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

decided: April 14, 1981; As Amended April 22, 1981, May 6, 1981.

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 OLSON, APPELLANTS
v.
NEW JERSEY STATE BOARD OF HIGHER EDUCATION; T. EDWARD HOLLANDER 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



ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

Before Gibbons and Rosenn, Circuit Judges, and Weber,*fn* District Judge.

Author: Gibbons

Opinion OF THE COURT

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.*fn1 The 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.*fn2

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, Chancery Division, 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.*fn3 The 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, 1979 the 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.*fn4 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.*fn5

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.*fn6 An amendment to the New Jersey Constitution in 1875 prohibited the legislature from granting a corporate charter other than by a general law. See N.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. See N.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 1897 a 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.*fn7 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 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 basis or conditions thereof to the board of higher education, and obtaining its approval thereof, and of the practice 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 "carrying on the business of such instruction or teaching, or conferring any such degree, or giving any such diploma without such license." N.J.S.A. 18A:68-5. The same section permits the Superior Court to proceed "in a summary manner or otherwise." Monetary penalties, assessable against the corporation, its members or officials in a summary proceeding, 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 approval of courses whose content is religious, or for diplomas or degrees in theological subjects. Nor does it contain any standards to guide the Board in approving "the basis or conditions" of a degree "in recognition of the attainment 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, however, adopted extensive regulations for those New Jersey institutions subject to its licensure and approval jurisdiction. N.J.A.C. 9:1-1.1 9:1-6.4. Application for a license 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 Association, a private accrediting organization, the Board ordinarily accepts such accreditation as sufficient for licensure 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 Board recommends policies for licensure and degree approval for institutions not regionally accredited, recommends 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 recommendations 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; library, 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 regulations 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 purpose are:

1. Each institution shall maintain appropriate 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 Education, implementation schedules shall be similarly filed.

(b) Standards concerning statement of purposes are:

1. Statements of institutional purpose should define the educational climate to be established, the nature of the education students are expected to have upon graduation, the occupational and other outcome expected from 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 program, student life, finances, physical plant, organization and administration) are structured to support the purposes stated;

3. Each institution should develop a long-range plan to implement its goals, including a written schedule of priorities, resource allocations and responsibility assignments, with target dates for the realization of specific objectives;

4. Purposes and plans should be developed and periodically reviewed by a committee drawn from appropriately concerned institutional 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 reflect and support the purposes of the institution" and "shall include course work and other activities extending over a sufficient 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 appear that in order to obtain a license, an institution 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 Board's licensing regulations suggest a very high degree of state entanglement in Shelton's religious affairs. And the 1916 law unambiguously prohibits instruction leading to a diploma or degree, even in theology, absent a license.*fn8

III.

Prior Litigation

At one time Shelton had a New Jersey license. Under the 1916 Act the Board may revoke a license, N.J.S.A. 18A:68-4, and in 1966 it instituted a revocation proceeding.*fn9 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 Division, reviewed the abbreviated record made before the agency,*fn10 and considered Shelton's legal challenges to the 1916 law. In this agency review proceeding Shelton adduced no proof, but contended that the 1916 law was unconstitutional:

1. because any effort by the state to regulate in any 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 P 1 of the New Jersey Constitution;

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 claims Shelton did present. Following that court's decision, further revocation proceedings took place before the Board, and ultimately Shelton lost its license.*fn11 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 agency or court litigation dealt with teaching rather than degree granting.

The Board contends that the doctrines of res judicata or collateral estoppel preclude preliminary injunctive 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 application 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 license 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 member 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 issues 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 Hosiery Co. v. Shore, 439 U.S. 322, 327 n.7, 99 S. Ct. 645, 649, n.7, 58 L. Ed. 2d 552 (1979) ("It is a violation of due process for a judgment to be binding on a litigant who was not a party or a privy and therefore has never had an opportunity to be heard"); Blonder-Tongue v. University Foundation, 402 U.S. 313, 329, 91 S. Ct. 1434, 1443, 28 L. Ed. 2d 788 (1971); Hansberry v. Lee, 311 U.S. 32, 40, 61 S. Ct. 115, 117, 85 L. Ed. 22 (1940).

As to collateral estoppel, that doctrine in New Jersey precludes relitigation only 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 any of them, none is conclusively established, since a subsequent 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 impossible 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, finally, was litigated at the agency revocation proceedings which were not judicially reviewed. Whether New Jersey would apply principles of judgment preclusion either res judicata or collateral estoppel to those proceedings 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 function. See Lubliner v. Bd. of Alcoholic Bev. Co., Paterson, 33 N.J. 428, 165 A.2d 163 (1960).*fn12 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, "(r)es judicata and collateral estoppel are affirmative defenses that must be pleaded." Blonder-Tongue v. University Foundation, 402 U.S. 313, 350, 91 S. Ct. 1434, 1453, 28 L. Ed. 2d 788 (1971); Fed.R.Civ.P. 8(c). The Board did not, in opposing the grant of a preliminary injunction, establish that it adjudicated the religion clause claims presented in this case, or even that it had statutory jurisdiction to consider them. It simply failed to meet the burden Rule 8(c) imposes.*fn13 Second, the Supreme 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 proceedings, Prentis v. Atlantic Coast Line Co., 211 U.S. 210, 226-28, 29 S. Ct. 67, 69-70, 53 L. Ed. 150 (1908); FTC v. Texaco, Inc., 180 U.S. App. D.C. 390, 555 F.2d 862, 894 (D.C.Cir.) (en banc), cert. denied, 431 U.S. 974, 97 S. Ct. 2940, 53 L. Ed. 2d 1072 (1977).*fn14

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, 97 S. Ct. 1428, 51 L. Ed. 2d 752 (1977).*fn15

IV.

Younger Dismissal

Although it has not abandoned its judgment preclusion argument, the Board on appeal relies chiefly on the contention that principles of equity, 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, 91 S. Ct. 746, 27 L. Ed. 2d 669 (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, parents, students and teacher, the governing precedents are Steffel v. Thompson, 415 U.S. 452, 94 S. Ct. 1209, 39 L. Ed. 2d 505 (1974) (declaratory relief) and Doran v. Salem Inn, Inc., 422 U.S. 922, 95 S. Ct. 2561, 45 L. Ed. 2d 648 (1975) (preliminary injunctive relief). These plaintiffs are not parties to any state court proceeding. Like the plaintiff in Steffel, they were confronted, from the commencement of the state's lawsuit against someone else, with a real threat of harm to them. Each of these plaintiffs has asserted individual first and fourteenth amendment 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 Board's enforcement of the regulations deprives them of their first and fourteenth amendment rights to minister to young adults through Shelton College; the students argue that enforcement deprives them of their first and fourteenth amendment rights to receive a Christian education; the parents assert enforcement deprives them of their first and fourteenth amendment rights 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 Bible Presbyterian Church), are all distinct from the college's right to exist as a religious-educational institution.*fn16

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, 43 S. Ct. 625, 627, 67 L. Ed. 1042 (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 universities." Kleindienst v. Mandel, 408 U.S. 753, 762-63, 92 S. Ct. 2576, 2581, 33 L. Ed. 2d 683 (1972). Even if one concludes that the Churches, teacher, and parents have no independently assertable rights, Supreme Court precedent clearly indicates that the students have distinct rights which may be enforced in a separate federal action.

An objection might be made that despite their assertion of independent rights, all of these plaintiffs are too interrelated with Shelton College to permit a separate federal court action. The Supreme Court's articulation of the contours of derivative preclusion in Younger cases, however, has been limited to preclusion of an employer's federal suit when its employees assert identical interests in state court, Hicks v. Miranda, 422 U.S. 332, 348-49, 95 S. Ct. 2281, 2291, 45 L. Ed. 2d 223 (1975), and to preclusion of federal plaintiffs too intertwined with the state defendants "in terms of ownership, control and management," Doran v. Salem Inn, 422 U.S. at 929, 95 S. Ct. at 2566. Clearly, a majority of the Court has formulated derivative preclusion only in terms of an identity of economic 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 because any claim his employees 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 doctrine. 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.*fn17

The concurrence purports to rely not on an interrelationship analysis to preclude the nonparties' action, but on a theory that derivative preclusion is warranted here because the nature of the relief the district court awarded in this case differs markedly from the relief in Steffel and Doran. Although those cases arose out of nearly identical fact situations and presented identical legal issues to the state and federal tribunals, the concurrence 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 any direct federal court interference with any state enforcement proceeding.*fn18 This "direct interference" theory, while initially appealing, does not withstand analysis. First, the district court did not directly or indirectly interfere in the state court proceedings. The district court restrained the Board from availing itself of a portion of the preliminary relief the state court granted. The district court's ruling in no way hindered the state court from ruling on the merits of the Board's claims or of Shelton's constitutional challenges. Cf. discussion infra Part V. p. 885. Even assuming, arguendo, the district court's limited ruling had been a "direct interference", a theory proposing that any direct interference violates Younger still proves inadequate. Had the nonparty plaintiffs in this action sought merely a declaratory judgment invalidating the Board's regulations, rather than an injunction limiting the scope of the state court injunction, there would be no direct interference in the state court proceeding, and this case would look very much like Steffel v. Thompson. These plaintiffs did in fact seek such a declaratory judgment (in addition to injunctive relief), but the federal district court, in deference to state court adjudication of the merits of the regulations, declined to intrude so far into the substance of the state court controversy.

Rather, it awarded the more limited relief of an injunction restraining enforcement of part of the state court preliminary injunction. The course which the district court declined to take, and of which the concurrence would apparently approve invalidating the regulations would have been far more intrusive to the state enforcement scheme, although it would not have impinged directly on the state court's adjudication. As the Supreme Court has recognized, the collateral intrusion of a declaratory judgment invalidating the contested state law is just as disruptive to state enforcement as direct interference in the state proceeding in the form of an injunction. See Samuels v. Mackell, 401 U.S. 66, 91 S. Ct. 764, 27 L. Ed. 2d 688 (1971).

Moreover, the Supreme Court has declined to draw a direct interference/collateral intrusion line in Younger cases. In Doran v. Salem Inn, the nonparty plaintiffs did not seek directly to intrude on the state prosecution of M & L Bar. They sought an injunction against enforcement of the topless bar ordinance. The Supreme Court held there might be cases in which nonparty plaintiffs might be precluded from bringing a federal action, not because those plaintiffs were seeking directly to intrude in the pending state action, but because they might be so interrelated "in terms of ownership, control, and management," that pursuit of a separate federal action would undermine Younger. As Doran makes clear, the real problem is not the relief sought in federal court, but the relationship of the nonparty federal plaintiffs to the state defendants.*fn19 As has been shown, the nonparties here do not fall within the Hicks-Doran "nexus" with the state defendants.

A final derivative preclusion theory, implicit in the concurring opinion, is that the nonparties' distinct federal claims should be barred if the outcome of the state enforcement proceeding would in a practical sense be dispositive of their interests. This argument is, in effect, a variant of the interrelationship theory. The decision advancing it on which the concurrence relies is Corpus Christi Peoples' Baptist Church v. Texas Dep't of Human Resources, 481 F. Supp. 1101 (S.D.Tex.1977), aff'd mem. 621 F.2d 438 (5th Cir. 1980). That case involved a state enforcement proceeding against an unlicensed church-operated child care home. The court held the nonparty parents and children barred from asserting a federal claim in federal court. Holding the rights of the nonparties "merely appendages" to the church's rights, the court assumed that the parents and children who made use of the church-operated child-care home had no interests distinct from the state-defendant church's. Rather than considering whether those federal plaintiffs might not have a separate interest in religiously-oriented child care, the court concluded there could be no such interest because if the church won in state court, the federal plaintiffs' rights would be vindicated, and if the church lost, the federal plaintiffs would have no interest left because the home would have gone out of business.*fn20 A nexus finding on the ground that if the state defendant prevails, the federal plaintiff's interests would be vindicated proves too much. In Steffel and Doran, had the state defendants obtained rulings invalidating the local laws, the federal plaintiffs would have been vindicated. Indeed, no matter how unrelated the federal plaintiff, so long as some state defendant might successfully challenge the same state law, the federal plaintiff's rights would be vindicated. That does not mean that a federal plaintiff may not bring an action so long as some state proceeding addressing the same constitutional issue is pending. This circuit in New Jersey Education Ass'n v. Burke, 579 F.2d 764, 770 (3d Cir. 1978), has squarely rejected that proposition. Similarly, a state defendant's failure in state court may often defeat an unrelated federal plaintiff's interests. If, for example, a state court is requested to enforce a local criminal obscenity law against a pornographic publication, and grant of that relief would mean the publication would cease distribution in that area, it is inconceivable that a federal court would hold a reader barred from asserting his first amendment interest in reading the magazine on the ground that should the magazine lose in state court, his interests would be resolved because there would be nothing left to read.*fn21 Absurd as such a holding sounds, it is in essence the conclusion of the Corpus Christi court. We decline to rely on such a precedent.

It is clear, then, under Steffel and Doran, that nonparties to the state enforcement proceedings 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 application for a preliminary injunction, that order cannot be reversed on the chief ground the Board advances, absent a very great extension of the Younger rule, which would, in effect, ignore the teachings of Steffel and Doran.*fn22

The Board urges we disregard the impeding Supreme Court precedent, and make the requested extension by requiring that the Churches, parents, students and teacher intervene in any pending state proceeding in order to litigate their own separate rights. There are several serious obstacles to the adoption of such a rule. First and most obviously, as recently as Wooley v. Maynard, 430 U.S. 705, 710, 97 S. Ct. 1428, 1433, 51 L. Ed. 2d 752 (1977), Chief Justice Burger, writing for the Court, reaffirmed the holdings of Steffel and Doran : that a federal forum is available to litigants threatened with violations of federally protected rights and not presently parties to a state court proceeding.

Second, the Board's brief refers us to no New Jersey law, and our own research has disclosed none, suggesting that non-parties could intervene of right in the New Jersey action. The Supreme Court has repeatedly asserted that a primary motivation in its adoption of the Younger doctrine was the insulation of state enforcement of its criminal law from litigious interruptions. See, e.g., Kugler v. Helfant, 421 U.S. 117, 129-31, 95 S. Ct. 1524, 1533, 44 L. Ed. 2d 15 (1975); Younger v. Harris, 401 U.S. at 43-44, 91 S. Ct. at 750. Even when the doctrine was extended to certain civil cases, that step was justified because of the close relationship of those cases to state penal policies. See, e.g., Moore v. Sims, 442 U.S. 415, 423, 99 S. Ct. 2371, 2377, 60 L. Ed. 2d 994 (1979); bTrainor v. Hernandez, 431 U.S. 434, 444, 97 S. Ct. 1911, 1918, 52 L. Ed. 2d 486 (1977); Huffman v. Pursue, Ltd., 420 U.S. 592, 604, 95 S. Ct. 1200, 1208, 43 L. Ed. 2d 482 (1975). Certainly neither New Jersey nor any other state would permit third parties to intervene and participate in criminal prosecutions. One obvious reason for the Steffel-Doran qualifications of the Younger doctrine is the recognition that a pending prosecution against someone else affords no opportunity for non-parties to assert their own first amendment rights, because the state will not permit them to participate in the defense of penal charges against others. The licensing scheme of the 1916 Act does not provide for enforcement by indictment, but it does embody a strong state penal policy; so strong, indeed, that the normal due process protections of indictment and trial by jury have been eliminated in favor of civil penalties enforceable in a summary proceeding and by civil incarceration, N.J.S.A. 18A:68-9, 10, and by a summary proceeding restraining violations. N.J.S.A. 18A:68-5. When the district court acted on the application for a preliminary injunction, the Board tendered to it no authority suggesting that intervention by the parents, the students and the faculty member would be any more welcome in the pending proceeding under Section 18A:68-5 than in a criminal prosecution. Nor has any such authority been suggested to us.*fn23

The reality confronting the district court, when it acted on the application for a preliminary injunction, was that the Churches, parents, students, and faculty member could protect their first amendment rights only by a separate action somewhere; either in the district court or in a separate action in a New Jersey court. Had they resorted to a separate action in a New Jersey court, that court would have been required to enforce the same Section 1983 cause of action which they have pleaded in the federal court. Testa v. Katt, 330 U.S. 386, 67 S. Ct. 810, 91 L. Ed. 967 (1947). That cause of action includes the right to be protected, pendente lite, from unlawful restraints upon and unlawful state entanglements in their free exercise of religion. Assuming that their claims for such pendente lite relief were meritorious, a state court, applying federal law, would be obliged to grant them the same relief against the pending Section 18A:68-5 action as would a federal district court. If it did, the interference with the penal policy of New Jersey embodied in the 1916 law would differ from the same relief granted by a federal tribunal only in some Pickwickian sense. It is the federal law which binds both tribunals, not the address of the court house, that interferes with the state's penal policy. Assuming that both tribunals would be receptive to claims of pendente lite protection of first amendment rights (and on this score the Attorney General's brief reassures us) then the defendant Board, charged with enforcement of the state's penal policy would appear to have no substantive interest adversely affected by the parents', students' and teacher's choice of a forum.*fn24

From the viewpoint of these plaintiffs, who are not parties to the Section 18A:68-5 proceeding, however, the choice of a forum is significant. Congress has in 28 U.S.C. § 1343(3) given them that choice, for "Younger principles aside, a litigant is entitled to resort to a federal forum in seeking redress under 42 U.S.C. § 1983 for an alleged deprivation of federal rights." Wooley v. Maynard, 430 U.S. at 710, 97 S. Ct. at 1433. One important practical reason for the exercise of that choice in favor of a federal forum is the additional safeguard from possible errors of federal law 28 U.S.C. § 1292(a)(1) affords. That significant provision, which brings the case before us, provides for appeals of right from the grant or denial of pendente lite injunctive relief. In first amendment contexts, where state actions imposing prior restraints on the exercise of protected rights can cause devastating and irreparable harm, the availability of that remedy often will be vital. This is particularly the case where third parties may be potentially affected by a state court decree binding someone else. A state court decree preventing a source from communicating with a reporter, or a state court decree preventing a church from admitting worshipers, are examples which come to mind. A state court decree closing a religious school this case is another. By contrast, appeals from grants or denials of preliminary injunctive relief are, under New Jersey law, entirely discretionary. N.J.R. 2:2-4 (1981); Delaware River and Bay Authority v. International Organization of Masters, Mates and Pilots, 45 N.J. 138, 142, 211 A.2d 789, 791 (1965); Frantzen v. Howard, 132 N.J.Super. 226, 227, 333 A.2d 289, 289 (App.Div.1975). Moreover, if a preliminary injunction is granted, such an injunction, whether or not reviewed in a discretionary N.J.R. 2:2-4 appeal, is insulated from review in the Supreme Court of the United States by the "final judgment" limitation on Supreme Court appellate jurisdiction in 28 U.S.C. § 1257. By contrast, if this court has appellate jurisdiction under 28 U.S.C. § 1292(a)(1) the Supreme Court may also review. 28 U.S.C. § 1254.*fn25

We do not stress access to federal court pendente lite appellate review of grants or denials of preliminary injunctions in cases seeking protection against prior restraints on first amendment rights as a forum selection factor for plaintiffs because state trial judges will in our view (or even in plaintiffs' view) be any more or less likely to commit error than their federal district court counterparts. Nor is it our point that this court will necessarily produce a better first amendment result than that produced by a state court which decides to grant leave for a discretionary interlocutory appeal. Rather, our point is that the legislative preclusion of Supreme Court review of any but final judgments of state courts has created the anomaly that a prior restraint in a state court preliminary injunction can be in force over a long period of time, entirely insulated from any review by that tribunal which has the ultimate responsibility for giving content to the first amendment. The possibility of access to that tribunal pendente lite by virtue of sections 1292(a)(1) and 1254 is a significant, legitimate, even compelling factor in the Churches', parents', students' and faculty member's choice of a federal rather than a state forum. What countervailing considerations can the Board offer in opposition to the recognition of that choice? Certainly the Board has not suggested that insulation from the possibility of pendente lite federal appellate review in first amendment cases is a state interest worthy of consideration.

We conclude that the trial court did not err in rejecting the Board's Younger ground for the denial of preliminary injunctive relief.

V.

Pullman Abstention

The Board also contends that Railroad Commission v. Pullman Co., 312 U.S. 496, 61 S. Ct. 643, 85 L. Ed. 971 (1941) required that the district court refrain from granting pendente lite injunctive relief against enforcement of the 1916 law and the regulations issued under it. It urges that had the Superior Court been afforded the opportunity to do so it might have devised a limiting construction of both the law and the regulations which obviated all first amendment concerns.

To put that contention in context, our starting point is the Board's own construction, set out in the pleading it filed in the Superior Court. Its complaint demanded judgment:

Enjoining and restraining all defendants and their 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 since September 1, 1979 in or about the property of Shelton College in Cape May, New Jersey, until a license for same is issued by the New Jersey Department of Higher Education.

Exhibit P. 17 (emphasis supplied). Acting on that complaint the Superior Court issued an ex parte order enjoining and restraining the defendants

"[from] engaging in, advertising, 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 individual except for presently enrolled students ...."

Exhibit P. 18 (emphasis supplied). The construction of the statute and regulations set forth in the Board's pleading, filed on its behalf by the Attorney General of New Jersey, leaves no room for limiting instructions. It requests a pervasive prior restraint on engaging in any form of instruction.*fn26

The next point to be noted is the posture of the case when the district court made the order appealed from. The district court addressed not a final hearing, but an application for a preliminary injunction. Pullman teaches that when a state statute or regulation may be construed definitively by a state court in a manner which may avoid a conflict with a federal constitutional provision it is sometimes appropriate to avoid a final but possibly erroneous federal court interpretation of the statute, and a possibly unnecessary constitutional decision. But the doctrine requires retention of jurisdiction, 312 U.S. at 501, 61 S. Ct. at 645, for the obvious purpose of preserving the plaintiffs' choice of a forum for the vindication of federal rights clearly infringed by the state construction ultimately adopted. See England v. Louisiana State Board of Medical Examiners, 375 U.S. 411, 84 S. Ct. 461, 11 L. Ed. 2d 440 (1964).

Here the district court has not construed the state statute or regulations at all. It has done no more than tell the Board that its construction, announced authoritatively in its state court complaint, goes further than the first amendment permits, and so construed may not be enforced. This preliminary injunction places no limitation on the power of the New Jersey court to reject the Board's construction in favor of one which would conform to the first amendment.*fn27 Nor was this a case of an unnecessary constitutional law pronouncement, for the Board's action, had it been successful, would have imposed on the parents, the students and the teacher an irreparable interference with their exercise of rights protected by the religion clauses. If prior to final hearing in this case the New Jersey appellate courts should adopt a narrowing construction avoiding the constitutional issues raised by the Board's attempt to prohibit all teaching at Shelton, no legitimate New Jersey interest will have been invaded by the pendency of the preliminary injunction, and at final hearing the need for federal injunctive relief on those issues may be moot.

In these circumstances there is no merit to the Board's contention that the Pullman doctrine precluded consideration of pendente lite injunctive relief. The only issue in the state's appeal is whether, substantively, the preliminary injunction went too far. The court ruled:

I conclude that plaintiffs have every likelihood of prevailing on the merits insofar as the State Board seeks to close Shelton College by forbidding it to advertise and teach, that all of the plaintiffs are threatened with immediate and irreparable injury to their rights of free speech and right to freely exercise their religion, that none of the other parties to this action are prejudiced in any way by Shelton College's continued operation, and that all members of the public at large will ultimately benefit if the constitutional rights of a small religious minority are protected from encroachments by honorable but overly zealous public officials. Preliminary injunctive relief is appropriate.

An order will be entered enjoining defendants from taking or permitting the taking of any action having the effect or designed to have the effect or preventing Shelton College or any of its employees, servants and agents from engaging in any religious, teaching or educational activities or from publicizing or advertising such activities.

Provided that no action is taken in the pending State Court proceeding which would in any way curtail plaintiffs' rights as defined in the order mentioned above, there will be no need to enjoin the prosecution of that proceeding.

482 F. Supp. at 979. In its brief on appeal the Board argues that this very limited grant of injunctive relief was an abuse of discretion. The Board contends

... in order to make a colorable claim under the Free Exercise Clause, there must be an interference with the religious beliefs of the complainant. See Wisconsin v. Yoder, 406 U.S. 205, 92 S. Ct. 1526, 32 L. Ed. 2d 15 (1972). In the instant matter, it is clear that the statutory scheme at issue in no way interferes with any religious beliefs of the plaintiffs. They are free to teach and express any doctrine or belief that they desire, completely without interference from the state.

Appellees' brief at 33. This argument, however, simply misstates the record, for exhibits P-17 and P-18 plainly and unequivocally show that the Board sought in the state court a prohibition against any instruction and any advertising. Enforcement by the Board of the broad grant of that relief is all the district court enjoined. The Board's brief does not defend the propriety of such relief. Indeed its misstatement of the record obliquely concedes that the district court was correct in predicting a likelihood of ultimate success on the merits. We agree that success on the merits in resisting a prior restraint against all teaching and all advertising is likely. The district court committed no abuse of discretion in awarding the preliminary injunction preventing the board from enforcing such a restraint.

VI.

The Plaintiffs' Appeals

A. Appeal No. 80-1253

The district court also ruled:

So long as there is no interference with Shelton College's religious teaching or educational programs, this Court should abstain from deciding the remaining constitutional issues and permit them to be decided in the pending State Court action. This court will retain jurisdiction pending completion of the State Court proceedings in the event further interim relief should be required.

482 F. Supp. at 980. *fn28 Thus the present status of the case is that a Pullman type stay has been entered, with a retention of jurisdiction to consider further injunctive relief when the state court construes the statute and regulations. The plaintiffs point out, quite correctly, that this order is a denial of a large part of the injunctive relief which they requested. They urge, moreover, that its entry was error. All of the factors bearing on their choice of a federal forum discussed in Part IV above, they urge, are equally relevant with respect to the additional relief they sought. That relief includes a decision on plaintiffs' entanglement and free exercise claims.

The plaintiffs' appeal requires that we consider, in a first amendment context, the interrelationship between the Pullman abstention doctrine and the standards for the award of preliminary injunctive relief. Since, as we have already noted in Part V, a grant of pendente lite relief is not a final interpretation of state law by a federal court, and leaves the state court entirely free to place any construction on its law, limiting or otherwise, which it determines to be consistent with the first amendment, Pullman considerations have very little weight at the preliminary injunction stage. 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 question whether a Pullman stay of final hearing is appropriate. Assuming the case is not to be dismissed outright, the district court should be guided by the classic requirements for a preliminary injunction:

The traditional standard for granting a preliminary 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.

Doran v. Salem Inn, 422 U.S. at 931, 95 S. Ct. at 2567. Our review is confined to a determination whether the trial court abused its discretion in applying the quoted standards. Doran v. Salem Inn, 422 U.S. at 931-32, 95 S. Ct. at 2567-2568.

We noted in Part III that the plaintiffs' entanglement and free exercise clause claims are significant; in Part IV that the remedies available in a state tribunal, especially interlocutory appellate remedies, are problematical, and Supreme Court review of a state preliminary injunction is unavailable; and in Part VI A above, that the plaintiffs have been left in somewhat of a dilemma by the limited preliminary relief which was granted. On the other hand, as the district court noted, New Jersey has a significant interest in protecting both the consumers of education and the public which may rely upon the certification of proficiency implicit in the award of a degree. Certainly the likelihood of success on the merits, with respect to the degree granting aspect of the case, was not as clear as was the claim to be free to teach and to advertise.*fn29 Moreover the district court did not leave the plaintiffs entirely unprotected. It reserved jurisdiction to consider further applications for interim relief. Given the competing considerations facing the district court, we cannot hold that refusing to grant additional pendente lite relief, when on January 4, 1980 the district court acted initially, was an abuse of discretion.

The plaintiffs also urge that rather than staying final hearing, the district court, "in aid of its jurisdiction, or to protect or effectuate its judgments", 28 U.S.C. § 2283, should have enjoined the section 18A:68-5 proceeding entirely. We reject this contention. The decision to stay the federal court action while a New Jersey state court was given the opportunity to construe that state's statute and regulations was within the permissible range of district court discretion.

B. Appeal No. 80-2703

The plaintiffs, on November 20, 1980, applied to the district court for additional preliminary injunctive relief, and that appeal was referred to this panel. Thereafter the appeal was dismissed. Thus we do not address any of the issues to which it was directed.

VII.

In No. 80-12 53/54 the order appealed from will be affirmed. In No. 80-2703 the appeal has been dismissed. Each party will bear its own costs.

APPENDIX

A GUIDE FOR OBTAINING THE BASIC INFORMATION FOR APPRAISING NEW JERSEY INSTITUTIONS OF HIGHER EDUCATION

SCHEDULE A

I. Introduction

The questions included in this guide outline the minimum information needed by the State Department of Higher Education before it may proceed with the processing of a request for licensure and for authority to grant an undergraduate degree. A written report based on this guide should be submitted to the Department of Higher Education at least three weeks prior to the scheduled appraisal visit. Four copies are needed. The appropriate regulations and standards should be consulted as each section of schedule A is completed.

When making an application for authority to grant a graduate degree, this guide must be utilized in conjunction with schedule B (a separate document). Any additional information felt to be helpful in interpreting the institutional purposes and programs should certainly be furnished. Four copies of such information should be submitted.

II. Report of the College as a Whole (Directions)

Institutions requesting an initial license to operate shall answer the questions in terms of the proposed institution.

Institutions requesting license renewal shall answer all questions. Where questions are not applicable, please indicate why.

Institutions requesting approval of a new program should confer with departmental representatives concerning the extent to which this section should be filled out.

1. Statement of Purpose

a. What are the educational purposes or functions of your institution, as stated in the articles of incorporation? Quote the complete statement from the incorporation papers.

b. What other statements of purpose exist? Attach sections from the college catalogue and other documents describing these statements.

c. When were your statements of purposes last systematically reviewed? Who participated in that review and what institutional constituencies were represented?

d. If the institution has a long-range plan for the attainment of its purposes, include it and the proposed schedule of implementation.

e. If the institution is affiliated in any way with a religious organization, please describe the precise nature of the relationship.

2. Administrative Organization

a. Briefly describe the administrative organization of the institution, including the functions and responsibilities of each administrative officer.

b. Attach a statement giving names, occupations, and length of term of your governing board and advisory committees.

c. Briefly describe the governance processes of the institution and the roles and responsibilities of the various institutional constituencies.

d. To what extent is the institution involved in cooperative programs with other institutions? Explain how these efforts relate to the purposes of the institution.

3. Finances

a. Include a copy of your financial summary, using the form prescribed in Part V Financial Summary.

b. Describe your plan for long-range financial development.

c. Include copies of the proposed budget for the current and ...


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