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Bob Ferguson

AGLO 1971 No. 138 - Nov 19 1971
Attorney General Slade Gorton

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                                                               November 19, 1971
Honorable John C. Mundt
Director, State Board for
Community College Education
319 Seventh Avenue
P.O. Box 1666
Olympia, Washington 98504
                                                                                          Cite as:  AGLO 1971 No. 138 (not official)
Dear Sir:
            Attached hereto you will find my memorandum of law to you regarding the present authority of a community college board of trustees to provide an overseas, in residence, high school completion program for United States servicemen in cooperation with the Department of the Army and the Veterans Administration.
            I am also enclosing herewith a draft of a bill to be introduced at the next session of our state legislature which is designed to clarify the scope of the authority in question.  I would strongly urge that legislation such as this be sought in order to cover this situation, because, although I personally feel that there are defensible legal arguments to be made in support of proceeding without legislation, there is a considerable difference of opinion on this question among other knowledgeable attorneys in our office who have looked at the matter with me.
            If I can be of any further assistance to you in regard to this matter, please advise.
Very truly yours,
Assistant Attorney General
            MEMORANDUM November 19, 1971
            TO:       !ttJOHN C. MUNDT, Director
            State Board for Community College Education
            FROM:            ROBERT E. PATTERSON, Assistant Attorney General
            SUBJECT:       Overseas PREP Program
            This is in response to your request for my opinion as to whether or not a community college district is authorized to provide an overseas, in residence, high school completion program for United States servicemen in cooperation with the Department of the Army and the Veterans Administration?
            The background of the above request is as follows:
            In 1970 Congress enacted 38 U.S.C. Sections 1695, 1696 and 1697 for the purpose of "providing them (veterans) with an opportunity to enroll in and to pursue a program of education or training prior to their discharge".  Pursuant to 38 U.S.C. section 1696(a)(1) the Veterans Administration is authorized to disburse funds to eligible veterans for the purpose of paying the costs of tuition, fees, books and supplies required by virtue of the veterans enrollment in a course required to receive a secondary school diploma offered by an educational institution.
            As you have further explained, Washington State Community Colleges are uniquely qualified to cooperate with the federal government in its Predischarge Educational Program by virtue of the fact they are authorized, together with but a few community colleges from several other states, to issue a high school diploma or certificate.1/   The Department of the Army is thus most anxious to inaugurate its PREP through the services of one or more Washington community college districts.  To date one community college district (Big Bend Community College District, No. 18) has received a firm offer from the Department of the Army to conduct PREP in the 8th division area of Germany.
             [[Orig. Op. Page 2]]
            Acceptance of the offer will necessitate the placement of college personnel in Germany for instructional and administrative purposes.  It will be the responsibility of these employees to offer the necessary instruction and, in conjunction with the base operations officer, certify the instruction received by eligible veterans and periodically invoice the Veterans Administration for the individual and total educational assistance allowances accrued during the preceding period.  Warrants are then processed by the U. S. Treasury payable to the order ot the individual veterans enrolled in the college program and shipped as one package to the base operations officer.  The warrants are then transferred to community college personnel, endorsed by the appropriate payee, and expended in part by the college district for the operating expenses of the program which is calculated to be self supporting.
            Whether or not a community college district may cooperate with the federal government in the above described program and manner is of course dependent upon the authority which the state legislature may or may not have vested in a district by statute.  As state agencies, community college districts have only those powers expressly granted to them by statute or those which are necessarily implied therefrom.  State ex rel. Holcomb v. Armstrong, 39 Wn.2d 860, 239 P.2d 545 (1952) and State ex rel. Eastvold v. Maybury, 49 Wn.2d 533, 304 P.2d 663 (1956).
            A thorough review of the education code, Title 28B RCW, reveals no explicit language authorizing a community college district to offer educational programs for servicemen at overseas or out of state locations.  The only explicit and pertinent language is that set forth in RCW 28B.50.090(11) which empowers the State Board for Community College Education to:
            "Authorize the various community colleges to offer programs and courses in other districts when it determines that such action is consistent with the purposes set forth in RCW 28B.50.020 as now or hereafter amended; . . ."
            Standing alone, the dearth of explicit language and the negative implication of RCW 28B.50.090(11) would ordinarily foreclose acceptance of the army's offer to conduct the subject educational instruction at a geographical location outside the boundaries of the State of Washington.  However, provisions  [[Orig. Op. Page 3]] of an act of the legislature as comprehensive and far reaching as the 1967 community college act must be read in context with each other in order to give meaning to its multi-faceted legislative intent.  It is indeed a rare (if not non-existent) congressional practice to appropriate funds ultimately benefitting a state educational entity without attaching conditions designed to affect the immediate federal purpose.  With this practice obviously in mind our state legislature enacted RCW 28B.50.520 which expressly authorizes a community college district to receive federal funds made available for any educational purpose according to the provisions of the acts of congress making such funds available as follows:
            "The State Board for Community College Education or any community college board of trustees is authorized to receive federal funds made available for the assistance of community colleges, and providing physical facilities, maintenance or operation of schools, or for any educational purposes, according to the provisions of the acts of congress making such funds available."
            As if to emphasize its intent and awareness of the trend towards increasing participation with the federal government in the attainment of higher educational standards, the legislature concurrently adopted RCW 28B.50.440 which renders inoperative any provision of the community college act found to be in conflict with federal conditions to the allocation of federal funds to the state.2/   In the instant case, it is in fact a condition founded in federal law that the subject high school completion instruction be provided in residence prior to the payment of educational assistance allowances by the Veterans Administration.  In this respect, 38 U.S.C. § 1696 authorizes the Veterans Administration to pay educational assistance allowance only to veterans enrolled in and pursuing  [[Orig. Op. Page 4]] high school completion instruction offered other than by correspondence as follows:3/
            "(a) The Administrator shall, under such regulations as he shall prescribe after consultation with the Secretary of Defense, pay the educational assistance allowance as computed in subsection (b) of this section to an eligible person enrolled in and pursuing (1) a course or courses offered by an educational institution (other than by correspondence) and required to receive a secondary school diploma, . . ."  (Emphasis supplied)

            Ordinarily the direct payment of the financial assistance to the veteran may have the effect of converting the subject funds into those of a private nature prior to receipt of the same by the college.  However, RCW 28B.50.520 does not purport to require that federal funds made available for any educational purpose be received directly by a community college district.  This fact, together with the practice of the federal government to in effect treat the payment of PREP educational assistance allowances as payments to the educational institution in which the veteran is enrolled, leads me to conclude that the payment of tuition, fees, books and supplies by a veteran with a federal warrant issued for that explicit purpose constitutes the receipt of federal funds within the meaning of RCW 28B.50.520.
            In accord with the foregoing is a letter opinion of David L. Rose, Special Assistant to the Attorney General of the United States for Title VI, dated March 5, 1968 and  [[Orig. Op. Page 5]] addressed to Robert C. Fable, Jr., General Counsel, Veterans Administration, a copy of which is enclosed.  In essence, Mr. Rose concludes that similar educational assistance payments to veterans pursuant to Title 38 U.S.C. constitute federal assistance to an educational program in which the veteran is enrolled for the purposes of enforcing 42 U.S.C. § 2000d which prohibits discrimination on the basis of race, color or national origin in "any program or activity receiving federal financial assistance".  While an opinion of the U. S. Department of Justice is not controlling with respect to the interpretation of state law, the subject opinion in this case does import the true intent of the donor and explanation of the federal practice respecting the allocation of "federal funds" to an educational institution.
            In conclusion, it is my opinion that a community college district is authorized by virtue of RCW 28B.50.520 to offer "in resident" high school completion instruction at overseas locations to veterans eligible for and receiving PREP educational assistance allowances for the purpose of offsetting the cost of tuition, fees, books and supplies.
                                                         ***   FOOTNOTES   ***
1/In 1969 the legislature amended the community college act of 1967 via the adoption of RCW 28B.50.535 which provides that:
            "a community college may issue a high school diploma or certificate, subject to rules and regulations promulgated by the superintendent of public instruction and the state board of education."
2/RCW 28B.50.440 while not in point for the reason it would appear to speak to the direct allocation of funds to the state provides as follows:  "If any part of this chapter shall be found to be in conflict with federal requirements, etc."
3/See Radio-Television Training Association vs. the United States, 163 F.Supp. 637 (1958) wherein the Veterans Administration's determination that plaintiff was not entitled to certain administrative costs provided for in Title 38 U.S.C. on the grounds that veterans enrolled in plaintiff's correspondence courses were not "attending" such institution was overturned by the federal court.  In this case however, the VA rule requiring attendance was an unauthorized limitation upon the congressional intent expressed in statute that educational institutions, defined by statute as including correspondence schools, receive an allowance for administrative costs.