The “Low-Tuition-for-All Policy”
As stated in last week’s blog post, “…the BOG’s Act
188-defying “low-tuition-for-all” policy is the primary reason for the large
increase in PASSHE attendance by more affluent students and the corresponding
decrease in PASSHE attendance by less-affluent students.”
The 14 PASSHE universities are Bloomsburg, California,
Cheyney, Clarion, East Stroudsburg, Edinboro, Indiana, Kutztown, Lock Haven,
Mansfield, Millersville, Shippensburg, Slippery Rock and West Chester.
The PASSHE Board of Governors (BOG) is the
20-member group of elected and politically appointed individuals that Act 188 created
to guide the operations of the system of fourteen PASSHE universities. While some discretion was left to the BOG in
carrying out its statutory duties, key provisions of Act 188 would appear to be
non-discretionary as indicated by the use of the term “shall” in the law’s wording.
While the words “shall” and “may” might be seen as equivalent
in certain situations, the meaning of the word “shall,” according to Black’s
Law Dictionary,¹ can be quite mandatory when used in law:
“What is SHALL?”
“As used in statutes and similar instruments, this word is
generally imperative or mandatory; but it may be construed as merely permissive
or directory, (as equivalent to “may,”) to carry out the legislative intention and In cases where no right
or benefit to any one depends on its being taken in the imperative sense, and
where no public or private right is impaired by its interpretation in
the other sense.”
The two underlined words in the above quote appear in the
original Black’s Law Dictionary definition.
But according to that definition, “shall” can be construed
as “may” only in situations “where no right or benefit to anyone depends on its
being taken in the imperative, and where no public or private right is impaired
by its interpretation in the other sense.”
That is, if any one’s rights or benefits depend on the
“imperative” interpretation, or if a public or private right is impaired by the
“discretionary” interpretation, then the imperative interpretation must prevail.
The Statutory
Purpose of the PASSHE System of Fourteen Universities
As a direct quote from Act 188, the statutory purpose² of
the fourteen PASSHE universities “shall be to provide high quality
education at the lowest possible cost to the students.” (Emphasis added.)
Question: Could the use of “shall” in PASSHE’s
statutory purpose ever be considered as “discretionary?”
Answer: Apparently
Not! The rights and benefits of
thousands of PASSHE students from Pennsylvania’s less-affluent families depend critically
on the “imperative” interpretation of “shall.” For those students, the BOG’s current
“discretionary” interpretation of the word “shall” either burdens them with
years of crushing student loan debt, or blocks them entirely from access to a
four-year public higher education.
Alternatively, the public/private rights of those students
would be seriously impaired by construing the word “shall” as “discretionary”
on the part of the BOG, rather than the clearly prevailing “mandatory.”
The BOG’s
“Low-Tuition-For-All” Policy Defies Act 188 and Amounts to Malfeasance
Despite the clear language of Act 188 and the equally clear language
in Black’s Law Dictionary with regard to the meaning of the word “shall” when used
in law, the PASSHE Board of Governors has brazenly maintained a
“low-tuition-for-all” policy with the blessing of three governors since 2002—eight
years of Gov. Rendell, four years of Gov. Corbett, and continuing for almost
two years with Gov. Wolf.
According to Dictionary.com, “malfeasance” is “the
performance by a public official of an act that is legally unjustified,
harmful, or contrary to law.” The
“Low-Tuition-For-All policy clearly meets the dictionary definition of
“malfeasance.”
The Act 188 statutory purpose of the fourteen PASSHE
universities—High quality education at the lowest possible cost to the students—has
not been provided to PASSHE students since 2002, reducing the statutory purpose
of the PASSHE universities to empty words for those students and alumni.
This is not a failure of law; it is a failure of the public
officials on the Board of Governors to obey the law!
“A Government of Laws and Not of Men”
This quote was popularized by John Adams (1735-1826), the second
American president, who actually credited the idea to James Harrington, who
coined a similar term in 1656, long before Adams’ birth.
But while a “government of laws and not of men” remains a noble
ideal in America, there are numerous counter-examples throughout history to
suggest how rare it is for that ideal to be faithfully maintained.
The Ten Most
Corrupt States in America
When one inquires on the Internet about the ethical rankings
of the fifty states, one may or may not be surprised to learn that Pennsylvania
is often ranked in the top ten of the most corrupt states in America! A number of brief national surveys rank
Pennsylvania as the fifth most corrupt state of the fifty states.
A particular in-depth study³ by the Harvard University
Ethics Center entitled “Measuring Illegal and Legal Corruption in American
States: Some Results from the Corruption in America Survey,” is more revealing.
It ranks the fifty states on its three government
branches: Executive, Legislative and Judicial.
It also ranks the branches on two different types of corruption: 1) Illegal Corruption; and 2) Legal
Corruption.
Illegal Corruption is clearly corruption that is
against the law in that state. That is,
the legislature has passed, and the governor has signed, a law in that state
which that makes that kind of behavior illegal.
And although “Legal Corruption” seems like an
oxymoron, it really does exist and includes behaviors that meet the dictionary
definition of corruption even though the legislative and executive branches
have not yet made it illegal in that state!
Sometimes the ethics laws passed by legislators and signed into law by
governors are defined in such a way as to render questionable behaviors legal; behaviors that would otherwise be judged illegal had dictionary definitions of those behaviors been used.
To be continued.
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