Request By:
Mr. Gary S. Cox
Executive Director
Council on Higher Education
Frankfort, Kentucky 40601
Opinion
Opinion By: David L. Armstrong, Attorney General; Kevin M. Noland, General Counsel
You have requested an opinion from this office as to the Council on Higher Education's authority to include a provision in its licensure regulations which requires out-of-state nonpublic colleges to meet licensing criteria which exceed criteria applied to in-state institutions.
The Council on Higher Education is authorized by KRS 164.947 to adopt standards and procedures for the licensing of nonpublic colleges. The regulations are set out in 13 KAR 1:015. Section 2(7) of the regulations pertain to out-of-state institutions and states in part:
"Any application by such institution must establish the need for the proposed program in Kentucky, and the Council on Higher Education shall determine that such need cannot reasonably be met by colleges located in Kentucky before a license shall be granted."
Your specific question is whether this regulation is a valid basis to support a decision to deny an out-of-state institution a license.
The regulation of colleges and universities is a matter peculiarly affected with public interest involving the welfare, morals, and safety of our state citizens. The legislature has discretionary authority under the state police power to impose regulations on colleges and universities so long as such regulations are reasonable and within constitutional limits. See gen. 14 C.J.S. Colleges and Universities § 3.
Furthermore, the legislature may delegate its discretionary powers to administrative agencies. However, regulations promulgated by the administrative agency are invalid if they go beyond the scope of the delegated administrative authority. Kentucky State Bd. of Business Schools v. Electronic Computer Programming Institute, Inc., Ky., 453 S.W.2d 534, 536 (1970).
In considering whether the agency has acted within its granted power, we must consider the purpose of the relevant statutes. In authorizing the Council on Higher Education to adopt regulations for licensing nonpublic colleges, the General Assembly declared its intent in KRS 164.946 as follows:
"It is the purpose of KRS 164.945 to 164.947 to promote and to enhance the opportunity for higher education in Kentucky by giving recognition and approval to bona fide colleges and universities as a protection to such bona fide institutions and as a protection to the citizens of the Commonwealth against those agencies and institutions of whatever name or organization which resort to fraudulent practices, unfair competition, or substandard educational programs."
The declaration of general purpose is clarified by the specific language of KRS 164.947(1) which reads:
"The council on higher education by regulation shall adopt standards and procedures for the licensing of colleges to insure that the programs of preparation are comparable to the generally accepted standards of collegiate instruction with respect to faculty, curriculum, facilities, and student cost and that there is full disclosure with respect to the philosophy and purposes of the institutions and their capacity to fulfill these objectives."
The plain language of the Act seems to indicate that the General Assembly intended to regulate academic quality. We can find no basis on which to infer that the General Assembly intended to authorize the Council on Higher Education to regulate in a manner so as to deny an out-of-state nonpublic college a license simply because an in-state college might offer the same program.
As a result, we conclude that the provision of 13 KAR 1:015, Section 2(7) - which requires that any licensure application by an out-of-state nonpublic college or institution must establish the need for the proposed program in Kentucky, and that the Council on Higher Education shall determine that such need cannot reasonably be met by colleges located in Kentucky before a license shall be granted - is an invalid basis on which to deny a license to an out-of-state nonpublic college or institution.