Appendix — New Jersey-Philadelphia Presbytery of the Bible Presbyterian Church v. New Jersey State Board of Higher Education

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IN THE ad 18 ”

SUPREME COURT OF THE UNITED STAPES®=2. 5"

October Term. 1984

NEW JERSEY-PHILADELPHIA PRESBYTER)

OF THE BIBLE PRESBYTERIAN CHURCH. et al..

Petitioners

[

NEW JERSEY STATE BOARD O}

HIGHER EDUCATION. et al.

Respondents

APPENDIX TO

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE THIRD CIRCUIT

William Bentlev Ball

Philip J. Murren

Sandra E. Wise

BALL & SKELLY

311 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

TABLE OF CONTENTS

Page

APPENDIX A — Unpublished Opinion of the United

States Court of Appeals for hon Third Circuit

ag ee See Pe ee ee re A-1

APPENDIX B — Unpublished Opinion and Order of

the United States District Court for the District

of New Jersey (July 29, 1983, and September

ee ee re A-7

APPENDIX C — Opinion of the Supreme Court of

New Jersey (August 9, 1982), reported at 90 N.J.

470, 448 A:2d GOS CIGBZ). ... nsw eceess. A-26

APPENDIX D — Opinion and Order of the United

States District Court for the District of New Jer-

sey (May 18, 1981), reported at 514 F.Supp. 506

TN ies sk yk ck ee hk ee eens A-47

APPENDIX E — Opinion and Amendments of the

United States Court of Appeals for the Third Cir-

cuit (April 14, 1981), reported at 654 F.2d 868

Ce, EE cc sock whe ON Suan ee es A-70

APPENDIX F — Opinion and Order of the United

States District Court for the District of New Jer-

sey (January 4, 1980), reported at 482 F.Supp.

ge big Seren eree eer een oan A-169

APPENDIX G — Statutory Provisions Involved . A-200

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 83-5774

NEW JERSEY-PHILADELPHIA PRESBYTERY OF

THE BIBLE PRESBYTERIAN CHURCH; SHELTON

COLLEGE, A Ministry of Bible Presbyterian Church;

BIBLE PRESBYTERIAN CHURCH OF COLLINGS-

WOOD, NEW JERSEY; Kevin WILSON, Brad GSEL,

Kevin Clair MICHAEL, Curtis Jordan BASHAW, Louise

OLSON and Everette Charles OLSON,

Appellants

v.

NEW JERSEY STATE BOARD OF HIGHER EDUCA-

TION; T. Edward HOLLANDER, Chancellor of New

Jersey Department of Higher Education; Richard D.

BRESLIN, Assistant Chancellor for Academic Affairs of

the New Jersey Department of Higher Education; and

Amorita SUAREZ, Director of the Office for Independ-

ent College and Universities of the New Jersey Depart-

ment of Higher Education.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

(D.C. Civ. No. 79-3341)

A-1

A-2

Argued June 22, 1984

Before: ALDISERT, Chief Judge, HIGGINBOTHAM,

Circuit Judge, and HUYETT, District Judge.

(Filed July 17, 1984)

William Bentley Ball, Esq. (ARGUED)

Philip J. Murren, Esq.

Richard E. Connell, Esq.

Sandra E. Wise, Esq.

Ball & Skelly

511 North Second Street

P.O. Box 1108

Harrisburg, Pennsylvania 17108

COUNSEL FOR APPELLANTS

Irwin I. Kimmelman

Attorney General of New Jersey

OF COUNSEL:

James J. Ciancia

Assistant Attorney General

ON THE BRIEF:

Benjamin Clarke (ARGUED)

Deputy Attorney General

Richard J. Hughes Justice

Complex

CN 112

Trenton, New Jersey 08625

COUNSEL FOR APPELLEES

Honorable Daniel H. Huvett. 3rd. of the United States District

Court for the Eastern District of Pennsvlvania. sitting by designation.

A-3

OPINION OF THE COURT

PER CURIAM.

This is an appeal by Shelton College (a religious

institution located in New Jersey). church entities affili-

ated with Shelton College, Shelton College students and

parents, and a Shelton College facuity member from an

order of the district court refusing to permanently enjoin

the New Jersey State Board of Higher Education from

enforcing against Shelton College two provisions of New

Jersey's education law, N.J.S.A. 18A:68-3 and N.J.S.A.

18A:68-6, that require institutions of higher education in

New Jersey to be licensed by the state before they can

confer baccalaureate degrees. The district court held

that application of New Jersev’s degree licensing stat-

utes to a sectarian college whose religious doctrine pre-

cludes state licensure does not violate the first amend-

ment. We affirm.

This controversy between Shelton College and the

New Jersey State Board of Higher Education has

spawned almost two decades of litigation in the state and

federal courts. In 1966, in response to a resolution by the

New Jersey State Board of Education to terminate Shel-

ton College’s power to confer baccalaureate degrees be-

cause of its failure to comply with certain minimum

educational standards, Shelton College brought suit

against the Board in New Jersey state court. contending

that New Jersey’s degree licensing statutes infringed its

freedom of speech in violation of the first amendment.

The New Jersey Supreme Court certified an appeal and

upheld the constitutionality of the statutes. thereby

prompting the Board to revoke Shelton College’s license

to award degrees in New Jersev. Shelton College v. State

Board of Education, 48 N.J. 501, 226 A.2d 612 (1967).

In February 1979, the Board learned that Shelton Col-

lege intended to offer courses in New Jersey and to grant

degrees through its licensed Florida affiliate. Believing

that this practice violated New Jersey's education laws.

A-4

the Board brought suit against Shelton College in New

Jersey Superior Court to enjoin the college from engag-

ing in any educational instruction or granting degrees

until it obtained a New Jersey license. The Superior

Court granted a preliminary injunction to that effect.

In November 1979, Shelton College joined with

certain “federal only” plaintiffs, appellants herein, and

filed an action under 42 U.S.C. §1983 in the United

‘States District Court for the District of New Jersey seek-

ing to enjoin the Board from interfering with their right

to teach, advertise, and grant degrees without a New

Jersey license. The district court issued a preliminary

injunction, enjoining the Board, on first amendment

religion grounds, from preventing Shelton College from

engaging in religious teaching or educational activities

or from advertising those activities. It retained jurisdic-

tion of plaintiffs’ claim that the degree licensing statutes

violated the religion clauses of the first amendment

pending construction of the statutes by the New Jersey

state courts. New Jersey-Philadelphia Presbytery of the

Bible Presbyterian Church v. New Jersey State Board of

Higher Education, 482 F.Supp. 968 (D.N.J. 1980). This

court affirmed. New Jersey-Philadelphia Presbytery of

the Bible Presbyterian Church v. New Jersey State Board

of Higher Education, 654 F.2d 868 (3d Cir. 1981).

Meanwhile, in the separate state court action, the

New Jersey Superior Court held that New Jersey’s de-

gree licensing statutes were constitutional under the

first amendment religion clauses, and it permanently

enjoined Shelton College from awarding degrees until it

obtained a license. Shelton College and the “federal

only” plaintiffs then returned to federal district court

seeking to preliminarily enjoin the Board from imple-

menting that state court injunctive order pending review

by the New Jersey Supreme Court. The district court

granted a preliminary injunction. New Jersey-Philadel-

phia Presbytery of the Bible Presbyterian Church v. New

Jersey State Board of Higher Education, 514 F.Supp.

A-5

506 (D.N.J. 1981). The New Jersey Supreme Court

affirmed the Superior Court, holding that New Jersey's

degree licensing statutes applied to religious institutions

and that they were not unconstitutional under the reli-

gion clauses of the first amendment. New Jersey State

Board of Higher Education v. Board of Directors of

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

on that decision, the district court below refused to make

permanent its preliminary injunction enjoining the

Board from enforcing New Jersey's degree licensing

statutes against Shelton College. Plaintiffs appealed.

Before us, appellants contend that the application to

Shelton College of New Jersey's degree licensing stat-

utes infringes upon their free exercise of religion and

creates an excessive state entanglement with religion in

violation of the religion clauses of the first amendment.

Appellees respond that because these constitutional

issues were fully. litigated in the New Jersey Supreme

Court, resulting in a final judgment prohibiting Shelton

College from conferring baccalaureate degrees without a

license, appellants are barred on res judicata grounds

from relitigating the issues in federal court. Alterna-

tively, appellees argue that New Jersey's degree licens-

ing statutes are constitutional under the first amend-

ment. 2

After due consideration of these contentions, and for

the reasons set forth in the district court opinion by the

Honorable Dickinson R. Debevoise, New Jersey-Phila-

delphia Presbytery of the Bible Presbyterian Church v.

New Jersey State 3oard of Higher Education, Civ. No.

79-3341 (D.N.J. July 29, 1983), reprinted in app. at 225.

we conclude that this action is not barred on res judicata

grounds and that New Jersev’s degree licensing statutes

pass constitutional muster.

A-6

Accordingly, the judgment of the district court will

be affirmed.

TO THE CLERK:

Please file the foregoing opinion.

Circuit Judge

A-7

APPENDIX B

IN THE

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

NEW JERSEY-PHILADELPHIA : Civil No. 79-3341

PRESBYTERY OF THE

BIBLE PRESBYTERIAN

CHURCH; SHELTON

COLLEGE, etc., et al., Transcript of

Plaintiffs, : Proceedings

vU. :

NEW JERSEY STATE BOARD

OF HIGHER EDUCATION,

etc., et al., .

Defendants. : Newark, New Jersey

July 29, 1983

BEFORE:

HONORABLE DICKINSON R. DEBEVOISE. U.S.D.]J.

Appearances:

(No appearances. )

THE COURT: What I intend to do is simply put an

opinion on the record and then reserve the right to take

the transcript of the opinion and correct it as needed.

The procedural history of this case first in this court

as reported in 482 F.Supp. 968 (1980) (Shelton I), then

in the Court of Appeals, reported in 654 F.2d 868 (1981)

(Shelton II), and then in this court again is described in

New jersey-Philadelphia Presbytery v. N.J.,514 F.Supp.

506, (D.N.J. 1981), (Shelton III). In Shelton Ill I set

forth reasons why the defendants should be preliminar-

ily enjoined from enforcing or implementing an order of

A-8

the Chancery Division of the New Jersey Superior Court

in the related state court action enforcing the application

of the New Jersey licensing statutes and regulations

against Shelton College until such time as the Supreme

Court of New Jersey construed the statute and regula-

tions.

The New Jersey Supreme Court directly certified the

case then pending in the State Superior Court. It held

that “the State’s program for licensing institutions of

higher education is applicable to sectarian institutions

and that faciaily it does not unduly interfere with the free

exercise of religion nor create an excessive state en-

tanglement with religion.” (N.J. Bd. of Higher Ed. v.

Shelton College, 90 N.J. 470, 490 (1982)). The Court,

however, modified the judgment of the Chancery Divi-

sion to allow the awarding of earned credits and degrees

to all eligible students through 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 plenary trial of the instant

case was held. The State court trial testimony and ex-

hibits were made part of the record and each side called

one additional witness. I reserved decision giving the

parties additionai time to submit post trial briefs. I have

reviewed the entire record, the briefs, and conclude that

plaintiffs are not entitled to further relief.

The preliminary injunction entered in this case after

Shelton I need not be made final because the state courts

have ruled that the New Jersey licensing statutes and

regulations do not and were not intended to prevent

Shelton College from teaching or advertising. They do no

more than regulate the granting of formal degrees.

The remaining issues are whether the New Jersey

degree licensing statutes and regulatory scheme violate

plaintiffs’ First Amendment right to free exercise of their

religion, and whether the licensing system results in an

impermissible entanglement between government and

religious institutions. I conclude that in the peculiar

nae

A-9

circumstances of this case the decision of the New

Jersey Supreme Court on these issues is not res judicata

and binding upon the plaintiffs other than, perhaps,

Shelton College. I further conclude, however, that the

New Jersey statutes and regulatory scheme as explicated

by the New Jersey Supreme Court, pass Constitutional

muster.

Res Judicata Issue

In order to evaluate the defendants’ res judicata

claim, it is necessary to review certain of the procedural

steps in the case.

Before this case was instituted, the New Jersey State

Board of Higher Education had instituted an action in

the Chancery Division of the New Jersey Superior Court

to restrain Shelton College from operating without a

license. The defendants in that case were the board of

directors of Shelton College and two of its officers. On

the date the complaint was filed, the Superior Court

issued a temporary restraining order enjoining, with a

limited exception for certain students for a short period

of time, all educational or instructional activities and

advertising.

Shortly afterwards plaintiffs filed this action under

42 U.S.C., Section 1983, alleging that the efforts of the

Board to prevent Shelton’s educational and instructional

activities unless it complied with New Jersey’s licensing

scheme violated their rights to the free exercise of reli-

gion and unduly entangled the State in the affairs of a

religious institution.

Plaintiffs in the federal action were Shelton College,

New Jersey-Philadelphia Presbytery of the Bible Presby-

terian Church, the Bible Presbyterian Church of Collings-

wood, four Shelton College students, two parents of

Shelton College students, and a member of the Shelton

College faculty.

A-10

After an evidentiary hearing in the case I entered an

order which, among other things, enjoined the defend-

ants from taking or permitting the taking of any action

having the effect of preventing Shelton College from

engaging in any religious teaching or educational activi-

ties or from publicizing such activities. I did not reach

the principal issue, namely, whether the Board’s licens-

ing procedures, if applicable to Shelton College, would

constitute a violation of the religion clauses of the First

Amendment. I| abstained as to that issue and stayed the

federal proceedings until the State court had an oppor-

tunity to determine whether the licensing requirements

applied to a religious institution such as Shelton College.

If they did not, there would have been no need to reach

the difficult constitutional issue posed in this case. Rail-

road Comm’n against Pullman Co., 312 U.S. 496 (1941).

The defendants argue on the basis of Younger v.

Harris, 401 U.S. 37 (1971) and its progeny, that the

federal case should have been dismissed since there was

a pending state court proceeding started before this

action involving a matter of important state interest. I

stated in Shelton | that “if one were to accept the State

Board’s contention that all that is involved in this case is

a question whether the State Board has the power to

license Shelton and grant degrees and if there were no

attempt to shut down this teaching institution, it is my

opinion that both the Younger and the Pullman doctrines

would be applicable.” 482 F.Supp. at 976.

However, at that juncture in the state and federal

litigation the State Board was not simply seeking to deny

Shelton College the right to grant degrees. It sought to

prevent it from engaging in any teaching activities, dis-

rupting in the process the religious expression and prac-

tices of a community of believers. This, I concluded, was

such an egregious violation of First Amendment rights

that the case came under a recognized exception to the

Younger doctrine. The Younger doctrine of abstention

will not apply in extraordinary circumstances where

———x °° ° ° ° °°

a ad ed 0 a

be ERIE tied tog

A-11

there will be great, immediate and irreparable harm if

the federal court does not intervene. Further I concluded

that in the situation of a Pullman abstention, the abstain-

ing federal court should retain jurisdiction and may.

while the state proceedings are being completed, grant

such interim injunctive relief as may be necessary to

insure the protection of federal rights.

Upon granting the preliminary injunction referred

to above I abstained on both Younger and Pullman

grounds pending completion of the State court action.

As a general rule, when a federal court concludes

that it is required to abstain on Younger grounds, it will

dismiss the complaint, requiring the parties to pursue

their remedies and argue their federal claims in the state

court proceeding. Occasionally, however, instead of dis-

missing the complaint in a Younger situation, the federal

court will stay the federal proceeding, reserving jurisdic-

tion to grant such relief as may be required upon com-

pletion of the state proceeding. Williams v. Red Bank Bd.

of Ed., 662 F. 2d 1008, (3d Cir. 1981).

Both sides appealed the order granting injunctive

relief in part and denying such relief in part.

The Court of Appeals resolved the State’s Younger

abstention arguments on different grounds from those

upon which I relied. The majority opinion did not find

that “extraordinary circumstances” called for an excep-

tion to Younger abstention. Rather, it concluded that the

Younger doctrine was simply inapplicable because there

were parties in the federal action (churches, parents.

students and a teacher) who were not parties to the State

action and who had separate interests of their own.

“|. . nonparties to the state enforcement proceed-

ings who assert independent constitutional interests may

advance those interests in a separate federal action.

Since the interests of any of these plaintiffs alone are

sufficient to justify the Court’s consideration of the ap-

plication for a preliminary injunction, that order cannot

be reversed on the chief ground the Board advances,

A-12

absent a very great extension of the Younger rule . . .

Shelton II, 654 F.2d at 881.

Thus, to the extent that Shelton I ruled that the stay

of proceedings after issuance of the preliminary injunc-

tion was based on Younger grounds, its reasoning must

be considered to have been rejected by the majority

opinion in Sheltoz II.

On the other hand, the Court of Appeals upheld the

Pullman type stay with retention of jurisdiction to con-

sider further relief when the State court had construed

the statutes and regulations.

While the federal action was pending before the

Court of Appeals, the State court action was tried and

decided in the Chancery Division of the New Jersey

Superior Court in June, 1980. At that trial Shelton Col-

lege presented and argued its federal and constitutional

claims. The State plaintiffs in that case had abandoned

their original position that Shelton College could rot

teach or advertise without the imprimatur of a state

license and simply sought a ruling that Shelton College

could not grant degrees or call itself a college without

such a license. The State trial court held that the insti-

tution was entitled to designate itself a college, but

further held that the State licensing statutes precluded

Shelton College from granting degrees in New Jersey

without a license from the State Board of Higher Edu-

cation and that such a requirement did not violate the

United States Constitution.

After the decision in that case and after the decision

of the Court of Appeals in Shelton II, but before the

decision of the New Jersey Supreme Court, I issued the

Shelton III opinion in which I enjoined the State Board

of Higher Education from enforcing the order of the

Superior Court until such time as the New Jersey Su-

preme Court definitively construed the applicable New

Jersey statutes and regulations.

In August, 1982 the New Jersey Supreme Court

definitively construed the statute and regulations in a

A-13

comprehensive opinion referred to above. The Court

declined to follow the route that the United States Su-

preme Court followed in NLRB v. Catholic Bishops of

Chicago, 440 U.S. 490 (1979). There the Court avoided

the difficult question whether application of the National

Labor Relations Act to lay teachers employed by paro-

chial schools violated First Amendment religion clauses

by holding that the Act did not apply to religious schools.

The New Jersey Supreme Court, on the other hand,

concluded the New Jersey Statute, NJSA 18A:68-3 and

NJSA 18A:68-6, by their clear language and obvious’

intent applied to religious as well as’secular colleges.

Having so concluded, the Court turned to the constitu-

tional question whether the application of the statutes to

Shelton College unconstitutionally infringes upon plain-

tiffs’ free exercise of their religion.

The Supreme Court assumed for the purposes of

that case that plaintiffs’ religious beliefs prohibited Shel-

ton College from applying for and obtaining licensure by

the New Jersey Board of Higher Education. That was a

generous concession to the plaintiffs. The evidence

clearly establishes in both the State case and in the

federal case that in the past plaintiffs had no compunc-

tions about applying for licensure in New Jersey and

Florida. This assumed article of faith will be found nei-

ther in the Institutes of the Christian Religion nor in the

Westminster Confession nor in the Larger Catechism

nor = the Shorter Catechism. It derives from more

recent inspiration.

The New Jersey Supreme Court nevertheless ac-

cepted plaintiffs’ position in this regard and it recognized

that the New Jersey licensing statutes as applied to

Shelton College imposed some burdens on the exercise

of religion. However, it found that the legislation sup-

ports strong State interests, namely, maintenance of the

integrity of the baccalaureate degree in protecting stu-

dents as potential consumers of higher education. It

further found that granting a religious exemption from

A-14

licensing would significantly hinder attainment of these

State interests and thus application of the statute to

Shelton College does not constitute an abridgement of

the Free Exercise Clause of the First Amendment.

The Supreme Court further concluded that the stat-

utes have a secular purpose and their primary effect

neither advances nor inhibits religion and thus avoids

excessive entanglement with religion.

It is in the discussion of this issue that one discerns

how far removed is the position of the New Jersey

Supreme Court from the original position of the New

Jersey State Board of Higher Education which precipi-

tated the federal litigation.

The original position of the State Board, which was

accepted in the first instance by the Superior Court, was

that Shelton College, not having obtained a license, must

be shut down in toto and prohibited from teaching secu-

lar or religious subjects and prevented from publicizing

its existence and its teachings. The State Board in its

administration of the licensing statutes exhibited total

unawareness of First Amendment rights. It was this

circumstance which necessitated federal court interven-

tion. Were the statutes and regulations to be adminis-

tered in the spirit originally manifested by the State

Board, there is little doubt but that they would have had

to have been declared unconstitutional in their applica-

tion if not on their face.

Neither party in the present proceeding, however,

has emphasized sufficiently the totally different ap-

proach to the statutes and regulations taken by the

Supreme Court. The Court was fully aware of the deli-

cate balance that must be struck between compelling

state interests and the exercise of religious faith. Its

opinion made it very clear that the licensing statutes, as

they are applied to religious institutions, are to intrude as

little as possible upon the functioning of such institu-

tions. The pertinent paragraphs of the opinion can only

be construed as a gentle but unmistakable directive to

iad nt Pe aw

A-15

the State Board to apply the statutes and regulations in

a manner that will result in as little intrusion upon

religious colleges as possible.

Quoting from the opinion: “The establishment

clause permits minor unobtrusive State supervision of

religiously oriented schools. Only excessive entangle-

ment is proscribed. None of the education statutes or

regulations here in question mandate active involvement

of the sovereign in religious activity. None authorize the

state regulation of the contents of an educational pro-

gram, nor does the regulatory scheme on its face require

comprehensive, discriminating and continuing state sur-

veillance. Although the regulations in this area, NJAC

9:1-1 to 2.14 appear to be burdensome, especially as

applied to a college of approximately 30 students, they

explicitly call for flexibility of their administration so as

to accommodate various institutions with diverse educa-

tional goals, NJAC Title IX, Forward.

“Because Shelton College declined even to complete

the licensing process, the allegation of excessive en-

tanglement rests on speculation of the manner in which

those statutes and regulations might be applied. Al-

though one could imagine an unconstitutional applica-

tion of its regulatory scheme, we are confident the Board

of Higher Education will pursue the least restrictive

means to achieve the State’s overriding concerns.” 90

N.J. 488 to 490 (citations omitted).

On this basis the Court concluded that the statutes

and regulations did not create excessive state entangle-

ment with religion. Thus plaintiffs, by virtue of their

litigation in the State and federal courts, have effected a

very profound change in the manner in which the State

Board will deal with religious colleges in the future.

It is the State’s argument that both the statutory

interpretation and constitutional holdings of the New

Jersey Supreme Court are binding in the present federal

action.

A-16

Generally the principles of res judicata are appli-

cable in federal Section 1983 cases, that is, parties to the

Section 1983 action will be bound by determinations

against them on issues decided in the state court pro-

ceedings. Allen v. McCurry, 449 U.S. 90 (1980).

However, the Court of Appeals held in Shelton II

that the federal abstention in this case to allow comple-

tion of the State court proceeding is not a Younger

abstention, but rather properly a Pullman abstention.

In the case of such an abstention, the federal court

stays its hand in order to give the state courts an oppor-

tunity to decide state law questions, the determination of

which may make it unnecessary to reach the constitu-

tional question. Thus in the present case had the New

Jersey Supreme Court construed the licensing statutes

to exclude religious colleges, it would have been un-

necessary to have dealt with the constitutional issue.

In a Pullman abstention situation the federal plain-

tiffs are entitled to have their federal claims decided in a -

federal court once the state law claims are resolved in the

state court. However, this right will be lost if a litigant

unreservedly litigates his federal claims in the state

court. If he does that the may not return to the federal

court to relitigate his federal claim there. England v.

Louisiana Medical Examiners, 375 U.S. 411 (1964).

In the present case Shelton College did litigate its

federal claim in the state courts without reservation. Its

belated effort in the New Jersey Supreme Court to re-

serve those claims for the federal court hardly suffice to

overcome the England rule. Were the College the only

plaintiff in the federal case. I believe it should be held to

be bound by the New Jersey Supreme Court decision.

However, the College is not the only plaintiff in the

federal action. For the same reasons that the Court of

Appeals held in Shelton II that Younger principles were

not applicable, I conclude that the principle of res judi-

cata should not preclude the plaintiffs who appear only

a le eo

ribhahaatts Naas san Wichita

A-17

in the federal action from seeking a ruling on their

federal claims in this court.

First Amendment Religion Claim Issue

It is necessary, therefore, to determine whether the

New Jersey licensing statutes, as construed by the New

Jersey Supreme Court, violate plaintiffs’ First Amend-

ment religious rights.

The underlying facts are set forth in Shelton I, II and

III. There can be no question that Shelton College is a

religious institution in all phases of its activities. Plain-

tiffs, therefore, have stated a religious liberty claim, e.g.,

United States v. Ballard, 322 U.S. 78 (1944). It is quite

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

is unable to grant baccalaureate degrees. In the light of

the New Jersey Supreme Court decision, however, it is

not at all certain that Shelton College would be unable to

obtain a license to grant such degrees if it applied for

such a license. Unlike the New Jersey Supreme Court, I

do not assume the members of the Bible Presbyterian

Church and related fundamentalist religious groups are

forbidden by their faith to permit their colleges to apply

for state licensing. The evidence in this case is to the

contrary. Therefore, the question is not whether Shelton

College is being forced to do something its religious

tenets forbid. The question is whether the statute and

regulatory scheme involve an impermissible intrusion by

the State into the affairs of a religious institution.

Given the generally undisputed facts in this case, it

must be determined whether the impact of the State’s

statutes and regulations upon the religious interests of

the plaintiffs can be justified by a compelling state in-

terest in the regulation of a subject matter within the

State’s constitutional power to regulate. Sherbert v.

Verner, 374 U.S. 398 (1963).

Plaintiffs urge that the conditions for licensure im-

posed by the New Jersey statutes and regulations would

A-18

impose impermissible burdens upon plaintiffs’ religious

liberties. I refer to these burdens at some length in

Shelton Ill, 514 F. F.Supp., 512 to 513. Plaintiffs note

that the requirements contained on the Standards for

New Jersey Institutions of Higher Learning are not

specific in nature. Rather, they are written in very gen-

eral terms leaving broad discretion to the agency and

persons administering the licensing program. This,

plaintiffs argue, opens the way for total State regulation

of Shelton College’s religious ministry.

Defendants, on the other hand, urge that this very

flexibility of the regulations makes it possible for the

administrators of the licensing program to adapt the

regulations and standards to particular circumstances of

a religious institution.

The conclusion to be drawn is that whether this

licensing program impinges on religious liberties will

depend upon the manner in which the program is ad-

ministered.

Were the original attitude of the State Board of

Higher Education to guide the administration of the

licensing program to prevail, one might well have cause

for concern that Shelton College’s religious mission

would be impermissibly affected. However, the New

Jersey Supreme Court opinion not only demonstrates

complete awareness of the need to accommodate the

administration of the statutes and regulations to the

religious purposes of the College, it also constitutes a

gentle but firm direction of the Board of Higher Educa-

tion to pursue the State’s concern with these religious

considerations in mind. The Court noted that “Should

the Board exercise its discretion in a manner that un-

necessarily intrudes into Shelton’s religious affairs, the

college would then be free to challenge the constitution-

ality of such action.” 90 N.J. at 490.

In light of the Supreme Court's opinion I think it is

inconceivable that the State Board would seek to modify

in any way any statement of purpose which Shelton

.

=

3

§

-

a

A-19

College sets forth in a license application or attempt to

judge the appropriateness or lack of appropriateness of

such purpose. Further, I think one would now expect

the Board to make every effort to accommodate its re-

quirements to the religious beliefs and practices of Shel-

ton College and of its students, parents and teachers.

Much of the testimony and other evidence in the

State and federal court proceedings related to the ques-

tion of whether the State of New Jersey has a compelling

State interest in regulating the granting of degrees.

Plaintiffs urge that no such interest exists. They urge

that the quality of a bachelor’s degree or of any other

degree is dependent upon the quality of the institution

granting the degree, not upon State regulations. They

noted the depreciation of the integrity of the degree, a

factor to which I alluded in Shelton III, 514 F.Supp..

514.

However, even plaintiffs’ witnesses attested to the

importance of maintaining the quality of higher educa-

tion and the degrees evidencing attainment of such

education. It is a subject in which the State has a

compelling interest. Even though the imposition of li-

censing requirements has not assured uniformly high

quality education in all institutions of higher learning,

the State is certainly justified in pursuing that goal.

The extent to which the attainment of this goal

would be jeopardized by absolute exemption of religious

colleges from any form of degree licensing requirements

is illustrated by the case of State ex rel McLemore v.

Clarksville School of Theology, 636 S.W. 2d 706, (Sup.

Ct. of Tenn. 1982). The Clarksville School of Theology,

a totally religious institution, had not complied with the

requirements of the Tennessee Higher Education Com-

mission promulgated pursuant to statutory authority.

The Attorney General brought an action to enjoin the

school from granting degrees until it met the require-

ments of the statute.

A-20

The evidence established that for a bachelor’s degree

an applicant must first have faith, second, be a pastor or

evangelist, and third, must complete a “synthetic” Bible

study and write a thesis of 30,000 words. A bachelor of

theology degree cost $25 at enrollment, $320 tuition, and

$30 for a cap and gown. Students were required to

attend only three seminars, that being the only class-

room attendance required. Without the granting of de-

grees, the students at the institution would not have

attended.

The School defended the case on very much the

same grounds that Shelton College advances here. The

Tennessee Supreme Court held the granting of degrees

is purely a secular activity, and that was the only activity

the State sought to regulate, leaving the school free to

believe, practice and teach as it thought fit. It found

neither a burden upon the free exercise of religion nor a

threat of entanglement between the affairs of church

and state.

If the award of a degree is to have any significance

whatsoever, criteria such as those established by Clarks-

ville School of Theology cannot be permitied to serve as

a basis for a degree.

Even more bizarre examples of degree criteria can

be conjured up if religious institutions are totally ex-

empted from all regulations of degree granting activities.

I believe the State does have a compelling interest in

preventing the impairment of minimum standards for

the granting of degrees and protecting the gullible and

the unwary.

True, the licensing process imposes some burden on

a religious institution such as Shelton College which

conducts its educational program in a manner which

qualifies its students for a degree in the traditional sense.

However, in light of the manner in which the New

Jersey Supreme Court has directed that the statute and

regulations be applied to a religious college, | conclude

the burden is not undue.

A-21

Further, in light of the New Jersey Supreme Court’s

directions in this regard, it cannot be held that the

statutes and regulations on their face involve an undue

entanglement with religion within the principles of Walz

v. Tax Commission of New York, 397 U.S. 664 (1969),

and Roemer v. Maryland Board of Public Works, 426

U.S. 736 (1976). It is possible, of course, that the licens-

ing scheme could in fact be administered in a manner

which would intrude unduly upon religious matters, but

it should not be assumed the State Board will disregard

the directions of New Jersey’s Supreme Court or that the

Courts would fail to rectify the situation if it did.

CONCLUSION

This case has run a long course.

At the outset the New Jersey Board of Higher Edu-

cation sought to enforce New Jersey’s degree licensing

statutes and regulations by shutting down Shelton Col-

lege and preventing it from teaching and advertising. It

had obtained a state court order to that effect.

In light of the Board’s lack of awareness of funda-

mental constitutional rights evidenced by the sanctions

it sought, it takes only a little imagination to predict the

manner in which the Board would have applied the

licensing statutes and regulation to Shelton College at

that time. One could safely have predicted that the Board

would have been unaware of the great care which would

have been required to avoid impinging upon the reli-

gious liberties of the plaintiffs.

The plaintiffs prevailed at the outset in the federal

action obtaining a preliminary injunction restraining the

Board from shutting down the College and from limiting

its rights to advertise its activities.

In several respects plaintiffs have prevailed in the

State courts. Both the trial court and the Supreme Court

recognized that on both statutory and constitutional

grounds the State lacks the power to shut down Shelton

A-22

College or to limit in any way its teacning or religious

activities. All the State has the power to do is to prohibit

Shelton College from granting degrees unless it com-

plies with the licensing program. Although the New

Jersey Supreme Court held that the statutes and regu-

lations apply to religious institutions, it made it abun-

dantly clear that in administering the statutes and regu-

lations the State Board must take into account and

accommodate plaintiffs’ religious beliefs and practices.

Thus, one can confidently expect that the State Board’s

administration of the licensing program will reflect these

directions.

in light of these developments the preliminary in-

junction issued in this court is no longer required and

will be vacated.

In light of my conclusion that New Jersey may

regulate the granting of degrees by religious colleges in

a manner specified by the New Jersey Supreme Court,

further relief in the federal action will be denied. Judg-

ment will be entered for defendants without costs.

Notwithstanding the entry of judgment for defend-

ants, plaintiffs are clearly the prevailing parties for the

purposes of the Civil Rights Attorney’s Fee Award Act,

42 U.S.C. Section 1988. They succeeded in obtaining

relief on the merits in the form of a preliminary injunc-

tion preventing the State from closing Shelton College

and ordering it to cease teaching and advertising. Fol-

lowing its obtainment of this relief, plaintiffs were able to

persuade the State courts that the State did not have the

power to close Shelton College even though is was un-

licensed. Further, as a result of plaintiffs’ actions, the

New Jersey Supreme Court rendered an opinion which

established the State Board of Higher Education obliga-

tion to administer the degree licensing statutes and

regulations with due regard to the religious nature of

Shelton College.

Therefore, if the parties cannot agree to an appro-

priate amount of attorneys’ fees, plaintiffs should file an

A-23

updated application for fees, bearing in mind the prin-

ciples set forth in C. Duane Hensley v. Thomas Eck-

erhart, 51 U.S. Law Week 4552, (U.S. Supreme Cit.

1983) and N.A.A.C.P. v. Wilmington Medical Center,

Inc., 689 F.2d 1161, (3rd Cir. 1982).

The defendants will be requested to submit a form of

judgment consistent with this opinion.

All right. Thank you very much. That will resolve it.

A-24

IN THE

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

NEW JERSEY-PHILADELPHIA : Civil No. 79-3341

PRESBYTERY OF THE

BIBLE PRESBYTERIAN

CHURCH, SHELTON

COLLEGE, et al.,

Plaintiffs, : ORDER

vU. .

NEW JERSEY STATE BOARD

OF HIGHER EDUCATION,

et al.,

Defendants.

Plenary trial of this matter having been held on

January 10, 1983, and post-trial briefs having been sub-

mitted, and the court having considered all the evidence

and legal arguments set forth by the parties, and it

appearing for the reasons set forth in this court’s bench

opinion of July 29, 1983, that plaintiffs are not entitled to

declaratory or injunctive relief beyond that awarded in

this court’s opinion and order.of January 4, 1980,

IT IS on this 26th day of September 1983 OR-

DERED and ADJUDGED that no further relief being

warranted in this action judgment shall be entered for

the defendants and the complaint shall be dismissed

with prejudice and without costs;

A-25

Further ORDERED and ADJUDGED that plaintiffs

having prevailed on the merits at the preliminary injunc-

tion proceeding after which defendants abandoned cer-

tain of their original positions as to the meaning and

effect of the New Jersey degree licensing statute, plain-

tiffs may make application to the court for an award of

attorneys fees pursuant to 42 U.S.C. § 1988 after making

a good faith effort to reach agreement with defendants as

to an appropriate amount of such award.

DICKINSON R. DEBEVOISE

U.S.D.J.

A-26

APPENDIX C

SUPREME COURT OF NEW JERSEY

A-138 September Term 1981

THE NEW JERSEY STATE BOARD OF HIGHER

EDUCATION and T. EDWARD HOL-

LANDER, CHANCELLOR OF THE NEW

JERSEY DEPARTMENT OF HIGHER EDU-

CATION,

Plaintiffs-Respondents,

VU.

THE BOARD OF DIRECTORS OF SHELTON

COLLEGE, GLENN ROGERS and CARL MclI-

NTIRE,

Defendants-Appellants.

Aruged March 8, 1982 — Decided August 9, 1982

On certification to the Superior Court, Chancery

Division.

William Bentley Ball, a member of the Pennsylvania

bar, argued the cause for appellants (Bashaw &

Burro, attorneys; Mr. Ball, Philip J. Murren, Kath-

leen A. O’Malley and C. Clark Hodgson, Jr., mem-

bers of the Pennsylvania bar, of counsel; Keith J.

Bashaw and C. Peter Burro, on the brief).

Robert A. Fagella, Deputy Attorney General, argued

the cause for respondents (Irwin I. Kimmelman,

Attorney General of New Jersey, attorney; Erminie

L. Conley, Assistant Attorney General, of counsel).

Michael F. Spicer submitted a brief on behalf of

amicus curiae The Association of Independent Col-

leges and Universities of New Jersey (Jamieson,

McCardell, Moore, Peskin & Spicer, attorneys; Mr.

Spicer and Laura C. Ford, on the brief).

ee ee ee ee re

A-27

Garrett M. Heher submitted a brief on behalf of

amicus curiae Council of County Colleges (Smith,

Stratton, Wise & Heher, attorneys; Mr. Heher and

Thomas E. Kopil, on the brief).

The opinion of the Court was delivered by O’'HERN,

bE

Two provisions of New Jersey’s education law,

N.J.S.A. 18A:68-3 and N.J.S.A. 18A:68-6, prohibit the

conferring of baccalaureate degrees by any institution

that has not secured a license from the State Board of

Higher Education. We hold that application of these

statutes to a sectarian college whose religious doctrine

precludes state licensure does not violate the First

Amendment.

I.

Shelton College is an institution of higher education

operated by the Bible Presbyterian Church as part of the

church’s religious mission. Members of this fundamen-

talist Christian church believe that every aspect of their

lives, including education, must be governed by their

faith. Shelton’s teachers and students believe that their

presence at the college is for the purpose of preparing

themselves and others to undertake missions that their

Lord calls upon them to perform. Religion pervades

Shelton College. Every academic subject is taught from

a Christian fundamentalist perspective and students

must conform their behavior to religiously derived codes

of conduct. Shelton College is a school of approximately

30 students, but those who attend it cherish its mission.

The procedural pilgrimage of Shelton College to this

point of decision began after the school opened opera-

tions in New Jersey in the 1950’s under a temporary

license issued by the State. In 1965, the State Board of

Education passed a resolution proposing to terminate

Shelton’s power to confer baccalaureate degrees because

the college had failed to comply with certain minimum

A-28

requirements. Shelton appealed the Board’s action, chal-

lenging the constitutionality of N.J.S.A. 18A:68-3 and

N.J.S.A. 18:68-6, the statutes that regulate the award of

baccalaureate degrees. Shelton College v. State Bd. of

Ed., 48 N.J. 501 (1967) (Shelton I). Specifically, Shelton

asserted that (1) any state regulation of baccalaureate

degrees abridges the right of free speech guaranteed by

the New Jersey and Federal Constitutions; (2) the li-

censing statute effected an overbroad delegation of leg-

islative power to an administrative agency, in violation of

the New Jersey Constitution; and (3) the legislation

deprived Shelton of equal protection of law because it

contained limited exemptions for institutions that had

the authority to confer academic degrees prior to 1887.

Id.

The Court upheld the statutes against Shelton’s

constitutional attacks and affirmed the action of the

State Board of Education. Central to the Court’s decision

was its discussion of the bachelor’s degree and the State’s

interest in preserving the degree’s integrity. Chief Jus-

tice Weintraub carefully traced the history of New Jersey

legislation relating to the granting of baccalaureate de-

grees, and concluded that

... it is the degree, evidential as it is of academic

attainment, which especially is an approporiate ob-

ject of regulation. . . . “The power to confer academic

degrees is to be regarded as distinct and separate

from the privilege of being incorporated as an edu-

cational institution. The privilege of granting de-

grees is very intimately related to the public welfare,

and is unquestionably subject to regulation by the

State.”

[Shelton I, supra, 48 N.J. at 511, quoting Elliott,

The Colleges and the Courts (1936) p. 200].

Thus, Shelton I held that the State has a substantial

interest in regulating the bachelor’s degree and that it

A-29

may constitutionally prohibit the granting of such de-

grees by unlicensed institutions.

In 1971, after Shelton I and the conclusion of related

litigation, In Re Shelton College, 109 N.J. Super. 488

(App. Div. 1970), the State Board of Higher Education

revoked Shelton’s temporary license to award degrees in

New Jersey. Shelton College moved its operations to

Florida where it obtained a license to confer bachelor’s

degrees in that state. It has continued to operate there up

to the present time and, as late as May 1981, applied to

Florida officials for renewal of its license.

In February of 1979, Shelton College submitted a

new application to the New Jersey State Board of Higher

Education, seeking authorization to award baccalaure-

ate degrees in Biblical Literature, Christian Education,

Elementary Education, Secondary Education, English,

History, Business Management, Music Education and

Natural Science. Before it secured such authorization,

however, Shelton began to offer credit-bearing courses

in New Jersey that it represented would lead to a

bachelor’s degree. On November 15, 1979, the State

Board of Higher Education brought suit in the Superior

Court, Chancery Division, alleging that Shelton’s New

Jersey operations violated N.J.S.A. 18A:68-3 and N.J.S.A.

18A:68-6 which prohibit the conferring of degrees or the

furnishing of instruction for the purpose of conferring

degrees, except by licensed institutions. The State Board

sought an injunction restraining Shelton from engaging

in any form of educational instruction, offering any cred-

its, or granting any degrees until it obtained a license

authorizing it to do so. The Chancery Court granted a

preliminary injunction to that effect.

On November 19, 1979, Shelton College and various

students and faculty members instituted an action under

42 U.S.C. §1983 in the United States District Court for

the Districi of New Jersey. The federal plaintiffs alleged

that application of the New Jersey licensing statutes to

Shelton College violated rights guaranteed them by the

A-30

First, Ninth and Fourteenth Amendments to the United

States Constitution. They sought both declaratory and

injunctive relief.

The District Court issued a preliminary injunction,

enjoining the State from taking any action to prevent

Shelton College from engaging in religious teaching or

educational activities, or from publicizing or advertising

these activities.' Although the court granted partial in-

junctive relief to the federal plaintiffs, it abstained from

deciding whether the New Jersey licensing statutes ap-

ply to religious institutions, such as Shelton College. The

District Court stayed the federal action to permit the

state courts to resolve this issue.

In February 1980, the State Board appealed the

District Court’s order to the United States Court of

Appeals for the Third Circuit, and the fededral plaintiffs

cross-appealed. While the federal appeal was pending,

the state court action proceeded to trial in June 1980. At

this trial Shelton College presented its federal constitu-

tional claims. The Superior Court upheld the constitu-

tionality of the licensing statutes as applied to Shelton

College and on December 10, 1980 entered a permanent

injunction which, among other things, restrained the

college from awarding course credits or degrees in New

Jersey without a license from the State Board of Higher

Education. Shelton filed notice of appeal to the Appellate

Division.

On April 14, 1981, a divided Third Circuit upheld

the Federal District Court’s order granting injunctive

relief, and approved the court’s decision to stay further

federal proceedings pending completion of the state court

action. On May 18, 1981, the District Court entered a

revised preliminary injunction that prohibited the State

Board of Higher Education from enforcing or implement-

ing the Superior Court’s order of December 10, 1980,

1. The Superior Court subsequently modified its preliminary

order to conform with the federal court’s preliminary injunction.

A-31

“until such time as the Supreme Court of New Jersey

definitively construes the New Jersey statutes and regu-

lations which are the subject of this action.” New Jer-

sey-Philadelphia Presbytery of the Bible Presbyterian

Church v. New Jersey State Board of Higher Education,

514 F. Supp. 506, 515 (1981). We directly certified the

matter on petition of the parties. ___N.J. ___(1981).?

Il.

Before addressing the constitutional issues raised by

this appeal, we first consider whether N.J.S.A. 18A:68-3

and N.J.S.A. 18A:68-6 apply to religious institutions such

as Shelton College. Read literally, these statutes clearly

encompass Shelton College. They require that all insti-

tutions — regardless of religious character or affiliation

— obiain a license before offering degree programs or

conferring degrees. Nonetheless, defendants urge us to

adopt a narrowing construction of these statutes — ex-

cluding Shelton from their ambit — so as to avoid the

constitutional issues that otherwise would emerge. De-

fendants suggest that this result could be achieved by

employing a standard of statutory construction an-

nounced by the United States Supreme Court in NLRB

v. Catholic Bishop of Chicago, 440 U.S. 490, 59 L. Ed. 2d

533 (1979). In that case the court declared that any

interpretation of a statute that “would give rise to serious

constitutional questions” must be rejected unless the

construction is compelled by “the affirmative intention of

the Congress clearly expressed.” Id. at 501, 59 L. Ed. 2d

2. We do not pass upon the complex problems of federalism

presented by the movements of the parties between state and

federal courts. Those issues divided the appeals panel in this case,

NJ. Phila. Presbytery v. NJ. State Bd., 654 F. 2d 868 (1981). Cf.

Middlesex Ethics Committee v. Garden State Bar Association et al.,

U.S. (1982) (federal courts should abstain from interfering

with ongoing disciplinary proceedings where proceedings provided

attorney under investigation with adequate opportunity to present

constitutional claims).

A-32

at 541. Applving this standard, the Court held that the

National Labor Relations Act does not extend to lay

teachers employed by parochial schools, even though the

act’s general terms include such employees. The Court

concluded that application of the National Labor Rela-

tions Act to church-operated schools would implicate the

Religion Clauses of the First Amendment but that there

existed no affirmative expression of legislative intent

sufficient to compel the constitutionally troublesome

interpretation of the act.

Four dissenting justices assailed the Court’s opin-

ion, stating that the majoritv had “seemingly invented

...acanon of statutorv construction . . . for the purposes

of deciding this case.” The dissent would have adhered

to the principle of statutory construction set out in Ma-

chinists v. Street, 367 U.S. 740, 6 L. Ed. 2d 1141 (1961):

“When the validity of an act of Congress is drawn in

question, and even if a serious doubt of constitution-

ality is raised, it is a cardinal principle that this Court

will first ascertain whether a construction of the

statute is fairly possible by which the question may

be avoided.” Crowell v. Benson, 285 US 22, 62, 76 L

Ed 598, 619.

(Id. at 749, 750. 6 L. Ed. 2d at 1150 (emphasis

added )}.

The dissent concluded that

... {Whhile the resolution of the constitutional ques-

tion is not without difficulty, it is irresponsible to

avoid it by a cavalier exercise in statutorv interpre-

tation which succeeds onlv in defving congressional

intent. A statute is not “a nose of wax to be changed

from that which the plain language imports. . . .” Yu

Cong Eng v. Trinidad. 271 US. at 518. 70 L Ed 1059.

46 S Ct 619.

A-33

[NLRB v. Catholic Bishop of Chicago, supra,

440 U.S. at 518, 59 L. Ed. 2d at 552}.

Under New Jersey law, a challenged statute will be

construed to avoid constitutional defects if the statute is

“reasonably susceptible” of such construction. State v.

Profaci, 56 N.J. 346, 350 (1970); Woodhouse v.

Woodhouse, 17 N.J. 409, 416 (1955). Thus, our standard

for construing statutes of uncertain constitutionality

closely resembles the principle of construction advo-

cated by the dissent in Catholic Bishop. But even if we

were to accept the broader standard elaborated by the

Catholic Bishop majority, we would still be constrained

to find that the New Jersey licensing statutes apply to

Shelton College.

The Legislature’s intent with regard to these stat-

utes is clear and unambiguous. N.J.S.A. 18A:68-3 and

N.J.S.A. 18A:68-6 speak in absolute terms. They prohibit

the granting of baccalaureate degrees by any institution

that has not secured a license from the State Board of

Higher Education. The sole exception to this regulatory

scheme appears in N.J.S.A. 18A:68-6. There the Legis-

lature expressly exempted institutions that were operat-

ing on April 1, 1887 by virtue of special legislative grant.

See L. 1912, c. 315; Shelton I, supra, 48 N.J. at 507. No

such exemption was created for sectarian colleges. Nor

does the legislative history even hint at an intent to

exclude religious schools from the scope of these stat-

utes. To the contrary, the history of the higher education

licensing provisions demonstrates a legislative intent to

regulate the conferring of baccalaureate degrees by re-

ligious as well as secular institutions. See Id. at 509-16.

The first higher education “approval” statute, en-

titled “An Act to prescribe the terms and conditions

under which degrees may be conferred by any school or

institution of learning within this State,” was adopted in

1912. L. 1912, c. 315. This legislation did not, however,

A-34

mark the State’s first involvement with the bachelor’s

degree. Prior to 1912 the Legislature passed several

special acts of incorporation that authorized a number of

secular and sectarian institutions to confer baccalaure-

ate degrees. Passage of these acts evidenced the

Legislature’s belief that even a sectarian college’s power

to confer degrees could be conditioned on state authori-

zation. There is no reason to infer that the Legislature’s

view in this regard changed before passage of L. 1912, c.

315. We must assume therefore that when the Legisla-

ture adopted L. 1912, c. 315, it was aware of the exist-

ence of religiously oriented colleges. We must also as-

sume that the Legislature understood that such institu-

tions would come within the literal terms of the statute.

Yet, although the act included an express exemption

clause, it contained no exemption for religious colleges.

Related provisions of New Jersey education law sup-

ply further evidence of legislative intent. Thus N.J.S.A.

18A:68-2 provides that seminaries and schools of theol-

ogy may grant bachelor’s degrees “subject to the provi-

sions of this chapter.” (Emphasis added.) This statute

appears in Chapter 68 of the education laws, together

with the licensing statutes.

The current statutory scheme also confirms that the

Legislature affirmatively intended to regulate the con-

ferring of degrees by religious institutions. In 1966, the

Legislature created a Department of Higher Education,

the office of Chancellor of Higher Education, and a

Board of Higher Education. L. 1966, c. 302, §§1, 2 (see

now N.J.S.A. 18A:3-1, -6, -20). The Board has been given

broad authority over the system of higher education in

this State. N.J.S.A. 18A:3-13. See, Association of New

Jersey State College Faculties v. Dungan, 64 NJ. 338

(1974). Pursuant to N.J.S.A. 18A:3-13, it is the duty of

the Board “to advance long-range planning for the sys-

tem of higher education as a whole in the State.” (Em-

phasis added.) Religious oriented colleges and universi-

ties comprise a significant proportion of the institutions

a

A-35

of higher learning in this State. If such institutions were

permitted to reject even minimal state regulation, the

legislative intent manifested by these education laws.

would be defeated.

Finally, the practice relative to N.J.S.A. 18A:68-3

and N.J.S.A. 18A:68-6 has been to apply the licensing

requirements to all degree-granting institutions, regard-

less of religious affiliation. The Legislature has acqui-

esced in this long-standing practice. This is strong evi-

dence that the current application of these statutes con-

forms to legislative intent. See, Division ef Taxation v.

Body-Rite, ___N.J. ___(1982).

In summary, we see no basis to infer that the Leg-

islature intended te exempt Shelton College and like

institutions from the requirements of N.J.S.A. 18A:68-3

and N.J.S.A. 18A:68-6. We construe statutes in accord

with the Legislature’s intent, even if to do so will give rise

to substantial constitutional questions. We hold that

N.J.S.A. 18A:68-3 and N.J.S.A. 18A:68-6 apply to Shel-

ton College.

III.

We turn now to defendants’ claim that application of

N.J.S.A. 18A:68-3 and N.J.S.A. 18A:68-6 to Shelton Col-

lege unconstitutionally infringes upon the free exercise

of their religion. Decisions in cases such as this regret-

tably involve courts in an examination of religious prac-

tices and inevitably call for “a delicate balancing of

important but conflicting interests.” Wisconsin v. Yoder,

406 U.S. 205, 237, 32 L. Ed. 2d 15, 38 (1972) (White, J..

concurring). In this case we must decide whether the

State’s interest in regulating academic degrees constitu-

tionally justifies the burden that such regulation may

impose on defendants’ freedom to hold and practice their

religious beliefs.

We begin by determining whether application of the

statutory licensing requirements to Shelton College in-

A-36

terferes with the free exercise of defendants’ religion.

Defendants profess as a principle of their faith that the

Bible commands the separation of church and state.

Recently, the Bible Presbyterian Church interpreted this

religious precept as prohibiting Shelton College from

submitting to licensure by the New Jersey Board of

Higher Education. We note, however, that defendants

did apply for renewal of Shelton’s Florida license subse-

quent to their espousal of this scriptural interpretation.

Although the First Amendment wisely prohibits

courts from questioning the validity of religious beliefs,

United States v. Ballard, 322 U.S. 78, 88 L. Ed. 1148

(1944), it does not preclude judicial inquiry into the

sincerity of those who claim exemption on religious

grounds from a law of general application. Id. Despite

defendants’ apparently inconsistent adherence to the

asserted religious tenet, however, we decline to inquire

into their sincerity on the record before us. Rather, we

shall assume, for purposes of this appeal, that licensure

of Shelton College would conflict with a principle of

defendants’ religion.

Accepting this assumption, the Board of Higher Edu-

cation nonetheless maintains that application of N.J.S.A.

18A:68-3 and N.J.S.A. 18A:68-6 to Shelton College does

not abridge defendants’ Free Exercise rights. The Board

points out that even if enforcement of those statutes

against Shelton causes the college to close, no direct

interference with religious practice occurs because de-

fendants’ religion does not require attendance at Shelton

Collge.

This argument undervalues the constitutional right

to exercise one’s religion freely. The First Amendment

guarantee of religious freedom protects against more

than direct state proscription of religious practices. See,

e.g., Cantwell v. Connecticut, 310 U-S. 296, 84 L. Ed.

1213 (1940). Any state action that unduly burdens the

free exercise of religion violates the First Amendment.

Thomas v. Review Bd. Indiana Emp. Sec. Div., 450 U.S.

A-37

707, 67 L. Ed. 624 (1981); Wisconsin v. Yoder, supra.

406 U.S. at 220, 32 L. Ed. 2d at 28; Sherbert v. Verner.

374 U.S. 398, 404; 10 L. Ed. 965, 970 (1963). Even

facialiy neutral legislation may give rise to a burden on

religion if, as applied to a particular religious sect. it

forces individuals to choose between abandoning their

religious beliefs or sacrificing an important government

benefit.

Where the state conditions receipt of an important

benefit upon conduct proscribed by a religious faith

or where it denies such a benefit because of conduct

mandated by religious belief, thereby putting sub-

stantial pressure on an adherent to modify his be-

havior and to violate his beliefs, a burden on religion

exists.

[Thomas v. Review Bd. Indiana Emp. Sec. Div..

supra, 405 U.S. at 717-18, 67 L. Ed. 2d at 634).

In Thomas a Jehovah’s Witness refused on religious

grounds to accept work building weapons. Indiana offi-

cials rejected Thomas’ application for unemployment

compensation, ruling that he had failed without good

cause to accept employment and was therefore ineligible

to receive benefits. Thus, Indiana’s unemployment com-

pensation law effectively forced Thomas to choose be-

tween his faith and financial benefits that he may well

have needed to subsist. The Supreme Court held that

imposition of this choice violated the Free Exercise

clause of the First Amendment.

In an analogous manner, N.J.S.A. 18A:68-3 and

N.J.S.A. 18A:68-6 require defendants to choose between

a tenet of their religion and the privilege of conferring

baccalaureate degrees. Clearly the dilemma that New

Jersey’s education law poses for defendants is not as

cruel or coercive as was the choice thrust upon Thomas

by the Indiana Unemployment Compensation Act.

Nevertheless, we must conclude that the New Jersey

A-38

licensing statutes, as applied to Shelton College, impose

some burden on the exercise of religion.

This conclusion does not, however, terminate the

inquiry. Not all burdens on religion are unconstitutional.

United States v. Lee, ___U.S. ___., 71 L. Ed. 2d 127

(1982). Prince v. Massachusetts, 321 U.S. 158, 88 L. Ed.

645 (1944); Smith v. Ricci, 89 N.J. 514 (1982). Legis-

lation that impedes the exercise of religion may be con-

stitutional if there exists no less restrictive means of

achieving some overriding state interest.* Thus, in

United States v. Lee, supra, the Court held that although

the Amish believe it sinful not to provide for their own

elderly and needy and therefore are religiously opposed

to the national social security system, they must never-

theless withhold, report and pay social security taxes on

their employees. The Court said:

The conclusion that there is a conflict between

the Amish faith and the obligations imposed by the

social security system is only the beginning, how-

ever, and not the end of the inquiry. Not all burdens

on religion are unconstitutional. The state may jus-

tify a limitation on religious liberty by showing that

it is essential to accomplish an overriding govern-

mental interest.

[United States v. Lee, supra, ___U.S. at __

—, 71 L. Ed. 2d at 132 (citations omitted)].

3. Arecent Federal Court of Appeals decision, Bob Jones Univ.

v. U.S., 639 F. 2d 147, 153 (4th Cir. 1980), cert. granted __—iUS..,

more fully explicated this standard.

Assuming that the revocation of [tax exempt] status does

impinge upon the university’s practice to some extent the

question remains one of balancing — giving due consideration

to the weight of the interests asserted by the government and

the extent and nature of the burden on the religious practice

and the religion as a whole.

A-39

The legislation at issue here advances the State’s

interest in ensuring educational standards and maintain-

ing the integrity of the baccalaureate degree. Chief Jus-

tice Weintraub amply described the depth and impor-

tance of this interest from medieval times to the present

in Shelton I, supra, 48 N.J. at 510-15. We need not

reconstruct that discussion here. That Court’s views may

be summarized:

Whatever the reason for the modest governmen-

tal activity in this area, it was not for doubt as to the

power of the States to act. In Trustees of Dartmouth

College v. Woodward, 4 Wheat. 518, 634, 4 L. Ed.

629, 658 (1819), in which the charter of incorpora-

tion was held to be a contract the State could not

undo, Chief Justice Marshall said, in axiomatic style:

“That education is an object of national con-

cern, and a proper object of legislation, all ad-

mit.” [48 N.J. at 510-11].4

Shelton’s education expert testified that the

bachelor’s degree has been severely devalued by recent

trends in education and that therefore the State cur-

rently has no significant interest in regulating the award

of such degrees. Other educators have earnestly urged

the contrary. In their amicus brief to this Court, the

4. The Court recalled that the Supreme Court of Vermont

refused to imply in a general charter the power to confer degrees,

saying in Townshend v. Gray, 62 Vt. 373, ___, 19 A. 635, 636, 8

A.L.R. 112, ___ (1890):

* * *To hold that the legislature, by a general law, in-

tended that any three men in any town in the state, however

illiterate or irresponsible, might organize and flood the state

with doctors of medicine, doctors of law, docivi; uf divinity,

masters of arts, civil engineers, and all the other various titles

that everywhere in the civilized world have signified high

attainments and special equipment for professional work, is to

liken it to the witty French minister who threatened to create so

many dukes that it would be no honor to be one, and a burning

disgrace not to be one.

A-40

Association of Independent Colleges and Universities of

New Jersey° maintained that “there is a general expec-

tation that institutions permitted to award degrees in this

State will at least meet basic standards of educational

integrity.” Amicus stressed the importance of maintain-

ing the value and integrity of academic degrees, and

expressed the fear that, if such degrees are permitted to

erode in value, “if there no longer can be a presumption

of minimum standards — then students, educational

institutions and the public will be harmed.”

In addition, the legislation supports the State’s pur-

pose of protecting students, as potential consumers of

higher education, from substandard education. It allows

them to assume by virtue of a school’s ability to grant

degrees that it meets certain minimum standards.

That maintenance of minimum educational stand-

ards in all schools constitutes a substantial state interest

is now beyond question. See, e.g., Wisconsin v. Yoder,

supra; Lemon v. Kurtzman, 403 U.S. 602, 29 L. Ed. 2d

745 (1971); Pierce v. Society of Sisters, 268 U.S. 510, 69

L. Ed. 1070 ,1925). Nothing in this record persuades us

to the contrary. The Legislature has attached great im-

portance to the fulfillment of these goals. We have no

doubt of that legislative appraisal and conclude that the

New Jersey licensing statutes are supported by a strong

state interest in maintaining minimum academic stand-

ards and preserving the basic integrity of the baccalau-

reate degree.

Having reached this conclusion, we must now de-

cide whether granting defendants a religious exemption

from the licensing statutes would significantly hinder

attainment of the state interest. If so, the statutes present

the least restrictive means of fulfilling an overriding

governmental interest and, as such, do not abridge de-

5. The Association of Independent Colleges and Universities of

New Jersey is a membership organization composed of sixteen

private nonprofit institutions of higher education. Ten of its member

institutions have religious affilations.

os) im AR a

ta A

Psd Tat an Ree CARRE Hey RAMPARTS ae SE LIA ENE

Saal tk: alah ae as

es

A-4]

fendants’ rights of religious freedom. U.S. v. Lee, supra,

set ae Mh cis Th i ee, Swe 133.

In New Jersey, the conferring of a baccalaureate

degree connotes that certain minimum standards have

been met by the issuing institution, and that the degree

recipient has attained at least a basic level of academic

proficiency. To this extent the value of academic degrees

from New Jersey institutions traces directly to state

regulation. Thus, by claiming a complete exemption

from all state regulation defendants in effect ask that

they be given a benefit without having to accept the

correlative burden. In this sense, if the First Amendment

requires that Shelton be permitted to confer degrees

without a license, it must also require that unemploy-

ment compensation be disbursed to individuals who for

religious reasons refuse to accept any employment what-

soever. Sherbert expressly warned that the First Amend-

ment compels no such result. Id., 374 U.S. at 409-10; 10

L. Ed. 2d at 974.

Sherbert, Thomis and Yoder all hold that religious

exemptions from neutral legislation must be provided

where uniform enforcement of the legislation will un-

duly impinge upon the exercise of religion. But, as the

Court in U.S. v. Lee, supra, recognized, the First Amend-

ment does not require the provision of religious exemp-

tions where accommodation would significantly inter-

fere with the attainment of an overriding state interest.

Such a requirement, the Court observed, would “radi-

cally restrict the operating latitude of the Legislature.”

Id. at___, 71 L. Ed. 2d at 134 (quoting Braunfield v.

Brown, 366 U.S. 599, 606, 6 L. Ed. 2d 563, 568 (1961)).

Commentators have observed that it is when the reli-

gious exercise does “not materially affect the working of

the secular program” that the free exercise claim is

recognized. Freund, “Public Aid to Parochial Schools,”

82 Harv. L. Rev. 1680 (1969). See also Clark, “Guide-

lines for the Free Exercise Clause,” 83 Harv. L. Rev. 327

(1969). Here, accommodation of defendants’ religious

A-42

beliefs would entail a complete exemption from state

regulation. As noted above, such accommodation would

cut to the heart of the legislation and severely impede the

achievement of important state goals. Furthermore, if an

exemption were created here, Shelton College would

receive an advantage at the expense of those educational

institutions that have submitted to state regulation. Such

a development would undermine the integrity of the

baccalaureate degree, erode respect for the state higher

education scheme, and encourage others to seek exemp-

tions. Thus, the uniform application of these licensing

requirements is essential to the achievement of the

State’s interests. See Braunfield v. Brown, supra (state

interest in uniform day of rest constitutionally justifies

refusal to create religious exemptions to Sunday closing

law). See also U.S. v. Lee, supra, ___U.S. at ____, 71 L.

Ed. 2d at 135-36 (Stevens, J., concurring).

In sum, although defendants’ freedom of religion

may suffer some indirect burden from this legislation,

the constitutional balance nonetheless favors the state

interest in uniform application of these higher education

laws. As the U.S. Supreme Court noted,

When followers of a particular sect enter into

commercial activity as a matter of choice, the limits

they accept on their own conduct as a matter of

conscience and faith are not to be superimposed on

the statutory schemes which are binding on others

in that activity.

ius. v. Lee, cupre, 0S. & ., 71 L. Ed.

2d at 134-35].

We conclude that N.J.S.A. 18A:68-3 and N.J.S.A.

18A:68-6 2s applied to Shelton College do not abridge

rights guaranteed by the Free Exercise Clause of the

First Amendment.

The Establishment Clause requires that a law reflect

a secular legislative purpose, have a primary effect that

A-43

neither advances nor inhibits religion, and avoid exces-

sive entanglement with religion. Committee for Public

Education and Religious Liberty v. Regan, 444 U.S. 646,

63 L. Ed. 2d 94 (1980); Committee for Public Education

v. Nyquist, 413 U.S. 756, 37 L. Ed. 2d 948 (1973); Marsa

v. Wernik, 86 N.J. 232 (1981); Resnick v. E. Brunswick

Tp. Bd. of Ed., 77 N.J. 88 (1978). The secular purpose of

the State’s program for higher education is unassailable.

Defendants assert, however, that this reguiatory scheme

creates an excessive state entanglement with religion.

The United States Supreme Court has never ques-

tioned a state’s interest in insuring, through licensure or

accreditation, minimal academic standards in church-

operated institutions.® See, e.g., Pierce v. Society of Sis-

ters, supra. As stated in Lemon v. Kurtzman, supra:

We... have surveillance over sectarian schools but

only to the extent of making sure that minimum

educational standards are met, viz, competent teach-

ers, accreditation of the school for diplomas, the

number of hours of work and credits allowed, and so

on. ... Any surveillance to date has been minor and

has related only to the consistently unchallenged

6. Some state courts have invalidated comprehensive state

licensing or approval powers over private religious schools where, as

one court said, the minimum standard scheme was “so pervasive

and all-encompassing that total compliance with each and every

standard by a non-public school would effectively eradicate the

distinction between public and nonpublic education.” State v. Wis-

ner, 47 Ohio. St. 2d 181, 351 N.E. 2d 750 (1976). See also, Kentucky

State Board for Elementary and Secondary Education v. Rudasill,

589 S.W. 2d 877 (Ky. 1979), cert. denied, 446 U.S. 938 (1980) (court

based its decision on section 5 of the Kentucky Constitution, which

states shat “[n]o man [shall] be compelled to send his child to any

school to which he may be conscientiously opposed. . . .”); State v.

LaBarge, 134 Vt. 276, 357 A. 2d 121 (1976) (truancy). But see Bob

Jones University v. United States, supra, and Brown v. Dade

Christian Schools, 556 F. 2d 310 (5th Cir. 1977), cert. den., 434 U.S.

1036, where religious belief in racial discrimination conflicts with

governmental policy.

A-44

matters of accreditation of the sectarian school in

the State’s school system.

[403 U.S. at 631, 29 Lyfd. 2d at 766 (Douglas,

J., concurring) (emphasis supplied)].

The Establishment Clause permits minor, unobtrus-

ive state supervision of religiously oriented schools. Roe-

mer v. Maryland Public Works Bd., 426 U.S. 736, 49 L.

Ed. 2d 179 (1976). Only excessive entanglement is pro-

scribed. None of the education statutes or regulations

here in question mandates “active involvement of the

sovereign in religious activity.” Walz v. Tax Commis-

sioner, 397 U.S. 664, 668; 25 L. Ed. 2d 697, 701 (1970).

None authorizes state regulation of the content of an

educational program. Nor does the regulatory scheme on

its face require “comprehensive, discriminating and con-

tinuing state surveillance.” Lemon v. Kurtzman, supra,

7. In order to determine the nature of an institution, the State

Board requires a statement of educational purpose, N.J.A.C. 9:1-1.2.

The institution is then required to show that its various elements

(faculty work, educational program, student life, finances, physical

plant, organization and administration) are organized in a way

supportive of this purpose. N.J.A.C. 9:1-1.2(b)(2). The institution

must develop a long-range plan for implementing its goals, as well

as periodically review its purpose and plans. N.J.A.C.

9:1-1.2(b)(3),(4); N.J.A.C. 9:1-1.3(a)(1). It is also required to con-

duct its affairs in a financially prudent manner, for its own protec-

tion and the protection of its students, creditors and other citizens.

N.J.A.C. 9:1-1.4. The maintenance of legitimate financial records

and insurance protection are intended to “assure the continuity of

the institution.” See N.J.A.C. 9:1-1.4(b). The regulations also rec-

ognize the importance of an adequate library. N.J.A.C. 9:1-1.8.

There are suggested standards for admission to the institution. For

example, the regulations propose that normally a high school di-

ploma should be required. N.J.A.C. 9:1-1.9(b)(1). Adequate and safe

physical facilities are also required. N.J.A.C. 9:1-1.10. In any areas

where standards are proposed, however, no rigid mandates are

maintained. Paragraph 5 of the Foreword to Title 9 of the New

Jersey Administrative Code expresses this policy:

The standards specify desirable and acceptable practices

which further implement the good intentions of the law but are

ene te ai att SAS

Din ae atin arent Diario theta

eda aren us FO cae

A-45

403 U.S. at 619, 29 L. Ed. 2d at 759. Although the

regulations in this area, N.J.A.C. 9:1-1 to -2.14, appear to

be burdensome, especially as applied to a college of

approximately 30 students, they explicitly call for flex-

ibility in their administration so as to accommodate vari-

ous institutions with diverse educational goals.* N.J.A.C.,

Title 9, Foreword. Because Shelton College declined

even to complete the licensing process, the allegation of

excessive entanglement rests on speculation about the

manner in which these statutes and regulations might

be applied. Although one could imagine an unconstitu-

tional application of this regulatory scheme, we are con-

fident that the Board of Higher Education will pursue

the least restrictive means to achieve the State’s overrid-

ing concerns. Of course, should the Board exercise its

discretion in a manner that unnecessarily intrudes into

Shelton’s religious affairs, the college would then be free

to challenge the constitutionality of such action. At this

juncture, however, we need not invalidate these statutes

merely because they may be amenable to an unconsti-

tutional application.

. It has not been the Court’s practice, in consid-

ering facial challenges to statutes of this kind, to

strike them down in anticipation that particular ap-

plications may result in unconstitutional [action].

not required in a specific form so that institutional flexibility

may be maintained. . . .

8. The licensing procedures also engender a high degree of

flexibility. Pursuant to N.J.A.C. 9:1-2.4 the Licensure and Approval

Advisory Board is composed of seven representatives from various

state and county colleges and universities, three representatives of

the Association of Independent Colleges and Universities in New

Jersey (AICUN!), three persons representative of colleges not mem-

bers of AICU NJ and one representative of the Department of Higher

Education. The Board makes recommendations to the Chancellor

regarding policies for licensure and specific petitions for licensure.

N.J.A.C. 9:1-2.7. Participation in the licensing process by this di-

verse group representing both public and private institutions, seeks

to ensure practicality in the administration of the program.

A-46

[Roemer v. Maryland Public Works Bd., supra,

426 U.S. at 761, 49 L. Ed. 2d at 196}.

See Village of Hoffman Estates v. Flipside Hoffman

Estates Inc., ve. : L. Ed. 2d (1982);

I/M/O Application of Maria Martin, N.J.

(1982).

V.

In sum, we find that the State’s program for licens-

ing institutions of higher education is applicable to sec-

tarian institutions and that facially it does not unduly

interfere with the free exercise of religion nor create an

excessive state entanglement with religion. At the same

time, we recognize the good faith with which the stu-

dents of Shelton College have pursued their educational

and religious goals. To accommodate the free exercise

interests of the individual students without unduly in-

terfering with the state regulatory program, and in con-

sideration of the difficulty involved in transferring to a

different college at the end of three years, we modify the

judgment below to allow the awarding of earned credits

and degrees to all eligible students through the end of

the 1982-83 academic year and to the class of 1984

through the end of the 1983-84 academic year. No other

credits or degrees shall be awarded without licensure.

As modified, the judgment of the Chancery Division

is affirmed.

Chief Justice Wilentz and Justices Pashman, Clif-

‘ford, Schreiber, Handler and Pollock join in this opinion.

A-47

APPENDIX D

Second Opinion and Order of the United States District

Court for the District of New Jersey, dated May 18, 1981

UNITED STATES DISTRICT COURT

District oF New JERSEY

Civil Action No. 79-3341

>

> a

NEW JERSEY-PHILADELPHIA PRESBYTERY OF

THE BIBLE PRESBYERTIAN CHURCH; SHELTON

COLLEGE, A Ministry of Bible Presbyterian Church;

BIBLE PRESBYTERIAN CHURCH OF COLLINGS-

‘ WOOD, NEW JERSEY: KEVIN WILSON, BRAD

GSEL, KEVIN CLAIR MICHAEL, CURTIS JORDAN

BASHAW, LOUISE OLSON and EVERETTE CHAR-

LES OLSON,

Plaintiffs,

Lf

NEW JERSEY STATE BOARD OF HIGLER EDUCA-

TION; T. EDWARD HOLLANDER, Chancellor of New

Jersey Department of Higher Education; RICHARD D.

BRESLIN, <Assistant Chancellor for Academic Affairs

; of the New Jersey Department of Higher Education;

; and AMORITA SUAREZ, Director of the Office for

: Independent Colleges and Universities of the New Jersey

Department of Higher Education,

Pe eae

i

Defendants.

A-48

OPINION

Desevoise, District Judge.

Appearances:

William B. Ball, Esquire

Philip J. Murren. Esquire

Kathleen A. O’Malley. Esquire

Ball & Skelly, Esquires

511 North Second Street

P.O. Box 1108

Harrisburg, Pennsrlvania 17108

C. Clark Hodgson, Jr.. Esquire

Stradlev, Ronon, Stevens & Young, Esquires

1100 One Fraklin Plaza

Philadelphia. Pennsylvania 19102

Keith J. Bashaw, Esquire

Bashaw & Burro. P.C.

30th South Haddon Avenue

P.O. Box 5S

Haddonfield. New Jersey OS055

(Attorners for Plaintiffs)

James R. Zazzali. Esquire

Attorney General of New Jersey

Br: Robert A. Fagella, Esquire

Deputy Attorney General

State House Annex

Trenton, New Jersey 08625

(Attornevs for Defendants)

A-49

This is an application by plaintiffs for a temporary

restraining order and preliminary injunction.

Procedural History

An understanding of the procedural history of this

ease and its related state court case is necessary in order

to address the merits of plaintiffs’ application.

On November 15, 1979 the New Jersey State Board

of Higher Education and T. Edward Hollander, Chan-

cellor of the New Jersey Department of Higher Educa-

tion, instituted an action in the Superior Court of New

Jersey, Chancery Division, naming as defendants The

Board of Directors of Shelton College and Glenn Rogers

and Carl McIntire. two officers of the College. The com

plaint sought declaratory and injunctive relief, alleging

that Shelton was offering courses of instruction for credit

without the requisite licensing by the State Board. The

Superior Court forthwith issued a temporary restraining

order enjoining Shelton’s educational and instructional

activities.

On November 19, 1979 the plaintiffs in the present case

filed in this Court an action under 42 U.S.C. § 1983 al-

leging, among other things, that the efforts of the State

Board to prevent Shelton’s educational and instructional

activities unless it complied with New Jersey’s licensing

scheme violated their rights to the free exercise of reli-

gion and unduly entangled the State in the affairs of a

religious institution. The plaintiffs in the federal court

action are Shelton, the New Jersey-Philadelphia Presby-

tery of the Bible Presbyterian Church (the regional rul-

ing body of the Bible Presbyterian Church), Bible Pres-

6 A-50

brterian Church of Collingswood. New Jersey. four full-

time students at Shelton. two parents of students. and a

professor of mathematics and chemistry at Shelton. The

defendants in the federal court action are the State Board

and several individual state officials charged with the en-

forcement of the licensing regulations.

The federal plaintiffs sought a preliminary injunction.

After an evidentiary hearing I entered an order which,

among other things, enjoined the federal defendants from

taking or permitting the taking of any action having the

effect of preventing Shelton from engaging in any reli-

gious, teaching or educational activities. or from pub-

licizing or advertising such activities. I did not reach

the principal issue, namely. whether the State Board's

licensing procedures. if applicable to Shelton. would con-

stitute a violation of the Religion Clauses of the First

‘Smendment. I abstained as to that issue and stayed the

federal proceedings until the state court had an oppor-

tunity to determine whether the licensing requirements

applied to a religious institution such as Shelton. If

ther do not, there would be no need to reach the difficult

constitutional issue posed in this case, Railroad Comm'n

v. Pullman Co., 312 U.S. 496 (1941).

Thereafter, the litigation proceeded on two fronts. Both

sides appealed this Court’s interlocutory order, which

both granted and denied injunctive relief, to the Court of

Appeals for the Third Circuit. The state court action

went to trial.

On November 7. 1980 the state court rendered its opin-

ion. The opinion held: (i) subjecting Shelton to the New

Jersey licensing and approval scheme is “not violative of

the free exercise clause and provide[s] for minimal and

non-excessive entaiglement between church and state”

and (ii) Shelton’s rights of free speech. guaranteed un-

der the First and Fourteenth Amendments of the Consti-

tution. would be impaired if the court denied Shelton the

right to call itself a “College”, notwithstanding the pro-

hibitory language of N.J.S.A. 1S.4 :67-2.

The state court issued a permanent injunction on De-

cember 10. 1980. It prohibited Shelton from awarding a

degree “for any coursework or course of instruction which

has transpired in whole or in part at Shelton College in

the State of New Jersey”: it declared that Shelton must

obtain a license from the State Board before it awards

any collegiate degrees in New Jersey: it required that

Shelton delete all references in its publications which

state that Shelton will award collegiate degrees until it

it licensed by the State Board: and it ordered that Shel-

ton “shall cause to be inserted in all applications for ad-

mission to Shelton College a statement that. pursuant to

the order of this Court. said institution is prohibited from

awarding baccalaureate or collegiate degrees for course-

work which takes place in whole or in part in the State

of New Jersey, unless or until a license is issued to de-

fendants by the New Jersey State Board of Higher Edu-

cation”.

On January 16, 1981, Shelton and the other state court

defendants noticed an appeal to the Appellate Division

of the Superior Court of New Jersey. That appeal is

pending.

On April 14, 1981 the Court of Appeals for the Third

Circuit filed its opinion. Docket Nos. 80-1253, 80-1254 and

80-2703. The majority opinion held that Younger absten-

tion, Younger v. Harris, 401 U.S. 37 (1971), is inapplic-

A-52

able in this case by reason of the presence of plaintiffs

in the federal action who were not parties to the state

action. Thus, this Court’s limited injunctive relief was

proper. The Court of Appeals upheld a Pwlman absten-

tion on the constitutional issue and the entry of a Pull-

man-type stay “with a retention of jurisdiction to con-

sider further injunctive relief when the state court con-

strues the statute and regulations”. Slip Op., 38. In

affirming this Court’s exercise of its discretion to abstain

under the Pullman doctrine, the Court of Appeals noted,

perhaps pointedly, that “the district court did not leave

the plaintiffs entirely unprotected. It reserved jurisdic-

tion to consider further applications for interim relief.”

Slip Op., 38-40.

The federal plaintiffs now seek such interim relief. It

is their contention that the state court has interpreted

New Jersey’s college licensing statutes in a manner which

violates their First Amendment religious rights, that the

injunctive order implementing this determination of the

state court will, unless set aside, cause the demise of

Shelton College, a religious institution, and that if the

federal plaintiffs are required to wait until the state ac-

tion proceeds through the Appellate Division of the New

Jersey Superior Court, the New Jersey Superior Court.

the New Jersey Supreme Court and perhaps the United

States Supreme Court, ultimate success would be hollow

indeed, as the re:igious institution they sought to preserve

would long have been interred.

The federal] plaintiffs now seek a temporary restraint

and a preliminary injunction restraining the federal de-

fendants from enforcing or implementing the state court’s

order of December 10, 1980 until such time as the Su-

A-53

preme Court of New Jersey definitively construes the

applicable New Jersey statutes and regulations.

Findings of Facts

I incorporate herein the findings of fact which are set

forth in my original opinion, 482 F. Supp. 968 (D.N.J.

1980). I do not believe that they are in dispute. It was

established that Shelton is a religious institution and

that its students, faculty and parents regard it as a veh-

icle to further their all-pervasive religious beliefs and

practices.

Additional facts have been established by affidavits and

testimony introduced in support of the } Samora plaintiffs’

present application.

During the pendency of these actions in the state and

federal courts Shelton has been unable to grant degrees

to students who have completed the academic require-

ments of the College. The disclaimer which Shelton is

required under the state court order to insert in al] its

publications and on all application forms sent to pros-

pective students has a highly destructive impact upon

everything else which appears in those publications. There

is nothing to suggest that the publications do not truth-

fully describe the kind of education which Shelton offers

and the religious orientation of every phase of its pro-

gram. There is nothing to suggest that, absent the state

mandated material, any prospective parent or student

would be mislead in any way about Shelton’s educational

program.

After attempting to operate in Florida for a period

of approximately eight years, Shelton returned to its

A-54

Cape May campus in the summer of 1979. During the

1979-80 school year it began operations with 2S students.

This increased to only 41 to 35 students in the 1980-81

school vear. Moreover, as of the present time it has only

six applicants for its fall, 1981 freshman class. none of

whom have yet been determined to be qualified for ad-

mission. It is reasonable to conclude that in part, at

least, the College’s enrollment has been adversely affected

by the inhibitions imposed upon it by the State.

Shelton has experienced a steady drop in the amount

of contributions it receives from the public since the time

of the institution of the state court action. The pending

state litigation, the inability of the College to grant its

degrees, the disclaimer the College is required to issue

and resulting adverse publicity have resulted in loss of

confidence in the ability of the College to survive.

It is impossible to determine whether Shelton would

survive if the State injunction were lifted; however, there

is little question but that Shelton cannot long exist if

the state court injunction remains in effect.

In addition to Shelton’s future prospects, its present

students have been affected by the state court injunction.

At the graduation in May, 1980, four students who had

completed four years of study at Shelton in Florida and

New Jersey were denied their degrees. Shelton’s annual

commencement exercise is scheduled for May 23, 1981.

On that date eight students who have successfully com-

pleted four years of study at the College and who have

been determined by the College to possess the religious

and moral qualifications requisite for graduation will be

eligible to be awarded Shelton’s Bachelor of Arts in

Biblical Literature, Elementary Education, History or

A-55

English. By reason of the court decree, of course. these

indicia of their work at Shelton cannot be conferred upon

them.

The question must now be answered whether the fed-

eral plaintiffs are entitled to the relief they seek.

Conclusions of Law

First I shall direct myself to the grounds which the

federal defendants (who I shall hereinafter refer to as

the “State Board”) advance as comity reasons why the

application should not be granted. »

Once again the State Board urges that Younger absten-

tion is called for. This argument has been disposed of

by the Court of Appeals. There the majority opinion

concluded that Younger is not applicable at all because

the parties in the federal action are substantially differ-

ent from the parties in the state action. The minority

opinion concluded that Younger is applicable but that a

Younger-based exception supported the limited injunctive

relief previously granted in this Court. If the federal

plaintiffs are correct in their view that New Jersey may

not constitutionally apply its licensing requirement to

Shelton, I conclude that the same Younger-based excep-

tion would be applicable to the present application.

The State Board also urges that the federal plaintiffs

have fully litigated both their state claims and their fed-

eral claims in the state court, and that, having lost there

on all claims, they cannot come back to the federal court

for a second bite at the apple.

It is unnecessary to decide whether Shelton took the

steps required in the case of a Pullman abstention to re-

A-56

serve its rights in the state court litigation to mave its fed-

eral claims heard by the federal court, see England vy. Lou-

tsiana State Board of Medical Examiners, 375 U.S. 411

(1964). Quite likely the reasoning of the Court of Ap-

peals majority opinion would lead to the conclusion that

reservation or non-reservation of federal rights by the

state court defendants would not affect the rights to a

federal forum of the federal plaintiffs who are not par-

ties to the state court action. In any event, this is a

question which will not arise until the state court pro-

ceedings have been completed through final appeal, and

then only if there still remains a federal question.

We are not at that stage now. We are dealing simply

with an application for interim relief pending completion

of the state proceedings. The Court of Appeals spe-

cifically recognized that such relief might be required and,

if so, that it could appropriately be granted, Slip Op.,

39-40.

The criteria to be applied in determining whether a

preliminary injunction should issue are spelled out in the

Court of Appeals opinion:

... Once the court has concluded that an immediate

dismissal on Younger grounds is inappropriate, a

motion for preliminary injunctive relief, especially

in first amendment contexts, ought, we think, to be

considered without regard to the separate ques-

tion whether a Pullman stay of final hearing is

appropriate. Assuming the case is not to be dis-

missed outright, the district court should be guided

by the classic requirements for a preliminary in-

junction:

A-57

The traditional standard for granting a prelim-

inary injunction requires the plaintiff to show

that in the absence of its issuance he will suffer

irreparable injury and also that he is likely to

prevail on the merits.

Slip Op., 39.

The federal plaintiffs have established that they will

suffer irreparable injury if the state court injunction

continues in effect. It will result in the destruction of a

religicus educational community. At the time I issued

the preliminary injunction now in effect, I had thought

that this result could be avoided if Shelton were allowed

to teach and advertise. It now appears that this is not

enough and that if Shelton is to survive it must be able

to award degrees to those who successfully complete its

courses of instruction.

The major issue to be resolved is whether the fed-

eral plaintiffs are likely to prevail on the merits. The

core question, therefore, is whether the State Board’s

exercise of licensing jurisdiction over a religious college

such as Shelton “constitutes an improper breaching of

the separation wall provided by the Religion Clauses of

the First Amendment”. Catholic Bishop of Chicago v.

N.L.R.B., 559 F.2d 1112, 1118 (7th Cir. 1977), aff’d, 440

U.S. 490 (1979).

I have read with care the thoughtful opinion of the

state court and fully recognize my own fallibility, of

which the Court of Appeals all too frequently reminds

me. Had I been required to reach the merits of this is-

sue at the time I issued the preliminary injunction I think

I would have decided the question in exactly the same

way the state court decided it. However, with the bene-

fit of the Court of Appeals opinion. which was not avail-

able to the state court, I have considered the matter fur-

ther and. for the reasons set forth below. I have concluded

that the State Board mar not. consistent with the First

and Fourteenth Amendments, apply the State's licensing

satutes and regulations to Shelton College and that. there-

fore, the federal plaintiffs are likely to prevail on the

merits.

We start, of course, with the First Amendment to the

United States Constitutior, which reads, in relevant part.

that “Congress shall make no law respecting an estab-

lishment of religion, or prohibiting the free exercise there-

of ...” This is made applicable to the states by the

Fourteenth Amendment. Walz v. Tax Commission, 397

U.S. 664 (1970): Engel v. Vitale. 370 U.S. 421 (1962):

Everson v. Board of Education, 330 U.S. 1 (1946).

While the licensing of religious colleges and the regu-

lation which that entails might be considered involve-

ment by the state in the establishment of religion, the

present case involves primarily a state prohibiting the

free exercise of religion. Deciding whether this inter-

ference with the free exercise of religion is permissible

entails the three-step inquiry utilized in Wisconsin v.

Yoder, 406 U.S. 205 (1972); see also McCormick v. Hirsch,

460 F. Supp. 13837 (M.D. Pa. 1978S): (i) It must be de-

termined whether legitimate religious belief is held by

the federal plaintiffs and whether Shelton is pervasively

religious. (ii) It must be determined whether the free

exercise rights of the federal plaintiffs would be either

burdened or inhibited by the exercise of the State Board's

regulatory powers over Shelton College. (iii) It must

be determined whether the burdening of these rights is

justified by a compelling state interest.

As to the first inquiry, it is beyond dispute that the

individual federal plaintiffs and the members of the Bible

Presbyterian Church and similar fundamentalist churches

hold legitimate religious beliefs which are reflected in their

life style and teaching. This is described in some de-

tail both in my original opinion and in the opinion of

the Court of Appeals.

Similarly, it beyond dispute that Shelton College plays

a major role in the religious life of the members of

the Bible Presbyterian Church. As was the case with

Amish educational practices which were the subject of

Yoder, Shelton provides its students and faculty a “way

of life in a church-oriented community, separated from

the outside world and ‘wordly’ influences”. At 217. As

in the case of parochial schools. which were the sub-

ject of such cases as Jleek v. Pittenaer. 421 U.S. 349

(1975), and Lemon v. Aurtzman, 403 U.S. 602 (1971),

Shelton’s “very purpose ... is to provide an integrated

secular and religious education: the teaching process is,

to a large extent, devoted to the inculeation of religi-

ous value and belief... ‘[{T]he secular education these

schools provide goes hand in hand with the religious

mission that is the only reason for the schools’ exist-

ence’”. Meek v. Pittenger, supra, at 366. Although the

line of cases typified by Meek and Lemon involve aid

to religious schools, the same standards apply when state

restrictions upon religious schools are involved, Catholic

Bishop of Chicago v. N-L.R.B., supra.

In addition to providing a community where persons

of a defined religious group can live, learn and teach

in accordance with their tenets, Shelton is a source of

the church's clergy and lay leaders. It feeds students

A-60

to the church’s seminary, and its students who do not

become ordained ministers are likely to work on behalf

of the church in other capacities.

Shelton’s pervasively religious nature is described in

further detail in my original opinion.

Thus, the federal plaintiffs meet the first test. They

and their co-religionists hold legitimate religious beliefs

and their college, Shelton, is pervasively religious.

As to the second test, it is clear, in light of the evi-

dence submitted at the original hearinf and at the most

recent hearing, that the exercise of the federal plain-

tiffs’ religion would be and is burdened by application

of the State’s licensing requirements. The New Jersey

regulatory scheme (N.J.S.A. 1SA:68-1, et seqg.; N.J.A.C.

9:1-1.1 to 9:1-6.4) is described in some detail in the Third

Circuit opinion, Slip op., 8-13. The State Board’s “Guide

for Obtaining the Basic Information for Appraising New

Jersey Institutions of Higher Education” is set forth in

an appendix to that opinion. An examination of the

Guide demonstrates the intrusive nature of the State

Board’s inquiry into a college which it seeks to “ap-

praise” and license. The Court of Appeals observed that

“(t]he regulations are, in a word, pervasive”. It noted

that of particular relevance to a religiously affiliated in-

stitution is the regulation dealing with the required state-

ment of institutional purpose:

The requirement of a statement of purpose is

not merely informational, for the regulation deal-

ing with educational programs provides that ‘[t]he

educational program shall reflect and support the

purposes of the institution’ and ‘shall include course

work and other activities extending over a suffi-

A-61

cient period of time and in sufficient intensity to

fulfill the purposes of the institution.’ N.J.A.C.

9:1-1.5(a) 1, 2.

Thus*on the face of the regulations it would ap

pear that in order to obtain a license, an institu-

tion with a religious commitment such as Shelton’s

must submit to the Board a statement of its re-

ligious purpose, as well as evidence that the various

elements of its institutional life are structured to

support that purpose, and must submit to the

Board’s judgment the question whether its edu-

cational program reflects and supports that pur-

pose. Facially, therefore, the Board’s licensing

regulations suggest a very high degree of state

entanglement in Shelton’s religious affairs. And

the 1916 law unambiguously prohibits instruction

Jeading to a diploma or degree, even in theology,

absent a license.®

8. Cf. NLRB +. Catholic Bishop of Chicago,

440 U.S. 490, 502-03 (1979) (NLRB jurisdiction

over alleged unfair labor practices in Catholic re-

ligious schools would result in impermissible en-

tanglement, for the Board’s resolution of unfair

labor practices charges ‘will necessarily involve

inquiry into the good faith of the postion asserted

by the clergy-administrators and its relationship to

the school’s religious mission.’ Moreover, NLRB

determination of the ‘terms and conditions of em-

ployment‘ would enmesh the Board in ‘nearly every-

thing that goes on in the schools.’).

Slip Op., 12, 13.

A-62

Apart from the subject matter covered by the regula-

tory scheme, compliance with its requirements imposes

heavy burdens. The typical college could be expected

to have on its staff the accountants, business managers

and other technical personnel required to develop and

present the information called for by the State Board’s

regulations. Shelton obviously does not have these re-

sources. The New Jersey courts have recogized in analo-

gous circumstances that a regulatory scheme cannot witbh-

stand a constitutional challenge when it exerts a sub-

stantially chilling effect upon the exercise of First Amend-

ment mghts of persons whose resources are so modest that

they cannot reasonably be expected to comply with the

regulations, V.J. St. Chamber of Commerce v. N.J. Elec.

Law, 155 N.J. Super. 251 (App. Div. 1977).

As phrased by the United States Supreme Court, “[e]ach

value judgment under the Religion Clauses must there-

fore turn on whether particular acts in question are

intended to or interfere with religious beliefs and prac-

tices or have the effect of doing so”. Walz v. Tax Com-

mission, supra, 669 (emphasis added).

Clearly, application of the State licensing regulations

to Shelton has the effect of interfering with the religious

beliefs and practices of members of the Bible Presby-

terian Church ana other similar fundamentalist churches.

Lf Shelton could survive under such regulation and sought

to comply therewith, the State would intrude pervasively

into matters of religious faith and practice. As matters

stand, it appears that Shelton cannot survive at all if

New Jersey’s licensing statutes and regulations are ap-

plied to it. In either event substantial religious mghts

are affected. It is not an answer to assert that Bible Pres-

byterians are not required to attend Shelton. In each

A-63

case, however, attendance is a means of strengthening,

teaching and propagating a religious faith, and, in conse-

quence, the institution is protected from undue state in-

terference.

As an embellishment to the State regulatory scheme,

and as a means to insure compliance with it, the state

court has required that all Shelton informational material

and applications contain a statement that Shelton is pro-

hibited from awarding baccalaureate or collegiate degrees

for coursework in New Jersey unless or until a license is

issued to Shelton by the State Board. This order was

entered apparently with no proof that the state defeud-

ants (Shelton, et al.) were misrepresenting their degree-

giving capabilities or any other matters. It clearly im-

posed an additional burden on the ability of Shelton to

operate and thus on the exercise of religious rights.

“(T]he right of freedom of thought protected by the

First Amendment against state action includes both the

right to speak freely and the right to refrain from speak-

ing at all.” Wooley v. Maynard, 430 U.S. 705 (1977).

Standing alone, this aspect of the state court’s order

raises serious constitutional questions. Viewed in con-

junction with the regulatory scheme it seeks to enforce,

it adds significantly to the burdens imposed upon the free

exercise of religion.

Having concluded that the licensing scheme imposes a

substantial burden upon the exercise of religion, it must

be determined if this burdening of rights is justified by

a compelling state interest.

The interest of the State involved in the licensing scheme

is a significant and totally legitimate one—maintaining

the integrity of the various degrees traditionally awarded

by colleges by insuring compliance with minimum stand-

A-64

ards in the educational process leading to the award of

a degree, Shelton College v. State Bd. of Ed., 4S N.J. 501

Important as this interest may be, however, it cannot

be used as a basis to impose substantial burdens upon the

exercise of religion. The weighing process is guided by

an examination of Wisconsin v. Yoder, supra. There the

state’s interest was a very substantial one—the proper

education of voung children, a process which is so im-

portant the state makes such education compulsory. Not-

withstanding that vital state interest, the Supreme Court

did not permit it to interfere with the religious practices

of the Old Country Amish.

In the present case, the interest of New Jersey in

the integrity of the traditional college degree is far less

substantial than the interest of Wisconsin in the quality

of education of secondary school students.

Illustrative of the lesser significance of this interest

is the fact that New Jersey does not require that all

colleges be licensed by the State Board before they are

allowed to confer degrees. As noted in the State’s own

regulations:

The current status of New Jersey independent

institutions of higher education with respect to de-

gree approval varies widely. At one extreme are

the so-called pre-1S87 institutions which are not re-

quired to secure the approval of the Board of High-

er Education at all. At one extreme are the so-

called pre-1887 institutions which are not required

to secure the approval of the Board of Higher

Education at all. At the other are some of the

more recently founded institutions which have

been granted approvals under conditions far more

A-65

detailed than would be required by the policy set

forth in this Subchapter. In between these extremes

are other institutions—Upsala and the College of

Saint Elizabeth are examples—which were granted

broad powers by the State Board of Educé ‘ion

following passage of the Acts of 1912 and 1916.

N.J.A.C. 9:1-2.15 (footnote omitted).

The institutions which are not required to secure State

Board approval are Drew University, Seton Hall Uni-

versity, St. Peter’s College, St. Michael’s Monastery,

Stevens Institute of Technology, Princeton University and

Centenary College for Women. Theoretically, any one

of those colleges could adopt Shelton’s educational pro-

gram or any other program and their degree-awarding

powers would be unaffected by the State Board’s licens-

ing regulations.

Further, Shelton has not been charged with frand of

misleading conduct. There has been no showing that any

prospective students or parents of such students were

or would be misled if Shelton were to award degrees

for completion of its courses of study. Shelton’s inform-

ational material is in the record and it clearly describes

the kind of college Shelton is, the subject matter taught,

and the all-pervasive religious perspective of the Col-

lege.

Nor has it been shown that prospective employers of

Shelton graduates or graduate schools to which Shelton

students may apply will be misled by the award of Shel-

ton degrees. It is common knowledge that all manner

of institutions give all manner of degrees, having vary-

ing prestige and significance. In evaluating the signific-

ance of those degrees employers and graduate schools

A-66

look to the institutions which awarded the degrees, and

they look to the public and private agencies which ac-

credited such institutions. When appropriate, graduation

from an accredited college or university is made the

basis for qualification. see, for example, N.J. Court Rule

1:24-2(b) for the requirement for admission to the New

Jersey bar examination of receipt of a degree from a

law school approved by the American Bar Association.

Cases in this Court seeking the protection of the re-

ligious rights of state prisoners have disclosed the exist-

ence of small institutions of learning organized by the

Black Muslim sect whici award doctorate or other de-

grees. In at least one of these cases the Attorney Gen-

eral of New Jersey represented the State. These de-

grees are awarded without the imprimatur of the State

Board; the members of the sect thereby have available

to them a minister or imam or other officer who has

received a degree whereby his sect certifies that he has

successfully pursued a course cf study prescribed by that

sect; see, for example. Maiisk Abdul Alim v. Brendan

T. Byrne, Docket Nos. 76-0499, 76-1661 (Unpublished Opin-

ion filed July 8, 1980) (plaintiff's appeal pending).

Degrees have varying meanings and uses. <As evidenced

by N.J.wA.C, 9:1-2.15, New Jersey requires some tradi-

tional colleges and universities to obtain state licenses

before awarding a degree and it allows other traditional

colleges and universities to award degrees without any

state regulation whatsoever. It does not apnear that the

state makes any effort to regulate the granting of de-

grees by agencies of unconventional religious sects such as

the Black Muslims. In the light of these facts it cannot be

said that the state’s interest in the integrity of degrees

granted in New Jersey is so overwhelming that the reli-

A-67

gious rights of the Bible Presbyterians can be substantially

impaired. Nor is the state’s interest so overwhelming

that it may, through the licensing process. entangle itself

to a high degree in the religious activities of a wholly

religious college.

The injunction of the state court enforces the applica-

tion of the licensing statute and regulations against Shel-

ton College. Since I have concluded that the federal

plaintiffs are likely to prevail on the merits and that the

application of the licensing statute and regulations against

Shelton College is causing and will continue to cause them

irreparable injury, the defendants in this case will be

preliminarily enjoined from enforcing or implementing the

order of December 10, 1980 of the Chancery Division of

the New Jersey Supenor Court until such time as the

Supreme Court of New Jersey construes the New Jersey

statutes and regulations which are the subject of this

action.

Dated: May 18th, 1981.

Dickinson R. DeEBeEvoIse

United States District Judge

A-68

UNITED STATES DISTRICT COURT

District oF New JERSEY

(D.C. Civil No. 79-3341)

tin

—

NEW JERSEY-PHILADELPHIA PRESBYTERY OF

THE BIBLE PRESBYERTIAN CHURCH; SHELTON

COLLEGE, A Ministry of Bible Presbyterian Church;

BIBLE PRESBYTERIAN CHURCH OF COLLINGS-

WOOD, NEW JERSEY; KEVIN WILSON, BRAD

GSEL, KEVIN CLAIR MICHAEL, CURTIS JORDAN

BASHAW, LOUISE OLSON and EVERETTE CHAR-

LES OLSON,

Plaintiffs,

Vv.

NEW JERSEY STATE BOARD OF HIGHER EDUCA-

TION; T. EDWARD HOLLANDER, Chancellor of New

Jersey Department of Higher Education; RICHARD D.

BRESLIN, Assistant Chancellor for Academic Affairs

of the New Jersey Department of Higher Education;

and AMORITA SUAREZ, Director of the Office for

Independent Colleges and Universities of the New Jersey

Department of Higher Education,

Defendants.

¢

ORDER

Anp Now, this 18th day of May, 1°S1, upon considera-

tion of Plaintiffs’ Motion for Preliminary Injunction and

A-69

Memorandum in Support thereof, and after hearing, and

it further appearing to the Court that unless a pre-

liminary injunction is entered, Plaintiffs will suffer im-

mediate and irreparable injury resulting from enforce-

ment of the Orders of the Superior Court of New Jer-

sey, Chancery Division, prohibiting Shelton College from

issuing baccalaureate or collegiate degrees and inhibit-

ing the right of Shelton College to advertise within the

College’s own catalogue, and it further appearing to the

Court that Defendants will not be harmed br the entrv

of such preliminary injunction, and the Court having

filed an opinion setting forth its nndings of fact and con-

clusions of law, it is hereby OrprerRep, ADJUDGED anp DeE-

crEED THat: Defendants and all other persons acting in

their behalf are hereby restrained from enforcing or im-

plementing the Order of December 10, 1980. in the case

known and styled as The New Jersey State Board of

Higher Education, et al. v. The Board of Directors of

Shelton College, et al. (Superior Court of New Jersey.

Chancery Division, Cape May County, Docket No. C-1088-

79E), until such time as the Supreme Court of New Jer-

sey definitively construes the New Jersey statute here

complained of in light of Plaintiffs constitutional claims.

Dickinsox R. DEBEVOISE

United States District Judge

A-70 |

APPENDIX E

Opinion and Amendments of the United States Court of

Appeals for the Third Circuit

Nos. 80-1253, 80-1254 and 80-2703

NEW JERSEY-PHILADELPHIA PRESBYTERY OF

THE BIBLE PRESBYTERIAN CHURCH; SHEL-

TON COLLEGE, A Ministry of Bible Presbyterian

Church; BIBLE PRESBYTERIAN CHURCH OF

COLLINGSWOOD, NEW JERSEY: KEVIN WIL-

SON, BRAD GSEL, KEVIN CLAIR MICHAEL,

CURTIS JORDAN BASHAW, LOUISE OLSON

AND EVERETTE CHARLES OLSON, . i

Appellants in Nos. 80-1253 and 80-2703

v.

NEW JERSEY STATE BOARD OF HIGHER EDUCA-

TION; T. EDWARD HOLLANDER, Chancellor of

New Jersey Department of Higher Education;

RICHARD D. BRESLIN, .Assistant Chancellor for

Academic Affairs of the New Jersey Department of

Higher Education; and AMORITA SUAREZ, Direc-

tor of the Office for Independent Colleges and Uni-

versities of the New Jersey Department of Higher

Education,

Appellants in No. 80-1254

(D. C. Civil No. 79-3341)

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

Argued October 16, 1980

Before GIBBONS and ROSENN, Circuit Judges, i

and WEBER,” District Judge

(Opinion Filed April 14, 1981)

* Hon. Gerald J. Weber, United States District Judge for the West-

ern District of Pennsylvania, sitting by designation.

A-71

JOHN J. DEGNAN

Attorney General ot New Jersev

STEPHEN SKILLMAN

Assistant Attorney General

ROBERT A. FAGELLA ( Argued}

Deputy Attorney General

State House Annex

Trenton, New Jersev 08625

Attorneys for New Jersey State

Board of Higher Education, et al.

WILLIAM BENTLEY BALL. ESQ..

(Argued )

PHILIP J. MURREN. ESQ.

KATHLEEN A. O'MALLEY. ESQ.

BALL and SKELLY

511 N. Second Street

Harrisburg, Pennsvivania 17108

C. CLARK HODGSON, JR., ESQ.

GEORGANNE DAHER TERRILL. ESQ

SILVANA MOSCATO BRIGHTBILL. ESQ.

STRADLEY RONON STEVENS &

YOUNG

1100 One Franklin Plaza

Philadelphia, Pennsylvania 19102

Attorneys for New Jersey-

Philadelphia Presbytery of the Bible

Presbyterian Church, et al

Of Counsel:

Keith J. Bashaw, Esquire

Keith J. Bashaw, P.A.

30 Haddon Avenue

Haddonfield, New Jersey 08033

A-72

OPINION OF THE COURT

GIBBONS, Circuit Judge.

We here consider cross appeals from an order of the

district court granting in part and denying in part an ap-

plication for preliminarv injunctive relief against the en-

forcement of certain statutes and regulations of the State

of New Jersey dealing with the licensing of private insti-

tutions of higher education.' The plaintiffs are Shelton

College, a New Jersev corporation (Shelton), New

Jersev-Philadelphia Presbvterv of the Bible Presbyterian

Church, the regional ruling body of Bible Presbyterian

Church, and Bible Presbyterian Church of Collings-

wood, New Jersey, a member of the Bible Presbyterian

Church (the Churches); four full-time students at

Shelton (the students); two parents of students (the par-

ents); and Everette Charles Olson, professor of math-

ematics and chemistrv at Shelton (the faculty member).

The defendants are the New Jersey State Board of High-

er Education and several individual state officials

charged with the enforcement of the challenged regula-

tions (the Board). We affirm.

I.

Facts and Proceedings in the District Court

As an essential part of their religious mission, the

Churches, which are part of a nationwide fundamenial-

ist Christian sect, sponsor Shelton, a small denomina-

tional institution which for several decades has been the

principal source of the denomination’s seminarians.

Shelton owns a carnpus in Cape May, New Jersey. Since |

1. The opinion of the district court is reported. N.J.-Phila. Pres-

bytery v. N.J. State Bd. of Ed., 482 F.Supp. 968 (D.N.J. 1980). The

order appealed from both granted and denied a preliminary injunc-

tion. Thus we have appellate jurisdiction over both aspects of the

challenged order. 28 U.S.C. §1292(a)(1).

A-73

1971 it also has had facilities in Cape Canaveral. Florida.

and it is licensed by that state as an educational institu-

tion authorized to grant degrees. Shelton offers courses

for which it charges tuition, and purports to award Bach-

elor degrees in the Arts. Sacred Theology, Christian

Education, and Music. It accepts no local, state or teder-

al funds because of the Churches’ beliefs respecting the

separation of church and state. Shelton has been a party

to prior litigation with the Board.*

In the summer of 1979 a representative of the Board

learned that Shelton intended to offer courses of instruc-

tion at Cape May, and to grant degrees through its Flor-

ida affiliate. An on-site investigation at Cape Mav dis-

closed the presence of students. Since Shelton did not

then hold a license from the Board, its representative in-

formed the College's president that it was operating in

violation of New Jersey law.

On November 15, 1979 the Board filed in the Supe-

rior Court of New Jersev, Chancery Division. a com-

plaint for declaratory and injunctive relief, alleging that

Shelton is offering courses of instruction for credit with-

out the requisite license, and seeking a judgment

1. enjoining and restraining the College and its em-

ployees, servants and agents from engaging in,

assisting in or causing the offering of any

courses or classes of instruction, or engaging in

any form of educational instruction or offering or

providing any credits, awards, certificates or de-

grees for any such instruction or educational ex-

perience which has been given to any enrolled

student or other individual in or about Cape Mav

since September 1, 1979, until a license is

issued.

2. See Shelton College v. State Bd. of Ed. 48 N.Jj. 501. 226 A.2d

612 (1967); In re Shelton College, 109 N.J. Super. 488. 263 A.2d

810 (App. Div. 1970). See Section III. infra.

A-74

2. Declaring that any operation of Shelton in New

Jersey which has heretofore taken place without

a license is unauthorized and contrary to law.

See Verified Complaint for deciaratorv and injunctive re-

lief of New Jersev State Board of Higher Education, p. 4

(filed in the Superior Court of New Jersey, Chancery Di-

vision, Nov. 15, 1979). On the date the complaint was

filed. the Superior Court issued a temporary restraining

order enjoining all Shelton’s educational or instructional

activities.* The defendants in the Superior Court suit are

Shelton’'s directors, and two of its officers. Neither the

Churches, the students, the parents nor anv faculty

member are parties to that suit.

On November 19, 1979 the plaintiffs filed in the dis-

trict court an action under 42 U.S.C. §1983, alleging

that the efforts of the Board to prevent Shelton’s educa-

uonal and instrucuonal acuvities unless it complied with

New Jersey's licensing scheme violated their nghts to

the tree exercise of religion, unduly entangled the State

in the affairs of a religious institution, denied their nghts

in education to express, transmit and receive ideas, de-

nied their property nghts and denied them equ... protec-

tion of the law. They contended, moreover, that the stat-

ute and regulations the Board sought to enforce were

unconstitutionally vague. The district court held an

evidentiarv hearing on piaintiffs’ motion for a prelimi-

narv injunction, and made findings of fact. Neither side

challenges these fact findings on appeal.* On the basis

of these findings the district court concluded:

ee .

3. A limited exception was provided in the temporary restrain-

ing order for students then enrolled, permitting them to attend unul

the end of the academic semester on December 22. 1979.

4. The distnet court found, with respect to the parents, the stu-

dents, and the tacultv members at Shelton. that thev all shared the

same theological belieis and codes of personal conduct.

Central to their behets ts their conviction that the Bible is

infallible. inerrant Word of God which provides guidance tor ev-

A-75

1. that the instant suit was not barred bv res

judicata:

2. that the pendency of the Superior Court action

for injunctive relief against Shelton’s directors

NOTE 4 — ‘Continued

erv phase of life. Thev believe in the fallen nature of man. that

bv reason of his sinful nature man cannot (as the “humanist”

would contend) achieve his own Utopia or salvation. that man

can be saved only by the subsutuuonarv sacrifice of Jesus and

the acceptance of that sacnfice bv the believer

For these persons there are no areas of life which are not

governed bv their Biblical faith. whether it be their persona!

conduct, their vocations or the subjects thev teach. Both the

students and the teachers who tesuhed believe that their pres-

ence at Shelton College is tor the purpose of preparing them-

selves or others to pertorm the missions their Lord culls upon

them to pertorm

Several of these students could have attended recognized

secular colleges and universiues had they chosen to do su. The

teachers work at Shelton College at considerable financial sac-

nfice to themselves

When students attend Shelton College. they accept a stnct

code of conduct embodied in their Student Handbook ( Exhibit

P-1). This includes dress codes. compulsory ~hapei four davs a

week, reframing trom studving. swimming, sun bathing and

athleucs on Sundavs. retraining from the possession or use of

alcoholic beverages. tobacco. non-medicinal narcoucs or hallu-

cinogenic drugs and manmyuana, and avoiding moder dance.

commercial movies and rock and roll music. There ts stnct reg-

ulauon of daung. engagements and marmage

Every academic subject is taught from a perspecuve of the

religious point of view of the fundamentalist denominauons.

whether it be history. art. economics. chemistry or English lit-

erature. The conduct and beliets of the Shelton student and the

theological doctrines which form the content of the academic

program are at total vanmance trom secular and must

church-sponsored colleges and universiues. This ts the reason

why the students have selected Shelton College. why the par-

ents wish their students to attend. and whv the tacultvy mem-

bers teach there. Thev seek the nurture and fellowship o! a

community of the fathtul, where thev can develop their under

standing and knowledge of their own fwth, and where they can

prepare to propagate it in the world at large

A-76

and two of its officers did not require dismissal of

the tederal complaint;

3. that a stav of the federal complaint pending re-

sort to the state court for an interpretation of the

challenged statute and _ regulations was

inappropniate;

4. that a preliminary injunction should issue, en-

joining the Board from taking any action having

the effect of preventing Shelton, its employees,

servants or agents from engaging in any reli-

gious, teaching, or educational activities or from

publicizing or advertising such activities, and

that the outstanding Supenor Court injunction

should be modified to permit such activities; and

that anv further preliminary relief with respect to

the Superior Court action should be denied.*®

ur

An order reflecting these conclusions was entered, and

these appeals followed. The Board contends that no pre-

liminary relief should have been granted; indeed that

the complaint should have been dismissed. The plain-

tiffs contend that the relief which was granted inad-

equately protects their first amendment nghts from

harm pendente lite, and that the Superior Court pro-

ceedings should have been enjoined while the federal

court disposed of the entire case.

The order secured by the State Board of Higher Education

requires that on December 22. 1979. Shelton College. the core

vf this community of believers. must cease teaching. By state

fiat a relagious Community will be destroved.

482 F Supp. at 974

5 Specifically. the distnct court enjoined the Board from en-

forcing the state court order forbidding teaching and advertising,

and prohibiung award of credits toward u Florida degree, but de-

clined to enjoin the Board trom entorcing the order pronibiting the

“urant of New Jersey degrees. Contrary to the sugyesuon in the con-

curmng opimon, page 4, that the distnect court enjoined enforce-

ment ol the licensing scheme in other respects. in fact no more was

enjoined than enlorcement of un overbroad temporary injunction.

BEST AVAILABLE COPY

A-77

II.

The New Jersey Regulatory Scheme

Prior to 1899 the State of New Jersev made no effort

to regulate private higher education. In specific in-

stances by special acts of the legislature. however. some

institutions were granted charters authorizing the con-

ferring of degrees.” An amendment to the New Jersey

Constitution in 1875 prohibited the legislature trom

granting a corporate charter other than by a general law.

See N. J. Const. Art. IV §7 “9. Thereafter educational in-

stitutions could only be chartered under genera! laws

such as those dealing with not for profit corporations.

and religicus societies. See N.J.S.A. 15: §1 et seq.; 16: §1

et seq. Since it was no longer lawful to confer degree

granting authority by special charter. in 1897 a statute

was passed authorizing anv seminary or school of theol-

ogy, whether founded under a general act of the legisla-

ture or by an old special charter, to conter designated de-

grees. P.L. 1897, C. 27, §1, p. 42; N.J.S.A. 18A:68-2.

Two years later a statute authorized any college founded

under any genera! act of the legislature to “give diplomas

and confer degrees upon those who shall successfully

complete prescribed courses of study, and confer honor-

ary degrees upon such others as shall be recommended

thereafter by its board of trustees." P.L. 1899. C. 116. §1,

p. 168; NJ-S.A. 18A:68-1.° No license requirement or

6. Centenary College for Women, L. 1867. C. 103, p. 172:

Seton Hal] University, L. 1861, C. 86, p. 198; St. Michael's Monas-

tery, L. 1866, C. 319, p. 753; Drew University. L. 1868. C. 2. p. 4:

Stevens Insutute of Technology, L. 1870. C. 52. p. 166: St. Peter's

College, L. 1872. C. 487. p. 1117. These six chartered

degree-granting instituuons, of which five were religiously affili-

ated, joined Rutgers, the State University (formerly Queen's Col-

lege) and Princeton University, (formerly the College of New Jer-

sey) both of which, also onginally religiously affiliated. held Roval

charters authorizing the granung of degrees.

7. The 1899 statute expressly negated authonty for a college to

confer degrees or diplomas authonzing the practice of medicine.

denustry, or law.

A-78

other form of state regulation accompanied these gener-

al authorizations.

In 1912, in the gubernatorial administration of

Woodrow Wilson, a former president of Princeton Uni-

versity. New Jersey for the first time adopted legislation

prescribing the terms and conditions uncer which de-

grees could be conferred. and prohibiting the conferring

of a degree “until the terms and conditions of such de-

gree. . . shall first be submitted to and approved by the

State Board of Education.” P.L. 1912, C. 315. This legis-

lation exempted from the license and course approval re-

quirements the specially chartered institutions listed in

footnote 5, both religiously affiliated and secular, and

New Jersey still considers them exempt. N.J.S.A.

18A:68-6; N.J.A.C. 9:1-2.15. Institutions founded under

anv general act, including religiously affiliated institu-

tions such as Shelton, were covered by the 1912 law,

and by a 1916 statute, P.L. C. 152, §1, p. 308, which su-

perseded it. Section 1 of the 1916 law, found now at

N.J.S.A. 18A:68-3, provides:

No corporation shall furnish instruction or learning

in the arts, sciences, or professions for the purpose

of admitting any person to the grade of a degree, or

shall confer or participate in conferring a degree,

giving to any person a diploma of graduation or of

proficiency in a course of study, in learning, or in

scientific arts or methods, within this state, until it

shall have filed a certified copy of its certificate of

incorporation with the board of higher education

and obtained for such board a license to carry on the

business under such rules as the board of higher

education may prescribe.

Section 2 of the same law prohibits the corporation and

any of its members or officers from admitting any person

to the grade of a degree “without first submitting the ba-

sis or conditions thereof to the board of higher educa-

tion, and obtaining its approval thereof, and of the prac-

A-79

tice of conferring and bestowing such degrees.” N.J.S.A.

18A:68-6. The 1916 law authorizes the Attorney General

of New Jersey to seek from the Superior Court an order

restraining any corporation from “carrving on the busi-

ness of such instruction or teaching, or conferring any

such degree, or giving any such diploma without such

license.” N.J.S.A. 68-5. The same section permits the

Superior court to proceed “in a summary manner or oth-

erwise.”’ Monetary penalties, assessable against the cor-

poration, its members or officials in a summary proceed-

ing, and the nonpayment of which results in a 90 day

civil commitment to a county jail, sanction the license

and approval requirements. P.L. 1916, C. 152. §4 p. 310;

N.J.S.A. 18A:68-9, 10.

The 1916 law contains no exemption for Board ap-

proval of courses whose content is religious, or for diplo-

mas or degrees in theological subjects. Nor does it con-

tain any standards to guide the Board in approving “the

basis or conditions” of a degree “in recognition of the at-

tainment or (sic) proficiency of any person in pursuing

or graduating from any course or courses of study, arts.

or learning.” N.J.S.A. 18A:68-6. The Board has, howev-

er, adopted extensive regulations for those New Jersey

institutions subject to its “censure and approval juris-

diction. N.J.A.C. 9:1-1.1 - 9:1-6.4. Application for a li-

cense requires submission of a detailed questionnaire

and supporting documents. The prescribed form of

questionnaire, found in Appendix C to title 9 of the New

Jersey Administrative Code, p. 36.4 et seq., is attached to

this opinion as Appendix 1.

For institutions accredited by the Middle States As-

sociation, a private accrediting organization, the Board

ordinarily accepts such accreditation as sufficient for li-

censure and approval. N.J.A.C. 9:1-2.1. For institutions

not approved by the Middle States Association, the Board

has established a Licensing Approval Advisory Board.

N.J.A.C. 9:1-2.3-8. The Licensing Approval Advisory

A-80

Board recommends policies for licensure and degree ap-

proval for institutions not regionally accredited, recom-

mends approval or disapproval of petitions for licensure,

and reviews proposed license revocations. N.J.A.C.

9:1-2.7. Presumably the Advisory board’s recommenda-

tions are made consistent with the Board’s regulations.

These govern an institution’s statement of purpose,

N.J.A.C. 9:1-1.2; organization and administration,

N.J.A.C. 9:1-1.3; finances, N.J.A.C. 9:1-1.4; educational

programs, N.J.A.C. 9:1-1.5; faculty, N.J.A.C 9:1-1.7; li-

brary, N.J.A.C. 9:1-1.8; students and student services,

N.J.A.C. 9:1-1.9, physical facilities, N.J.A.C. 9:1-1.10;

and official publications, N.J.A.C. 9:1.1.11. The regula-

tions are, in a word, pervasive. Of particular relevance to

religiously affiliated institutions is the regulation dealing

with statement of purpose:

(a) Regulations concerning statement of pur-

pose are:

1. Each institution shall maintain appro-

priate and operationally effective statements of

purpose (such as those found in the college

catalog and other official documents) and shall

review these statements for possible revision

and improvement at periodic intervals not to

exceed five years;

2. Copies of statements of purpose shall be

promptly filed with the chancellor and, when

required by the Department of Higher Educa-

tion, implementation schedules shall be

similarly filed.

(b) Standards concerning statement of pur-

poses are:

1. Statements of institutional purpose

should define the educational climate to be es-

tablished, the nature of the education students

are expected to have upon graduation, the oc-

cupational and other outcome expected from

A-81

the programs, and the aspects of individual

growth to be enriched or developed:

2. Each institution should be prepared to

present evidence that the various elements of

institutional life (faculty work. educational pro-

gram, student life. finances. physical plant, or-

ganization and administration) are structured

to support the purposes stated:

3. Each institution should develop a

long-range plan to implement its goals, includ-

ing a written schedule of priorities, resource al-

locations and responsibility assignments, with

target dates for the realization of specific

objectives;

4. Purposes and plans should be devel-

oped and periodically reviewed by a committee

drawn from appropriately concerned institu-

tional constituencies, and should be available

for distribution to all constituent groups.

N.j.A.C. 9:1-1.2.

The requirement of a statement of purpose is not

merely informational, for the regulation dealing with

educational programs provides that “[t]he educational

program shall refiect and support the purposes of the in-

stitution” and “shall include course work and other ac-

tivities extending over a sufficient period of time and in

sufficient intensity to fulfill the purposes of the institu-

tion.” N.J.A.C 9:1-1.5(a)1, 2. Thus on the face of the

regulations it would appear that in order to obtain a li-

cense, an ins*’iiution with a religious commitment such

as Shelton’s must submit to the Board a statement of its

religious purpose, as well as evidence that the various

elements of its institutional life are structured to support

that purpose. and must submit to the Board's judgment

| the question whether its educational program reflects

} and supports that purpose. Facially, therefore. the

A-82

Board's licensing regulations suggest a very high degree

of state entanglement in Shelton’s religious affairs. And

the 1916 law unambiguously prohibits instruction lead-

ing to a diploma or degree. even in theology, absent a

license.®

ITT.

Prior Litigation

At one time Shelton had a New Jersey license. Un-

der the 1916 Act the Board mavy ievoke a license,

N.J.S.A. 18A:68-4, and in 1966 it instttuted a revocation

proceeding.” When the Board entered an order limiting

Shelton’s authority to grant a bachelor of arts degree to

June 30. 1967, the college sought review of the agency's

decision in the Superior Court, Appellate Division. See

N.J.R. 2:2-3(a)(2). The Supreme Court of New Jersey

certified the case before argument in the Appellate Divi-

sion, reviewed the abbreviated record made before the

agency,'° and considered Shelton’s legal challenges to

8 Cf. NLRB v Catholic Bishop ot Chicago. 440 U.S. 490,

502-03 (1979) (NLRB junsdicuon over alleged unfair labor prac-

uces in Catholic religious schools would result in impermissible en-

tanglement. for the Board's resoluuon of unfair labor practices

charges “will necessarily involve inquiry into the good faith of the

posiuon asserted by the clergy-administrators and its relationship to

the school's religious mission.’ Moreover. NLRB determination of

the “terms and condiuons of employment” would enmesh the Board

in “nearly everything that goes on in the schools.”).

9. The reasons tor the proposed revocauon do not appear in

this record or in any reported New Jersey opinion.

10. Chief Justice Weintraub described that record as follows:

The record consists onlv of the notice of appeal and the res-

vluuons already menuoned. The first resolution. dated

December 13. 1965. recites the following: that on June 2. 1965

the State Board of Educauon resolved not to grant approval to

Shelton of its practuce of coniermny degrees; that a hearing be-

gun on July 2]. 1965 was interrupted bv legal action initiated

by Shelton with the result that the school vear 1965-66 got un-

der way: that upon request Shelton submitted a statement of its

A-83

the 1916 law. In this agencv review proceeding Shelton

adduced no proof. but contended that the 1916 law was

unconstitutional:

1. because anv effort by the state to regulate in anv

way the award of a bachelor’s degree violated the

free speech guaranty of the first amendment:

2. because the statute sets forth no standard for the

exercise of delegated legislative power. and thus

violates Art. IV §1 1 of the New Jersey

Constitution; es

3. because the grandfather clause exempting the

chartered institutions listed in footnote 5 creates

an unconstitutional classification; and

4. because the Board lacked statutory power to

grant conditional approvals. |

No free exercise clause or entanglement claims were

made or considered. The Supreme Court rejected the

four clairms Shelton did present. Following that court's

decision, further revocation proceedings took place be-

NOTE 10 — (Continued)

current condition; that a further investigation revcaled compli-

ance with some cf the standards which theretofore had not

been met; that a question continues as to compliance with oth-

er standards described in the resolution; but nonetheless in the

interest of the students then enrolled and in the light of the

problems attendant upon a disruption of the college in midyear.

approval was given of the practice of conferring the degree of

bachelor of arts, such approval to conunue to September 15.

1966. As we have already noted. the State Board of Education

adopted a further resolution (dated June 27, 1966) which, after

reciting a later annual evaluaticn of the college and the Board's

finding that certain specified standards had not vet been met.

nonetheless concludes the authority to bestow the degree of

bachelor of arts should be extended until June 30, 1967 upon,

however, 12 stated conditions to be met by Shelton not later

than May 1, 1967.

48 N.J. at 505-06; 226 A.2d at 614-15. The record in this case does

not disclose what were the 12 stated conditions for licensure.

A-84

fore the Board, and ultimately Shelton lost its license. !!

So far as this record discloses, no free exercise clause or

entanglement claims were made or considered at any

time in the Board’s revocation proceedings. Nor is there

any indication that any of the previous New Jersey agen-

cy or court litigation dealt with teaching rather than de-

gree granting.

The Board contends that the doctrines of res

judicata or collateral estoppel preclude preliminary in-

junctive relief, and require dismissal of the complaint.

The district court rejected this contention. 482 F.Supp.

at 975-76. We agree. The federal courts are referred, for

the claim and issue preclusion effect of a state court

judgment, at least initially, to the law of the rendering

state. 28 U.S.C. §1738. New Jersey requires, for the ap-

plication of res judicata, identity of causes of action, of

parties or their privies, and of issues. E.g., Brick Tp.

Ocean County v. Vannell, 55 N.J. Super. 583, 590, 151

A.2d 404, 408 (App. Div. 1959) (Haneman, J.). In the li-

cense revocation proceedings only Shelton was a party.

There has been no showing that for purposes of the free

exercise and establishment claims Shelton was a privy

for the Churches, parents, students,.and faculty mem-

ber presently before us. Moreover, even as to Shelton

there has been no showing that the license revocation

proceeding involved in any way the religion clause is-

sues urged in this Section 1983 action. Clearly a New

Jersey court would not hold that the complaint before us

is barred by res judicata. Indeed if it were to do so with

respect to the claims of the Churches, parents, students

and faculty member, such a holding would violate the

due process clause of the fourteenth amendment.

Parklane Hoisery Co. v. Shore, 439 U.S. 322, 327 n.7

11. Only a procedural aspect of the revocation proceedings was

reviewed by the New Jersey Courts. In re Shelton College. 109 N.J.

Super. 488. 263 A.2d 810 (App. Div. 1970).

A-85

(1979) (“It is a violation of due process for a judgment to

be binding on a litigant who was not a party or a pnvv

and therefore has never had an opportunity to be

heard”); Blonder-Tongue v. University Foundation. 402

U.S. 313, 329 (1971); Hansberry vz. Lee. 311 U.S. 32. 40

(1940).

As to collateral estoppel. that doctrine in New Jersev

precludes relitigation onlv of questions “distinctly put in

issue” and “directly determined” adversely to the party

against which the estoppel is asserted. City of Plainfield

v. Public Service Gas and Electric, 82 N.J. 245, 257-58.

412 A.2d 759, 765-66 (1980). Moreover, under the New

Jersey rule, if the judgment is based on one or more of

several grounds, but does not expressly rely on anv of

them, none is conclusively established, since a subse-

quent court cannot tell what issue or issues were in fact

fully adjudicated. Ettin v. Ava Truck Leasing, Inc., 53

N.J. 463, 480-81, 251 A.2d 278. 287 ( 1969) (Jacobs, J.),

overruling Kelley v. Curtiss, 16 N.J. 265, 108 A.2d 431

(1954) (Brennan, J.). Cf. Boykins v. Ambridge Area

School Dist., 621 F.2d 75 (3d Cir. 1980) (no preclusive

effect accorded decision of state agency when impossi-

ble to tell what it decided). Here it is clear from the two

judicial opinions in Shelton’s prior litigation with the

Board that no religion clause claims were considered or

determined.

The Board has not made any showing as to what, fi-

nally, was litigated at the agency revocation proceedings

which were not judicially reviewed. Whether New Jer-

sey would apply principles of judgment preclusion — ei-

ther res judicata or collateral estoppel — to those pro-

ceedings is a decidedly open question, depending on an

analysis of the Board’s statutory authority to perform an

adjudicative as distinguished from a policy making func-

tion. See Lubliner v. Bd. of Alcoholic Bev. Co., Paterson,

A-86

33 N.J. 428, 165 A.2d 163 (1960).'* For two reasons,

however, we need not speculate whether New Jersey

would treat the Board's license revocation proceeding as

adjudicative or policy making. First, “[rjes judicata and

collateral estoppel are affirmative defenses that must be

pleaded.” Blonder-Tongue v. University Foundation,

402 U.S. 313, 350 (1971); Fed. R. Civ. F. 8(c). The

Board did not, in opposing the grant of a preliminary in-

junction, establish that it adjudicated the religion clause

claims presented in this case, or even that it had statu-

tory jurisdiction to consider them. It simply failed to

meet the burden Rule 8(c) imposes.'* Second, the Su-

preme Court has held that neither 28 U.S.C. §1738 nor

federal common law principles of res judicata require

deference to administrative as distinct from judicial pro-

ceedings, Prentis v. Atlantic Coal Line Co., 211 U.S.

210, 226-28 (1908); FTC v. Texaco, Inc., 555 F.2d 862,

894 (D.C. Cir.) (en banc), cert. denied 431 U.S. 974

(1977). '4

We conclude, therefore, that the district court did

not err in rejecting the Board’s contention that the prior

litigation referred to precluded the grant of a preliminary

injunction protecting the plaintiffs from violations of the

religion clauses of the first amendment. See New Jersey

Education Ass’n v. Burke, 579 F.2d 764 (3d Cir. 1978);

cf. Wooley v. Maynard, 430 U.S. 705 (1977).'®

12. New Jersey does accord res judicata and collateral estoppel

effect to decisions of administrative tribunals, City of Hackensack

v. Winner, 82 N.J. 1, 410 A.2d 1146 (1980).

13. See New Jersey Education Ass'n v. Burke, 579 F.2d 764,

775-76 (3d Cir. 1978), “res judicata is an affirmative defense, de-

pendent on the factual issue of what submissions were actually

made to the state court.”

14. Moreover, litigants need not exhaust those remedies before

seeking relief under Section 1983. Moore v. City of East Cleveland,

431 U.S. 494, 497 n.5 (1977); Ellis v. Dyson, 421 U.S. 426, 432

(1975); McNeese v. Board of Educ., 373 U.S. 668 (1963).

15. The Supreme Court’s recent decision in Allen v. McCurry,

49 U.S.L.W. 4015 (Dec. 9, 1980), does not warrant a different con-

ee ae ae Pe wae iP ee

A-87

IV.

Younger Dismissal

Although it has not abandoned its judgment

preclusion argument. the Board on appeal relies chiefiv

on the contention thai principles of equitv. comity and

federalism required that the federal court stay its hand

so that the religion clause contentions be litigated first in

the Superior Court of New Jersey. It relies on the spawn

of Younger v. Harris, 401 U.S. 37 (1971). to assert that

because the Board filed its Superior Court action against

Shelton's directors and two of its officers first, the federal

complaint of all the plaintiffs, whether or not they were

defendants in the state court action, must be dismissed.

The district court rejected that broad proposition; rightly

so, we hold.

We note at the outset that for the Churches, par-

ents, students and teacher, the governing precedents

are Steffel v. Thompson, 415 U.S. 452 (1974) (declara-

tory relief) and Doran v. Salem Inn, Inc., 422 U.S. 922

(1975) (preliminary injunctive relief). These plaintiffs

are not parties to any state court proceeding. Like the

plaintiff in Steffel, they were confronted, from the com-

mencement of the state’s lawsuit against someone else,

with a real threat of harm to them. Each of these plain-

tiffs has asserted individual first and fourteenth amend-

ment rights distinct from those Shelton, its directors and

its officers assert. See Verified Complaint. pp. 3-4; 7-9:

13-15. Specifically, the Churches maintain that the

NOTE 15 — (Continued)

clusion here. That decision affirmed the application of 28 U.S.C.

§ 1738 to litigation under 42 U.S.C. §1983. but also stressed that the

full faith and credit statute required that the federal plaintiff have

fully and fairly litigated the same issues in state court. Because the

prior New Jersey proceedings did not address Shelton's religion

clause contentions, neither §1738. nor the Supreme Court's

McCurry discussion would attribute preclusive effect to the earlier

New Jersey proceedings.

A-88

Board's enforcement of the regulations deprives them of

their first and fourteenth amendment nghts to minister

to voung adults through Shelton College; the students

argue that enforcement deprives them of their first and

fourteenth amendment rights to receive a christian edu-

cation; the parents assert enforcement deprives them of

their first and fourteenth amendment nights to guide

their children's choice of post-secondary education; the

teacher claims enforcement deprives him of his first and

fourteenth amendment rights to “pursue his religious

ministry and Christian apostolate.” These rights, with

the possible exception of the Churches’ rights (the

Churches characterize Shelton as an “agency” of the Bi-

ble Presbyterian Church), are all distinct from the col-

lege’s mght to exist as a_ religious-educational

institution. '®

The Supreme Court has held that the “opportunities

of pupils to acquire knowledge,” is a first amendment

right distinct from the right to impart knowledge. Meyer

v. Nebraska, 262 U.S. 390, 401 (1923). Moreover, the

Court has recently emphasized that the distinct “first

amendment right ‘to receive information and ideas’... .

is nowhere more vital than in our schools and universi-

ties.” Kleindienst v. Mandel, 408 U.S. 753, 762-63

(1972). Even if one concludes that the Churches, teach-

er, and parents have no independently assertable rights,

Supreme Court precedent clearly indicates that the stu-

dents have distinct rights which may be enforced in a

separate federal action.

An objection might be made that despite their asser-

tion of independent nights, all of these plaintiffs are too

interrelated with Shelton College to permit a separate

federal court action. The Supreme Court's articulation of

16. Hence, it is clear that the suggestion in the concurring

opinion that the nonparties are in effect suing only on behalf of

Shelton College, see concurring op. at 16 n.13, finds no foundation

in the record.

A-89

the contours of derivative preclusion in Younger cases.

however, has been limited to preclusion of an empiover's

federal suit when its emplovees assert identical interests

in state court, Hicks v. Miranda, 422 U.S. 332, 348-49

(1975), and to preclusion of federal plaintiffs too inter-

twined with the state defendants “in terms of ownership.

control and management,” Doran v. Salem Inn, 422 U.S.

at 929. Clearly, a majority of the Court has formulated

derivative preclusion only in terms of an identity of eco-

nomic activities and interests. Certainly, the parents and

students in this action neither own, nor control, nor

manage Shelton College. Arguably, the teacher, as a

Shelton College employee, might be barred under Hicks.

The relevance of Hicks, however, is merely superficial.

The employer in Hicks was derivatively precluded be-

cause any claim his emplovees could make in state court

regarding their first amendment right to participate in

the screening of Deep Throat derived from their status

as agents asserting the employer's right to show the film.

Here, the teacher asserts an individual first amendment

right to teach a particular theology. That right is distinct

from Shelton’s right, as a school, to propagate its doc-

trine. Arguably, the Churches might be precluded under

an ownership, management and control theory. But

while Shelton College is the teaching arm of the Bible

Presbyterian Church, the Board has not shown to what

extent the two Churches in this suit in fact manage and

control the college, and the state court action is against

the separate directors and officers of the college. '’

17. Chief Justice Burger's concurrence in Allee v. Medrano.

416 U.S. 802, 830-31 (1974). would also extend the derivauve

preclusion principle to an organization seeking to assert in federal

court the interests of members prosecuted in state court. A majority

of the Court has yet to adopt an organizational preclusion theory

Even if that theory represents the direction toward which the Court

is inclined, it is of no relevance to the students. teacher. and parents

here, for the Chief Justice did not contend that individual members

of an organization could not assert their own interests in federal

A-90

The concurrence purports to rely not on an

interrelationship analysis to preclude the nonparties ac-

tion, but on a theory that derivative preclusion is war-

ranted here because the nature of the relief the district

court awarded in this case differs markedlv from the re-

lief in Steffel and Doran. Although those cases arose out

of nearlv identical fact situations and presented identical

legal issues to the state and federal tribunals, the con-

currence notes that the federal courts were not asked to

interfere in the pending state proceedings. It urges that

in this case, however, the federal court is requested to

enjoin the enforcement of the state court's preliminary

injunction. Unlike Steffel and Doran, therefore, this

case involves direct federal interference in an ongoing

state enforcement proceeding. If the Younger doctrine

forbids anything, the concurrence contends, it prohibits

anv direct federal] court interference with anv state en-

forcement proceeding.'® This “direct interference” the-

court when the organization was the subject of a pending state en-

forcement proceeding. Such an assertion would in this case reduce

to an untenable proposition that if a church might assert its congre-

gation s interests in state court, no individual member of the flock

may be heard in federal court to press the tenets of his or her own

faith.

Nor does the Chief Jusuce’s concurrence stand for the proposi-

uon that an individual federal plainuff who is a member of an organ-

ization to which the individual state defendant also belongs may not

sue in federal court. In Ste

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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