Johnson v. New York State Education Department
Decision Date | 28 October 1970 |
Docket Number | No. 70-C-1174.,70-C-1174. |
Citation | 319 F. Supp. 271 |
Parties | Daisy JOHNSON, Dorothy Miller, Forestine Pressy, individually and on behalf of their minor children and on behalf of all others similarly situated, Plaintiffs, v. NEW YORK STATE EDUCATION DEPARTMENT, Ewald B. Nyquist, as Commissioner of the New York State Education Department, and the Board of Education of Union Free School District No. 27, Town of Hempstead, and Edward Moyer, as Superintendent of the Schools of Union Free School District No. 27, Town of Hempstead, Defendants. |
Court | U.S. District Court — Eastern District of New York |
Leonard S. Clark, Westbury, N. Y., for plaintiffs, Carl Jay Nathanson, Freeport, N. Y., Burr C. Hollister, Mineola, N. Y., of counsel.
Louis J. Lefkowitz, Atty. Gen. of New York, for New York State Dept. of Ed. and Ewald B. Nyquist, as Commissioner of the New York State Ed. Dept., Joel Lewittes, Iris Steel, Asst. Attys. Gen., of counsel.
Henry A. Weinstein, for Bd. of Ed., Union Free School Dist. No. 27, Town of Hempstead, and Edward Moyer, as Superintendent of the Schools of Union Free School Dist. No. 27.
The three plaintiffs are recipients of public assistance and are the parents of six elementary school children who are currently attending schools operated by the Board of Education of Union Free School District No. 27, Town of Hempstead, hereinafter called the "Board." The defendants are the Board, its Superintendent of Schools, Edward Moyer, the New York State Education Department and the Commissioner of Education, Ewald B. Nyquist.
Plaintiffs allege this to be a class action and, therefore, sue individually and on behalf of their minor children and on behalf of all others similarly situated. They challenge the constitutionality of Section 701 of the New York Education Law, McKinney's Consol.Laws, c. 16, and claim that said section is violative of the Fourteenth Amendment of the Constitution of the United States in that it has the effect of denying plaintiffs equal protection of the laws.
Section 701 provides, in part:
Plaintiffs seek the convening of a three-judge District Court pursuant to 28 U.S.C. §§ 2281 and 2284, a preliminary and permanent injunction enjoining the defendants from enforcing Section 7011 and a declaratory judgment declaring said section unconstitutional.
It is alleged that on or about August 31, 1970, plaintiffs were advised by letter from the Board that all children in grades one to six would be required to pay a $7.50 rental charge on the first day of school for the loan of textbooks; that last year the plaintiffs' children, along with all the other children in those grades, received their textbooks without charge; and that on the first day of school this year, textbooks were distributed to all children who paid the rental charge. Plaintiffs also allege that they are recipients of public assistance from the Nassau County Department of Social Services under the Aid to Families with Dependent Children program, and are unable to pay the rental charge,2 and as a result their children have not received any textbooks.
The imposition of a rental charge for textbooks in grades one to six for the current school year resulted from the action of the local voters in rejecting budgets submitted by the Board in accordance with Section 1716 of the Education Law. On three occasions, the local voters refused to approve a budget.3 In rejecting the budgets the voters also rejected a tax for the purchase and loan of textbooks free to the children in grades one to six. Authorization for such tax is provided in Section 703 of New York's Education Law.
Section 703 provides:
As a result, the Board proceeded in accordance with Section 2023 of the New York Education Law which authorizes the Board to levy a tax in the absence of voter approval for the amount estimated to be necessary for teachers' salaries and for ordinary contingent expenses. The Board claimed that it could not consider textbooks for grades one to six to be acceptable ordinary contingent expenses. It based such decision on Opinion 213 of Counsel to the Education Department, dated July 6, 1967. Hence, no tax was levied to cover the cost of the textbooks for grades one to six.
The plaintiffs' claim, in essence, is that Section 701 violates the equal protection clause of the Fourteenth Amendment since it "has arbitrarily and unreasonably created two classes of pupils, those in grades seven to twelve, who will receive free textbooks, and those in grades one through six, who must pay for textbooks" in the absence of § 703 voter approval of a tax to pay for such textbooks.
It must be borne in mind that Section 701 grants free textbooks to children in grades seven to twelve only to the extent of Ten Dollars ($10) per pupil after the school year 1969-1970. Section 701(6b).
At the outset we are faced with the question of this Court's jurisdiction. Although the defendants have not raised the question of jurisdiction, this Court may raise that question on its own motion. Thompson v. New York Cent. R. Co., 361 F.2d 137 (2d Cir. 1966). In fact, it is this Court's duty to determine, sua sponte, whether it has jurisdiction. Forgione v. United States, 202 F.2d 249 (3d Cir. 1953), cert. denied, 345 U.S. 966, 73 S.Ct. 950, 97 L.Ed. 1384 (1953); Fullana Corp. v. Puerto Rico Planning Bd., 257 F.2d 355 (1st Cir. 1958). The signing of a show cause order does not prevent a subsequent determination that there is no jurisdiction. Laughlin v. Cummings, 70 App.D.C. 192, 105 F.2d 71 (1939).
In their complaint the plaintiffs base the jurisdiction of this...
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