Nova Univ. V. Educational Inst. Licensure, 83-234.

Citation483 A.2d 1172
Decision Date09 November 1984
Docket NumberNo. 83-234.,83-234.
PartiesNOVA UNIVERSITY, Petitioner, v. EDUCATIONAL INSTITUTION LICENSURE COMMISSION, Respondent.
CourtCourt of Appeals of Columbia District

Hershel Shanks, Washington, D.C., for petitioner. Steven A. Standiford, Washington, D.C., also entered an appearance.

Lutz Alexander Prager, Asst. Corp. Counsel, Washington, D.C., with whom Judith W. Rogers, Corp. Counsel, Washington, D.C., at the time the brief was filed, and Charles L. Reischel, Deputy Corp. Counsel, Washington, D.C., were on the brief, for respondent.

Before MACK. and NEWMAN, Associate Judges, and GALLAGHER, Associate Judge, Retired.

NEWMAN, Associate Judge:

Nova University (Nova) seeks review of an Order of the Educational Institution Licensure Commission (Commission) denying Nova's application for a license to offer Doctorate of Public Administration degree courses in the District of Columbia. The Commission denied the license, without prejudice, on the grounds that Nova had not complied with the District's licensing statutes and regulations with respect to adequate full-time faculty and adequate library resources.

Nova challenges the denial of its application for a license on the grounds that: (1) D.C.Code § 29-815 (1981), the District's licensing statute, is not applicable to schools, such as Nova, whose degrees are conferred outside the District of Columbia; (2) D.C. Code § 29-815 is unconstitutional on its face and as applied to Nova because it violates the First Amendment; (3) D.C. Code § 29-815 and the regulations guiding the issuance of licenses are unconstitutionally vague; and (4) the Commission's denial of a license was arbitrary, capricious, and unsupported by substantial evidence in the record.

We disagree with each of Nova's contentions, and therefore affirm the Commission's decision.

I.

A preliminary review of the legislation relevant to this case and its history is helpful to place in context the issues raised by Nova. In 1929, the District of Columbia was not only the capital of the United States, but the "capital" for practically all diploma mills operating not only in the District, but throughout the United States and the world. S.REP.No. 611, 70th Cong., 1st Sess. (1928). This dubious distinction resulted from the District's lax laws relating to the incorporation of educational institutions, the power these institutions had to confer degrees under their general charters, and the opportunity to advertise themselves as operating under the authority of the United States Government or Congress. Id. at 2. Hundreds of fraudulent institutions of "learning" incorporated in the District and sold degrees from baccalaureate to doctoral in every conceivable field of study with little or no academic work; in addition, the charters themselves were sold to individuals who carried on the "educational" programs in other states and countries. Id. at 2. At the urging of the United States Attorney's Office, local citizens and schools, sister jurisdictions and foreign countries, Congress enacted a statute "to Regulate Degree-Conferring Institutions in the District of Columbia." Pub.L.No. 70-949, § 586a, 45 Stat. 1504 (1929) (codified at D.C. Code §§ 29-815 to 818 (1981)). The statute requires licensing of all degree-conferring institutions incorporated in the District or incorporated in another state but operating in the District, and is set out in relevant part below:

§ 29-815. License to confer degrees — Issuance by Educational Institution Licensure Commission required.

No institution . . . incorporated under the provisions of this chapter shall have the power to confer any degree in the District of Columbia or elsewhere, nor shall any institution incorporated outside of the District of Columbia . . ., undertaking to confer any degree, operate in the District of Columbia, unless . . ., by virtue of a license from the Educational Institution Licensure Commission, which before granting any such license may require satisfactory evidence:

(1) That in the case of . . . an incorporated institution, a majority of the trustees, directors, or managers of said institution are persons of good repute and qualified to conduct an institution of learning;

(2) That any such degree shall be awarded only after such quantity and quality of work shall have been completed as are usually required by reputable institutions awarding the same degree . . .,

. . . . .

(4) That considering the number and character of the courses offered, the faculty is of reasonable number and properly qualified, and that the institution is possessed of suitable classroom, laboratory, and library equipment. Degrees (1978).

D.C.Code § 29-815 (1981).

The statute provides for criminal penalties against anyone "who shall, directly or indirectly, participate in, aid, or assist in the conferring of any degree by any unlicensed . . . institution. . . . D.C.Code § 29-819 (1981).

In 1977, the Council of the District of Columbia established the Educational Institution Licensure Commission to perform licensing functions under D.C.Code § 29-815. See D.C.Code § 31-1601 to 1608 (1981). The purpose of this legislation is outlined in its opening section and set out, in part, below:

[T]o provide for the protection, education, and welfare of the citizens of the District of Columbia, its private educational institutions, and its students, by:

(1) Establishing minimum standards concerning quality of education, ethical and business practices, health and safety, and fiscal responsibility to protect against substandard, transient, unethical, deceptive, or fraudulent institutions and practices;

(2) Prohibiting the granting of false or misleading educational credentials;

(3) Regulating the use of academic terminology in naming or otherwise designating educational institutions;

(4) Prohibiting misleading literature, advertising, solicitation, or misrepresentation by educational institutions or their agents.

D.C.Code § 31-1601 (1981).

In 1980, the Council amended the 1977 statute, giving legislative sanction to regulations previously promulgated by the Commission's predecessor, the Board of Higher Education. D.C.Code § 31-1606(a) (1981). These regulations set forth the procedures and criteria by which licenses are issued and revoked. See Regulations Relating to the Licensing of Institutions Which Confer Degrees (1978) [hereinafter Regulations].

Section III of the Regulations contains eleven criteria the Commission is to consider in issuing licenses, involving inquiry into: institutional control; administrative staff and procedures; financial resources; number and quality of faculty; curricula, correspondence, extension, and summer session programs; admission requirements; library; physical plant and equipment; student personnel, health, and recreational services; and institutional publications. Applicants for a license are required to submit a statement as to how they plan to meet the criteria or give reasons why they consider themselves justified in not meeting a particular requirement. Regulations at § III (1)-(11). The regulations provide for flexibility, recognizing that "the . . . criteria will not be equally applicable to each institution wishing to award degrees." Id. Applicants are entitled to a de novo hearing prior to the denial of a license, and to judicial review if a license is denied. Id. at § IV(e), (4)(2).1

II.

It is against this statutory background that this case arose. Nova University is a non-profit corporation organized and existing under the laws of Florida. In addition to undergraduate, graduate, and professional curricula taught at its home campus in Fort Lauderdale, Nova has instituted a variety of field-based, or external degree programs, designed to lead to the conferral by Nova in Florida of various degrees for professional persons. The field-based program of concern here is the Doctorate of Public Administration (DPA). Candidates for this degree are not required to fulfill traditional residence requirements at the Nova campus in Fort Lauderdale. Instead, they form "clusters" of 20 to 25 students who meet at a site in the areas where they live. At the time of the hearing, Nova was operating 11 clusters at various locations throughout the United States, with plans to increase to 15 in the near future.

Nova's DPA program requires a minimum of three years to complete and consists of nine sequences (analogous to semesters or quarters), with each sequence consisting of three to four "units" (analogous to courses). Six of the nine sequences are taught at the cluster sites, and each of the units meets once a month for approximately eighteen to twenty hours from Friday night through Saturday. The remaining three sequences are taught in residence in Ft. Lauderdale. Each of these last about one week and occur annually.

The faculty of the DPA program consists of approximately nine professors from Nova's Florida campus and thirty-three national members, called preceptors. Generally, preceptors travel to the clusters to teach local course units and the Florida based faculty teaches Florida units. Preceptors are academicians and practitioners in the public administration field, most of whom also teach at universities with traditional residence requirements. In addition, each cluster is coordinated by a cluster director, a contract employee living in the cluster area whose role consists of administrative and recruitment duties as well as counseling students.

In addition to preparing papers in anticipation of the unit sessions, students must complete a series of research papers, pass comprehensive written and oral examinations, and complete a final paper, an "analytical research project," which Nova deems to be the equivalent of a doctoral dissertation. The research papers are supervised by Nova's faculty in Ft. Lauderdale, during the annual week long...

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