I could definitely have seen this case coming out the other way, but I also think that Justice Mauro's (unanimous) opinion is entirely plausible.
It's just a statutory interpretation case. An accredited nursing school (West Coast University) increased its enrollment over a five-year period from 500 students to 850 students. California regulations state that “an approved nursing program shall not make a substantive change without prior board authorization" and that "[t]hese changes include: (1) Change in location. (2) Change in ownership. (3) Addition of a new campus or location. [or] (4) Significant change in the agreement between an approved nursing program that is not an institution of higher education and the institution of higher education with which it is affiliated.”
Does the nursing school have to get board authorization for its increase in enrollment?
Before I tell you the answer: If you were on the Court of Appeal, what would you decide?
It's a close case, in my view. The issue's not doctrinally complicated, and Justice Mauro rightly frames the issue. The list that follows the regulation isn't exclusive; these are just examples of types of substantive changes. But when you've got a list, and that list entails a pattern, then things outside that pattern may not count. That canon helps us to interpret statutes.
So, applying those principles of statutory interpretation, is the increase in enrollment a "substantive change" in the program?
The trial court said it was, and the Court of Appeal agrees. An increase in enrollment might result in various changes or effects, Justice Mauro says. So it's included, which means the Board can regulate it -- and that the school needs to get prior approval.
As I said at the outset, that's an eminently plausible result, though I think the issue's a close one, since the examples set forth in the regulation seem fairly far afield to me to things like increased enrollment. It also bears mention that the nursing program here increased enrollment a mere 9% a year. That's not nothing, of course. But it's somewhat of a stretch to say that that's a "substantive change," particularly when you contrast it with the examples that are expressly set forth in the regulation.
But the part of Justice Mauro's opinion that resonates with me is when he says (essentially): "Hey, look, we're not saying that this change is something that should get the nursing school's approval revoked, and it might perhaps be that -- on the merits -- denying the school permission to increase enrollment would be an abuse of discretion. We're not deciding that issue one way or another. All we're saying is that an increase in enrollment at this level might be a substantive change. So you gotta submit it for approval. If the Board says yes, no problem; and if they say no, then you can sue if you think that's a crazy result. The question here is merely whether an increase in enrollment might count as a substantive change, and yeah, it might, so get it approved."
I might add, by the way, that my reaction to this case might have been starkly different had the Board adopted a more aggressive approach to enforcement than the one it did. When the Board heard about the increase in enrollment, it told the school: "Hey, you gotta get that stuff approved in advance, and you didn't, and we're only going to reapprove your school if you drop your enrollment back down to 500." At which point the school said: "Whoa, Nelly, that's a huge change; no way we can do that, and the regulations don't allow that anyway." Now, at this point, the Board could have said: "Fine, you're hereby disapproved. Disband the school." Because, yeah, the school didn't get preapproval, nor did it drop back down its enrollment.
And if the Board had done that, I gotta tell you, I'd be miffed. Because it would seem to me harsh and a (potentially) unjustified and untoward result. If all that increasing enrollment did was to make sure that our nation has more nurses, that seems to me a good thing, not a bad thing. And if the Board's only real argument is that increasing enrollment makes clinical opportunities harder to get, since there are more students, well, you know, that's just a necessary prerequisite to eventually having more nurses, so deal with it, okay?
But the Board didn't do that. Instead it said, basically, "okay, well, we disagree, so we're not going to approve your reapproval application, but we're not going to disapprove it either. We're just going to sit on it. So you're not disapproved, so can keep going. But we gotta sort this out eventually. So let's see who'll blink first -- or what the Court of Appeal will decide."
Should the aggressiveness of the Board matter on a pure issue of statutory interpretation? Not really. Does it, I suspect, somewhat color at least my own analysis of the issue. Yeah, I bet it does.
Anyway, close case. If West Coast University is a total crap of a school and really shouldn't have even 500 students, much less 850, then yeah, go ahead and disapprove the thing. (And, to be clear, I have no idea one way or another about the quality of the program at WCU.) But if it's a real school and really trains nurses, then the more the merrier, and deal with the problem of clinical opportunities in a different way. Because more nurses is not, IMHO, too much of a good thing. Those people rock.
