accreditation            be       provided    in     writing       and    supported     by    the

evidence. We see nothing sinister in Forman’s raising with his

supervisor areas where he had questions about which evidence to

include         in     the       written   document       or     with    Lambert     asking   his

subordinate to strengthen his explanation for certain findings. 2


       2
       PMTC argues that the email correspondence between Forman
and Lambert demonstrates that ACCSC was building a case against
them by purposefully including statements Forman knew to be
false in the record put before the Commission. This assertion is
simply not supported by the record. When he was drafting the
(Continued)
                                                   37
There is no evidence that information was improperly included or

omitted. Again, this type of back and forth is commonplace in

the drafting of any statement of reasons in the administrative

process. Furthermore, as we have noted, the evidence, including

submissions   PMTC    itself   made        to   the   Commission,     supported

ACCSC’s   findings,     especially         with   regard    to      fundamental




revocation letter, Forman wrote to Lambert raising a number of
questions about the draft. He did express concern that the tie
between “the [learning resource system] supervision” and the
“difficulties verifying faculty work experience” and the ongoing
administrative and management failures at PMTC was “fairly weak
in the grand scheme of things.” J.A. 2870. He also noted when
drafting the Compliance Summary that given Jeremy Beatty’s
experience, it might be “a stretch to state that Mr. Beatty may
not have 3 years experience.” Id. at 2854. Appellant has given
us no reason to take these comments to be anything other than
instances of a subordinate asking a supervisor for advice on a
tough call. In the course of this correspondence, Forman had
explained that PMTC had provided some evidence of compliance but
noted the school “also fell short in many areas.” Id. at 2860.
Lambert gave Forman guidance in response to his questions,
directing   him  to   “strengthen   [the]   finding  on  faculty
verification” prior to finalization of the letter. Id. at 2867.
He also noted places where Forman needed additional evidence to
support his assertions. Id.    Lambert explained to Forman that
“management [had] been a long standing issue at the school, one
that the Commission [had] afforded multiple opportunities” for
PMTC to rectify, id. at 2887, and that the revocation rationale
was to focus on “the management issue that [the Commission] was
building around,” id. at 2872. Lastly, Lambert, when sharing the
final draft of the letter with his colleagues, wrote that it was
“compelling.” Id. at 2866-67. Again, we are given no reason to
read comments commending Forman’s work as anything more than
routine praise from a supervisor to a subordinate upon
completion of an assigned task. Id. at 2837 (“Nice, Sean”). The
emails simply fail to present the kind of case of improper
motivation or bad faith on the part of the Commission or its
staff members necessary to demonstrate bias.


                                      38
management     issues.   Compare        id.   at     2378     (explanation     of

management staff turnover in the revocation letter) with id. at

2225 (evidence of management staff turnover submitted by PMTC).

     PMTC also makes much of the fact that Lisa Miles took home

two binders of information given to her by Juliet Mee during the

school’s second on-site visit instead of presenting them to the

Commission. However, the record suggests Miles did in fact rely

on the binders when drafting the 2011 Team Summary Report which

was included in the record before the Commission. See id. at

2819.   In   addition,   the    Commission         only     considers    official

submissions,     which   must      be     filed      with      the      Commission

electronically. See id. at 4745 (Standards Ch. 1 § I(E)(1)(b));

see also, e.g., id. at 1453 (response to Team Summary Report due

electronically). There is no suggestion that it would consider

every document handed to an on-site evaluation team member. In

both the 2010 and 2011 Team Reports, as well as the 2010 and

2011 Probation Orders, PMTC was notified that it must “submit

its response in an electronic format,” id. at 1453 (2010 Team

Summary Report); see also id. at 1791 (2010 Probation Order),

1875 (2011 Team Summary Report), 2167 (2011 Probation Order),

and it did formally submit portions of the binders to ACCSC, id.

at 758, 1829-49 (PMTC response to 2010 Probation Order).

     In conclusion, there was not sufficient evidence that ACCSC

was motivated by bias to justify departure from the deferential

                                    39
standard   ordinarily   due   to   the    accreditation   agency   under   a

common law due process claim. Because we find that ACCSC did not

act arbitrarily or capriciously and grounded its revocation on

substantial evidence, we conclude that the accreditation agency

did not deprive PMTC of its right to due process of law.

                                    IV.

     Last, PMTC cross-appeals the district court’s holding that

it was not entitled to relief on any of its state law claims for

breach of contract, negligence, and tortious interference with a

contract and with a prospective business or economic advantage.

See Prof’l Massage Training Ctr., 2014 WL 201879, at *8. We

agree with the district court that these claims fail as a matter

of law, and we affirm its holding in this regard. 3

     Virginia’s choice-of-law rules determine what law to apply.

See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496


     3
        ACCSC contends that state law claims are not cognizable
grounds to challenge an accreditation decision. See Appellant’s
Response-Reply Br. at 47-48. ACCSC would have us follow the
example set by the Seventh Circuit, which found that because
federal courts have exclusive jurisdiction to hear challenges to
accreditation decisions under 20 U.S.C. § 1099b(f), it is not
possible for such courts to “apply state law to the actions of
accrediting agencies when state courts have been silenced.” Chi.
Sch., 44 F.3d at 449. We agree that a serious question of
cognizability exists with respect to PMTC’s state law claims.
However, we need not decide today the broader question as to
whether Congress intended to preempt state law causes of action
through    the  grant  of  exclusive  federal   jurisdiction  in
§ 1099b(f), because the state law claims here are meritless on
their own accord.


                                    40
(1941).       The    parties       agree      that     Virginia     law     applies   to   the

breach of contract claim inasmuch as the contract was made in

Virginia,       see    Lexie       v.    State    Farm    Mut.      Auto.    Ins.   Co.,   469

S.E.2d 61, 63 (Va. 1996), but that Missouri law governs the tort

claims     as       that    was    the     place       where    the    alleged      tort   was

committed, see Jones v. R.S. Jones & Assocs., Inc., 431 S.E.2d

33, 34 (Va. 1993).

     The       district      court       did     not    err    in   finding    that   PMTC’s

contract       claim       fails    as    a    matter    of    law.    The    Standards     of

Accreditation do not constitute a binding contract between the

agency and the accredited educational institutions because the

Commission can alter the alleged “contract” at will and, thus,

is not bound by its terms. See J.A. 4790 (ACCSC Standards, Ch. 1

§ IX(A)(1)). Under Virginia law, “[b]oth parties must be bound

or neither is bound.” Town of Vinton v. City of Roanoke, 80

S.E.2d 608, 617 (Va. 1954) (quoting Am. Agric. Chem. Co. v.

Kennedy & Crawford, 48 S.E. 868, 870 (Va. 1904)). And, even

assuming arguendo that a valid contractual relationship exists

between an educational institution and an accrediting agency,

PMTC has still failed to point to any specific term or condition

that ACCSC impermissibly breached. ACCSC had an unquestionable

right    to     revoke      PMTC’s       accreditation         if   compliance      with   the

Standards was not demonstrated. See J.A. 4783 (ACCSC Standards

Ch. 1 § VII(P)(1)(b)). Exercising one’s lawful rights is not a

                                                 41
breach   of   contract.       In   addition,        for    the   reasons      set   forth

above, in Section III.C, PMTC has not demonstrated that ACCSC

exercised any contractual discretion in bad faith, even in the

highly   dubious   event       that    a    “contract”         between      the   parties

existed.

     PMTC’s state law tort claims suffer a similar fate to that

of its breach of contract claims. PMTC’s negligence claim fails

as a matter of law because, as the district court found, it is

foreclosed by the economic loss doctrine. See R.W. Murray Co. v.

Shatterproof    Glass    Corp.,       697    F.2d       818,   829   (8th    Cir.   1983)

(concluding    that     the    economic          loss     doctrine    “precludes     the

appellants from pursuing a negligence cause of action seeking

recovery for only economic loss”). PMTC’s three additional state

law claims allege tortious interference with a contract and with

a prospective business or economic advantage.

     Under Missouri law, tortious interference “requires proof

of: (1) a contract or valid business expectancy; (2) defendant’s

knowledge of the contract or relationship; (3) a breach induced

or caused by defendant’s intentional interference; (4) absence

of justification; and (5) damages.” Nazeri v. Mo. Valley Coll.,

860 S.W.2d 303, 316 (Mo. 1993) (en banc). The district court

properly found that PMTC cannot show a lack of justification.

The record is replete with evidence of continued failure by the

school to meet the Standards of Accreditation, which gave ACCSC

                                            42
“an unqualified legal right” to revoke PMTC’s accreditation. Id.

at 317; see also J.A. 4783 (ACCSC Standards Ch. 1 § VII(P)(1)(b)

(grounds for revocation)).

       Under Missouri law, a plaintiff can “establish a lack of

justification” where “the defendant employed improper means in

seeking to further only his own interests.” Nazeri, 860 S.W.2d

at 316-17; see also Stehno v. Sprint Spectrum, L.P., 186 S.W.3d

247, 252 (2006) (en banc). PMTC contends on appeal that the

school is entitled to relief because staff bias at ACCSC led to

a “misrepresentation of facts” in the record relied on by the

Commission.        Appellee’s    Reply      Br.    at     10;   see    also    Nazeri    860

S.W.2d       at     317     (“[I]mproper          means     are       those     that    are

independently        wrongful,       such   as     threats,       violence,     trespass,

defamation, misrepresentation of fact . . . .“). However, as we

explained         above,     there     is    insufficient          evidence       of    any

impermissible bias in this case. Because PMTC cannot demonstrate

that improper means were employed, it has not met its burden of

proof with regard to the tortious interference claims. As such,

we   affirm       the     district    court’s      finding        that   PMTC    was    not

entitled to relief on its state law tort claims as a matter of

law.

                                            V.

       For    the   foregoing        reasons,     we    believe       that    ACCSC    acted

lawfully in revoking PMTC’s accreditation. The district court’s

                                            43
ruling to the contrary is reversed, and we remand to that court

with directions to enter judgment in ACCSC’s favor on PMTC’s due

process claim and to dismiss the case.



                              AFFIRMED IN PART, REVERSED IN PART,
                                   AND REMANDED WITH INSTRUCTIONS




                               44
