It is impossible to determine whether Shelton would survive if the State injunction were lifted; however, there is little question but that Shelton cannot long exist if the state court injunction remains in effect.
In addition to Shelton's future prospects, its present students have been affected by the state court injunction. At the graduation in May, 1980, four students who had completed four years of study at Shelton in Florida and New Jersey were denied their degrees. Shelton's annual commencement exercise is scheduled for May 23, 1981. On that date eight students who have successfully completed four years of study at the College and who have been determined by the College to possess the religious and moral qualifications requisite for graduation will be eligible to be awarded Shelton's Bachelor of Arts in Biblical Literature, Elementary Education, History or English. By reason of the court decree, of course, these indicia of their work at Shelton cannot be conferred upon them.
The question must now be answered whether the federal plaintiffs are entitled to the relief they seek.
Conclusions of Law
First I shall direct myself to the grounds which the federal defendants (whom I shall hereinafter refer to as the "State Board") advance as comity reasons why the application should not be granted.
Once again the State Board urges that Younger abstention is called for. This argument has been disposed of by the Court of Appeals. There the majority opinion concluded that Younger is not applicable at all because the parties in the federal action are substantially different from the parties in the state action. The minority opinion concluded that Younger is applicable but that a Younger -based exception supported the limited injunctive relief previously granted in this Court. If the federal plaintiffs are correct in their view that New Jersey may not constitutionally apply its licensing requirement to Shelton, I conclude that the same Younger -based exception would be applicable to the present application.
The State Board also urges that the federal plaintiffs have fully litigated both their state claims and their federal claims in the state court, and that, having lost there on all claims, they cannot come back to the federal court for a second bite at the apple.
It is unnecessary to decide whether Shelton took the steps required in the case of a Pullman abstention to reserve its rights in the state court litigation to have its federal claims heard by the federal court, see England v. Louisiana State Board of Medical Examiners, 375 U.S. 411, 84 S. Ct. 461, 11 L. Ed. 2d 440 (1964). Quite likely the reasoning of the Court of Appeals majority opinion would lead to the conclusion that reservation or non-reservation of federal rights by the state court defendants would not affect the rights to a federal forum of the federal plaintiffs who are not parties to the state court action. In any event, this is a question which will not arise until the state court proceedings have been completed through final appeal, and then only if there still remains a federal question.
We are not at that stage now. We are dealing simply with an application for interim relief pending completion of the state proceedings. The Court of Appeals specifically recognized that such relief might be required and, if so, that it could appropriately be granted, Slip Op., 39-40.
The criteria to be applied in determining whether a preliminary injunction should issue are spelled out in the Court of Appeals opinion:
... 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: