Record and brief — Warder v. Board of Regents of the University of New York

uonned

(iED

81-777 | OCT 22 1981

IN THE

Supreme Court of the United States

OCTOBER TERM, 1981

MICHAEL YOUNG WARDER, ef ai/.,

as Proposed First Trustees of the

Unification Theological Seminary,

Petitioners,

Ve

THE BOARD OF REGENTS OF THE UNIVERSITY

OF THE STATE OF NEW YORK,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE STATE OF NEW YORK COURT OF APPEALS

DOROTHY SELLERS

NEIL I. LEVY

1801 K Street, N.W.

Washington, D.C. 20005

(202) 822-5300

Counsel for Petitioners

THE CASILLAS PRESS, INC. — 1717 K Street N.W. — Washington, 0.C. — 223-1220

(i)

QUESTIONS PRESENTED

1. Whether petitioners’ rights to freedom of speech,

religion and due process were violated by the Board of

Regents when it allowed two Regents who had publicly pre-

judged the matter on political and religious grounds to

participate in the decision to deny petitioners’ application

for an educational charter.

2. Whether petitioners were entitled to a trial on the

merits of their constitutional claim that the denial of their

application was a result of the exercise of their First

Amendment freedoms.

3. Whether petitioners’ right to Equal Protection of the

law was violated by respondent when it subjected peti-

tioners to novel and stringent requirements of a kind never

imposed on similarly situated applicants, actuated in part

by a joint resolution of the New York State Legislature

exerting pressure on the Board to follow other than nor-

mal procedures, all of which impaired petitioners’ oppor-

tunity to obtain a favorable determination.

(iii)

TABLE OF CONTENTS

Page

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(iv)

TABLE OF AUTHORITIES

Cases: Page

Arnett v. Kennedy,

Nd os oo eee etnndanenel ll

Berger v. United States,

es ee ce cheeeesneeeeeunet 12

Berkshire Employees Ass’n. v. N.L.R.B.,

MP EE, GUM co ccvcstcvececccccnccceces 13

Cinderela Career and Finishing Schools, Inc. v. F.T.C.,

138 U.S. App. D.C. 152, 425 F.2d 583(1970)_ ...... ee eee 13

Committee for Public Education v. Nyquist,

Ee cio cca daneteenessesncéeseeuct 16

F.T.C. v. Cement Institute,

ED . coc cncégeesteusbacsncdinedeseeessosees 12

Goldberg v. Kelly,

rh rr ie ces ceeeetasneneeneseaonee il

Healy v. James,

SED << iccucccushdacdedsebeceseaesebweuseen 14

Hortonville Joint School District v. Hortonville

Education Association, 423 U.S. 1301 (1975) ...........666.. 12

Lemon v. Kurtzman,

IE co nbcdebcdwendo4eseeesenscoess cuaséeéus 16

Mayberry v. Pennsylvania,

ED os cn cadnacedebeucenceeesseséuaen® 11

Morrissey v. Brewer,

ED eee hécceeacadedeesasadavadenees 10, 11

Perry v. Sinderman,

ee irs ete eedkeeeeneh uxt 14, 15

(v)

Sherbert v. Verner,

RD, SEED vc cccceducccuvccusvesvccceucnécveeve 14

Staton v. Mayes,

§52 F.2d 908 (10th Cir.), cert. denied,

IIE cove ceceee cr covestaveacassensteceveoses 12

Walz v. Tax Commission,

OE BE GOED csdcccnccccccccccsecceeseseesceuce 16

Withrow v. Larkin,

ED ccc ccccctscksdeeneussetdeceuceee 11,12

Yick Wo v. Hopkins,

SE EE . cc cncdueeeeteteseseseenesvestoentecses 17

IN THE

Supreme Court of the United States

OCTOBER TERM, 1981

MICHAEL YOUNG WARDER, et a/., as Proposed

First Trustees of The Unification Theological Seminary,

Petitioners,

Vv.

THE BOARD OF REGENTS OF THE UNIVERSITY

OF THE STATE OF NEW YORK,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO

THE STATE OF NEW YORK COURT OF APPEALS

The petitioners, Michael Warder Young, Neil Albert

Salonen, Edwin Ang, David S.C. Kim, Bo-Hi Pak, Sun

Myung Moon, Joseph A. Tully, William Bergman and

Mose Durst, respectfully pray that a writ of certiorari

issue to review the judgment and opinion of the State of

New York Court of Appeals entered in these proceedings

on June 11, 1981.

OPINION BELOW

The opinion of the State of New York Court of Ap-

peals, reported at 53 N.Y.2d 186, 440 N.Y.S. 2d 875, 423

2

N.E.2d 352 (1981), appears in Appendix A, infra, 1a-20a.

The opinion of the Supreme Court of the State of New

York Appellate Division — Third Judicial Department,

reported at 75 App. Div.2d 666, 426 N.Y.S. 2d 849 (3rd

Dept. 1980), appears in Appendix B, infra, 2la-27a. The

opinions of the Supreme Court of New York, Albany

County at Special Term, not reported, appear at Appen-

dices C and D, infra, 28a-4la.

JURISDICTION

The judgment of the State of New York Court of Ap-

peals was entered on June 11, 1981. On August 25, 1981,

Mr. Justice Marshall extended the time within which to

file a petition for a writ of certiorari to October 8, 1981,

and on October 2, 1981, further extended the time to Oc-

tober 22, 1981. The jurisdiction of this Court is invoked

under 28 U.S.C. § 1257(3).

STATEMENT OF THE CASE

Petitioners are the Proposed First Trustees of the

Unification Theological Seminary (the “Seminary”), an

educational institution in Barrytown, New York. The

Seminary is sponsored and financially supported by the

Holy Spirit Association for the Unification of World

Christianity (the “Church”), a religious organization in-

corporated under the law of the State of California. The

Seminary offers a two-year graduate program in religious

education, and, upon receipt of a provisional charter, pro-

poses to grant the degree of Master of Religious Educa-

tion. Petitioners seek review of the 4-3 decision of the

State of New York Court of Appeals upholding the denial

of a provisional charter and validating as constitutionally

firm the process by which that denial was achieved.

3

In April 1975, petitioners as Proposed First Trustees of

the Seminary applied for a provisional charter. Although

such applications are normally processed expeditiously,

Respondent conducted an extraordinarily lengthy and un-

precedentedly attenuated investigation, admittedly

because of the Seminary’s association with the Church.

For 30 months every recommendation by staff personnel

and independent consultants favored granting the applica-

tion, but on February 22, 1978, the Board of Regents

denied the application based almost entirely on informa-

tion developed in the last two months of the 34 month in-

vestigation (App. A, infra, 16a-17a; App. E, infra,

44a-47a).

Under the law of the State of New York, no institution

of higher learning may incorporate or grant degrees, ex-

cept by obtaining a charter from the Board of Regents of

the University of the State of New York. The Education

Law permits the Regents to grant charters to institutions

“whose approved purposes are in whole or in part, of

educational or cultural value deemed worthy of recogni-

tion and encouragement by the university”. N.Y. Educa-

tion Law § 216. The only specific requirements for incor-

poration as a degree-granting institution are that the appli-

cant must have resources of at least $500,000 and must

make suitable provision for education equipment and pro-

per maintenance. N.Y. Education Law § 218. A provi-

sional charter may be granted “on evidence satisfactory to

the regents that the conditions for an absolute charter will

be met within a prescribed time.” N.Y. Education Law

§ 217.

Following petitioners’ application for a provisional

charter in April 1975, the State Education Department

began an investigation. In June 1976, the Deputy Commis-

sioner of Higher and Professional Education issued a

4

report favorably recommending the application, but also

recommending that action be delayed pending anticipated

investigations of the Church, the Seminary’s sponsor.

In the Fall of 1976, two independent consultants, experts

in theological education, were retained by the State Educa-

tion Department. These consultants also recommended

favorable action. By February 1977, the Office of Counsel

for the State Education Department, the Deputy Commis-

sioner of Higher and Professional Education and the

Commission of Education had recommended approval

and had forwarded the application to the Board of

Regents for action at the February 1977 meeting (App. A,

infra, 2a).

At the Board’s February 22, 1977 meeting, the State

Department of Education formally requested approval of

the application. Regent Yavner, having received a letter

from the Union of [American] Hebrew Congregations, ex-

pressed concern as to the legitimacy of the Church’s ac-

tivities. Action on the application was delayed, ostensibly

to obtain further information.

On March 22 and 24, 1977, the New York State

Legislature passed a joint resolution and transmitted it to

the Board of Regents, urging the Board to stay the

Seminary’s application of pending legislative investiga-

tions into the Church’s activities. The recitals on which the

legislature exhorted the Board to delay include the follow-

ing statements:

—The activities of the Unification Church

and its founder, Reverend Sun Myung Moon

have made headlines recently for alleged

sophisticated brainwashing techniques on young

people luring them from family and community

ties;

5

—Reverend Moon’s sect was refused bids

to join the National Council of Churches, the

National Association of Evangelicals in Korea

and the New York City Council of Churches;

— The sect has been investigated by the

State Attorney General’s office and criticized by

Protestant, Roman Catholic and Jewish leaders

for anti-democratic and antisemitic teachings;

On April 27, 1977, an open meeting of the Board of

Regents was held to consider the application. A motion to

delay eight months for further investigation, as the Joint

Resolution had urged, was granted.

The Regent’s decision to delay was taken amidst a spate

of invidious allegations about the sponsoring Church’s

beliefs, association and activities. In addition to the Joint

Resolution, two Regents in particular were outspoken ad-

vocates against the Church.

Regent Griffith was concerned that “the political and

religious tenets advocated” by the Church were “incom-

patible” with “the principles of political and religious

freedom which are central to our pluralistic democracy.”

He expressed his concern that approval of the charter

would be “widely interpreted . . . as official approval of

the Unification Church,” and critically, he categorically

resolved to deny the charter because of his disapproval of

the purposes and activities of the Church:

I disapprove of the Church’s purposes and ac-

tivities. So I must, ‘n logic and conscience,

reiterate my disapproval of a charter for the

Church’s seminary.

(App. A, infra, 15a.)

6

Regent Yavner speaking in support of delaying con-

sideration, charged that the Church was connected with

the Korean Central Intelligence Agency, and had engaged

in “brainwashing.” He further stated that “if proof is need-

ed, we need time to get that proof.” He stated that he had

read the Divine Principle, (which contains the religious

beliefs of the Church) and found it “dangerous” and

analogized it to Hitler’s Mein Kampf (App. A, infra, 15a).

In contrast, Regent Clark remarked:

I am not satisfied that the questions raised and

the reasons offered in support of the motion to

delay action upon this application justify any

delay. This body has granted temporary cer-

tification to other applicants in the past without

raising these types of questions. \n regard to this

application, it is my personal belief that serious

questions of discrimination, civil liberties and

first amendment issues are at stake. In the light

of these questions, I must vote a strong NO

against the motion to delay.

(App. A, infra, 15a) (Emphasis added.) The Regents

resolved to delay action until December 1977, and created

a committee for further study.

In July 1977, dissatisfied with the progress of the ap-

plication, petitioners sought to compel an immediate deci-

sion in the first of two proceedings, consolidated below. In

a decision dated November 28, 1977, the New York

Supreme Court for Albany County at Special Term ruled

that the delay was not unreasonable. No order was entered

at that time (App. C, infra 28a).

7

In mid-November 1977, the study committee still could

find no reason to deny the application. Yet another in-

dependent consultant iound the facilities and administra-

tion adequate and found no evidence of “brainwashing,”

KCIA involvement, or deceptive fund-raising practices.

It was at this point, six days prior to the December 1977

meeting, that the Regents, stymied in the search to find a

reason to deny the application after having received yet

another favorable recommendation, charted a different

course, including several procedurally unfair maneuvers.

Counsel for the Board revealed the existence of six un-

substantiated letters and affidavits adverse to the Church

(some dated months earlier) and gave petitioners five days

to respond. With almost no forewarning,' an on-site

review team conducted an inspection of the Seminary’s

records on December 20, 1977, a time when the school

registrar and other staff familiar with the record-keeping

system were away for the holidays. Still no decision was

made at the Board’s December meeting (App. A,in/ra,

16a).

On February 22, 1978, the Board of Regents, without a

statement of reasons but based upon the recommendation

'Dr. Tubbs of the Department of Education placed a telephone call

at 4:30 p.m. on December 19, 1977, to inform the Seminary that the

review team would conduct an inspection at 9:00 a.m. the next morn-

ing.

of the committee, Appendix E, infra, denied the provi-

sional charter. The committee report and recommendation

relied upon concerns not previously expressed and almost

entirely on information of inadequate record keeping ob-

tained from the December 20, 1977 on-site review, and on

petitioners’ failure to provide an audited financial state-

ment of the Church.

The petitioners filed a second proceeding in the New

York Supreme Court for Albany County at Special Term,

this one seeking to annul the decision denying the provi-

sional charter. The petition claimed that 1) the Board of

Regents’ decision was discriminatory; 2) bias and pre-

judice of some of the Regents infected the entire ad-

ministrative proceeding; 3) other applicants with greater

deficiencies had been granted provisional charters and had

not been subjected to such a lengthy and attenuated in-

vestigation; and 4) that the denial was as a result of peti-

tioners’ exercise of First Amendment rights.

Respondent filed a motion for summary judgment, sup-

ported solely by an affidavit of counsel. Relying only on

the record of the proceeding, respondents claimed entitle-

ment to summary judgment because there was a rational

basis for the decision of the Board. No affidavits from

members of the Board concerning their motivation, bias

or prejudice were submitted. In opposition to respondent’s

motion for summary judgment, petitioners submitted

several affidavits including that of former Commissioner

of Education Ewald B. Nyquist who was personally in-

volved in processing applications for provisional charters,

including that of petitioners.

Judge Jones, joined in his dissent by Judges Meyers

and Fuchsberg, catalogued the procedural irregularities

and disparities in treatment to support of petitioners’ claim.

9

The dissenters concluded that under these circumstances

petitioners were entitled to a trial on the merits of the

claimed constitutional violations.

Judge Jones’ summary of the Nyquist affidavit appears

in full at App. A, infra, 13a-15a. He cited, for example,

Nyquist’s statement that the Board delayed in order to

search for a reason to deny the application: “[The Board]

delayed making a decision on the application for an un-

conscionable length of time in the hope of uncovering

negative findings on which to base a denial”. He also

noted that “after almost two years of investigation and

evaluation, no reason existed *-r denial of the Seminary’s

application nor did a reason exist for further delaying a

decision.”

Judge Jones found support for petitioner’s claim of

discriminatory treatment in Nyquist’s affidavit:

{T]he Board of Regents ha[s] chartered institu-

tions with greater deficiencies and/or fewer

strengths than the Seminary possesses . . . and

. . . the Seminary has been subjected to greater

scrutiny and has been held to higher re-

quirements than other applicants for a Provi-

sional Charter.

(App. A, infra, 13a-15a.).

On November 14, 1978, the Supreme Court of the State

of New York for Albany County at Special Term entered

orders granting respondents’ motion for summary judg-

ment, (App. D, infra, 35a-36a), and dismissing both the

proceeding seeking to annul the determination which

denied the application and the earlier proceeding claiming

unreasonable delay (App. C. infra, 28a-29a). The

judgments were appealed to the Supreme Court of the

State of New York Appellate Division, Third Judicial

10

Department, which on May 12, 1980 affirmed (App. B, in-

Sra, 20a). On December 1, 1980, the State of New York

Court of Appeals granted permission to appeal and on

June 11, 1981, a sharply divided court affirmed the lower

court’s decision, holding that 1) the expressed hostility of

two Regents to the religious beliefs of petitioners, in-

cluding the statement of one of them that he disapproved

of the Church and that the application should be denied,

did not render the particular Regents or the Board as a

whole incapable of an unbiased evaluation; 2) there was

no need for a full exploration of petitioners’ claim that the

denial was as a result of the exercise of First Amendment

freedoms; and 3) the disparity of treatment received by

petitioners was justified by the expressed substantial con-

cerns of legislators and clergy.

REASONS FOR GRANTING THE PETITION

1. The Decision Below Conflicts In Principle With

Decisions Of This Court Holding That State Ad-

ministrators Who Publicly Commit Themselves

To Deny An Application On Political And

Religious Grounds May Not Participate In A

Decision To Deny That Application.

The Due Process Clause of the Fourteenth Amendment re-

quires that state administrators render a fair and impartial

decision untainted by bias or prejudice. Petitioners are

constitutionally entitled to a resolution of their claim by

impartial decision-makers. Morrissey v. Brewer, 408 U.S.

471 (1972).

The denial of a provisional charter has a devastating im-

pact on the ability of the Seminary to function effectively,

and on the ability of Church to educate its members and

others in its religious principles, and to train its leaders for

the future.

Particularly in a case such as this, where the substantive

standards are unarticulated and the decision rests so large-

ly in the administrator’s unbridled discretion, the purity of

the decisional process is vital to the legitimacy of the

Board’s action. Special urgency for this Court’s guidance

exists here, for besides giving evidence of prejudgment and

prejudice, the record shows that these attitudes were

rooted in the uniquely treacherous soil of religious and

political animosity.

Because of the difficulties involved in proving actual

prejudice and bias, because the appearance of even-

handedness is at the core of due process and because of the

enormous weight which this Court has placed upon the

principle of neutrality, particularly when the lack of

neutrality is based upon invidious classifications, the

authority of this Court is required to define the precise

contours of neutrality and the required showing to in-

validate an administrative determination in which openly

partisan decision-makers participated, in order that the

moral authority of the law and the accuracy of its applica-

tion do not falter in state administrative proceedings.

This Court has repeatedly held that “the right to an im-

partial decision-maker is required by due process” in every

case, Arnett v. Kennedy, 416 U.S. 134, 197 (1974) (White,

J., concurring in part and dissenting in part), and that “the

appearance of even-handed justice . . . is at core of due

process.” Mayberry v. Pennsylvania, 400 U.S. 455, 469

(1971) (Harlan, J. concurring). Accordingly, this Court

has even mandated the disqualification of decision-makers

who in fact “have no actual bias” if they reasonably appear

to be biased. See, e.g., Morrissey v. Brewer, supra,

Goldberg v. Kelly, 397 U.S. 254, 271 (1970).

In Withrow v. Larkin, 421 U.S. 35, 47 (1975), this

Court explained:

12

Not only is a biased decision-maker constitu-

tionally unacceptable, but our system of law has

always endeavored to prevent even the probabil-

ity of unfairness. Jn Re Murchison [349 U.S.] at

136, 99 L.Ed. 942, 75 S.Ct. 623 . . . In pursuit

of this end, various situations have been iden-

tified in which experience teaches that the prob-

ability of actual bias on the part of the judge or

decision-maker is too high to be constitutionally

tolerable.

(Emphasis added.)

One situation so identified exists where an adjudicator

has publicly committed himseif io a factual determination

in advance of considering the matter. While the Court held

in Withrow v. Larkin, supra, that advance knowledge of

adjudicative facts was not enough, advance commitment

on factual determinations crosses the lines of neutrality.

See Staton v. Mayes, 552 F.2d 908 (10th Cir.). cert.

denied, 434 U.S. 907 (1977). This is particularly so where,

as here, the factual familiarity is not gained by the agency

in the performance of its statutory role but from sources

outside of the administrative process, and where the posi-

tion publicly taken involves not merely broad issues of

policy, but the application of policy and law to a par-

ticular determination. See Hortonville Joint School

District v. Hortonville Education Association, 423 U.S.

1301 (1975); F.7.C. v. Cement Institute, 333 U.S. 683

(1948).

Similarly, where the adjudicator has targeted an appli-

cant for abuse or criticism based upon public pressure or

his status as a member of a minority group, principles of

neutrality are offended. Berger v. United States, 255 U.S.

22 (1921).

13

Where some decision-makers are disqualified because of

their lack of neutrality or because of the risk of it, the en-

tire process is infected. A decision in which these ad-

ministrators participated cannot stand and courts will not

engage in deciding whether their role was decisive.

Cinderella Career and Finishing Schools, Inc. v. F.T.C.,

138 U.S. App. D.C. 152, 425 F.2d 583 (1970); Berkshire

Employees Ass'n v. N.L.R.B. 121 F.2d 235, 239 (3rd Cir.

1941).

The risk of lack of neutrality evidenced by the com-

ments and commitments of the Regents was heightened

when the state legislature passed a joint resolution

“memorializing” the Regents to delay petitioners’ applica-

tion because the sponsoring Church’s teachings were

widely criticized by established religions.

The decision below permitting participation in the final

decision of two Regents who publicly committed

themselves in advance of decision or otherwise expressed

hostility to petitioners’ religious and political beliefs con-

flicts with the decisions of this Court and other federal

courts establishing principles of neutrality in decision-

making and protecting First Amendment freedoms. The

general importance of these issues to maintaining the in-

tegrity of state administrative decision-making with regard

to church-related institutions calls for the granting of the

petition for certiorari to review the judgment below.

2. The Decision Of The State Of New York Court

of Appeals Is In Conflict With This Court's Deci-

sion In Perry v. Sinderman.

Petitioners filed suit in the Supreme Court for Albany

County at Special Term alleging, among other things, that

the denial of their application for a provisional charter was

as a result of the exercise of their First Amendment rights.

14

Decisions of this Court have recognized that denial of

official state recognition of colleges or college organiza-

tions based upon that entity’s engaging in protected ac-

tivities abridges associational freedoms. Healy v. James,

408 U.S. 169 (1972). The Free Exercise Clause, designed to

protect matters of conscience from any degree of compul-

sion, protects against subtle discrimination by indirect

burdens imposed on account of one’s religion or associa-

tion with a religious organization. Sherbert v. Verner, 374

U.S 398 (1963).

Petitioners claim that the denial of a provisional charter

(and degree-granting status) has severe practical impact

upon the Seminary. It was undisputed below that the

denial of a provisional charter inhibits its ability to attract

a variety of students, restricts its participation in various

educational associations, precludes its foreign students

from qualifying for visas, and disables all students from

cligibility for many student loans. This impact imper-

missibly burdens petitioners’ associational freedoms.

Petitioners contend that the denial of the provisional

charter was motivated by a desire to suppress their

religious freedoms and by a non-secular purpose to pro-

mote established religions, or, at least, that the denial has

those effects. Against these claims, Respondent contends

that there was a substantial basis in the record to support

the decision and that the Board disclaims any constitu-

tionally impermissible result or motive of reprisal for

religious beliefs and practices.

In Perry v. Sinderman, 408 U.S. §93 (1972), this Court

held that summary judgment is inappropriate in the face

of a bona fide constitutional claim that an otherwise

discretionary exercise of state power is in reprisal for the

exercise of First Amendment freedoms.

15

In Perry v. Sinderman, a teacher in the state college

system alleged that his non-retention as a teacher was a

result of public criticism of the Board of Regents. The

Board of Regents claimed insubordination as the motiva-

tion for non-retention. The District Court granted sum-

mary judgment in favor of the Regents. The Court of Ap-

pezis reversed. Affirming the Court of Appeals, this Court

held:

In this case, of course, the respondent has yet

to show that the decision not to renew his con-

tract was, in fact, made in retaliation for his ex-

ercise of the constitutional right of free speech.

The District Court foreclosed any opportunity to

make this showing when it granted summary

judgment. Hence, we cannot now hold that the

Board of Regents’ action was invalid.

But we agree with the Court of Appeals that

there is a genuine dispute as to “whether the col-

lege refused to renew the teaching contract on an

impermissible basis — as a reprisal for the exer-

cise of constitutionally protected rights.” 430

F.2d at 943. The respondent has alleged that his

non-retention was based on his testimony before

legislative committees and his other public

Statements critical of the Regents’ policies. And

he has alleged that this public criticism was

within the First and Fourteenth Amendments’

protection of freedom of speech. Plainly, these

allegations present a bona fide constitutional

claim. For this Court has held that a teacher’s

public criticism of his superiors on matters of

public concern may be constitutionally protected

and may, therefore, be an impermissible basis

16

for termination of his employment. Pickering v.

Board of Education, supra.

For this reason we hold that the grant of sum-

mary judgment against the respondent, without

full exploration of this issue, was improper.

408 U.S. at 598.

Similarly, the bona fide constitutional claims here, sup-

ported by undisputed facts and circumstances of depar-

tures from ordinary procedures adeptly marshalled by the

dissent below, require full exploration of this issue.

Because the decision of the State of New York Court of

Appeals conflicts with this Court’s decision in Perry v.

Sinderman, and because of the importance of insuring

that proof of bona fide constitutional claims is not im-

properly and prematurely foreclosed, the petition for cer-

tiorari should be granted.

3. The Decision Below Conflicts With The Decision

Of This Court Requiring A Compelling Justifica-

tion For Disparities In Treatment Based Upon

Religious Affiliation Or Political Belief.

The Equal Protection Clause of the Fourteenth Amend-

ment and the Religion Clauses of the First Amendment re-

quire that any classification affecting religious organiza-

tions must be meticulously surveyed to eliminate “religious

gerrymanders”. Walz v. Tax Commission, 397 U.S. 664,

696 (1970) (Harlan, J. concurring). If the purpose of a

classification is to aid or inhibit a religion, or aid one

religion over another, or if the classification has the effect

of doing so, it cannot be upheld unless the disparity in

treatment is mandated by compelling reasons. Committee

for Public Education v. Nyquist, 413 U.S. 756 (1973);

Lemon v. Kurtzman, 403 U.S. 602 (1971). Similarly, ad-

17

ministrative decisions, neutral on their face but motivated

by racial or religious animus, cannot survive. Yick Wo. v.

Hopkins, 118 U.S. 356 (1886).

Petitioners stand alone as the only applicants ever to

have been denied an application for provisional charter on

the grounds advanced. As members of a small and un-

popular religion, they claim that the New York Education

Law as applied under the circumstances of this case

violated the constitutional principle of religious neutrality.

Petitioners claim that the Board of Regents engaged in an

unprecedently attenuated investigation into the beliefs and

practices of the Church, characterized by repeated and un-

justified delays in the search for a reason to deny the ap-

plication. Petitioners also claim that the Board ultimately

based the denial of the application for a provisional

charter on deficiencies which had been overlooked in other

similarly situated applicants. The petitioners assert that

the proffered rational basis for the decision was a pretext

for religious discrimination. In support of this assertion,

petitioners submitted the affidavit of Commissioner Ny-

quist, who was personally involved in investigating,

evaluating, reviewing and supervising hundreds of ap-

plications for provisional charters including that of peti-

tioners. He stated:

To my own personal knowledge (a) the Board of

Regents ha[s] chartered institutions with greater

deficiencies and/or fewer strengths than the

Seminary possesses;

(b) the Seminary has been subjected to greater

scrutiny and has been held to higher re-

quirements than other applicants for a Provi-

sional Charter; and

(c) the Board of Regents has never before

delayed a decision for an application for Provi-

sional Charter for such an extended period of

time when its consultants, staff and counsel

recommend approval.

(See App. A, infra, 14-15a.)

He stated that in his 25 years of experience in the State

Department of Education, the Board of Regents had never

required an audited financial statement, now a prime basis

for the Board’s denial of the application. The request for

an audited financial statement was in any event highly

suspect, since the land alone on which the Seminary was

located (which the Church had agreed to grant to the

Seminary upon its obtaining a provisional charter) was by

the report of the Education Department staff determined

to be worth, net of mortagages, twice the minimum

amount ($500,000) of assets required by statute to be ob-

tained by the educational institution by the end of the pro-

visional chartering period. The Board had also said that

the confidentiality of the financial statement could not be

guaranteed.

The court below justified the unprecedented length and

breadth of the investigation by noting that “substantial

public concern about the religious or political practices of

the Seminary’s sponsoring organization had been voiced

by state and federal legislators, members of the clergy and

others.” (App. A, infra, 9a.) But such exertion of public

pressure and concerns about the practices of the

Seminary’s sponsor can hardly form a compelling reason

justifying the disparity in processing petitioners’ applica-

tion or holding petitioners to higher standards. These ex-

pressions heighten, rather than ameliorate the concern

that the admitted disparity in treatment was not based

upon religiously neutral determinations.

19

These litigants and other minority religions urgently

need this Court’s authority to insure the constitutional

legacy of these most fundamental of freedoms. A minority

religion must be permitted to grow and flourish and to

create institutions dedicated to the proliferation of its

beliefs, unfettered by disparate and discriminatory treat-

ment at the hands of state administrators motivated by

public pressure stemming from the unpopularity of the

Church’s beliefs and practices.

CONCLUSION

For these reasons, a writ of certiorari should issue to

review the judgment and opinion of the State of New York

Court of Appeals.

Respectfully submitted,

/s/ Dorothy Sellers

/s/ Neil I. Levy

1801 K Street, N.W.

Suite 1 100K

Washington, D.C. 20006

(202) 822-5300

Counsel for Petitioners

October 22, 1981.

la

APPENDIX A

In the Matter of Michael Y. WARDER et al.,

Proposed First Trustees of the

Unification Theological Seminary.

Appellants,

Vv.

BOARD OF REGENTS OF the UNIVERSITY OF

the STATE OF NEW YORK,

Respondents.

(And Another Proceeding.)

Court of Appeals of New York.

June 11, 1981.

OPINION OF THE COURT

COOKE, Chief Judge.

Petitioners, proposed trustees of the Unification

Theological Seminary, challenge as arbitrary the denial of

a provisional charter by the Board of Regents. The

Seminary, an educational! institution in Barrytown, New

York, is sponsored and financially supported by the Holy

Spirit Association for the Unification of World Christiani-

ty (“Unification Church”), a religious organization incor-

porated in California in 1961. Since 1975, the Seminary

has offered a two-year graduate program of religious

education. Seeking incorporation and the authority to

confer Master of Religious Education degrees, petitioners

applied to the Board of Regents and Commissioner of

Education for a provisional charter. Following a lengthy

investigation of the Seminary, its sponsor and the educa-

tional program offered, the application was denied.

2a

A review of the proceedings is necessary in order to

evaluate petitioners’ claims. The provisional charter ap-

plication was submitted in April, 1975. The State Educa-

tion Department reviewed the application, investigated the

Seminary and, in June, 1976, the Deputy Commissioner of

Higher and Professional Education issued a report

favorable to the Seminary but recommending that action

be deferred in light of pending and anticipated investiga-

tions of the parent organization. In the fall of 1976, in ac-

cordance with Education Department practice, the

Seminary was evaluated by two independent consultants.

The consultants, while noting certain areas of concern,

recommended approval. By February, 1977, the office of

counsel for the State Education Department, the Deputy

Commissioner of Higher and Professional Education and

the Commissioner of Education had recommended ap-

proval of the application, which was then forwarded to the

Board of Regents for action at the February, 1977

meeting. No action was taken at that time.

In March of that year, legislative resolutions cited

recently publicized concern about the policies and prac-

tices of the Unification Church and requested the Board of

Regents to delay its decision pending investigation. The

matter was deferred again following the April meeting of

the board, at which Regents Yavner and Griffith, during

debate, expressed concern about provisional charter ap-

proval, in light of unresolved questions as to faculty and

programs and the charges against the Unification Church

of involvement and Korean Central Intelligence Agency

(KCIA). They were also concerned about charges that the

church and its leaders engaged in or encouraged brain-

washing and deceptive practices. Yavner commented

critically on the book containing the religious tenets of the

church and was of the opinion that it was a political as well

3a

as religious document. Griffith went further to express

disapproval of the purposes and activities of the church,

which he felt were incompatible with the principles of our

society. Yavner moved to delay a decision pending a fur-

ther review by a committee of Regents appointed by the

board. The motion carried and Regents Genrich, who

would have granted approval and voted against delay, and

Yavner together with Bongiorno, another Regent, were

appointed to the committee.

Petitioners, dissatisfied with the progress on the

Seminary application, commenced an article 78 pro-

ceeding in July, 1977 to compel a decision. The proceeding

was dismissed upon a determination that the delay was not

unreasonable.

In mid-November, 1977, the Regents commmittee

issued a preliminary progress report summarizing the in-

formation it had obtained. As to the academic questions,

the report summarized the reports of the original con-

sultants and another independent consultant, all of which

found the program, facilities and administration ade-

quate. As to the related issues, the committee as yet had

found no evidence of a link between the Seminary and the

Korean government or KCIA, or of brainwashing at the

Seminary or by members of the Unification Church. The

committee noted that further investigation by it was

necessary because pending investigations by other govern-

mental agencies had not been completed. Furthermore, in-

formation obtained by the committee raised questions

concerning the Seminary’s stability, financing plan and

dependence upon the Unification Church as its source of

income, and the church’s alleged policy of deception in

fundraising and recruitment. The Seminary was to be

questioned on these matters and given an opportunity to

respond.

4a

Petitioners thereafter were requested to furnish af-

fidavits concerning KCIA involvement, recruitment and

fundraising techniques of the Unification Church and an

audited financial statement from the Church. The Educa-

tion Department, under the direction of the committee,

issued a staff report on December 7, 1977, which noted

that it was still awaiting responses to some of the questions

raised in the previous report. The staff also had confirmed

that the Unification Church of New York, Inc., the

Organization upon which the Seminary was to rely for

financial support through a lease arrangement, had be-

come inactive, having transferred the majority of its assets

and liabilities to the California organization. A request

was outstanding for the submission of an alternative

financing plan. The staff stated that evidence, in the form

of affidavits and statements from former church

members, was unavailable concerning deceptive practices

used by church members in fundraising and recruitment

but that there was no evidence of advocacy of illegal ac-

tivities by leaders of the church or petitioners or at the

Seminary and no evidence that the Seminary, petitioners

or Unification Church were involved with the KCIA.

Before the December 1977 meeting of the Board of

Regents, petitioners were provided with copies of and in-

vited to respond to the information that had been received

by the committee. The December meeting produced a deci-

sion to defer action on the application in light of the

receipt of additional allegations against the church and

Seminary, including representations of deception concern-

ing the Seminary program and noncompliance with admis-

sions and program requirements established by the

Seminary. Petitioners were also informed that the finan-

cial statement of the Unification Church, the substituted

lessee of Seminary property, was inadequate and were

again requested to submit a statement in audited form.

Sa

Petitioners were informed on December 19 that a review

team from the Education Department would visit the

Seminary on December 20 to review its records. Following

that visit, the Education Department and Regents commit-

tee recommended that the application be denied. The fin-

dings were that the Seminary had represented itself

through brochures and transcripts as having degree-

granting status, that the student records showed that some

graduates had not completed the number of credits or

courses represented by the Seminary to be required, that

admissions requirements set up by the Seminary, such as

submission of GRE scores, letters of recommendation,

and undergraduate transcripts, had not been enforced and

that no audited financial statement for the Unification

Church had been submitted.

Petitioners were given the opportunity to respond to

the committee report and submitted denials of and ex-

planations for the perceived deficiencies, including over-

sight, program evolution and practical difficulties. The

Board of Regents, at the January, 1978 meeting, again

deferred action to allow the Education Department to con-

sider petitioners’ response. The Education Department

and Regents committee issued a final report in February,

which addressed issues disputed in petitioners’ response,

found the explanations inadequate to remove concern over

the deficiencies and adhered to its recommendaiion for

denial. At the February meeting of the board, that body

voted unanimously to deny the application based on the

findings and conclusions of the Regents committee

reports.

Petitioners commenced the second article 78 proceeding

challenging the determination as arbitrary on numerous

grounds, including bias, administrative abuse and the ap-

plication of imprecise standards. Respondents’ motion for

6a

summary judgment was granted and the petition dismiss-

ed. Petitioners appealed this judgment and the judgment

in the first article 78 proceeding to the Appeliate Division,

75 A.D.2d 666, 426 N.Y.S.2d 849. That court affirmed

both judgments, concluding that the delay in the decision

was not unreasonable and that no constitutional rights had

been violated by the investigation or determination. Peti-

tioners were granted leave to appeal to this court.

Petitioners maintain that the Board of Regents deter-

mination should be annulled as arbitrary because it

represents an abuse of the administrative process and the

violation of petitioners’ substantive and procedural rights,

and because the statutes, rules and regulations under

which the Board of Regents acted are unconstitutionally

vague. Finally, petitioners urge that summary judgment

was improper on this record. Their contentions are not

persuasive.

It is well settled that in reviewing administrative action a

court may not substitute its judgment for that of the agency

responsible for making the determination, but must ascer-

tain only whether there is a rational basis for the decision

or whether it is arbitrary and capricious (see Matter of Pell

v. Board of Educ., 34 N.Y .2d 222, 231, 232, 356 N.Y.S.2d

833, 313 N.E.2d 321). Deference to the judgment of the

agency, when supported by the record, is particularly ap-

propriate when the matter under review involves a factual

evaluation in the area of the agency’s expertise (see Aurc-

sics v. Merchants Mut. Ins. Co., 49 N.Y .2d 451, 459, 426

N.Y.S.2d 454, 403 N.E.2d 149). These principles in mind,

it is concluded that the determination to deny has a ra-

tional basis.

The Education Department discovered serious incon-

sistencies between the Seminary’s practice and the method

7a

by which it represented it would operate. Student records

did not accurately reflect work done and admissions and

program standards set up by the Seminary were not

adhered to or were changed without publication or

notification to the department (see 8 NYCRR 52.2{d], [e],

52.1[b], [e]). The erroneous impression was given that the

Seminary had degree-granting status (see Education Law,

§ 224). The records at the very least evidence inadequate

administration. Although the Seminary explained certain

inconsistencies, neither the department nor the board was

bound to adopt the explanations as sufficient to dispel the

impression of poor administration and conduct of the

academic program. Finally, following the discovery that

the original sponsoring organization had been substituted,

the Seminary failed to submit audited financial statements

for the substituted organization as requested. Thus, the

Seminary failed to submit audited financial statements for

the substituted organization as requested. Thus, the

Seminary failed to satisfy the board of its financial

resources (see Education Law, § 218). These deficiences

rationally could be considered contrary to the standards

necessary for charter approval.

Unable to challenge the determination on the basis of

the findings, petitioners mount a broad-based attack on

the entire decision-making process as abusive and

unlawful and urge that the findings were contrived to

mask the board’s predetermined decision to deny the pro-

visional charter.

Initially rejected is petitioners’ argument that the in-

vestigation was overbroad, unjustified and impinged upon

their associational and religious freedoms. The Board of

Regents is charged with broad policy-making responsibili-

ty for the State’s educational system (Education Law, §

8a

207) and is specifically empowered to charter institutions

of higher education (Education Law, §§ 216, 217). In the

meaningful discharge of those functions and to “en-

courage and promote education” (Education Law, § 201),

the Regents ensure that acceptable academic standards are

maintained in the programs offered (see Moore v. Board

of Regents of Univ. of State of N.Y., 44 N.Y.2d 593, 407

N.Y.S.2d 452, 378 N.E.2d 1022). Thus, before an institu-

tion may be admitted to the academic community with

degree-granting status it must meet established standards

(see 8 NYCRR 3.21, 3.22, 52.1, 52.2); its purposes must be

“in whole or in part, of educational or cultural value

deemed worthy of recognition and encouragement”

(Education Law, § 216). Given the broad responsibility of

the Board of Regents for the quality of education provided

in this State, it must be given wide la.itude to investigate

and evaluate institutions seeking to operate within the

system.

It is here urged that the board transgressed permissi

ble limits when it delayed decision beyond February, 1977

to engage in a broad investigation of the policies and prac-

tices of the Seminary and its sponsor, even after the

favorable recommendations of the Education Department

and consultants. Acceptance of this argument in the face

of the record would place an unwarranted restriction on

the board’s power to discharge its responsibility to the peo-

ple of this state. The board was not bound by the initial

recommendations of the Education Department and the

consultants. Areas of concern in the Seminary program

identified in the consultants’ reports, such as the extent of

faculty accessibility and unclear program objectives and

intent, reasonably and justifiably could prompt a request

by the board for further study and evaluation. In addition,

at the time the application was first submitted to the board

9a

for action, substantial public concern about the practices

of the Seminary’s sponsoring organization had been voic-

ed by State and Federal legislators, members of the clergy

and oti.ers. Reports of KCIA involvement, brainwashing

and encouragement of deceptive fundraising and recruit-

ment practices were widespread. The board had a right to

investigate the serious allegations of illegal or unethical

conduct on the part of the Seminary sponsors and deter-

mine whether the Seminary participated in or encouraged

such conduct.

Petitioners do not and cannot dispute that the board

validly could deny a provisional charter to an institution

that engaged in “brainwashing” and deception. That the

broad investigation revealed no evidence of such practices

does not mean that it was improperly undertaken in the

first instance. The board cannot now be faulted because it

discharged its responsibility for ensuring ethical educa-

tional programs of quality and in the process discovered

serious deficiencies in the conduct of the academic pro-

gram.

Petitioners also contend that the board’s treat-

ment of the Seminary was discriminatory and infected

with bias. Relying on the affidavit of former Education

Commissioner Nyquist, they contend that no other appli-

cant has been subjected to such intensive investigation or

denied a charter for the deficiencies found. No factual

question of discrimination has been raised on this record.

Indeed, the only basis for the charge is the Nyquist af-

fidavit, which only conclusorily asserts these statements

based on his 25 years experience in the department and his

opinion of discriminatory treatment. This is not enough.

The applicant’s program deficiencies were amply

demonstrated. Nor was it discriminatory to require an

audited financial statement of the Unification Church.

10a

While the seminary initially satisfied the Education

Department of its financial stability, it did so on the basis

of the original financing plan, which relied on the backing

of the Unification Church of New York, Inc. Without

notice to the department, the plan was changed by

substituting the California organization for the now inac-

tive New York corporation. In light of this background,

the request for an audited rather than unaudited financial

statement was not unreasonable and cannot be termed

discriminatory.

Petitioners also maintain that the Board of Regents

was biased and unable to render an impartial decision. Of

course, an applicant is constitutionally entitled to unpre-

judiced decisionmaking by an administrative agency (see

Withrow v. Larkin, 421 U.S. 35, 46-47, 95 S.Ct. 1456,

1464-1465, 43 L.Ed.2d 712; Gibson v. Berryhill, 411 U.S.

564, 93 S.Ct. 1689, 36 L.Ed.2d 488). It follows that a

determination based not on a dispassionate review of facts

but on a body’s prejudgment or biased evaluation must be

set aside (see Matter of Rotwein [Goodman], 291 N.Y.

116, 123, 51 N.E.2d 669). But a mere allegation of bias

will not suffice. There must be a factual demonstration to

support the allegation of bias and proof that the outcome

flowed from it. Here, there is neither.

True, two Regents expressed strong opposition to

charter approval for the Seminary during the April, 1977

board meeting, noting the charges of political activity,

brainwashing and deception. But it was at that same

meeting that these Regents requested further investiga-

tions. Only one, Regent Yavner, became a committee

member. Of the two other members, one was equally

outspoken in favor of charter approval. The reports from

that committee were frank with respect to the lack of

lla

evidence found to substantiate the charges. The Regents’

comments, in the context in which they were made and in

the light of subsequent actions of the committee and the

board, do not evidence an inability on the part of the par-

ticular Regents or the whole board to make an unbiased

evaluation of the application once all the facts were in (see

Federal Trade Comm. v. Cement Inst., 333 U.S. 683, 68

S.Ct. 793, 92 L.Ed. 1010). Nor is it a question of fact rais-

ed as to bias by the isolated statement allegedly made by

an unnamed member of the December, 1977 review team

that the controversy was political rather than academic

and that the team had come to “find” a basis for the deci-

sion about to be made by the board. The source of this

Statement is unnamed and the facts upon which the state-

ment was based are undisclosed. Such a bare assertion

does not establish a fact question warranting denial of

summary judgment.

Petitioners also maintain that the statutes, rules and

regulations under which the board acted are unconstitu-

tionally vague and lacking in objective standards. This

court has not hesitated to annul a determination

predicated on rules and regulations that allow wholly sub-

jective decisionmaking without adequate “safeguards

against the exercise of arbitrary power or simple un-

fairness” (Matter of Nicholas v. Kahn, 47 N.Y .2d 24, 34,

416 N.Y.S.2d 565, 389 N.E.2d 1086; Matter of Levine v.

Whalen, 39 N.Y °d 510, 519, 384 N.Y.S.2d 721, 349

N.E.2d 820). Here, however, no such unrestrained power

is evident. Rather, the scheme for provisional charter ap-

proval is integrated with that for program registration and

provides sufficiently objective standards to enable mean-

ingful judicial review (see Education Law, §§ 216, 217,

218; 8 NYCRR 3.21, 3.22, 13.1, 52.1, 52.2; see, also,

Moore v. Board of Regents of Univ. of State of N.Y., 44

12a

N.Y.2d 593, 407 N.Y.S.2d 452, 378 N.E.2d 1022, supra).

It must be remembered that in the area of determinating

qualifications for educational institutions, where the

nature and quality of programs necessarily will vary,

precise criteria cannot be expected or demanded. The

statutes and regulations at issue here offer sufficiently

concrete guidelines and standards for judging an applicant

to prevent the unfettered or arbitrary exercise of discre-

tion.

The record reveals that no material factual question has

been raised by petitioners concerning bias or an abuse of

the administrative process. Petitioners were not denied

due process by the procedures employed. Summary judg-

ment was properly granted.

Accordingly, the orders of the Appeilate Division

should be affirmed, with costs.

JONES, Judge (dissenting).

While I would agree with the majority’s conclusion that

there exists a rational basis in the record sufficient to sus-

tain the Board of Regents’ determination denying peti-

tioners’ application for a provisional charter were that the

only issue, I cannot agree that there was not a tender of

proof sufficient, on a motion for summary judgment, to

require a hearing on the issue of administrative abuse,

which, if found to have occurred might be judged to have

vitiated what would otherwise have been accepted as a ra-

tional determination.

It is well settled that summary judgment is a drastic

remedy, to be granted only when it appears that no

material and triable issues of fact are presented (e.g.,

Glick & Dolleck v. Tri-Pac Export corp., 22 N.Y .2d 439,

293 N.Y.S.2d 93, 239 N.E.2d 725). While mere conclusory

l3a

allegations will never suffice to defeat a motion for sum-

mary judgment (e.g., Shaw v. Time-Life Records, 38

N.Y.2d 201, 379 N.Y.S.2d 390, 341 N.E.2d 817; Capelin

Assoc. v. Glove Mfg. Corp., 34 N.Y .2d 338, 357 N.Y.S.2d

478, 313 N.E.2d 776), where there is doubt as to the ex-

istence of such issues, or even if the issues are “arguable”,

summary judgment should not be granted (Barrett v.

Jacobs, 255 N.Y. 520, 175 N.E. 275). to avoid the imposi-

tion of the drastic remedy, the motion’s opponent must

tender proof of facts sufficient to require a trial of any

issue of fact (CPLR 3212, subd. [b]; Friends of Animals v.

Associated Fur Mfrs., 46 N.Y .2d 1065, 416 N.Y.S.2d 790,

390 N.E.2d 298). In this case, petitioners have met this

burden.

Petitioners contended they were denied their right to an

impartial administrative consideration of their applica-

tion. Specifically, they assert that the Board of Regents, or

at least certain of its members, were biased, and that the

board prejudged their application for a provisional charter

and otherwise abused the administrative process in a

calculated effort designed to prevent certification of the

Unification Theological Seminary. In support of these con-

tentions, over 600 pages of exhibits, affidavits, letters and

other documentary proof were tendered, a sampling of

which illustrates that petitioners made a sufficient factual

showing to entitle them to present this branch of their case

at a full hearing.

There was before Special Term an affidavit of former

Commissioner of Education Ewald B. Nyquist, who had

been Commissioner of Education for a period of over

seven years and during more than 25 years’ service with the

Department of Education had been “directly involved in

investigating, evaluating, reviewing and supervising the

processing of applications from numerous institutions

l4a

which applied for Provisional Charters”, and who was

commissioner at the time of petitioners’ application. On

the basis of such experience and with personal knowledge

of a substantial portion of the investigation, evaluation

and review of petitioners’ application and individual par-

ticipation in the decision-making process related thereto

prior to June 30, 1977, he stated, inter alia: that “members

of the Board of Regents and staff of the State Education

Department * * * acted in an arbitrary, capricious and

discriminatory manner”; that they “delayed making a deci-

sion on the application for an unconscionable length of

time in the hope of uncovering negative findings on which

to base a denial”; that “after almost two years of in-

vestigation and evaluation, no reason existed for denial

of the Seminary’s application nor did a reason exist for

further delaying a decision”, that “[m]embers of the Board

of Regents had on numerous occasions discussed and ex-

pressed concern over various non-academic questions, in-

cluding an alleged association between the leaders of the

Unification Church and the Korean Central Intelligence

Agency, alleged deceptive practices of the Unification

Church, alleged brainwashing techniques employed by the

Unification Church”; that “the Board of Regents have

chartered institutions with greater deficiencies and/or

fewer strengths than the Seminary possesses”; that “the

Seminary has been subjected to greater scrutiny and has

been held to higher requirements than other applicants for

a Provisional Charter”; that “The Board of Regents has

never before delayed a decision for an application for Pro-

visional Charter for such an extended period of time when

its consultants, staff and counsel recommended

approval”; that “[o]ne of the reasons stated as a ground

for denial was the lack of demonstration of necessary

financial resources * * * [based on the] failure to submit

audited financial statements”: and that “[iJn my over

1Sa

twenty-five years with the State Education Department the

submission of an audited financial statement by a sponsor-

ing entity was never a requirement to demonstrate ade-

quate financial resources of the applicant.”

Also tendered were excerpts from the journal of the

April, 1977 meeting of the Board of Regents which includ-

ed the statement of Regent Griffith that “The Unification

Church is a political arm of the South Korean government

(which I consider to be totalitarian) and possibly of the

South Korean CIA”, and that “I disapprove of the

Church’s purposes and activities. So I must, in logic and

conscience, reiterate my disapproval of the charter for the

Church’s seminary.”

There is an affidavit of David Sperling, who attended

the April, 1977 meeting of the Board of Regents, attesting

that Regent Yavner “accused the Unification Church and

its leaders of engaging in ‘brainwashing’ ” and stated that

“if proof is needed, we need time to get that proof ”.

Sperling further attested that Yavner stated he had read

the Divine Principle, which contains the religious beliefs

of the Unification Church, and found it “dangerous”,

analogizing it to Hitler’s Mein Kampf.

The significance of these statements in context is reveal-

ed in the statement of Regent Clark: “I am not satisfied

that the questions raised and the reasons offered in sup-

port of the motion to delay action upon this application

justify any delay. This body has granted temporary cer-

tification to other applicants in the past without raising

these types of questions. In regard to this application, it is

my personal belief that serious questions of discrimina-

tion, civil liberties and first amendment issues were at

stake.”

The record also contains a copy of the March 22, 1977

16a

Joint Resolution of the New York State Legislature

directed to the Board of Regents memorializing them to

delay action on petitioners’ application because “the

Unification Church and its founder, Reverend Sun Myung

Moon have made headlines recently for alleged

sophisticated brainwashing techniques on young people

luring them away from family and community ties.”

There was a letter to petitioner’s attorney from the

counsel to the Board of Regents dated six days prior to the

December, 1977 meeting of the Board of Regents revealing

the existence of six letters and affidavits adverse to the

Unification Chruch, some dated months earlier and all un-

substantiated, giving petitioners five days to respond.

There was also an affidavit by the dean of the Unifica-

tion Theological Seminary attesting that a Department of

Education “review team” conducted an on-site inspection

of the Seminary records on December 20, 1977 with

almost no forewarning at a time when the school registrar

and other staff familiar with the recordkeeping system

were away for the holidays.*

Finally, there was proof that substantially all of the

reasons ultimately articulated in the final report of the

Regents recommending denial of petitioners’ application

were developed in the last two months of the 34-month

period of investigation and review, primarily from infor-

mation garnered during the on-site inspection of

December 20, 1977, and that prior to that time no reasons

had been identified for denying the application.

*An unidentified person at the Seminary had been contacted by

telephone on December 19 at 4:30 P.M. by Dr. Tubbs of the Depart-

ment of Education who stated that five staff members would arrive

the following morning at 9:00 A.M. to conduct an inspection.

17a

This tender of proof in admissible form, although clear-

ly subject to contravention and to explanation, denigra-

tion and even demolition as to probative significance, in

the context of the undisputed facts that the application

was initially submitted April 29, 1975, that in the course of

the following 30 months of investigation the departmental

reports were uniformly favorable tc the application and

no ground had been advanced to support its denial, and

that it was not until after the hastily announced visitation

of December 20, 1977 that articulable grounds were

specified on which the application was denied, showed

facts sufficient to reqire a trial as to whether the in-

vestigative procedures and decision-making process of the

Board of Regents was infected with such bias, prejudice or

predisposition to ultimate determination as to call for the

vacatur of what would otherwise have been a rational

determination by the administrative agency charged with

responsibility therefor and vested generally with broad

discretion in connection therewith. I would deny

respondents’ motion for summary judgment seeking as it

does to obviate the necessity for a full evidentiary hearing

to which petitioners have demonstrated that they are en-

titled.

FUCHSBERG, Judge (dissenting).

Besides concurring in the dissent-in-chief, | add this

comment for myself:

Presented in this proceeding is a sharp issue as to

whether the board acted solely to discharge its respon-

sibility for ensuring educational programs of quality or

whether, on the bases summarized so well by Judge

JONES, its judgment was colored by the beliefs and prac-

tices of the petitioners. Without reflecting on the ultimate

merits, suffice it to say that there is enough shown by each

side to make it salutary as well as mandatory that the facts

be aired in the plenary and pensive atmosphere of a full

hearing. One would think that those who undertook the

unprecedentedly attenuated administrative investigation in

this case would themselves welcome the opportunity to

dissipate the cloud that might otherwise attach to their

determination. Whether the petitioners enterain beliefs

that may be disturbing to a majority of the residents of our

country is besides the point. As I see it, my duty as a

Judge, as was that of the Regents, is to apply the law, in all

its strength, equally to those whose philosophies are

popular or those whose are not.

JASSEN, GABRIELLI and WACHTLER, JJ., concur

with COOKE, C.J.

JONES, J., dissents and votes to reverse in a separate

opinion in which FUCHSBERG and MEYER, JJ., con-

cur.

FUCHSBERG, J., dissents in another dissenting opi-

nion.

Orders affirmed.

19a

APPENDIX B

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION

Third Judicial Department

PRESENT:

HON. A FRANKLIN MAHONEY seein

Presiding Justice, County Clerk's

index No

r

HON. LOUIS M. GREENBLOTT 10168."

HON. ROBERT G. MAIN ‘sitepaceteaiaiuasiiien

HON. ANN T. MIKOLL Senor es and fore Tn

re eee 2 cae wy MEE

Associate Justices. February, 1980

MICHAEL YOUNG WARDER, NEIL ALBERT

SALONEN, EDWIN ANG, DAVID S. C. KIM, BO-HI

PAK, SUN MYUNG MOON, JOSEPH A. TULLY,

WILLIAM BERGMAN, and MOSE DURST, as propos-

ed First Trustees of Unification Theological Seminary,

Appellants,

against

THE BOARD OF REGENTS OF THE STATE OF NEW

YORK AND GORDON M. AMBACH, AS COMMIS-

SIONER OF EDUCATION OF THE STATE OF NEW

YORK,

Respondents,

For an Order Pursuant to Article 78 of the Civil Practice

Law and Rules.

Appellants above-named having appealed from a judg-

ment of the Supreme Court of Albany County entered on

the 14th day of November, 1978 in the Office of the Clerk

of the County of Albany and said appeal having been

20a

presented during the above stated term of this Court and

having been argued by O’Connell and Aronowitz, at-

torneys for appellants, Peter L. Danziger, Esq., of

counsel, and by Robert D. Stone, Esq., attorney for

respondents, by Donald O. Meserve, Esq., of counsel for

respondents, and, after due deliberation, the Court having

rendered a decision on the 10th day of April, 1980, it is

hereby

Ordered that the judgment so appealed from be, and the

same hereby is, affirmed, without costs.

ENTER:

/s/John J. O’Brien

Clerk

DATED AND ENTERED: May 12, 1980

A TRUE COPY

/s/John J. O’Brien

Clerk

2la

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION

Third Judicial Department

April 10, 19801 36216

36209

In the Matter of MICHAEL YOUNG WARDER et ai.,

Appellants,

v.

BOARD OF REGENTS OF THE UNIVERSITY OF THE

STATE OF NEW YORK e ai/.,

(Proceeding No.1.) Respondents.

In the Matter of MICHAEL YOUNG WARDER e ai.,

Appellants,

Vv,

BOARD OF REGENTS OF THE UNIVERSITY OF THE

STATE OF NEW YORK et ai.,

(Proceeding No. 2.) Respondents.

Appeal, in Proceeding No. |, from a judgment of the

Supreme Court at Special Term (Staley, Jr., J.), entered

November 14, 1978 in Albany County, which dismissed

petitioners’ application in a proceeding pursuant to

CPLR article 78, to compel respondents to issue a deter-

mination on petitioners’ application for a provisional

charter to operate an academic institution.

Appeal, in Proceeding No. 2, from a judgment of the

Supreme Court at Special Term (Conway, J.), entered

November 14, 1978 in Albany County, which dismissed

22a

petitioners’ application, in a proceeding pursuant to

CPLR article 78, to annul respondents’ determination

which denied petitioners’ application for a provisional

charter to operate an academic institution.

The two proceedings herein arise out of the same con-

troversy, and, accordingly, we will consider them together

in this decision.

Petitioners are the proposed first trustees of the Unifica-

tion Theological Seminary, which has been operated in

Barrytown, New York, since 1975, as an unaccredited in-

stitution by the Holy Spirit Association for the Unification

of World Christianity, i.e., the Unification Church. In

April of 1975, pursuant to article 5 of the Education Law,

petitioners applied to respondent Board of Regents for a

provisional charter for the institution without which they

could not obtain the legal authority to confer Master of

Religious Education degrees upon graduates of the

seminary. The Regents had made no determination con-

cerning petitioners’ application by July of 1977, however,

and, contending that the decision thereon had been

unreasonably delayed, petitioners commenced a CPLR ar-

ticle 78 proceeding to compel the Regents to act (Fro-

ceeding No. 1). In a decision dated November 28, 1977,

Special Term (Staley, Jr., J.) ruled that the delay was not

unreasonable under the circumstances presented and that

the petition should be dismissed.

No order was immediately entered on this decision,

however, and on February 22, 1978 the Regents ultimately

denied petitioners’ application for a provisional charter.

As a result, petitioners instituted a second CPLR article 78

proceeding to review the Regents’ decision on the merits

(Proceeding No. 2), and by decision mailed September 13,

1978, Special Term (Conway, J.) held that a rational basis

23a

existed in the reco:d for the Regents’ determination, and,

consequently, granted respondents’ cross motion for sum-

mary judgment dismissing the petition. Orders in both of

the instant proceedings were subsequently signed on Oc-

tober 18, 1978 and entered in Albany County on

November 14, 1978, and petitioners now appeal

therefrom.

Considering initially the appeal in Proceeding No. 1,

we hold that the order of dismissal therein should be af-

firmed. Since the Regents have, as noted above, made a

final determination of petitioners’ request for a provi-

sional charter, the subject matter of this dispute has been

rendered moot and academic in all respects except for the

fact that petitioners do not want Special Term’s ruling that

the Regents’ delay in making a determination was

reasonable to be binding in petitoners’ challenge to the

determination in Proceeding No. 2 on the merits. That be-

ing sO, petitioners have preserved the issue of the

reasonableness of the delay by their appeal in Proceeding

No. 1, but upon our review of the record we nonetheless

conclude that Special Term’s ruling relative to the delay

should not be disturbed. Not only is the Board of Regents

a body of professional persons who meet only about once

a month (8 NYCRR 3.1 [b]), but also in March of 1977 the

State legislature in a joint resolution requested that the

board stay consideration of petitioners’ application for a

charter until extensive investigations and public hearings

were held regarding the activities of the Unification

Church and its founder, Reverend Sun Myung Moon. Fur-

thermore, an examination of the records in these

proceedings readily reveals that the Regents had a large

volume of material to consider in ruling on petitioners’ ap-

plication, and also, there has been no showing that the

Regents engineered the subject delay in bad faith (cf.

24a

British Airways v. Port Authority of New York and New

Jersey, 564 F.2d 1002)j. With these circumstances prevail-

ing, the petition in Proceeding No. | was properly dismiss-

ed.

Turning now to the second proceeding, we agree with

Special Term that there is a rational basis in the record for

the Regents’ denial of a provisional charter to petitioners.

On this issue, we note that the financial base of the semi-

nary was unnecessarily [sic] brought into question when

the State Education Department was not initially apprised

by petitioners of the transfer of the assets of the Unifica-

tion Church of New York Inc., which was originally in-

tended to provide the seminary’s financial support, to the

Unification Church of America, a California corporation

which is now supposed to provide the needed financial

backing. Moreover, when they were later requested by the

Regents to do so, petitioners also refused to provide an

audited financial statement of the California corporation

(see Education Law,§ 218; 8 NYCRR 3.21[a]; 8 NYCRR

52.2[a]). Additionally, there is further evidence that peti-

tioners falsely represented that the seminary was qualified

to grant degrees even after being warned not to do so, that

the seminary actually prepared and issued transcripts in-

dicating that masters degrees had been awarded to its

graduates and that the Registrar of the seminary failed to

maintain adequate records relative to the academic pro-

gress of students at the seminary. Upon such a record as

this, there is clearly substantial evidentiary support for the

Regents’ denial of a provisional charter to petitioners,

and, consequently, the Regents’ decision to that effect has

a rational basis.

That being so, this deicsion must be sustained unless the

procedures followed by the Regents in making their deter-

2Sa

mination were somehow legally insufficient (Matter of

Pell v. Board of Educ., 34 N Y 2d 222) and we conclude

that they were not. In their challenge to the legal basis of

the determination, petitioners initially argue that sections

216, 217 and 218 of the Education Law and sections 3.21

and 3.22 of the Rules of the Board of Regents (8 NYCRR

3.21, 3.22), which regulate the granting of provisional

charters, are unconstitutional because they contain no ob-

jective standards and fail to provide an applicant with

notice of the requirements to obtain a charter. We find

this contention to be without merit, and, in so ruling,

would note that, in considering an application for a provi-

sional charter, the Regents must act in an area where rigid

formulas and definitive rules are feasible or even desirable

and where the Regents must exercise their collective pro-

fessional judgment, and applicants are chargeable with

knowledge of the more commonly accepted standards by

which they will be judged (cf. Moore v. Board of Regents,

59 AD 2d 44, affd. 44 NY 2d 593). Moreover, we would

further emphasize that an examination of the above-cited

statutes and rules and also Rules 3.23, 3.46 and 3.47 of the

Board of Regents (8 YYCRR 3.23, 3.46, 3.47) and Regula-

tions 52.1 and 52.2 of the Commissioner of Education (8

NYCRR 52.1, 52.2) readily reveals that, taken together,

they contain adequate guidelines relative to the operation

of an academic institution so that applicants for a charter

such as petitioners have sufficient notice of the standards

which they must meet.

Similarly without merit is petitioner’s contention that

the Regents’ determination must be annulled because two

members of the board were biased and prejudged the facts

with regard to the charter application, thereby denying

petitioners due process of law. While there is evidence in

the record that at a board meeting in April of 1977,

26a

Regents Griffith and Yavner expressed misgivings as to the

policies and operation of the Unification Church and as to

the advisability of granting a charter to a seminary

operated by that church, such misgivings must be jux-

taposed with those of the Legislature as evidenced by the

joint resolution noted above. Furthermore, Griffith and

Yavner both indicated in their statements not that the

charter application could not be approved, but rather that

further investigation of the matter was needed. Under

these circumstances, there has been no showing that

Regents Griffith and Yavner could not objectively con-

sider the charter application on its own merits with their

individual judgments unaffected by extraneous matters

prejudicial to petitioners’ cause (cf. Hortonville Joint

School Dist. v. Hortonville Education Assn., 426 U.S.

482).

Petitioners’ remaining arguments are likewise lacking in

substance. There has been absolutely no showing that

either the Education Law or petitioners’ freedom of

association has been violated by the Regents in making

their determination herein. Additionally, petitioners have

not been denied equal protection of the law merely

because their application was closely scrutinized, and the

Regents did not violate the Open Meetings Law by holding

an executive session to discuss pending litigation (see

Public Officers Law, § 100, subd. [d]). Lastly, we find

that summary judgment was properly granted to

respondents because no material factual issues have been

presented which would have necessitated a hearing.

In sum, our consideration of the voluminous records in

these proceedings has led us to conclude that this charter

application has been thoroughly and properly investigated

and that petitioners have been afforded a fully and fair op-

portunity to present their case in support of the applica-

tion. Most significantly, it is also clear that the application

27a

was denied because the seminary failed to meet the

academic and financial requirements essential for the is-

suance of a charter.

Judgments affirmed, without costs.

MAHONEY, P.J., GREENBLOTT, MAIN, MIKOLL

and CASEY, JJ., concur.

28a

APPENDIX C

Ata oo eo hee —— JUDGMENT

York, held wn and for peor ncn ot Index No. 10168 78

Albany, at the County Courthouse,

m the City of Albany, on the 22nd

day of July, 1977

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF ALBANY

PRESENT: HON. ELLIS J. STALEY, JR.

Justice

MICHAEL YOUNG WARDER, NEIL ALBERT

SALONEN, EDWIN ANG, DAVID S.C. KIM, BO-HI

PAK, SUN MYUNG MOON, JOSEPH A. TULLY,

WILLIAM BERGMAN, and MOST DURST, as pro-

posed First Trustees of the Unification Theological

Seminary, Petitioners,

against

THE BOARD OF REGENTS OF THE STATE OF NEW

YORK and GORDON AMBACH, as Commissioner of

Education of the State of New York, Respondents.

For an Order and Judgment Pursuant to Articel 78 of the

CPLR.

Petitioners above named, by their attorneys, O’Connell

and Aronowitz, Esqs., having commenced a Special Pro-

ceeding pursuant to Article 78 of the Civil Practice Law

and Rules for an order compelling respondents to act im-

mediately and at the next regularly scheduled meeting of

the Board of Regents to either grant or deny petitioners’

application for a provisional charter and for authority to

offer a masters degree program, and in the event of a

denial to require respondents to specifically set forth in

29a

writing each and every reason for denial and the minimum

requirements for approval, and respondents by their at-

torney, Robert D. Stone, having raised objections in point

of law and having answered the petition, and said pro-

ceeding and objections having regularly come on to be

heard before me, at a Special Term of this Court on July

22, 1977, and Peter L. Danziger having appeared of

counsel for petitioners and Donald O. Meserve having ap-

peared of counsel for respondents, and after due delibera-

tion,

NOW upon reading and filing the order to show cause

signed by the Hon. Edward S. Conway, July 12, 1977, the

petition verified the same day and exhibits thereto, the ob-

jections in point of law and answer verified July 20, 1977

and exhibits thereto, the affidavit of Correlius D. Murray

sworn to July 20, 1977 and exhibits thereto, and upon the

written decision of this Court dated November 28, 1977, it

is

ORDERED, ADJUDGED AND DECREED that the

petition is hereby dismissed on the merits.

/s/ Hon. Ellis J. Staley, Jr.

Justice of the Supreme Court

DATED: October 18, 1978

ENTER: November 14, 1978

30a

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF ALBANY

MICHAEL YOUNG WARDER, NEIL ALBERT

SALONEN, EDWIN ANG, DAVID S.C. KIM, BO—HI

PAK, SUN MYUNG MOON, JOSEPH A. TULLY,

WILLIAM BERGMAN, and MOSE DURST, as pro-

posed First Trustees of the Unification Theological

Seminary,

Petitioner,

against

THE BOARD OF REGENTS OF THE STATE OF NEW

YORK and GORDON AMBACH, as Commissioner of

Education of the Stte of New York,

Respondents.

For an Order and Judgment Pursuant to Article 78 of the

CPLR.

Supreme Court, Albany County, Special Term, July 22,

1977 Calendar #54

JUSTICE ELLIS J. STALEY, JR., PRESIDING

APPEARANCES: O’Connell & Aronowitz, P.C.

Attorneys for Petitioners

100 State Street

Albany, New York 12207

Robert D. Stone, Esq.

Attorney for Respondents

New York State Education

Department

Education Building

Albany, New York 12224

Ata

STALEY, JR., J:

This is a proceeding pursuant to CPLR article 78 for an

order requiring the respondents to act immediately and

without further delay, and at the Board of Regents next

regularly scheduled meeting to cither grant or deny the

petitioner’s application for a provisional charter.

On or about April 29, 1975, some of the petitioners sub-

mitted an application for a provisional charter for the in-

corporation of the Unification Theological Seminary to

the Office of Counsel of the Department of Education.

The staff at the Department of Education worked with

some of the petitioners and their representatives in the

preparation of the petition, and in the collection of the

data and information which they felt was necessary for the

proper evaluation of the petition.

In the month of February, 1977 the application was

transmitted to the Committee on Administration and Law

of the Board of Regents. On February 22, 1977, the ap-

plication was considered at a meeting of the Committee on

Higher and Professional Education of the Board of

Regents at which time the Department of Education

recommended approval. After discussion, it was deter-

mined that further information was required, and the ap-

plication was tabled until the next meeting in March, 1977.

The application was not considered at the March meeting

and, at the meeting held on April 22, 1977, the Board of

Regents resolved that a panel of Regents be appointed to

study the questions concerning the application and submit

an interim report at the July meeting, and a final report at

the November meeting with final action by the Board of

Regents to be taken at the December mecting of the

Board.

The petition alleges that the Board of Regents has had

32a

ample time to study the issues connected with the

Seminary’s application, and that the Board’s refusal and

failure to act on the application has caused and continues

to cause irreparable and subsiantiai damage to the

Seminary. It is further alleged that the delay is illegal in

that (1) the petitioners have compiled with all requests

made on behalf of the Board; (2) representatives of the

Board have inspected the facility and fully reviewed its

curriculum, faculty, student body and resources; (3) the

experts approved by the Board have conducted a detailed

review and have unanimously recommended that a provi-

sional charter be granted; (4) the Board’s failure and

refusal to act in either accepting or rejecting the applica-

tion is a denial of due process of law and a deprivation of

constitutional rights, including freedom of speech,

religion and the right to exercise one’s beliefs; and (5) the

Board’s failure and refusal to act prevents the Seminary

from exercising its right of jr dicial review.

Respondents’ answer alleges (1) that the authority of the

Board of Regents to grant or deny a charger is discre-

tionary; (2) that the application was first submitted to the

Board at its meeting in February, 1977; (3) that questions

were raised by some of the Regents concerning the pro-

posed seminary, regarding its proposed resources, cur-

riculum, faculty, manner of initial operation, and manner

of operation and ability to operate in the future; (4) that

the Board has the responsibility of determining to its own

satisfaction that the proposed institution meets all of the

requirements for a charter, as set forth in the Education

Law; (5) that the Board has not yet resolved this important

question; and (6) that the Board adopted a resolution at its

April, 1977 meeting providing for a panel of experts to

study the issues and report to the Board to enable the

Board to carry out its responsibilities, and bring the matter

to a conclusion as soon as reasonably possible.

33a

A board, body or officer vested with power to deter-

mine an issue or question of fact may be compelled, pur-

suant to CPLR article 78, to determine the fact, but may

not be compelled or directed to decide in a particular way.

(People ex rel. Harris v. Comrs. of the Land Office, 149

N.Y. 26; Matter of Stuart & Stuart v. New York State Liq.

Auth., 29 A D 2d 176.)

Although this application was submitted to the Depart-

ment of Education on April 29, 1975, it was not submitted

to the Board of Regents until February, 1977. During this

period of almost two years, the staff at the Department of

Education worked with petitioners’ representatives to col-

lect the information and data essential to the evaluation of

the petition prior to submission to the Board. Upon com-

pletion of the preliminary investigations, site inspections

and reports, the petition was submitted to the Board.

The authority to grant a charter or provisional charter

rests with the Board of Regents. Section 217 of the Educa-

tion Law provides, in part, as follows:

“On evidence satisfactory to the regents that the condi-

tions for an absolute charter will be met within a pre-

scribed time, they may grant a provisional charter which

shall be replaced by an absolute charter when the condi-

tions have been fully met, * * * .”

The fact that the Department of Education has recom-

mended approval does not, therefore, preclude the Board

of Regents from making a further investigation before ex-

ercising their power to grant or deny a provisional

charters. The Board of Regents is not a full time state

agency, the members thereof meeting only once a month.

Nothing in the Education Law or in the Board’s regula-

tions requires the Board to act within a specified time.

There being no required period in which to act, the Board

34a

would be required to act within a reasonable time con-

sidering all of the facts and circumstances. Here, questions

were raised by some members of the Board concerning the

educational program, the curriculum, faculty, textbooks,

resources materials, the finances of the seminary, and the

sponsoring agency by other government agencies. In

March, 1977, the Legislature by resolution required the

Regents to make further investigation. This expression of

legislative concern is some justification for deferring ac-

tion until the matter has been carefully considered.

Considering the makeup of the Board, the fact that it

meets only once a month, the issues involved and the

Board’s obligations and duties under the Education Law,

it does not appear that the delay involved here under the

resolution adopted by the Board at its April 1977 meeting,

is not [sic] unreasonable.

The petitioners point to the long period of time involved

in obtaining information for preparation of the petition

for submission to the Board, but they have not established

that the action of the Board in requiring further investiga-

tion is unreasonable.

The petition is, therefore, dismissed.

Attorney for respondents to submit order.

All papers to the attorney for respondents for filing

upon entry of the order herein.

Date: November 28, 1977.

35a

APPENDIX D

STATE OF NEW YORK

SUPREME COURT COUNTY OF ALBANY

PRESENT: HON. EDWARD C. CONWAY,

Justice

In the Matter of the Application

of

MICHAEL YOUNG WARDER, EDWIN ANG, DAVID S.C. KIM.

WILLIAM BERGMAN and MOSE DURST, as proposed First

Trustees of the Unification Theological Seminary,

Petitioners,

against

THE BOARD OF REGENTS OF THE UNIVERSITY OF THE

STATE OF NEW YORK and GORDAN AMBACH, as Commis-

sioner of Education of the State of New York,

Respondents,

For an Order and Judgment Pursuant to Article 78 of the CPLR.

At a special Term, Part | of the

Supreme Court of the State of

New York, held im and for the

County of Albany, at the Coun

ty Courthouse, in the Cuy of

Albany, on the 2%th day of

August, 1978

Petitioners above named by their attorneys, O’Connell

and Aronowitz, having commenced a special proceeding

pursuant to Article 78 of the Civil Practice Law and Rules

for an order compelling respondents to issue a provisional

charter to the Unification Theological Seminary, and

restraining respondents from interfering with the peti-

tioners granting a masters degree to graduates of the

Seminary and for other and further relief, and

respondents by their attorney, Robert D. Stone having

served objections in point of law and an answer and hav-

36a

ing moved for summary judgment, and petitioners having

filed a cross-motion to require respondents to submit a

more definite answer, and said motions having come

before this Court at Special Term on August 25, 1978, and

Peter L. Danziger having appeared of counsel for peti-

tioners, and Donald O. Meserve having appeared of

counsel for respondents, and after due deliberation,

NOW upon reading and fiing the notice of petition and

petition verified June 21, 1978 and the appendix of ex-

hibits thereto, the objections in point of law and answer

verified August 16, 1978, the notice of motion for sum-

mary judgment and the supporting affidavit of Robert D.

Stone, the reply verified August 24, 1978, the affidavits of

David Sperling, Ewald B. Nyquist and Theresa M.

Stewart, dated August 18, 21 and 24, 1978, the notice of

cross-motion for a more definite answer and supporting

affidavit of Peter L. Danziger, the affidavit on procedural

matters of Donald O. Meserve, and upon the written deci-

sion of this Court dated September 13, 1978, it is

ORDERED, ADJUDGED AND DECREED that the

respondents’ motion for summary judgment is granted,

and the petition is dismissed on the merits.

/s/Hon. Edward C. Conway

Justice of the Supreme Court

Dated: October 18, 1978

ENTER: November 14, 1978

37a

STATE OF NEW YORK

SUPREME COURT COUNTY OF ALBANY

In the Matter of the Application

of

MICHAEL YOUNG WARDER, EDWIN ANG, DAVID

S. C. KIM, WILLIAM BERGMAN and MOSE DURST,

as proposed First Trustees of the Unification Theological

Seminary,

Petitioners,

against

THE BOARD OF REGENTS OF THE UNIVERSITY OF

THE STATE OF NEW YORK and GORDON AMBACH,

as Commissioner of Education of the State of New York,

Respondents,

For an Order and Judgment Pursuant to Article 78 of the

Civil Practice Law and Rules

Supreme Court, Albany County Special Term,

August 25, 1978 Justice Edward S. Conway, presiding

(Calendar #19)

38a

APPEARANCES:

O’CONNELL and ARONOWITZ, Esas.

Attorneys for Petitioners

Peter L. Danziger, Esq., of Counsel

100 State Street

Albany, New York 12207

Robert D. Stone, Esq.

Attorney for Respondents

Donald O. Meserve, Esq., of Counsel

New York State Education Department

Education Building

Albany, New York 12224

CONWAY, J:

This is an Article 78 preceeding whereby petitioners

seek an order: 1) annulling the determination of the

respondents denying their application for a Provisional

Charter as an institution of higher education, and 2) com-

pelling the respondents to grant such a Provisional

Charter.

Respondents cross-move for summary judgment

dismissing the petition on the ground that the determina-

tion sought to be reviewed in this proceeding has a rational

basis and is not affected by an error of law.

Petitioners, the proposed First Trustees of the Unifica-

tion Theological Seminary, are and have been since 1975

operating the Unification Theological Seminary

(hereinafter referred to as the Seminary). The Seminary

conducts a program of religious education to its students

at facilities located in Barrytown in Dutchess County, New

York.

39a

The Seminary is sponsored and financially supported by

a religious organization incorporated in 1961 in the State

of California and known as the Holy Spirit Association

for the Unification of World Christianity (hereinafter

referred to as the Unification Church). The Seminary is

operating a two-year program of graduate study at Barry-

town and seeks the authority to grant graduate degrees of

Master of Religious Educatin as well as the aforemention-

ed Provisional Charter.

In April of 1975, petitioners submitted an application to

the Board of Regents (hereinafter referred to as the Board)

for said Provisional Charter. The application was initially

evaluated by the staff of the State Education Department

with the assistance of two independent consultants jointly

selected by the State Education Department and the

Seminary. Both the staff and the consultants recom-

mended approval of the application. The matter was sub-

mitted to the Board for its consideration in February,

1977.

The Board indicated 2 number of areas of concern

which it felt required further consideration, and appointed

a special committee of three Regents to look into the mat-

ter and report back to the full Board.

After further study and an additional visit to the

Seminary to observe its actual operation, the State Educa-

tion Department staff reversed its earlier favorable recom-

mendation and recommended that petitioners application

be denied. The Committee of Regents also recommended

disapproval and the full Board voted to deny petitioners

application by a vote of 13 to 0.

Petitioners contend that the final decision of the Board

was illegal, arbitrary, capricious and discriminatory in

40a

that the final decision was not based on any legal grounds

but was instead the result of bias and prejudice.

This Court cannot agree with the contentions of the

Petitioners. The ultimate facts upon which the Board’s

determination was based are set forth in the final repor: of

the Committee of Regents dated February 22, 1978. The

report summarizes the deficiences which led the Board to

conclude that the Seminary does not meet the standards of

operation of degree-granting institutions. For example,

the Committee of Regents found:

“1. The Seminary has falsely represented that it

has the authority to confer academic degrees,

and it has in fact purported to confer such

degrees.

2. The Seminary has led the Department and the

Department’s consultants to believe that it is

operating in accordance with the academic

plan set forth in support of the petition,

whereas in fact it is not.

3. The operation of the Seminary reveals an in-

sufficient regard for and compliance with the

basic standards for the administration of a

degree program.

4. The Seminary has not demonstrated that it

possesses the necessary financial resources to

operate a degree program.”

As long as there is a rational basis in the record for the

Board’s determination or there are facts in the record more

than sufficient to sustain the Board’s determination, this

Court cannot disturb the determination and substitute its

opinion and expertise in the place of the respondent’s,

4la

even if it might want to do so (Matter of Pell v. Board of

Education, 34 NY 2d 222; Matter of Stracquadanio v.

Depariment of Health;, 285 N.Y. 93).

There is a rational basis in the record for respondent’s

determination and, therefore, the petition is denied and

the respondents cross-motion for summary judgment

dismissing the petition is granted.

Respondents to submit order.

All papers to the Attorney for Respondents for filing upon

entry of the order hereon.

Opinion mailed 9/13/78.

42a

APPENDIX E

FINAL COMMITTEE RECOMMENDATION

Board of Regents

The University of the State of New York

the State Education Building

Albany, New York 12234

TO: The Honorable The [sic] Members of The

Board of Regents

FROM: _ Regents Genrich, Yavner and Bongiorno

SUBJECT: Unification Theological Seminary

Pursuant to a resolution of the Board of Regents

adopted on April 29, 1977, we have made, with the

assistance of staff of the Department, a study of various

issues connected with the petition of the Unification

Theological Seminary for the issuance of a charter and ap-

proval of an institutional master plan authorizing the

Seminary to offer a program in religious education leading

to the degree of Master of Religious Education.

Following the adoption of the April 29, 1977 resolution,

we undertook a review of the academic questions raised by

the reports cf the consultants who visited the Seminary.

We also made inquiries concerning other matters and pro-

ceedings involving The Holy Spirit Association for the

Unification of World Christianity (the Unification

Church) and its members to ascertain whether or not those

proceedings had produced evidence related to the pending

application.

I as chairman of the ad hoc committee gave an oral in-

terim report on these matters in executive session at the

July, 1977 Regents meeting. In November, 1977 we

reported to the full Board on the status of our inquiries,

43a

and a further report was submitted to the Board by staff at

the December, 1977 meeting.

Our last report was submitted to the Regents for action

at last months meeting. At that time, the petitioners sub-

mitted additional information and Mr. Warder spoke. In

order to give due consideration to the new data they

presented and to allow staff time to respond the matter

was tabled until this meeting.

Throughout our review, we have given the petitioners a

full opportunity to respond to relevant comments which

we have received from others which tended to reflect

adversely on their application, and we have asked them for

clarification and explanation of various matters concern-

ing the nature and operation of the Seminary. Their

responses have all be distributed to all members of this

Board including the information which was sent to me as

late as last Saturday, February 18, 1978.

The record before the Board of Regents includes the

material submitted at the meetings of the Board held in

February, March, April, November, December, 1977 and

January, 1978, this report and the annexed staff report,

and the additional material submitted for consideration at

the January and February 1978 meeting. The

developments subsequent to the December, 1977 staff

report are reviewed in the annexed staff report, which also

sets forth the conclusions and recommendation of staff

and of the Commissioner, and the underlying facts upon

which they are based.

We found during the course of our review that informa-

tion provided by the petitioners to the Department and the

Regents has been inconsistent and conflicting... Because

some of that information, we well as information pro-

>

44a

vided by others, related to academic and administrative

aspects of the operation of the Seminary, it was deter-

mined that related records of the Seminary should be

reviewed by Department staff. A site visit for that purpose

was conducted by staff on December 20, 1977. The results

are fully discussed in the attached staff reports.

Staff has found discrepancies between the policies and

practices of the Seminary as represented to the con-

sultants, the Department and the Regents by the peti-

tioners, and the policies and practices actually in use at the

Seminary. It has also found serious deficiencies in the con-

duct and administration of the academic program. Those

findings are fully set forth in the accompanying staff

reports and in the notes and exhibits thereto, and it is not

necessary to repeat them here in detail. However, | do

point out for example, during the December visit staff

learned that the baccalaureate degree was not required of

many foreign students; that the Seminary had no reliable

way of determining whether or not these students held a

baccalaureate degree or its equivalent. Students were not

required to submit letters of reference from former pro-

fessors as stated in the Seminary requirements. Briefly

staff report among other things shows that during the

course of the December 20 visit, staff learned that the

Seminary has distributed a printed catalog for the 1977-78

academic year which represents that the Seminary con-

ducts a program leading to the degree of Master of

Religious Education. The Seminary has no authority to

confer that degree, or any other degree and had given the

Department assurance that it would not make representa-

tions to the contrary. A similar previous incident, involv-

ing a brochure which was distributed by the Seminary in

1976 and which announced the offering of the M.R.E.

degree, was discussed in the November 18, 1977 report of

45a

this Committee. In their December response to that

report, Messrs. Warder and Ang and Mrs. Stewart admit-

ted the improper distribution of the 1976 brochure, regret-

ted the action, and stated that they had corrected it, even

though The Seminary was then in the process of

distributing a catalog which continued to misrepresent the

facts. Attached to this report are copies of pages 33 and 34

of the Seminary’s 1977-78 catalog.

We emphasize the staff finding that the Seminary has

repeatedly represented that it offers a degree program and

has prepared and issued transcripts indicating the degrees

have been awarded, in spite of assurances that it would not

misrepresent its status, and in violation of Education Law

sections 210, 218 and 224, Rules 3.46 of the Rules of the

Board of Regents and Part 52 of the Regulations of the

Commissioner of Education.

We also note that under the financial plan originally

submitted by petitioners, the Seminary would have been

dependent upon a lease of property to the Unification

Church of New York, Inc., a New York corporation, for

rental income which would provide it with money to meet

operating expenses and to meet the financial assets re-

quirement of section 218 of the Education Law. Staff ob-

tained a financial report for that corporation, and was sat-

isfied that it had the resources necessary to fulfill its

obligations under the lease arrangement. Staff later

discovered that the said corporation was no longer active,

and had disposed of most if its assets. When staff asked

petitioners about this development, petitioners admitted

that most of the assets of the New York corporation had

been transferred to The Holy Spirit Association for the

Unification of World Christianity, a California corpora-

tion. They then submitted a similar lease arrangement be-

46a

tween the Seminary and the California corporation. Staff

on two separate occasions requested an audited financial

statement for the California corporation. While a finan-

cial statement has been submitted, it is not an audited

statement and is therefore unacceptable. As a result, no

satisfactory demonstration has been made that the

Seminary has the necessary financial resources to operate

a degree granting institution of higher education.

Your Committee has concluded that the findings and

recommendations of the staff and the Commissioner

should be accepted, and that the application for the is-

suance of a provisional charter to Unif cation Theological

Seminary, and for approval of its proposed institutional

master plan, should be denied.

Your Committee’s review has been conducted at all

times with a scrupulous respect for the petitioners’ con-

Stitutional rights to freedom of speech, freedom of

religion, and due process of law. We have limited our in-

quiry to the actual and proposed operation of the

Seminary and to the actions, but not the beliefs of its

sponsors. This is in accordance with the statement adopted

by the full Board on February 24, 1977. We have con-

sidered only actions which are related to the fitness of this

institution to be admitted to membership in The Univer-

sity of the State of New York and to hold and exercise the

authority to grant graduate degrees. The issue before us is

not whether we approve of the Unification Church or its

beliefs, but whether the Seminary meets the standards of

The University of the State of New York and of the

academic community which it seeks to join. We have con-

cluded that it does not. Some of the questions raised dur-

ing the course of our study are still unresolved. However,

the facts now before us convince us that further inquiry is

not necessary.

47a

We conclude that the Unification Theological Seminary

does not meet the standards of operation of degree grant-

ing institutions. The Seminary has falsely represented that

it has the authority to confer academic degrees, and it has

in fact purported to confer such degrees. The Seminary

has led the Department and the Department’s consultants

to believe that it is operating in accordance with the

academic plan set forth in support of the petition, whereas

in fact it is not. The operation of the Seminary reveals an

insufficient regard for and compliance with the basic stan-

dards for the administration of a degree program. The

Seminary has not demonstrated that it possesses the

necessary financial resources to operate a degree program.

It should not be emphasized that the denial of the peti-

tioners’ requests does not affect their right to hold or

practice their religious beliefs, or to continue to operate

the Seminary as a non-degree granting institution.

Your Committee recommends, and I move, that the

Board of Regents take the following action:

Voted that the petition for the issuance of a provisional

charter to the Unification Theological Seminary and the

Seminary’s application for approval of its institutional

master plan are denied.

2/22/78

‘uonisoddg

T Office - Supreme Court, Us. |

LED

IN THE

Supreme Court of the United

OcToser TERM, 1981

MICHAEL YOUNG WARDER, et al.,

as Proposed First Trustees of the

Unification Theological Seminary,

Petitioners,

vs.

THE BOARD OF REGENTS OF THE UNIVERSITY

OF THE STATE OF NEw YorK,

Respondent.

PETITION For WRIT OF CERTIORARI

TO THE STATE OF NEw YORK COURT OF APPEALS

BRIEF FOR RESPONDENT OPPOSING CERTIORARI

Rosert D. STONE

Attorney for Respondent

State Education Department

Office & P O Address

Washington Avenue

Albany NY 12234

(518) 474-8869

Jean M. Coon

DonaLp O. MESERVE

Of Counsel

(11679)

(i)

Table of Contents

Page

Table of Authority... .ccccccccccccces

Statement of the Case......csccecceees

APBUMENE c cccccccecccccccccvccccccccce

1.

2.

36

The Decision Of The Court

Below Does Not Conflict

oie aeaae tanec ¥ 5

s Court Conce s-

ification yy fo a

BER EMEs oeesoccececeeessooees

The Decision Below Does

Not Conflict With This

Court's Decision In Perry

Vv Sindermann....cseccceseceses

The Decision Of The Court

Below Does Not Conflict

With Decisions Of This

Court Relating To The

Equal Protection Of The

POT TT TTTTTTTTirTriTiTiTeT

GOMSIMSESMc ccccccecocececcoeeeeeoeeee

ii

1

11

11

21

32

(ii)

Table of Authority

Board of Regents v Roth,

408 U.8. 564 1972 eeeeeeeeeneeeeee 22

Cinderella Career and Finishing

Sale Vv Fett 425 F2d 584

* s s . eeeeeeeeeeneeeeeeeee 18,19

F.T.C. v Cement Institute,

Klein v O'Hagen, 51 NY2d 784 (1980).. 15

Klein v O'Hagen, 70 AD2d 514........ 16

Perry v Sindermann, 408 U.S. 593

¢.. . eee 21,22

itt og of Human ae Vv

8 ° 0.

1054, “1056 (4th Dept. 1977)....... 16

United States v Morgan, 313 U.S.

409 (1941)... 20

Withrow v Larkin, 421 U.S. 35,47

a Ne Se

Statutes

N.Y. State Administrative

Procedure Act § 303... .cccccececeese 15

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1981

MICHAEL YOUNG WARDER, et al.,

as Proposed First Trustees of the

Unification Theological Seminary,

Petitioners,

Vv.

THE BOARD OF REGENTS OF THE UNIVERSITY

OF THE STATE OF NEW YORK,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE STATE OF NEW YORK COURT OF APPEALS

BRIEF FOR RESPONDENT OPPOSING CERTIORARI

Respondent respectfully prays that

the petition for a writ of certiorari be

denied.

Statement of the Case

The Unification Theological Seminary,

Barrytown, New York, is affiliated with

the Holy Spirit Association for the Uni-

fication of World Christianity, a reli-

gious organization headed by the Rev. Sun

Myung Moon. The Seminary may, and does,

operate non-degree programs without any

license or approval by respondent. How-

ever it may not be incorporated as an in-

stitution of higher education, or offer

or conduct an educational program leading

to the award of any degree, unless it

meets the requirements of the New York

statutes, rules and regulations which

govern educational corporations and which

establish minimum ste~dards for degree

programs.

Petitioners, the proposed first

trustees of a proposed educational corp-

oration to be known as the Unification

Theological Seminary, applied for the

creation of a New York educational corp-

oration by the issuance of a charter by

the Board of Regents, and for registration

of an educational program leading to the

degree of master of religious education.

Petitioners seek certiorari to review

State court decisions which sustained two

determinations by the Board of Regents.

The first action, taken in April, 1977 by

a vote of twelve to two, provided for a

Regents committee to review petitioners’

application and to report back to the full

Board. The second action, taken in

February, 1978 by a vote of thirteen to

zero, was the denial of petitioners’

application. Petitioners instituted two

State court proceedings, which were re-

viewed together by the State appellate

courts. The first proceeding, commenced

in July, 1977, sought an order compelling

the Board of Regents to act forthwith on

petitioners’ application, on the basis of

the information submitted by the Commis-

sioner of Education and by Department

staff, and without further review or in-

vestigation. That proceeding was dis-

missed by a decision of Supreme Court,

Albany County, dated November 28, 1977

(p.30a)*

The second State court proceeding

was commenced June 21, 1978 and was de-

cided by Supreme Court, Albany County, on

October 18, 1978 (p.35a). Judgments in

both proceedings were entered on Noven-

ber 14, 1978. The two appeals were heard

jointly by the appellate courts, and

single decisions were issued in both the

Appellate Division, Third Department, and

in the New York State Court of Appeals

(pp. 19a, la).

The first Regents action was not a

final determination on the merits of

petitioners’ application, but rather a

declination by a majority of the Board to

accept the recommendation of the Commis-

sioner and Department staff that a char-

ter be granted, without further inquiry

*Numbers in parentheses refer to page nun-

bers in the petition for certiorari and

the appendix thereto.

by the Regents themselves with respect to

a number of questions, including both

academic and collateral issues. Those

questions are discussed and explained in

the decisions of the Courts below (pp.8a-

9a, 32a, 34a).

During the public debate on the res-

olution to appoint a Regents committee to

review the matter, individual Regents

made statements, some in support of the

resolution and some in support of the

immediate granting of petitioners’ appli-

cation. In their petition to this Court,

petitioners rely on excerpts from state-

ments made during that debate by only two

of the fourteen members of the Board pres-

ent at that meeting, which statements

petitioners claim demonstrate bias. How-

ever, petitioners did not object to the

further participation @ those Regents in

the consideration of their application

until after the final determination, ten

months later. Although the former Commis-

sioner of Education had recommended

approval of petitioners’ application at

the April, 1976 meeting, he vacated his

office on June 30, 1977 pursuant to action

taken by the Regents in November, 1976,

and was not involved in or privy to the

investigations and reports of the Regents

committee after that date.

The review of petitioners’ applica-

tion by the Regents committee was con-

, ducted between April, 1977 and January,

1978. The committee reviewed the academic

“and collateral issues which had been

raised and discussed at the April, 1977

meeting. During the period of the re-

view respondents received information

from various sources. All information

which appeared to be relevant to the in-

quiry was promptly transmitted to the

petitioners so that they would have an

opportunity to respond, and petitioners’

responses were carefully considered. As

the time for a final recommendation by

the committee approached, a site visit

was conducted to ascertain first hand the

nature of the operation of the Seminary

as reflected by the Seminary staff and

records aud to determine whether or not

such operation conformed to established

academic standards, and to the program of

operation which had been submitted by the

petitioners.

The final determination of the re-

spondents was based on academic defi-

ciencies and incompetence disclosed as a

result of the site visit, and on the

failure of the petitioners to submit sat-

isfactory evidence of financial income md

stability sufficient to operate a masters

degree program (pp.6a-7a, 24a, 40a, 44a-

46a).

Petitioners contended in their first

State court proceeding that the Regents

delayed action on their charter applica-

tion for reasons associated with their

religious beliefs. However, the record

clearly shows, and the Courts below found,

that the somewhat lengthy review was

necessitated: by concern about alleged

sSeculay practices of the petitioners and

the Seminary.

Petitioners contend in their second

State court proceeding that their petition

for a charter was ultimately denied for

reasons associated with their religious

beliefs. Again, the record clearly shows,

and the Courts below found, that the

denial of a charter was based on purely

secular deficiencies.

Petitioners contend that they have

been denied equal protection of the laws

because the Regents took a ionger and

more careful look at their charter appli-

cation than petitioners understand to be

the Regents’ general practice. What

petitioners appear to be suggesting is

that jit is constitutionally impermissible

for a regulatory agency to give greater

scrutiny to one application than to

another, regardless of the facts and cir-

cumstances. Both of the State Supreme

Court Justices who heard the two pro-

ceedings below found that petitioners

had failed to allege facts sufficient to

require a trial, and granted summary

judgment dismissing the petitions. The

Appellate Division, Third Department,

unanimously affirmed. The State Court of

Appeals affirmed by a vote of four to

three. Three Judges of the Court of

Appeals dissented solely on the ground

that the proceedings should not have been

dismissed by summary judgment. All of

the twelve State Court Judges who re-

viewed the second State court proceeding

agreed that the facts disclosed in the

10

record sustained and justified the final

Regents determination.

Argument

Petitioners state three "Reasons for

Granting the Petition". Each is based

upon an argument that the decision below

conflicts with decisions of this Court.

No other basis for granting certiorari is

set forth.

Respondent does not contest the

general principles of due process cited by.

petitioners, but contends that in this

case there clearly has been no violation

of due process or of petitioners’ rights.

Respondent answers petitioners’

three arguments as follows:

1. The Decision Of The Court Below

Does Not Conflict With Prior Decisions Of

pig F< oo oaton aap Disqualification Of

Petitioners contend that the deter-

mination of thirteen members of the Board

of Regents, made in February, 1978, should

be set aside because of remarks made by

two members of the Board ten months

12

earlier. The remarks of the two Regents

clearly reflect disapproval at that time,

by those two Regents, of the Unification

Church. They do not establish that the

Board as a whole, or the two Regents,

were unable to judge the Seminary's appli-

cation on the merits, or that they did no

in fact do so.

The question before the Regents at

that time was whether to approve the

application on the basis of the then

favorable recommendations of the Commis-

sioner and Department staff, or whether

the questions arising from the repo~ ° of

independent academic consultants, the

pending House of Representatives investi-

gation of alleged Korean Central Intelli-

gence Agency connections, communications

from members of the public, and concerns

of the Regents themselves justified

further review by a Regents committee.

As Justice STALEY of the New York State

13

Supreme Court noted in his decision dis-

missing the petitioners’ first State

court proceeding, the Board of Regents is

a public body which meets monthly; the

Board is not required to act within a

specified time; a joint resolution of

both Houses of the New York State Legis-

lature had urged the Board to further re-

view the application; and the responsi-

bility of approval or disapproval of the

application rested with the Board of

Regents and not with its staff or the

Commissioner. Under those circumstances

it was reasonable, as the New York Courts

have found, for the Board to appoint a

committee to review the matter and to re-

port to the full Board. The remarks of

the two Regents referred to by petitimmers

were made in the course of a heated de-

bate, and should not be considered out of

context.

It is clear from the record that the

14

assignment of the Regents committee was to

obtain answers to specific factual ques-

tions which were or might be relevant to

the application by the Seminary. Peti-

tioners' religious beliefs were clearly

irrelevant to that inquiry. The answers

to those questions could ,. readily have

led to approval as to disapproval of the

Seminary's application.

It is equally clear that the final

determination, made in February, 1978, was

based entirely on deficiencies in the

operation of the Seminary, discrepancies

between the academic plan presented to the

Regents and the actual operation of the

academic program, and the failure of the

petitioners to submit satisfactory evi-

dence of sufficient ability and financial

resources to operate a Seminary.

Under New York law, petitioners

should have raised the question of dis-

qualification of the two members of the

15

Board of Regents in a timely manner, by

addressing a request for their disquali-

fication to the full Board of Regents.

New York State Administrative Procedure

Law § 303 provides

"Upon the filing in good faith

by a party of a timely and

sufficient affidavit of per-

sonal bias or disqualification

of a presiding officer, the

agency shall determine the

matter as part of the record in

the case, and its determination

shall be a matter subject to

judicial review at the conclu-

sion of the adjudicatory pro-

ceeding.”

Although the Regents’ determination was

not an adjudicatory proceeding, and there-

fore not governed by the above quoted

statute, the same underlying policy is

applicable. The issue of disqualification

should be raised and passed on in the

first instance by the agency itself

(Mtr. of Klein v O'Hagan, 51 NY2d 784

(1980]).

Where a claim of bias has been made

16

before a judge or administrative officer,

and self-disqualification does not occur,

the issue may be raised on an appeal from

the final determination, and the appellate

body will determine “whether there was

Dias and if it affected the result to the

detriment of the one claimed to have been

aggrieved; if it did not exist, or if,

existing, it did not unjustly affect the

result, it would be no ground for a

successful appeal" (State Division of

Human Rights v Merchants Mut. Ins. Co.,

59 AD2d 1054, 1056 [4th Dept. 1977],

quoted in Mtr. of Klein v O'Hagen, supra,

70 AD2d 514 at p. 516).

Here there has been no showing of

bias, and the statements allegedly be-

traying bias are remote in time and un-

related in content to the factual reasons

for the denial of the Seminary's applica-

tion.

The situation in this case is very

Page Missing from

Filming Copy

18

different from that presented in

Cc C PF Vv

F.T.C. (425 Fad 583 [(C.A.D.C. 1970]),

relied upon by petitioners. That case

involved an allegedly deceptive adver-

tisement. One of five Commissioners who

was to serve on an appellate review

board made a speech in which he clearly

indicated that he had prejudged the facts

of the case outside of the record. Al-

though asked to disqualify himself he re-

fused to do so. In this case there is

absolutely no evidence of any prejudgment

of any of the facts. The expressions of

views by two Regents concerning the

Unification Church did nce* constitute pre-

judgment of any of the facts relating to

the Seminary. If the Regents had dis-

approved the Seminary's application be-

cause of disapproval of the Church there

would be a substantial question for this

Court. But they clearly did not do so,

19

and the facts upon which they did base

their determination are totally unrelated

to any opinion about the Church or its

religious beliefs or practices. Unlike

Cinderella, there was no prejudgment of

any fact relevant to the administrative

determination, and no consideration of any

material outside the administrative

record. There was no “advance commitment

on factual determinations", and the facts

gathered and considered by the Regents

were a part of its administrative review

and record, notwithstanding petitioners’

assertions to the contrary (p.12).

The requirements of due process were

considered by this Court in kortonville

Joint School District v Hortonville

Education Association (426 U.S. 482

[1976]), in which the Court noted:

"Mere familiarity with the

facts of a case gained by an

agency in the performance of

its statutory role does not,

however, disqualify a

decisionmaker. Wit Vv

» 421 U.S. 35, a

F.T.C. v ©

Meet Ta

B48 Nor is a

decisionmaker disqualified

simply because he has taken

@ position, even in public,

on a policy issue related

to the dispute, in the ab-

sence of a showing that he

_ not ‘capable of judging

articular controversy

: ly on the basis of its

own circumstances.' United

States v » 313 U.5.

9 - Ed. 1429,

61 8. Ct. 999 (1941); see

as F.T.C. v a Insti-

” Ta, at 701, Se L.

Ed 1010 68 8. Gt. 793."

The Hortonville case, like the instant

case, involved a board with overall re-

sponsibility for a segment of the educa-

tion system. The Court noted "the pre-

sumption of honesty and integrity in

policymakers with decisionmaking power,"

and stressed that the facts upon which

the board based its action were not in

dispute. Both those considerations are

relevant in this case. Petitioners have

made no showing that either the Board of

Regents as a whole or any individual

Regent was incapable of judging peti-

tioners' application on the merits.

2. The Decision Below Does Not

Conflict With This Court's Decision In

Perry v Sindermann.

Petitioners cite Perry v Sindermann

(408 U.S. 593 [1972]) for the proposition

that “summary judgment is inappropriate

in the face of a bona fide constitutional

claim that an otherwise discretionary

exercise of state power is in reprisal for

the exercise of First Amendment freedoms."

True. Summary judgment is inappropriate

in the face of the allegation of any

facts sufficient to set forth a cause of

action. But in this case, petitioners

failed to allege any such facts in eiv..0r

of the two State court proceedings.

A mere conclusory allegation of pre}-

udice is insufficient to raise a triable

issue, or to require a due process

hearing before an administrative body

22

(Perry v Sindermann, supra, p. 599 n. 5;

Board of Regents v Roth, 408 U.S. 564

(1972), p- 575,n. 14). Perry v Sinder-

mann, supra, is distinguishable from the

instant case in two important respects.

Perry had specifically alleged a factual

background which lent plausibility to

his claim that the determination not to

extend his employment was based on his

public advocacy of a policy opposed by

his employers, and upon a newspaper ad-

vertisement highly critical of then.

Furthermore, his employers gave no offi-

cial statement of the reason for their

determination, and allowed Perry no

opportunity to challenge the basis for

the determination. In a press release

and in the Court action they cited in-

subordination as a reason. Perry's

advocacy and public criticism were First

Amendment speech, and if the insubordi-

nation was based upon those statements

23

a valid constitutional cause of action

may have existed. In Perry v Sindermann

the Court could not discern from the

pleadings whether or not a valid reason

existed for not rehiring Perry. His

allegations were not refuted by factual

allegations, and summary judgment was

inappropriate.

This case is very different. Both

the April, 1977 determination for a

Regents review of petitioners’ applica-

tions and the February, 1978 determina-

tion denying it are based upon facts

which are clearly stated in the record,

and which are separate and distinct from

any exercise by petitioners of any First

Amendment rights.

In April, 1977, the Board of Regents

appointed a committee to review peti-

tioners' application because the Regents

believed that there were a number of out-

stancing questions which should be

24

answered before they acted. Those ques-

tions included such academic matters,

raised in the reports of independent con-

sultants who had visited the Seminary, as

the adequacy of the library and the

availability of faculty to students. They

also included collateral matters, such as

possible involvement with the Korean

Central Intelligence Agency (then under

investigation by a subcommittee of the

House of Representatives), charges of

alleged “brainwashing” of students, and

the solvency and stability of the

Seminary (pp. 2a, 34a). None of those

questions relates to the exercise by

petitioners of any First Amendment right.

The factual allegations in the answer in

the first State court proceeding rebutted

petitioners’ conclusory allegations of a

violation of First Amendment rights, and

summary judgment was appropriate.

25

Petitioners have also failed to

allege facts sufficient to defeat summary

judgment in the proceeding to review the

Regents’ final determination. There is

absolutely no evidence to support their

claim that the determination was moti-

vated "by a desire to suppress their re-

ligious freedoms and by a non-secular

purpose to promote established religions"

(p. 14). To the contrary, the facts upon

which the Regents based their determina-

tion are clearly stated and established,

are unrefuted, and convincingly demon-

strate the failure or inability of the

petitioners to conduct the educational

program of the Seminary in accordance

with the standards required of all such

programs. Those facts are set forth in

the final report of the Regents committee

and in the decisions of the Courts below

(pp. 43a, 40a, 24a, 6a-7a).

26

3. The Decision Of The Court Below

Court Relating To The Equal Protection Of

The Laws.

Petitioners contend that there must

be a compelling justification for dis-

parities in treatment based upon religious

affiliation or political belief. We do

not disagree, but in this case there has

been no disparity of treatment based upon

religious affiliation or political belief.

Petitioners state that they "stand

alone as the only applicants ever to have

been denied an application for provi-

sional charter on the grounds advanced."

Respondent agrees. The case is unique.

Never before has the Board of Regents

found that an institution was sending

transcripts to other institutions in-

dicating that its graduates had received

masters' degrees when the institution

was not authorized to issue such degrees.

Never before have applicants for a

27

Regents charter failed to tell the

Regents that a corporation which was to

provide the operating funds for a pro-

posed school had been stripped of its

assets after the Regents had approved the

financial plan.

Petitioners rely on an affidavit by

former Education Commissioner Ewald B.

Nyquist expressing his opinion that other

institutions have been chartered "with

greater deficiencies and/or fewer

strengths than the Seminary possesses."

Since the Commissioner is not specific,

and since no factual allegations were

submitted, it is impossible to reply to

that statement, except to note that it is

an unsubstantiated opinion and a mere

conclusory allegation insufficient to

raise a triable issue of fact, and

clearly insufficient to overcome the

reasonable basis for the Regents deter-

mination reflected on the entire record.

Former Commissioner Nyquist left office

July 30, 1977, during the review by the

Regents committee, and the record does

not establish that he was familiar with

later developments, or with the reasons

upon which the Regents based their final

determination.

Former Commissioner Nyquist further

stated that petitioners had been held to

"higher requirements” than other appli-

cants. The only factual assertion

offered in support of that conclusion is

that the Regents requested an audited

financial statement. The reasons for such

request are fully explained in the de-

cision of the Courts below (pp. 10a, 24a).

Although the Seminary had title to valu-

able land, it had no income or cash and

was entirely dependent on rent from a

New York corporation for operating funds.

The Department accepted that arrangement,

but later learned (not from petitioners)

29

that the New York eoxporaticn had been

stripped of its assets. When respondent

asked petitioners about that development,

petitioners offered to substitute a

California corporation as lessee. Under

those circumstances it was reasonable for

respondent to insist upon an audited

financial statement for the California

corporation. Petitioners refused to pro-

vide it, and the petitioners’ failure to

submit satisfactory proof of financial

adequacy and stability was one of the

reasons for the denial of the application.

Petitioners claim "that the Board

ultimately based the denial of the appli-

cation for a provisional charter on de-

ficiencies which had been overlooked in

other similarly situated applicants”

(p. 17). No such allegation is made in

the pleadings and no such argument was

made in the New York Courts. There is

absolutely no basis for such a claim in

30

the record, and it may not be raised for

the first time on this application.

The evaluation of the Seminary's

application required the consideration

end resolution of questions ranging from

the adequacy of the library to alleged in-

volvement with the K.C.I.A. The "equal

protection of the laws" did not prevent

the Regents from personally reviewing the

facts, instead of merely relying on De-

partment staff, or from considering the

truth and relevance, if any, of collateral

charges, such as K.C.I.A. involvement and

"brain washing," or from closely scruti-

nizing the operation of the Seminary to

resolve conflicting or ambiguous state-

ments. Due process required that all ad-

verse statements which might be considered

by the Regents be made available to peti-

tioners, that petitioners be afforded an

opportunity to respond, and that their

responses be fully considered. The two

31

volume, 639 page record in the second

State court proceeding clearly reflects

the fair and thorough manner in which the

Regents sought and found the true and

relevant facts. Neither the standards to

which petitioners were held nor the

manner in which the review was conducted

constituted denial of the "equal pro-

tection of the laws". Petitioners have

been unable to allege any facts which

would sustain their claim in this respect.

32

Conclusion

Petitioners do not and cannot deny

the truth of the facts upon which the

Board of Regents relied in denying the

Seminary's application. They are ad-

mitted by the Seminary staff in the

record. They clearly justify the denial

of the application.

Petitioners have failed to establish

any basis for intervention by this Court.

No principle of law is involved, but only

the application of accepted principles to

the unique facts of this case. Peti-

tioners' conclusory allegations of bias

or of a violation of due process are un-

supported by factual allegations and are

overwhelmingly rebutted by the facts and

procedure disclosed in the record.

Petitioners complain that the denial

of their application "inhibits its

ability to attract a variety of students,

33

restricts its participation in various

educational associations, precludes its

foreign students from qualifying for

visas, and disables all students from

eligibility for amy student loans"

(p. 14). Respondent's answer is that

those benefits are dependent on the oper-

ation of an academic program which meets

the State's minimum standards. Peti-

tioners have not met those standards, and

indeed do not claim that they have. In

effect they seek to use what they then-

selves call their."unpopularity” as a

sword to obtain the right to operate a

college without meeting standard academic

and fiscal requirements. Their proper

course of action is not further litiga-

tion, but to learn from their njstakes,

to upgrade their program, and to reapply

to respondents when they can meet the

minimum requirements. No basis has been

34

presented for the exercise of jurisdic-

tion by this Court.

Jean M. Coon

Respectfully submitted,

ROBERT D. STONE

Attorney for Respondent

State Education Department

Office & P O Address

siteeotay? is"

(518) 474-8869

Donald 0. Meserve

of counsel

November 17, 1981