and 28 U.S.C. §§ 2201 and 2202, should the Court hear the matter in light of the fact that prior to the commencement of this action the State Board of Higher Education instituted a proceeding in the State Courts in which the same issues can be raised?
1. Whether the Court should hear the case:
If under prevailing law the Court should decline to hear this case, there would be no need to address the first three legal issues, and, therefore, the Court's authority to hear the case will be considered first.
The defendants advance two preliminary reasons why the complaint should be dismissed without consideration on the merits. They argue that the injuries alleged by plaintiffs are purely hypothetical and do not present a case or controversy, requiring dismissal of the complaint under the principles set forth in United Public Workers v. Mitchell, 330 U.S. 75, 67 S. Ct. 556, 91 L. Ed. 754 (1947). They also argue that the same issues which plaintiffs raise in this case were raised or could have been raised in Shelton College v. State Bd. of Ed., supra, and that, therefore, plaintiffs are barred from relitigating them in the present action.
Neither point is well-taken. As far as each plaintiff is concerned, the constitutional issues presented are not abstractions. They have immediate, concrete impact upon them. There is nothing hypothetical about the fact that if defendants' actions stand: (i) the church entities will lose a college which they have sponsored; (ii) the college itself will be closed, perhaps forever, and effectively prevented from teaching its doctrines and its version of the liberal arts and natural sciences; (iii) the student plaintiffs will be unable to attend an institution, the teachings of which are in accord with their beliefs and which constitutes a community of believers whose ways of life are different from those of students attending secular colleges; (iv) the parent plaintiffs will no longer have available a college at which their children can be educated in an environment which is compatible with their religious beliefs; and (v) the teacher plaintiff will lose the institution at which he can teach in accordance with his faith.
For these people the threat is far from speculative. If the preliminary injunction issued by the State Court stands, on December 22, 1979, all of those events will take place, and all of those injuries will have been incurred.
As for the defendants' Res judicata and collateral estoppel contentions, while it is clear that even in a § 1983 Civil Rights case the doctrines may bar relitigation in a Federal Court of issues already decided in a State Court, Roy v. Jones, 484 F.2d 96 (3d Cir. 1973), these doctrines do not affect the present case.
In the first place, in the Shelton College case, the New Jersey Supreme Court did not have occasion to address the first and third legal issues recited above, namely, whether the State Board can compel Shelton College to stop teaching and advertising and whether Shelton College can grant degrees under a Florida license. They simply were not issues in that case. In fact, a fair reading of the 1976 case compels the conclusion that the New Jersey Supreme Court was of a view that the State Board's power was limited to licensing or not licensing a college to grant degrees, and that the Board does not have the power to order any institution to stop teaching, an order which would offend every constitutional concept of free speech. The 1967 case involved very different facts and very different claims.
Further, the plaintiffs in the 1967 New Jersey case and in the present case are different. Only Shelton College was a plaintiff in the earlier matter. In the matter at hand, there are also church bodies, students, parents and a teacher, each asserting important constitutional rights of which they cannot be deprived by reason of a ruling in a case to which they were not parties and in which they had no opportunity to be heard. Parklane Hosiery Co. v. Shore, 439 U.S. 322, 99 S. Ct. 645, 58 L. Ed. 2d 552 (1979); See New Jersey Ed. Ass'n. v. Burke, 579 F.2d 764, 774 (3d Cir. 1978), Cert. denied, 439 U.S. 894, 99 S. Ct. 252, 58 L. Ed. 2d 239 (1978).
Thus plaintiffs are not barred in this proceeding by the doctrines of Res judicata and collateral estoppel.
The State Board also urges that this action should be dismissed as a matter of comity and in recognition of principles of federalism since there is a pending State Court proceeding started before this action was commenced in which the issues raised here can be resolved. Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746, 27 L. Ed. 2d 669 (1971).
The State Board further urges that this matter should be dismissed or at least held in abeyance because a constitutional issue may depend upon a State court's interpretation of the licensing statutes and thus the State courts should resolve those interpretive questions before this Court acts. Railroad Comm'n v. Pullman Co., 312 U.S. 496, 61 S. Ct. 643, 85 L. Ed. 971 (1941).
In arguing this position, the State Board has presented a contrived description of what this case is all about. It proceeds on the assumption that the only substantive issue before the Court is legal question No. 2 set forth above: Whether the State Board may forbid a church-oriented college from granting a degree. For example, the State Board brief defines the situation as follows:
It must be kept in mind that the degree-granting privilege is the only basis for the State's exercise of any authority over the college. See NJSA 18A:68-3; NJSA 18A:68-6. The Board of Higher Education does not contend that it may prevent Shelton College, or any other religious institution, from disseminating its religious beliefs or from educating its younger generation. It is only when that educational process results in the granting of a degree in which the State can legitimately assert genuine secular concerns that the responsibility of the State to protect the public interest is invoked. (P. 5.)
Of course, this is not the situation presented to this Court. The State Board not only seeks to forbid the granting of degrees, it seeks to stop all teaching at Shelton College and to prevent the College from informing its co-religionists and others about the existence and purposes of the College. Already the College has been forbidden to advertise itself, an appalling infringement of free speech, and, unless the Court acts, on December 22, 1979 the College, its teachers and its church sponsors will be forbidden to teach, an appalling infringement of the rights of free speech and the free exercise of religion.
I have concluded that this case in part is within the exceptions to the Younger and Pullman doctrines. However, an analysis of defendants' position, assuming their portrayal of the case were accurate, would be useful in explaining the relief which will be ordered at the conclusion of this proceeding. If one were to accept the State Board's contention that all that is involved in this case is a question whether the State Board has the power to license Shelton to grant degrees and if there were no attempt to shut down this teaching institution, it is my opinion that both the Younger and the Pullman doctrines would be applicable.
It is the plaintiffs' fundamental position in this case that Shelton College, a religious institution, cannot be made subject to the degree licensing requirements of the New Jersey statutes and regulations. They argue, with some persuasiveness, that implementation of those statutes and regulations involve the State so extensively in religious matters that the First and Fourteenth Amendments' free speech and free exercise of religion rights are unconstitutionally impaired, citing such cases as Catholic Bishop of Chicago v. NLRB, 559 F.2d 1112 (7th Cir. 1977), Aff'd, 440 U.S. 490, 99 S. Ct. 1313, 59 L. Ed. 2d 533 (1979); Walz v. Tax Commission, 397 U.S. 664, 90 S. Ct. 1409, 25 L. Ed. 2d 697 (1970); Murdock v. Pennsylvania, 319 U.S. 105, 63 S. Ct. 660, 87 L. Ed. 1125 (1943); Grace Brethren Church, et al. v. State of California, et al., (Sept. 21, 1979); Caulfield v. Hirsch, 95 L.R.R.M. 3164 (E.D.Pa. Civ. No. 76-279, 1977).
Plaintiffs thus seek protection in the Federal Courts of rights asserted under the United States Constitution, as they are entitled to do under § 1983. When a plaintiff asserts rights under that statutory provision, a court is not barred by 28 U.S.C. § 2283 from enjoining state court proceedings if such an injunction is necessary to secure such rights. Mitchum v. Foster, 407 U.S. 225, 92 S. Ct. 2151, 32 L. Ed. 2d 705 (1972). However, even though a Federal Court is not deprived of jurisdiction to issue an injunction in such a case, it is still required to consider "the principles of equity, comity, and federalism that must restrain a federal court when asked to enjoin a state court proceeding". 407 U.S. at 243, 92 S. Ct. at 2162.
The State Board in the present case instituted its proceedings in the State Courts before plaintiffs came into this Court. The constitutional questions which plaintiffs raise here can be raised in the State Court. Although Younger counsels Federal Court abstention when there is a pending state Criminal proceeding, the line of cases which has followed Younger compels the conclusion that a Federal Court must also abstain when there is pending a state Civil proceeding in which the state has an important interest. This line of cases is traced in detail in the most recent of such Supreme Court cases, Moore v. Sims, 442 U.S. 415, 99 S. Ct. 2371, 60 L. Ed. 2d 994 (1979).
That being the state of the law, if the State Board were doing no more than simply suing in the State Courts to prevent Shelton College from granting degrees until it qualifies for a license, this Court should abstain on the authority of Younger and its progeny, E. g., State of N. J. v. Chesimard, 555 F.2d 63 (3d Cir. 1977).
Turning to the Pullman doctrine, in the normal case, a Federal Court should refrain from deciding Federal constitutional issues until related state court issues have first been adjudicated in the state courts. Again, if the State Board were doing nothing more than seeking to prevent Shelton College from granting degrees, the criteria which the Court of Appeals for the Third Circuit has held bring the Pullman doctrine into play would exist. D'Iorio v. County of Delaware, 592 F.2d 681 (3d Cir. 1979).
First, there are uncertain issues of State law underlying the Federal constitutional claims brought by Shelton College. At this point it is impossible to predict how the New Jersey Supreme Court, the ultimate arbiter of New Jersey law, will interpret the statutes and regulations governing the licensing of colleges when applied to a religious institution such as Shelton College.
Second, these State law issues could be resolved in a manner that would obviate the need to adjudicate the constitutional claims. After all, Shelton College functioned without difficulty for a number of years when it was licensed under almost identical statutes to grant degrees in New Jersey.
Third, an erroneous decision by this Court of State law might well be disruptive of New Jersey's policies which are implemented by licensing institutions of higher learning.
The fact of the matter is, however, that the State Board is not simply seeking to deny Shelton College the right to grant degrees. It is seeking as of December 22, 1979, to prevent Shelton College from engaging in any teaching activities whatsoever. It is seeking to force the disbanding of a community of religious believers who have assembled to teach and study in accordance with their faith and conduct their lives as required by that faith. This places the situation within an exception to the Younger doctrine and it requires a Federal Court to decline to invoke the Pullman doctrine upon equitable principles.
The United States Supreme Court has consistently recognized that the Younger doctrine of abstention will not be applied in extraordinary circumstances where there will be great, immediate and irreparable harm if the Federal Court does not intervene. Moore v. Sims, supra; Kugler v. Helfant, 421 U.S. 117, 95 S. Ct. 1524, 44 L. Ed. 2d 15 (1975); Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S. Ct. 1200, 43 L. Ed. 2d 482 (1975).
In the case of the Pullman doctrine, once it is determined that the case is within the general ambit of the doctrine, a weighing process must take place to determine if the doctrine should be applied. Frederick L. v. Thomas, 578 F.2d 513, 517 (3d Cir. 1978). As will be discussed below, the rights which the proposed action of the State Board would destroy are so important and the threatened injury to those rights so irretrievable, the Younger and Pullman doctrines must give way.
2. The Power of the State Board to Prohibit Shelton College to Teach:
We now turn to the first question of law set forth earlier, whether the State Board may compel Shelton College to cease advertising and teaching.
Highest in the pantheon of civil rights guaranteed by the United States Constitution are the right to be free of laws prohibiting the free exercise of religion or abridging freedom of speech. The degree of protection to which these rights are entitled was spelled out in detail in Wisconsin v. Yoder, 406 U.S. 205, 92 S. Ct. 1526, 32 L. Ed. 2d 15 (1972).
There, in violation of Wisconsin's compulsory school attendance laws, which required a child's school attendance until age 16, members of the Conservative Amish Mennonite Church withdrew their children from public schools at age 14 and educated them in accordance with their beliefs and practices. Notwithstanding the substantial State interest in the secondary education of its children, the United States Supreme Court held that application of the law to that religious sect violated the sect's rights under the Free Exercise Clause of the First Amendment made applicable to the State by the Fourteenth Amendment.
The State of New Jersey has far less interest in regulating the colleges attended by young persons who have passed the age of compulsory school attendance. The following quotations from Yoder, therefore, apply with even greater force to Shelton College and the actions which the State Board seeks to take.
Providing public schools ranks at the very apex of the function of a State. Yet even this paramount responsibility was, in Pierce, made to yield to the right of parents to provide an equivalent education in a privately operated system. There the Court held that Oregon's statute compelling attendance in a public school from age eight to age 16 unreasonably interfered with the interest of parents in directing the rearing of their offspring, including their education in church-operated schools. As that case suggests, the values of parental direction of the religious upbringing and education of their children in their early and formative years have a high place in our society. (Citations omitted.) Thus, a State's interest in universal education, however highly we rank it, is not totally free from a balancing process when it impinges on fundamental rights and interests, such as those specifically protected by the Free Exercise Clause of the First Amendment, and the traditional interest of parents with respect to the religious upbringing of their children so long as they, in the words of Pierce, "prepare (them) for additional obligations'. At 213, 92 S. Ct. at 1532.