dissenting.
I respectfully dissent from the majority opinion. Its intér-pretation of G.S. 116-15 as applying only to the physical conferral in this state of academic degrees emasculates that statute and seriously erodes the power of the Board of Governors in carrying out its statutory mandate to plan and develop a coordinated system of higher education in this state. The law created by the majority would allow any private organization which teaches in *171this state to avoid regulation and minimum standards of quality by simply stepping a few feet across the state line on graduation day and handing out diplomas to its North Carolina students. Such a result could not possibly have been the intent of our Legislature. In order to accomplish its statutorily expressed purposes,1 the Board must have the power to license all degree conferral programs offered within this state, regardless of where the graduation ceremony is held. I believe it does have that power.
I cannot argue with the majority’s statement that G.S. 116-15 expressly mentions only the regulation of degree conferrals; our disagreement lies in whether this statute implicitly authorizes the licensing or regulation of the programs which lead to degree conferrals. In my opinion, the power to regulate or license degree conferral programs is essential to the power to regulate degree conferral itself and is necessarily implied by the statute. My conclusion is based on two grounds: (1) the language of G.S. 116-15 itself and (2) the purpose and function of the Board of Governors.
(1) In pertinent part, G.S. 116-15 provides:
§ 116-15. Licensing of nonpublic educational institutions; regulation of degrees. — -(a) No nonpublic educational institution created or established in this State after December- 31, 1960, by any person, firm, organization, or corporation shall have power or authority to confer degrees upon any person except as provided in this section.
(b) The Board of Governors, under such standards as it shall establish, may issue its license to confer degrees in such form as it may prescribe to a nonpublic educational institution established in this State after December 31, 1960, by any person, firm, organization, or corporation; but no nonpublic educational institution established in the State subsequent to that date shall be empowered to confer degrees unless it has income sufficient to maintain an adequate faculty and equipment sufficient to provide adequate means of instruction in the arts and sciences, or in any other recognized field or fields of learning or knowledge.
*172(c) All nonpublic educational institutions licensed under this section shall file such information with the President as the Board of Governors may direct, and the said Board may evaluate any nonpublic educational institution applying for a license to confer degrees under this section. If any such nonpublic educational institution shall fail to maintain the required standards, the Board shall revoke its license to confer degrees, subject to a right of review of this decision in the manner provided in Chapter 150A of the General Statutes.
(Emphasis added.) From the emphasized portions of this statute it is obvious that the Legislature intended that licensure to confer degrees depend upon “income sufficient to maintain an adequate faculty and equipment sufficient to provide adequate means of instruction” in the fields of knowledge in which a degree is sought. This language clearly evinces a legislative concern over the quality of a program leading to the conferral of a degree. Hence, inherent in the authority to license private entities to confer degrees is the power to license the programs leading to those degrees. To separate the physical act of bestowing a diploma from the program which leads to the degree is to exalt form above substance. The concern of the Legislature that degree programs be sufficiently funded and equipped to provide adequate means of instruction shows that it considered the degree conferral program to be an inherent and inseparable part of the ability and authority to confer degrees.
(2) The purpose of the Board of Governors is to plan and develop a coordinated system of higher education in North Carolina. G.S. § 116-11(1) (Supp. 1981). To this end it is authorized to license private institutions to confer degrees. If the licensing requirement can be met by side-stepping the statute, literally, then the Board of Governors has few means available to accomplish its purposes.
If this loophole exists in G.S. 116-15, all institutions now subject to the licensing requirement and the minimum standards and regulations attendant to it may escape the coverage of the statute by holding their graduation ceremonies just across the state line. It will not matter that their students are North Carolina citizens who are solicited and taught in this state and that their graduates will remain in North Carolina to use their degrees. In truth, these *173students will have acquired their knowledge through programs conducted in this state, and those programs, good or bad, will be part of the system of higher education in this state. Under the majority’s decision, these institutions will be immune from any licensing requirement and cannot be part of the plan for a coordinated system of higher education. Such an exception, grounded on the geographical location of the graduation ceremony, cannot have been within the legislative intent. Both the language of the licensing statute indicating a concern with the adequate funding and facilities and the statutorily stated purpose of the Board of Governors evince a clear legislative intent that the “power or authority to confer degrees” implicitly includes the power or authority to offer degree conferral curricula within this state. Because the former is expressly required to be licensed, then the latter must also be licensed.
Although the majority makes much of the canon of statutory construction that “ ‘[w]here one of two reasonable constructions will raise a serious constitutional question, the construction which avoids this question shall be adopted,’ ” (quoting In re Arthur, 291 N.C. 640, 642, 231 S.E. 2d 614, 616 (1977)), I find it unpersuasive. The intent of the Legislature is the polar star which guides the courts in determining the meaning of a statutory provision. Underwood v. Howland, 274 N.C. 473, 164 S.E. 2d 2 (1968). In ascertaining the legislative intent a court should consider the language of the statute, the spirit of the act and what the act seeks to accomplish. Stevenson v. City of Durham, 281 N.C. 300, 303, 188 S.E. 2d 281, 283 (1972). As stated above, the language, purpose and spirit of the statutory scheme in question, in my opinion, clearly indicate a legislative intent to require that programs leading to degree conferral, and not just the handing out of a diploma, be licensed by the Board of Governors. That this construction of the statute raises numerous constitutional questions is of no consequence: if such is found to be the legislative intent, this Court “[is] not at liberty to give to a statute a construction at variance with [the legislative] intent, even though such construction appears ... to make the statute more desirable and to free it from constitutional difficulties.” State v. Fulcher, 294 N.C. 503, 520, 243 S.E. 2d 338, 350 (1978).
The majority’s adoption of a literal construction of G.S. 116-15 is premised on the assumption that the interpretations *174proffered by Nova and by the Board of Governors are both reasonable. I submit that the interpretation adopted by the majority is not reasonable and renders the statutory scheme devoid of rhyme or reason.
The majority makes much of the distinction between teaching and the conferral of degrees. According to the majority, Nova merely teaches within North Carolina. Because teaching is a right protected by the first amendment, it cannot be regulated. G.S. 116-15 does not purport to regulate mere teaching. Thus, the majority concludes, because Nova’s activities in this state are confined to teaching, those activities cannot be regulated:
[B]y whatever name it is called, all that Nova does in North Carolina is teach. To say that it is conducting a “degree program” which is somehow different from or more than mere teaching, as the Board would have it, is nothing more than the Board’s euphemization. Teaching is teaching and learning is learning notwithstanding what reward might follow either process. The Board’s argument that the power to license teaching is necessarily implied from the power to license degree conferrals simply fails to appreciate the large difference, in terms of the state’s power to regulate, between the two kinds of activities.
I must confess that I also fail to appreciate the “large difference, in terms of the state’s power to regulate, between [teaching and degree conferral].” Assuming, as does the majority, that the Board constitutionally may license degree conferral by private institutions within this state, I am at a loss to understand how the licensing of degree conferrals differs, in practical terms, from the licensing of the program. In considering whether to grant a private institution a license to confer degrees, the Board considers such factors as years in operation, safety and health standards, maintenance of records, financial soundness, reputation of officers and staff, admissions policies, adequacy of facilities for classes and study, adequacy of faculty, and academic quality of the programs offered. Appellant’s Brief, at 11-12. Most of these factors deal with adequacy of educational resources and the degree to which the school’s environment is conducive to learn*175ing, not with what is taught or how it is taught.2 To the degree that these factors concern the teaching or learning in the case of an institution which confers degrees in North Carolina, they regulate, to the same extent and no more, the teaching of degree conferral programs designed to lead to conferral of degrees outside the state. In asserting that Nova is subject to the licensing requirement contained in G.S. 116-15, the Board is attempting to assert exactly the same authority it does over institutions operating wholly within this state.
That the Board attempts to evaluate only the ability to teach or opportunity for and sufficiency of learning and not what is taught is reflected in its evaluation of Nova. Nova was found to have satisfied the following criteria:
(1) It was properly chartered and had been in operation for at least two years;
(2) Its safety and health standards were adequate;
(3) Its record-keeping system was adequate;
(4) It was financially sound;
(5) Its officers and staff had good reputation and character;
(6) Its admissions policies were nondiscriminatory.
Deficiencies were found, however, in the requirements of adequate facilities and adequate faculty. Nova was found to have no formal arrangements for facilities in which to hold classes or for access for its students to library facilities. One cluster group was holding its meetings in a motel. The lack of specific arrangments for meeting and library space did not ensure continuity of the program nor did it provide an academic setting conducive to the in-depth study and research required for graduate degrees. Deficiencies were also noted in specific degree programs. These deficiencies concerned mainly the inadequacy of testing, little opportunity for in-depth study, insufficient amount of material, and little opportunity to interact with faculty.
*176I wish to make it clear that I agree that Nova is free to teach anything it wants to teach without a license from the Board of Governors. However, the factor which makes Nova subject to the licensing requirement is that it does not merely teach; the programs it offers in this state are advertised and do indeed lead to conferral of a degree. It is not the fact of teaching that makes Nova subject to licensure, it is the offering of a degree program, the promise of a degree.
I freely admit that the construction urged by the Board and which I find persuasive is not free from constitutional difficulties. Those presented to us are infringement on freedom of speech, violation of the commerce clause, equal protection and invalid delegation of legislative authority. I do not purport by this dissent to deal with those issues. My purpose in writing this dissent is to state what I believe to be the clear legislative intent and to emphasize that this Court should not shirk its responsibility to interpret statutes according to the legislative intent even when complex constitutional issues loom on the horizon. I leave for another day and another majority, one in which I will gladly participate, the task of determining whether the mandatory licensing of degree conferral programs by a legislatively created administrative agency is constitutionally permissible. For now, it is enough to say that I believe our statutory scheme passes constitutional muster.
I also leave untouched the question of whether Nova’s exclusive remedy is under the APA or whether it may initiate a separate action under the Declaratory Judgment Act and, thus, obtain discovery. I do, however, wish to make this observation: questions of law or assignments of error which, because of their nature, can be adequately handled by a reviewing court on the basis of the record of the proceedings before the administrative agency ought to be reviewable solely under the APA; claims which, by their nature, cannot be substantiated or challenged on the basis of the “cold record” ought not to be ignored merely because the APA does not provide for discovery. These latter claims, I believe, fall outside the intended coverage of the APA and may be brought under the Declaratory Judgment Act.
In conclusion, I cannot accept the majority’s construction of the application of G.S. 116-15 to be dependent upon the location of *177the graduation ceremony and not on the location of the teaching which forms the basis for the degree. Such a construction places form above substance, contravenes the clear legislative intent, and creates a gaping loophole in the statutory scheme for a coordinated system of higher education in this state.
Justice COPELAND joins in this dissent.. See G.S. § 116-11 (Supp. 1981).
. In its evaluation of Nova, the investigative team did find inadequacies in the amount of material covered. This, however, does not regulate what is taught, but sets minimim standards of coverage for degree recognition.