For affirmance -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For reversal -- None. The opinion of the court was delivered by Weintraub, C.J.
Shelton College (herein Shelton) attacks the constitutionality of our statute relating to the granting of baccalaureate degrees. The vehicle for this attack is an appeal to the Appellate Division from so much of a resolution of the State Board of Education "as purports to limit the duration of the authority of Appellant to confer the degree of Bachelor of Arts to September 15, 1966," which date was extended by further resolution to June 30, 1967. We certified the appeal before argument in the Appellate Division.
The record consists only of the notice of appeal and the resolutions already mentioned. The first resolution, dated December 13, 1965, recites the following: that on June 2,
1965 the State Board of Education resolved not to grant approval to Shelton of its practice of conferring degrees; that a hearing begun on July 21, 1965 was interrupted by legal action initiated by Shelton with the result that the school year 1965-66 got under way; that upon request Shelton submitted a statement of its current condition; that a further investigation revealed compliance with some of the standards which theretofore had not been met; that a question continues as to compliance with other standards described in the resolution; but nonetheless in the interest of the students then enrolled and in the light of the problems attendant upon a disruption of the college in mid-year, approval was given of the practice of conferring the degree of bachelor of arts, such approval to continue to September 15, 1966. As we have already noted, the State Board of Education adopted a further resolution (dated June 27, 1966) which, after reciting a later annual evaluation of the college and the Board's finding that certain specified standards had not yet been met, nonetheless concludes the authority to bestow the degree of bachelor of arts should be extended until June 30, 1967 upon, however, 12 stated conditions to be met by Shelton not later than May 1, 1967.
The record is no more revealing than the foregoing recital of it. Nevertheless Shelton seeks by way of an appeal from a portion of the first resolution to have us strike down a statute designed to control the granting of the bachelor degree. Shelton adduced no proof to support the constitutional attack. Nor did the State offer proof in that regard, perhaps because the grounds of attack were first stated in the brief the College filed on this appeal to the Appellate Division. In these circumstances we should apply liberally the presumption in favor of constitutionality and the supporting doctrine that where constitutionality depends upon the factual setting, the courts should assume sufficient facts do exist if it is at all reasonable to indulge in such an assumption.
Before turning to the specific challenges, we will summarize the statute and its history.
Prior to 1889 the power to confer degrees had been granted expressly in special acts of incorporation. In that year a statute (c. 116), now N.J.S.A. 18:20-2, was adopted empowering any college founded under a general act of our Legislature to confer degrees other than a degree authorizing the practice of medicine, dentistry, or law.
In 1912 the Legislature adopted c. 315, entitled "An Act to prescribe the terms and conditions under which degrees may be conferred by any school or institution of learning within this State." That statute prohibited the conferring of a degree "until the terms and conditions of such degree * * * shall first be submitted to and approved of by the State Board of Education," with the proviso that the statute shall not apply to a school "established and conducted within this State for a period of twenty-five years prior to the passage of this act." This 25-year exemption excluded from the statute's ambit colleges formed prior to the adoption of the 1889 act already referred to, and thus excluded (as we will point out later in discussing Shelton's claim that the statute denies equal protection of the law) those institutions which had received the power to confer degrees under special acts of incorporation.
In 1916 the Legislature adopted c. 152, entitled "An Act to prohibit the conferring by any school * * * of degrees based upon proficiency or learning, without the approval of the State Board of Education * * *." This act superseded the 1912 act just referred to, the bill containing this express parenthetic note: "(In place of Chapter 315, P.L. 1912; P.L. 1912, pp. 554, 555)." Section 2 of the 1916 statute rephrased the substance of the 1912 statute, including the 25-year exemption. In addition to thus continuing the 1912 requirement for "approval" of the basis for the conferring of degrees, the 1916 statute innovated in section one the further requirement of a "license" for all institutions which confer degrees, without any exemption. We note also, for later reference, the fact that section 8 of the 1916 statute expressly stated that "If any provision of this act shall be held to be
unconstitutional or invalid, such unconstitutional or invalid provision shall be considered severable from the remainder of this act, and shall be exscinded therefrom.
The "license" provision of the 1916 statute now appears in N.J.S.A. 18:20-5:
"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, proficiency in learning, or scientific arts or methods, within this state, until it shall have filed a certified copy of its certificate of incorporation with the state board of education, and obtained from such state board a license to carry on the business under such rules and regulations as the state board may prescribe."
N.J.S.A. 18:20-6 authorizes a suit by the Attorney General to restrain an unlicensed operator, and N.J.S.A. 18:20-7 provides that a license may be revoked by the State Board of Education.
The degree "approval" provision of the 1912 and 1916 statutes now appears in N.J.S.A. 18:20-8 and reads:
"No school, corporation, association or institution of learning conducted within this state, nor any officer or member thereof, in recognition of the attainment or proficiency of any person in pursuing or graduating from any course or courses of study, arts, or learning conducted by it or another such school, corporation, association or institution, shall admit any such person to the grade of a degree by conferring, or participating in conferring, any degree upon any person without first submitting the basis or conditions thereof to the state board of education, and obtaining its approval thereof, and of the practice of conferring and bestowing such degrees.
Nothing contained in this section shall apply to any school, corporation, association or institution of learning, or officer or member thereof, which was established and conducted within this state on March seventeenth, one thousand eight hundred and ninety-one, and was then in the course of admitting persons to the grade of a degree by conferring the same upon them in recognition of their attainments or proficiencies, nor to any school conducted under the public school system."
We note that in the Revised Statutes the revisers, in using the year 1891 in the exempting provision, calculated the 25-year
period from 1916 rather than 1912, upon which circumstance we will comment later. N.J.S.A. 18:20-9 provides for the revocation of the "approval" given under N.J.S.A. 18:20-8.
Other sections impose penalties for violations of the licensure and "approval" provisions. See N.J.S.A. 18:20-10 and 11.
In sum, then, Shelton challenges the constitutionality of a statute (1) which requires all degree-conferring colleges to obtain a license and (2) which requires approval of the basis and conditions for conferring a degree except as to institutions within the 25-year exemption.
First Shelton says it is beyond the power of government to regulate in any way the award of the bachelor degree, and this because of the right of free speech guaranteed in Art. I, para. VI of the State Constitution and the First Amendment to the United States Constitution.
It should be noted that the resolution in question does not limit in any way what Shelton may teach. Rather the resolution concerns the power to confer the bachelor degree. Hence Shelton's thesis, logically extended, must be that everyone has the absolute power to bestow degrees evidencing higher educational achievement, no matter how remote the course of instruction may be from the values the educational degree is commonly thought to hold. It contends that society may protect itself from the obvious evils of that proposition only by relying upon private evaluations of colleges, such as those made by the regional accreditation associations which now pass upon the standing of colleges on a voluntary basis.
Shelton points to no authority to support its position. The history of the subject runs strongly the other way. The public interest in higher education has been evident since medieval times. Selden, Accreditation: A Struggle over Standards
in Higher Education (1960), pp. 8-9.*fn1 Today in most countries ministries of education control educational standards. Selden, op. cit., supra, at p. 12; Accreditation in Higher Education (U.S. Dept. of Health, Education, and Welfare 1959), p. 3; Reid, American Degree Mills (1959), p. 19. The story in the United States has been uniquely different, for here, overall, government has played a modest role. The result has been a chaotic scene with which private interests have had to contend on a wholly cooperative basis. There emerged a system of regional associations which continue to set standards and accredit institutions. For the history and description of this program, see the references just ...