New Jersey-Philadelphia Presbytery of the Bible Presbyterian Church v. New Jersey State Bd. of Higher Ed.

• Decision Date: 06 May 1981
• Docket Number: 80-1254 and 80-2703,No. 80-1254,Nos. 80-,JERSEY-PHILADELPHIA,Nos. 80-1253,s. 80-,80-1254,s. 80-1253
• Citation: 654 F.2d 868
• Parties: NEWPRESBYTERY OF THE BIBLE PRESBYTERIAN CHURCH; Shelton College, A Ministry of Bible Presbyterian Church; Bible Presbyterian Church of Collingswood, New Jersey: Kevin Wilson, Brad Gsel, Kevin Clair Michael, Curtis Jordan Bashaw, Louise Olson and Everette Charles Olson, Appellants in1253 and 80-2703, v. NEW JERSEY STATE BOARD OF HIGHER EDUCATION; 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, Appellants in
• Court: U.S. Court of Appeals — Third Circuit

Page 868

654 F.2d 868

NEW JERSEY-PHILADELPHIA PRESBYTERY OF THE BIBLE PRESBYTERIAN CHURCH; Shelton College, A Ministry of Bible Presbyterian Church; Bible Presbyterian Church of Collingswood, New Jersey: Kevin Wilson, Brad Gsel, Kevin Clair Michael, Curtis Jordan Bashaw, Louise Olson and Everette Charles OlsonAppellantsin Nos. 80- 1253 and 80-2703, v.NEW JERSEY STATE BOARD OF HIGHER EDUCATION; T. Edward Hollander, Chancellor of New Jersey Department of Higher Education; Richard D. Breslin, AssistantChancellor 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, Appellants in No. 80-1254.

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

United States Court of Appeals Third Circuit.

Argued Oct. 16, 1980.

Decided April 14, 1981.

As Amended April 22, 1981 and May 6, 1981.

John J. Degnan, Atty. Gen. of N. J., Stephen Skillman, Asst. Atty. Gen., Robert A. Fagella, Deputy Atty. Gen. (argued), Trenton, N. J., for New Jersey State Board of Higher Education, et al.

William Bentley Ball(Argued), Philip J. Murren, Kathleen A. O'Malley, Ball & Skelly, Harrisburg, Pa., C. Clark Hodgson, Jr., Georganne Daher Terrill, Silvana Moscato Brightbill, Stradley, Ronon, Stevens & Young, Philadelphia, Pa., for New Jersey-Philadelphia Presbytery of the Bible Presbyterian Church, et al.; Keith J. Bashaw, Keith J. Bashaw, P. A., Haddonfield, N. J., of counsel.

Before GIBBONS and ROSENN, Circuit Judges, and WEBER, ^*District Judge.

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 application for preliminary injunctive relief against the enforcement of certain statutes and regulations of the State of New Jersey dealing with the licensing of private institutions of higher education.¹The plaintiffs are Shelton College, a New Jersey corporation (Shelton), New Jersey-Philadelphia Presbytery of the Bible Presbyterian Church, the regional ruling body of Bible Presbyterian Church, and Bible Presbyterian Church of Collingswood, New Jersey, a member of the Bible Presbyterian Church (the Churches); four full-time students at Shelton (the students); two parents of students (the parents); and Everette Charles Olson, professor of mathematics and chemistry at Shelton (the faculty member).The defendants are the New Jersey State Board of Higher Education and several individual state officials charged with the enforcement of the challenged regulations (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 fundamentalist Christian sect, sponsor Shelton, a small denominational institution which for several decades has been the principal source of the denomination's seminarians.Shelton owns a campus in Cape May, New Jersey.Since 1971 it also has had facilities in Cape Canaveral, Florida, and it is licensed by that state as an educational institution authorized to grant degrees.Shelton offers courses for which it charges tuition, and purports to award Bachelor degrees in the Arts, Sacred Theology, Christian Education, and Music.It accepts no local, state or federal funds because of the Churches' beliefs respecting the separation of church and state.Shelton has been a party to prior litigation with the Board.²

In the summer of 1979 a representative of the Board learned that Shelton intended to offer courses of instruction at Cape May, and to grant degrees through its Florida affiliate.An on-site investigation at Cape May disclosed the presence of students.Since Shelton did not then hold a license from the Board, its representative informed the College's president that it was operating in violation of New Jersey law.

On November 15, 1979 the Board filed in the Superior Court of New Jersey, Chancery Division, a complaint for declaratory and injunctive relief, alleging that Shelton is offering courses of instruction for credit without the requisite license, and seeking a judgment

1. enjoining and restraining the College and its employees, 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 degrees for any such instruction or educational experience which has been given to any enrolled student or other individual in or about Cape May since September 1, 1979, until a license is issued.

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 declaratory and injunctive relief of New Jersey State Board of Higher Education, p. 4(filed in the Superior Court of New Jersey, ChanceryDivision, 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.³The defendants in the Superior Court suit are Shelton's directors, and two of its officers.Neither the Churches, the students, the parents nor any faculty member are parties to that suit.

On November 19, 1979the plaintiffs filed in the district court an action under 42 U.S.C. § 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 religion, unduly entangled the State in the affairs of a religious institution, denied their rights in education to express, transmit and receive ideas, denied their property rights and denied them equal protection of the law.They contended, moreover, that the statute and regulations the Board sought to enforce were unconstitutionally vague.The district court held an evidentiary hearing on plaintiffs' motion for a preliminary injunction, and made findings of fact.Neither side challenges these fact findings on appeal.⁴ On the basis of these findings the district court concluded:

1. that the instant suit was not barred by res judicata;

2. that the pendency of the Superior Court action for injunctive relief against Shelton's directors and two of its officers did not require dismissal of the federal complaint;

3. that a stay of the federal complaint pending resort to the state court for an interpretation of the challenged statute and regulations was inappropriate;

4. that a preliminary injunction should issue, enjoining the Board from taking any action having the effect of preventing Shelton, its employees, servants or agents from engaging in any religious, teaching, or educational activities or from publicizing or advertising such activities, and that the outstanding Superior Court injunction should be modified to permit such activities; and

5. that any further preliminary relief with respect to the Superior Court action should be denied.⁵

An order reflecting these conclusions was entered, and these appeals followed.The Board contends that no preliminary relief should have been granted; indeed that the complaint should have been dismissed.The plaintiffs contend that the relief which was granted inadequately protects their first amendment rights from harm pendente lite, and that the Superior Court proceedings should have been enjoined while the federal court disposed of the entire case.

II.The New Jersey Regulatory Scheme

Prior to 1899 the State of New Jersey made no effort to regulate private higher education.In specific instances by special acts of the legislature, however, some institutions were granted charters authorizing the conferring of degrees.⁶An amendment to the New Jersey Constitution in 1875 prohibited the legislature from granting a corporate charter other than by a general law.SeeN.J.Const. Art. IV § 7 P 9.Thereafter educational institutions could only be chartered under general laws such as those dealing with not for profit corporations, and religious societies.SeeN.J.S.A. 15:1-1 et seq.; 16:1-1 et seq.Since it was no longer lawful to confer degree granting authority by special charter, in 1897a statute was passed authorizing any seminary or school of theology, whether founded under a general act of the legislature or by an old special charter, to confer designated degrees.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 general act of the legislature to "give diplomas and confer degrees upon those who shall successfully complete prescribed courses of study, and confer honorary degrees upon such others as shall be recommended thereafter by its board of trustees."P.L. 1889, C. 116, § 1, p. 168;N.J.S.A. 18A:68-1.⁷ No license requirement or other form of state regulation accompanied these general authorizations.

In 1912, in the gubernatorial administration of Woodrow Wilson, a former president of Princeton University, New Jersey for the first time adopted legislation prescribing the terms and conditions under which degrees could be conferred, and prohibiting the conferring of a degree "until the terms and conditions of such degree ... shall first be submitted to and approved by the State Board of Education."P.L. 1912, C. 315.This legislation exempted from the license and course approval requirements 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 any general act, including religiously affiliated institutions such as Shelton, were covered by the 1912 law, and by a 916 statute, P.L. C. 152, § 1, p. 308, which superseded it.Section 1 of the 1916 law, found now at N.J.S.A. 18A:68-3, provides:

No...