The opinion of the court was delivered by: BREWSTER
RUDI BREWSTER, UNITED STATES DISTRICT JUDGE
The above captioned matter came on for hearing on February 19, 1991, before the Honorable Rudi M. Brewster. Wendell R. Bird, Esq., and Loren E. McMaster, Esq., appeared for plaintiffs, and Gregory J. Roussere, Esq., appeared for defendants. Upon consideration of plaintiffs' Motion to Lift Stay of Proceedings, plaintiffs' Motion to Amend, and defendants' Motion to Dismiss, and the oral argument thereon, the court hereby enters the following memorandum opinion and order.
The ICR Graduate School (the School) offers graduate degree programs in science, with an emphasis on creationist and Christian interpretation. In 1988, the Private Postsecondary Education Division of the State Department of Education (PPED) sent a visiting Committee to the School in order to review and verify the School's compliance with Department requisites and guidelines for private postsecondary institutions. In late 1988, the Visiting Committee voted by a three to two margin to recommend against approval of the School's degree programs. In 1989, a second Visiting Committee voted by a four to one margin against recommending approval.
On March 16, 1990, the PPED sent the School its "Final Notice of Denial of Authorization to Operate Under Education Code Section 94310.2." This notice advised the School that it would be denied approval as a degree granting institution, pending an administrative appeal. The procedures for such an appeal were outlined in the notice of denial.
Instead of pursuing an administrative appeal, on April 13, 1990 the School filed the instant complaint, alleging causes of action based upon (1) academic freedom and free speech; (2) freedom of religion; (3) due process; (4) equal protection; and (5) pendent state claims. Alleging irregularities in the Department's review procedures, the School sought declaratory and injunctive relief pursuant to § 1983, or money damages. The School named as defendants Louis Honig, Superintendent of Public Instruction, in his official and individual capacities; Joseph Barankin, Assistant Superintendent of Public Instruction, in his official and individual capacities; Jeanne Bird, Acting Director of the PPED, in her official capacity; and the Department of Education. On May 15, 1990, the School amended its complaint to add as plaintiffs Dr. Kenneth B. Cumming, S. Harris Rugg, and Woodside Christian Elementary School.
Subsequent to this ruling, the School filed a second lawsuit against Honig, the Department, and the Council for Private Postsecondary Educational Institutions, this time in Sacramento Superior Court. In that complaint, the School sought a mandatory injunction ordering defendants to withdraw the notice of denial, and to enjoin defendants from going forward with the administrative process.
On November 7, 1990, the PPED sent the School its "Withdrawal of Proposed Final Notice of Authorization to Operate Under Education Code Section 94310.2." In that document, the PPED states:
The Private Postsecondary Education Division (PPED) of the California Department of Education is basing this withdrawal on the advice of counsel. The Attorney General who represents PPED in this action has advised us that they are exercising their authority, as legal representative . . ., and are electing not to prosecute the administrative appeal filed by your institution.
This action will place your institution in the status that it was prior to the reviews by the 1988 and 1989 Visiting Committees.
(emphasis added). A short time after this notice was sent, the state lawsuit was resolved by a stipulated judgment, dated November 30, 1990, which included the PPED's agreement not to initiate, commence, or continue any administrative action against the School.
On January 1, 1991, the California Council for Private Postsecondary and Vocational Education (New Council) was granted authority to accredit private postsecondary institutions, replacing the PPED.
The New Council is operating under a new statutory scheme,