Request By:
Mr. Robert L. Summers
Executive Director
State Board of Proprietary Education
Post Office Box 456
Frankfort, Kentucky 40602
Opinion
Opinion By: Frederic J. Cowan, Attorney General; D. Brent Irvin, Assistant Attorney General
Re: Sullivan College, Effect of Licensure by the Council on Higher Education
By recent letter, you have advised us that one of the Board's licensed schools, "Sullivan College," has as of September 27, 1990, been licensed by the Council on Higher Education to offer the Bachelor of Science degree in business administration.
You ask whether the effect of this licensure by the Council on Higher Education removes the total institution from the responsibility and authority of the State Board for Proprietary Education, in view of KRS 165A. 320. That statute provides, "KRS 165A.310 to 165A.410 shall not apply to any institution offering a four (4) year college level course recognized by the Council on Higher Education . . . , or which is subject to the provisions of KRS 164.945."
You state that it appears clear from this language and throughout the law that approval of a bachelor's degree program, by the Council on Higher Education, removes the total institution from the responsibility and authority of the State Board for Proprietary Education, and you ask whether your assumption is correct.
We are of the opinion that your assumption is correct. As you note, by the plain wording of KRS 165A.320, recognition by the Council on Higher Education removes an institution from the jurisdiction of the State Board for Proprietary Education.
KRS 164.945, concerning licensing of nonpublic colleges, defines "college" as "any educational facility maintained or conducted by any person, association, partnership, corporation, or trust and operated as an institute, junior college, college, university, or entity of whatever kind which awards a degree, diploma, or other statement of recognition purporting to indicate a level of collegiate attainment beyond secondary school graduation." Excluded from within this definition are, among others, "[c]olleges licensed or approved for establishment and operation under the statutory authority given to . . . the Kentucky State Board of Business Schools [now State Board for Proprietary Education] under KRS 165A.310 . . . , and any statutes governing the proprietary schools."
KRS 164.947 empowers the Council on Higher Education to adopt standards and procedures for the licensing of colleges to ensure that the programs of preparation are comparable to the generally accepted standards of collegiate instruction with respect to faculty, curriculum, facilities, and student cost and that all colleges as defined therein shall be required to hold a license issued by the executive director of the Council on Higher Education under the provisions of KRS 164.945 to 164.947 and under the regulations of the council on Hihger Education.
As amended by the 1990 General Assembly, "The designated use of the title college or university in combination with any series of letters, numbers or words shall be restricted to the institutions licensed under DRS 164.945 to 164.947 except that new branches, divisions or additions to the existing institutions shall be licensed. " KRS 164.947(4). Within ninety (90) days of July 13, 1990, all nonpublic colleges defined in the statutes shall be required to hold licenses issued by the executive director of the Council on Higher Education. KRS 164.947(3).
We are of the opinion that by these statutes, the General Assembly has enacted a scheme where institutions of learning desiring to use the word "college" or "university" must comply with the regulations and be licensed by the Council on Higher Education. Once such an institution has been recognized by the Council on Higher Education, by licensure, jurisdiction over that college is transferred from the State Board for Proprietary Education to the Council on Higher Education. We do not think the General Assembly envisioned a scheme where certain programs or courses of a college would be regulated by the Council on Higher Education, while other programs or courses of the same college would be regulated by the State Board for Proprietary Education.
KRS 165A.450 (not KRS 165A.370(5), as indicated in your letter) states that:
All licensed schools, resident and nonresident, shall be required to contribute to a student protection fund. The fund shall be used to pay off debts incurred due to the closing of a school. The amount each school shall contribute shall be the same amount as its licensing fee.
This statute is clearly intended to only apply to schools licensed by the State Board for Proprietary Education, not schools licensed by the Council on Higher Education. Once a school is licensed by the Council on Higher Education, its former license with the State Board for Proprietary Education is void.
Therefore, the State Board for Proprietary Education cannot bill Sullivan college for the student protection fund or regulate that college in any manner. The sole regulatory authority for Sullivan College is now vested in the Council on Higher Education, as a result of its licensure by that agency.
I trust this letter is sufficient to answer your questions. If you need any further information or explanation, please feel free to contact me.