Rubinstein v. United States
Opinion
PeR Curiam
: This case was referred to Trial Commissioner Mastín G. White pursuant to Kule 45 with directions to make findings of fact and recommendations for conclusions of law. The commissioner has done so in a report filed May 26,1960. Briefs and exceptions to the commissioner’s findings were filed by both parties, and the case was submitted to the court on oral argument by counsel. Since the court is in agreement with the findings and recommendations of the trial commissioner, as hereinafter set forth, it hereby adopts the same as [304] the basis for its judgment in this case. Plaintiff is therefore entitled to a partial recovery on her claims, and defendant is likewise entitled to a partial recovery on its counterclaim. Judgment will be entered to that effect with the respective amounts of recovery to be determined in further proceedings pursuant to Rule 38 (c).
It is so ordered.
OPINION OP THE COMMISSIONER
The plaintiff, Annette T. Rubinstein, is an educator. She holds the degree of doctor of philosophy from Columbia University, and she is an experienced teacher and school administrator.
From 1934 until 1952, the plaintiff was the owner of the Robert Louis Stevenson School, located in New York City. (This institution will usually be referred to hereafter in the opinion as “the RLS School.”) For several years during the latter part of the period mentioned, beginning in 1946 and extending until 1952, the RLS School was attended by many veterans of World War II who were receiving educational benefits under the provisions of Part VIII of Veterans’ Regulation No. 1(a).1 The present litigation grew out of a controversy that arose between the Veterans Administration (the agency administering Part VIII) and the RLS School over the latter’s charges under Part VIII for veterans’ tuition and for supplies furnished to veterans during their attendance at the school. (For the sake of convenience, the Veterans Administration will usually be referred to hereafter in the opinion as “the VA.”) The plaintiff, as the owner of the RLS School during the period involved in the litigation, is suing the Government on claims for tuition and supplies, aggregating $314,769.13, which the RLS School submitted to the VA and which the latter declined to pay. The Government denies any liability to the plaintiff on the claims alleged in the petition, and asserts a counterclaim against the plaintiff in the total amount of $456,986.55 be[305] cause of overcharges allegedly collected by the RLS School in other instances under Part VIII.
By order of the commissioner, the trial was limited to the issues of law and fact relating to the right of the respective parties to recover. The determination of the amount of any recovery was reserved for further proceedings.
When the plaintiff became the owner of the RLS School in 1934, it was a private day school, offering instruction from the 1st grade through the 12th grade. The school was organized at that time into two divisions, an elementary school that included grades 1-6 and a secondary school that included grades 7-12.
As of 1934, the RLS School had been, for a period of approximately 4 years, registered by the Regents of the University of the State of New York “as a secondary institution of high school grade.” The Regents are the official approving agency for public and private secondary schools in the State of New York, and the action of the Regents with respect to the RLS School was, in effect, a registration of the top four grades of the school as constituting an accredited high school. It was an approval of the curriculum of the RLS School for, and of the instruction given by the school in, the 9th, 10th, 11th, and 12th grades. In addition, it amounted to an implied approval of the curriculum and instruction in the 7th and 8th grades as providing a satisfactory foundation for entrance into high school.
The plaintiff, after acquiring the ownership of the RLS School, operated it as a 12-year school until 1942 or 1943, when the six elementary grades were discontinued. Thereafter, the school continued to offer instruction in grades 7 through 12.
After the Congress legislatively expanded Veterans’ Regulation No. 1(a) by adding Part VIII to it in order to provide educational benefits for veterans of World War II, the RLS School on June 19, 1946, wrote a letter to an official of the VA in New York City, stating as follows:
The Robert Louis Stevenson School, exclusively a girls high school for forty years, announces the opening of its doors to ex-servicemen and women this fall. Recognizing the urgent need of training facilities for veterans, Stevenson has reorganized its curriculum to [306] include a full-time afternoon and evening session. Arrangements have been made to accommodate 250 veterans for the fall term.
Fully accredited by the New York State Board of Regents, the school is offering an accelerated program of Regents and non-Regents subjects. Veterans will be prepared for college entrance or occupations requiring a high school diploma.
Registrations are now being accepted.
The enrollment of veterans in the RLS School under Part VIII of Veterans’ Regulation No. 1(a) began in the fall of 1946.
In order that the regular program of the RLS School for the education of children might not be disrupted unduly by the admission of veterans, the plaintiff established an evening division of the school for adults only in the fall of 1946. Veterans who entered the RLS School in the fall of 1946 were admitted to the evening school. In the spring of 1947, however, the plaintiff set up an adult section in the day school, and some veterans were admitted to the day school. At about the same time, the plaintiff decided to convert the day school gradually into a school for adults; and this program of conversion was thereafter carried out. The first step was to discontinue the giving of instruction in the 7th and 8th grades to children. Subsequently, the giving of instruction to children in other grades was discontinued on a gradual basis, until the entire RLS School, both the evening school and the day school, became an institution for the education of adults, most of whom were veterans receiving benefits under the provisions of Part VIII of Veterans’ Regulation No. 1(a).
The RLS School continued, as before, to give instruction in grades 7 through 12. Its year was divided into a fall semester, a spring semester, and a summer term.
On January 16, 1948, the Regents of the University of the State of New York registered the evening school of the RLS School “as a High School maintaining an approved secondary program covering 9th-12th years * * * .”
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PeR Curiam
: This case was referred to Trial Commissioner Mastín G. White pursuant to Kule 45 with directions to make findings of fact and recommendations for conclusions of law. The commissioner has done so in a report filed May 26,1960. Briefs and exceptions to the commissioner’s findings were filed by both parties, and the case was submitted to the court on oral argument by counsel. Since the court is in agreement with the findings and recommendations of the trial commissioner, as hereinafter set forth, it hereby adopts the same as [304] the basis for its judgment in this case. Plaintiff is therefore entitled to a partial recovery on her claims, and defendant is likewise entitled to a partial recovery on its counterclaim. Judgment will be entered to that effect with the respective amounts of recovery to be determined in further proceedings pursuant to Rule 38 (c).
It is so ordered.
OPINION OP THE COMMISSIONER
The plaintiff, Annette T. Rubinstein, is an educator. She holds the degree of doctor of philosophy from Columbia University, and she is an experienced teacher and school administrator.
From 1934 until 1952, the plaintiff was the owner of the Robert Louis Stevenson School, located in New York City. (This institution will usually be referred to hereafter in the opinion as “the RLS School.”) For several years during the latter part of the period mentioned, beginning in 1946 and extending until 1952, the RLS School was attended by many veterans of World War II who were receiving educational benefits under the provisions of Part VIII of Veterans’ Regulation No. 1(a).1 The present litigation grew out of a controversy that arose between the Veterans Administration (the agency administering Part VIII) and the RLS School over the latter’s charges under Part VIII for veterans’ tuition and for supplies furnished to veterans during their attendance at the school. (For the sake of convenience, the Veterans Administration will usually be referred to hereafter in the opinion as “the VA.”) The plaintiff, as the owner of the RLS School during the period involved in the litigation, is suing the Government on claims for tuition and supplies, aggregating $314,769.13, which the RLS School submitted to the VA and which the latter declined to pay. The Government denies any liability to the plaintiff on the claims alleged in the petition, and asserts a counterclaim against the plaintiff in the total amount of $456,986.55 be[305] cause of overcharges allegedly collected by the RLS School in other instances under Part VIII.
By order of the commissioner, the trial was limited to the issues of law and fact relating to the right of the respective parties to recover. The determination of the amount of any recovery was reserved for further proceedings.
When the plaintiff became the owner of the RLS School in 1934, it was a private day school, offering instruction from the 1st grade through the 12th grade. The school was organized at that time into two divisions, an elementary school that included grades 1-6 and a secondary school that included grades 7-12.
As of 1934, the RLS School had been, for a period of approximately 4 years, registered by the Regents of the University of the State of New York “as a secondary institution of high school grade.” The Regents are the official approving agency for public and private secondary schools in the State of New York, and the action of the Regents with respect to the RLS School was, in effect, a registration of the top four grades of the school as constituting an accredited high school. It was an approval of the curriculum of the RLS School for, and of the instruction given by the school in, the 9th, 10th, 11th, and 12th grades. In addition, it amounted to an implied approval of the curriculum and instruction in the 7th and 8th grades as providing a satisfactory foundation for entrance into high school.
The plaintiff, after acquiring the ownership of the RLS School, operated it as a 12-year school until 1942 or 1943, when the six elementary grades were discontinued. Thereafter, the school continued to offer instruction in grades 7 through 12.
After the Congress legislatively expanded Veterans’ Regulation No. 1(a) by adding Part VIII to it in order to provide educational benefits for veterans of World War II, the RLS School on June 19, 1946, wrote a letter to an official of the VA in New York City, stating as follows:
The Robert Louis Stevenson School, exclusively a girls high school for forty years, announces the opening of its doors to ex-servicemen and women this fall. Recognizing the urgent need of training facilities for veterans, Stevenson has reorganized its curriculum to [306] include a full-time afternoon and evening session. Arrangements have been made to accommodate 250 veterans for the fall term.
Fully accredited by the New York State Board of Regents, the school is offering an accelerated program of Regents and non-Regents subjects. Veterans will be prepared for college entrance or occupations requiring a high school diploma.
Registrations are now being accepted.
The enrollment of veterans in the RLS School under Part VIII of Veterans’ Regulation No. 1(a) began in the fall of 1946.
In order that the regular program of the RLS School for the education of children might not be disrupted unduly by the admission of veterans, the plaintiff established an evening division of the school for adults only in the fall of 1946. Veterans who entered the RLS School in the fall of 1946 were admitted to the evening school. In the spring of 1947, however, the plaintiff set up an adult section in the day school, and some veterans were admitted to the day school. At about the same time, the plaintiff decided to convert the day school gradually into a school for adults; and this program of conversion was thereafter carried out. The first step was to discontinue the giving of instruction in the 7th and 8th grades to children. Subsequently, the giving of instruction to children in other grades was discontinued on a gradual basis, until the entire RLS School, both the evening school and the day school, became an institution for the education of adults, most of whom were veterans receiving benefits under the provisions of Part VIII of Veterans’ Regulation No. 1(a).
The RLS School continued, as before, to give instruction in grades 7 through 12. Its year was divided into a fall semester, a spring semester, and a summer term.
On January 16, 1948, the Regents of the University of the State of New York registered the evening school of the RLS School “as a High School maintaining an approved secondary program covering 9th-12th years * * * .”
Beginning in late 1948 or early 1949, the RLS School found itself facing a serious educational problem due to the fact that its student body included many Puerto- Rican veterans with English-language deficiencies and other scholastic [307] deficiencies as well. The student body also included numerous other veterans with poor educational backgrounds. For a time, the school endeavored to cope with this problem by assigning such veterans to the school’s regular classes, and giving these veterans special attention and instruction within the respective classes. This plan, however, did not enable the problem students to cope with the subjects as taught in the regular classes; it was a handicap to the other students in the classes to which the problem students were assigned; and it imposed an undue hardship on the teachers of such classes. The ELS School then established special classes in various subjects for the problem students. Some of the subjects involved in this special program were modified (i.e., less difficult) versions of certain of the school’s regular 7th-, 8th-, 9th-, and 10th-grade subjects, particularly English and mathematics. Others were special subjects, usually of an elementary nature, that were not specifically related to the existing grades 7-12 in the ELS School. In devising this program for problem students, the ELS School was following educational policies generally regarded as sound.
Credit toward high school graduation was granted by the ELS School for the successful completion of the modified versions of 9th-grade and 10th-grade subjects. High school credit was not granted, however, for the successful completion of modified versions of 7th-grade and 8th-grade subjects, or for the other special subjects that were set up for the problem students. (A few exceptions to the general statement made in the preceding sentence will be referred to hereafter in the opinion.)
During the period 1949-1952, the VA declined to pay many vouchers that were submitted to the agency by the ELS School for the tuition of, and for supplies furnished to, veterans who were attending the school under Part VIII of Veterans’ Eegulation No. 1 (a). It is alleged in the petition that the amounts claimed in the unpaid vouchers total $314,769.13, and this is the sum that the plaintiff is attempting to recover in the present case. The defendant contends, in the first place, that the plaintiff is not entitled to receive anything on the claims growing out of the unpaid vouchers. Furthermore, the defendant asserts a counterclaim against the plaintiff in the total amount of $456,986.55, on the ground [308] that the RLS School was overpaid in many other instances because of overcharges that the school made, and collected from the VA, for veterans’ tuition and for supplies furnished to veterans.
The issues involved in the suit will be discussed in relation to certain veterans who were enrolled in the RLS School and whose cases are said by the defendant to illustrate the contentions that the defendant is making in the litigation.
High School Course
The veteran George Baskins, Jr., was a student in the RLS School during the period 1951-1952. He first entered the school in the spring semester of 1951, after the semester was more than half over. He was enrolled in five classes for the period of his attendance during that semester. These included a class in a modified (i.e., less difficult) version of 8th-grade English designated as English 8-Jr. (Reading), a class in a modified version of 8th-grade English designated as English 8-Jr. (Written), a class in a modified version of 7th-grade mathematics designated as Mathematics 7-Jr., and a class in a special subject designated as Mathematics-Jr.2 The defendant asserts a counterclaim in the present litigation against the plaintiff for $36.78, representing the tuition that was paid by the VA to the RLS School in connection with Baskins’ enrollment in the two English classes. It is the defendant’s contention that the RLS School was obligated to provide a high school course of study for Baskins and, therefore, was required to restrict his enrollment to high school subjects (i.e., subjects at the level of grades 9-12 for which credit toward high school graduation was granted if successfully completed) .3
The defendant’s contention that the RLS School was obligated to provide a high school course of study for Baskins [309] is based upon alternative theories. The first theory appears to be that the RLS School was approved under Part VIII of Veterans’ Regulation No. 1 (a) as a high school, and, accordingly, that the RLS School was limited by the statutory language of Part VIII to the giving of instruction in high school subjects to veterans who attended the school under the provisions of Part VIII.
An examination of the provisions of Part VIII (which, are set out in finding 6) will reveal that veterans receiving benefits under this legislation were required to attend “approved” educational or training institutions, and that the VA was directed to “secure from the appropriate agency of each State a list of the educational and training institutions * * * within such jurisdiction, which are qualified and equipped to furnish education or training * * *, which institutions * * * shall be deemed qualified and approved to furnish education or training to such persons as shall enroll under this part * * * .”
Although there is a clear inference to be drawn from the evidence that the RLS School appeared on the list which the VA obtained from the New York State Education Department pursuant to the directive contained in the statutory language just quoted, the actual list was not introduced in evidence. The Government assumes for the purpose of this case that the list, in referring to the RLS School, used language which designated it as a high school and somehow restricted it to the giving of instruction in high school subjects to veterans. This position taken by the Government in the litigation is inconsistent, however, with the position which the Government took in its relations with the RLS School prior to the beginning of the present case. The record reveals that many veterans were certified by the VA to the RLS School for courses of study other than high school courses. Some of the designations used by the VA in such certifications were “course in Junior High School Training,” “Basic Education Studies,” “course in Reading, Speaking and Writing English,” “Junior High School Course,” “Elementary course,” “Elementary School course,” “Academic (Grammar) course,” “Academic course (Reading, Writing and Arithmetic only),” “Academic Course on Elementary [310] Level,” “Elementary School training,” “Beginner’s English,” “Basic English Course,” “Elementary Education course,” “Elementary School Subjects,” “course in English and related elementary subjects,” “course in Elementary Schooling,” “course in English for Foreigners and Typing,” and “courses in Basic English, Arithmetic and General Studies.”
Moreover, while it is true that the registrations of the day and evening divisions of the RLS School by the Regents of the University of the State of New York for accreditation purposes referred to the school “as a secondary institution of high school grade” and “as a High School maintaining an approved secondary program covering 9th-12th years,” the State Education Department (which operated under the Regents) was aware (on the basis of the regular inspections that it made of the RLS School and of the reports which it regularly received from the school) of the subjects below the high school level that were being taught by the RLS School, and by continuing the registrations it impliedly approved the pre-high school phase of the school’s work as providing a satisfactory foundation for entrance into high school.
I do not believe, therefore, that the court can accept the Government’s assumption for the purpose of this litigation that the listing of the RLS School by the New York State Education Department under Part VIII of Veterans’ Regulation No. 1(a) used restrictive language which limited the school to the giving of instruction in high school subjects to veterans who attended the school under Part VIII.
The Government makes an alternative contention to the effect that there was an agreement between the VA and the RLS School with respect to the veteran Baskins which obligated the school to provide a high school course of study for Baskins.
For a proper understanding of the contention mentioned in the preceding paragraph, it is necessary to summarize the procedure, as established by the VA, which was followed in connection with the enrollment of veterans in the RLS School under Part VIII of Veterans’ Regulation No. 1(a). A veteran desiring to obtain the educational benefits pro[311] vided for in Part YIII signed an application on a form prescribed by the YA and submitted the application, either in person or through the mail, to the local field office of the YA. The application was reviewed by the YA field office; and if it appeared that the veteran was eligible under Part VIII, a certificate of eligibility and entitlement was executed by a VA official. This certificate indicated the length of time (in years, months, and days) that the veteran was entitled to receive education or training under Part YIII, and many certificates undertook to specify the course of study that the veteran could pursue. After the execution of this certificate, it was furnished to the veteran, who took it to the ELS School as the institution of his choice. Upon admitting the veteran, the ELS School executed and forwarded to the VA a certificate with respect to the enrollment of the veteran. This certificate, which was on a form prescribed by the YA, stated (among other things) the date of the enrollment, the name of the course for which the veteran had been enrolled, the length of the course, and the estimated charges for the period of enrollment. At the bottom of the form on which the enrollment certificate was executed, there appeared a printed statement to the effect that “This certification * * * becomes the basis for payment of all training benefits to, and in behalf of, this veteran.”
In the case of the veteran Baskins, the certificate of eligibility and entitlement which the VA issued to this veteran, and which was the authority for his enrollment in the ELS School, stated that it was “Valid for academic H.S. [High School] course at Eobert L. Stevenson school * * The certificate that was executed by an official of the ELS School in connection with Baskins’ enrollment gave the name of the course for which he was enrolled as “High School — Academic.” The ELS School obtained payments from the YA for Baskins’ tuition, and for the supplies furnished to him, on the basis of vouchers which were submitted by the school to the VA from time to time during Baskins’ attendance. Each voucher included the claims for tuition and supplies with respect to a large number of veterans who were attending the school at the particular time, and it indicated that all of them were taking a “High School [312] Course.” However, there was attached to the voucher a list showing the specific subjects taken by each student during the particular period.
The evidence in the record does not show why the VA certified the veteran Baskins to the RLS School for an “academic H.S. [High School] course.” There is nothing to indicate that any VA official evaluated Baskins’ qualifications and concluded that he was ready for and should have a high school course. Furthermore, it should be noted that the VA did not have any authority under the governing legislation to restrict Baskins with respect to the course of study that he might pursue under the provisions of Part VIII of Veterans’ Regulation No. 1(a). This is made clear by the statutory language to the effect that an eligible veteran “shall be * * * entitled to such course of education or training * * * as he may elect, and at any approved educational or training institution at which he chooses to enroll * * * which will accept or retain him as a student or trainee in any field or branch of knowledge which such institution finds him qualified to umdertahe or •pursue” and that no administrative regulation should be issued, and no construction of the pertinent legislation should be adopted, “which denies or is designed to deny to any eligible person, or limit any eligible person in, his right to select such course or courses as he may desire” (emphasis supplied) .4
If a veteran, having selected a course of study and having enrolled for the course at an approved institution, desired to change the course, it was necessary that he obtain the approval of the VA. This, however, was the extent of the administrative agency’s authority with respect to courses under Part VIII of Veterans’ Regulation No. 1 (a), in so far as the issues involved in the present case are concerned. There is nothing in the evidence to indicate that the veteran Baskins was involved in a change of course without proper approval, or that the VA was prejudiced in any way, with respect to the agency’s authority over course changes, by virtue of the fact that Baskins was enrolled in some subjects below the high school level.
[313] With, respect to the action of the ELS School in certifying to the VA, upon Baskins’ enrollment in the school, that the course for which he was enrolled was “High School-Academic,” it is necessary to consider the significance of this certification from the standpoint of the VA. As has been previously noted, the authority of the VA over courses of instruction was limited (in so far as the issues in this case are concerned) to the approval or disapproval of proposed course changes by veterans. Hence, even if the certification by the ELS School regarding the course for which Baskins had enrolled was inaccurate, that could be regarded as a material misrepresentation for the purposes of this case only if the VA was prejudiced somehow by such inaccuracy in connection with the exercise of the power to approve or disapprove course changes. As pointed out above, there is nothing in the evidence to indicate that Baskins was involved at any time in an unauthorized change of course.
Furthermore, the indication by the ELS School in the vouchers to the effect that Baskins (together with other veterans) was taking a “High School Course” cannot provide a legal basis for the counterclaim previously mentioned, particularly since the ELS School submitted along with the vouchers complete information regarding the specific subjects for which Baskins was enrolled.
When the pertinent certificate of eligibility and entitlement, the enrollment certificate, and the vouchers relating to Baskins are considered, I do not believe that they together constituted any sort of binding agreement between the ELS School and the VA that the school would enroll Baskins only for high school subjects.
Perhaps the provisions of a written contract between the VA and the evening division of the ELS School should be mentioned at this point.
No written contract for the training of veterans was ever entered into between the VA and the day school division of the ELS School. Payments by the VA to the day school for the education of veterans under Part VIII of Veterans’ Eegulation No. 1(a) were based upon the day school’s customary charges for tuition and supplies. As the result, however, of a regulation that was promulgated by the VA [314] on May 17,1948 (see finding 13), contracts covering periods of 1 year each were thereafter entered into between the YA and the evening school division of the ELS School. One of these contracts was in effect from September 1,1950, to August 31,1951. Although the evidence does not show whether Baskins attended the evening school or the day school in the spring semester of 1951, it will be assumed, for the purpose of the present discussion, that he attended the evening school, and that the provisions of the contract just referred to are pertinent.
The contract in question (see findings 16-17) provided that “The Contractor [ELS School] will provide instruction * * * to * * * veterans * * * who may be accepted or retained by the Contractor as students in such courses as the Contractor finds them qualified to undertake or ‘pursue” (emphasis supplied). Attached to and made a part of the contract was a printed folder of the ELS School which gave the school’s curriculum. Among the subjects listed were “J.H.S. [Junior High School] English,” “Eemedial” English, “J.H.S. Mathematics,” and “Other Subjects as Ee-quired.” It will be readily seen, therefore, that the contract between the evening school division of the ELS School and the YA that was in effect during the spring semester of 1951 cannot provide a basis for the Government’s contention that the ELS School was under a legal obligation to enroll the veteran Baskins only for high school subjects.
It follows, from what has been said above, that the Government’s tuition counterclaim for $36.78 in connection with the two English subjects that were taken by the veteran Baskins in the spring semester of 1951 should be disallowed, in my opinion. I do not believe that the ELS School was legally required to restrict Baskins, or to limit its claims respecting his tuition and supplies, to high school subjects.
The discussion in this part of the opinion is also applicable to the many other situations in which the Government counterclaims in the present litigation, or declined to pay vouchers submitted by the ELS School to the YA, on the ground that the ELS School was legally restricted to the giving of instruction in high school subjects to veterans at[315] tending the school under Part VIII of Veterans’ Regulation No. 1(a).
Repetitive Instruction
The veteran Baskins took the second half of a modified version of 8th-grade mathematics, designated as Mathematics 8-B, in the summer term of 1951 and received a grade of 70. He took the same subject over again in the fall semester of 1951, receiving a grade of 75. He took the same subject over a third time in the spring semester of 1952, receiving a grade of 65. The defendant’s counterclaim includes the amounts that the VA paid to the RLS School as tuition in connection with the taking of this subject by Baskins in the summer term and fall semester of 1951. Also, the VA disallowed the claim of the RLS School for Baskins’ tuition in connection with the taking of this same subject in the spring semester of 1952, and this claim is one of those upon which the plaintiff is suing in the present case. The defendant’s counterclaim is based, and the disallowance of the plaintiff’s claim is attempted to be justified by the Government, principally upon the ground that the RLS School was authorized to give instruction to Baskins only in high school subjects. For the reasons given in another part of the opinion, it is my view that this position is untenable.
With respect to the defendant’s counterclaim for the tuition ($50) that was paid to the RLS School in connection with the taking of Mathematics 8-B by Baskins a second time in the fall semester of 1951, and the disallowance of the plaintiff’s claim for tuition ($50) in connection with the taking of this same subject for a third time in the spring semester of 1952, the Government presents an alternative contention based upon the repetition of the subject. It seems to me that this alternative argument is sound.
We have here the situation of a veteran who, after having taken and completed a subject and received a better-than-passing grade of 70 in it, repeated the same subject a second time, and then a third time, with the RLS School charging the VA tuition in connection with each repetition of the subject. The whole purpose of the program authorized by the Congress in Part VIII of Veterans’ Regulation No. 1(a) was that eligible veterans should “receive education or train[316] ing under this part.” Since the RLS School was an educational (as distinguished from a training) institution, its participation in the program imposed upon it an obligation, in consideration of the financial benefits which it received, to further the “education” of veterans. I do not believe that the school discharged its obligation in this respect when it permitted the veteran Baskins to mark time, at the expense of the Government, by repeating in the fall semester of 1951, and again in the spring semester of 1952, a subject in which he had already received a better-than-passing mark in the summer term of 1951.
It is my opinion, therefore, that the Government’s counterclaim for the tuition that was paid to the RLS School in connection with the taking of Mathematics 8-B in the fall semester of 1951 by Baskins should be allowed, and, conversely, that the plaintiff’s claim for tuition in connection with the taking of this same subject by Baskins in the spring semester of 1952 should not be allowed.
The same principle would be applicable in the many other situations where the evidence plainly shows that veterans attending the RLS School repeated subjects which they had previously completed with passing marks.
On the other hand, there are instances where the Government has included items in its counterclaim, or has disallowed claims by the RLS School, on the ground of alleged repetition, when the evidence in the record does not justify such action. For example, the veteran Juan Orengo took two classes in the regular 2-semester 9th grade English subject, designated as English 1-2, during the fall semester of 1948. The defendant counterclaims for the amount that was paid for tuition ($46.87) and the amount that was paid for supplies ($1.24) in connection with one of these two classes. The defendant assumes that the two classes in 9th-grade English covered the same subject matter and were repetitive of each other. There is no direct evidence in the record relating to the alleged repetition. The inference is warranted that one of the English classes covered the first semester’s work in this 2-semester English subject, and the other class covered the second semester’s work in the same subject. Consequently, I do not believe that the court should allow the counterclaim referred to in this paragraph.
[317] Also, the veteran Orengo took part of a 2-semester subject designated as Spanish 7-8 in the spring semester of 1950, receiving a grade of 80, and he took another part of this subject in the summer term of 1950, receiving a grade of 80. Subsequently, Orengo took a subject designated as Spanish 8 in the fall semester of 1950. The Government asserts a counterclaim for Orengo’s tuition ($50) and for the supplies that were furnished to him ($1.65) in connection with the taking of Spanish 8 in the fall semester of 1950. This counterclaim is based upon the assumption that the instruction in Spanish 8 was a repetition of the instruction previously given to Orengo in Spanish 7-8 during the spring semester and summer term of 1950. As there is no evidence in the record bearing directly on the question of the alleged repetition, the inference is warranted that Spanish 8 was a different subject from and not repetitive of Spanish 7-8. Accordingly, it is my opinion that this counterclaim should not be allowed by the court.
The veteran Orengo took a subject designated as Social Studies 8 in the fall semester of 1951, but did not receive any grade in this subject. He was also enrolled in Social Studies 8 for part of the spring semester of 1952. The RLS School submitted to the VA a tuition claim for $16.50, and a supplies claim for $1.29, in connection with Orengo’s enrollment in Social Studies 8 during a portion of the spring semester in 1952. This claim was disallowed by the YA, and it forms part of the plaintiff’s cause of action in the present case. The disallowance was based on the assumption that the instruction in Social Studies 8 which Orengo received in the spring semester of 1952 was repetitive of the instruction in Social Studies 8 which he had received in the fall semester of 1951. There is no direct evidence in the record on the issue of the alleged repetition. It is reasonable to infer either that the instruction which was given to Orengo in Social Studies 8 during the fall semester of 1951 covered the first semester’s work in a 2-semester subject and the instruction which was given to him in the spring semester of 1952 covered a portion of the second semester’s work in the same subject, or that Orengo failed to pass the part of Social Studies 8 which he took in the fall semester of 1951 and was [318] properly repeating the same part of the subject in the spring semester of 1952. It is my opinion, therefore, that the court should allow the claim of the plaintiff that is discussed in this paragraph.
The findings refer to a number of additional situations similar to those discussed in the three preceding paragraphs relative to the veteran Orengo.
Art Subjects
The veteran Juan Colon Ortiz took art in the fall semester of 1950, receiving a grade of 65; he took art in the spring semester of 1951, receiving a grade of 75; he took art in the summer term of 1951, receiving a grade of 70; he took art in the fall semester of 1951, receiving a grade of 85; and he took art in the spring semester of 1952, receiving a grade of 65. The defendant’s counterclaim includes the amounts which the YA paid to the RLS School for tuition ($20) and supplies ($4) in connection with the taking of art by Colon Ortiz in the summer term of 1951. Also, the VA disallowed the claim of the RLS School for tuition ($29.80) in connection with the taking of art by Colon Ortiz in the fall semester of 1951, and it disallowed the claim of the RLS School for tuition ($50) in connection with the taking of art by Colon Ortiz in the spring semester of 1952. The amounts of $29.80 and $50 constitute part of the plaintiff’s cause of action in the present case. The counterclaim with respect to the summer term of 1951, and the disallowances with respect to the fall semester of 1951 and spring semester of 1952, were based upon the assumption that the art instruction which Colon Ortiz received during these periods was repetitive of the instruction in art which he had previously received.
There is no direct evidence in the record on the issue of the alleged repetition mentioned in the preceding paragraph. The evidence shows that during the period involved in the present litigation, the curriculum of the RLS School included a number of different subjects in the field of art. They were designated as General Art, Basic Art, Drawing and Painting, Advanced Design, Comprehensive Art, Commercial Advertising, Costume Design and Illustration, Water Color, Oil Painting, Art History, and Craft. These [319] were high school subjects and, upon the completion of one of these subjects by a student, an appropriate unit of credit toward high school graduation was entered on the student’s record card under the designation of “Art,” without any indication of the particular art subject which the student had taken.
Therefore, it is reasonable to infer that Colon Ortiz took different art subjects in the fall semester of 1950, the spring semester of 1951, the summer term of 1951, the fall semester of 1951, and the spring semester of 1952. Accordingly, I believe that the Government’s counterclaim with respect to the taking of art by Colon Ortiz in the summer term of 1951 should not be allowed, and, conversely, that the plaintiff’s claims with respect to the taking of art by Colon Ortiz in the fall semester of 1951 and the spring semester of 1952 should be allowed against the allegation of repetitive instruction.5
Modified English Subjects
The veteran Juan Gascot was enrolled in four classes in the fall semester of 1951. They were a class in a modified version of 9th-grade English designated as English 9 (Reading), a class in a modified version of 9th-grade English designated as English 9 (Written), a class in a modified version of 9th-grade English designated as English 9 (Oral), which Gascot attended for part of the semester only, and a class in 10th-grade history designated as History 10-A. The RLS School’s tuition claim with respect to these classes was disallowed by the VA to the extent of $15.88, representing the amount of the tuition for English 9 (Oral). The VA took the position that the plaintiff was not entitled to collect tuition for more than two classes, lasting a semester each, in 9th-grade English. The plaintiff is suing for the $15.88 in the present action.
With regard to the disallowance mentioned in the preceding paragraph, it should be explained that, in establishing modified versions of the regular 9th-grade and 10th-grade subjects in English for the scholastically deficient students [320] referred to earlier in the opinion, tlie RLS School adopted a plan whereby each of these modified English subjects was divided into three classes and each class lasted for a semester. Hence, a scholastically deficient student was given three semesters of instruction in a modified English subject, instead of the two semesters of instruction per English' subject traditionally given in the regular classes. Under the 3-semester plan, the reading aspects of a particular subject were emphasized during a semester in one class, the oral (or speech) aspects of the subject were emphasized during a semester in another class, and the written aspects of the subject were emphasized during a semester in still another class. Separate tuition charges were made by the RLS School for the three classes.
Different materials were studied in the different English classes under the 3-semester plan. Consequently, the refusal of the VA to pay the RLS School’s tuition charge for English 9 (Oral) in Gascot’s case cannot be justified on the ground that the instruction which Gascot received in this phase of modified 9th-grade English was repetitive of the instruction which he received in English 9 (Reading) and English 9 (Written).
It is true that a student who successfully completed the reading, oral, and written aspects of a modified 9th-grade or a modified 10th-grade English subject on the basis of three semesters of work was given only one credit in 9th-grade English or 10th-grade English, as the case might be, toward high school graduation. This was the same amount of credit that another student would receive on the successful completion of two semesters’ work in the regular 9th-grade or 10th-grade English subject. In this connection, however, it is pertinent to note that throughout the relationship between the RLS School and the VA, the school’s tuition charges were based upon the hours of instruction that were actually given to veterans in the various subjects, and not upon the extent of the high school credits that were earned or could be earned by the veterans in such subjects. Hence, the charging of tuition on the basis of the actual hours of instruction given in the modified English subjects was consistent with the prevailing practice in connection with other subjects.
[321] It is my opinion, therefore, that the plaintiff’s claim in the present litigation for tuition in connection with the taking of English 9 (Oral) by Gascot in the fall semester of 1951 should be allowed.
The same principle would be equally applicable in numerous other situations where the Government has counterclaimed, or has disallowed the RLS School’s claims, for the tuition covering the third semester’s instruction in a 3-semester modified English subject.
Withdrawal of Approval of RLS School
The veteran Juan Gascot took three subjects in the spring semester of 1952. They were a modified version of 10th-grade English designated as English 10 (Reading), History 10-B, and History 11-A. The RLS School submitted a tuition claim for $150 with respect to these three subjects. The claim was disallowed by the VA to the extent of $40.50 on the ground that the approval of the RLS School under Part VIII of Veterans’ Regulation No. 1(a) was withdrawn on May 21, 1952. The plaintiff is suing for the $40.50 in the present action.
Section 5 of the Act of July 13, 1950 (64 Stat. 336, 340) amended paragraph 11 of Part VIII of Veterans’ Regulation No. 1(a) by adding at the end thereof a new subpara-graph (see finding 20) stating that “In order to * * * retain approval to train veterans, any school operated for profit * * * will be required to submit to the appropriate State approving agency a written application, in form and contents prescribed by the State approving agency, setting forth the course or courses of training.” The new subparagraph then proceeded to outline in considerable detail the information that should be submitted by an applicant school; and it declared that an application might be approved by the State approving agency if the school was found upon investigation to have met certain prescribed criteria. The new subpara-graph further provided as follows:
The Veterans Administration is not authorized to award benefits under this part if it is found by the appropriate State approving agency that the course offered by a school operated for profit fails to meet the applicable requirements of this subparagraph * * *.
[322] Although, officials of the RLS School were aware of the enactment of the legislation just referred to, and of the applicability of such legislation to the school, no application for continued approval had been submitted on behalf of the school to the New York State Education Department as of May 19, 1952. Indeed, no effort had 'been made as of that date to obtain from the State Education Department a form on which to submit an application for continued approval.
By means of a communication dated May 19, 1952, and received on May 21, 1952, the New York State Education Department informed the manager of the VA regional office for New York State that the RLS School was withdrawn from the list of schools approved for the education and training of veterans, because of the failure of the school to file an application for approval under the legislation of July 13, 1950.
On May 23, 1952, the acting manager of the VA regional office notified the RLS School by registered mail of the receipt on May 21 of the communication from the State Education Department, and then stated:
Action has been taken by the appropriate officials of our Vocational Rehabilitation and Education Division to notify by letter each individual veteran student enrolled at your institution that his training was discontinued effective May 21, 1952, owing to the withdrawal of the approval of your institution for the training of veterans.
No further enrollment or re-enrollment of veterans will be authorized at your institution while its status continues as “not approved for veteran training.”
Notwithstanding notifications from the VA to the veterans who were enrolled in the RLS School that participation by the RLS School in the program for the education of veterans had been discontinued as of May 21,1952, few of the veterans withdrew from the RLS School because of such notifications.
On May 24, 1952, an official of the RLS School went to Albany for the purpose of obtaining from the New York State Education Department a form upon which to submit an application for continued approval of the school under the legislation of July 13, 1950. He was informed by the State Education Department that no special form for that [323] purpose had been prescribed, and he was furnished a form entitled “Application for Admission or Advancement of a Secondary School,” which was the form customarily used by secondary schools in connection with registration for the purpose of accreditation. In addition, he was informed that a supplemental application form would be forwarded to the RLS School shortly thereafter. Such a supplemental application form, prepared on a typewriter, was later transmitted by the State Education Department to the RLS School, and was received on May 27 or 28, 1952.
As soon as possible after the events referred to in the preceding paragraph, the RLS School’s application for approval under the legislation of July 13, 1950, was prepared and submitted to the New York State Education Department. It was received on or about June 2,1952.
Sometime between June 2 and 26, 1952, the plaintiff sold the RLS School to a new owner. The latter then submitted to the New York State Education Department a new application for the approval of the RLS School under the legislation of July 13,1950.
The RLS School was approved under the legislation of July 13, 1950, by the New York State Education Department as of June 26,1952. This approval was based upon the application of the new owner, and after the latter had agreed to make certain changes in the curriculum.
The VA declined to pay the RLS School’s tuition claims for the period May 21-June 25, 1952, and such claims are asserted by the plaintiff in the present litigation.6
The plaintiff contends that the refusal of the VA to pay tuition claims for the period immediately following the action of the New York State Education Department in withdrawing the approval of the RLS School was improper in view of 38 CFR, 1949 ed., 21.418(d), as amended effective May 1, 1951 (16 F.R. 3800).
[324] That regulation prescribed the procedure that should be followed when a VA regional office was notified by a State approving agency that a school in which veterans were enrolled under Part VIII of Veterans’ [Regulation No. 1(a) had been removed from the list of approved schools. The regulation declared that if the removal action was based on the failure of the school to meet the criteria set out in the legislation of July 13, 1950, “the determination of the State approving agency will be final.” If, however, the removal action was based on some other ground, the regulation provided as follows:
Where there is evidence which indicates a definite intention and effort on the part of the institution or establishment to correct the inadequacies which necessitated revocation of its approval, and the evidence shows that the institution or establishment has the ability to correct such inadequacies within a reasonable length of time, the manager :[of the VA regional office], upon recommendation of the chief, vocational rehabilitation and education, will set a specific date, not to exceed 60 days from the date of revocation of approval, which date will become the effective date of disapproval unless re-approval is received in the regional office by the expiration date.
The only inadequacy on the part of the RLS School mentioned by the New York State Education Department in notifying the VA regional office that the approval of the school had been withdrawn was the failure of the school to submit an application for continued approval pursuant to the legislation of July 13, 1950. Such an inadequacy was easily correctable within a reasonable time, and all the available evidence was to the effect that as soon as the RLS School was notified of the disapproval, it displayed a definite intention and instituted a determined effort to correct the deficiency. In such a situation, it was clearly contemplated by the pertinent regulation that the school should be given a reasonable period of time, not to exceed 60 days, in which to correct the deficiency, before the withdrawal of approval became effective. The VA regional office did not comply with the regulation by fixing such a period of grace, but immediately notified the RLS School, and also the veterans who were attending the school, that no further payments would [325] be made to tbe school under Part VIII of Veterans’ Regulation No. 1(a).
The VA was not required, under the legislation of July 18, 1950, to provide by regulation for the granting to educational institutions of periods of grace within which to correct inadequacies before announced withdrawals of approval should become effective. In the absence of an administrative regulation such as that mentioned above, any withdrawal of approval by a State approving agency would have been effective immediately to disqualify the particular institution for further participation in the program under Part VIII of Veterans’ Regulation No. 1(a). Having provided by regulation for the fixing of a period of grace, however, the VA was required to adhere to the regulation so long as it remained in effect. Service v. Dulles, 354 U.S. 363, 388 (1957); Vitarelli v. Seaton, 359 U.S. 535, 539 (1959); Watson v. United States, 142 Ct. Cl. 749, 756 (1958).
It is difficult to understand why the RLS School delayed the submission of its application for continued approval under the legislation of July 13,1950, until it was notified of the State Education Department’s withdrawal of approval.7 In this connection, however, the RLS School was like other institutions that took advantage of a liberal administrative policy by waiting to correct inadequacies until notified that the approval of the State approving agency had been withdrawn, and then remedied the deficiencies during the period of grace allowed under the regulation discussed above. The wisdom or unwisdom of the lenient administrative policy exemplified by the regulation is not for this court to decide. It is sufficient to say that the RLS School could not properly be denied the benefit of the regulation so long as it remained in effect.
Since the VA did not follow its own regulation by fixing a period of grace within which the RLS School might correct [326] the inadequacy that led the State Education Department to withdraw its approval, and since the maximum period of 60 days provided for in the regulation did not expire prior to the reapprova! of the RLS School by the State Education Department, it must be concluded that the withdrawal of approval by the State Education Department never became effective under the pertinent regulation. Hence, the action of the VA in refusing to make any payments to the RLS School under Part VIII of Veterans’ Regulation No. 1(a) for the period between May 21 and June 25, 1952, was improper, in my opinion.
Gonolmion
It appears, upon applying the principles discussed in this opinion to the facts set out in the findings, that the plaintiff is entitled to a partial recovery on the claims set out in the petition, and that the defendant is entitled to a partial recovery on the counterclaim.
BINDINGS OB BACT
1. The plaintiff, Annette T. Rubinstein, is an educator. She holds the degree of doctor of philosophy from Columbia University, and she has had extensive experience as a teacher and as a school administrator.
2. In 1934, the plaintiff became the owner of the Robert Louis Stevenson School (which will usually be referred to hereafter in the findings as “the RLS School”), located in the city of New York, N.Y. At that time, the RLS School was a private day school, offering instruction from the 1st grade through the 12th grade. The school was organized into two divisions, an elementary school that included grades 1-6 and a secondary school that included grades 1 through 12.
3. (a) On September 18,1930, approximately 4 years prior to the acquisition of the RLS School by the plaintiff, the school had been admitted to the University of the State of New York by the Regents of that institution “as a secondary institution of high school grade.” The Regents of the University of the State of New York are the official State approving agency for public and private secondary schools in the State of New York. The action taken by the Regents [327] in 1930 with respect to the RLS School was, in effect, a registration or certification of the top four grades of the school as constituting an accredited high school. It was an approval of the curriculum offered by the RLS School for, and of the instruction given by the school in, the 9th, 10th, 11th, and 12th grades. The registration of the RLS School by the Regents of the University of the State of New York conferred certain privileges upon the school, such as giving Regents’ examinations to its pupils in grades 9-12, granting Regents’ diplomas to its graduates, and having its graduates admitted to certain colleges and universities without the necessity of their taking entrance examinations. The registration of the RLS School as an accredited day high school was continued after the acquisition of the school by the plaintiff in 1934.
(b) A high school course in the State of New York comprises a 4-year program of study which comes after the completion of the first eight school grades and which leads toward a high school diploma. The course of study is divided into four grades — the 9th, 10th, 11th, and 12th grades— and includes a sufficiently large number of subjects approved by the State Education Department, so that a student, by successfully taking and passing the subjects, can earn the minimum number of credits (16) required by the State Education Department for high school graduation, with the credits arranged in groupings to meet the further requirements of the State Education Department. The objective of a high school course is graduation from high school; and a student who is pursuing that objective by endeavoring to earn credits toward graduation is taking a high school course, even though he may never finally complete the course by graduating from high school.
(c) A 'high school curriculum in the State of New York may comprise an academic course designed for students who intend to go to college, a commercial course designed for students who intend to enter business or go to college, and a general course designed for students who do not have the intellectual capacity to take the academic course or the commercial course. The subjects constituting the general course are usually modified (i.e., less difficult) versions of subjects [328] in the academic course or the commercial course. However, a student receives credit toward high school graduation for successfully completing a subject in the general course, and he receives a general high school diploma upon completing the general course, just as a student receives an academic high school diploma upon completing the academic course or a commercial high school diploma upon completing the commercial course.
4. (a) After acquiring the ownership of the ELS School, the plaintiff operated it as a 12-year school until 1942 or 1943, when the six elementary grades were discontinued. Thereafter, the school continued to offer instruction in grades 7 through 12.
(b) The fact that the registration or accreditation of the ELS School covered only grades 9-12 did not affect the legal authority of the school to offer instruction in grades 7 and 8. The New York State Education Department was aware of such instruction and, by implication, approved it as providing a satisfactory foundation for entrance into high school.
5. Sometime in the early 1940’s, an evening summer school for adults was established 'by the ELS School.
6. (a) In order to provide educational benefits for veterans of World War II, the Congress legislatively expanded Veterans’ Eegulation No. 1(a)8 by adding to it (among other provisions) a new Part VIII. This part was added on June 22, 1944, by Section 400 (b) of Title II of the Servicemen’s Eeadjustment Act of 1944 (58 Stat. 284, 287-290).
(b) Part VIII of Veterans’ Eegulation No. 1(a) provided in pertinent part as follows during the period involved in the present litigation:
1. Any person who served in the active military or naval service on or after September 16, 1940, and prior to the termination of the present war, and who shall have been discharged or released therefrom under conditions other than dishonorable, and who either shall have served ninety days or more * * * or shall have been discharged or released from active service by reason of an actual service-incurred injury or disability, shall be [329] eligible for and entitled to receive education or training under this part: Provided, That such, course shall be initiated not later than four years after either the date of his discharge or the termination of the present war, whichever is the later: Provided further, That no such education or training shall be afforded beyond nine years after the termination of the present war.9
2. Any such eligible person shall be entitled to education or training at an approved educational or training institution for a period of one year plus the time such person was in the active service on or after September 16, 1940, and before the termination of the war,
* * * but in no event shall the total period of education or training exceed four years: Provided, That his work continues to be satisfactory throughout the period, according to the regularly prescribed standards and practices of the institution * * *.10
3. (a) Such person shall be eligible for and entitled to such course of education or training * * * as he may elect, and at any approved educational or training institution at which he chooses to enroll * * * which will accept or retain him as a student or trainee in any field or branch of knowledge which such institution finds him qualified to undertake or pursue: Provided, That, for reasons satisfactory to the Administrator [of Veterans’ Affairs], he may change a course of instruction * *11
* * * $ *
4. From time to time the Administrator shall secure from the appropriate agency of each State a list of the educational and training institutions * * * within such jurisdiction, which are qualified and equipped to furnish education or training * * *, which institutions * * * shall be deemed qualified and approved to furnish education or training to such persons as shall enroll under this part * * *.12
5. (a) The Administrator shall pay to the educational or training institution * * * for each person enrolled * * * the customary cost of tuition, and such laboratory, library, health, infirmary, and other similar fees as are customarily charged, and may pay for books, supplies, equipment, and other necessary expenses, * * * [330] as are generally required for the successful pursuit and completion of the course by other students in the institution: Provided, That in no event shall such payments, with respect to any person, exceed $500 for an ordinary school year * * *.13
*****
9. The Administrator of Veterans’ Affairs is authorized and empowered to administer this title * * *. Consistent with and subject to the provisions and limitations set forth in this title, the Administrator shall, from time to time, prescribe and promulgate such rules and regulations as may be necessary to carry out its purposes and provisions: Provided, That * * * no regulation or other purported construction of title II of the Servicemen’s Readjustment Act of 1914, as amended, shall be deemed consistent therewith which denies or is designed to deny to any eligible person, or limit any eligible person in, his right to select such course or courses as he may desire, during the full period of his entitlement or any remaining part thereof, in any approved educational or training institution or institutions * * *.14
* * * * *
11. (a) As used in this part, the term “educational or training institutions” shall include all public or private elementary, secondary, and other schools furnishing education for adults, business schools and colleges, scientific and technical institutions, colleges, * * * universities, and other educational institutions * * *.15
(c) With certain exceptions that are not pertinent to this litigation, approved educational and training institutions were not required to enter into formal written contracts with the Veterans Administration in order to participate in the program for the education and training of veterans under Part VIII of Veterans’ Regulation No. 1(a) during the period between June 22, 1944, and July 1, 1948. (For the [331] sake of convenience, the Veterans Administration, which administered Part VIII, will usually be referred to hereafter in the findings as “the VA.”)
7. (a) The VA prescribed the procedure that was to be followed under Part VIII of Veterans’ Regulation No. 1 (a), and such procedure is summarized in paragraph (b) of this finding, to the extent that it is pertinent to the present case.
(b) A veteran desiring to obtain the educational benefits provided for in Part VIII of Veterans’ Regulation No. 1(a) signed an application on a form prescribed by the VA and submitted the application, either in person or through the mail, to a field office of the VA. The application was reviewed by the VA field office; and if it appeared that the veteran was eligible for education or training under Part VIII, a certificate of eligibility and entitlement was executed by an official of the VA. This certificate indicated the length of time (in years, months, and days) that the veteran was entitled to receive education or training under Part VIII, and many certificates undertook to specify the course of study that the veteran could pursue. After the execution of this certificate, it was furnished to the veteran, who took it to the school or training establishment that he desired to attend. Upon admitting the veteran, the school or training establishment executed and forwarded to the VA a certificate with respect to the enrollment of the veteran. This certificate, which was on a form prescribed by the VA, stated (among other things) the date of the enrollment, the name of the course for which the veteran had been enrolled, the length of the course, and the estimated charges for the period of enrollment. At the bottom of the form on which the enrollment certificate was executed there appeared the following printed statement:
IMPORTANT. — This certification by the training institution or establishment becomes the basis for payment of all training benefits to, and in behalf of, this veteran. It is, therefore, imperative that the data contained herein be accurate in every respect and that the trainer notify the Veterans Administration promptly if this veteran interrupts, discontinues, or modifies the course of training described above in such a way as to affect the charges against his period of entitlement, subsistence allowance, or tuition.
[332] The school or training establishment thereafter submitted to the YA, at regular intervals during the veteran’s period of attendance, vouchers (on forms prescribed by the VA) for the veteran’s tuition and for the supplies furnished to him. Each voucher included the charges for a number of veterans, and indicated (among other things) the course of study that the veterans were pursuing. There was attached to the voucher a list showing the specific subjects that the several veterans were taking. The amounts sought in the vouchers were paid by the YA, to the extent that they were regarded as properly due.
8. Under the date of June 19,1946, the RLS School wrote a letter to an official of the YA in New York City, stating as follows:
The Robert Louis Stevenson School, exclusively a girls high school for forty years, announces the opening of its doors to ex-servicemen and women this fall. Recognizing the urgent need of training facilities for veterans, Stevenson has reorganized its curriculum to include a full-time afternoon and evening session. Arrangements have been made to accommodate 250 veterans for the fall term.
Fully accredited by the New York State Board of Regents, the school is offering an accelerated program of Regents and non-Regents subjects. Yeterans will be prepared for college entrance or occupations requiring a high school diploma.
Registrations are now being accepted.
9. The enrollment of veterans in the RLS School under Part YIII of Veterans’ Regulation No. 1(a) began in the fall of 1946.
10. In order that its regular program for the education of children might not be disrupted unduly by the admission of veterans, the RLS School established an evening school for adults only in the fall of 1946. Veterans who entered the RLS School in the fall of 1946 were admitted to the evening school. In the spring of 1947, however, the RLS School set up an adult section in the day school and admitted some veterans to the day school. At about the same time, the plaintiff decided to convert the day school gradually into a school for adults; and this program of con[333] version was thereafter carried out. The first step was to discontinue the giving of instruction in the 7th and 8th grades to children. Subsequently, the giving of instruction to children in other grades was discontinued on a gradual basis, until the entire ELS School, both the evening school and the day school, became an institution for the education of adults. The school continued, as before, to give instruction in grades 7 through 12. Its year was divided into a fall semester, a spring semester, and a summer term.
11. The vast majority of the adults who attended the ELS School during the period 1946-1952 were veterans receiving educational benefits under the provisions of Part VIII of Veterans’ Eegulation No. 1(a). It was the policy of the ELS School to accelerate the education of those veterans who were capable of absorbing the instruction effectively, so as to save, if possible, some of their entitlement under Part VIII for college or professional training. The school’s charges to the VA for tuition under Part VIII, however, were based upon the number of hours of instruction given to veterans, and not upon the number of credits earned by the veterans.
12. On January 16,1948, the Eegents of the University of the State of New York registered the evening school of the ELS School “as a High School maintaining an approved secondary program covering 9th-12th years * *
13. A regulation which was promulgated by the VA on May 17, 1948 (13 F.E. 2695, 2698) provided in part as follows:
(2) Effective July 1,1948, contracts [covering future payments to educational institutions for tuition, books, and supplies furnished to veterans under Part VIII of Veterans’ Eegulation No. 1(a)] will be required * * * where a majority of the enrollment of the institution consists of veterans in training * * * and where one of the following conditions prevails:
The institution has been established subsequent to June 22,1944.
* * * * .1!
In the negotiation of contracts as required in this subparagraph, it will be necessary for the school to submit cost data. Agreed contract rates will not exceed [334] rates determined by tbe Veterans’ Administration to be fair and reasonable * * *.16
14. As tbe day school of the RLS School was established prior to June 22, 1944, it was not subject to the provisions of the regulation quoted in finding 13. Accordingly, no written contracts for the training of veterans were ever entered into with the VA by the plaintiff on behalf of the day school. Tuition payments by the VA to the day school for the education of veterans under Part VIII of Veterans’ Regulation No. 1(a), throughout the period of time involved in the present case, were based upon the day school’s customary tuition charge. Through the early part of 1948, such customary tuition charge was $46.67 per subject per semester in the fall and spring semesters and $20 per subject in the summer term. Thereafter, it was $50 per subject per semester in the fall and spring semesters and $20 per subject in the summer term. In addition, the day school’s customary charges for supplies were assessed.
15. As the evening school of the RLS School was established subsequent to June 22, 1944, it was subject to the provisions of the regulation quoted in finding 13. A series of contracts was entered into with the VA by the plaintiff on behalf of the evening school, as follows:
Contract V3006V-542, covering the period September 1.1949-August 31,1950;
Contract V3006V-805, covering the period September 1.1950-August 31,1951; and
Contract V3006V-1162, covering the period September 1.1951-August 31,1952.
IS. (a) Contract V3006V-542, covering the period September 1, 1949-August 31, 1950, contained the following provisions (amongothers):
ARTICLE 1. INSTRUCTION
(a) The Contractor will provide instruction and the necessary boohs, supplies, and equipment therefor as set forth in paragraphs (c) and (d) below, during the period beginning September 1, 1950, and ending August 31, 1951, to such veterans described herein who may be [335] accepted or retained by the Contractor as students in such courses as the Contractor finds them qualified to undertake or pursue.
?}{ íJí # #
(c) The Contractor will provide such courses of instruction at the charges listed and described in Schedule I attached hereto, or as set forth in the catalogs, bulletins, or other publications or schedules which are submitted herewith and identified in Schedule I as a part of this Contract.
(d) The contractor will furnish outright to the veteran, as needed, such books, supplies, and equipment as are necessary for the satisfactory pursuit and completion of the courses as referred to in paragraph (c) above. * * #
(e) The Veterans Administration will eompensatethe Contractor for the books, supplies, and equipment provided in this Article as follows: Same as for other students at actual cost to the school * * *.
(b) Schedule 1 attached to contract V3006V-542 contained the following provisions:
SCHEDULE 1
Continuation of Article 1(c)
Courses as shown in the attached printed folder of Robert Louis Stevenson Evening School, time-stamped September 30, 1949, which is included in and made a part of this contract.
Regular Evening Course:
of Course — 41 weeks of 2 terms
One term, 20% weeks from 9-12-49 to 1-31-50
One term, 20% weeks from 2-1-50 to 6-23-50
(c) The printed folder of the RLS School referred to in Schedule 1 stated in part as follows:
Each Week shall consist of 25 hours of instruction of 5 hours per evening, Monday through Friday, 5:30 p.m. to 10:30 p.m.
Each term shall further consist of ninety (90) school days.
A. Course consists of a minimum of five subjects per term given in five sixty minute periods each evening, includ-one and one-half minutes for of class.
Tuition: $50.00 per subject per term — $500.00 per school year for a course of at least five subjects. In no event [336] may the tuition charges exceed $500.00 for any school year.
Summer Session:
Length of course — 7% weeks at 25 hours per week, 5 hours per evening, Monday through Friday from 5:40 p.m. to 11:00 p.m.
The school term shall consist of 35 school days in the Summer Session, from July 5, 1950 to August 25, 1950.
The course consists of 4 eighty minute periods per evening including five (5) minutes for change of class. Tuition: $20.00 per subject.
The school is in in continuous session except for all Federal and State legal holidays.
Late Begistration shall be permitted up to ten (10) school days without any reduction in the tuition charge.
CURRICULUM:
languages: English, French, Spanish, German. social sciences : Social Studies, The Economic World,
American and World History.
sciences: General Science, Biology, Chemistry, Earth Science, Physics, Health & Hygiene.
mathematics: General Mathematics, J.H.S. Mathematics, Elementary, Intermediate and Advanced Algebra, Plane and Solid Geometry, Trigonometry.
art : General, Basic, Drawing and Painting, Advanced Design, Comprehensive Art, Commercial Advertising, Costume Design and Illustration, Water Color, Oil Painting, Art History, Craft.
business : Introduction to Business, Bookkeeping, Business Arithmetic, Business Law, Business Management, Office Practice, Salesmanship, Shorthand, Typewriting, Secretarial Practice, Office Experience, Detailing.
Other Subjects as Bequired
DIPLOMA REQUIREMENTS
16 Units,Footnotes
153 Ct. Cl. 301 (Rubinstein v. United States) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.