[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 19-11088

________________________

D.C. Docket No. 1:16-cv-03503-TWT

THE PAINE COLLEGE, 

 Plaintiff-Appellant,

 versus

THE SOUTHERN ASSOCIATION OF COLLEGES AND 

SCHOOLS COMMISSION ON COLLEGES, INC., 

 Defendant-Appellee.

________________________

Appeal from the United States District Court

for the Northern District of Georgia

________________________

(April 16, 2020)

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Before WILSON and BRANCH, Circuit Judges, and RESTANI,* Judge.

PER CURIAM: 

The Paine College (“Paine”), a private college in Georgia, appeals from a 

grant of summary judgment to the Southern Association of College and Schools’ 

(“SACS”) sub-unit, the Commission on Colleges, Inc. (“the Commission”). The 

college initially brought suit against the Commission after the Commission 

revoked Paine’s SACS accreditation. Paine alleges that summary judgment was 

inappropriate because the record revealed that the Commission failed to follow 

procedural rules in evaluating Paine’s status such that the college’s common law 

due process rights were infringed. After a review of the record, and with the 

benefit of oral argument, we affirm. 

I. Background

Paine is a private, co-educational, liberal arts college located in Augusta, 

Georgia. “SACS. . . is one of six regional educational accrediting associations, 

recognized by the Department of Education. . . . Accreditation by a recognized 

accrediting agency, such as SACS, is a prerequisite for an institution’s students to 

receive federal financial assistance.” Wilfred Acad. of Hair & Beauty Culture, 

* Honorable Jane A. Restani, Judge for the United States Court of International Trade, 

sitting by designation. 

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Hous., Tex. v. S. Ass’n of Colls. & Schs., 957 F.2d 210, 212 (5th Cir. 1992).1 The 

Commission is one of four “specialized commissions” within SACS which “set 

educational standards and make accreditation decisions.” Id. Paine College was 

first accredited by a predecessor of the Commission in 1931 and has been 

continuously accredited since then. 

To gain or maintain accreditation with SACS, an institution must comply 

with the standards contained in the Principles of Accreditation (“the Principles”), 

which broadly set forth requirements in four areas: (1) institutional mission, 

governance, and effectiveness; (2) programs; (3) resources; and (4) institutional 

responsibility for Commission policies. As part of the accreditation review, 

member institutions submit documentation demonstrating compliance with the 

Principles to a committee particular to each institution that oversees the review 

process. The committee reviewing member compliance, a review committee, then 

makes a determination regarding that institution’s status. If a review committee 

finds that an institution is not in compliance with the Principles, the review 

committee makes a recommendation of action to the Executive Council, which 

1 Accreditation is a prerequisite to federal funding because “[t]he Secretary recognizes 

accrediting agencies to ensure that these agencies are, for the purposes of the Higher Education 

Act of 1965 . . . reliable authorities regarding the quality of education or training offered by the 

institutions or programs they accredit.” 34 C.F.R. § 602.1(a); see also 34 C.F.R. § 602.10. 

These accrediting bodies rate both the educational success of institutions and certain business 

aspects, such as the school’s “fiscal and administrative capacity as appropriate to the specified 

scale of operations.” 20 U.S.C. § 1099b(a)(5)(E). 

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votes to pass that recommendation on to the full Board. The Board can then place 

the institution on “Warning,” a sanction that places the institution on a monitoring 

period that can last, at most, two consecutive years. If the institution fails to show 

compliance with the Principles after two years on Warning, the institution may be 

removed from membership. If the institution fails to show compliance but shows 

good cause for why it is not in compliance after the Warning period, the Board can 

place it on Probation. The maximum consecutive time that an institution may be 

on Probation is two years. As a result, if an institution has been on Warning for 

two years followed by Probation for two years, it must either demonstrate full 

compliance with the Principles at the final review of the review committee or be 

removed from the Commission’s membership. 

Paine had serious financial problems beginning around 2011. These issues

culminated in 2014, when Paine had a $10 million budget shortfall. On April 24, 

2012, after adverse media attention regarding Paine’s alleged financial 

mismanagement, the Commission’s vice president requested that Paine prepare a 

report documenting its compliance with the Principles’ requirements relating to 

financial stability and control of resources. After a review of Paine’s report, the 

Board voted to place Paine on Warning in June of 2012. A special committee, 

assigned specifically to track Paine’s financial progress, visited the school in 2013 

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to re-evaluate the institution and informed Paine that it needed to demonstrate

compliance with the Principles or face removal from membership.

The special committee visited Paine each year from 2013 to 2016. After 

each visit, the special committee drafted a report and provided Paine with a copy of 

the report. The Commission’s rules gave Paine the opportunity to correct any 

factual errors in the special committee report and provide written responses and 

documents addressing the issues listed in the report to the Commission. Each year, 

Paine provided such a response, including hundreds of pages of documents. Each 

year the review committee found that Paine failed to comply with the Principles. 

And each year, the Executive Council and Board of Trustees agreed with the 

review committee and adopted their recommendations concerning the finding of 

noncompliance. Paine progressed from two years of Warning to two years on 

Probation without being able to comply with the Principles. 

In 2016, a special committee visited Paine from March 29 through March 

31, 2016. After the special committee submitted its report, the review committee

conducted an interview with a Paine delegation to make a final determination. The 

review committee found Paine was still not in compliance with the Principles. The 

Executive Council and the Board affirmed that determination. Since Paine had 

been on Probation for the maximum time period and therefore could no longer be 

continued on Probation, the Executive Council and the Board of Trustees 

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unanimously voted to remove Paine from membership—in effect, revoking its 

accreditation. 

On July 7, 2016, Paine formally appealed the Board’s decision revoking 

Paine’s accreditation. Commission appeals are governed by the Appeals 

Procedures of the College Delegate Assembly (the “Appeals Procedures”) and by 

20 U.S.C. § 1099b(a)(6). The Appeals Committee consists of twelve individuals 

elected by the College Delegate Assembly. The procedures provide that an appeal 

can be decided by a quorum of five or more members of the Appeals Committee. 

The Chair of the Board must fill vacancies on the Appeals Committee—for

example, if a member has a conflict of interest or a quorum cannot be 

established—with members appointed to the appeals committee for the purpose of 

that appeal. The Appeals Procedures also have specific rules about conflicts of 

interest. Among other conflicts, the procedures state that anyone who voted on the 

“accreditation status” of the institution “at any time leading to the appealable 

decision” has a conflict. 

Carol Luthman, an administrative employee of SACS COC, carried out 

several tasks on behalf of the Board relating to the appeal.

2

 Luthman performed an 

2 The record shows that Luthman served as the coordinator for the appeals process 

compiled the administrative record for the appeal, informed Paine when the rescheduled hearing 

would take place, [provided Paine with a list of the members who would serve on the appeals

committee, invited the members of the committee to serve, and trained the hearing officer and 

committee chair on the relevant rules and procedures—all normal parts of her job description. 

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initial conflict check and determined that five of the twelve elected Appeals 

Committee members had a conflict. And although another member—Dr. 

Luckey—participated in votes to place Paine on Warning in 2012 and 2013, 

Luthman ultimately concluded that he did not have a conflict. Luthman also sent 

the emails which invited two non-elected members to the Appeals Committee after 

the Chair of the Board confirmed their appointment. 

The Appeals Committee, after a hearing during which Paine presented 

evidence of its improved financial state, unanimously affirmed the Board’s 

decision to revoke Paine’s accreditation. A week later, Paine filed this lawsuit,

challenging the revocation of its accreditation. Paine asserted claims for violations 

of common law due process based on alleged irregularities in Paine’s appeal 

process and other state law claims. 

Following discovery, Paine filed for partial summary judgment and the 

Commission filed for summary judgment. The district court granted the 

Commission’s motion for summary judgment and denied Paine’s motion for partial 

summary judgment. In brief, the court found that the review process was 

“fundamentally fair.” The court also concluded that substantial evidence supported 

the Committee’s ruling, even allowing for some evidence that pointed against it. 

And, regarding the arguable procedural violations that Paine challenged, the 

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district court found they did not affect the fundamental fairness of the process.

This appeal followed. 

II. Standard of Review

“We review a district court’s grant of summary judgment de novo, applying 

the same legal standards as the district court, and viewing all facts and reasonable 

inferences therefrom in the light most favorable to the non-moving party.” 

Arrington v. Helms, 438 F.3d 1336, 1341 (11th Cir. 2006). 

III. Discussion

A threshold question to reviewing Paine’s challenge to the appeals 

procedure is whether this court recognizes the legal right they claim: a common 

law due process right. Our circuit, in the only reported case on this issue, declined 

to decide whether such a right existed. See Hiwassee Coll., Inc. v. S. Ass’n of 

Colls. & Schs., 531 F.3d 1333, 1335 (11th Cir. 2008) (per curiam). Instead, the 

Hiwassee court borrowed the standard of review from a Sixth Circuit case3 that 

recognized such a right and concluded that, even assuming such a right existed,

SACS complied with any such common law due process requirements. See id. at 

1335 & n.4 (“The procedural components of Hiwassee’s argument fail to show a 

3 See Thomas M. Cooley Law Sch. v. Am. Bar Ass’n, 459 F.3d 705, 712 (6th Cir. 2006)

(“This Court reviews only whether the decision of an accrediting agency . . . is arbitrary and 

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

evidence.”) (citations omitted). 

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violation of common law due process, or that SACS’s decision to terminate 

Hiwassee from membership based on its continuous troubled financial condition 

was arbitrary and capricious.”). We follow suit today and hold, without deciding

whether such a right exists, that the process used to remove Paine’s accreditation 

would not offend common law due process. 

In reaching this conclusion, we apply the same deferential standard the 

Hiwassee court utilized “and review ‘only whether the decision of an accrediting 

agency . . . is arbitrary and unreasonable or an abuse of discretion and whether the 

decision is based on substantial evidence.’” Id. at 1335 n.4 (quoting Thomas M. 

Cooley Law Sch. v. Am. Bar Ass’n, 459 F.3d 705, 712 (6th Cir. 2006)). As the 

Cooley court explained, the real question, under this standard of review, is whether 

the process and decision were fundamentally fair: 

[G]reat deference should be afforded the substantive rules of these 

[accreditation] 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.”

Cooley, 459 F.3d at 713 (second alteration in original) (quoting Med. Inst. of Minn.

v. Nat’l Ass’n of Trade & Tech. Schs., 817 F.2d 1310, 1314 (8th Cir. 1987)). Thus, 

we examine whether the process was “arbitrary and unreasonable or an abuse of 

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discretion” and whether the decision was made with “sufficient reasoning.” Id. at

712, 715. 

A. Whether the Commission’s Process Was Arbitrary and Unreasonable or an 

Abuse of Discretion

A review of the record shows that due process is more than satisfied when 

looking at the procedures used to revoke Paine’s accreditation. The Commission 

has detailed rules and procedures for evaluating an institution’s accreditation 

status. The review committees are comprised of professionals and peers who 

evaluate every document the institution provides. The institution is measured 

against objective standards detailed in the Principles. Moreover, the review 

committee’s initial recommendation is further reviewed by two bodies: the 

Executive Council and the Board of Trustees, both of which are comprised of 

members elected from the body of member institutions as a whole. The appeals 

process itself has an entirely separate hearing, a new set of judges who have served 

in the academic accreditation field before, and gives yet another opportunity for an 

institution to present its evidence and argument. These procedures are 

fundamentally fair. Another way to put it: “The Commission’s procedures treat 

applicants for accreditation like capable professionals seeking the evaluation and 

recognition of their peers: we do not think that due process requires any more.” 

Marlboro Corp. v. Ass’n of Indep. Colls. & Schs., Inc., 556 F.2d 78, 82 (1st Cir. 

1977). 

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Paine nonetheless contends that two minor errors in the selection of the 

appeals committee deprived the process of fundamental fairness such that due 

process was offended. First, says Paine, one of the Appeals Committee 

members—Dr. Luckey—should not have served on Paine’s appeal because he had 

a conflict of interest from having voted to place Paine on Warning a few years 

prior. Second, Paine argues the Committee jumped the gun, so to speak, in 

inviting two unelected members—Drs. Martin and Early—to serve on the Appeals 

Committee before all elected members had been contacted to determine if a 

quorum existed. For the purposes of this appeal, we assume that these were errors 

under the Appeals Procedures. Nevertheless, we do not find that Paine’s due 

process rights were violated.4

First, a conflict of interest is not a per se due process violation. We have 

held, in the context of a due process claim regarding a government decision to 

deny benefits, that “the existence of a conflict of interest should merely be a factor 

for the district court to take into account when determining whether an 

administrator’s decision was arbitrary and capricious.” Doyle v. Liberty Life 

Assurance Co. of Bos., 542 F.3d 1352, 1360 (11th Cir. 2008). And the Supreme 

4 We note that Cooley held similar allegations of procedural violations did not rise to a 

denial of due 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.” Cooley, 459 F.3d at 715.

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Court has noted that “[p]ersonal bias or prejudice” is not enough, on its own, to 

trigger the common law concept of a violation of due process. Caperton v. A.T. 

Massey Coal Co., 556 U.S. 868, 876–77 (2009). Thus, even an admitted conflict 

of interest does not automatically invalidate a decision.5

 

The same is true for the appointment of the two unelected members of the 

Appeals Committee.

6

 Even if the rules did not permit these appointments, it is 

hard to see how Paine was harmed at all, let alone to such an extent that due 

5 Paine relies on a Supreme Court case that interpreted constitutional due process 

requirements in the death penalty context to argue that a conflict of interest is per se error. In 

Williams v. Pennsylvania, the Supreme Court held that “under the Due Process Clause there is an 

impermissible risk of actual bias when a judge earlier had significant, personal involvement as a 

prosecutor in a critical decision regarding the defendant’s case.” 136 S. Ct. 1899, 1905 (2016) 

(vacating denial of postconviction relief because state justice who participated in decision to 

deny relief had been the district attorney who approved decision to seek the death penalty in 

defendant’s case). The Court reasoned that “an unconstitutional potential for bias exists when 

the same person serves as both accuser and adjudicator in a case.” Id. at 1905. This case does 

not carry Paine’s argument. Not only is the context radically different, but the Court in Williams

was also considering the “potential for [actual] bias” in the determination of the adverse 

outcome, not merely a conflict of interest. Here, Paine has not shown any potential for actual 

bias. 

6 As noted earlier, we are assuming for the purposes of this appeal that the appointments 

of the two unelected members of the Appeals Committee were erroneous. However, we note 

that the record revealed that the Appeals Procedures state there must be a “minimum” of five 

members to constitute a quorum. If a quorum cannot be reached from the 12 elected members, 

the Chair of the Board is allowed to appoint other qualified academic employees from member 

institutions. Of the 12 elected members, five of them had conflicts of interest. Another had 

moved out of the country and retired. Another was unable to make the committee because his of 

CPA obligations and an upcoming tax filing deadline. Another could not serve because of a 

board meeting. That left only four elected members who could serve. It is a practice of the 

Commission to have available at least six members who can serve in case one gets sick last 

minute, and this reasonable precaution is not expressly prohibited by any of the rules. Thus, the 

Chair of the Board was permitted to appoint other members to the committee to ensure a

quorum, which she did. In light of these circumstances, it is doubtful that the invitation to these 

two members was, in fact, a procedural error. 

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process was violated. Paine makes a passing argument that one of the unelected 

members influenced the Appeals Committee’s choice to include certain language 

in the letter sent to Paine after the hearing. But even if this committee member

advocated against Paine’s interest, that advocacy is insufficient to show a violation 

of due process because (a) a quorum requires five members, so even if one member 

of the six-member committee was extraneous, at least one new member was 

required, (b) the decision was unanimous, meaning regardless of which of the two 

unelected members had served, the vote would have been in favor of affirming the 

removal of Paine’s accreditation, and (c) Paine put forward no evidence to show 

that any elected members were actually available to serve in either of the unelected 

member’s places. 

In short, minor departures from an outlined procedure do not per se cause 

injury and therefore would not amount to a violation of procedural due process. 

Given the lengthy process the Committee utilized before the appeal even happened 

and given that Paine has not produced any evidence to suggest these errors had an 

effect on the ultimate decision, Paine has not demonstrated that it was denied due 

process. 

B. Whether the Commission’s Decision was Based on Substantial Evidence

This prong of the due process test requires little discussion. Paine argues 

that the Commission’s decision to allow this particular Appeals Committee to hear 

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Paine’s appeal was not based on substantial evidence. But Paine misses the thrust 

of the analysis: the question is whether the Commission’s ultimate decision was 

based on substantial evidence. See Cooley, 459 F.3d at 712, 715. And to that 

question, the record shows that there was more than substantial evidence, over a 

period of four years, to make the decision that the Committee made. 

IV. Conclusion

Because Paine has not shown that any technical errors in the appeals process 

rendered the loss of accreditation procedure as a whole arbitrary and unreasonable

or an abuse of discretion, and because the Committee’s decision to remove Paine 

from SACS accreditation was based on substantial evidence, we affirm the grant of 

summary judgment in the Committee’s favor.

7

AFFIRMED.

7 Paine also argues that the district court erroneously required Paine to demonstrate an 

injury in addition to the injury of the alleged due process violations. Because we hold that there 

was no due process violation, thus necessarily holding there was no injury at all, we need not 

reach this additional argument. 

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