449 F.2d 871 (2nd Cir. 1971), 890, Johnson v. New York State Ed. Dept.

Docket Nº:890, 71-1006.
Citation:449 F.2d 871
Party Name:Daisy JOHNSON, Dorothy Miller, Forestine Pressy, individually and on behalf of their minor children and on behalf of all others similarly situated, Plaintiffs-Appellants, v. NEW YORK STATE EDUCATION DEPARTMENT et al., Defendants-Appellees.
Case Date:August 13, 1971
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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449 F.2d 871 (2nd Cir. 1971)

Daisy JOHNSON, Dorothy Miller, Forestine Pressy, individually and on behalf of their minor children and on behalf of all others similarly situated, Plaintiffs-Appellants,



No. 890, 71-1006.

United States Court of Appeals, Second Circuit.

Aug. 13, 1971

Argued June 16, 1971.

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Carl Jay Nathanson, Westbury, N. Y. (Nassau County Law Services Committee, Inc., Leonard S. Clark, Westbury, N. Y., Burr C. Hollister, Mineola, N. Y., of counsel), for plaintiffs-appellants.

Joel Lewittes, New York City (Louis J. Lefkowitz, Atty. Gen. of N. Y., Samuel A. Hirshowitz, Iris A. Steel, New York City, of counsel), for defendants-appellees New York State Dept. of Education and Ewald B. Nyquist.

Henry A. Weinstein, Mineola, N. Y., for defendant-appellee Board of Education of Union Free School District No. 27.

Robert Pressman, Paul R. Dimond, Jeffrey Kobrick, J. Harold Flannery, Cambridge, Mass., for Center for Law and Education, amicus curiae.

Before MOORE, KAUFMAN and TIMBERS, [*] Circuit Judges.

MOORE, Circuit Judge:

Plaintiffs-appellants are mothers of minor children and bring this action not only individually and on behalf of their children but also on behalf of others similarly situated (a class action). The children attend school in the Union Free School District No. 27, Town of Hempstead (the School District). The action is against the New York State Department of Education, Ewald B. Nyquist, as Commissioner of the New York State Education Department and the Board of Education of District No. 27 (the School Board).

Prior to 1965, each school system in New York State had to provide its own financing for the purchase of textbooks. In 1965, New York Education Law §§ 701 and 703 (McKinney's Consol. Laws, c. 16, 1971) were amended. Quite simply, § 701 provides for state financial assistance ($10 per pupil) for the purchase of textbooks in grades seven through twelve. § 703 provides that qualified voters within a school district may vote a tax for textbooks for grades one through six. Under § 701, a School Board must supply textbooks to all children in grades seven through twelve residing in its district, regardless of whether they attend public or private schools. Under § 703, textbooks must be supplied to children in grades one through six wherever the voters authorize a tax for this purpose.

Where the voters fail to approve a proposed real estate tax to finance school operations, the Board may nevertheless levy a real estate tax on the property owners living within the School District, but only for such amounts as are necessary for "ordinary contingent expenses" of such School District. New York State Education Law, § 2023 (McKinney's Consol. Laws 1971). 1

On three occasions, the voters of this School District rejected a budget for the 1970-1971 school year proposed by the defendant School Board, after which the Board assessed a tax in accordance with § 2023.

The Board concluded on the basis of Opinion Number 213 of the Counsel to the Education Department, dated July 6, 1967, that expenditures for textbooks are not considered to be "ordinary contingent expense" items within the meaning of § 2023 of the Education Law. This opinion was based in part on the fact that § 703 authorizes a vote on such expenses. Therefore, the Board decided that it was not legally entitled to tax to raise money for textbooks. 2

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The complaint sought the followingrelief:

(1) that a three judge District Court be convened to determine the controversy;

(2) that preliminary and permanent injunctions be entered enjoining defendants from enforcing § 701 of the New York Education Law on the ground that the classification of pupils in grades one to six and grades seven to twelve is "arbitrary, irrational and discriminatory"; and

(3) that a declaratory judgment be entered declaring § 701 et seq. unconstitutional as violating the Fourteenth Amendment.

More specifically, the First Cause of Action claims that § 701 "individiously discriminates * * * by creating an arbitrary and discriminatory classification which deprives plaintiffs and members of their class of equal protection of the law and an adequate education." A Second Cause of Action alleges that §§ 701 and 703 impose a majority vote approval of a tax assessment to enable children in grades one to six to receive free textbooks and that this constitutes a denial of equal protection. A Third Cause of Action states that pursuant to §§ 701 and 703 textbooks can be obtained in grades one to six only upon the payment of a rental fee ($7.50 per pupil); that plaintiffs are indigent and cannot pay a fee; 3 and that by reason of their poverty their children are deprived of equal educational opportunity. They describe the potential situation quite realistically by alleging (Complaint, XII (b)):

"Indigent children sitting bookless, side by side in the same classroom with other more wealthy children learning with purchase [sic] textbooks engenders a widespread feeling of inferiority and unfitness in poor children and is psychologically, emotionally and educationally disastrous to their well being."

An order to show cause for a temporary restraining order was issued by Judge Travia. Affidavits and memoranda were submitted in support of and in opposition to the application. The Board of Education and the Superintendent of Schools answered demanding dismissal of the complaint.

In his decision, Judge Travia assumed jurisdiction under 42 U.S.C. § 1983 and 28 U.S.C. § 1343 4 and proceeded to consider

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"the claimed deficiencies on the ground that the complaint fails to state a claim upon which relief can be granted. F.R.C.P. 12(b) (6)." 319 F.Supp. at 278. In essence the court held that in enacting §§ 701 and 703, the Legislature acted on a reasonable basis free from irrationality or arbitrariness; that "the Legislature was entitled to allocate its grant to pupils in those grades where it would do the most good"; and "[that] New York State has a legitimate compelling interest in seeing to it that as many as possible of its children receive textbooks." 319 F.Supp. at 280. The court, therefore, denied plaintiffs' motion and dismissed the complaint. From the denial of the motion for the convening of a three judge statutory court, and the dismissal of the complaint, plaintiffs appeal. In addition to the briefs of the parties, this court has the advantage of a well-prepared brief and reply brief submitted by the Center for Law and Education of Harvard University.

At the outset, there must be a determination as to whether Judge Travia properly denied plaintiffs' motion for the convening of a three judge court. If a three judge court is ultimately to decide upon the rationality of the New York State Legislature's enactment of §§ 701 and 703, there is little to be gained by having this court of three judges subject its own rationality to further scrutiny.

The guidelines stated by the Supreme Court in Idlewild Bon Voyage Liquor Corp. v. Epstein, 370 U.S. 713, 715, 82 S.Ct. 1294, 1296, 8 L.Ed.2d 794 (1962) were that the "[district] court's inquiry is appropriately limited to determining whether the constitutional question raised is substantial, whether the complaint at least formally alleges a basis for equitable relief, and whether the case presented otherwise comes within the requirements of the three judge statute." But what is "substantial"? And who is to make this decision? Quite obviously, only the court of last resort-and even then the concept of rationality of legislative judgment may be decreed by the narrow margin of a five to four vote. Searching further in a field where precedent is supposedly helpful, we find that the district court may reject a constitutional claim "because its unsoundness so clearly results from the previous decisions of this court [the Supreme Court] as to foreclose the subject." California Water Service Co. v. City of Redding, 304 U.S. 252, 255, 58 S.Ct. 865, 867, 82 L.Ed. 1323 (1938).

This admonition requires research into decisions of the Supreme Court which might "foreclose the subject." If the decisions justify such a conclusion, the Supreme Court with all its pressing business should not have to cope with indiscriminate three judge appeals. This case is an example. The district judge hears the case and this court hears it. Four judges. Should this court send the case to a three-judge court, two more? Then to the Supreme Court. Fifteen judges in all will have reviewed the rationality of a legislative body. If we affirm, four judges will have been involved and the Supreme Court at least will have the privilege of deciding whether they wish to become further involved.

Recently the three judge court problem was considered by this court in Miller v. New York Stock Exchange, 425 F.2d 1074, cert. den. 398 U.S. 905, 90 S.Ct. 1696, 26 L.Ed.2d 64 (1970), wherein the question was whether "we must nevertheless reverse because the result was not so clearly predestined that he could dispense with having two other judges, possibly two of us, help him reach it-and this even though the State, for whose benefit the three-judge provision was enacted, was quite content to have him act alone." We concluded that it was unnecessary to reverse under these circumstances even though it denied the plaintiffs a direct appeal to the Supreme Court. We referred to the guidelines set

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forth in Green v. Board of Elections, 380 F.2d 445, 449 (2nd Cir.), cert. den., 389 U.S. 1048, 88 S.Ct. 768, 19 L.Ed.2d 840 (1967), Judge (now Chief Judge) Friendly saying:

"But [not having a direct appeal to the Supreme Court] is hardly of great moment in view of the immediate availability of certiorari to the Court of Appeals and the likelihood of this being granted if the Supreme Court thinks a constitutional claim may have been...

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