307 F.Supp. 295 (D.Mass. 1969), Civ. A. 69-747, Briggs v. Kerrigan

Docket Nº:Civ. A. 69-747
Citation:307 F.Supp. 295
Party Name:Briggs v. Kerrigan
Case Date:December 11, 1969
Court:United States District Courts, 1st Circuit, District of Massachusetts

Page 295

307 F.Supp. 295 (D.Mass. 1969)

Archie BRIGGS et al., Plaintiffs,


John T. KERRIGAN et al., Defendants.

Civ. A. No. 69-747.

United States District Court, D. Massachusetts

Dec. 11, 1969

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Gershon Michael Ratner, Boston Legal Assistance Project, Boston, Mass., Stephen Rosenfeld, Lawyers Committee for Civil Rights Under Law, Boston, Mass., for plaintiffs.

James J. Marcellino, Asst. Atty. Gen., Boston, Mass., for Comm. of Mass., Dept. of Education.

Edith W. Fine, Boston, Mass., and Herbert F. Travers, Jr., U.S. Atty., William J. Foley, Asst. U.S. Atty., Irwin Goldbloom and Howard B. Pickard, Dept. of Justice, Dept. of Agriculture, Washington, D.C., for Kerrigan, Eisenstadt, Lee, McDevitt, Tierney, Ohrenberger & Richards.


GARRITY, District Judge.

The National School Lunch Act, 42 U.S.C. § 1751 et seq., provides federal assistance to local school lunch programs which implement the federal design to provide nutritious noon meals for our nation's youth at nonprofit and nonprohibitive prices. Plaintiffs complain that this program as administered in the Boston public school system violates both the Act and the Constitution of the United States. The court has heard the parties on crossmotions for summary judgment.

I Provisions of the Act

An understanding of the operation of the Act is essential to an analysis of the parties' contentions. The federal government, through the Department of Agriculture, assists states, primarily by grants of financial aid, in providing for the establishment, maintenance, operation and expansion of nonprofit school lunch programs. 42 U.S.C. § 1751. The amount of funds available to any particular state depends on the degree of its participation in terms of the number of lunches served under the program. That number is multiplied by a factor called the assistance need rate of the state. For all states whose per capita income is equal to or greater than that of all the United States, the rate is 5. For states with lower per capita income the rate is greater than 5 but no more than 9, the difference depending on its relative poverty when compared to the whole of the United States. The product of the participation rate, i.e., the number of lunches served, and this assistance need rate produces as index. The indices of all the states are added and then applied to the funds available through Congressional appropriations. 42 U.S.C. §§ 1753 and 1760, 7 C.F.R. § 210.4.

Funds so apportioned, however, will not be paid to the states unless each federal dollar is matched by three dollars from sources within the state, including amounts paid by the schoolchildren. There is an exception, not applicable to Massachusetts, for those states whose assistance need rate is above 5. For them the matching requirement is decreased by the percentage which the state per capita income is below the per capita income of the United States. 42 U.S.C. § 1756, 7 C.F.R. § 210.6(a). Thus under both the apportionment section (§ 1753) and this matching section (§ 1756) the assistance need rate comes in to provide

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the poorer states greater proportional assistance than the wealthier states.

The federal aid is generally limited to reimbursement for expenses of food costs and program administration. The federal government does not pick up any part of the expenses attributable to the use of land or for the acquisition, construction, or alteration of buildings. 7 C.F.R. § 210.6(b).

Accordingly, states wishing to take part in the program must be willing to provide, at some level of involvement, whether statewide or local, certain basic facilities and to underwrite a substantial portion of the program's continuing costs. In order to participate, states through their education agencies enter into written agreements with the Department of Agriculture undertaking the responsibility of administering the program in accordance with the provisions of the Act. 42 U.S.C. § 1756.

Under §1757 1 the state agency, taking into account need and attendance, determines the eligibility of schools for participation in the school lunch program. Before any of the combination of federal and matching state funds may be disbursed by the state to these schools there must be an agreement executed between the state agency and the school seeking participation. This agreement is subject to the approval of the Secretary of Agriculture. § 1757, 7 C.F.R. § 210.8(d).

Section 1758 2 of the Act contains the program requirements that must be implemented by the state and the schools participating in the program. One of these requirements, the one most relevant here, is that lunches must be served without cost or at a reduced cost to children who are determined by local school authorities to be unable to pay the full cost of the lunch. No physical segregation

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of or other discrimination against any child may be made by the school because of his inability to pay.

Aid to participating schools takes the form of reimbursement of expenses in connection with lunches served in accordance with the provisions of the program. The Act provides a formula for a maximum amount of reimbursement, based on the number of lunches served to the children in the school multiplied by an assigned rate for each meal. With certain exceptions for needy schools, the maximum assigned rate is 9 cents per lunch. According to the deposition in this case of defendant John C. Stalker, the director of the Office of School Lunch Programs and Nutrition Education in the State Department of Education, the Commonwealth of Massachusetts has added to the federal grant whatever state funds have been required to bring the reimbursement of municipalities whose schools are participating in the program up to the 9 cents per lunch ceiling.

Just as state participation in the federal program is nonmandatory so too is participation by local communities in Massachusetts. The state agency leaves to the determination of local governments whether or not lunches will be offered in its schools. This is partially due to the fact that the bulk of the expenditures for initiating and continuing the school lunches within the Commonwealth is intended to be borne at the local level. Although participating municipalities will receive the maximum rate of reimbursement from state and federal contributions, they still must be willing to give considerable support to the program themselves. First, they must provide certain basic facilities necessary for making and serving lunches to the schoolchildren. Funds from the federal government or from the Commonwealth are tied directly to the number of lunches actually served and do not include payments for rent or for the acquisition, construction or alteration of buildings. 3 Secondly, they bear part of the continuing costs of administering the program. Thus the City of Boston, through its school committee, makes up the difference between the grants received from the federal and state governments and the amounts received from the students on the one hand and the actual costs of administering the programs in individual schools on the other. During the school year 1967-68, pupils paid 69% Of the cost of administering the school lunch program in Boston, the federal-state program 17%, and the City of Boston 14%. For 1968-69 corresponding percentages were 70%, 22% And 8%, and for 1969-70, as projected, 70%, 25% And 5%.

In Massachusetts the role of the state agency in determining which schools may participate in the program has been insignificant. Individual school committees desiring to participate apply for aid on behalf of one or more schools within their jurisdictions. Each school must signify its willingness to abide by the provisions of the Act and the federal-state agreement by executing an agreement in its own behalf with the state agency. In massachusetts, the state agency has never rejected an application on behalf of such a school. Although the state agency has endeavored to encourage school systems without a school lunch program to institute one, its passive system of selection has permitted discretion in local authorities not only with respect to applying for aid in the first place but also with respect

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to selecting the schools to be the beneficiaries of any application.

The City of Boston participates in the program and has received aid pursuant to agreements with the state agency on behalf of virtually all its high schools and junior high schools and 14 out of 150 of its elementary schools. Out of the total of 51 schools which...

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