Fuller v. Volk
| Decision Date | 30 September 1965 |
| Docket Number | 15044.,No. 15043,15043 |
| Citation | 351 F.2d 323 |
| Parties | Gertrude P. FULLER, Richard L. Grubman, Thomas F. Cacciola and Josephine Cacciola, His Wife, and Others to Be Named, Plaintiffs-Appellants, in No. 15043 and Jerry Volpe et al., Intervening-Plaintiffs-Appellants, in No. 15044 v. Austin A. VOLK et al., Defendants-Appellees, Frederick M. Raubinger, Commissioner of Education of the State of New Jersey, Kenneth Ancrum, Deborah Spruill, et al., Intervening-Defendants-Appellees. |
| Court | U.S. Court of Appeals — Third Circuit |
James T. Murphy, Vorsanger & Murphy, Englewood, N. J., for appellant Fuller et al.
James A. Major, Hackensack, N. J. (Major & Major, Hackensack, N. J., on the brief), for appellant Volpe et al.
Charles Rodgers, John J. Breslin, Jr., Hackensack, N. J. (Breslin & Breslin, Hackensack, N. J., on the brief), for Board of School Estimates of Englewood.
Sidney Dincin, Englewood, N. J., for Board of Education of City of Englewood.
Robert L. Carter, New York City (Barbara A. Morris, New York City, Herbert H. Tate, Newark, N. J., on the brief), for Ancrum et al.
Arthur J. Sills, Atty. Gen. of New Jersey, Trenton, N. J., Howard H. Kestin, Deputy Atty. Gen., of counsel and on the brief, for Frederick M. Raubinger, etc.
Before BIGGS, Chief Judge, and FORMAN and FREEDMAN, Circuit Judges.
This civil action attacks the constitutionality of a public school districting plan in the City of Englewood, New Jersey, on the ground that the plan promulgated by the defendants by which racial imbalance in the school system was substantially reduced denies to the plaintiffs the equal protection of the laws guaranteed to them by the Fourteenth Amendment of the Constitution.1 The plaintiffs claim that the plan of integration is unconstitutional as being based on race and that the plan as formulated is unconstitutional because it gave the parents of Negro children in the Lincoln School the right to vote the plan into existence.
The plaintiffs in this present action consist of two groups of plaintiffs: The original plaintiffs, hereinafter referred to as the Fullers,2 and the intervening plaintiffs, hereinafter referred to as the Volpes.3 The defendants are the members of the Board of Education of the City of Englewood; the City of Englewood; Commissioner Raubinger, the Commissioner of Education of the State of New Jersey, and some thirty-eight minor children attending the public schools in Englewood, who, by their parents, were permitted to intervene as parties-defendants in this litigation.
Prior to the commencement of the September 1963 school term, the Englewood school system consisted of a central high school, grades 10 through 12; a central junior high school, grades 7 through 9 and a system of five elementary schools, grades 1 through 6.4 These elementary schools were operated under the "neighborhood" school plan, whereby students attended elementary schools located in their own neighborhoods. Under this plan, severe racial imbalance existed in the elementary schools as a result of existing housing patterns in the community. As of September 1962 enrollment and racial composition in the elementary schools were as follows:
School Enrollment % White % Negro
Cleveland 477 99.6 .4
Liberty 418 38.0 62.0
Lincoln 505 2.0 98.0
Quarles 343 96.8 3.2
Roosevelt 345 85.5 14.5
The intervening defendants in the instant case, the Spruills and Ancrums, petitioned Commissioner Raubinger, charging the Englewood Board of Education "with the maintenance of racially segregated public schools and with refusal to implement plans to eliminate patterns of racial segregation alleged to exist in the public schools."5 The Volpes cross-petitioned the Englewood Board of Education, protesting any departure from the status quo. After consolidation by the Commissioner of the Spruill and Ancrum petitions, the Volpes were permitted to intervene in the proceeding. The Commissioner found that the existing racial imbalance was not the product of deliberate or intentional conduct on the part of the Englewood Board of Education, but rather that it was the result of "patterns of housing and the operation of other socio-economic forces" causing "concentration of pupils of one race" in the Lincoln School district.6 Commissioner Raubinger held that "compulsory attendance at an all Negro School, such as the Lincoln School, at least where appropriate means can be found to avoid it, constitutes a denial of educational opportunity under New Jersey law which the school district is required to correct."7 The Commissioner ordered the Englewood Board of Education to formulate a plan or plans to reduce the extreme concentration of Negroes in the Lincoln School and to submit the plan or plans to the Commissioner for approval before August 1, 1963 and to put the plan, as approved, into effect at the commencement of the 1963-64 school term.
In accordance with Commissioner Raubinger's ruling, the Englewood Board of Education promulgated a plan which provided for the establishment of a central sixth-grade school at the former Junior High School building at 11 Engle Street (Engle Street School). The plan also provided for the transfer of all students at the Lincoln School, grades one through five, to the Cleveland, Quarles or Roosevelt schools, taking into consideration such factors as the distance to be traveled and distribution of class loads. No provision was made for either transfer into or out of the Liberty School. The plan stated that those children in Lincoln School who did not wish to transfer should have the opportunity to remain at Lincoln School "provided that it is administratively and educationally practicable to do so.", but that
In order to implement the plan, questionnaires were sent to parents of children in grades 1 through 5 in the Lincoln School, to determine whether there were enough interested pupils to put the plan into effect. As of August 19, 1963, there were 242 acceptances of assignments out of the Lincoln School and 21 "votes" to remain at the Lincoln School. Accordingly, the Board of Education proceeded with its implementation plans. The Board of School Estimate certified $53,000 for the implementation of the plan which, when added to $50,000 already available to the Board of Education, made a fund of $103,000 available for the implementation of the plan. The plan included renovation of the Engle Street School, the purchase of equipment and moving administrative offices from the Engle Street School to the Lincoln School.
The school term opened on September 4, 1963, but at that time the Engle Street School was not yet ready for use. Therefore, only 125 pupils, grades one through five, were assigned out of the Lincoln School into the Cleveland, Roosevelt and Quarles Schools. The Engle Street School was ready for occupancy and the city-wide sixth grade plan went into effect on October 28. Since that time, all children in grades one through five in the Lincoln School were transferred or sent to the Cleveland, Roosevelt and Quarles Schools and all children in the sixth grade have been attending the city-wide sixth grade school, the Engle Street School. The enrollment and racial composition of the elementary schools as of November 12, 1963, under the plan of integration, were as follows:
Schools Number of
and Grades Pupils % White % Negro
Engle Street (6) 290 58.3 41.7
Cleveland (1-5) 547 66.3 33.7
Liberty (1-5) 283 39.0 61.0
Roosevelt (1-5) 310 65.8 34.2
Quarles (1-5) 301 81.4 18.6
The plaintiffs moved for summary judgment, Rule 56, Fed.R.Civ.Proc., 28 U.S.C. After argument on the motion, the court below entered judgment for the defendants, holding that the plaintiffs failed to show a denial of any constitutional right. Fuller v. Volk, 230 F.Supp. 25 (D.N.J. 1964). The plaintiffs have appealed from this judgment. But before this court can review the judgment of the court below on the merits, we must be certain that we have jurisdiction of the cause and that the court below properly acquired jurisdiction in the first instance.
The original plaintiffs, the Fullers, allege that they have standing to sue to enjoin the expenditure of public funds for an unconstitutional purpose because they are taxpayers in the City of Englewood and the State of New Jersey. There is no longer any doubt that a local taxpayer can invoke federal jurisdiction to attack the constitutionality of state or local expenditures. Doremus v. Board of Education, 342 U.S. 429, 72 S.Ct. 394, 96 L.Ed. 475 (1952); Everson v. Board of Education, 330 U.S. 1, 67 S. Ct. 504, 91 L.Ed. 711 (1947); see also Wieman v. Updegraff, 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216 (1952); Zorach v. Clauson, 343 U.S. 306, at 390, n. 4, 72 S.Ct. 679, 96 L.Ed. 954 (1952). However, in order for the taxpayer to have standing, he must show that his position as a taxpayer is in some way affected and, in short, that his is a good-faith pocketbook action. Doremus v. Board of Education, supra. Therefore, the taxpayer must be shown to be suing to prevent a misuse of public funds for this is the only...
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