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May 13, 1993


The opinion of the court was delivered by: ROBERT W. SWEET

 Sweet, D. J.

 The Defendants State Education Department of the State of New York (the "State"), its Commissioner (the "Commissioner") and certain of its officers and employees (collectively "SED") have moved pursuant to Rule 56, Fed. R. Civ. P., for an order granting summary judgment against the Plaintiffs, New York State Association of Career Schools, Inc., NYS Beauty Schools Association, Inc., and certain schools that are members of the two organizations (collectively "NYSACS").

 SED's motion was taken on submission on January 6, 1993, and for the reasons set forth below, the motion is granted.

 The Facts and Prior Proceedings

 The facts and prior proceedings are fully set forth in the prior opinions of this Court, familiarity with which is presumed. See New York State Ass'n of Career Sch., Inc. v. State Educ. Dep't, 142 F.R.D. 403 (S.D.N.Y. 1992) ("NYSACS II"); New York State Ass'n of Career Sch., Inc. v. State Educ. Dep't, 749 F. Supp. 1264 (S.D.N.Y. 1990) ("NYSACS I").

 Following NYSACS II, granting NYSACS's motion to amend its complaint ("Original Complaint"), NYSACS filed an amended complaint ("Amended Complaint") on June 25, 1992. In the Amended Complaint, NYSACS narrowed its focus to challenge only the course and curriculum review provisions of Chapter 887 of the Laws 1990, which amended Education Law § 5002(4) and (5) (McKinney 1981 & Supp. 1992) (the "Statute"). Section 5002(4) sets forth the criteria and the procedures to be employed in the process of approving proposed courses and curricula of licensed private schools and registered business schools, while § 5002(5) does the same for the curriculum reapproval process.

 The gravamen of the Amended Complaint, like that of the Original Complaint, is that these review provisions violate the proprietary schools' First Amendment rights of freedom of speech and association, the Fourteenth Amendment's equal protection and due process clauses, comparable provisions of the New York State Constitution, and of the Civil Rights Act, 42 U.S.C. § 1983. However, the Amended Complaint's allegations are distinguishable from those set forth in the Original Complaint insofar as the former attack the review provisions on the grounds that they are content-biased prior restraints imposed on NYSACS's First Amendment rights under color of statute, and that they are part of a scheme which fails to provide adequate procedural safeguards to protect those rights.

 In NYSACS I, this Court held that NYSACS's First Amendment claim as set forth in its Original Complaint was defective and could not support the request for injunctive relief because it erroneously equated the regulation of schools with the regulation of speech. See 749 F. Supp. at 1272; NYSACS II, 142 F.R.D. at 405-406. The specific regulations challenged by NYSACS in the Original Complaint "only dealt with a school's curriculum to the extent the law prohibited a [New York Education Law] § 5001 school from offering the types of courses licensed to § 5002 schools," which are generally business-type courses. Id. at 405. NYSACS I held that regulations that distinguished between § 5001 and § 5002 schools are content neutral and unrelated to the suppression or promotion of ideas or view points for First Amendment purposes. See 749 F. Supp. at 1272.

Although facial challenges of a licensing or regulatory scheme are generally disfavored, they may be raised in a First Amendment context where the licensing scheme vests unbridled discretion in the decisionmaker and where the regulation is challenged as overbroad. A licensing scheme has the potential to permit suppression of constitutionally protected speech where there are inadequate procedural safeguards to ensure prompt issuance of the license.

 Id. (citations and internal quotation marks omitted). Thus NYSACS's First Amendment claim was deemed defective because its thrust was

not that there are inadequate procedural safeguards to ensure the prompt issuance of a license or that the risk of delay in every case will equal a suppression of ideas, but rather that there are multiple regulations governing the licensing of NYSACS.


 In granting NYSACS's motion to amend the Original Complaint, this Court observed that the Amended Complaint did address the issue of content-biased curriculum review:

In the proposed complaint, the Plaintiffs would allege that a school cannot be licensed until the content of its curriculum is approved, and that one of the criteria employed is that its "content will enable the student to develop those skills and competencies required for employment in the occupational area for which the curriculum was developed."

 NYSACS II, 142 F.R.D. at 405.

 NYSACS contends that the constitutional claim asserted in the Amended Complaint falls squarely under the First Amendment. Therefore, while NYSACS explicitly alleges violations of the due process and equal protection clauses of the Fourteenth Amendment, it states that it is not asserting an independent Fourteenth Amendment claim. Rather, the Fourteenth Amendment is invoked "solely for the reason of having the First Amendment rights be enforceable against defendants through the 14th Amendment." Pls.' Opp. Mem. at 2.


 I. Rule 56 Standards for Summary Judgment

 The Rule 56 motion for summary judgment is "an integral part" of the Federal Rules of Civil Procedure and facilitates the overall purpose of the Rules as stated in Rule 1, namely, "to secure the just, speedy and inexpensive determination of every action." Celotex Corp. v. Catrett, 477 U.S. 317, 327, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). A motion for summary judgment may be granted only when there is no genuine issue of material fact remaining for trial and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c); Silver v. City Univ. of New York, 947 F.2d 1021, 1022 (2d Cir. 1991).

 The Second Circuit has repeatedly noted that "as a general rule, all ambiguities and inferences to be drawn from the underlying facts should be resolved in favor of the party opposing the motion, and all doubts as to the existence of a genuine issue for trial should be resolved against the moving party." Brady v. Town of Colchester, 863 F.2d 205, 210 (2d Cir. 1988) (citing Celotex v. Catrett, 477 U.S. 317, 330, 91 L. Ed. 2d 265, 106 S. Ct. 2548 n.2 (1986) (Brennan, J., dissenting) and Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970)); see United States v. Diebold, Inc., 369 U.S. 654, 655, 8 L. Ed. 2d 176, 82 S. Ct. 993 (1962); Cartier v. Lussier, 955 F.2d 841, 845 (2d Cir. 1992); Burtnieks v. City of New York, 716 F.2d 982, 983-84 (2d Cir. 1983). If, when "viewing the evidence produced in the light most favorable to the nonmovant . . . a rational trier could not find for the nonmovant, then there is no genuine issue of material fact and entry of summary judgment is appropriate." Binder v. Long Island Lighting Co., 933 F.2d 187, 191 (2d Cir. 1991).

 When a motion for summary judgment is made and the nonmoving party will bear the burden of proof at trial, "Rule 56 permits the moving party to point to an absence of evidence to support an essential element of the nonmoving party's claim." Bay v. Times Mirror Magazines, Inc., 936 F.2d 112, 116 (2d Cir. 1991). However, if the moving party is still entitled to judgment as a matter of law after all the facts alleged by the nonmoving party are resolved in his favor as true, then any remaining factual disputes are neither "genuine" nor "material" and will not prevent the court from granting the motion. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986) ("a material fact is 'genuine' . . . if the evidence is such that a reasonably jury could return a verdict for the nonmoving party"). Thus, the nonmovant "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Electrical Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986).

 Finally, the court must look to the substantive law to determine which facts are "material," to wit, disputed facts that might affect the outcome of the suit under governing law. See Anderson, 477 U.S. at 248. It follows, then, that "entry of summary judgment indicates that no reasonable jury could return a verdict for the losing party." Coach Leatherware Co. v. AnnTaylor, Inc., 933 F.2d 162 (2d Cir. 1991).

 II. Standards for a First Amendment Claim

 A. The O'Brien Test

 In United States v. O'Brien, 391 U.S. 367, 376-77, 20 L. Ed. 2d 672, 88 S. Ct. 1673 (1968), the Supreme Court set forth the test to be employed by courts to analyze government regulation of conduct that may have an expressive element. As this Court recently discussed in Loper v. New York City Police Dep't, 802 F. Supp. 1029 ...

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