Campbell v. Board of Education

• Decision Date: 11 February 1970
• Docket Number: No. 70-C-93.,70-C-93.
• Citation: 310 F. Supp. 94
• Parties: Margaret CAMPBELL et al., Plaintiffs, v. The BOARD OF EDUCATION et al., Defendants.
• Court: U.S. District Court — Eastern District of New York

310 F. Supp. 94

Margaret CAMPBELL et al., Plaintiffs, v. The BOARD OF EDUCATION et al., Defendants.

No. 70-C-93.

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

February 11, 1970.

Howard I. Kalodner, New York City, for plaintiffs, Lawrence H. McGaughey, Williamsburg Legal Services, Richard S. Panebianco, Attorney-in-Charge, Arnold Rothbaum, Brooklyn, N. Y., of counsel.

Louis J. Lefkowitz, Atty. Gen. of State of N. Y., New York City, for defendants, Daniel M. Cohen, Asst. Atty. Gen., J. Lee Rankin, Corp. Counsel, Irwin L. Herzog, New York City, of counsel.

MEMORANDUM, ORDER, FINDINGS OF FACT AND CONCLUSIONS OF LAW FOR PURPOSES OF PRELIMINARY INJUNCTION

WEINSTEIN, District Judge.

In this class action for an injunction against local school board elections in New York City, plaintiffs attack the constitutionality of the State statute under which the defendants, the Boards of Education and Elections, propose to act. The complaint alleges that the system of proportional representation adopted by the State will result in deprivation of equal protection of the laws and denial of due process. Since the constitutionality of a state statute has been drawn into question, notice of this action has been given by order of the Court to the Attorney General of the State of New York. Upon its motion, the State was allowed to intervene as a defendant.

Plaintiffs' claim — a novel one in the federal courts, as they concede — is that the voting plan is illegal because ballots are counted using a system that may, through the operation of chance, aid some candidates at the expense of others or enable some votes to have a greater effect than others. Defendants have moved to dismiss for failure to state a cause of action. Since the challenged statute applies only locally, it is not necessary to convene a three-judge court. 28 U.S.C. § 2281; Moody v. Flowers, 387 U.S. 97, 87 S.Ct. 1544, 18 L.Ed.2d 643 (1967). For the reasons below, and because the plaintiffs have failed to make "a clear showing of probable success" (Clairol Inc. v. Gillette Co., 389 F.2d 264, 265 (2d Cir.1968)), the motion for a preliminary injunction must be denied.

There are still a number of unresolved questions of fact; the statistical and other data underlying this dispute were not developed at the hearing on the motion for a preliminary injunction with clarity sufficient to warrant a final judgment. Decision on motions to dismiss and for summary judgment should be held in abeyance to permit the parties to gather and present further evidence should they choose to do so.

Because of the imminence of elections, we assume that plaintiffs will wish to take an immediate interlocutory appeal pursuant to section 1292(a) (1) of Title 28 of the United States Code from this order refusing the preliminary injunction. The posture of the case has been set out below in some detail in order to render as much assistance as possible to the Court of Appeals and to the parties. The conclusions are tentative, made only for the purpose of deciding the motions before us.

I. BACKGROUND

The New York State Legislature, unlike Congress, often provides scanty legislative history. Because of this, in determining the factual basis for its actions in any litigation challenging the constitutionality of one of its laws, extensive resort to judicial notice is required to appraise the factual basis for its action, See, e.g., Turner v. United States, 396 U.S. 398, 90 S.Ct. 642, 24 L. Ed.2d 610 (1969); Leary v. United States, 395 U.S. 6, 38, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969); Kramer v. Union Free School District No. 15, 282 F.Supp. 70, 76 (1968) (dissent), reversed 395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583 (1969); Karst, Legislative Facts in Constitutional Litigation, 1960 Sup.Ct. Rev. 75, 77, 84; Alfange, The Relevance of Legislative Facts in Constitutional Law, 114 U. of Pa. L.Rev. 637 (1966). Accordingly, we turn to the facts as the New York Legislature might have viewed them.

A. Educational Problems in New York City.

This Court is no stranger to the controversies that, in recent years, have swirled about public education in the City of New York. Knight v. Board of Education, 48 F.R.D. 108, 115 (E. D.N.Y.1969); Oliver v. Donovan, 293 F.Supp. 958 (E.D.N.Y.1968). The history of public education in New York for the past few years has been one of crisis and confrontations, legal actions, threats, claims and denials. See, e. g., M. Berube & M. Gittell, Confrontation at Ocean Hill-Brownsville (1969); P. Sexton, Spanish Harlem (1965). Within this period, extensive studies have been made of the school system, and numerous solutions have been proposed to settle the continuing controversies. See, e. g., Mayor's Advisory Panel on Decentralization of the New York City Schools, Reconnection for Learning (1967); Board of Education, City of New York, Decentralization — Statement of Policy (1967), reprinted in part in M. Berube & M. Gittell, Confrontation at Ocean Hill-Brownsville 17 (1969). In response to demands for reform — largely centered about proposals for more local control of schools, see, e. g., Oliver v. Donovan, 293 F.Supp. 958 (E.D.N.Y. 1968); Oliver v. Board of Education, 306 F.Supp. 1286 (S.D.N.Y.1969) — the State of New York adopted a decentralization program for New York City's schools. L.1969, c. 330, as amended, L.1969, c. 422 (1969), as amended, L.1970, c. 3 (1970). Under this plan local school boards — with much greater autonomy than heretofore existed — were to be created. It is in the context of this history and of the pervasive educational, social and political problems that it reflects that the action of the State must be viewed.

B. Urban Educational Crisis.

New York City — like metropolitan areas throughout the United States — is faced with problems that cut across the entire fabric of urban life. Growth and large population movements have added to increasing frustration and alienation on the part of residents. Lost and isolated among the multitudes of the city, some individuals have come to believe that they have no influence or control over the actions of government most intimately affecting their day-to-day lives. J. Bollens and H. Schmandt, The Metropolis 218-20 (1965); Herson, The Lost World of Municipal Government, in Urban Government 3, 18 (E. Banfield ed. 1961); Warren, Politics in the Ghetto System, in Politics and the Ghettos 11, 28 (R. Warren ed. 1969).

Nowhere in urban life is this feeling of impotence and lack of identity in the face of the huge metropolitan governmental machine more likely to be felt than in the area of public education. Effective control of large educational systems has, some assert, been entrusted to a professional educational elite, effectively responsible to no one outside the confines of the profession. See, e. g., M. Gittell, Participants and Participation 23-31 (1967); Rosenthal, Pedagogues and Power, in Educating an Urban Population 185 (M. Gittell ed. 1967); Eliot, Public School Politics, in Urban Government 515 (E. Banfield ed. 1961). The result of this tendency, some argue, has been the development of what they have termed the "fortress school," one relatively isolated from the community's problems and insufficiently responsive to its needs. See P. Schrag, Village School Downtown 163-64 (1967); P. Sexton, Spanish Harlem 149-50 (1965).

It has been claimed by some that centralized, city-wide administration permits schools to ignore local needs. Centralized agencies, so the argument goes, have been among the causes of the failure of the schools to produce graduates sufficiently trained to function effectively as citizens and participants in urban political and social life. But cf. Cunningham, Models for Model City Management, in Education and Urban Renaissance 95, 97 (R. Campbell, L. Marx & R. Nystrand eds. 1969); Recommendations, in Id. at 133, 136-43 (schools are more efficiently administered than other local agencies but substantial changes are needed). Whatever the cause, studies conducted throughout the nation have underlined the fact that students in central-city schools fail to match the achievements of those attending schools of outlying urban and suburban areas.

"The most comprehensive review of the New York City school system in the last ten years was a 1962 report of the State Education Department. Its major conclusions were:

1. Pupil achievement is generally below the rest of the state. A large proportion of high school students fail to meet minimum standards.

2. Major improvements in curriculum are needed, particularly at the elementary and junior high school levels.

3. The caliber and preparation of the teaching staff are very uneven.

4. Classes are too large, with concomitant results that the staff has heavier teaching loads and more housekeeping chores than are educationally desirable.

5. The areas of greatest need often have the poorest and least experienced teachers.

6. Supplementary social and psychological services are inadequate.

7. Many old, unsound school buildings are still in use.

8. The procedures of the Board of Examiners need to be replaced by less time-consuming methods of teacher selection." (Footnote omitted.) Mayor's Advisory Panel on Decentralization of the New York City Schools, Reconnection for Learning 89 (1967). See also, e. g., P. Sexton, Education and Income 27-28, 30, 139-40 (1961) (Detroit); Toward Creating a Model Urban School System 96-99 (A. H. Passow ed. 1967) (Washington, D.C.); Campbell & Shalala, Problems Unsolved, Solutions Untried: The Urban Crisis, in The American Assembly, The States and the Urban Crisis 11-13 Campbell ed. 1970).

C. Decentralization As A Possible Solution.

A remedy that has been frequently suggested for urban school deficiencies is decentralization. See generally Note, Urban School Decentralization: The Problem of the One and the Many, 5 Colum.J.L. & Social Problems 137 (1969). Proponents assert that local community control of schools will result in...