Request By:
Mr. Gary S. Cox
Executive Director
Council on Higher Education
1050 U.S. 127, South
Frankfort, Kentucky 40601
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Anne E. Keating, Assistant Attorney General
In your recent letter you asked this office for an opinion interpreting the statutory responsibility set forth in KRS 164.945 to 164.947 requiring the Council on Higher Education to license nonpublic colleges. In particular, Faith Evangelistic Christian School of Morgantown, Kentucky, has refused to comply with licensure on the ground that the school is a religious institution and not subject to requirements of the state. The Council is charged with enforcement of the provisions on licensure of nonpublic colleges under KRS 164.992 and penalties shall be assessed against colleges that violate the provisions. Therefore, you ask this office whether the Council legally may seek to license a religiously affiliated institution.
The intention behind the legislation on licensing of nonpublic colleges is set forth in KRS 164.946, which states:
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 process of recognition and approval is set forth in KRS 164.947(1), which requires the Counsel to adopt standards and procedures that must be met by colleges seeking to be licensed. The programs of instruction must be comparable to "generally accepted standards of collegiate instruction with respect to faculty, curriculum, facilities, and student cost . . ." and there must be "full disclosure with respect to the philosophy and purposes of the institutions and their capacity to fulfill these objectives." Note that subsection (2) states:
Nothing contained in KRS 164.945 to 164.947 is intended in any way nor shall be construed to regulate the stated purpose of a nonpublic college or to restrict religious instruction or training in a nonpublic college.
Subsection (3) requires all colleges as defined by the Act to obtain a license from the Council on Higher Education within ninety days of July 13, 1990. Subsection (4) authorizes only institutions licensed by the Council on Higher Education to use the title "college" or "university."
The answer to your question lies in KRS 164.945 which does not exempt religiously affiliated institutions, but defines college to mean:
any educational facility or institution maintained or conducted by any person, association, partnership, corporation, or trust and operating as an institute, junior college, college, university, or entity of whatever kind which awards a degree, diploma, or other statement of recognition purporting to indicate a level of collegiate attainment beyond secondary school graduation. The following shall be excluded from this definition as it applies to the licensing and regulation requirements of KRS 164.945 to 164.947: . . .
(a) Colleges provided, operated, and supported by federal, state, or county government or any of their political subdivisions.
(b) Colleges licensed or approved for establishment and operation under the statutory authority given to the Kentucky Board of Barbering under KRS 317.430, the Kentucky Board of Hairdressers and Cosmetologists under KRS 317A.030, the Kentucky State Board of Business Schools under KRS 165A.310, the Kentucky Board of Nursing Education and Nurse Registration under KRS 314.121, and any statutes governing the proprietary schools.
You pointed out in your letter that the licensing process of the Council on Higher Education does not seek to influence curriculum or academic philosophy but seeks to ensure the programs of instruction meet the Council's standards of collegiate instruction. Moreover, KRS 164.947(2) specifically requires that the Council not regulate institutions in their purpose or restrict religious instruction or training. You pointed out that several Bible colleges and seminaries voluntarily have complied with the statutes and are licensed by the Council.
It is the opinion of this office that KRS 164.945 to 164.947 do not exempt religiously affiliated institutions from colleges and universities that are regulated by the Council for the purpose of protecting citizens and bona fide institutions of the Commonwealth. In fact, KRS 164.947 focuses specifically on secular aspects of college programs. Moreover, KRS 164.945 does not exempt religiously affiliated educational institutions from the definition of colleges to be licensed by the Council. Accordingly, the Council on Higher Education is required to license all educational facilities or institutions seeking to promote themselves as colleges and universities in the Commonwealth of Kentucky including religiously affiliated schools.