BOARD OF ED. OF CITY OF NY v. US DEPT. OF HE & W.

• Citation: 384 F. Supp. 816
• Decision Date: 15 October 1974
• Docket Number: No. 74 Civ. 2830.,74 Civ. 2830.
• Parties: The BOARD OF EDUCATION OF the CITY SCHOOL DISTRICT OF the CITY OF NEW YORK et al., Plaintiffs, v. The UNITED STATES DEPARTMENT OF HEALTH, EDUCATION AND WELFARE et al., Defendants.
• Court: U.S. District Court — Southern District of New York

384 F. Supp. 816

The BOARD OF EDUCATION OF the CITY SCHOOL DISTRICT OF the CITY OF NEW YORK et al., Plaintiffs, v. The UNITED STATES DEPARTMENT OF HEALTH, EDUCATION AND WELFARE et al., Defendants.

No. 74 Civ. 2830.

United States District Court, S. D. New York.

October 15, 1974.

Frances Loren, New York City, for Adrian P. Burke, Corp. Counsel, City of New York, for plaintiffs.

Charles F. Richter, New York City, for Paul J. Curran, U. S. Atty., S. D. N. Y., for defendants.

OPINION AND ORDER

OWEN, District Judge.

Plaintiffs, the Board of Education of the City School District of the City of New York, New York City Community School Board No. 6 and New York City Community School Board No. 26, move for a preliminary injunction pursuant to Rule 65, Fed.R.Civ.P. Plaintiffs seek to enjoin the defendants, the United States Department of Health, Education and Welfare ("HEW") from further obligating, disbursing or otherwise expending any monies from funds initially allocated pursuant to the Emergency School Aid Act ("ESAA"), 20 U.S.C. § 1601 et seq., to New York State for the fiscal year 1974-75, to any other local educational agency or institution outside of New York City. Having carefully reviewed all the affidavits and exhibits submitted to me on the motion, and having held an evidentiary hearing,¹ I conclude that the preliminary injunction should not issue. The facts upon which I reach this conclusion are as follows.

Each of the above named plaintiffs submitted applications for ESAA grants to HEW for the fiscal year 1974.

The ESAA was enacted in 1972 to provide financial assistance (1) to meet the special needs incident to the elimination of minority group segregation and discrimination among students and faculty in elementary and secondary schools; (2) encourage the voluntary elimination, reduction or prevention of minority group isolation in elementary and secondary schools with substantial proportions of minority group students; and (3) aid school children in overcoming the educational disadvantages of minority group isolation. By its terms ESAA grants are only for one year, and the awarding of such grants is placed in the discretion of the Assistant Secretary of Education of HEW.

Although there are several types of ESAA grants, the two for which plaintiffs applied are basic² and pilot³ grants which are given to local educational agencies ("LEA's").

All of the applications for grants submitted by the plaintiffs in 1974 were rejected by HEW, because of claimed inferior educational quality. It is these rejections which form the basis of the present action.

For the fiscal year 1974, the second year in which ESAA grants were made, Congress appropriated funds in the amount of $236,493,000. The appropriations act required that all ESAA grants be made by June 30, 1974, the end of the fiscal year. Any unallocated money remaining after that date would be returned to the Treasury. All monies appropriated by Congress for ESAA basic and pilot grants in fiscal year 1974, were already obligated by HEW by June 28, 1974, the date plaintiffs commenced this action.

Because New York City has decentralized its school system and thus contains many LEA's and because many of these applied for ESAA grants, competition this year was more intense than last year.⁴

In December 1973, plaintiffs Districts No. 6 and 26, submitted applications for basic grants for 1974 and plaintiff Board of Education of the City School District of the City of New York (Central Board) applied for both basic and pilot grants. Before their applications were submitted, plaintiffs were told that $17,500,000 had been allocated to New York State as a whole, for basic and pilot grants. However, the Central Board alone sought over $22,000,000, District No. 6 sought $953,000, and District 26 sought $1,373,170.

Plaintiffs' applications were evaluated by the defendants according to procedures applied uniformly throughout the country.⁵

As part of the review, and in order to compare competing applications, both a statistical and quality score were assigned to each application. These scores were then totalled to arrive at a composite score.⁶

According to the affidavits, exhibits, and the testimony at the hearing, it is undisputed that Jack Simms, the Program Manager, Bureau of Equal Opportunity Education, Region II, met with representatives of the plaintiffs before they submitted their original applications. He explained to these representatives how to prepare an application and how that application would be evaluated. He gave these representatives copies of the administrative manual which plaintiffs admitted they knew was "the bible" for purposes of preparing ESAA applications. He told the representatives that the fact that New York City had received ESAA grants in Fiscal 1973 did not guarantee that they would receive such grants in Fiscal 1974, since the grants are only for one year and each year's grants are the result of a totally new competition.

Mr. Simms testified that once all the original applications in New York State had been received, they were assigned statistical quality composite scores, were grouped according to the type of grant applied for, and then ranked. Mr. Simms then conducted a final independent review of all applications and made recommendations to the Regional Commissioner who had been delegated authority to approve ESAA basic and pilot grants.

The applications for funding were then approved in the order of their rank. However, pursuant to the Act in 45 C.F.R. § 185.14(c) (2) and § 185.24(c), no application was considered no matter what its composite score, if its quality score was so low as to show insufficient educational merit. HEW had established minimum quality scores to ensure uniformity throughout the Nation. Mr. Simms testified that all plaintiffs' original applications were rejected for that reason. These rejections were based upon recommendations of a four member non-federal panel operating under the supervision of a proper federal officer. Before making any recommendation, Mr. Simms read all applications and the panelists' evaluation. As to the rejected applications, Mr. Simms stated that he agreed with the low quality scores below the required minimums. The Regional Commissioner, after an independent review, concurred in Mr. Simms recommendations.

All plaintiffs were informed by February 28, 1974 that their original applications had been rejected. Districts 6 and 26 were given the reasons for the rejections in writing. The Central Board did not receive a written appraisal of its application. This departure from usual practice was occasioned by the extensiveness of the Central Board's application and the many reasons for its rejection. Mr. Simms therefore personally informed the Central Board's representatives of the reasons for the application's low quality scores and ways to improve the application.

All the plaintiffs resubmitted their proposals in March 1974, in some cases incorporating the suggestions made by HEW, in other cases not.

Thereafter, by a form letter dated May 10, 1974, the Central Board and Districts 6 and 26 were informed that all the resubmitted proposals were disapproved for lack of sufficient merit and insufficient need to warrant funding.

Plaintiffs claim that the specific reasons for final disapproval of the Central Board's applications were not forthcoming from HEW until June 4, despite requests for this information. Plaintiffs further claim that the reasons for disapproval stated on June 4 were not the same as those given in February by Mr. Simms.

Turning to the law applicable, a plaintiff seeking a preliminary injunction has the burden of showing either (1) a combination of probable success on the merits and the possibility of irreparable injury, or (2) the existence of serious questions going to the merits of the case and that the balance of hardships tip sharply in its favor. Stark v. New York Stock Exchange, 466 F.2d 743 (2d Cir. 1972). Where appropriate, the Court may also consider the extent of substantial harm to others, including the public interest if the injunction is granted. Yakus v. United States, 321 U.S. 414, 64 S.Ct. 660, 88 L.Ed. 834 (1944); Eastern Airlines v. Civil Aeronautics...