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Warranty

The SOL Nova Unlimited Aurora comes with a 12-month warranty.

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We reject this argument at the outset as well as the artificial conduct/speech distinction Nova draws because it has no practical or First Amendment substance. First,  29-815 does not regulate or license teaching or "pure speech." The "operating" clause of  29-815 merely subjects out-of-District schools to the same regulations as schools incorporated in the District, e.g. both have unfettered freedom to teach so long as no degree credits or degrees are promised or given. According to the Senate Report, "[i]nstitutions which do not undertake to confer degrees do not come within the purview of this bill." S. REP. No. 611, 70th Cong., 1st Sess., at 4 (1928). The 1929 congressional statute was described in its title as an amendment to the D.C.Code "Relating to Degree-Conferring Institutions." Pub.L. No. 70-949,  586a, 45 Stat. 1504 (1929). The statute itself states that schools incorporated in the District are required to obtain a license "to confer a degree," and schools incorporated elsewhere "undertaking to confer a degree" must obtain a license to "operate" in the District. The regulations setting forth the criterion for licensing are entitled "Regulations Relating to the Licensing of Institutions which Confer Degrees." The statutory penalties apply to anyone "who shall, directly or indirectly, participate in, aid, or assist in the conferring of any degree by any unlicensed ... institution...." D.C.Code  29-819 (1981). And in Kraft v. Board of Education, 247 F. Supp. 21, 25 (D.D.C.1965), cert. denied, 386 U.S. 958, 87 S. Ct. 1026, 18 L. Ed. 2d 106 (1967), the court affirmed revocation of a license to award a degree, observing that the absence of a license did not prevent schools from teaching non-degree subjects or programs in the District. In short, Nova would not have needed to apply to the Commission for a license (an application requesting "a License to Offer Doctorate of Public Administration Degree Courses in the District of Columbia") nor would Nova be before this court if it did nothing in the District of Columbia but teach.

Finally, the most serious flaw in the conduct speech distinction drawn by Nova is that it has no First Amendment relevance and, if accepted, would undermine the very freedoms Nova asserts in this case.[4] As we have already stated, in requiring schools incorporated outside the District to obtain a license to operate degree programs in the District, the District is regulating no more and no less than when it requires schools incorporated in the District to obtain a license to confer a degree. The question in each case is whether the school meets minimal academic standards as set out in the statute and regulations. Yet under the conduct/speech distinction drawn by Nova, Nova may engage in exactly the same activities in the District as a college incorporated in the District, and although D.C.Code  29-815 would have an identical impact on both schools, the District is absolutely prohibited by the First Amendment from regulating Nova but not from regulating a District school, merely because Nova is incorporated elsewhere. We cannot accept a theory of the First Amendment that conditions its protection on where a school is incorporated.

Educational institutions, as well as individuals, have a First Amendment right to teach and to academic freedom. Regents of the University of California v. Bakke, 438 U.S. 265, 312, 98 S. Ct. 2733, 2759, 57 L. Ed. 2d 750 (1978); Griswold v. Connecticut, 381 U.S. 479, 482-83, 85 S. Ct. 1678, 1680-81, 14 L. Ed. 2d 510 (1965) (dicta); Sweezy v. New Hampshire, 354 U.S. 234, 250, 77 S. Ct. 1203, 1211, 1 L. Ed. 2d 1311 (1957); Keyishian, supra, 385 U.S. at 603, 87 S.Ct. at 683;[5]see generally Finkin, On "Institutional" Academic Freedom, 61 TEX.L.REV. 817 (1983). In his concurring opinion in Sweezy v. New Hampshire,[6] Justice Frankfurter characterized academic freedom as the right of an educational institution to be free from direct or indirect "governmental intervention in the intellectual life of a university," 354 U.S. at 262, 77 S. Ct. at 1218, and summarized the "four essential freedoms" that constitute academic freedom as the right of a university "`to determine for itself on academic grounds who may teach, what may be taught, and how it shall be taught, and who may be admitted to study.'" Id. at 263, 77 S. Ct. at 1218. The Open Universities in South Africa 10-12 (A statement of a conference of senior scholars from the University of Cape Town and the University of the Withwatersrand, including A. v. d. S. Centlivres and Richard Feetham, as Chancellors of the respective universities) (footnote omitted).

It cannot be gainsaid that D.C. Code  29-815, by requiring educational institutions to obtain a license as a condition to operating a degree program and predicating that license on meeting District criteria interferes with an educational institution's operation. In particular, Nova was denied a license because the Commission found that its library and faculty resources did not meet District requirements. However, to say that D.C.Code  29-815 constrains a degree-granting educational institution's freedom to make decisions as to how an educational program will be run, is not to say that the constraints violate the First Amendment. Not every limit on institutional autonomy also implicates academic freedom. See Kunda v. Muhlenberg College, 621 F.2d 532, 547 (3d Cir.1980). The Supreme Court has recognized that First Amendment freedoms are not absolute and "the state may sometimes curtail speech when necessary to advance a significant and legitimate state interest." City Council of Los Angeles v. Taxpayers for Vincent, ___ U.S. ___, ___, 104 S. Ct. 2118, 2128, 80 L. Ed. 2d 772 (1984) (citing Schenck v. United States, 249 U.S. 47, 52, 39 S. Ct. 247, 249, 63 L. Ed. 470 (1919)). See also Shelton II, supra, 448 A.2d at 993-99.

We think it evident that the general rule that forbids the government to regulate speech on the basis of content has no application to this case, for there is not even a hint of bias or censorship in Congress' enactment or the Commission's enforcement of D.C.Code  29-815. In enacting  29-815, Congress was not motivated by hostility to particular ideas, opinions, or educational philosophies,[7] nor was Congress concerned with harms that might occur from public exposure to particular information.[8] The sole interest of Congress was to ensure that degree-conferring educational institutions incorporated or operating in the District met minimal academic standardswhatever their message was, and to protect the public against harms arising from the abuse and misuse of degree-conferring powers, harms that arose independently of any message or teaching that might or might not precede degree conferral. On their face, the statutory and regulatory criteria for licensing are content neutral, censoring no subject, opinion, or educational philosophy. And contrary to Nova's suggestion, we do not believe that Commission inquiry into faculty qualifications, library resources, and curriculum content necessarily makes the statute content-related or amounts to a constraint on academic freedom.[9] This inquiry is limited to neutral, sound, academic criteria, not intended or likely to intrude upon the legitimate intellectual life of a university, but to ensure that when a university confers a degree, it does indeed have an intellectual life and the minimal resources essential to support that life. Nor is there any suggestion that the Commission denied Nova a license because of the particular subjects it teaches, content of books it provides, or views of its teachers. Nova was denied a license because the Commission found that Nova's plans to use Howard University's library facilities rather than providing their own, and Nova's use of field-based teachers with no resident faculty in the District, *1184 did not meet the District's requirements for adequate faculty and library resources. Although application of the statute to Nova may be burdensome in a financial and administrative sense, and limits Nova's institutional prerogatives, we do not believe these constraints intrude upon Nova's right to academic freedom or free speech. It cannot be said that requiring a library and teachers is incompatible with the academic endeavor or with intellectual freedom within a university.[10]

We have already addressed the power of the District to regulate the business activities of its own educational institutions and we have held that the District's interest in this case is not aimed at suppressing speech, but rather in preventing the harms that arise when educational institutions abuse their degree-conferring authority. Thus, the critical inquiries in this case are whether D.C.Code  29-815 furthers a substantial interest and whether the effect of the statute on speech and academic freedom is no greater than necessary to protect the District's interest. e24fc04721

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