Evergreen State College v. Cleland, 79-4372

• Citation: 621 F.2d 1002
• Decision Date: 23 June 1980
• Docket Number: No. 79-4372,79-4372
• Parties: The EVERGREEN STATE COLLEGE et al., Plaintiffs-Appellees, v. Max CLELAND, Administrator, Veterans Administration, et al., Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1002

621 F.2d 1002

The EVERGREEN STATE COLLEGE et al., Plaintiffs-Appellees, v. Max CLELAND, Administrator, Veterans Administration, et al.,

Defendants-Appellants.

No. 79-4372.

United States Court of Appeals, Ninth Circuit.

June 23, 1980.

Katherine S. Gruenheck, Washington, D. C., for defendants-appellants.

Richard Montecucco, Olympia, Wash. (argued), Lewis M. Wilson, Spokane, Wash., on brief for plaintiffs-appellees.

Appeal from the United States District Court for the Western District of Washington.

Before SKELTON ^*, Senior Judge, and GOODWIN and FERGUSON, Circuit Judges.

SKELTON, Senior Judge:

In this case, the Veterans' Administration, Max Cleland, Administrator of the V.A. (hereinafter called the Administrator), and other V.A. officials, defendants-appellants (hereinafter called the V.A. or appellants), appeal from a summary judgment of the United States District Court for the Western District of Washington in favor of Evergreen State College, et al., plaintiffs-appellees (hereinafter called appellees), in which the district court held that the V.A. does not have the statutory authority to promulgate Veterans Administration Regulation 14272(D), 38 C.F.R. § 21.4272(d) (1978); V.A. Regulation 14200(G), 38 C.F.R. § 21.4200(g) (1978); and Department of Veteran's Benefits (D.V.B.) Circular 20-77-16, dated Feb. 9, 1977, revised by change 1, Apr. 21, 1977, and enjoined their enforcement. 467 F.Supp. 508 (W.D.Wash.1979). The appellants contend that (1) judicial review of the V.A. regulations is precluded by 38 U.S.C. § 211(a); ¹ and (2) the V.A. has statutory authority to issue the regulations and the circular in question. The appellees argue that the judgment of the district court is correct, and also that the regulations and circular violate their 1st, 5th and 10th Amendment rights. We agree with the district court that the promulgation of the regulations and circular by the Administrator of the V.A. is subject to judicial review, but, on the merits, we disagree with the decision of the district court that the V.A. does not have statutory authority to issue the regulations. Therefore, we reverse the judgment on the merits and remand the case for determination of the constitutional issues not decided by the district court.

This case is on "all fours" with the cases of Wayne State University v. Cleland, 590 F.2d 627 (6 Cir. 1978), and Merged Area X (Ed.), etc. v. Cleland, 604 F.2d 1075 (8 Cir. 1979), in that every issue involved in the instant case was present in both of those cases. Both courts held, as we do, that the promulgation of regulations by the Administrator of the V.A. is subject to judicial review, and on the merits that the identical regulations and circular involved in our case were valid and issued pursuant to statutory authority. In both cases, the district courts held that the regulations and circular with which we are concerned were not based on statutory authority and were accordingly invalid. These judgments were reversed and the cases were remanded for consideration of the constitutional questions that were not reached by the district courts. We approve the reasoning and decisions of the appellate courts in those cases in deciding the instant case.

The V.A. points out that after World War II Congress enacted the GI Bill to provide a variety of benefits to returning veterans, including education assistance. ² Congress authorized the V.A. Administrator to administer the program. 38 U.S.C. § 210(c)(1). ³

Under the program, once an application for benefits is received from a veteran and it is approved, the Administrator determines the level of assistance available under the Act (38 U.S.C. § 1682), depending upon the type of program involved (e. g., institutional, cooperative, or independent study) (see 38 U.S.C. § 1681), and the measure of time the veteran is engaged in study found to be either institutional or cooperative (38 U.S.C. § 1788(a)(4) and (5)). ⁴

The administrative provisions of the Act relating to payment of education assistance or subsistence authorize the Administrator, pursuant to regulations which he may prescribe, to determine such questions as a veteran's enrollment in, pursuit of, and attendance at a program of education or training. 38 U.S.C. § 1780(g). ⁵ The types of undergraduate programs that an eligible veteran may pursue include institutional courses, cooperative, and independent study (38 U.S.C. §§ 1681(b) and 1682(a)(2) and (e)). By statute, an institutional program is one where the curriculum is centered entirely around classroom instruction. By contrast, Congress defined a cooperative course as one which includes both institutional courses and on-the-job training. Independent study was defined by Congress to be study leading to a college degree which is not conducted in residence. Attendance in an institutional course is to be measured in accordance with Section 1788(a)(4), while attendance in a cooperative course is to be measured in accordance with 38 U.S.C. § 1788(a)(5). Congress determined that no subsistence allowance should be paid to a student enrolled in an independent study course. For this reason, there is no provision relating to the measurement of time spent in such a course. See 38 U.S.C. § 1682(e).

The regulations and circular at issue in this case were promulgated by the Administrator pursuant to 38 U.S.C. § 1788(a)(4). This provision of the Act measures attendance in an institutional undergraduate course offered by a college or university on a quarter or semester-hour basis. Under this provision, a course is considered full-time if it meets one of three criteria: (1) the course entails a minimum of 14 semester hours credit toward a standard college degree; (2) the course involves a minimum of 12 semester hours of credit and the school certifies that it charges full-time tuition for such a course; or (3) the course involves a minimum of 12 semester hours credit and the school certifies that it considers such a course to be full-time for other administrative purposes.

The first regulation in question, 38 C.F.R. 21.4272(d), ⁶ provides a formula for converting a non-standard term of undergraduate study into equivalent semester or quarter-hours. This regulation also states that a course cannot be considered to be full-time if less than 14 standard class sessions per week (or 12 standard class sessions if 12 credit hours is full-time at the school) are required. A second regulation, 38 C.F.R. 21.4200(g), ⁷ then defines the term "standard class session" as the amount of time a student is required, in a regular quarter or semester, to spend in class per week for one quarter or one semester-hour of credit per term. The one-hour class session per week per credit hour rule stated in 38 C.F.R. 21.4272(d) (hereinafter referred to as "the seat-time rule") is repeated in this second regulation.

DVB Circular 20-77-16, effective October 26, 1976, as revised by Change 1, ⁸ expands on the meaning of Regulation 38 C.F.R. 21.4272(d), in that it provides a means of measuring courses for payment purposes. This guideline requires a proportional number of standard class sessions to support the measurement of a full-time as well as part-time course. The Administrator notes in the circular that this rule has been a long-standing V.A. measurement policy. Finally, the guideline states that the V.A. will classify as independent study those courses which are not supported by a sufficient number of class sessions per week (e. g., undergraduate seminars).

In the instant case, with the exception of the Evergreen State College (hereinafter "Evergreen State"), the curriculum at each protesting school is offered on a largely traditional basis (i. e., one semester hour of credit is given for each hour of classroom instruction provided per week in a term). As to those courses, there is no controversy. Some courses at these schools, however, do not entail a sufficient number of hours of classroom instruction each week. It is in regard to these courses that the controversy in this lawsuit arises. And, in the case of Evergreen State, there is little or no classroom instruction to support the semester hours offered. Instead, Evergreen State offers a program of individual "learning contracts". That is, each student designs his own course of study for each quarter and if the "contract" is approved, the school provides full-time credit. The school offers no set classroom courses. Indeed, there is no requirement that the student actually pursue his studies on campus. Additionally, because presence on campus (much less class attendance) is not required of a full-time student at Evergreen State, there is not even a means of determining the number of hours a student actually devotes to his "learning contract."

A few Evergreen State "learning contracts" which were submitted as Exhibits in the district court illustrate the deficiencies identified above. For example, one student obtained two quarters of credit for "Inter-Cultural Research in Brazil." That is, the school certified that this student, who traveled on his own in Brazil for six months, was enrolled in a full-time institutional course of study. Another student received three quarters of full-time credit for hiking through Mexico and Guatemala to help him revise his guide book on Mexico and to provide him with an opportunity to write a book on backpacking. A third student received full-time credit for three quarters for skiing and rafting in Idaho. The V.A. never determined what categories Evergreen State's courses fell into as it was enjoined from making those determinations.

This case was filed by the appellees and certain veterans to prevent the enforcement of the regulations and the circular by the Administrator as to appellees' schools.

I. JUDICIAL REVIEW

The V.A. contends that judicial review of the cited regulations and circular is precluded by 38 U.S.C. § 211(a). This exact issue was decided contrary to...