Amicus Curiae Brief — Avins v. Virginia Council of Higher Education

wor i“

; geet NO. 88-1204

IN THE

Supreme Court OF The United States

OCTOBER TERM, 1988

ALFRED AVINS & NORTHERN VIRGINIA LAW SCHOOL, INC.,

Petitioners,

V.

VIRGINIA COUNCIL OF HIGHER EDUCATION, ET AL.,

Respondents,

and J

STANLEY E. HARRISON, ET AL..,

Respondents.

On Petition for Writ of Certiorari

from the Supreme Court of Virginia

BRIEF OF THE COALITION FOR RELIGIOUS

FREEDOM AS AMICUS CURIAE

IN SUPPORT OF PETITIONERS

Daniel C. Holdgreiwe* Joseph E. Broadus

Coalition for Religious George Mason University

Freedom School of Law

515 Wythe Street, Suite 201 3401 N. Fairfax Drive

Alexandria, VA 22314 Arlington, VA 22201

(703) 684-9010 (703) 841-2625

*Counsel of Record

Attorneys for Amicus Curiae

TABLE OF CONTENTS

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MOTION FOR LEAVE TO FILE

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SUMMARY OF ARGUMENT. .............. ccc eeeeeeeees 2

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ARGUMENTS FOR GRANTING THE WRIT........... 4

I.

II.

Ill.

IV.

THE TRIAL COURT ERRED IN DISMISSING THE SECTION

1983 ACTION AS IMPROPERLY BASED ON A THEORY OF

RESPONDEAT SUPERIOR, WHERE PERSONAL INVOLVE-

MENT OF THE STATE OFFICER WAS ALLEGED........... 6

THE TRIAL COURT ERRED IN DETERMINING THAT ONLY

THE INDIVIDUAL COUNCIL MEMBERS AND NOT THE

COUNCIL WERE PROPER DEFENDANTS iN A SECTION

RPNEP EN PUNE fib actsks 5 wana aghbn Godse dies tabi eddseededpaness 7

THE TRIAL COURT ERRED IN FAILING TO PERMIT THE

PLAINTIFF TO AMEND HIS PETITION TO INCLUDE

COUNCIL MEMBERS IN THEIR INDIVIDUAL CAPACITIES

THE TRIAL COURT ERRED IN FAILING TO CONSIDER

CHARGES OF CONTENT-BASED REGULATION OF SPEECH

IN DISMISSING FIRST AMENDMENT CLAIMS RELATED TO

Be | RT INT PPT TTA Ty PEC OC OT TET ELIT TT OCTET 9

CRIPPLE SALADS aN ced idaccdssciavanhieswhisteesecekvisundes 9

TABLE OF AUTHORITIES

Cases

Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683,

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Gomez v. Toledo, 446 U.S. 635, 100 S.Ct. 1920,

G6 1, FOR Bee Bie Casa va cnnticdcncdsicesiancéass 8

Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347,

Pe Re ie Te CTD i vvnkcccdddecdieinaduaiaatebaccsns 7

Dice v. Akron, Canton & Youngstown RR.,

342 U.S. 359, 72 S.Ct. 312, 96 L.Ed. 2d 398 ica

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RARE LES OS ES 8

Kelson v. City of Springfield, 767 F.2d 651 (9th Cir.

ER RELIES 8

Vinnedge v. Gibbs, 550 F.2d 926 (4th Cir. 1977) ...... 6

Avins, et al v. Virginia Council of Higher Education, et al,

Chancery No. 18065 (Ltr. decision, dated 2/26/ 1988)

den cedn's cobknd bedabenseastbekeivhaass nda passim

Ramah Navajo School Board v. Bureau of Revenue,

T2O P.26 1243S CAB, ABB. Ti ecccccssssssscscse: 7

Woodbridge v. Worcester State Hospital, 384 Mass. 38,

ED PR Dials Pete 8 ac ee cek concn aatagaensoasncs 7

Shelton College v. State Board of Education,

226 A.24 612 (New Jersey, 1967)...........0000.00 9

Gumbhir v.Kansas State Board of Pharmacy,

231 Kan. 507, 646 P.2d 1078 (1982) ................ 7

Statutes and Rules

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UOTONR SOWIE TEBE A vccnscinscscsivantonieasenn 3, 10

IN THE

Supreme Court Of The United States

OCTOBER TERM, 1988

NO. 88-1204

ALFRED AVINS & NORTHERN VIRGINIA LAW SCHOOL, INC.,

Petitioners,

Vv.

VIRGINIA COUNCIL OF HIGHER EDUCATION, et al.,

Respandents,

and

STANLEY E. HARRISON, et al..,

Respondents.

On Petition for Writ of Certiorari

from the Supreme Court of Virginia

BRIEF OF THE COALITION FOR RELIGIOUS

FREEDOM AS AMICUS CURIAE

IN SUPPORT OF PETITIONERS

MOTION FOR LEAVE TO FILE

BRIEF AMICUS CURIAE

The Coalition for Religious Freedom petitions the Court

seeking leave to file a brief amicus curiae in support of the

petition for writ of certiorari filed by Avins, et. al., in their

dispute with the Virginia Council of Higher Education, now

pending before this honorable Court.

The state parties, through their legal representative, the

office of the attorney general of Virginia, has refused to

consent to the Coalition’s request to file a brief amicus curiae

in this matter. Unfortunately, the state views the matter as a

stmple one of merely local interest.

For proponent amicus, however, the case presents issues

of far reaching consequence both on the substantive issues of

free speech and on statutory concerns related to the

effectiveness of Section 1983.

Without fully setting out the arguments for granting the

writ, proponent amicus asserts the issues at the heart of this

litigation to be content-based regulation of speech and the

proper scope of Section 1983 remedies: matters that were

treated superficially below and deserve this Court’s attention.

Because the parties have failed to provide an analysis

which will sharpen the Court’s focus on these issues, the

Coalition hopes to aid the Court in this matter.

INTEREST OF AMICUS

Proponent Amicus Coalition for Religious Freedom is a

non-profit, tax-exempt corporation first organized in the

District of Columbia on June 12, 1984 under the name

Committee for Religious Freedom. The Coalition is engaged

in efforts to inform the public about the importance of religious

freedom and to highlight instances of intrusion upen religious

liberties. Its informational programs include publications,

documentary films, educational conferences and a monthly

newspaper, "The Religious Freedom Alert." The Coalition is

supported by contributions from the public, from businesses

and other non-profit organizations

In addition to its general informational activities, the

Coalition assists in the education of local communities and

government officials on constitutional guarantees of religious

liberty in situations where a specific breach of First

Amendment liberties has been alleged. In numerous cases, the

Coalition has assisted parties engaged in disputes over

licensing of church ministries by providing an objective

constitutional framework for understanding and analyzing the

legitimate interests of the church and the state.

SUMMARY OF ARGUMENT

The petition for certiorari should be granted because it

presents major public questions related to free speech:

identifying the Constitutional limitations of coercive state

power to regulate speech on the basis of content. Further, the

case requires a determination of the proper remedial scope of

Section 1983, and requires that this Court vindicate Erie

principles by insuring that substantive law equality between

parties who bring 1983 actions in state and federal courts be

maintained.

This matter is appropriate for review under the writ

because the state court decided a federal question in a way that

conflicts with both the holding of other state courts and the

federal court of appeals. See Rule 17(b). Further, the holding

below presents important questions of federal law which either

have been settled or should be settled by this Court. Rule

17(c).

The trial court erred in dismissing the Section 1983 action

as improperly based on a theory of respondeat superior, where

personal involvement of the state officer was alleged. The

decision is counter to the relevant holding of the U.S. Court of

Appeals for the Fourth Circuit.

The ‘rial court erred in determining that only the individual

council members, and not the corporate body, were proper

defendants in a Section 1983 action. Where the plaintiff sought

only injunctive relief, the holdings of this Court find no

Eleventh Amendment ban.

The refusal to permit the plaintiff below to amend his

complaint to reach the state officers in their individual capacity

violated established federal procedure for Section 1983.

Because this is outcome determinative it violates Erie

principles by failing to assure the litigant in state court the

same substantive federal rights as.one in federal court.

The trial court erred in failing to consider charges of

content-based regulation of speech in dismissing First

Amendment claims related to license renewal.

Consistent with Rule 17, the court should issue the writ

and review these important questions.

STATEMENT OF THE CASE

In April 1982, the Northern Virginia Law School was

granted approval by the Virginia Council of Higher Education

(Council) to confer the degree of Juris Doctor, and was

obligated to seek accreditation from the American Bar

Association or other approved accrediting body. Avins, et al v.

Virginia Council of Higher Education, et al, Chancery No.

18065 (Ltr. decision, dated 2/26/1988, p. 4). The school was

authorized to enroll students in 1980, and a 1982 inspection

visit by the Council’s staff resulted in a favorable report.

In 1986, the school attempted to organize a summer

program in “conservative law” but was unable to secure

enrollment due to insufficient interest. Students from other

schools could not transfer credit from Northern Virginia Law

School because it was not accredited by the American Bar

Association. In the following year, in an effort to overcome

the enrollment problem, the school petitioned the Council to

permit students from accredited law schools in the state to

attend the summer program in violation of the A.B.A. rule

only permitting credit for work completed at other A.B.A.

accredited institutions.

In response the state not only prohibited the school from

teaching the conservative law class to students of other law

schools but to its own students as well. The state Attorney

General’s office, writing in behalf of the Council, threatened

criminal prosecution if the class were taught in summer. The

Board of Directors voted not to offer the class.

Charging both state statutory and federal constitutional law

violations, the school sought relief in a state court action. The

school’s multi-count complaint was dismissed in separate letter

opinions by the Circuit Court of Alexandria, Virginia dated

February 26, 1988 and July 14, 1988 by Judge Alfred D.

Swersky.

In addition to state law claims, the plaintiff had alleged that

first the denial of permission to teach the class, and later

revocation of the school’s certificate were motivated by

improper political considerations and constituted impermissible

content-based regulation of speech.

An appeal to the Virginia Supreme Court proved fruitless,

and action was taken to gain review by this honorable court.

ARGUMENTS FOR GRANTING THE WRIT

The episode under review in this lawsuit, a charge that a

State agency acted out of political bias in suppressing speech,

is a most serious one. The prospect becomes even more

frightful when it is alleged that criminal prosecution was

threatened against acts of pure speech and advocacy which

presented no threat of immediate harm to anyone.

2

A review of the record of the court below reveals a failure

to appreciate the seriousness of this charge of content-based

discrimination, and to extract an appropriate explanation for it.

The court below committed serious error when it

dismissed the Section 1983 action because it improperly

mischaracterized the degree of personal involvement needed to

hold a public official liable; improperly held that only the

Council members, and not the Council, were proper party

defendants; failed to permit the plaintiff to amend to include the

individual defendants, and ignored a charge of content-based

regulation of speech. |

The charges of political discrimination by a state regulatory

board are deeply disturbing and require the most careful

judicial review. Yet, here the trial and later the reviewing

appeals court appear to have short-circuited the process, and to

have either ignored serious charges of misconduct, or to have

applied improper legal standards in reviewing those charges.

This case presents serious public policy questions with

broad implications. In addition to the content-based speech

charges, this case invites the court to consider the sensitive

relationship between a state board designated to insure the

quality of educational programs—and in this episode one

charged with the rigorous responsibility of providing

professional education; and the academic freedom and speech

rights of an institution and its instructors. Because this case

involves complex issues of individual liberty and

comprehensive regulation in the public interest, the court

should review this case in order to insure that a proper balance

has been struck.

The questions presented by the petitioner raised serious

questions about the review process below. It is possible that

the administrative process and its subsequent judicial review

failed to accord sufficient weight to the speech or academic

freedom rights of the parties.

Professional schools are not blank transfers of technique.

Rather, they can and should challenge the presumptions and

conventions of their chosen calling. Only in this way can the

vigorous debate ensue which is the hallmark of a free society.

But, if the process we use to ensure quality generates a timid

rigid conformity, that minimal technical quality may be an

empty shell, purchased at the price of a free marketplace of

ideas.

The conflict between N.V.L.S. and the Council is neither

unique nor isolated; rather, it may be proto-typical of a

growing split between established forces and those who out of {

conscience seek to build new institutions to challenge or spur

established professional institutions. Should those with a

special calling be effectively silenced in this critical theater, and

at what costs? Under the flag of professional standards,

experts attempt to convey their moral preferences as value-free

expertise. Sadly, they may attempt to silence dissent not in the

name of conformity, for our system knows no doctrine or

official creed, but in the public interest.

In this case the further charge is alleged that partisan bias

colored the proceedings, taking these charges as true as must

be the case on motions to dismiss, a court should have more

vigorously reviewed this matter.

I. THE TRIAL COURT ERRED IN DISMISSING THE

SECTION 1983 ACTION AS IMPROPERLY BASED

ON A THEORY OF RESPONDEAT SUPERIOR,

WHERE PERSONAL INVOLVEMENT OF THE STATE

OFFICER WAS ALLEGED.

Count I of Avins’ complaint charged Virginia Attorney

General Terry with violation of the school’s rights by acting

through an assistant attorney general to enforce the mandates

of the Council; and further she is accused of threatening the

plaintiffs with criminal prosecution for their speech activities

related to the conservative law class.

The court dismissed the claims, holding that they were

insufficient as a matter of law to impose personal liability

because they involved no charge of personal conduct, only

charges of respondeat superior. The court cited Vinnedge v.

Gibbs, 550 F.2d 926 (4th Cir. 1977).

The court’s reliance upon this case is misplaced, as the trial

court’s interpretation of respondeat superior was misdirected.

In Vinnedge, a prisoner claiming violation of his constitutional

rights because he was denied medical care sued a host of state

officials. Among the group was Gibbs who had administrative

responsibility for setting standards for jails. However, the

immediate responsibility for the prisoners’ medical care was

by statute fixed in another officer. 550 F.2d 926, 928 (4th Cir.

1977).

Here the court rejected the claim, noting that “the doctrine

of respondeat superior has no application under this section.”

Id. But this applies only where the plaintiff fails “to allege any

personal connection between” the officer “and denial of

constitutional rights.” 550 F.2d at 928.

Here the plaintiff asserts the requisite personal connection.

The Attorney General in both official and personal capacity is

charged with involvement. Here it is not charged that the agent

acted independently or without the knowledge of the principal.

Rather, it is charged the agent acted at the instruction of the

principal who acted out of bad political motive.

While the petition was terse it was sufficient to escape

summary dismissal because it charged personal “connection.”

The court erred in presuming that the acts of a subordinate

could not be charged to a principal once it was asserted the

principal acted out of a bad motive in authorizing

administrative action by the subordinates.

II. THE TRIAL COURT ERREDIN DETERMINING

THAT ONLY THE INDIVIDUAL COUNCIL MEMBERS

AND NOT THE COUNCIL WERE’ PROPER

DEFENDANTS IN A SECTION 1983 ACTION.

The court below erred when it held that, “The Council is

not a person within the meaning of Section 1983....” Letter

decision, February 26, 1988, p. 2. The court cites no authority

to support the contention that a corporate body may not be a

proper Section 1983 defendant.

A state or its agencies may be “persons” within the

meaning of Section 1983, and without violation of sovereignty

immunity where an action proceeds in state court and only

perspective relief is sought. See, Gumbhir v. Kansas State

Board of Pharmacy, 231 Kan. at 513, 646 P.2d at 1084. See

also, Ramah Navajo School Board v. Bureau of Revenue, 720

P.2d 1243, 1249 (N.M. App. 1986); Woodbridge v.

Worcester State Hospital, 384 Mass. 38, 44, 423 N.E.2d 782,

786 n. 7 (1981).

* Where, as here, the relief sought is injunctive, a state

agency is broadly held to be a proper person within the

meaning of Section 1983. See, Scheuer v. Rhodes, 416 U.S.

232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1984); Edelman v.

Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662

(1974) (permitting injunctive relief).

But here again the court’s failure to spell out its logic

places the summary nature of its holding in doubt. At least it

should be remanded for a more specific statement.

An additional consideration the Court should weigh is that,

so far as is practical, the choice of forum should be a neutral

factor in the vindication of federal rights. If it emerges that the

outcome under Virginia policy relating to sovereign immunity

produces a different, and less liberal, result than the

application of Eleventh Amendment immunity in a federal

court in Virginia, then an unreasonable forum-based disparity

exists which should be reviewed. For this reason this Court

has held hwere state proceedures unduly restrict a litigant’s

opportunity to assert a federal right, the state must use federal

proceedures. Dice v. Akron, Canton & Youngstown RR., 342

U.S. 359, 72 S.Ct. 312, 96 L.Ed.2d 398 (1952).

III. THE TRIAL COURT ERREDIN FAILING TO

PERMIT THE PLAINTIFF TO AMEND HIS PETITION

TO INCLUDE COUNCIL MEMBERS IN THEIR

INDIVIDUAL CAPACITIES.

Even assuming that the Council was not a person within

the meaning of Section 1983, it was error for the trial court to

deny the plaintiff to include these indispensable parties.

Whatever the state practice may be where a federal claim is

involved local procedural rules should not be permitted to

become outcome-determinative in contravention of liberal

substantive federal policy.

In federal practice it would be error to dismiss a Section

1983 claim, where it could be salvaged by amendment to

include parties. Before a petition can be dismissed it must be

clear that a plaintiff cannot plea grounds to maintain the action.

See: Kelson v. City of Springfield, 767 F.2d 651 (9th Cir.

1985); Berndt v. State of Tennessee, 796 F.2d 879 (6th Cir.

1986).

Only two allegations are necessary to support a Section

1983 claim: a charge that a federal right was deprived, and the

charge that it was by state action. Gomez v. Toledo, 446 U.S.

635, 640, 100 S.Ct. 1920, 1923, 64 L. Ed.2d 572 (1980).

Here the charge that free speech rights were denied on 4

content basis by a state agency in violation of the First

Amendment met the requirement for a proper pleading of a

1983 charge. Given this predicate the court should have

permitted the party to amend.

IV. THE TRIAL COURT ERREDIN FAILING TO

CONSIDER CHARGES OF CONTENT-BASED

REGULATION OF SPEECH IN DISMISSING FIRST

AMENDMENT CLAIMS RELATED TO LICENSE

RENEWAL.

The trial court erred in dismissing Avins’ claims without

first evaluating the significance of alleged content-based

discrimination in violation of the First Amendment. The court

presumes that First Amendment rights were not violated

because despite the state action the school remained free to

offer the course on a non-credit basis. So generous a rule can

only apply where the state action is neutral.

The trial court erred in placing its reliance on Shelton

College v. State Board of Education, 226 A.2d 612 (New

Jersey, 1967). Shelton stood for the general proposition that

the state could regulate the award of college degrees; however,-

the holding recognized the danger of content-based regulation.

It supported the state agency action only when “there is no

proof whatever that the state board is bearing down upon

Shelton [the school] because of Shelton’s convictions upon a

topic.” 226 A.2d at 620.

In the instant case just such an improper content-based

discrimination is charged. It is well established that a right

otherwise clearly within the state’s power may be lost where

the state acts from bad motive. Here even assuming that the

state has control over individual course content, it is wrong to

exercise that power to punish unpopular beliefs. Where such

an allegation is of record the court must address it . However,

the court below appears to have ignored these serious

problems because of confusion over the requirements of a

Section 1983 action.

CONCLUSION

While regulation of schools and colleges may be a public

necessity, its abuse on content-based speech grounds is a

serious threat to a free society and the marketplace of ideas. A

charge of intimidation of speech by threat of criminal

prosecution should be given the careful review. Speech is all

10

too quickly chilled. The court below failed to properly protect

the First Amendment interest.

As set forth above, the petition for certiorari should be

granted because it presents major public questions related to

free speech: identifying the Constitutional limitations of

coercive state power to regulate speech on the basis of

conduct. Further, the case requires a determination of the

proper remedial scope of Section 1983, and requires that this

Court vindicate Evie principles by insuring that substantive law

equality between parties who bring 1983 actions in state and

federal courts be maintained.

This matter is appropriate for review under the writ

because the state court decided a federal question in a way that

conflicts with both the holding of other state courts and the

federal court of appeals. See Rule 17(b). Further, the holding

below presents important questions of federal law which either

have been settled or should be settled by this Court. Rule

17(c).

The court below committed repeated errors of law and

policy related to Section 1983 action. The case could be of far-

reaching consequences. It gives the court an opportunity to

address these issues and aid other courts in avoiding error.

Consistent with Rule 17, the court should issue the writ and

review these important questions.

—

Respecfully submitted,

Daniel C. Holdgreiwe Joseph E. Broadus

Counsel of Record George Mason University

Coalition for Religious School of Law

Freedom 3401 N. Fairfax Drive

515 Wythe Street, Suite 201 Arlington, VA 22201

Alexandria, VA 22314 (703) 841-2625

(703) 684-9010