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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Record and brief
- **Published:** January 1, 1981
- **Citation:** 454 U.S. 1125

## Text

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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IN o 605.0050 40ueen bande annechekuhdeenanacneoues 2
CE ccc vcccuetacecenacssedeuueucsws 2
REASONS FOR GRANTING THE PETITION ............... 10
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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385008_0604%3A0. Public record. Not legal advice.