When a private postsecondary school in North Carolina qualifies for the six-year mandatory-review exception under G.S. § 116-15, can the Board of Governors still subject the school to review more frequently than every six years?
Plain-English summary
UNC's Office of the President asked the AG about the relationship between the statutory and regulatory review schedules for nonpublic postsecondary institutions licensed by the UNC Board of Governors. The General Assembly had rewritten G.S. § 116-15 in 1983 (effective October 1, 1984). The new statute provided for periodic review of licensed institutions every two years, with an exception that institutions that had been continuously licensed under the same registered name since July 1, 1979, or for six consecutive years (whichever was shorter), and that held accreditation from a recognized accrediting agency, were on a six-year review cycle instead of the standard two-year cycle.
The Board of Governors then adopted rules (revised September 1985) that imposed a transitional requirement: institutions licensed before the new statute went into effect would be reviewed once at the two-year mark even if they otherwise qualified for the six-year exception, before being transitioned to the six-year cycle. An institution that thought it was free from review until 1989 might be reviewed in 1986 under the transitional rule.
The question was whether the transitional rule was consistent with the new statute or whether it impermissibly stripped the six-year exception of its protection.
Assistant Attorney General Laura E. Crumpler concluded that the Board's rule was valid. Two reasons:
-
The two-year and six-year periods in § 116-15(g) are outside time limits, the maximums within which review must occur. They are not safe harbors that protect institutions from review during the period. The Board retains the discretion and the duty to review at any time it deems appropriate, with the statutory periods setting only the latest acceptable review date.
-
Subsection (i) of the statute gives the Board explicit rulemaking authority "to effect the provisions of this section." The Board's rule was a legitimate exercise of that authority. The Board could decide that institutions transitioning from the pre-1984 framework needed an initial review under the new criteria before being placed on the longer cycle.
The opinion is a useful illustration of the general principle that statutory periodic-review periods are usually floors on agency action, not ceilings: the agency must review at least that often, but is not forbidden from reviewing more often if circumstances warrant.
Currency note
This opinion was issued in 1986. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. G.S. § 116-15 has been amended several times since 1986 and the regulatory framework for nonpublic postsecondary institutions in North Carolina has evolved substantially. The University of North Carolina Board of Governors continues to license private postsecondary degree-granting institutions, and the Office of Educational Attainment and Outcomes administers the licensure process. The review-cycle architecture has been modified, including changes to the timing and triggers for review. A modern private postsecondary institution should consult the current statute and current Board rules rather than relying on the 1986 framework.
Background and statutory framework
In 1983 the General Assembly passed a comprehensive rewrite of G.S. § 116-15, the statute governing licensure of nonpublic postsecondary schools that wanted to offer degree-granting programs in North Carolina. The new statute, effective October 1984, codified standards the Board of Governors had previously developed through regulation, added more detailed substantive criteria for licensure, and built out the periodic-review structure.
The two-cycle review system (two-year default, six-year for established and accredited institutions) reflected a compromise. Lawmakers wanted regular scrutiny of newly licensed schools and those that had not yet established a track record. But they also wanted to lighten the regulatory burden on long-standing, accredited institutions that had demonstrated stability over time.
The transitional question the AG addressed was a practical one. The 1984 statute's criteria differed in some respects from the pre-1984 criteria. An institution that had been licensed in 1981 under the old criteria might or might not satisfy the new criteria. The Board's transitional rule made sure each institution got reviewed once under the new criteria before being moved to the longer cycle.
The legal point underlying the opinion has broad application. North Carolina administrative law generally treats statutory periodic-review periods as outside limits, the latest acceptable timing, rather than as protected intervals during which the agency cannot act. An agency may always act when its statutory duty calls for action, even if a specific statutory period has not yet expired.
Common questions
Was the Board required to find specific cause to trigger an earlier review?
No. The statute did not impose a cause requirement for the Board to act inside the maximum periods. The Board's standing duty to ensure that institutions met the licensure standards was sufficient. Its transitional rule applied uniformly to all pre-existing institutions and did not require individualized findings of cause.
What if an institution's license was due to expire under the old framework?
The statute provided that pre-existing licenses continued in effect after the new statute went into effect. The transitional rule then provided that the new-criteria review would be the next event in the licensure life cycle, with the longer cycle to follow after a successful transition review.
Could the Board impose substantive standards beyond the statute?
The statute itself spelled out the licensure standards. The Board's authority under § 116-15(i) was to promulgate rules to effect the statute, that is, implementing rules. Imposing new substantive standards inconsistent with the statute would be outside that authority. The transitional review rule was procedural, governing when review occurs, not what the substantive criteria are.
Did this opinion affect accredited public colleges or universities?
No. The statute applied to nonpublic postsecondary institutions. Public North Carolina universities and community colleges are governed by separate statutory frameworks.
Source
- Landing page: https://ncdoj.gov/opinions/review-of-non-public-institutions-by-the-board-of-governors/
Citations
- G.S. § 116-15 (1984 rewrite)
- Chapter 1006, 1983 Session Laws
- Stephenson v. Durham, 281 N.C. 300, 188 S.E.2d 281 (1972)
Original opinion text
Requested By: Richard Robinson, Assistant to the President, The University of North Carolina
Question: Is an institution, duly licensed pursuant to G.S. 116-15 prior to its 1984 amendment, and falling within the six-year mandatory review exception to the amendment, subject to review by the Board of Governors for licensure renewal in less than the mandatory 6-year review period?
Conclusion: Yes.
You have requested an opinion regarding the interpretation of the recently enacted provisions of G.S. 116-15 as they apply to the licensing review of certain nonpublic post-secondary educational institutions. Specifically, you inquire whether the regulations of the Board of Governors, providing for review after two years of all previously licensed institutions, are consistent with the language and intent of the new G.S. 116-15. It is the opinion of this office that the rules and standards promulgated by the Board of Governors are valid and constitute a legitimate exercise of its statutory authority.
Prior to 1 October 1984, G.S. 116-15 (1983) governed the licensing of nonpublic educational institutions and conferred on the Board of Governors the power to issue licenses, including the power to establish the standards for issuing such licenses. During the 1983 session of the General Assembly, the legislature enacted "An Act to Rewrite the Statute Under Which Nonpublic Postsecondary Educational Institutions May be Licensed to Conduct Post-secondary Degree Activity in North Carolina." Chapter 1006, 1983 Session Laws (effective 1 October 1984). The statute, as rewritten, is far more explicit than its predecessor in setting out the directives and guidelines for issuing licenses to these nonpublic post-secondary schools. The guidelines for licensure, set forth in subsection (f) of the new version of the statute, essentially codify the standards which previously had been adopted and used by the Board pursuant to its authority to promulgate standards under former G.S. 116-15.
The new G.S. 116-15 provides in subsection (g) for periodic review of institutions receiving licenses "to determine that the institution continues to meet the standard for licensure of subsection (f) above". The statute goes on to require such review upon the happening of certain events or circumstances and states specifically that review "shall always occur . . . if two years has elapsed since licensure of the institution was granted by the Board." G.S. 116-15(g). The statute, however, contains the following exception to the general review provisions:
Notwithstanding the foregoing paragraph [mandating two-year periodic review], if an institution has continued to be licensed under this section and continuously conducted post-secondary degree activity in this State under the same publicly registered name or series of publicly registered names since July 1, 1979, or for six consecutive years, whichever is the shorter period, and is accredited by an accrediting commission recognized by the Council on Post-Secondary Accreditation, such institution shall be subject to licensure review by the Board every six years to determine that the institution continues to meet the standard for licensure of subsection (f) above.
G.S. 116-15(g). (Emphasis added)
Thus, while the general rule is that review of licensing must take place at a minimum every two years, the statute specifically excepts from the general rule any institution continuously licensed pursuant to its provisions "since July 1, 1979, or for six consecutive years, whichever is the shorter period. . ." The issue presented concerns the relationship between the general rule and the exception in the context of review of institutions licensed prior to the effective date of the 1983 amendments to G.S. § 116-15.
In construing a statute, the intent of the legislature must control the interpretation of its provisions, and that intent must be ascertained by examining the language of the act, its spirit, what it was intended to accomplish, and the means by which its ends were to be achieved. Stephenson v. Durham, 281 N.C. 300, 188 S.E.2d 281 (1972). The legislature is presumed to have acted with care and it is also presumed that the provisions of an act have meaning. We are of the opinion that under the plain and simple wording of G.S. 116-15(g) the general rule is that institutions must be reviewed at least every two years unless they fall within the exception, in which case the mandatory review may take place at any time within six years from a previous licensure. Thus, an institution licensed in 1983 and otherwise qualifying for the six-year exception would not have to be reviewed prior to 1989.
Nevertheless, the provisions of subsection (g) relating to mandatory periodic review merely set the outside time limits within which the legislature has decreed that review must occur. The statute gives to the Board of Governors the authority and the responsibility for licensing nonpublic post-secondary educational institutions and further requires the Board to review those institutions receiving licenses "to determine that [each] institution continues to meet the standard for licensure. . . ." Given the weight of the responsibility cast upon the Board, it would be incumbent upon that body to conduct a review of any institution at any time such a review was deemed appropriate by the Board. The statute only sets the outside limits; it does not purport to limit the number or frequency of reviews which the Board may, in its discretion and pursuant to the duty charged to it by statute, conduct of any institution licensed by it.
In addition, subsection (i) of the statute provides that the "Board shall have authority to establish such rules, regulations, and procedures as it may deem necessary or appropriate to effect the provisions of this section." Pursuant to this statutory authority, the Board has adopted Rules and Standards (Revised September 1985) which impose a review requirement not contained in the statute itself. That requirement, found in subdivision VII, entitled "Procedures for Seeking Licensure," provides as follows:
(3) A regular license issued to an institution prior to the effective date of these rules shall continue in effect following the effective date of these rules and standards. Review of such prior licensure shall occur when two years have elapsed since licensure was granted by the Board of Governors. If at that time the institution has continued to be licensed and continuously conducted post-secondary degree activity in North Carolina under the same publicly registered name or series of publicly registered names since July 1, 1979, or for six consecutive years, whichever is the shorter period, . . . the institution shall be subject to licensure review by the Board of Governors every six years to determine whether the institution continues to meet standards for licensure. (Emphasis added).
Although the Board has, by this provision, established a requirement that all institutions, licensed at the time of the effective date of the statute, must undergo review upon the expiration of their current licenses and are essentially not to be subject to the six-year review period until this initial review takes place successfully, it is our opinion that such a provision is entirely within the prerogative of the Board. As noted, the time limits set out in the review provisions are outside limits within which review must take place; they are not rights bestowed upon institutions shielding them from review for six years. The Board may, in its discretion, undertake review more often than required by the statute. The Board is not required to wait for any period of time to elapse before reviewing an institution. The section quoted above, requiring review of currently licensed institutions which would otherwise be subject to the relaxed review period, demonstrates that the Board has elected to exercise its statutory authority to conduct reviews prior to the expiration of the prescribed maximum period. This, in our opinion, is both permitted and authorized by the statute. Accordingly, the provision quoted above, requiring review short of the six-year period, is a valid one.
LACY H. THORNBURG
Attorney General
Laura E. Crumpler
Assistant Attorney General