Bynes v. Toll

• Decision Date: 06 February 1975
• Docket Number: No. 544,544
• Citation: 512 F.2d 252
• Parties: William and Denise BYNES, on behalf of themselves and their infant child, Terrance Bynes, et al., Plaintiffs-Appellees, v. John S. TOLL, Individually and in his capacity as President of the State University of New York at Stony Brook, and Roger V. Phelps, Individually and in his capacity as Director of Housing of the State University of New York at Stony Brook, Defendants-Appellants. Docket 74-2433.
• Court: U.S. Court of Appeals — Second Circuit

Page 252

512 F.2d 252

William and Denise BYNES, on behalf of themselves and their infant child, Terrance Bynes, et al., Plaintiffs-Appellees, v. John S. TOLL, Individually and in his capacity as President

of the State University of New York at Stony Brook, and

Roger V. Phelps, Individually and in his capacity as

Director of Housing of the State University of New York at

Stony Brook, Defendants-Appellants.

No. 544 Docket 74-2433.

United States Court of Appeals, Second Circuit.

Argued Dec. 12, 1974.

Decided Feb. 6, 1975.

Stephen Dobkin, Brooklyn, N. Y. (Brooklyn Legal Services, John C. Gray, Jr., Brooklyn, N. Y., Ellen Zweibel, New York City, on the brief), for plaintiffs-appellees.

A. Seth Greenwald, Asst. Atty. Gen., New York City (Louis J. Lefkowitz, Atty. Gen. of N. Y., Samuel A. Hirshowitz, First Asst. Atty. Gen., of counsel), for defendants-appellants.

Before FEINBERG and MULLIGAN, Circuit Judges, and BRYAN, ^* District Judge.

MULLIGAN, Circuit Judge:

This appeal raises the question whether the State University of New York at Stony Brook is constitutionally required to allow married students with children to live in dormitory suites provided for married students without children.

The plaintiffs are married students at Stony Brook who instituted a civil rights action under 42 U.S.C. § 1983 on November 27, 1973 in the United States District Court, Eastern District of New York, challenging a University residency requirement, incorporated in all housing agreements between the University and the students, which bars children of students from living in married-student suites. The defendants are the President and the Director of Housing of the said University, respectively. The gravamen of the complaint is that the ban on children's residence on campus constitutes a denial of equal protection and a compulsory waiver of the parents' right of marital privacy and the right to raise their children as they see fit. ¹

On June 26, 1974 District Judge Orrin G. Judd denied plaintiffs' motion for a preliminary injunction and also denied the defendants' motion to dismiss. After a trial on the merits, Judge Judd in a memorandum of decision dated October 31, 1974 enjoined the defendants from enforcing against any of the plaintiffs the provisions of any residency agreement which would prohibit children from residing in married couples' suites in the University. On November 6, 1974 a panel of this court granted the defendants' motion for a stay pending appeal. On November 14, Judge Judd entered an order granting a permanent injunction and also granted the plaintiffs a priority in moving back into married students' suites. At this time all the named plaintiffs have moved to off-campus housing. Moreover, by reason of increased demand for this housing by single students, the University has announced that all on-campus married-student housing will be eliminated starting in September 1975. This would in effect render this appeal moot except that the plaintiffs have also sought money damages in the aggregate of $54,000. We therefore turn to the merits of the appeal.

I. FACTS

The residence units at Stony Brook include suites, consisting of two or three bedrooms, a common living room, and a private bath with shower but no tub. ² Though originally intended to accommodate single students of the same sex, some of the suites were made available on a temporary basis to married students in the fall of 1972, when the demand for them by single students declined.

Each residence building has basement laundry facilities. Many floors contain lounge areas, which, while not originally intended for use by children, were used by them in the past with no apparent interference to students. ³ Cooking is now permitted in dormitory rooms, on small appliances (e. g., hot plates) furnished by the students themselves. The University has promulgated regulations for cooking in rooms, in an attempt to minimize fire hazards, but there have still been 53 fires in dormitory rooms during the period January 1, 1973-June 30, 1974. The dormitories are fireproof and all suites are equipped with automatic fire alarms and extinguishers. Lastly, there is a day-care center on campus.

It is not disputed that children of the faculty and staff are permitted to live on campus; however they do not reside in student suites but in special apartments built as family quarters in the dormitories. Children of students may visit their parents on campus until 9 p. m. There is no evidence of complaints by other students to the presence of live-in children in the dormitories.

Off-campus housing is available for married students, though at a significant increase in rent over on-campus housing; ⁴ in addition, many off-campus housing facilities do not permit children at all.

All the plaintiffs concededly signed the University's form residence agreement, which incorporated the ban on children living in married-student housing. Threatened with eviction and other penalties for violation of the ban, plaintiffs were forced either to vacate their on-campus housing or to board their children off-campus. As a result they instituted this action in November 1973.

II. CONSTITUTIONAL CONSIDERATIONS

We agree with the court below that the appropriate "test" to be applied to the constitutional claim involved here is the traditional "limited scrutiny" standard. In discussing this standard, Chief Justice Warren stated in McGowan v. Maryland, 366 U.S. 420, 425-26, 81 S.Ct. 1101, 1105, 6 L.Ed.2d 393 (1961) with respect to the equal protection clause:

The constitutional safeguard is offended only if the classification rests on grounds wholly irrelevant to the achievement of the State's objective.... A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.

To the same effect is his opinion in McDonald v. Board of Election Comm'rs, 394 U.S. 802, 809, 89 S.Ct. 1404, 22 L.Ed.2d 739 (1969).

Regardless of academic suggestions that the Supreme Court was in the process of adopting an intermediate equal protection test, which we have recently discussed in Noel v. Chapman, 508 F.2d 1023, 1028 (2d Cir. 1975), it seems clear that the traditional limited scrutiny test is applicable here. The most recent formulation of this test appears in Village of Belle Terre v. Boraas, 416 U.S. 1, 94 S.Ct. 1536, 39 L.Ed.2d 797 (1974), which involved a village zoning regulation directed against the housing of unmarried people in single family dwellings. In that case the Court upheld the ordinance despite the claim that it violated equal protection rights. The Court held that the ordinance was "reasonable, not arbitrary" and that it bore " 'a rational relationship to a (permissible) state objective.' " 416 U.S. at 8, 94 S.Ct. at 1540 (citations omitted).

There is no claim that the classification here is made on any "suspect" basis. Moreover it is well established that the right to housing is not a fundamental interest which would require the more stringent "compelling state interest" test. Lindsey v. Normet, 405 U.S. 56, 73-74, 92 S.Ct. 862, 31 L.Ed.2d 36 (1972). Appellants have urged that the right of marital privacy and the right to raise their children as they see fit somehow change the issue here. We cannot agree. The same argument might well be raised in every case where housing is denied or occupancy is sought beyond the terms of the lease. The Court in Lindsey v. Normet, supra, 405 U.S. at 74, 92 S.Ct. at 874, was explicit:

But the Constitution does not provide judicial remedies for every social and economic ill. We are unable to perceive in that document any constitutional guarantee of access to dwellings of a particular quality, or any recognition of the right of a tenant to occupy the real property of his landlord beyond the term of his lease without the payment of rent or otherwise contrary to the terms of the relevant agreement.

The relevant regulation here of course precluded occupancy by children of married students; each of the plaintiffs in this case signed agreements in which they pledged to abide by this and other University Housing Regulations and so must have recognized that their failure to abide by them subjected them to appropriate University sanctions.

The University here is not interfering with the marital privacy of the plaintiffs or their unquestioned natural right to bring up their children. They are totally free to procreate and educate their offspring-the only question is whether the University is constitutionally mandated to provide them campus housing to perform their protected prerogatives. A comparable argument was recently made by resident aliens who complained that the deportation of their spouses precluded their constitutional right to live together in marriage. This claim was rejected in Noel v. Chapman, supra, as it had been in Silverman v. Rogers, 437 F.2d 102 (1st Cir. 1970), cert. denied, 402 U.S. 983, 91 S.Ct. 1667, 29 L.Ed.2d 149 (1971), and Swartz v. Rogers, 103 U.S.App.D.C. 1, 254 F.2d 338, cert. denied, 357 U.S. 928, 78 S.Ct. 1373, 2 L.Ed.2d 1372 (1958). In Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970) the argument was made in dissent that a $250 maximum per family welfare grant, regardless of the size of the family or its computed need, would encourage families to live apart. Rejecting this position, the Court upheld the regulation, stating:

In the area of economics and social welfare, a State does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect. If the classification has some "reasonable basis," it does not offend the Constitution simply because the classification "is not made with mathematical nicety or because in practice it results in some inequality."

Id. at 485, 90 S.Ct. at 1161.

In addition to all of this, the housing involved in this case is that which is provided by an educational institution which traditionally...