In the Matter of the Petition by UNIVERSITY OF OREGON Office of Publications, Susan Campbell Hall, Eugene, Oregon 97403 Proposed Annulment of Second-Class Mail Privileges for "UNIVERSITY OF OREGON BULLETIN" P.S. Docket No. 3/110 May 6, 1975 William A. Duvall Chief Administrative Law Judge Edward Branchfield, Esq., Assistant Attorney General and Chief Counsel to Department of Higher Education, Department of Justice, Eugene, Oregon, for Petitioner Arpad de Kovacsy, Esq ., Law Department, U.S. Postal Service, Washington, D.C., for Respondent Before: William A. Duvall, Chief Administrative Law Judge
This is a proceeding initiated by the University of Oregon, Petitioner, pursuant to 39 C.F.R., Part 954, to contest the ruling of Respondent, represented by the Manager of the mail Classification Division, Finance Department, U.S. Postal Service, which on or about October 2, 1974, annulled, subject to the outcome of this proceeding, Petitioner's second-class mail privileges in respect to the University of Oregon Bulletin, hereinafter referred to as the "Bulletin" or the "publication."
Petitioner on or about November 1, 1974, filed its petition in this proceeding. A hearing was held April 10, 1975, at which both parties submitted evidence and arguments.
Petitioner is a state university of the State of Oregon. It is an institution of higher education and one of the constituent institutions of the State Department of Higher Education. Petitioner is supported in substantial part by taxes.
Petitioner came into existence in 1876, first under a Board of Regents and then as an institution in the Department of Higher Education which was created in 1929. Fall term enrollment at the University was about 16,000 students.
Petitioner has enjoyed second-class mail privileges for its Bulletin since it was first published in 1904. The Bulletin's stated frequency is quarterly. The Bulletin has been basically the general University of Oregon Catalog, the University of Oregon Summer Catalog, the University of Oregon Law School Catalog, and the University of Oregon Medical School Catalog.
The University of Oregon Medical School has now been separated from the University of Oregon and has become a part of the University of Oregon Health Sciences Center, a separate Institution within the Department of Higher Education. It is not certain that the University of Oregon will continue to publish the Medical School Catalog as part of its bulletin series.
Publication plans for the 1975 Bulleting include the University of Oregon Catalog Bulletin, the Summer Catalog Bulletin, the University of Oregon Law School Catalog Bulletin, and an orientation bulletin, the exact nature of which has not as yet been determined by appropriate university officials.
Petitioner printed in 1974 25,000 copies of the University of Oregon Catalog and 20,000 of the Summer School Catalog. It published 2,000 copies of the University of Oregon Law School Catalog and 4,200 copies of the University of Oregon Medical School Catalog.
On the average, Petitioner mails about 16,500 copies of the University of Oregon Catalog Bulletin, 9650 copies of the Summer School Catalog, 1,300 copies of the Law School Catalog, and 3,200 of the Medical School Catalog. The balance is used at the University or sold or otherwise distributed to students attending or contemplating attending the University. Issues are regularly mailed to a list of addressees, including many other colleges, universities, and public agencies. Other copies are mailed to those who ask for them, such as prospective students, employers, or high school counsellors.
At the outset of the hearing, it was agreed that the Bulletin of the University of Oregon is a worthwhile publication; that, for appropriate individuals, it is a necessary publication; and that it does contain information of a public character.
It was further agreed that the issue in this proceeding does not involve the foregoing matters but that it may be simply stated as follows: Is the University of Oregon Bulletin a "periodical publication" within the meaning of Sections 4351 and 4354 of Title 39, United States Code, as those provisions of law have been adopted and implemented in the regulations of the Postal Service relating to second-class mail entry.
The method followed in the Postal Service of determining whether a publication is entitled to obtain or retain second-class mail entry is to examine the particular publication in question and measure that publication by the laws and regulations to which reference has just been made, and also by certain decisions of the courts and of the Postal Service, itself, in administering the postal laws.
The leading case on the subject of what is or is not a periodical publication, and it has long been recognized and regarded as such by the Postal Service, is found in Houghton v. Payne , 194 U.S. 88. This is a 1904 decision by the Supreme Court in which the Court held that a periodical, as ordinarily understood, is a publication appearing at stated intervals, each number of which contains a variety of original articles by different authors, is incomplete in itself, indicates a relation with prior or subsequent numbers of the same series, and discloses a connection between different numbers of the series in the nature of the articles appearing in them.
It now becomes necessary to examine the publication in question in this proceeding in the light of that definition.
The first such publication to be examined is the "University of Oregon 1974-'75 General Bulletin." This is a large publication in terms of its physical size and it appears to be roughly 9 inches by 12 inches in dimension. It contains 375 pages, not including the outside covers and some unnumbered pages at the front and back of the publication.
This publication is divided into four general departments which have been entitled "General Information," "Institutes & Centers," "Graduate Studies," and "Courses of Instruction."
The Department entitled "General Information" is very much what the title suggests. It contains statements concerning the history of the institution, the community in which it is located and the administration and student services that are available, the museums and libraries, admission requirements in terms of scholastic achievement and financial requirements, academic requirements, fees, scholarships and fellowships.
The second department in this publication, namely, "Institutes & Centers," discusses such matters as the Institute of Industrial and Labor Relations, the Institute of Marine Biology, the Institute of Molecular Biology, the Institute of Theoretical Science, the Division of Broadcast Services and Televised Instruction, the Computing Center, the E. C. Brown Center for Family Studies, the Environmental Studies Center, the Oregon Center for Gerontology, the Center for Volcanology, and the Bureau of Governmental Research and Service.
The third department is devoted to "Graduate Studies" and in it are discussed, in general terms, the Graduate School, the Graduate Council, General Regulations, Degree Requirements for Master of Arts and Master of Science degrees, the Inter-disciplinary Mater Programs, the Doctor of Philosophy, the Doctor of Education, the Doctor of Musical Arts, Fellowships, Graduate Work in Portland, and an Outline of Procedure Leading to Doctoral Degrees.
These three subdivisions of the publication, not counting a number of full-page illustrations, consume 63 pages. The do contain the work product of some person or persons who has or have written on the various subjects discussed under appropriate titles and subtitles.
The remainder of the book, for the most part, specifically pages 65 to 365, is devoted to the topic of courses of instruction and the courses of instruction are outlined under these subtitles: College of Liberals Arts, Honors College, Independent Study, Interdepartmental Studies and Special Programs, African Studies, Prehealth Sciences, Liberal Arts Departments, Professional Studies, ROTC, Professional Studies in Portland.
The last category, namely, Professional Schools on the Portland Campus, is covered in a two-page presentation on pages 366 and 367.
From pages 337 to 347, the topic of discussion is the School of Law. But the remainder of this portion of the publication is devoted entirely to matters related to the undergraduate schools of the University of Oregon and, while there may be small portions under the various subjects that could be considered articles in the sense that they are written material which conveys a message related to the particular topic, the bulk of this portion of the publication conforms pretty closely to the caption for this department of the publication, namely, their descriptions of the various courses offered by the University of Oregon in the graduate and undergraduate departments.
That is a general, but sufficient, description of the general bulletin for the year 1974-'75.
Attention will now be directed to the University of Oregon Summer Session Bulletins, and there were available at this hearing and made exhibits one copy each of the 1974 and 1975 Summer Session Bulletin.
I will describe the contents of the 1974 bulletin and point out the similarities and the differences in the same as they occur in the 1975 bulletin.
In the beginning, of course, there is a table of contents and a calendar for the appropriate year. This information is repeated with changes in the calendar and changes in the contents, to bring it up to date, but it appears at the same place in the publication and it consumes the same amount of space.
The next title in this bulletin is under the category of "General Information." Here, there is a statement of the history of the institution. This statement appears to be identical in the 1975 Summer Bulletin, except that there may be some change of dates but the appearance is that it is identical.
There is, next, a subheading "Summer of 1974" in the '74 bulletin. In the summer bulletin for 1975, again this information appears to be repeated verbatim except for changes in the dates, and there is more information stated at this place on the subject of "Equal Opportunity," "Policy," "The University Library," the "Museum of Art," the "Museum of Natural History," "The Union," the "Student Health Center," and the "Office of Academic Advising."
The next subject discussed is the portion devoted to undergraduate studies. In comparing the two issues, it appears that the information appearing under this subject is identical or very similar, except as to dates.
The next subject is "Graduate Studies." This information, too, appears to be substantially the same in the issues for 1974 and 1975, except that there are some changes in the paragraphs relating to residence and grade requirements in the more recent issue.
The next subcaption is "Graduate Program for Teachers." This appears to be identical, or substantially the same, in both issues.
The next subject is entitled "Administrative Certificates." Some of this is repeated, but new material has been added under the categories of "Personnel Service Certificate," "counselor's PRogram," and "School Psychologist's Program." There is another category entitled "Supervisor's Program." Under this it appears the captions are the same, but there are some new textual materials.
Another topic discussed is called "Student Services" in the 1974 publication, which appears to be a new chapter heading in the '75 publication, and then there is a subcaption entitled "Student Personnel Services" in the '74 publication which appears as a subdivision under "General Information" in the 1975 publication. Here, again, the captions appear to be the same and some of the material has been repeated, but some of the material is new. In the 1974 edition the "Student Personnel Services" subtitle contains information regarding the library, the health center, the museum of art and the museum of natural history and the other topics which were contained in the 1975 issue of the same publication under the heading "General Information."
The next chapter in each publication is entitled, "Student Administrative Services." Here, again, the material seems to be substantially the same, except that some dates and some figures have been changed.
This is followed by a section devoted to "Living Accommodations" and these sections are substantially the same in each publication.
In each of these publications the material that has been discussed so far is covered in the first 17 pages.
The next chapter heading in each publication is entitled "Course of Instruction." In the 1974 Summer Session Bulletin 61 pages are devoted to the course descriptions, whereas in the 1975 Summer Section Bulletin 53 pages are devoted to the description of the courses of instruction. These are what the name suggests. They are more or less thumbnail descriptions of the courses available in the different colleges. They indicate the precise name of the course and its short name by which it may be referred to, the number of hours of credit, the dates during which it is to be offered, the name of the instructor, the days of the week on which the classes meet, and the hours of the class.
Each book concludes with statements in regard to the Offices of Administration of the University; a short description of the Oregon State System of Higher Education; a list of the members of the State Board of Higher Education; and a list of the officers of that Board. This information is the same in both publications except perhaps where a person's name has been dropped from a list and his successor's name has been added.
This listing is followed in each publication by a section entitled "Summer in Oregon." This is a two- or three- or more page section devoted to a description of the artistic, cultural, and outdoor advantages and beauties one finds when living in Oregon in the summertime.
The last item in the book consists of a "Registration Request" form which may be sent in by persons who wish to register at the University.
The next issue of the publication to be considered is the School of Law, University of Oregon, the catalog for 1974 and '75. This publication begins, of course, with a statement of contents and the calendar for this 1974-'75 scholastic year. Then, there is a history and the first four paragraphs in this history appear to be identical with the history stated in the catalog for the summer session of 1975, except that a new paragraph is added which is related to the addition of various buildings and also the environment of the Law School of the University.
The next item discussed is the School of Law and here the history of that school is given. This history is followed by the following departments: "Degrees and Curriculum," "Programs and Activities," "Admission," "Costs and Financial Aid," "Scholarships," "Living Accommodations." All of these are related specifically to the Law School and bear no relation to anything else appearing in any of the other bulletins except that the portion on living accommodations appears to be the same as is presented in the 1974-'75 General Bulletin, omitting the paragraphs with regard to vacations, kitchen jobs, sorority and fraternity rushes, and the like.
The "Student Health Center" materials are identical or very similar to the material on this subject appearing in the General Bulletin.
A discussion of the courses of instruction follows and this feature consumes nine pages.
Next, the faculty is listed and the Officers of Administration are listed, and they have to be the same as appearing in the other bulletins. Then, the Oregon State System of Higher Education, the Oregon State Board of Higher Education, the Chancellor, who relates only to the Law School, and the officers of the Law School, who relate only to the Law School.
The final publication is the University of Oregon Catalog, the University of Oregon Medical School, Portland, 1974-'75, a publication which bears in the lower right-hand column, "Oregon State System of Higher Education."
This publication, after the table of contents, begins with a statement on the subject of "Education with a Purpose." This statement relates exclusively to the Medical School.
There is next a general statement on the "Oregon State System of Higher Education." Then, there is a listing of the members of the State Board of Higher Education; a listing of the officers of the Oregon State System of Higher Education; a listing of the Officers of Administration of the University of Oregon Medical School; and a listing of medical and graduate students.
Beginning on page 9 is a portion of the publication which is entitled "General Information for Students." Under this subject there are discussed the following matters: the history of the institution, physical facilities, accreditation, administration, instruction, research, library, the Alumni Association, student organizations, social activities and athletics, housing, health services, fees and expenses. There are various financial information and statements concerning school regulations, curriculum and course descriptions.
As would be expected, the bulk of this publication is devoted to the descriptions of the various courses offered in the School of Medicine.
This portion of the publication is followed by a listing of the Medical School faculty and information about the enrollment and degrees conferred at different times by the University, particularly in 1974.
From the description of the various publications that have been described, it is obvious that each of these publications, with a few very minor exceptions, which have been pointed out, is devoted to its own particular field. It is designed to appeal to a specific and separate audience from every other of the publications, and it is designed to serve a separate need and an individual need.
If reference is made to the Houghton definition, which was paraphrased earlier in this decision, there are certain other matters that are striking.
One is that there does not seem to be a certain time when this publication, or these publications, will be mailed. There appears to be no definite schedule that a certain one of these four publications will be prepared and presented for mailing at a certain date each year. In this respect, these publications fail to measure up to the requirement of the Houghton definition.
Conceding that some of the material appearing in the various issues may be regarded, if one is very generous, as original articles by different authors, certainly that is not the dominant characteristic of any one of these publications. The dominant characteristic has been plainly indicated as being one of naming a course of instruction that is available in a particular discipline, describing that course and telling when it is available and who is to teach it, what days it is to be given, and what hours of those days the class meets. That is certainly the dominant characteristic of these publications, and properly so. That is the purpose that it is designed to serve and that is the purpose it should serve.
According to the guidelines under which the Postal Service operates, that type of material simply does not fit within the confines of the requirements of second-class mail eligibility. Each of these publications could be published and it could stand alone. The fact of the matter is, that must be the way that the publication is effective, because for the most part there is not even any reference in the Law School Bulletin to the Medical School Bulletin or vice versa. So, as far as a person reading the Law School Bulletin is concerned, he may not know of the existence of, and certainly would not be called upon to care whether, the Medical School Bulletin exists.
The point is that these are so separate in nature and characteristic that it is hard to conceive of their being a part of the same system of publication because the subject matter is so entirely different. As a matter of fact, that feature was alluded to in Houghton v. Payne , supra . At one point the Court said on this subject:
"If, for instance, one number were devoted to law, another to medicine, another to religion, another to music, another to painting, etc., the publication could not be considered as a periodical as there is no connection between the subjects and no literary continuity."
That statement certainly is applicable in this case. There is no continuity between these publications and each one of them is complete within itself.
For all of these reasons, I find that, as a matter of law, the University of Oregon Bulletin is not a periodical publication within the meaning of Sections 4351 and 4354 of Title 39 of the United States Code and within the meaning of the related postal regulations governing the eligibility for second-class mail entry.
I conclude also that the proposed revocation of those privileges previously in effect for the University of Oregon Bulletin was correct and is sustained.
Counsel for the parties submitted proposed findings of fact and conclusions of law. To the extent indicated in this decision, those proposed findings and conclusions are adopted. Otherwise, those proposed findings and conclusions are rejected for the reasons stated herein or because they are unsupported by or contrary to the evidence in this proceeding.
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