The Lincoln Memorial University Duncan School of Law has asked a federal judge to reconsider his denial of the school’s request for an injunction against the American Bar Association for denying it provisional accreditation, citing problems with the organization’s appeals process.

Duncan filed its motion on Wednesday in U.S. District Court for the Eastern District of Tennessee, offering the latest development in an accreditation battle that has played out on an unusually large stage, thanks to Duncan’s starring role in a December story in The New York Times that criticized the ABA’s oversight of law schools.

Duncan argued in its motion that at least eight students have withdrawn since the ABA denied it accreditation and that additional student have expressed intentions to transfer.

An ABA spokeswoman declined to comment, citing the ongoing litigation.

The ABA’s Council of Legal Education and Admissions to the Bar formally denied Duncan’s request for provisional accreditation on Dec. 20, citing concerns over compliance with three standards: one pertaining to strategic planning; one to academic standards and achievement; and one to the academic credentials of incoming students.

Two days later, Duncan sued the ABA, claiming it “arbitrarily and capriciously denied” accreditation in violation of antitrust laws. The school sought a permanent injunction and temporary restraining order requiring the ABA to grant provisional accreditation and damages in excess of $1 million.

On Jan. 18, U.S. District Judge Thomas Varlan denied injunctive relief, writing in a 43-page opinion that Duncan had not exhausted the ABA’s appeals process. One day later, the school appealed directly to the ABA for an internal review.

However, Duncan’s new motion claimed that the ABA misrepresented the nature of its appeals panel to the court, stating incorrectly that the panel had been appointed before the initial decision to deny Duncan provisional accreditation. A supplemental statement by Hulett “Bucky” Askew, the ABA’s consultant on legal education, contradicted that timeline. That statement was filed on Jan. 31.

“The ABA’s recent admission that the Appeals Panel was not constituted until after the Council made the decision to deny [Duncan's] application for provisional approval supports the conclusion that any efforts by [Duncan] to exhaust its administrative remedies would be futile,” the motion said.

Duncan claimed that the ABA decided to deny accreditation during a Dec. 2-3 council meeting in Puerto Rico, and that the appeals panel was “not even partially constituted until Dec. 18,” two days before the school was informed of the denial. The timing of the appointments to the panel violated the ABA’s own internal rules, the motion said. It called the appeals panel “merely a surrogate for the underlying deciders.”

Reached Wednesday, Askew declined to discuss the timing of the appointments, but said in his supplemental statement that administrative delays and a high volume of volunteer appointments for a variety of leadership positions caused the delay, and that that the public member of the three-person panel was not chosen until Jan. 25.

Duncan asked Varlan to give fresh scrutiny to the reasons the ABA cited for denying the school provisional accreditation, and to reconsider whether the school suffered harm as a result. Finally, Duncan asked Varlan to reconsider his finding that injunctive relief would harm the ABA’s right to free speech.

The ABA responded to Duncan’s new motion on the same day with separate motions to dismiss and to stay the litigation pending a decision by the appeals panel. Askew confirmed that Duncan’s appeal would be heard by the panel in the spring, but said that no date has been set.

The ABA argued that the council “did not abuse its discretion or reach a decision that was arbitrary and unreasonable.” It said the accreditation committee was concerned that applications to Duncan fell by 27 percent between 2010 and 2011; that admitted student scores on the Law School Admission Test and undergraduate grade-point averages had not improved; and that the school had readmitted six of 18 students who had been dismissed because of their academic performance.

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