Mayor Lee, City Attorney Herrera Effectively Defending CCSF

by Randy Shaw on August 27, 2013

As Moira Sullivan detailed in our pages on August 26, the San Francisco Chronicle’s misguided attack on City Attorney Herrera’s lawsuit to protect CCSF reflects the paper’s pattern of inaccuracies about the school’s accreditation. But it also highlights the Chronicle’s failure to understand the distinction between law and politics.

City Attorney Herrera had a fiduciary duty to assert the legal rights of City College. Had Herrera ignored this responsibility, and allowed potential legal wrongs by the ACCJC to go unchallenged—as the Chronicle urged– he would have breached this duty . Mayor Lee, in contrast, is operating in a political world in which the mayor of San Francisco must be seen as working collaboratively with the ACCJC. Unlike Herrera, Lee has no legal role in challenging the accreditation process, or in formally shaping the outcome. Lee and Herrera are both doing what is best for CCSF and their combined strategies increases the chances for CCSF’s survival.

On August 20, an estimated 150 students held a sit-in at City Hall to demand that Mayor Ed Lee “publicly support the ACCJC dropping all sanctions against CCSF, and the firing of City College special trustee Robert Agrella in order to ‘End the Special Trustee Dictatorship.’” The students’ anger and frustration is understandable. A rogue institution has made outrageous findings that threaten the very existence of CCSF, and the students wanted the city’s top elected leader to take a public stand on their behalf.

But Mayor Ed Lee has no formal role in the CCSF accreditation crisis. Nor does Lee have any legal authority to impact the ACCJC. The public statement he was asked to deliver would have made it appear that San Francisco’s mayor was wrongly injecting himself in the crisis.

Herrera’s Different Role

City Attorney Dennis Herrera, however, is in a very different position.

An attorney of Herrera’s great skill could not look at an August 13, 2013 federal Department of Education Accreditation Group finding that ACCJC is “out of compliance” without concluding that these defects undermined ACCJC’s denial of accreditation to CCSF. These federal concerns— about conflicts of interest, the fact that no “deficiencies” about CCSF were identified in 2006, and insufficient faculty representation on accreditation teams—were also highlighted in an administrative complaint filed by the California Federation of Teachers and in a lawsuit by the American Federation of Teachers Local 2121.

It will be difficult for a court to uphold ACCJC’s denial of accreditation in the face of these Department of Education charges. I say this for two reasons.

First, over thirty years in the legal profession has taught me that when judges have an opportunity to rule on procedural grounds rather than on the merits, they do so (the current United States Supreme Court being a notable exception).

Second, the procedural defects surrounding the ACCJC—particularly the conflict of interest and lack of faculty representation—are material. They go to the heart of its decision-making process and can only be corrected by vacating the accreditation denial, reconstituting the reviewing body, and then issuing a new decision.

Both scenarios allow the court to sidestep the politics surrounding the accreditation ruling. And in a case where 150 students feel strong enough to hold a sit-in at City Hall, that’s the route most trial courts will prefer.

Herrera Put ACCJC on Defensive

By filing the city’s lawsuit, Herrera put ACCJC’s own deficiencies back in the spotlight. The suit also forces ACCJC to choose between going full speed ahead and hope for the best, or to reconstitute its review board, clear up conflict of interest problems, and then issue the same accreditation denial without the procedural defects.

Would a legally constituted ACCJC still deny accreditation? After being rebuked by the courts, the chances are reduced.

Had Herrera not acted, a court would still have had to address ACCJC’s procedural defects in the union lawsuit. But the case would be framed as solely involving union members’ interests. Now the court will be adjudicating the City and County of San Francisco’s interests, which raises the stakes considerably.

Dennis Herrera and the San Francisco City Attorney’s office just won one of the most important legal cases in California history, the overturning of Prop 8 and the legalization of gay marriage in California. The New York Times wrote a front-page story last March praising Herrera’s office, quoting Ted Olson, a former United States solicitor general who has argued some 60 cases in the Supreme Court, saying “the quality of the work from Mr. Herrera’s office was exceptional.”

Now the SF Chronicle wants the public to believe that the nation’s finest municipal attorney’s office has filed a lawsuit that is a “dubious tack of distraction” and “coddling dysfunction.” Considering that nobody writing for the Chronicle has anywhere close to the legal track record or understanding of complex legal issues of either Herrera or his attorneys, such criticism reflects a deeper dysfunction—in the editorial offices of the Chronicle.

Randy Shaw is Editor of BeyondChron. He discusses how to use lawsuits as part of a broader strategy in his new book, The Activist’s Handbook, Second Edition: Winning Social Change in the 21st Century.

Filed under: Archive