Petition for Writ of Certiorari — New Jersey-Philadelphia Presbytery of the Bible Presbyterian Church v. New Jersey State Board of Higher Education

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84-620 |) ettF®

No. 84 - ALEXANDER LAS a

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1984

NEW JERSEY-PHILADELPHIA PRESBYTERY

OF THE BIBLE PRESBYTERIAN CHURCH, et al.,

Petitioners

Vv.

NEW JERSEY STATE BOARD OF

HIGHER EDUCATION, et al.,

Respondents

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE THIRD CIRCUIT

William Bentley Ball*

Philip J. Murren

Sandra E. Wise

BALL & SKELLY

511 North Second Street

P.O. Box 1108

Harrisburg, PA 17108

(717) 232-8731

Attorneys for Petitioners

* Counsel of Record

October 15, 1984

PACKARD PRESS / LEGAL DIVISION, 10th & SPRING GARDEN STREETS, PHILA. PA. 19123 (215) 236-2000

QUESTIONS PRESENTED

A religious college, established by a church as a min-

istry thereof, and serving a small discrete religious pub-

lic, has been held by the court below legally entitled to

conduct four years of higher education for adults who

choose that college, call itself a “college”, advertise and

recruit students, and award credits in all the courses it

offers but is barred from issuing a bachelor’s degree in its

name showing earning of those credits and attesting to

the religious and moral character of the graduate unless

(a) the college will become state-licensed and (b) subject

itself to total state regulation.

1. Does the licensing requirement violate rights of

the church, the college, its faculty and students violative

of the Free Exercise Clause of the First Amendment?

2. Does the imposition of the regulatory scheme, by

creating excessive entanglements of government with a

church ministry, violate the Establishment Clause of the

First Amendment?

LISTING OF PARTIES

Petitioners

“New Jersey-Philadelphia Presbytery of the Bible

Presbyterian Church, Collingswood, New Jersey.

“Shelton College, Cape May, New Jersey.

‘Bible Presbyterian Church of Collingswood, Col-

lingswood, New Jersey.

Kevin Wilson.

Brad Gsel.

Kevin Clair Michael.

Curtis Jordan Bashaw.

Respondents

New Jersey State Board of Higher Education.

T. Edward Hollander, as Chancellor of New Jersey

Department of Higher Education.

Richard C. Breslin, as Assistant Chancellor for Ac-

ademic Affairs, New Jersey Department of Higher

Education.

Amorita Suarez, Director of the Office for Independ-

ent Colleges and Universities of the New Jersey De-

partment of Higher Education.

* In accord with Rule 28.1, New Jersey-Philadelphia Presbytery

of the Bible Presbyterian Church, Shelton College and Bible Pres-

byterian Church of Collingswood, New Jersey, state that they are

corporations which have no parent companies or subsidiaries (ex-

cept wholly owned subsidiaries) or affiliates.

ii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED.................... i

gs ii

po es 5 iii

TABLE OF AUTHORITIES .................... iv

REFERENCES TO OPINIONS BELOW......... ]

aD rie a ed oe kc bd 44 KasA aK ac eice 2

CONSTITUTIONAL AND STATUTORY PROVI-

Es 2

SiAtemems GF THE CASE.................. 2

REASONS FOR GRANTING THE WRIT........ 7

a each s 13

TABLE OF AUTHORITIES

CASES: Page

Keyishian v. Board of Regents, 385 U. S. 589

if Oe er rr ean 12

Lemon v. Kurtzman, 403 U. S. 602 (1971).... 8, 9, 12

Meek v. Pittenger, 421 U. S. 349 (1975). ......... 8,9

New Jersey-Philadelphia Presbytery of the Bible

Presbyterian Church, et al. v. New Jersey State

Board of Higher Education, et al., 482 F.Supp.

gS A rere eT ree 5

New Jersey-Philadelphia Presbytery of the Bible

Presbyterian Church, et al. v. New Jersey State

Board of Higher Education, et al., 654 F.2d 868

ete Tk) ee a per ere ere errr Te 5

New Jersey-Philadelphia Presbytery of the Bible

Presbyterian Church, et al. v. New Jersey State

Board of Higher Education, et al., 514 F.Supp.

I PE bc ch idccas unas taeacacas 6

New Jersey-Philadelphia Presbytery of the Bible

Presbyterian Church, et al. v. New Jersey State

Board of Higher Education, et al., Civil No.

79-3341 (D.N.J. July 29, 1983) .............. 3, 7

New Jersey State Board of Education v. Board of

Directors of Shelton College, 90 N.J. 470, 448

Reece aks Kaweea bun e® 7

NLRB v. Catholic Bishop of Chicago, 440 U.S. 490

| Sree ree Ne erp gh Renn Or tere Te te S)

Roemer v. Board of Public Works, 426 U.S. 736

PERCE sha er pide eG Sains ae ree oes ray 9

Tilton v. Richardson, 403 U.S. 672 (1971) ....... S)

Walz v. Tax Commission, 397 U.S. 664 (1970).... 12

iv

TABLE OF AUTHORITIES— Continued )

CASES: Page

Wisconsin v. Yoder, 406 U.S. 205 (1972)......... )

CONSTITUTIONS:

United States Constitution:

I soi ok nds a na tcaoRs aba passim

Amendment XIV, Section 1.............. passim

STATUTES:

New Jersey Statutes Annotated 18A:

oS Sere eee remorse 2

GS iho 5d bw ae 06 o bw os wee 2

OS ELECT TTCCTER CE Te ere re ee 2

PG i Usb nW ads 0s cc cohen ceee eee eeaee 2

Pee EET TT eee ee ee ee 2

MUP TEE CE TOT TS rte iy 2

Se ee Pree, rrr 2

eee ee ee re ee eee 2

PN i wek sak chev ASSeen ene 2

gs ie 4 |) reer tea rar, te 2

Se Eee es oc esac ncoahesnake anes 5

OTHER AUTHORITIES:

J. BARZUN, THE AMERICAN UNIVERSITY

ee ya ous Ga nh ke piiees wn ds 10

J. BARZUN, THE HOUSE OF INTELLECT

(SE ods oa er ee 10

C. BIRD, THE CASE AGAINST COLLEGE

1, MR re ere Re adeeb ty: 10

TABLE OF AUTHORITIES~— Continued )

OTHER AUTHORITIES: Page

R. Birnbaum, “Factors Related to University Grade

Inflation”, Journal of Higher Education, Voi. 48,

No. 5, September/October, 1977 .............

P. COPPERMAN, THE LITERACY HOAX (1978).

E. Craven and K. Becklin, “Student Access and the

Quality of Instruction”, 32 Educational Record,

WOR ‘GE cuts ached atice keane eeunaee

Duplass, “Degree Depreciation: A Fait Accompli for

the Liberal Arts Degree”, Liberal Education, Vol.

Ge, ERURUIIOE, BPs viwn Ges cciarsaveavndexs

R. Edgerton, “Talent for the 1980’s — Social Change

and the Redefinition of Bacculaureate Educa-

tion”, Liberal Education, 1979...............

J. Epstein, “Bring Back Elitist Universities”, New

York Times Magazine, February 6, 1977......

W. GELLHORN and R. K. GREENWALT, AN IN-

DEPENDENT FORDHAM? A CHOICE - OR

CATHOLIC EDUCATION (1968) ...........

J. Harris and S. Keller, “Assessment Measures

Needed for Competency — Based Higher Edu-

cation”, Peabody Journal of Education, July,

L. G. HELLER, THE DEATH OF THE AMERI-

CAN UNIVERGEET CABTS). oo occ is ccagess.

H. Hodgkinson, “Education in 1985: A Future His-

tory”, Educational Record, Spring, 1979......

J. KEATS, THE SHEEPSKIN PSYCHOSIS

CRED NaN Ue aw We's €h cheek nea db Gke Uae eens

R. KIRK, DECADENCE AND RENEWAL IN THE

HIGHER LEARNING (1979) ...............

vi

10

10

10

10

TABLE OF AUTHORITIES—(Continued )

OTHER AUTHORITIES: Page

J. KLINE, WHY THE PROFESSOR CAN'T TEACH

MATHEMATICS AND THE DILEMMA OF

UNIVERSITY EDUCATION (1977) .........

-$. Q7TOOLE, CONFESSIONS OF AN AMERICAN

EE ch sca Seen huneanden eens

S. Schiefelbein, “Confusion at Hartford: What Makes

an ‘Educated Man’?”, New York Times Maga-

aa Ca CaN bal dc acer sere nate

F. WAGNER, THE END OF EDUCATION

PET e PERE ER iy aire et

H. Winthrop, “How Much are College Students

Learning Today? Issues and Trends in Ameri-

can Education”, Peabody Journal of Education,

RR PU la a> mega

P. Zagano, “The Great American Writing Crisis”, The

Education Digest, October, 1977.............

Vii

10

10

10

10

10

No. 84 -

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1984

NEW JERSEY-PHILADELPHIA PRESBYTERY

OF THE BIBLE PRESBYTERIAN CHURCH, et al.,

Petitioners

v.

NEW JERSEY STATE BOARD OF

HIGHER EDUCATION, et al.,

Respondents

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE THIRD CIRCUIT

Petitioners respectfully pray that a writ of certiorari

issue to review the judgment and opinion of the United

States Court of Appeals for the Third Circui. entered in

this matter on July 17, 1984.

REFERENCES TO OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Third Circuit, which appears as Appendix A hereto,

is unpublished; however, the decision is reported at 740

F.2d 957 (3rd Cir. 1984).

2

Prior opinions in this matter are as follows: two of the

opinions of the U.S. District Court for the District of New

Jersey are reported at 482 F.Supp. 968 (D.N.J. 1980) (see

Appendix F); and 514 F.Supp. 506 (D.I'!.J. 1981) (see

Appendix D). A third opinion and order of the U.S. Dis-

trict Court for the District of New Jersey are unpublished

and appear as Appendix B, hereto. A prior opinion of the

U.S. Court of Appeals for the Third Circuit is reported at

654 F.2d 868 (3rd Cir. 1981) (see Appendix E). The opin-

ion of the Supreme Court of New Jersey is reported at

448 A.2d 988, 90 N.J. 470 (1982) (see Appendix C).

JURISDICTION

This case was decided and judgment was entered by

the United States Court of Appeals for the Third Circuit

on July 17, 1984. The jurisdiction of this Court is invoked

under 28 U.S.C. §1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

U.S. Constitution, Amendment I:

“Congress shall make no law respecting an estab-

lishment of religion, or prohibiting the free exercise

thereof... .”

U.S. Constitution, Amendment XIV, Sec. 1:

“’. . nor shall any state deprive any person of life,

liberty, or property, without due process of law . . .”

New Jersey Statutes Annotated:

18A §§3-3, 3-13, 3-14, 3-15, 68-3, 68-5, 68-6, 68-9,

68-10 (see Appendix G).

STATEMENT OF THE CASE

A. Statement of Facts.

The New Jersey-Philadelphia Presbytery is the

regional ruling body of a small national denomination,

Bible Presbyterian Church. The Church, by religious

3

requirement, conducts, as one of its educational minis-

tries, Shelton College, for the primary purpose of spread-

ing the Gospel. Shelton offers four years of higher

education leading to the Bachelor of Arts degree. Its re-

quired core curriculum is principally designed to impart

knowledge of the Christian faith. The orientation of the

teaching is pervasively Calvinist, and a strict code of re-

ligious discipline governs both students and faculty. The

source of its students consists principally of members of

the Church (or of closely related faiths). Shelton’s three-

fold aim in the conducting of higher education is reli-

gious: (a) toact asa principal source of the denomination’s

seminarians, (b) to be a source of teachers for Christian

schools, and (c) to produce graduates who will go into

secular occupations as “Christian missionaries”. As the

district court said in its 1983 opinion herein:

“There can be no question that Shelton College

is a religious institution in all of its phases and

activities.”

New Jersey-Philadelphia Presbytery of Bible Presbyte-

rian Church v. New Jersey State Board of Higher Edu-

cation, Civil No. 79-3341, Slip Op. at 15 (D.N.J. July 29,

1983) (see Ap) endix B, p. A-17).

The record shows two reasons why Shelton issues

the bachelor’s degree: (a) the degree occupies a special

place in the Calvinist teachings of Bible Presbyterian

Church,! (b) the religious ministry, which is Shelton Col-

1. Testimony herein identified, in Calvinist teaching, four dis-

tinct areas of Church interest in higher education: (1) training for

the Church’s ministry, it being a requirement therefor, (under the

Church Constitution, Chapter 13, Section 4) that a minister possess

a bachelor’s degree, (2):the having of an educated clergy, (3) en-

abling Church lay members to better carry out their duty as mis-

sionaries in society, (4) enabling those persons to enter the profes-

sions who have a calling from God to do so.

4

lege, must cease to exist if, though it may lawfully afford

education leading to its degree, it may not award its de-

gree.

Shelton accepts no local, state, or federal funds due

to its belief in the strict separation of church and state.

New Jersey statutes require the governmental licens-

ing of all institutions of higher education within the state,

the “coordination” of the activities of all such institutions

in a state “system” of higher education, and state “gov-

ernance”, “supervision”, and “control” of all such insti-

tutions. It imposes on all institutions of higher education

a comprehensive regulatory scheme embracing every as-

pect of the institutions’ existence.

Due to its belief in church-state separation and, prin-

cipally, to objection, on religious grounds, to governmen-

tal licensing and control of church ministries, the Church

(Shelton) refused to become thus licensed and subjected

to comprehensive regulation. Following the effort of the

State to shut the College down in November, 1979 for its

refusal to be licensed, students, parents, a faculty mem-

ber, the Church, and the Presbytery brought the present

action in federal court for injunctive relief alleging vio-

lation of the Religion Clauses of the First Amendment.

At the conclusion of five years in seven court proceed-

ings it has been ruled that Shelton may call itself a “col-

lege”, advertise itself as such, recruit students, teach its

entire curriculum, award credits in each course, but is

forbidden to grant its degree which would certify that the

credits have been earned and the individual found mor-

ally and religiously fit to graduate.

B. Course of Proceedings.

On November 15, 1979, the State Board of Higher

Education brought suit in the Superior Court of New Jer-

sey, Chancery Division, for an injunction enjoining

Shelton from engaging in educational instruction, pro-

viding credits, awards, certificates or degrees for instruc-

tion given any individual. The court issued a temporary

5

restraining order forthwith. On November 19, 1979, pe-

titioners filed in the federal district court an action under

42 U.S.C. §1983, contending that the applicaiton of the

New Jersey licensing scheme to Shelton violated their

rights to the free exercise of religion, excessively entan-

gled the State in the affairs of a church institution, de-

nied the rights of the faculty freely to teach and of stu-

dents, as adult individuals, to receive ideas; and denied

the College equal protection of the law and property rights

without due process of law. They also contended that

particular statutes and regulations which the State Board

sought to enforce were unconstitutionally vague.

The district court, following an evidentiary hearing,

(a) enjoined the State Board from taking any action to

prevent Shelton from engaging in any educational, teach-

ing or religious activities or from publicizing or advertis-

ing the same, and requiring the Superior Court to modify

its injunction to permit such activities, (b) held that the

state court action could proceed to a determination of the

State Board’s statutory power (in relation to Selton’s con-

stitutional claims) or lack of power to grant or deny

Shelton the right to award degrees. New Jersey-

Philadelphia Presbytery of Bible Presbyterian Church v.

New Jersey State Board of Higher. Education, 482 F.

Supp. 968 (D.N.J. 1980) (see Appendix F).

The State Board appealed to the Third Circuit, which

affirmed, holding that the district court did not abuse its

discretion by enjoining the State Board from imposing a

prior restraint on all teaching and advertising by a private

college. It also held that Petitioners’ likelihood of success

in the federal action as to the degree-granting question

was not clear since New Jersey had a significant interest

in protecting consumers of education and the public

which may rely upon the certification of proficiency im-

plicit in a degree. New Jersey-Philadelphia Presbytery of

Bible Presbyterian Church v. New Jersey State Board of

Higher Education, 654 F.2d 868 (3rd Cir. 1981) (see Ap-

pendix E).

6

The state court action then proceeded to trial (on the

issue of whether the statutory scheme was intended to

apply to Shelton College in view of constitutional con-

siderations and Shelton’s singular religious nature). On

November 7, 1980, that court held that to subject Shelton

to the licensing scheme was so intended. Beyond that,

the court went on to rule that such application was not

violative of Shelton’s Free Exercise and Establishment

Clause rights, but that to bar Sheltcn’s calling itself a

“College” would violate its First and Fourteenth Amend-

ment rights of free speech. On December 10, 1980, the

state court issued a permanent injunction prohibiting

Shelton, unless licensed, from awarding any degree, and

requiring Shelton to delete all statements in its publica-

tions that it would award collegiate degrees, and to insert

in all applications for admissions a statement that the

state court had prohibited Shelton from awarding de-

grees unless and until it would be licensed.

The Petitioners noticed appeal to the Appellate Di-

vision of the Superior Court of New Jersey on January

16, 1981, but during the pendency of that appeal sought

interim injunctive relief from the district court.

The district court, on May 18, 1981, granted the plain-

tiffs a preliminary injunction prohibiting enforcement of

the state court’s order until such time as the Supreme

Court of New Jersey would construe the statutes and reg-

ulations in question. The district court concluded that

the federal plaintiffs were likely, to prevail on the merits

and that the application to them/of the regulatory scheme

caused them irreparable injury; New Jersey-Philadelphia

Presbytery of Bible Presbyterian Church v. New Jersey

State Board of Higker Education, 514 F.Supp. 506

(D.N.J. 1981) (see Appendix D).

The plaintiffs continued pursuit of the indicated state

court determination of statutory construction. On No-

vember 17, 1981, the Supreme Court of New Jersey

granted direct certification, and on August 9, 1982, held

(a) the State’s program for licensing institutions of higher

7

education to be applicable to “sectarian institutions” (not

distinguishing Shelton from other religious colleges in

New Jersey), (b) facially the program did not unduly in-

terfere with the free exercise of religion or create exces-

sive governmental entanglement with religion. New Jer-

sey State Board of Higher Education v. Board of Direc-

tors of Shelton College, 90 N.J. 470, 448 A.2d 988 (1982)

(see Appendix C). That court modified the Chancery Di-

vision injunction to allow the awarding of earned credits

and degrees to eligible students to the end of the 1982-83

academic year, and to the class of 1984 through the end

of the 1983-84 academic year.

On January 10, 1983, a hearing took place in the

district court, the state court trial evidence being made

part of the record and each side calling one additional

witness. On July 29, 1983, the district court ruled, de-

clining to make its preliminary injunction final. The court

concluded that the New Jersey statutes and regulatory

scheme as explicated by the New Jersey Supreme Court,

were constitutional, noting, however that “It is quite likely

that Shelton College will not be able to survive if it is

unable to grant baccalaureate degrees.” New Jersey-

Philadelphia Presbytery of the Bible Presbyterian Church

v. New Jersey State Board of Higher Education, Civil No.

79-3341 (D.N.J. July 29, 1983) (see Appendix B). On

September 26, 1983, the order of the district court (Ap-

pendix B), reciting that Petitioners were entitled to no

declaratory or injunctive relief beyond that awarded in

the court’s opinion and order dated January 4, 1980 (see

Appendix E), dismissed the complaint. On July 17, 1984,

the Third Circuit, per curiam, affirmed (see Appendix

A).

REASONS FOR GRANTING THE WRIT

The argument often made in certiorari petitions, that

the case will have wide impact upon similar parties, can-

not be made here. The most basic fact about Shelton is

8

that it is a unique institution which will cease to exist if

the decision below stands. The substantiality of the fed-

eral question presented arises from Shelton’s special char-

acter aS a ministry vis-a-vis total power in the state to

control it. Sheiton, because of its strict Calvinist orien-

tation and severe rejection of worldliness, is limited in its

drawing power to few young adults, indeed. Its degree,

reflecting the institution, will not deceive the public or

any prospective employer (as the record amply estab-

lishes). Yet Shelton is the free and enthusiastic choice of

some young adults, who intensely prefer what they re-

ceive at Shelton, as the faith community in which they

elect to pursue their higher education. Shelton is an “in-

tegral part of the religious mission of the church” (Lemon

v. Kurtzman, 403 U.S. 602, 616 (1971)), that reason be-

ing “the only reason for the school’s existence.” Meek v.

Pittenger, 421 U.S. 349, 366 (1975). Its teachers believe

that they exercise a religious vocation by teaching there.

This religious enterprise is now faced with an impossible

choice: it must either take a license and subject itself to

a pervasive regulatory scheme (and the record well es-

tablishes that it can do neither and survive religiously ),

or it must close its doors.

The irrationality of the forced destruction of this in-

stitution — as well as the lack of compelling state interest

to justify that — is shown by the fact that petitioners find

themselves in the following situation: Shelton may call

itself a “college”; Shelton may advertise itself as such; it

may present its full curriculum, and it may give credits

for every course it offers. It may graduate the students

whom it deems to have completed its academic require-

ments. It may call that certificate by any words in any

language — except that it may not call it a “degree”. But

the awarding of its degree is the requisite condition for its

existence as the “college” which it is free to call itself.

The decision below directly contradicts principles es-

tablished by this Court:

9

1. The Court of Appeals, acknowledging Shelton to

be religious, and in spite of record proof that it is a church

institution, treated it as secular. In so doing, the court’s

analysis and holding are contrary to that of this Court in

Lemon v. Kurtzman, supra, Meek v. Pittenger, supra, and

NLRB v. Catholic Bishop of Chicago, 440 U.S. 490 (1979).

Those cases hold that statutes regulating church minis-

tries must be justified by a state interest higher than that

required for the regulating of secular organizations. Fur-

ther, such statutes must not create extensive involve-

ment of government with churches (including — and

that was the precise point in Lemon — church schools2).

2. Here the State failed utterly to meet its burden of

proof by “searchingly examining” (Wisconsin v. Yoder,

406 U.S. 205, 221 (1972)) the alleged state interest in

barring the one thing at issue here: Shelton’s award of its

degree. The record disproves such a societal interest.

Lack of that interest is best summed up in expert testi-

mony given at the trial which establishes that, today, the

bachelor’s degree is not a single thing, of high and uni-

form value. One such witness who was asked whether a

2. In terms of being completely a church entity, Shelton is pre-

cisely akin to the parochial schools considered in Lemon, Meek and

Catholic Bishop. It is unique in New Jersey and sharply contrasts

with almost all other religiously related colleges today — for example

the religious colleges examined by the Court in Tilton v. Richa rdson,

403 U.S. 672 (1971) and Roemer v. Board of Public Works, 426 U.S.

736 (1976). These institutions have pursued the recommendations

made in W. GELLHORN and R. K. GREENAWALT. AN INDE-

PENDENT FORDHAM? A CHOICE FOR CATHOLIC HIGHER

EDUCATION (unpublished study made available to general public,

1968). This proved to be the flagship study for Catholic and other

sectarian colleges in the United States which desired to enter the

secular academic mainstream and to participate in governmental

funding. It presented a detailed rationale whereby government aid

to church-related colleges might be obtained, the essence of which

was to essentially secularize the institution. Shelton, to the contrary,

remains the thoroughly ecclesial, separatist entity which it has al-

ways been and as it is known to its own limited “market”.

10

Bachelor of Science degree of Centenary College, a New

Jersey-licensed institution, (which degree is based on

horseback riding and stable management skills) and a

Drew University Bachelor of Science degree meant the

same thing, responded:

“_ [C]ertainly the two degrees of Bachelor of

Science, side by side, form an absurd contrast.”

(Superior Court of New Jersey — Chancery Division,

Transcript of July 1, 1980, volume 3, pages 81-82).

Dr. Russell Kirk, an expert witness, testified that

there is no agreement among scholars as to the meaning

of the bachelor’s degree, no universally adopted standard

for obtaining it, and no assurance that the possession of

such a degree is today proof of quality education. ° As an

3. See, e.g., Recent books: BARZUN, J., THE HOUSE OF IN-

TELLECT (1959); BARZUN, J., THE AMERICAN UNIVERSITY

(1965); KEATS, J., THE SHEEPSKIN PSYCHOSIS (1965);

O'TOOLE, S., CONFESSIONS OF AN AMERICAN SCHOLAR

(1970); WAGNER, F., THE END OF EDUCATION (1976); BIRD,

C.. THE CASE AGAINST COLLEGE (1975); HELLER, L.G., THE

DEATH OF THE AMERICAN UNIVERSITY (1973); KLINE, J.,

WHY THE PROFESSOR CAN’T TEACH MATHEMATICS AND

THE DILEMMA OF UNIVERSITY EDUCATION (1977); KIRK,

R.. DECADENCE AND RENEWAL IN THE HIGHER LEARN-

ING (1979); COPPERMAN, P., THE LITERACY HOAX (1978).

Recent articles: Birnbaum, “Factors Related to University Grade

Inflation”, Journal of Higher Education, Vol. 48, No. 5,

September/October, 1977; Craven and Becklin, “Student Access and

the Quality of Instruction”, 32 Educational Record, Winter, 1978;

Duplass, “Degree Depreciation: A Fait Accompli for the Liberal Arts

Degree”, Liberal Education, Vol. 62, December, 1976; Edgerton,

“Talent for the 1980’s — Social Change and the Redefinition of Bac-

calaureate Education”, Liberal Education, 1979; Epstein, “Bring

Back Elitist Universities”, New York Times Magazine, February 6,

1977: Harris and Keller, “Assessment Measures Needed for Com-

petency — Based Higher Education”, Peabody Journal of Educa-

tion, July, 1976; Hodgkinson, “Education in 1985: A Future His-

tory”, Educational Record, Spring, 1979; Schiefelbein, “Confusion

at Hartford: What Makes an ‘Educated Man’?”, New York Times

Magazine, April 1, 1978; Winthrop, “How Much Are College Stu-

11

internationally recognized authority on higher education,

he denied that the value of academic degrees is traceable

to state regulations:

“It seems to me that the value of the bachelor’s

degree to the State comes from the educational in-

stitutions themselves, not State regulation that es-

tablishes the value of the degree from Princeton.

Drew or Rutgers University, and all these degrees

from different universities and colleges are judged

by employers, by other universities and colleges on

their own merits, not upon a notion that there is a

standard degree of bachelor ordered by all institu-

tions in New Jersey.”

(United States District Court for the District of New Jer-

sey, Transcript of january 10, 1983, pages 14-15).

3. Finally, the ruling of the court below stands for

the proposition that government may not merely entan-

gle itself with church ministries, it may completely en-

velop them. Here New Jersey has required that a small

church institution must become part of a “state system”

of education and subject itself to licensing as the price of

being allowed to give recognition — in the form of a

Shelton degree — to credits earned and moral character

approved. And licensing depends upon compliance, by

the non-tax-aided church entity, with as open-ended a

regulatory scheme as can be imagined. The STAN-

DARDS FOR NEW JERSEY INSTITUTIONS OF

HIGHER EDUCATION, to which Shelton must con-

form if it is to issue its degree, substitutes, in lieu of stated

standards, blank-check grants of unlimited power to state

agents to render totally subjective judgments. Those pow-

dents Learning Today? — Issues and Trends in American Educa-

tion”, Peabody Journal of Education, January, 1978; Zagano, “The

Great American Writing Crisis”, The Education Digest, October,

1977.

12

ers pertain to every aspect of the life of an institution.

The keystone of this archway of vagueness is found in

Paragraphs 7 and 8 of the STANDARDS’ Forward:

“7. Because of changes in peer group emphases

on the details of good management and in order to

permit flexibility in the regulations (and on the part

of institutions governed by the regulations), where

appropriate, the regulations shall use language such

as ‘adequate’, ‘suitable’, ‘proper’, ‘desirable’ and so

forth, to describe the end sought.

“8. Specific interpretations of such words as ‘ad-

equate’, and so forth, are to be determined by the

chancellor and ultimately the Board of Higher Edu-

cation in accord with existing standards of good peer

group practice.”

Here is indeed a “regulatory maze. . . wholly lacking in

‘terms susceptible of objective measurements’.” Keyish-

ian v. Board of Regents, 385 U.S. 589, 603-604 (1967).

Because of its entangling nature, supplanting the do-

minion of the Church over its discrete ministry with the

dominion of the state, the total regulatory scheme is

plainly excessively entangling. It calls for governmental

involvements with churches which produce “a kind of

continuing day-to-day relationship which the policy of

neutrality seeks to minimize.” Walz v. Tax Commission,

397 U.S. 664, 674 (1970). It involves “programs, whose

very nature is apt to entangle the state in details of ad-

ministration.” Lemon v. Kurtzman, 403 U.S. 602, 615

(1971). It calls for “sustained and detailed administrative

4. Lesi there be any doubt that the Standards are standardless,

Sec. 9:1-1.1 (“Definitions”) provides:

“ ‘Adequate, appropriate, equivalent, significant, suitable,

and sufficient’, mean adequate, appropriate, equivalent, signif-

icant, suitable and sufficient, respectively, in the judgment of

the chancellor or his representative and utlimately the Board of

Higher Education.”

13

relationships. . . for the enforcement of statutory or ad-

ministrative standards.” Id. at 621.

CONCLUSION

For all of the foregcing reasons, Petitioners respect-

fully urge that this Petition be granted.

October 15, 1984

Respectfully, submitted,

William Bentley Ball

Philip J. Murren

Sandra E. Wise

BALL & SKELLY

511 North Second Street

P.O. Box 1108

Harrisburg, PA 17108

(717) 232-8731

Attorneys for Petitioners