Untitled California Attorney General Opinion

TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
DANIEL E. LUNGREN
Attorney General
______________________________________
OPINION :
: No. 98-306
of :
: July 16, 1998
DANIEL E. LUNGREN :
Attorney General :
:
GREGORY L. GONOT :
Deputy Attorney General :
:
______________________________________________________________________
THE HONORABLE STEVE BALDWIN, MEMBER OF THE CALIFORNIA STATE
ASSEMBLY, has requested an opinion on the following question:
Do California statutes specifying accreditation by the Western Association of Schools and
Colleges, or other regional accrediting organizations, unlawfully discriminate against alternative
accreditation agencies?
CONCLUSION
California statutes specifying accreditation by the Western Association of Schools and
Colleges, or other regional accrediting organizations, do not unlawfully discriminate against alternative
accreditation agencies.
ANALYSIS
A number of California statutes specify accreditation by the Western Association of Schools
and Colleges ("WASC") or other regional accrediting organizations for various purposes involving
institutions of higher education. For example, a clinical laboratory bioanalyst must have obtained his
education from an institution maintaining standards equivalent to those institutions accredited by WASC
(Bus. & Prof. Code, § 1260), a clinical laboratory scientist must have obtained his education from an
institution maintaining standards equivalent to those institutions accredited by WASC (Bus. & Prof. Code,
§ 1261.5), a dietitian shall have completed academic requirements for the field of dietetics and received a
baccalaureate degree from a college or university accredited by WASC or other regional accreditation agency
(Bus. & Prof. Code, § 22585), a professional counselor shall have obtained his education from an institution
maintaining standards equivalent to those institutions accredited by WASC (Bus. & Prof. Code, § 4980.38),
peace officers must be high school graduates, or have attained a two-year or four-year degree from a college
or university accredited by WASC (Gov. Code, § 1031), teachers hired in a day care center must, among
other things possess a regional occupation program certificate of training in child care occupations issued by
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other things, possess a regional occupation program certificate of training in child care occupations issued by
a regional occupational program which is accredited by WASC (Health & Saf. Code, § 1597.055), nursing
scholarships can only be used in accredited nursing programs at colleges and universities accredited by
WASC (Health & Saf. Code, § 127980), and only colleges and universities accredited by WASC may be
included in the commemorative collegiate license plate program (Veh. Code, § 5024). We are asked whether
these statutes unlawfully discriminate against other accreditation agencies not so specified. Footnote No. 1 We
conclude that the statutes do not unlawfully discriminate.
In 68 Ops.Cal.Atty.Gen. 279, 279-280 (1985) we described the process of accreditation for
schools as follows:
"Accreditation is a system 'for recognizing educational institutions and professional
programs affiliated with those institutions for a level of performance, integrity, and quality
which entitles them to the confidence of the educational community and the public they serve.'
[Citations.] In this country that recognition is given by governmentally accepted
nongovernmental voluntary associations which establish criteria for accreditation, arrange site
visits and evaluate institutions and programs which desire accredited status. [Citations.] The
device minimizes direct government involvement in education but still promotes both regional
and national approaches to determining and assuring educational quality. [Citation.]"
In our 1985 opinion, we noted that "[v]oluntary, nongovernmental accreditation is a characteristic unique to
American education" and that "[i]n most other countries the establishment and maintenance of educational
standards and institutional recognition thereupon is the responsibility of a central governmental bureau." (Id.,
at p. 280, fn. 2.)
As one of six regional accreditation associations that has been recognized by the United
States Secretary of Education as a reliable authority concerning educational quality within a particular region
(34 C.F.R. §§ 602.1, 602.3), and the only such regional body accrediting schools and colleges in California,
WASC plays a significant role in the granting of federal funds for education. In 68 Ops.Cal.Atty.Gen. 279,
supra, we noted that federal programs providing funds to academic institutions and students usually require
that the institutions be "accredited" by an agency recognized as "an accrediting agency" by the federal
government. (Id., at pp. 280-281.)
With this background in mind, we turn to the issue of whether California's statutes
specifying accreditation by WASC and other regional accrediting organizations unlawfully discriminate
against alternative accreditation bodies.
1. Equal Protection Principles
We first address whether the state laws in question violate the equal protection clauses of the
federal and state Constitutions. The Fourteenth Amendment to the federal Constitution provides that "[n]o
state shall deny to any person within its jurisdiction the equal protection of the laws." Similarly, subdivision
(a) of section 7 of article I of the California Constitution provides that "[a] person may not be . . . denied
equal protection of the laws . . . ." The federal and state equal protection clauses are substantially equivalent.
(See Kenneally v. Medical Board (1994) 27 Cal. App. 4th 489, 495; Sagaser v. McCarthy (1986) 176
Cal. App. 3d 288, 305.)
Here, we apply the "rational basis" test to determine whether these California statutes are
unconstitutional under equal protection principles. (See Weber v. City Council of Thousand Oaks (1973) 9
Cal. 3d 950, 958; Kenneally v. Medical Board, supra, 27 Cal.App.4th at 495-496; Horeczko v. State Board of
Registration (1991) 232 Cal. App. 3d 1352, 1359.) Application of this test was described in Kenneally v.
Medical Board, supra, 27 Cal.App.4th at 499-500, as follows:
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"Under the rational basis test, '"the decision of the Legislature as to what is a
sufficient distinction to warrant the classification will not be overthrown by the courts unless it is
palpably arbitrary and beyond rational doubt erroneous. [Citations.] A distinction in legislation is
not arbitrary if any set of facts reasonably can be conceived that would sustain it."' [Citations.]
'The burden of demonstrating the irrationality of the statute rests on [the party assailing it] and it
will not be set aside if any basis reasonably may be conceived to justify it.' [Citations.] 'In
general, the [United States Supreme] Court has been especially deferential to legislative
classifications in cases of challenges to the state regulation of licensed professions.' [Citation.]"
The Legislature's preference for regional accrediting agencies ensures that school
accreditation for purposes of California law will be performed by an agency whose focus is upon a group of
schools, particularly those in California. Such specialization affords more attention to, and closer scrutiny of,
California's schools, and promotes greater conformity between the accreditation process and California's
public policies regarding education. Moreover, the federal government has separately recognized regional
accrediting agencies for purposes of determining the quality of educational programs and establishing
eligibility criteria for participation in federal loan programs. Also, an exclusively regional approach to
accreditation may assist California residents in determining the relative value of the educational programs
provided at competing schools and facilities within their region.
Based upon such reasons as the above, Footnote No. 2 we conclude that the classifications
chosen by the Legislature (i.e., "regionally accredited," "WASC or other regional accrediting agency,"
"equivalent to those institutions accredited by WASC") are rationally related to a legitimate governmental
purpose and therefore comply with the equal protection clauses of the federal and state Constitutions. (See
Skinner v. Oklahoma (1942) 316 U.S. 535, 540; Bilyeu v. State Employees' Retirement System (1962) 58
Cal. 2d 618, 623; 64 Ops.Cal.Atty.Gen. 837, 843 (1981).)
2. Antitrust Considerations
We also reject the suggestion that state laws specifying accreditation by WASC or other
regional accrediting organizations may violate federal or state laws prohibiting monopolistic practices. The
two relevant statutory prohibitions are the Sherman Antitrust Act (15 U.S.C. §§ 1, 2) Footnote No. 3 and the
Cartwright Act (Bus. & Prof. Code, §§ 16700-16770). We may look to federal law in applying the state act.
(Blank v. Kirwan (1985) 39 Cal. 3d 311, 320.)
The controlling precedent in this area of antitrust law is Parker v. Brown (1943) 317 U.S.
341, which "held that the Sherman Act did not apply to anti-competitive restraints imposed by the States 'as
an act of government.'" (Columbia v. Omni Outdoor Advertising (1991) 499 U.S. 365, 370.) "The rationale of
Parker was that, in light of our national commitment to federalism, the general language of the Sherman Act
should not be interpreted to prohibit anti-competitive actions by the States in their governmental capacities as
sovereign regulators." (Id., at p. 374; see MSL at Andover, Inc. v. American Bar Ass'n (3rd Cir. 1997) 107
F.3d 1026, 1036.)
As the state statutes regarding WASC and other regional accrediting agencies were enacted
by the Legislature undoubtedly for regulatory purposes, they fall within the Parker rule and may not be
considered violative of the Sherman Act or the Cartwright Act. (See 64 Ops.Cal.Atty.Gen 425, 430-431
(1981).) Footnote No. 4
3. Anti-Discrimination Laws
Finally, we consider the applicability of the Unruh Civil Rights Act (Civ. Code, § 51; "Act")
to the statutes specifying accreditation by WASC or other regional agencies. Civil Code section 51 states:
"All persons within the jurisdiction of this state are free and equal, and no matter
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All persons within the jurisdiction of this state are free and equal, and no matter
what their sex, race, color, religion, ancestry, national origin, or disability are entitled to the full
and equal accommodations, advantages, facilities, privileges, or services in all business
establishments of every kind whatsoever.
"This section shall not be construed to confer any right or privilege on a person which
is conditioned or limited by law or which is applicable alike to persons of every sex, color, race,
religion, ancestry, national origin, or disability.
". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ."
The Act's protection is limited to membership in one of the specified classes. (Gayer v. Polk Gulch, Inc.
(1991) 231 Cal. App. 3d 515, 521.) Each of the classes enumerated in the statute is based upon a personal
characteristic (e.g., race, sex, or religion). Such characteristics cannot be attributed to a business entity or
voluntary association such as an accrediting agency. The Act is intended to protect individuals rather than
corporate entities. Accordingly, the Act does not make unlawful the state's preferences for regional
accrediting organizations.
We know of no other constitutional or statutory provision that would render unlawful the
statutes in question. We conclude that California statutes specifying accreditation by WASC or other regional
accrediting agencies do not unlawfully discriminate against alternative accreditation agencies.
*****
Footnote No. 1
We do not deal here with questions concerning discrimination among qualified applicants for government positions based
on the accreditation of the educational institutions from which those applicants received their degrees. (See Terry v. Civil
Service Commission (1952) 108 Cal. App. 2d 861.) Neither do we have a case of improper delegation of legislative power to
private entities (i.e., accrediting agencies). In exercising decision-making authority by industrial or professional
associations, there is no invalid delegation of legislative power unless the statute empowers the private association to
initiate or enact rules having legal force. (King v. Meese (1987) 43 Cal. 3d 1217, 1234.) Once the Legislature has
established the law, it may delegate the authority to administer or apply it to governmental or private entities, provided that
the delegation is accompanied by safeguards against arbitrary action. (Wilkinson v. Madera Community Hosp. (1983) 144
Cal. App. 3d 436, 442, citing Kugler v. Yocum (1968) 69 Cal. 2d 371.) The comprehensive federal rules applicable to
accreditation by regional accrediting agencies provide such safeguards.
Footnote No. 2
Other grounds may exist to support the Legislature's classification in a particular situation. No basis has been provided that
any specific statutory classification "is palpably arbitrary" for purposes of the rational basis test.
Footnote No. 3
Section 1 provides in pertinent part: "Every contract, combination in the form of trust or otherwise, or conspiracy, in
restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal." (15 U.S.C. § 1.)
Section 2 provides in pertinent part: "Every person who shall monopolize, or attempt to monopolize, or combine or
conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or
with foreign nations, shall be deemed guilty of a felony." (15 U.S.C. § 2.)
Footnote No. 4
We note that antitrust laws do not regulate the conduct of private individuals in seeking anti-competitive action from the
government. (Columbia v. Omni Outdoor Advertising, supra, 499 U.S. at 379, citing Eastern Railroad Presidents
Conference v. Noerr Motor Freight, Inc. (1961) 365 U.S. 127.) State law is in accord. (Blank v. Kirwan, supra, 39 Cal.3d
at 320.)
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