Request By:
Leroy G. Moore, D.C.
Executive Director, SCASA
P.O. Box 17357
Spartanburg, South Carolina 29301
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Conley C. Congleton, Assistant Attorney General
Re: Your Letter to This Office Wherein You Requested an Opinion from this Office Relative to the Constitutionality of House Bill No. 968
You have asked for our opinion regarding the constitutionality of House Bill No. 968 which was passed by the 1988 General Assembly. That bill amended KRS 312.085, which pertains to the requirements for one to be licensed as a Doctor of Chiropractic. In your letter you stated:
The provision of the new bill which SCASA strongly feels is unconstitutional is Section 7 to the extent that it requires that an applicant for an exam for a chiropractic license must be 'a graduate of an accredited chiropractic college accredited by the [C]ouncil on [C]hiropractic [E]ducation or their successors. ' The Council on Chiropractic Education (CCE) is only one chiropractic accrediting agency recognized by the United States Office of Education. SCASA is also recognized as a specialized chiropractic accrediting agency by the United States Office of Education. These two accrediting agencies hold equal recognition with the United States.
Prior to the enactment of HB 968, KRS 312.085(1) provided that an applicant, in addition to a number of other requirements, must be a graduate of:
[A] chiropractic college accredited by the association of chiropractic colleges or the council on chiropractic education or their successors . . . .
One of the changes implemented by HB 968 was to delete the reference to the Association of Chiropractic Colleges, thereby leaving a college accredited by the Council on Chiropractic Education or their successors as the only type of chiropractic college from which an applicant can graduate in order to be licensed in Kentucky.
As to whether the previously discussed portion of HB 968 is unconstitutional, Section 2 of the Constitution of Kentucky, which denies the exercise of arbitrary power, is the Kentucky equivalent of the federal Constitution's provisions dealing with the right to equal protection and due process. In OAG 79-82, p. 2, it was stated, "In defining the term 'arbitrary,' the court has written in effect that the term would mean that the governmental action was not right and equitable under the circumstances, and not directed by sound reason and in the exercise of good judgment and conscience. " In this particular matter, the governmental action requires that applicants seeking to be licensed to practice chiropractic in Kentucky can only be graduates of a chiropractic college accredited by the Council on Chiropractic Education or their successors. The issue is whether that governmental action was right and equitable under the circumstances and whether it was directed by sound reason and in the exercise of good judgment and conscience.
When enacting legislation to control the practice of chiropractic, the Legislature must determine what it deems best for the protection of the citizens of Kentucky. In this particular case, it chose to use the Council on Chiropractic Education as the accrediting body recognized by Kentucky as requiring of chiropractic colleges the standards that would best benefit Kentucky's citizens. As we understand it, there are two chiropractic accrediting agencies recognized by the U.S. Office of Education. One is the Council on Chirppractic Education, which represents the "mixing" school of chiropractic thought. The other is the Straight Chiropractic Academic Standards Association, which represents the "straight" school of chiropractic thought. Essentially, the "mixing" school requires a broader range of education and training than the "straight" school. The "straight" school holds a more conservative view of what a chiropractor should be prepared and trained to do. The Council on Chiropractic Education standards are structured to educate the Doctor of Chiropractic as a primary care portal-of-entry physician trained to diagnose, treat, and refer. The Straight Chiropractic Academic Standards Association standards are structured to educate the "straight" or non-diagnostic chiropractor. The Council on Chiropractic Education is recognized by the United States Department of Education and the Council on Postsecondary Accreditation for accreditation of institutions leading to the Doctor of Chiropractic degree. The United States Department of Education recognizes the Straight Chiropractic Academic Standards Association for its limited recognition of "straight institutions."
There is no requirement that a state must accept for examination applicants from chiropractic colleges accredited by both accrediting agencies recognized by the U.S. Office of Education. In other words, a state does not have to accept the one simply because of accepting the other. But, in only accepting one accrediting agency, the question arises as to whether the state's decision is arbitrary. We think not. There appear to be definite differences in the breadth of training and experience between the "mixing" and "straight" schools of chiropractic, with perhaps the most important difference being that the Council on chiropractic Education's criteria are structured to educate a Doctor of Chiropractic as a primary care portal-of-entry physician, well trained to diagnose, treat, and refer, while the Straight Chiropractic Academic Standards Association criteria are structured to educate a "straight" or nondiagnostic chiropractor. Therein, the legislators were not, in our opinion, acting arbitrarily in choosing the accrediting agency having the broader requirements. Absent a showing of arbitrariness, we must conclude that the law is constitutional.
In support of your position, you directed our attention to the case of
Garces v. Department of Registration and Education, 254 N.E.2d 622 (Ill.App. 1969). A copy of the Court's finding in that case is attached hereto. In that case, the Illinois Legislature, in the Illinois Dental Surgery Act [Ill. Rev. Stat. (1967) ch. 91, secs. 56 - 72 h. inclusive], placed with the Department of Registration and Education the power to prescribe rules and regulations defining what shall constitute a reputable dental school, college, university, or department of a university as well as determining such reputability, when the need arises, by reference to a compliance with such rules and regulations. The court found that certain rules of the Department were invalid as "they represent an arbitrary and unreasonable delegation of power from the Department to two organizations independent of it." Id., at 628. In its finding, the court stated:
The Legislature has imposed a duty on the Department of Registration and Education, through its Dental Examining Committee, to pass rules and regulations defining a reputable dental school. By Rules V-A and V-B the Department has in turn unreasonably and arbitrarily delegated its duty to the American Dental Association and the University of Illinois Dental School. Although the Legislature has looked to the Department to define the standard of reputability, the Department has, in turn, looked to two bodies independent of it.
Id. at 628-629. However, the factual situation which the court was looking at in Garces, supra, is different from the one which you have asked us to examine. In this particular matter, the Kentucky Legislature has enacted a statute which specifically requires that applicants for licensure to practice chiropractic in Kentucky be graduates of an accredited chiropractic college accredited by the Council on Chiropractic Education or its successors. Therein, we are not looking at a question of whether an administrative agency (in this case, the Kentucky Board of Chiropractic Examiners) is arbitrarily and unreasonably delegating statutory powers granted to it to other parties. We are, instead, examining whether the law itself is arbitrary or unreasonable.
Attached hereto is a copy of Application of Hansen, 275 N.W.2d 790 (Minn. 1978). That case has to do with an applicant who graduated from a non-American Bar Association accredited law school and applied to sit for a bar examination in a state which required that applicants for the examination be graduates of an American Bar Association approved law school. In that decision, the Minnesota Supreme Court upheld the requirement against an attack very similar to the one you have presneted. We believe the reasoning in that case is applicable to the present situation and supports the constitutionality of HB 968. Therefore, for the reasons set forth above, it is our opinion that HB 968 is constitutional.