                                     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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