On Tuesday, September 29, judges on the Appellate Division’s Part D will hear oral argument in In the Matter of the Applicability of Certain Statutes and Regulations to Rutgers, the State University of New Jersey. The issue is whether New Jersey’s Secretary of Higher Education wrongly determined that Rutgers is obligated to comply with regulations promulgated by the Secretary in 2022 that require colleges and universities subject to the Secretary’s jurisdiction to go through a process of having their programmatic decisions approved by the Secretary.

Rutgers, the appellant, contends that Rutgers is not subject to the regulations because three different statutes exempt it from the regulations. Rutgers also asserts that one of those statutes codifies a consummated contract between Rutgers and the State, and that enforcing the regulations would violate the Contracts Clauses of the United States and New Jersey Constitution. Finally, Rutgers concedes that though it has long submitted new academic degree proposals to the State for review under a different regime, Rutgers did that purely as a matter of comity and that did not waive Rutgers’s ability to object to having to comply with the 2022 regulatory scheme.

The State argues that Rutgers is subject to the 2022 regulations and that none of the three statutes cited by Rutgers exempts Rutgers from those regulations. Moreover, by the time the first of those statutes became law in the 1940s, there was a strong historical precedent for State oversight of Rutgers that dated back to the 19th century. There was no Contract Clause violation, the State says, because the regulations do not substantially impair the contract with Rutgers, but are limited measures that advance public interests and survive any level of judicial scrutiny. The State rejects Rutgers’s comity argument, observing that comity is a doctrine that can be invoked only by governmental entities.

The parties even disagreed about the proper standard of appellate review. Rutgers contends that the Secretary’s ruling was a purely legal one, construing the relevant statutes, so that the Appellate Division should apply de novo review. In contrast, the State argues that where special expertise is required to interpret laws under the agency head’s purview, a strong presumption of reasonableness exists.

The briefs on this appeal are available here. The oral argument can be viewed at this link.

This post is the 2,500th post to appear on this blog since its founding in October 2010. Who’d have thunk it back then? It’s great to reach a milestone, but every post, round number or not, has value.