Request By:
A. Franklin Berry, Jr.
University Attorney
Western Kentucky University
Bowling Green, Kentucky 42101
Opinion
Opinion By: Frederic J. Cowan, Attorney General; John S. Gillig, Assistant Attorney General
This is in response to your letter on behalf of Dr. Thomas Meredith, President of Western Kentucky University, and the Board of Regents of Western Kentucky University in which an opinion of this office is requested on the following two questions:
1) Whether the Council on Higher Education, under KRS 164.020(8) and KRS 164.295(2), can approve a Doctorate in Education Program at Western Kentucky University?
2) Whether, under KRS 164.295, the establishment of a Doctorate program in Education at Western University would require a change in the existing laws of the Commonwealth?
Our response to these questions is dependent upon an analysis of three areas. First, the authority of the Kentucky Council on Higher Education ("Council"). Second, the authorizations contained in the Kentucky Revised Statutes ("KRS") pertaining to specific institutions and the programs and degrees they may provide. Finally, whether the specific language of KRS 164.295(2) is sufficient to permit the establishment of a doctoral degree program at Western Kentucky University.
I. The Authority of the Council
KRS 164.020(8), defines the statutory authority of the Kentucky Council on Higher Education. This organization shall:
Define and approve the offering of all higher education associate, baccaolaureate, graduate , and professional degree or certificate programs in the state-supported higher education institutions . . . . [Emphasis added.]
This role is consistent with the statutory purpose of the Council as a policy-making body charged with determining the overall needs of higher education and developing and implementing comprehensive plans to meet those needs. See, KRS 164.020.
In 1974, this office interpreted KRS 164.020(8) in OAG 74-283, observing that
. . . [N]o matter how this statute is interpreted it serves to limit the autonomy of the governing boards of the state universities. That it was intended to give the Council [on Higher Education] approval and veto power over graduate degree programs is clear and undisputed.
In OAG 71-251, this office found that although the Council does have the authority to "approve" a new professional school in the context of its function to determine the overall needs and priorities in higher education, the General Assembly had reserved to itself the prerogative of delineating programs, roles, purposes and the types of colleges or schools which the state universities are authorized to provide.
KRS 164.020(8), therefore, clearly allows the Council to permit the universities to offer new degrees and new programs at the graduate and professional level if the university is elsewhere authorized by statute to provide such a degree or program.
II. Authorizations for New Programs and New Degrees Under the Kentucky Revised Statutes.
As has been demonstrated, the Council can only approve those programs, degrees, or program areas which the General Assembly has authorized. Unfortunately, problems arise because the statutory authorizations, although using precise terminology, are often inconsistent. "Program" and "degree" do not necessarily refer to the same thing, but they may.
KRS 164.295(2), enacted in 1966, provides that the six (6) "state universities" (which, under KRS 164.290, includes Western Kentucky University) shall provide:
(2) Upon approval of the council on higher education , graduate programs of instruction at the masters-degree level in education, business, and the arts and sciences, specialist degrees and programs beyond the masters-degree level to meet the requirements for teachers, school leaders and other certified personnel . . . . [Emphasis added.]
We note that KRS 164.295(2) expressly refers to "specialist degrees." State universities have traditionally offered specialist degrees, which are beyond a masters degree and below a doctoral degree.
In the same act relating to higher education, the 1966 General Assembly enacted legislation, now codified as KRS 164.125(1)(b)(c), relating to programs which the University of Kentucky shall provide. This statute reads in part as follows:
(1) The University of Kentucky shall provide:
(b) Upon approval of the council on higher education, master [sic] degree programs, specialist degree programs above the masters-degree level, and joint doctoral programs in cooperation with other state-supported institutions of higher education in the state;
(c) Upon approval of the council on higher education, doctoral and post-doctoral programs and professional instruction including law, medicine, dentistry, education , architecture, engineering and social professions. [Emphasis added].
Six years later, the 1972 General Assembly enacted a similar statute, codified as KRS 164.815, concerning the programs the University of Louisville shall provide. KRS 164.815(1)(b) now reads in part:
(1) The University of Louisville shall provide:
(b) Upon approval of the council on higher education, masters degree programs, specialist degrees above the masters degree level, doctoral degree programs and joint doctoral programs in cooperation with other state-supported institutions of higher education. [Emphasis added.]
Under KRS 164.125(1)(c), the University of Kentucky shall provide, upon approval by the Council on Higher Education, doctoral and post-doctoral programs in education. Under KRS 164.815(1)(b) the Univerisity of Louisville is to provide doctoral degrees and joint doctoral programs in cooperation with othe rstate-supported institutions of higher education in the state.
III. May Western Kentucky University Establish a New Doctoral Degree Program in Education?
The next question to be determined is whether KRS 164.295(2) gives Western Kentucky authority to institute a doctoral degree program in education. Western Kentucky University is one of the six "state universities" whose authority is set out in KRS 164.295(2).
IT is the opinion of this office that KRS 164.295(2) does authorize a doctoral degree program in education, with the approval of the Council on Higher Education, for any of the six (6) state universities.
Nothing in the specific statutes dealing with the authority of the University of Kentucky and the University of Louisville to institute doctoral degree programs or joint doctoral degree programs provides them with exclusive rights to provide such degrees in education, although they are expressly permitted to provide doctoral programs. KRS 164.290(2), on the other hand, specifically provides that the six (6) state universities, including Western Kentucky Univeristy, may provide programs "beyond the masters-degree level" in order to "meet the requirements for teachers, school leaders, and other certified personnel . . . ."
There is, therefore, no general statutory provision allowing the six (6) state universities to establish post-masters programs in any field that they wish. however, your question concerns the establishment of a doctoral degree program in education , and this woul clearly pertain to meeting the state's "requirements for teachers, school leaders, and other certified personnel" as allowed by KRS 164.290(2).
Although confusing, the use of the word "program" in KRS 164.290(2) is, in our opinion, broad enough to include doctoral degree programs as well as non-doctoral degree programs above the masters degree level. A too-literal approach to these statutes, for example, would seem to imply that the University of Kentucky could only provide doctoral programs (KRS 164.125(1)(b) and (c)), but not the degrees, in contrast with the University of Louisville, which is authorized to provide "doctoral degree programs." (KRS 164.815(1)(b)). Clearly such a distinction was not intended by the legislature. It is the opinion of this office that these statutes should be read, whenever possible, to effectuate the goals and purposes of the General Assembly in establishing a Council on Higher Education, which was to create an organization to provide comprehensive planning and policy development for public higher education in the Commonwealth. Some flexibility is required. See KRS 446.080(1); Green v. Moore, 281 Ky. 305, 135 S.W.2d 682 (1939). The role of the Council is particularly important at this time because of the rapid changes which are taking place as a result of the Kentucky Education Reform Act (KERA).
In summary, it is the opinion of this office that KRSD 164.290(2) allows such a degree program.
That statute, of course, also requires the approval of the Council on Higher Education. Under existing law, if the Council on Higher Education approves, a doctoral degree program in education may be established at Western Kentucky University. No change in existing law is required.