Keams

This case poses one question. Does the Higher Education Act,. 20 U.S.C. § 1001 et seq., preempt state tort claims by students against school accrediting associations? We conclude that it does not.

I. Facts

The action was dismissed in district court for failure to state a claim upon which relief can be granted, pursuant to Federal Rule of Civil Procedure 12(b)(6). The district court did not reach the question of whether under state law a claim might exist. The theory of the dismissal was that, whether there would otherwise be a state tort claim or not, the federal Higher Education Act preempted any such state remedies. Keams v. Tempe Technical Institute, Inc., 807 F.Supp. 569, 578 (D.Ariz.1992).

Although both sides submitted additional materials or referred to materials outside the pleadings, the district court elected not to convert the motion into one for summary judgment, and resolved it entirely on the basis of whether the claim stated by the complaint was preempted. Id. at 572 . A dismissal for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) is a ruling on a question of law and is reviewed de novo. Everest and Jennings v. American Motorists…