IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

KETTERING COLLEGE, : Case No. 3:18-cv-277

:

Petitioner, : Judge Thomas M. Rose

 :

v. :

: 

THE HIGHER LEARNING COMMISSION, :

:

Respondent. :

______________________________________________________________________________

ENTRY AND ORDER DENYING KETTERING COLLEGE’S PETITION TO 

COMPEL ARBITRATION (DOC. 1) AND MOTION TO COMPEL 

ARBITRATION (DOC. 2) AND TERMINATING CASE

______________________________________________________________________________

This case is before the Court on the Petition to Compel Arbitration (Doc. 1) and 

Motion to Compel Arbitration (Doc. 2), both of which seek the same relief, filed by 

Petitioner Kettering College. Kettering College is a Christian college accredited by 

Respondent The Higher Learning Commission (“HLC”). According to Kettering College, 

“accreditation” means two things. First, a college can obtain federal funding for student 

loans. Second, other accredited schools will accept Kettering College’s coursework 

completion for transfers and graduate schools.

Kettering College has been accredited for 50 years. It claims that HLC threatens 

to remove its accreditation, however, unless the religious body that owns Kettering 

College, the North American Division of Seventh-day Adventist Church, divests itself of 

ownership and control. Kettering College alleges that, pursuant to HLC policy, it will be 
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required to separately incorporate and install an independent board if it wants to 

maintain its accreditation.

Kettering College requested an exemption from HLC’s policy requiring such 

measures and asked that HLC arbitrate the issue. HLC has not responded to either 

request. As a result, Kettering College brought this action to compel HLC to arbitrate the 

issue under the Federal Arbitration Act. The Court DENIES the Petition and Motion 

because, at this time, there is no case or controversy over which the Court has jurisdiction. 

Should that fact change, Kettering College may file a new petition.

I. THE CASE-OR-CONTROVERSY REQUIREMENT

“‘No principle is more fundamental to the judiciary’s proper role in our system of 

government than the constitutional limitation of federal-court jurisdiction to actual cases 

or controversies.’” Raines v. Byrd, 521 U.S. 811, 818 (1997) (quoting Simon v. Eastern Ky. 

Welfare Rights Organization, 426 U.S. 26, 37 (1976)). “[O]ne of the controlling elements in 

the definition of a case or controversy under Article III” is standing. ASARCO Inc. v. 

Kadish, 490 U.S. 605, 613 (1989). Federal courts “have an independent duty ‘to inquire sua 

sponte whenever a doubt arises as to the existence of federal jurisdiction.’” Kentucky Press 

Ass’n, Inc. v. Kentucky, 454 F.3d 505, 508 (6th Cir. 2006) (quoting Mt. Healthy City Sch. Dist. 

Bd. of Ed. v. Doyle, 429 U.S. 274, 278 (1977)).

To invoke a federal court’s jurisdiction, a plaintiff must demonstrate that it

“possesses a legally cognizable interest, or ‘personal stake,’ in the outcome of the action.” 

Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66, 71 (2013) (quoting Camreta v. Greene, 563 

U.S. 692, 701 (2011) (internal quotes omitted)). The requisite stake is established by 
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showing (1) the plaintiff “suffered an injury in fact,” (2) caused by “the conduct 

complained of,” (3) that “will be redressed by a favorable decision.” Lujan v. Defenders of 

Wildlife, 504 U.S. 555, 560–561 (1992). “This requirement ensures that the Federal 

Judiciary confines itself to its constitutionally limited role of adjudicating actual and 

concrete disputes, the resolutions of which have direct consequences on the parties 

involved.” Symczyk, 569 U.S. at 71.

In response to Kettering College’s Petition, HLC argues that there is no dispute 

ripe for adjudication because it has excused Kettering College indefinitely from any 

obligation to comply with its separate incorporation rule. On July 12, 2018, HLC sent a 

letter to Kettering College’s President stating, in pertinent part:

Dear President Brandstater:

At its meeting on June 28, 2018, the Higher Learning Commission (HLC) 

Board of Trustees (“the Board”) authorized HLC staff to review HLC policy 

as it relates to the incorporation status of affiliated institutions. The Board 

took this action following review of materials submitted by affiliated 

special-focus institutions that are not yet separately incorporated, and after 

new information became available regarding the status of the proposed bill 

known as the Making the Education of Nurses Dependable for Schools Act 

(or “M.E.N.D. Act”).

As you are aware, Board policy maintains that affiliated institutions must 

be incorporated as institutions of higher education in one of the 19 states of 

the north central region (or operating under federal authority in 

conjunction with an executive branch or independent federal agency or 

branch of the U.S. military). In previous correspondence, HLC indicated 

that affiliated institutions that did not meet this requirement had until 

December 31, 2019 to come into compliance. This letter serves as formal 

notification that HLC Board has temporarily suspended this deadline, as 

outlined below, pending completion of the review.

In taking this action, the Board tasked HLC staff with reviewing the 

applicable policies that form the basis of the separate incorporation 

requirement to determine whether an alternative approach to meeting 
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HLC’s requirements for autonomous governance and financial sufficiency 

exists without undergoing the legal process of separately incorporating. 

The Board required that HLC staff conduct this review during summer and 

early fall 2018 and present its findings at the Board’s November 2018 

meeting. At its November meeting, the Board will make a final 

determination as to whether to continue maintaining the separate 

incorporation requirement for already affiliated institutions.

Effective immediately, HLC is suspending the evaluation of all applications 

for Change of Control, Structure or Organization, that relate exclusively to 

separate incorporation, pending completion of this review. Applications 

that have been submitted for consideration at the Board’s November 2018 

or February 2019 meetings will be treated as withdrawn unless otherwise 

requested by the institution. Institutions will not be invoiced for 

applications that are withdrawn in response to this letter.

If it is found that an alternative to separate incorporation for already 

affiliated institutions exists under HLC policy, you will be notified 

following the Board’s meeting. Alternatively, if the Board determines that 

affiliated institutions must undergo separate incorporation in order to meet 

HLC’s requirements for autonomous governance and financial sufficiency, 

then the Board, at its discretion, will set a revised deadline for coming into 

compliance.

Thank you for your cooperation. . . .

(Doc. 1-5 at PAGEID# 368-69.) As stated in this letter, HLC has not yet made a 

determination regarding whether or not Kettering College will be required to comply 

with HLC’s separate incorporation policy to maintain its accreditation.

Anticipating the argument that this case is not yet ripe, Kettering College argues 

that it should not have to wait until HLC “chops off its accreditation ties to challenge its 

authority to mandate incorporation.” (Doc. 2 at 10 n.6 (citing W. State Univ. of S. Cal. v. 

ABA, 301 F.Supp.2d 1129, 1138 (C.D. Cal. Feb. 6, 2004)).) The ABA case cited by Kettering 

College, however, is distinguishable on its facts.
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In that case, Western State University (the “University”) faced certain withdrawal 

of its ABA accreditation. The ABA Accreditation Committee (the “Committee”) had 

determined that the University should not be granted ABA accreditation. The ABA 

Council of the Section of Legal Education and Admissions to the Bar (the “Council”) 

concurred in the Committee’s determination. The University’s appeals to the Committee 

and Council both failed. Its last resort was to appeal their decisions to the ABA House of 

Delegates at a meeting to occur within less than two months. If the House of Delegates 

denied the appeal, then the University would lose its accreditation.

The University brought an action against the ABA alleging that it had violated the 

Higher Education Act, common law due process, the Administrative Procedures Act, the 

Fifth Amendment, and the Sherman Antitrust Act. The University also sought a

preliminary injunction preventing the ABA House of Delegates from reviewing the

decision to withdraw the University’s accreditation at its upcoming meeting. The 

University wanted to maintain the status quo—its ABA accreditation—until its claims 

could be considered on their merits. The district court determined the University was 

entitled to a preliminary injunction and entered its decision just three days before the 

meeting of the ABA House of Delegates.

Here, HLC expressly stated that it is uncertain whether or not institutions like 

Kettering College will be required to comply with the separate incorporation policy. In 

addition, HLC informed Kettering College that, if Kettering College were required to 

comply with the policy, HLC would set a new deadline for it to come into compliance. 

HLC’s previous deadline to comply, which it has suspended, was December 31, 2019—
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more than a year from the date of this Order. Thus, it may be inferred that any revised 

deadline will be after December 31, 2019.

In sum, in contrast to the ABA case, there has been no final determination that 

Kettering College does not qualify for accreditation and it is not in imminent danger of 

losing its accreditation. There is not even a dispute to arbitrate, as HLC has withdrawn 

from its position that all institutions must comply with the separate incorporation policy. 

HLC indicated that it plans to reach a final determination on that issue in the near future. 

If that final determination is adverse to Kettering College, then it might have a dispute 

subject to arbitration. The Court need not opine on the arbitrability of any such dispute 

now and may not need to do so in the future unless HLC denies a future request to 

arbitrate and Kettering College must bring a new petition to compel arbitration.

II. CONCLUSION

For the reasons above, Kettering College’s Petition to Compel Arbitration (Doc. 1) 

and Motion to Compel Arbitration (Doc. 2) are DENIED. This case shall be 

TERMINATED on the Court’s docket.

DONE and ORDERED in Dayton, Ohio, this Wednesday, November 7, 2018. 

 s/Thomas M. Rose

________________________________

THOMAS M. ROSE

 UNITED STATES DISTRICT JUDGE