Royalton College, Inc. v. Clark, Civ. A. No. 5102.

• Decision Date: 31 January 1969
• Docket Number: Civ. A. No. 5102.
• Citation: 295 F. Supp. 365
• Court: U.S. District Court — District of Vermont
• Parties: ROYALTON COLLEGE, INC. v. Ramsey CLARK, as Attorney General of the United States, Harold Howe, II, as Commissioner of Education of the U. S. & Bernard Steen, as District Director, Immigration and Naturalization Service.

295 F. Supp. 365

ROYALTON COLLEGE, INC. v. Ramsey CLARK, as Attorney General of the United States, Harold Howe, II, as Commissioner of Education of the U. S. & Bernard Steen, as District Director, Immigration and Naturalization Service.

Civ. A. No. 5102.

United States District Court D. Vermont.

January 31, 1969.

COPYRIGHT MATERIAL OMITTED

John H. Downs, Downs & Rachlin, St. Johnsbury, Vt., for plaintiff.

Joseph F. Radigan, U. S. Atty., Rutland, Vt., and Paul Nejelski, U. S. Dept. of Justice, Washington, D. C., for defendants.

OPINION

LEDDY, District Judge.

This is an action for declaratory judgment that a petition submitted by the plaintiff, Royalton College, Inc., to the Attorney General of the United States through the Vermont District Director of the Immigration and Naturalization Service for approval as an institution in which foreign students may study while enjoying a nonimmigrant alien status under the Immigration and Nationality Act of 1952 should be granted. The action has been brought against the Attorney General, the Vermont District Director of the Immigration and Naturalization Service (I.N.S.) and the United States Commissioner of Education.

The defendants have submitted the files of the I.N.S. and the United States Office of Education (U.S.O.E.) to the Court and on the basis of this record have moved for a summary judgment alleging that there are no genuine issues of fact and that they are entitled to a judgment on the law. Defendants have also moved for the dismissal of this action as to the United States Commissioner of Education on the grounds that he is not a proper party. The records of the I.N.S. and U.S.O.E. show the facts to be as follows:

Royalton College was established in September, 1965, in South Royalton, Vermont. It was intended to be a small liberal arts college with an emphasis on foreign studies. A program was created which called for the enrollment of foreign students.

On May 29, 1966, Royalton College submitted to the District Director of the I.N.S. a petition for approval as a school for attendance of foreign students. Under section 101(a) (15) (F) of the Immigration and Nationality Act of 1952, as amended, foreign students may be admitted as nonimmigrant aliens—that is, outside of the quota system—if they will attend "an established institution of learning or other recognized place of study in the United States * * * approved by the Attorney General after consultation with the Office of Education of the United States * * *." 8 U.S.C. § 1101(a) (15) (F) (1964).

Pursuant to section 103 of the Immigration and Nationality Act of 1952, 8 U.S.C. § 1103 (1964), the Attorney General of the United States has issued regulations which establish the procedures for approval and elaborate on the standards set down in the Act. The regulations provide a general standard for approval of schools:

To be eligible for approval the petitioner must establish that it is a bona fide school, that it is an established institution of learning or other recognized place of study, that it possesses the necessary facilities, personnel and finances to conduct instruction in recognized courses, and that it is in fact engaged in instruction in those courses.

8 C.F.R. § 214.3(e).

The regulations also state that after consultation with the U.S.O.E., it has been determined that schools listed in the current U.S.O.E. publication "Accredited Higher Institutions" or "Education Directory, Part III, Higher Education" (hereinafter referred to as the U.S.O.E. publications) meet the general standard. 8 C.F.R. § 214.3(c). The U.S.O.E. has set down certain criteria for listing in these publications. Institutions accredited by a nationally recognized accrediting agency and those "accredited or approved * * * by a State Department of Education or by a State University" are eligible for inclusion. In addition, institutions may be included if their credits "have been and are accepted as if coming from an accredited institution by not fewer than three accredited institutions." United States Office of Education, Education Directory, Part III, Higher Education 1 (1967).

Finally, the regulations provide that if a college is not listed in the U.S.O.E. publications, it must submit evidence that it confers upon its graduates recognized bachelor, master, doctor, professional or divinity degrees, or if it does not confer such degrees, that its credits have been and are accepted unconditionally by at least three institutions of higher learning which are either operated by the United States or by a state or are listed in the U.S.O.E. publications. 8 C.F.R. § 214.3(b).

The petition for approval submitted by Royalton College went to the defendant, Bernard Steen, District Director of the I.N.S. in St. Albans, Vermont. After the petition was sent, the College submitted certain supporting evidence, and an inspector was sent to view the facilities at Royalton.

The evidence submitted by Royalton and that gained from the observations of the inspector reveal that Royalton College was incorporated in Vermont and capitalized according to the laws of Vermont. They also reveal that the facilities were good and that the college was well situated. There were 20 students and 10 teachers. The college had $606,200 in total assets and $202,025 in liabilities and capital subscriptions outstanding.

Upon receipt of the above information, the District Director solicited the opinion of the U.S.O.E. with regard to Royalton's petition. In December of 1966, the U.S.O.E. recommended that approval be delayed pending receipt of evidence that degrees earned at Royalton are recognized by other institutions of higher education or that credits earned at Royalton are and have been accepted unconditionally by at least three accredited institutions of higher education. The prerequisites were apparently set because Royalton was not listed in the U.S.O.E. publications.

At the time of the above communication, Royalton did not and could not submit the required evidence. In early 1967, however, because of a new Vermont Statute and actions by the Vermont Department of Education pursuant to that statute, Royalton attempted to be included in the U.S.O.E. publications and obtain approval through that listing. The statute provides that articles of association for a Vermont corporation organized to engage in higher education must first be approved by the Vermont Board of Education acting on the advice of the Vermont Higher Education Council. The Vermont Department of Education may give approval only if it finds that the corporation is conducting a "bona fide institution of higher learning, giving instruction in arts and letters etc. * * * and has or will have the resources, including personnel, requisite for the conduct of an institution of higher learning." 16 V.S.A. § 148(a) (Supp. 1968). The statute grants the power to make regulations but does not specifically provide for periodic review of a school's qualifications or revocation of approval once granted.

Acting pursuant to the statute, the Vermont Department of Education sent an inspection team to Royalton College and subsequently approved it for the 1967-68 academic year. The Department of Education report also stated that Royalton would be approved for successive years, if annual inspections by the Department showed that Royalton had made satisfactory progress toward meeting a number of recommendations. These recommendations related mainly to administration and content of the library and further delineation of the programs of study and course requirements. In addition, one recommendation related to the securing of a full time history and English teacher.

The Vermont Department of Education reported the approval of Royalton College to the U.S.O.E. and asked for inclusion in its publications based on this approval. The U.S.O.E. indicated, however, that because the Vermont Department of Education did not have the power to review qualifications or revoke approval, it could not be considered an accrediting or approval agency for purposes of listing in the U.S.O.E. publications.

In June, 1967, Royalton attempted to submit additional evidence to the I.N.S. to gain approval. A letter was sent to the U.S.O.E. indicating that various colleges had stated that they would accept credits from Royalton College. This evidence was rejected by the U.S.O.E. on the grounds that there was no indication that credits had actually been accepted in the past by an institution.

On July 19, 1967, the Royalton petition was officially denied by the District Director of the I.N.S. This denial was affirmed by the Regional Commissioner.

On December 13, 1967, Royalton sent letters to the Regional Commissioner and to the U.S.O.E. asking that the case be reopened because of new evidence. The evidence submitted was a statement that three accredited colleges had accepted credits earned at Royalton. The names of the colleges were listed along with the names of the students whose credits were accepted and the date of acceptance.

On December 22, 1967, the Regional Commissioner informed Royalton that he did not consider the evidence submitted sufficient grounds to warrant reopening the proceedings but that Royalton could submit a formal petition to reopen. Subsequently, the U.S.O.E. indicated that before it could make any recommendations, it would have to write directly to the institutions which have allegedly accepted Royalton's credits. It did note, however, that one of the colleges that had accepted Royalton's credits was not accredited and that, as a result, this acceptance could not be used in determining Royalton's eligibility.

Since that time, the U.S.O.E. has submitted a questionnaire to the colleges listed by Royalton. There have been two responses,—one college indicating total acceptance of credits and the other indicating nonacceptance because the work at Royalton was repetitive of the student's earlier work.

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