Charry v. Hall, 1133

• Decision Date: 19 May 1983
• Docket Number: D,No. 1133,1133
• Citation: 709 F.2d 139
• Parties: Jonathan M. CHARRY, Plaintiff-Appellant, v. Judy E. HALL, individually and as Executive Secretary of the State Board for Psychology of the State Education Department of the University of the State of New York, Raymond D. Salman, individually and as Director of Professional Licensing of the State Education Department of the University of the State of New York, Gordon M. Ambach, individually and as Commissioner of Education of the University of the State of New York, Frank C. Abbott, individually and as Assistant Commissioner for the State Education Department of the University of the State of New York, The State Education Department, The University of the State of New York and The New York State Board of Regents, Defendants-Appellees. ocket 82-7764.
• Court: U.S. Court of Appeals — Second Circuit

Page 139

709 F.2d 139

Jonathan M. CHARRY, Plaintiff-Appellant, v. Judy E. HALL, individually and as Executive Secretary of the State Board for Psychology of the State Education Department of the University of the State of New York, Raymond D Salman, individually and as Director of Professional Licensing of the State Education Department of the University of the State of New York, Gordon M. Ambach individually and as Commissioner of Education of the University of the State of New York, Frank C. Abbott individually and as Assistant Commissioner for the State Education Department of the University of the State of New York, The State Education Department, The University of the State of New York and The New York State Board of Regents Defendants-Appellees.

No. 1133, Docket 82-7764.

United States Court of Appeals, Second Circuit.

Argued April 11, 1983.

Decided May 19, 1983.

Richard M. Kraver, New York City (Kraver & Martin, New York City, of counsel), for plaintiff-appellant.

Ellen Bronzo, Asst. Atty. Gen., State of N.Y., New York City (Robert Abrams, Atty. Gen., State of N.Y., George Zuckerman, Deputy Sol. Gen., New York City, of counsel), for defendants-appellees.

Before MANSFIELD, VAN GRAAFEILAND and FRIEDMAN, ^* Circuit Judges.

MANSFIELD, Circuit Judge:

Dr. Jonathan M. Charry appeals from a judgment of the Southern District of New York, Milton Pollack, Judge, dismissing for lack of jurisdiction his complaint under 42 U.S.C. Sec. 1983, which sought damages and an injunction restraining various New York State agencies and officials from refusing to permit him to take an examination required by state law to enable him to qualify for a license as a psychologist. Charry, who holds a Ph.D. degree from New York University in a program formally entitled "Human Relations and Social Policy" but which is in fact a curriculum in applied social psychology, contends that the defendants deprived him of his federal constitutional right to procedural due process by refusing him permission to take the examination. We affirm on the ground that, regardless whether defendants made an erroneous decision on the merits, they accorded Charry adequate procedural due process.

Under New York law a person may not practice as a "psychologist" unless he receives a state license to do so, Education Law, Art. 153, Secs. 7600, et seq. (McKinney 1972 & Supp.1982). The State Education Department of the University of the State of New York is the administrative agency having responsibility for the licensing of psychologists and the New York State Board of Regents determines the nature and quality of educational programs required for such licensure. The Board of Regents, in turn, has appointed a State Board of Psychology to evaluate the qualifications of applicants for licensure under the standards set forth in Sec. 7603 of the Education Law. ¹ That section provides in pertinent "The definition of the doctoral degree required for the issuance of a certificate as a psychologist ... contained in [the former section] is so broad as to permit the certification of persons as psychologists who lack appropriate training in psychology. This broad language has necessitated an extensive screening process to identify those applicants whose training in psychology is inadequate. This amendment would clarify this requirement to specifically provide that applicants for certification as psychologists must have received a doctoral degree in psychology upon completion of a psychology program registered by the [Education] Department, or its substantial equivalent." 1970 N.Y. Laws 2997-98.

part that to qualify for a license and to take the examination specified by the Board the applicant must have received "a doctoral degree in psychology, granted on the basis of completion of a program of psychology registered with the department [of Education] or the substantial equivalent thereof ...." N.Y.Educ.Law Sec. 7603(2) (emphasis added). The purpose of this requirement was stated by the legislature when it added this provision in 1970:

Regulations issued by the Commissioner of Education (8 N.Y.C.R.R. Secs. 50, et seq.) provide procedures for the registration with the Board of educational programs deemed sufficient to render graduates eligible for licensure in professions, including psychology. See Secs. 52.1 and 52.10. When doctoral programs in psychology cannot be appraised (e.g., because they are conducted by distant out-of-state institutions and cannot be verified by visitation), the applicant may take a prerequisite examination to qualify for the licensing examination. Sec. 72.1(b). ² However, the Commissioner has not promulgated any regulations establishing standards for determining when a program not registered with the State Education Department is "the substantial equivalent" of an approved, registered program. The present dispute arises, in part at least, out of this deficiency.

A candidate's application for licensure as a psychologist is first considered by the Board's Education Evaluation Committee in Psychology. If the applicant is turned down "on grounds of unsatisfactory experience," see Sec. 72.1, which presumably means completion of a scholastic program deficient in acceptable psychology courses, the applicant may appeal to the Commissioner. ³ In addition a rejected candidate may first appeal to the Department of Education's Board of Psychology. If dissatisfied with its decision he may then take his case to the Department's Committee on the Professions On July 27, 1978, Dr. Charry, who had in June 1976 received a Doctor of Philosophy Degree from New York University ("NYU") in a program entitled "Human Relations and Social Policy," which was actually a program in applied social psychology, applied to the State Education Department for admission to the licensing examination for psychologists. As requested by the Department, a "Form 10-PSY" was filled out by Prof. Gilbert M. Trachtman of NYU, the Program Director for NYU's psychology programs and the designated liaison officer for New York State Psychology Licensing at NYU's School of Education, Health, Nursing and Arts Professions. In response to questions on the form Prof. Trachtman stated that NYU's doctoral program in "Human Relations and Social Policy," from which Charry had received his degree, was not an offering of NYU's psychology department and was not designed specifically as preparation for the professional practice of psychology. On August 18, 1978, the Education Evaluation Committee in Psychology of the State Education Department notified Charry that his application was disapproved because his doctoral degree was not one in psychology and therefore did not meet the requirements of the state statute and regulations.

and, if rejected by it, to the Board of Regents. Finally he may obtain judicial review of the determination of the Board of Regents by instituting an Article 78 proceeding in the Supreme Court of the State of New York.

Charry next sought administrative review. His application was first presented to the New York State Board for Psychology, which rejected it. He then appealed to the Committee on the Professions, before which he appeared personally. Upon being turned down by the Committee he appealed to the Board of Regents, which on October 22, 1979 denied his application because of the inadequacy of his qualifications. Charry did not seek state judicial review by way of an Article 78 proceeding.

Dr. Charry at all times took the position that although NYU may have failed to register its doctoral program in Human Relations and Social Policy with the Department as a program in psychology, that program qualified as "the substantial equivalent" of a registered program as that term is used in Education Law Sec. 7603(2) because the substance of its curriculum was in psychology and it was designed as a program in applied psychology. ⁴ In December 1980 Prof. Frank B.W. Hawkinshire, the director of the NYU Human Relations and Social Policy program, wrote a letter to the Board stating unequivocally that the program is one in psychology and setting forth in detail facts and reasons for his conclusions. Prof. Hawkinshire enclosed a copy of an independent evaluation made by Dr. David Stang, former Educational Affairs Officer of the American Psychological Association, who was then responsible for evaluating and certifying the Association's clinical programs and who has wide experience in such matters. Stang agreed with Hawkinshire's analysis and characterized NYU's Human Relations and Social Policy Program as "one of the finest [programs in applied social psychology] in the world."

In March 1982, Charry requested that the Education Department reconsider his application in light of the opinions expressed by Dr. Hawkinshire and Dr. Stang. On April 6, 1982, the Department denied this request on the grounds that Dr. Hawkinshire's views were "not supported by the officer designated by the University to make this certification" (i.e., Prof. Gilbert M. Trachtman), and that a review of Dr. Charry's program of study indicated that it was "deficient in the basic areas of psychology." ⁵

On July 30, 1982, Prof. Trachtman, now alerted to Prof. Hawkinshire's opinion, wrote a letter to the State Education Department about another applicant (Dr. Marvin Aronson) stating that he could not answer "Yes" or "No" on Form 10-PSY to the question whether NYU's Human Relations and Social Policy program was designed specifically as preparation for the professional practice of psychology because there had "never been a substantive evaluation" of the program and that his "No" answer with respect to Dr. Charry "was not based on any substantive review of the Program's structure and content but rather on the absence of any history of formal peer review of this Program within the official School mechanisms for declaring a program to be one preparing students for the professional practice of psychology."

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