14 Misc.2d 325, In re Skipwith

Citation14 Misc.2d 325, 180 N.Y.S.2d 852
Party NameIn re Skipwith
Case DateDecember 15, 1958

Page 325

14 Misc.2d 325

180 N.Y.S.2d 852

In The Matter of Charlene SKIPWITH, Sheldon Rector, children twelve years of age.

New York Court of Appeal, Children's

Court Division, New York County.

December 15, 1958.

Page 326

[180 N.Y.S.2d 854] Charles H. Tenney, Corp. Counsel, New York City, for Board of Education, petitioner, (Rose Schneph, Peter J. Flanagan, Asst. Corp. Counsels, New York City, of counsel).

Paul B. Zuber, New York City, for respondents.

JUSTINE WISE POLIER, Justice.

On October 28, 1958, Stanley and Bernice Skipwith were cited as respondents in a petition filed by the Board of Education charging them with neglect of their daughter, Charlene, a twelve-year-old girl. The petition alleged that the child was without proper guardianship in that her parents, 'refuse to send the child to Junior High School 136 or private school meeting the requirements of the Board of Education law.'

The 33 days of absence between September 8, 1958, and October 27, 1958, were stipulated to be correct by both sides, and the respondents did not offer substitute private schooling as a defense.

On October 29, 1958, Charles and Shirley Rector were likewise cited as respondents in regard to their son, Sheldon, a twelve-year-old boy who had failed to attend Junior High School No. 139. Here, too, by stipulation of counsel for the respondents that the reasons of the parents for refusing to send their son to Junior High School No. 139 were identical with those given by the parents of Charlene Skipwith. It was stipulated [180 N.Y.S.2d 855] that should the Court, over the objection of counsel for the Board of Education, consider the evidence submitted concerning the alleged inferiority of the school to which the Skipwith child had been assigned, the record in the Skipwith case should be regarded and treated as if testified to in the Rector case, and that the two cases should be consolidated, since the issues presented were identical.

The parents frankly acknowledge that they have refused to send their children to Junior High Schools Nos. 136 and 139, and do not claim either the physical or mental inability of their children to attend school as a reason for nonattendance. They do not offer evidence of substitute teaching in compliance with the law as a defense, although they have in fact arranged for some private tutoring of their children.

The parents assert, in justification of their refusal to send their children to these two schools, that both schools offer educationally inferior opportunities as compared to the opportunities offered in schools of this city whose pupil population is largely white. This inferiority of educational opportunities,

Page 327

they assert, results from two conditions which they allege exist in these schools and for the existence of which conditions they claim the Board of Education is responsible. One of the alleged conditions is de facto racial segregation in these two schools all of whose pupils are either Negro or Puerto Rican. The other alleged condition is the discriminatory teacher staffing of these two schools with personnel having inferior qualifications to those possessed by teachers in junior high schools in New York City, whose pupil population is largely white.

As a consequence of the situation alleged to exist in these two schools, it is claimed that the children attending them are denied equal educational opportunities in violation of the 'equal protection of the laws' guaranteed by the Fourteenth Amendment to the Constitution of the United States. Additionally, it is urged that for this Court to compel these parents to send their children to schools offering such unequal educational opportunities would be a further violation of equal protection of the laws.

The Board of Education contends that these constitutional objections are not properly before this Court but must be addressed to the Commissioner of Education under Section 310 of the Education Law. In the view of the Board of Education, the only defense open to the respondents before this Court is that absence of the children from attending school is due to illness or that the parent has made provision of education elsewhere, which meets the requirements of the Education Law.

These proceedings are based upon subdivision (17), Section 2 and subdivision 1, Section 61 of the Domestic Relations Court Act of The City of New York. The latter section gives the Court exclusive jurisdiction to hear all cases involving children under the age of sixteen years who are alleged to be 'neglected'. Section 2 provides that 'Neglected [180 N.Y.S.2d 856] child means a child under sixteen years of age * * * who is unlawfully kept out of school.' 1

Page 328

If this Court adjudicates a child to be neglected, Section 83 of the Domestic Relations Court Act provides that the judgment of this Court may:

'* * * (b) Place the child * * * under supervision to remain in his own home or in the custody of a relative or other fit person, subject, however * * * to the further orders of the court;

'(c) Commit the child to the care and custody of a suitable institution maintained by the state or any subdivision thereof, or to the care and custody of a duly authorized association, agency, society or institution * * *;

* * *

* * *

'(f) Render such other and further judgment or make such other order or commitment as the court may be authorized by law to make. * * *'

This broad grant of powers was further enlarged by the addition of subdivision (i) to Section 83 by Chapter 949 of the Laws of 1956. This provides that, upon an adjudication of neglect, the Court may, if it appears that the conduct of the parents 'has contributed' to such neglect, 'issue a written order specifying conduct to be followed by such parent * * * with respect to such child.' The only guide provided by subdivision (i) for such order is that: 'The conduct specified shall be such as would reasonably prevent * * * neglect as defined by statute.' Subdivision (i) further provides that: 'Such order shall remain in effect for a period of not more than one year to be specified by the court and said order may be extended or renewed by the court.' Sanctions of the most drastic character are specified to assure compliance with such an order. Thus, subdivision (i) of Section 83 concludes with the following provisions:

'Willful violation of any provision of such order shall constitute criminal contempt out of presence of the court. The persons so charged shall be notified of the accusation and have [180 N.Y.S.2d 857] a reasonable time to make a defense. The trial of such proceeding shall take place before a judge other than the one who issued the written order. Punishment for such contempt may be by fine, not exceeding two hundred and fifty dollars, or by imprisonment, not exceeding thirty days, in the jail of the county where the court is sitting, or both, in the discretion of the court. When a person is committed to jail for the non-payment of such fine, he shall be discharged at the expiration of thirty days; but where he is also committed for a definite time, the thirty days shall be computed from the expiration of the definite time.'

Page 329

If these children are adjudicated neglected because of their parents' refusal to send them to the schools in question, and their parents thereafter persist in such refusal, the appropriate action by this Court might well be to issue a written order specifying that the children be sent to these schools. If such an order were disobeyed, these parents would be subject to a heavy fine or imprisonment, or both.

Subdivision (i) provides that:

'The judge before issuing any such order shall advise such parent, guardian or other persn of his right to have the reasonableness immediately reviewed, and in this connection the supreme court is vested with jurisdiction to summarily determine the reasonableness or any question of law or fact relating to such written specifications and make such order as justice may require.' 1a

It would seem, however, that this review would be of no avail to these parents since an order requiring them to send their children to these schools would clearly be such as would be reasonably necessary to prevent the repetition of the very same neglect originally committed. Moreover, the review provided in subdivision (i) of Section 83 would be entirely unavailable if this Court were to commit these children to an institution in order to assure their attendance at a public school or a school which meets the requirements of the Board of Education.

In sum, the Board of Education urges that these children may be taken from their families by this Court, and their parents may be fined and imprisoned for refusing to send them to public schools which, it is charged, are conducted in violation of the Constitution of the United States, and that this Court has no power to consider such charge.

In other words, the Board of Education contends that one arm of the State--this Court--must blindly enforce the unconstitutional denial of constitutional rights by another arm of the State--the Board of Education. Such a proposition is abhorrent to the American doctrine of [180 N.Y.S.2d 858] supremacy of the law. It is utterly shocking to the conscience of a Justice of a Children's Court established to promote the health and welfare of children. Only the clearest of legislative mandates or the plainest of judicial precedents would compel this Court to such a holding. None do so. The holdings of the Courts of this State are to the exactly opposite effect, and the decisions of the Supreme Court of the United States are clear that any other holding would itself deny the due process of law also guaranteed by the Fourteenth...

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10 practice notes
  • 37 Misc.2d 436, Lombardo, Application of
    • United States
    • New York Supreme Court of New York
    • November 26, 1962
    ...of New York, 181 Misc. 645, 42 N.Y.S.2d 472, affd. 267 A.D. 817, 47 N.Y.S.2d 106, affd. 293 N.Y. 792, 59 N.E.2d 32; Matter of Skipwith, 14 Misc.2d 325, 332, 180 N.Y.S.2d 852; Matter of Coughlan v. Cowan, 21 Misc.2d 667, 190 N.Y.S.2d 934; Matter of Moses v. Board of Education of the City of ......
  • 632 F.2d 999 (2nd Cir. 1980), 733, Caulfield v. Board of Educ. of City of New York
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Second Circuit
    • September 22, 1980
    ...assignment practices were racially discriminatory and that such practices had a discriminatory effect on students. In re Skipwith, 14 Misc.2d 325, 180 N.Y.S.2d 852 (Dom.Rel.Ct.1958). As the district court in the present case noted, since 1951 virtually every commission, agency and consultin......
  • 88 Misc.2d 313, Gregory B., Matter of
    • United States
    • September 29, 1976
    ...it cannot thereby limit the Court's powers to consider a defense of non-education, assuming the bona fides thereof. See In re Skipwith, 14 Misc.2d 325, 180 N.Y.S.2d 852. The respondents, be it noted, are not challenging the constitutionality of the Education Law; nor the power or duty of th......
  • 416 N.E.2d 642 (Ohio App. 9 Dist. 1979), City of Akron v. Lane
    • United States
    • Ohio Court of Appeals of Ohio
    • July 11, 1979
    ...and it is the type of claim properly addressed in the first instance to administrative review. Compare, In re Skipwith (1958), 14 Misc.2d 325, 180 N.Y.S.2d 852. Defendant's belief that the Akron [65 Ohio App.2d 94] Board of Education violated the law is not a defense to this prosecution. We......
  • Request a trial to view additional results
10 cases
  • 37 Misc.2d 436, Lombardo, Application of
    • United States
    • New York Supreme Court of New York
    • November 26, 1962
    ...of New York, 181 Misc. 645, 42 N.Y.S.2d 472, affd. 267 A.D. 817, 47 N.Y.S.2d 106, affd. 293 N.Y. 792, 59 N.E.2d 32; Matter of Skipwith, 14 Misc.2d 325, 332, 180 N.Y.S.2d 852; Matter of Coughlan v. Cowan, 21 Misc.2d 667, 190 N.Y.S.2d 934; Matter of Moses v. Board of Education of the City of ......
  • 632 F.2d 999 (2nd Cir. 1980), 733, Caulfield v. Board of Educ. of City of New York
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Second Circuit
    • September 22, 1980
    ...assignment practices were racially discriminatory and that such practices had a discriminatory effect on students. In re Skipwith, 14 Misc.2d 325, 180 N.Y.S.2d 852 (Dom.Rel.Ct.1958). As the district court in the present case noted, since 1951 virtually every commission, agency and consultin......
  • 88 Misc.2d 313, Gregory B., Matter of
    • United States
    • September 29, 1976
    ...it cannot thereby limit the Court's powers to consider a defense of non-education, assuming the bona fides thereof. See In re Skipwith, 14 Misc.2d 325, 180 N.Y.S.2d 852. The respondents, be it noted, are not challenging the constitutionality of the Education Law; nor the power or duty of th......
  • 416 N.E.2d 642 (Ohio App. 9 Dist. 1979), City of Akron v. Lane
    • United States
    • Ohio Court of Appeals of Ohio
    • July 11, 1979
    ...and it is the type of claim properly addressed in the first instance to administrative review. Compare, In re Skipwith (1958), 14 Misc.2d 325, 180 N.Y.S.2d 852. Defendant's belief that the Akron [65 Ohio App.2d 94] Board of Education violated the law is not a defense to this prosecution. We......
  • Request a trial to view additional results