United States District Court, Middle District of Pennsylvania
November 4, 1991
ROBERT A. BLACK, PLAINTIFF,
FRANCES J. BARNES, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Rambo, District Judge.
Before the court is defendants' motion for summary judgment,
plaintiff's response, and defendants' reply. Before addressing
the merits of defendants' motion, the court will set forth the
Defendants in this action served as members of the
Pennsylvania Real Estate Commission ("PREC") in 1988. One of
the duties of the PREC is to approve or disapprove applications
for real estate school directorships. On October 28, 1988,
plaintiff Robert A. Black submitted his application and
evidence of his credentials to the PREC in order to gain
approval as the director of a private real estate school,
Metropolitan Real Estate School.
Defendants L'Heureax, Levin, and Lamb were members of the
Commission's Education and Examination Committee at that time.
They reviewed plaintiff's application and denied him approval
as a school director. Plaintiff was notified of the denial by
letter dated November 10, 1988. On November 14, 1988, Mr. Black
wrote a letter to the PREC indicating his dissatisfaction
with their decision and requesting a conference for a
On December 6, 1988, plaintiff appeared before the entire
PREC, and outlined the reasons for his belief that he possessed
the necessary qualifications to be approved for the real estate
school directorship. At this point, defendants allege that the
Education and Examination Committee of the PREC reviewed and
discussed Mr. Black's application, along with his conference
comments, and decided that he did not possess sufficient
experience in educational supervision and administration to
warrant approval as a real estate school director. Plaintiff
alleges his application was never reevaluated after the
conference. However, both parties agree that Mr. Black was
informed by letter on December 14, 1988 that he would have to
take four credits worth of course work in the subject area of
educational supervision and administration if he wished to
qualify for the position of real estate school director.
Mr. Black has brought an action under 42 U.S.C. § 1983
against the then-members of the PREC. His action is premised on
the alleged violation of two constitutional rights: due process
and equal protection. Plaintiff first argues that defendants'
denial of his application for real estate school director was
arbitrary and capricious, and thereby violated his right to
substantive due process under the fourteenth amendment.
Plaintiff's second argument involves an allegation that the
PREC found two other applicants for directorships to be lacking
experience in the same subject areas as he, but they were
granted provisional approval for a specified period while they
completed the course work necessary for qualification.
Plaintiff argues that the unequal treatment inherent in
offering provisional approval to them but not to him violated
his fourteenth amendment right to equal protection.
II. LEGAL DISCUSSION.
A. The Standard for Summary Judgment.
The court will consider defendants' motion for summary
judgment under the accepted standards for the award of summary
judgment under Rule 56 of the Federal Rules of Civil Procedure.
The United States Court of Appeals for the Third Circuit has
recently summarized those standards in a concise and helpful
Summary judgment may be entered if "the pleadings,
depositions[s], answers to interrogatories, and
admissions on file, together with the affidavits,
if any, show that there is no genuine issue as to
any material fact and that the moving party is
entitled to a judgment as a matter of law."
Fed.R.Civ.P. 56(c). An issue is "genuine" only if
the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106
S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Equimark
Comm. Finance Co. v. C.I.T. Financial Serv. Corp.,
812 F.2d 141, 144 (3d Cir. 1987). If evidence is
"merely colorable" or "not significantly probative"
summary judgment may be granted. Anderson, 106
S.Ct. at 2511; Equimark, 812 F.2d at 144. Where the
record, taken as a whole, could not "lead a
rational trier of fact to find for the nonmoving
party, summary judgment is proper." Matsushita
Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 106
S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986).
Hankins v. Temple Univ., 829 F.2d 437, 440 (3d Cir. 1987). The
parties' burdens in summary judgment may be described in the
following way: once the moving party has shown an absence of
evidence to support the claims of the nonmoving party, the
nonmoving party must do more than simply sit back and rest on
the allegations in her complaint. She must "go beyond the
pleadings and by her own affidavits, or by the `depositions,
answers to interrogatories, and admissions on file,' designate
`specific facts showing that there is a genuine issue for
trial.'" Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct.
2548, 2553, 91 L.Ed.2d 265 (1986). If the nonmovant bears the
burden of persuasion at trial,
the party moving for summary judgment may meet its
burden by showing that the evidentiary materials
of record, if reduced
to admissible evidence would be insufficient to
carry the nonmovant's burden at trial.
Chipollini v. Spencer Gifts, Inc., 814 F.2d 893
, 896 (3d Cir.
To establish a § 1983 claim, the plaintiff must establish (1)
the presence of conduct that was committed by a person acting
under color of state law and (2) that this conduct deprived her
of rights, privileges or immunities protected by the
Constitution or laws of the United States. Robb v. City of
Philadelphia, 733 F.2d 286, 290-91 (3d Cir. 1984). If
plaintiff's evidence in this case, as set out in the pleadings
and exhibits attached cannot establish these elements,
defendant's summary judgment motion will be granted.
B. The Relevant Statutes and Regulations.
The Pennsylvania Real Estate Licensing and Registration Act,
Pa.Stat.Ann. tit. 63, §§ 455.101-455.902 (1968 & 1991 Supp.),
is the statute which created the PREC, set forth a general
description of PREC duties, and set forth the specific
qualifications for licensing in the various real estate
occupations. Among the PREC's duties is the duty to approve the
establishment of private real estate schools, Pa.Stat.Ann. tit.
63, § 455.402 (1968 & 1991 Supp.). The Real Estate Licensing
Act gives the PREC the authority to promulgate rules and
regulations to effectuate the purposes of the Act. Pa.Stat.Ann.
tit. 63, ¶ 455.404 (1991).
With regard to real estate schools, the relevant provision of
the Act reads as follows:
Approval of schools.
Any school which shall offer or conduct any
course or courses of study in real estate shall
first obtain approval from, and thereafter abide
by the rules and regulations of the commission
covering such schools.*fn1
Pa.Stat.Ann. tit. 63, § 455.402 (1968 & 1991 Supp.).
Under the authority of the latter statute, the PREC has
enacted specific regulations concerning real estate school
directors. At the time plaintiff had his experience with the
PREC, the Commission was in the process of changing those
regulations. In November, 1988, new regulations had been
proposed but had not yet been approved. See 18 Pa. Bull. No.
37, Sept. 10, 1988, at 4104, 4118, 4123. The new regulations
were not approved until February, 1989. See, e.g., source notes
accompanying 49 Pa.Code § 35.342 (1989).
In the fall of 1988, the existing PREC regulations required
a school seeking PREC approval to present a candidate for
director that met the following qualifications:
(i) Be a qualified instructor in real estate.
(ii) Devote at least 1/2 of the school day to
performance of administrative or supervisory
duties or both.
(iii) File with the Commission three letters of
reference from previous employers setting forth
his previous experience in educational
administration and supervision, teaching and any
other activity related to education and indicate
the location and length of service for each.
49 Pa.Code § 35.145(1) (See 8 Pa. Bull. No. 36, Sept. 9, 1978,
In February, 1989, the PREC adopted its new regulation
regarding the approval of real estate school directors. It read
Approval of school director.
(a) A real estate school shall obtain the
Commission's approval of its director before
commencing operations in this Commonwealth. The
applicant . . . shall have a combination of
experience in teaching, supervision and
educational administration to be able to
competently administer a real estate education
program in areas that include, but are not limited
to, the following: evaluation of instructor
evaluation of curriculum and specific course
content; analysis of course examinations; and
management of school records and school
(b) The Commission may provisionally approve an
otherwise qualified applicant for director who
lacks sufficient background in teaching,
supervision or educational administration. A
provisionally approved director shall obtain the
requisite qualifications in the time and manner
prescribed by the Commission. . . .
49 Pa.Code § 35.342 (1989).
C. The Substantive Due Process Claim.
The United States Supreme Court has described the purpose of
substantive due process protection in this way:
by barring certain government actions, regardless
of the fairness of the procedures used, it serves
to prevent government power from being "used for
purposes of oppression."
Daniels v. Williams, 474 U.S. 327
, 331, 106 S.Ct. 662, 665, 88
L.Ed.2d 662 (1986). The Third Circuit has similarly recognized
that "notwithstanding a constitutionally adequate scheme, a
plaintiff may maintain a claim of substantive due process
violation upon allegations that the government deliberately and
arbitrarily abused its power." Midnight Sessions, Ltd. v. City
of Philadelphia, 945 F.2d 667
(3d Cir. 1991).
Both substantive and procedural due process protect the
individual only against the deprivation of constitutionally
protected life, liberty or property interests. The parties here
have devoted much attention to the issue of constitutionally
protected interests. Plaintiff argues that the terms of the
PREC regulation in existence at the time he applied for
approval gave him a constitutionally protected property
interest in approval as a real estate school director. This
"entitlement" was violated when the PREC arbitrarily and
capriciously found him unqualified. Defendant asserts that the
regulation did not establish this protected property interest.
The question of whether the PREC regulation did create such
a protected interest for substantive due process purposes is a
difficult one to answer. Both parties have supplied this court
with cases that discuss liberty and property interests in a
procedural due process context. Those cases are largely based
on the United States Supreme Court holding in Board of Regents
v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). In
Roth, the Court defined constitutionally protected property
interests as "more than an abstract need or desire" for
something. In order for a protected property right to exist,
there must be a "legitimate claim of entitlement," created and
defined by "existing rules or understandings that stem from an
independent source such as state law." Roth, 408 U.S. at 577,
92 S.Ct. at 2709. Other procedural due process cases cited by
the parties explore just what types of state law may create an
entitlement. Those cases conclude that a state law or
regulation expressed in explicitly mandatory language creates a
protected liberty or property interest in the object to which
it is addressed, see Hewitt v. Helms, 459 U.S. 460, 472, 103
S.Ct. 864, 871, 74 L.Ed.2d 675 (1983) and Greenholtz v. Inmates
of Neb. Penal Corr. Complex, 442 U.S. 1, 11-12, 99 S.Ct. 2100,
2105-2106, 60 L.Ed.2d 668 (1979), but that statutes or
regulations which place no substantial limits on the official
discretion exercised in making a decision do not create such
interests, Olim v. Wakinekona, 461 U.S. 238, 249, 103 S.Ct.
1741, 1747, 75 L.Ed.2d 813 (1983).
This inquiry is complicated by the fact that the United
States Supreme Court has never explicitly addressed whether or
to what extent state-created property interests invoke
substantive due process protection. See Reich v. Beharry,
883 F.2d 239, 243 (3d Cir. 1989). In Regents of University of
Michigan v. Ewing, 474 U.S. 214, 106 S.Ct. 507, 88 L.Ed.2d 523
(1985), the Supreme Court addressed a substantive due process
claim based on an implied entitlement stemming both from a
state university's publicly issued pamphlet, and state contract
law. The court went straight to
the merits of the plaintiff's arbitrary action allegation,
noting that it had decided to "accept the [defendant]
University's invitation to `assume the existence of a
constitutionally protectable property right in continued
enrollment.'" Ewing, 474 U.S. at 223, 106 S.Ct. at 512. Justice
Powell, in concurrence, argued that even if the plaintiff did
possess such a state-grounded property right, not every such
right was entitled to substantive due process protection.
Procedural due process interests may be derived from state law,
said Powell, but substantive due process rights are created
only by the Constitution. Ewing, 474 U.S. at 229, 106 S.Ct. at
515 (Powell, J. concurring). Our own circuit has noted Justice
Powell's Ewing opinion in several instances, and has similarly
concluded that what constitutes a property interest in the
substantive due process context may differ from the procedural
one. Reich v. Beharry, 883 F.2d at 243, 244; Mauriello v. Univ.
of Med. & Dentistry of N.J., 781 F.2d 46, 52 (3d Cir.), cert.
denied, 479 U.S. 818, 107 S.Ct. 80, 93 L.Ed.2d 35 (1986). See
also Midnight Sessions, No. 91-1055, 1109, 1140, at 34 (when
court in license-application action found no state-created due
process right for procedural due process purposes, it still
progressed to a substantive due process examination, noting
that defendant did not contend that plaintiff's lack of
property interest for procedural purposes barred substantive
due process claims). However, the Third Circuit has provided no
alternative standard for the substantive due process context.
The regulation applied in this case leaves some, but not
total, discretion to the PREC decisionmakers. Were this a
procedural due process case, the court's inclination would be
to hold that plaintiff did have a state-created property right
stemming from the PREC regulation and entitling him to whatever
protection procedural due process afforded in the factual
context. But, in view of the discussion above, the court will
not decide the entitlement issue here. The court will simply
assume for purposes of this memorandum that plaintiff did have
an entitlement to whatever protection substantive due process
afforded in the circumstances, because the court believes that,
even if plaintiff has this entitlement, he has not established
that the PREC acted in an arbitrary and capricious manner.
When a law seeks to deprive a plaintiff of a fundamental
right, courts examine the action using a strict scrutiny
standard, searching for a compelling or overriding state
interest to which the law is necessary. R. Rotunda, J. Nowak &
J. Young, 2 Treatise on Constitutional Law § 15.4, at 59-60
(1986 & 1991 Supp.). However, when no such right is involved,
as with general economic or social welfare legislation, courts
merely use a rational relationship test. Id. at 60. They
inquire whether the law at issue is rationally related to a
legitimate government interest. See id.; Midnight Sessions, No.
91-1055, 1109, 1140 at 35-36; Malmed v. Thornburgh,
621 F.2d 565, 575-76 (3d Cir.), cert. denied, 449 U.S. 955, 101 S.Ct.
361, 66 L.Ed.2d 219 (1980).
In this case, there is no fundamental constitutional right
involved. At issue is an economic property right. The
challenged state action here is not the enactment of a facially
problematic statute, but the allegedly arbitrary application of
an evaluative administrative regulation.
When an evaluative administrative decision, rather than a
law, is at issue the substantive due process examination is a
more difficult one. One expert notes the following relevant
example and principles:
A more difficult problem is presented . . . when
a rulemaking body . . . delegates to a government
agent or agency the power to make individualized
determinations regarding the treatment of
individual persons. In these cases, there is no
"rule" for courts to test with a substantive due
process standard, although a court may be asked to
review an administrative . . . decision.
For example, a school board may establish a
policy requiring the principal of a public high
school to evaluate the teaching performance of
untenured high school teachers and to refrain from
renewing the contract of any teacher who
is found to be a poor or inadequate classroom
teacher. . . .
A court may be asked to review the substance of
the principal's decision [not to renew contract of
a teacher believed inadequate]. . . . In this
situation, the rationality standard is difficult
to apply because there is no clear rule to be
tested, except for the legislative decision that
principals should have [this] power. . . .
Judges should not feel free to substitute their
judgment regarding the quality of teachers for
that of an administrative agent or agency who has
been delegated power in this area. On the other
hand, the teacher should not be subjected to
arbitrary and capricious decisionmaking. It may be
that the rationality standard can be adapted to
this situation by requiring that the court which
reviews the principal's decision determine only
that there are some facts that could support the
principal's decision and that the decision is not
totally arbitrary and capricious. So long as there
is some factual basis for the exercise of the
professional's judgment, the judiciary should not
overturn that judgment.
R. Rotunda, J. Nowak & J. Young, 2 Treatise on Constitutional
Law, § 15.4, 1991 Supp. at 8.
The United States Supreme Court followed almost exactly this
same approach in Regents of Univ. of Mich. v. Ewing,
474 U.S. 214, 106 S.Ct. 507, 88 L.Ed.2d 523 (1985). In that case, the
plaintiff was an enrollee in a six year program of study
leading to both graduate and a medical degrees. In order to
make it into the final two years of the program, students were
required to pass the NBME, a two day national standardized
test. Id. at 215, 106 S.Ct. at 508. A pamphlet issued by the
school noted that students were given the opportunity to retake
the exam if they failed. Id. at 219, 106 S.Ct. at 510. When Mr.
Ewing failed the NBME, the school Promotion Board voted
unanimously to drop him from the program. Id. at 216, 106 S.Ct.
at 508. In response to a protest by Mr. Ewing, the Board gave
him an opportunity to appear before them and explain why he
should not be dropped. Id. After reconsideration, the Board
reaffirmed its earlier decision. Id.
In his § 1983 action, Ewing presented statistics showing it
was common for students to be allowed to retake the NBME, and
evidence showing that other students with even less proficiency
than he were allowed to retake it. In addition, he offered both
the pamphlet and Board member testimony as additional evidence
showing that students were routinely allowed to have a second
chance at the exam. He lost at trial.
In addressing Ewing's claim that the University had misjudged
his fitness for the program, the Court pointed to a record
demonstrating no bad faith on the part of the defendant, and
conscientious and deliberate decisionmaking on the part of the
faculty Board. The Court observed that
when judges are asked to review the substance of a
genuinely academic decision . . . they should show
great respect for the faculty's professional
judgment. Plainly, they may not override it unless
it is such a substantial departure from accepted
academic norms as to demonstrate that the . . .
committee responsible did not actually exercise
Id. at 225, 106 S.Ct. at 513.
The Third Circuit has followed a similar approach in
addressing evaluative administrative decisionmaking. In a
recent § 1983 case alleging, inter alia, a substantive due
process violation in the refusal to grant a dance hall license,
the Third Circuit noted that
federal courts . . . will largely defer to
legislative judgments rather than substitute their
own judgment in cases involving land use policy
because they will not "undermine the legitimacy of
democratic decisionmaking unless the local
legislative judgment is without a plausible
Midnight Sessions, No. 91-1055, 1109, 1140, at 34 (quoting Pace
Resources Inc. v. Shrewsbury Township, 808 F.2d 1023
, 1031 (3d
Cir.), cert. denied, 482 U.S. 906
S.Ct. 2482, 96 L.Ed.2d 375 (1987)). However, the Third Circuit
noted that "allegations that the government's actions in a
particular case were motivated by bias, bad faith, or improper
motive, such as partisan political reasons or personal reasons
unrelated to the merits of the plaintiff's application, may
support a finding of substantive due process violation."
Id. at 34-35. See also Bello v. Walker, 840 F.2d 1124
1129 (3d Cir.), cert. denied, 488 U.S. 851
, 109 S.Ct. 134
L.Ed.2d 107 (1988) (plaintiff's evidence showed due process
violation where council members opposed to multi-unit housing
and other council members with animosity toward plaintiff's
employee interfered with building plan approval process by
pressuring code officer to deny permits, injecting partisan
political/personal factors unrelated to merits of application
and legislative objective sought to be accomplished); Pace
Resources, Inc. v. Shrewsbury Township, 808 F.2d 1023
(3d Cir.), cert. denied, 482 U.S. 906
, 107 S.Ct. 2482
L.Ed.2d 375 (1987) (plaintiff had no substantive due process
claim where township decisionmakers could have had rational
reasons for decisions first approving development plan, then
disapproving final plans, then rezoning land for agriculture;
court deferred "to legislative judgment unless it can have no
rational, legitimate foundation"); Winsett v. McGinnes,
617 F.2d 996
, 1007-1008 (3d Cir. 1980), cert. denied sub nom.
Anderson v. Winsett, 449 U.S. 1093
, 101 S.Ct. 891, 66 L.Ed.2d
822 (1981) (prisoner's evidence showed due process violation
where decisions denying work release were admittedly based on
public outcry and letters and pressure from state senators
rather than normally used criteria relating to statutory policy
and purpose of the institutional program) Cf. Amsden v. Moran,
904 F.2d 748
, 757 (1st Cir. 1990), cert. denied, ___ U.S. ___,
111 S.Ct. 713
, 112 L.Ed.2d 702 (1991) (regulatory board does
not violate constitutional due process requirements merely by
making decisions "for erroneous reasons" or by making "demands
which arguably exceed its authority"); Creative Environments,
Inc. v. Estabrook, 680 F.2d 822
, 833 (1st Cir.), cert. denied,
459 U.S. 989
, 103 S.Ct. 345
, 74 L.Ed.2d 385 (1982)
(conventional administrative disputes between developers and
agencies over rejection of development plans do not implicate
the federal Constitution, absent fundamental procedural
irregularity, racial animus or the like).
Plaintiff alleges that in its application of the regulation
regarding school director approval the PREC so misjudged
plaintiff's qualifications that its action was arbitrary and
The court must note here that it is puzzled by defendants'
citation to the regulation at 49 Pa.Code § 35.342, which was
approved in February, 1989, well after plaintiff's contact with
the PREC. Perhaps the newer regulation merely codified the
prior practical experience of the PREC. Although this is
likely, it has not been alleged by defendants' counsel, and is
no excuse for not directly addressing the regulation that
existed in the fall of 1988. The court has examined and will
continue to refer to the relevant regulation in 49 Pa. Code §
35.145, as it existed at the time of plaintiff's application.
Section 35.145 of the Pennsylvania Code, the relevant
regulation at the time of plaintiff's application, was quoted
above at Section II(B) of this memorandum. It included a
requirement that the applicant submit letters of reference to
the PREC detailing experience in educational administration and
supervision, teaching and any other activity related to
education, and indicating the location and length of service
for each. From this latter requirement, which evinces a concern
for the type, location and length of each type of occupational
experience required, one may infer that approval by the PREC
was not automatic, that there was allowable discretion
remaining with the PREC with regard to the approval decision.
Hence, while the new regulation does express the discretion
of the PREC more directly by saying that the applicant must
have a combination of experience sufficient
to competently administer a real estate education program (a
decision left to the PREC), the discretion remaining in the
PREC is evident from the older regulation as well. This was
not, as plaintiff implicitly alleges, a case where the PREC
applied a new regulation involving discretion to plaintiff
prior to its passage.
In the fall of 1988, the relevant regulation required
experience for approval as real estate director to have been in
the areas of educational administration and supervision,
teaching and any other activity related to education. 49
Pa.Code § 35.145, 8 Pa. Bull. 36, Sept. 9, 1978, at 2538. The
newer regulation merely expands upon this requirement, citing a
combination of experience in teaching, supervision and
educational administration sufficient to be able to administer
a real estate education program, and giving examples of skills
derived from such experience, such as evaluation of instructor
performance; evaluation of curriculum, analysis of course
examinations, and management of school records and facilities.
49 Pa.Code § 35.342 (1989).
There is no indication that the PREC judged Mr. Black's
qualifications on any basis other than that provided for in the
regulation extant at the time: his experience in educational
administration and supervision, teaching, and any other
education-related field. In fact, the communications from the
PREC to plaintiff on November 10, 1988, and December 14, 1988,
explicitly state that Mr. Black had been found deficient in the
areas of educational supervision and administration.
Plaintiff argues that his qualifications for approval as a
real estate director were so obvious and overwhelming that when
the PREC decided he was not qualified for the position, it
could not possibly have been furthering a legitimate state
interest. In essence, plaintiff argues that the PREC so
misapplied the appropriate regulation that its members could
not possibly have been furthering the legislative purpose
underlying the establishment of the PREC in general and the
regulation in particular. In addition, plaintiff argues that
when the PREC denied him approval, it was acting unlawfully to
further an agenda of channelling real estate students to
non-private real estate schools.
Both parties have generally agreed on the legislative purpose
to be inferred from the provisions of the Real Estate Licensing
and Registration Act, Pa.Stat.Ann. tit. 63, §§ 455.101-455.902
(1968 & 1991 Supp.), which established the PREC: to regulate
the real estate profession in order to protect the public, by
requiring that those in the occupation meet ethical standards
and substantive qualifications. Here, defendant plausibly
infers the further purpose behind the school director approval
regulation as protection of the interests of students who
invest time, money and effort in attending real estate schools,
and protection of the interests of the public in engaging the
services of properly trained real estate professionals.
Plaintiff points to the fact that he was a school board
member for a year, and to his letters of recommendation to show
that he possessed "vast" experience in educational
administration and supervision. However, the court believes
that the PREC acted to further the above legitimate state
interests in making its determination in plaintiff's case.
While plaintiff's letters of reference are clearly laudatory,
they do not strongly demonstrate administrative and supervision
experience: they document observations of his teaching ability,
see letters by Mr. Scott and Ms. Markulics,*fn2 his working
knowledge of real estate brokerage, sales and financing and his
communicative skills as a teacher, see letter by Mr.
Kratz,*fn3 his performance
as an Air Force officer, see letter by Mr. O'Connell,*fn4 and
his skill at planning and budgeting an educational investment
seminar, see letter by Mr. Larmer.*fn5 After reading these
letters, the PREC could rationally have concluded that Mr.
Black did not have adequate experience in the area of
educational supervision and administration to properly run a
real estate school such that students' investment and the
public trust would be well served.
While Mr. Black's experience as a school board member did
constitute educational administrative and supervision
experience*fn6, it cannot be denied that (1) the position
served as Mr. Black's only real educational supervision and
administration experience apart from teaching, (2) it accounted
for only one year's work experience out of a nearly twenty year
career, and had occurred ten years prior to his application,
(3) the PREC could rationally have believed that the position
was not really analogous to the real estate directorship in
responsibilities,*fn7 and (4) the position was not in the
field of real estate. For all of these reasons, the PREC could
rationally have concluded that Mr. Black's term as a school
board member did not provide him with sufficient experience in
educational supervision and administration to run a real estate
school in a manner sufficient to protect the interests of both
students and the public.
Given the legal precedents described above, the court
believes that the PREC decision was not arbitrary and
capricious. Plaintiff has presented absolutely no evidence that
the PREC considered any factors other than those outlined in
the regulation regarding the approval of school directors
extant at the time, factors which are rationally related to the
legislative purpose underlying such decisions. There is no
indication that their decision was not both logical and
deliberative. As this court has demonstrated, there are facts
regarding Mr. Black's qualifications which could plausibly
support a conclusion that he was unqualified. There is no
evidence to suggest that the PREC departed from accepted norms
of decisionmaking in exercising its professional judgment in an
evaluative context. Plaintiff disagrees with the PREC's
conclusion, but, even assuming the PREC's conclusion was
erroneous, it would at most be a misapplication of state law,
and not a constitutional violation.
There is no evidence here that bias, bad faith or improper
motives played any part in the PREC's decision that Mr. Black
was unqualified. Plaintiff has argued that the PREC's decision
was made in an effort to further a PREC agenda to extinguish
private real estate schools, and favor public schools; this
makes little sense to the court. The court has no idea why the
PREC would be interested in closing such private schools in
favor of public ones that the PREC has no authority to even
regulate. Plaintiff's argument here is even less persuasive in
light of the fact that he has offered absolutely no evidence to
Given the above, defendants' motion for summary judgment on
the substantive due process claim will be granted.
D. The Equal Protection Claim.
Mr. Black alleges that his rights to equal protection under
the law were violated
through the PREC's unequal treatment of applicants in the
administration of the director approval regulation.
Specifically, plaintiff points to two director candidates who
lacked sufficient educational administrative and supervisory
experience, but were given provisional approval for a limited
period while they pursued the necessary course work to complete
their qualifications. Plaintiff was not offered this
Plaintiff's only evidence on this point consists of two
letters to the individuals, Mr. Haber and Ms. Smith,*fn8
letters which merely state that provisional approval was
granted, without discussing the specific experience of the
individuals or the considerations involved in the grant. (In
addition, plaintiff has submitted letters which show that
various other applicants including Mr. Lutz, Mr. Petrone, Ms.
LeBarre, Mr. Racciatti, Mr. LoDolce, and Mr. Dellegrotto were
also found unqualified because they lacked educational
administrative and supervision experience, but were not offered
provisional approval. See Exhibits M, N, O, P, Q, R,
The equal protection rubric protects against discriminatory
treatment of similarly situated persons. R. Rotunda, J. Nowak
& J. Young, 2 Treatise on Constitutional Law § 18.2, at 318
(1986 & 1991 Supp.). Mr. Black has not shown to this court's
satisfaction that any of the individuals listed above are
similarly situated with regard to their qualifications for a
directorship position. There is no evidence as to their
qualifications; for all this court knows, they may have
possessed differing degrees of experience in administration and
supervision. But, even assuming the submitted letters are
sufficient to show the individuals were similarly situated,
plaintiff has shown no evidence of a pattern of discriminatory
classification, and no evidence of any discriminatory intent.
There is a noted United States Supreme Court case, which
neither party has cited, but which has become an oft-cited
authority on the issue of equal protection applied in an
administrative decisionmaking context: the case is Snowden v.
Hughes, 321 U.S. 1, 64 S.Ct. 397, 88 L.Ed. 497 (1944). In that
case, plaintiff was one of several Republican primary
candidates for state representative from a particular district
in Illinois. Id. at 3, 64 S.Ct. at 398. In this particular
election, it had been arranged that two candidates were to be
nominated from the Republican Party and one from the Democratic
Party. Only three representatives were to be elected in this
election, so each Republican primary winner could count on
election. Id. After the primary voting, the county Board was to
complete certificates of nomination for the winners to be
included on the ballot. Id.
The primary voting ended, and plaintiff had received the
second highest number of votes for the Republican nominations.
Id. State law required that the candidates with the highest
number of votes be nominated. Id. The Board certified the vote
count, but only filed certification for one Republican nominee
from the district, excluding the plaintiff. Id. at 4, 64 S.Ct.
at 399. The plaintiff filed suit; one of his allegations was
that the Board's failure to file the certificate had deprived
him of the nomination and election, denying him equal
protection of the laws.
The Supreme Court denied the plaintiff's equal protection
claim on the grounds that he had not disclosed any
discriminatory purpose or consequence of the allegedly improper
action, and that plaintiff had not shown that defendant's
conduct with regard to the plaintiff was affected or related to
the certification of any other nominee. Id. at 10, 64 S.Ct. at
402. The case is best known for these comments by the Court:
The unlawful administration by state officers of
a state statute fair on its face, resulting in its
unequal application to those who are entitled to
be treated alike is not a denial of equal
protection unless there is shown to be present in
it an element of intentional or purposeful
discrimination. This may appear on the face of the
action taken . . . or it may only be shown by
extrinsic evidence showing a discriminatory design
one individual or class over another, not to be
inferred from the action itself. . . . But a
discriminatory purpose is not presumed . . . there
must be a showing of "clear and intentional
Id. at 8, 64 S.Ct. at 401. Without a showing of purposeful
discrimination, the Court concluded, plaintiff's problems
remained a matter of state, and not federal concern.
Various federal courts have cited the Snowden decision.
Petrone v. City of Reading, 541 F. Supp. 735 (E.D.Pa. 1982)
bears some resemblance to the case at bar. In Petrone, the
plaintiff was the purchaser of a pizza business franchise, who
submitted building plans to the city for cosmetic alteration of
his building. Id. at 736. The city took ten weeks instead of
the normal seven days to approve the plans. Id. Plaintiff made
his alterations and got the necessary approval from fire and
building inspection authorities, but the city refused to
approve an occupancy permit, without additional alterations
being made. Id. The business' opening was delayed for eight
months, and plaintiff eventually lost the franchise.
In the meantime, a competitor pizza business opened next door
to the plaintiff. Id. at 737. The city allowed it to renovate
without obtaining the myriad of licenses and inspection
approvals that were required of plaintiff before construction.
Id. In addition, the city allowed the competitor to conduct
business without an occupancy permit. Id.
When plaintiff complained, the city reacted by passing a
resolution requiring that the competitor bring its business up
to code. Id. When this did not occur, the city passed a second
resolution containing a scheduled timetable for code
compliance; the schedule was never enforced, and at the time of
the litigation the competitor's building was still not up to
The Petrone court denied the plaintiff's equal protection
claim, citing Snowden. Plaintiff had shown no actual
discriminatory purpose or pattern to the city's unequal
application of its regulations: he had failed to demonstrate
that the strict code enforcement he suffered was
in any way "affected or related to" the more lax
code enforcement accorded his competitor. In fact,
the complained-of conduct antedates the entry of
plaintiff's competitor into the business by almost
three months. As such, it seems unlikely that
plaintiff could . . . allege that the strict
enforcement which he suffered was "affected by"
the existence of this competitor.
Id. at 739. Other courts have followed a similar approach. E. &
T. Realty v. Strickland, 830 F.2d 1107, 1112-1113 (11th Cir.
1987), cert. denied, 485 U.S. 961, 108 S.Ct. 1225, 99 L.Ed.2d
425 (1988) (plaintiff's showing of arbitrary and irrational
difference between results of two particular applications of
facially neutral statute not enough to show violation of equal
protection. If classification challenged was created on face of
a statute, plaintiffs could prevail by showing no rational
relationship to state purpose, but with neutral legislation
unequally applied, no violation would be shown absent proof of
discriminatory intent); Northeast Jet Center, Ltd. v.
LeHigh-Northampton Airport Authority, 767 F. Supp. 672, 675,
677-78 (E.D.Pa. 1991) (court found plaintiff airport
maintenance company met Snowden test on claim of equal
protection stemming from Authority's application of existing
regulations to it and not to any others similarly situated. The
evidence showed particular incidents of defamation,
interference with business relationships, interference with
license approvals, and defamatory statements made by the
Authority, all done with motive of forcing plaintiff to sell
its business to the Authority at depressed price.)
At the time of plaintiff's application (and the applications
of the other individuals listed by plaintiff), provisional
approval was not an option explicitly offered by the relevant
regulation administered by the PREC.*fn9 The PREC found all
for director listed by plaintiff to be unqualified for the real
estate school director position. However, it temporarily
relieved two of the candidates from complying with the
regulatorily required qualifications by granting provisional
Plaintiff has submitted no evidence that the PREC acted to
discriminatorily classify candidates, that its decisions
followed any discriminatory pattern, or that the PREC acted
with any type of discriminatory purpose or intent. Plaintiff
has offered no evidence or explanation relating the failure of
the PREC to offer provisional approval to himself and others to
the PREC's offer of such approval to the two listed
candidates.*fn10 Plaintiff has not met the Snowden test. He
has simply submitted a list of applicants who were deficient in
qualifications: two of them were granted provisional approval,
and six of them were not offered that approval.
For the above reasons, summary judgment on the equal
protection claim will be granted to defendants.