The legal basis for the operation of private universities ...and the myth of "external degree-granting authority" debunked

Disclaimer: Nothing in this paper is intended as legal advice for any person or situation. If you require legal advice, you should consult a lawyer.

The legal basis for the operation of private universities is one of the most frequently misunderstood areas in discussions of the subject. Not unsurprisingly, this misunderstanding has at its root the desire to further the agenda and commercial interests of the public sector by claiming its own procedures and status as universal constructs. That these are false premises will be shown in this paper.

The myth
The most frequently put-about myth on the subject of private universities goes something like this,


or, as quoted from Alan Contreras, J.D., administrator of the Oregon Office for Degree Authorization,


The myth debunked
If this paper achieves anything, it should be to explode this myth, which is false in almost every country to which it has been applied. The myth rests on a misunderstanding of common law, which is the system of law that exists in most states of the U.S.A. and most other English-speaking countries, and of customary law in civil law countries (the main alternative system, which applies in much of continental Europe). We will discuss these systems in turn together with the third option, socialist law (which applied in the former Soviet countries).

The law in common law jurisdictions rests upon a combination of common law with statutory and administrative law. Statutes are enacted by the legislature and administrative law consists of "regulations" promoted by delegated agencies of the executive. Common law pertains to those areas not covered by statute or executive regulation, and the boundaries between these branches are the subject of detailed discussion. Common law further presupposes that law rests upon precedent decisions in relevant cases and is not fixed, unlike a "code" or civil law system. Statutes and regulations are also interpreted in the light of precedent decisions under common law, and are interpreted "narrowly" to cover only the specific circumstances and behaviors that they describe.

In a common law jurisdiction, that which is not explicitly illegal is legal. If a legislature wishes to proscribe a particular behavior not already covered by statute or regulation or precedent in common law, it must pass legislation in order to outlaw that behavior. In the case of issues within common law not covered by statute or regulation, this means looking up and locating precedential decisions for the given circumstances and then reasoning from those decisions by analogy.

In the case of the establishment of universities and the granting of degrees within a common law jurisdiction, these are legal acts except where statute, executive regulation or precedent in common law specifically proscribe or circumscribe them. This means effectively that unless there is a law that states that a person or group of persons may not grant degrees, that person or group of persons may do so without the need for any external authority except where this is specifically stipulated by law.

Common law also carries with it a series of established presumptions. The most relevant of these is that an institution with university title (that is to say, called "X University") is de facto presumed legally to be a university and thence to be authorized under law to undertake "university work" (a phrase that includes the granting of degrees). It is for precisely this reason that some countries, such as the U.K. and the Republic of Ireland, now prevent private corporations from being formed using the title "university". However, such prevention in a common law jurisdiction can only be secured by passing a specific statute or regulation. It does not exist automatically or ex nihilo.  Nor does the presumption of university title say anything about the quality of an institution's operation or offerings.

This position is slightly different within civil and socialist law jurisdictions. In these jurisdictions, legislation, not judicial precedent, is seen as the basis for law, and statutes are interpreted widely, not narrowly.

In civil law jurisdictions, there is generally law on education that deals with the establishment of universities and the granting of degrees. For example, the Belgian constitution expressly provides that education is free, and consequently any person or persons may establish a university and grant degrees. However, if legislative provision does not cover a given situation, that situation will be the preserve of customary law, and again, that which is not explicitly illegal is legal. This is the case in Scandinavia, particularly Denmark, where customary law provides for the establishment and legal operation of private universities. Again, there is no "external authority" required, or in some cases even available.

In socialist law jurisdictions, such as the former USSR and China, civil law is adapted to reflect the primacy of the state over its citizens and to further specifically socialist aims. Socialist law places severe limits on private enterprise and reserves to the state the ownership of all educational processes. Private universities, in principle, cannot exist within socialist law jurisdictions. However, the economic liberalization of China in recent years has caused some relaxation in its educational landscape, whereby a heavily regulated private sector is now emerging. Socialist law systems are the only ones of those discussed here where "external authority" is an automatic pre-requisite for the establishment of private universities.

Some sources in support


This latter document is of particular importance since as an UNESCO Recommendation it constitutes a "universal standard-setting instrument" binding on all member states - states which include the United States, the governments of the European Union, Africa, Asia and Oceania. It both acknowledges the existence of private tertiary institutions independent of the state and includes them in its holistic overview of global education. This does not compel anyone to accept a particular school or degree award; but it certainly affirms that private providers have a legitimate place in worldwide higher education, and that this place is recognized at the highest intergovernmental level.

Conclusions
It is false in respect of any jurisdiction other than a socialist law jurisdiction to state that external authority is automatically required to act as a university and to grant degrees. In both common law and civil law jurisdictions, a university may be formed and degrees granted except where statute and legislative regulation specifically proscribe or circumscribe these actions.

It is inaccurate to state that the degree-granting authority of an institution in a common law or civil law jurisdiction (where statute and regulation do not specifically proscribe or circumscribe such authority) "derives from its corporate charter" or "is self-awarded". Such authority rests instead upon common law precedent (or customary law in civil law jurisdictions), and rests further upon the legal presumption of university title conferring university status and the authority to conduct university work.

The quotation from Alan Contreras above is demonstrably incorrect. A private university in a common law or customary law context acquires legal personality by virtue of its incorporation by the authorities of its jurisdiction under applicable statute. It needs no "approval" or "listing" outside of corporate registration to validate its existence. Indeed, it most certainly exists as an independent legal entity - it can enter into contracts in its own right, sue and be sued, and do all those other things that come under the general heading of "university work".

As to the quotation from Bear and Ezell regarding the basis for the granting of degrees, one need only turn to the prior work of the former to find that he knows full well that this argument is false,


It may be that as a mark of scorn, one refuses to countenance that X or Y is worthy of the name "university" or "school". Yet rhetorical advocacy and the law are not the same. Those who enforce legislation, in any case, should not be straying from the area of legal enforcement into that of politicized lobbying against the self-regulating sector.

It may come as a surprise to learn that the situation described above is even the case within the United States. For, in the minutes of the Oregon Student Assistance Commission for February 17, 2006, Mr. Contreras (who is quoted above) gives a precise and accurate summary of the situation we have endeavored to clarify:


EAU, which is not an U.S. school, operates under just such an exemption from licensing and approval in its jurisdiction of corporate registration. Just as a statutory exemption exists in many U.S. states for religious schools, so it exists for other types of schools - such as private schools of all kinds - in some other countries whose legislature chooses not to exercise regulatory oversight of such institutions.

EAU is not accredited, licensed (in the sense of educational licensing; though it is a licensed corporation) or approved by the state given that its jurisdiction of incorporation has no such system applicable to private distance learning providers. EAU enjoys a further exemption in that it is specifically empowered to operate outside of the nation where it is incorporated. This situation enables EAU to operate legally as a self-regulating school.

An example
There are numerous explicit acknowledgements of the legal positions outlined above with respect to specific private universities. Even when the public sector seeks to disparage a self-regulating institution it is often required to acknowledge - grudgingly - that it operates legally in its jurisdiction. This exposes its position as one of opinion and advocacy, not one of factual authority. It also exposes contradictions and factually false statements, the reasons for which we will leave the reader to speculate on.

Take, for example, the Danish government agency Cirius's comments on the private Knightsbridge University. Now, Cirius, which represents public sector interests, dislikes and opposes Knightsbridge University as a self-regulating institution, and does everything it can in its statement to pour scorn on it. It states some obvious facts, namely that the University is a private institution and not part of the Danish state higher education system, and that because it is private, its students are ineligible for state study grants. None of this is news to students or graduates of Knightsbridge University, because the University itself openly stated these facts on its website for many years. The suggestion that this is somehow all being concealed from the public is part and parcel of the dishonest way in which the public sector conducts its anti-self-regulating sector campaign.

But Cirius also helpfully makes a specific acknowledgement of the legality of private universities in Denmark, for which we must be grateful to them. They say (our emphasis),


As has been said before, once legality is established, all else is opinion. Cirius tells us that accreditation in Denmark is optional and that its purpose in Denmark (as in many other countries) is to make students eligible for state study grants. In fact, they could also have added that the only programs that are eligible for such accreditation in Denmark are those offered free of charge, residentially and through full-time delivery, thus making private distance education institutions completely ineligible to participate - but that would perhaps have been asking too much of them.