NATIONAL COALITION FOR PUBLIC ED., ETC. v. Califano
| Decision Date | 03 March 1978 |
| Docket Number | No. 76 Civ. 888 (CHT).,76 Civ. 888 (CHT). |
| Citation | 446 F. Supp. 193 |
| Parties | NATIONAL COALITION FOR PUBLIC EDUCATION AND RELIGIOUS LIBERTY et al., Plaintiffs, v. Joseph A. CALIFANO, Secretary of the United States Department of Health, Education and Welfare, et al., Defendants, and James Bovis et al., Intervenors-Defendants, and Philip Fenster et al., Intervenors-Defendants. |
| Court | U.S. District Court — Southern District of New York |
Leo Pfeffer, New York City, for plaintiffs.
Robert B. Fiske, Jr., U. S. Atty. for the Southern District of New York, New York City by Michael H. Dolinger, Asst. U. S. Atty., New York City, for defendants Califano and Boyer.
W. Bernard Richland, Corp. Counsel, City of New York, New York City by Beryl Kuder, Asst. Corp. Counsel, New York City, for defendant Anker.
Williams & Connolly, Washington, D. C., Martin, Obermaier & Morvillo, New York City by Edward Bennett Williams, Charles H. Wilson, Pierce O'Donnell, Washington, D. C., John S. Martin, Jr., New York City, for intervenors-defendants Bovis, et al.
National Jewish Commission on Law and Public Affairs, Brooklyn, N. Y. by Dennis Rapps, Brooklyn, N. Y., for intervenors-defendants Fenster, et al.
Before VAN GRAAFEILAND, Circuit Judge, and TENNEY and BRODERICK, District Judges.
In this action challenging the use of funds provided by the federal government to localities under Title I of the Elementary and Secondary Education Act of 1965 ("Title I"), 20 U.S.C. §§ 241a et seq., the plaintiffs, National Coalition for Public Education and Religious Liberty ("PEARL") and certain individual taxpayers, have moved for a preliminary injunction and for summary judgment. For the reasons stated below, these motions are denied. Plaintiff Albert Shanker has also moved for leave to withdraw as a plaintiff; his motion is granted.
Title I was enacted in 1965 to "bring better education to millions of disadvantaged youth who need it most." S.Rep. No. 146, 89th Cong., 1st Sess., reprinted in 1965 U.S.Code Cong. & Admin.News 1446, 1450. To achieve this end, the United States Commissioner of Education is authorized to make grants to local educational agencies according to certain established formulae. 20 U.S.C. § 241c. The program is to include the "educationally deprived children in the school district of the local educational agency who are enrolled in private elementary and secondary schools." Id. § 241e-1(a). In this context it should be noted that the Supreme Court has held that state authorities must seek to include students attending parochial schools in their Title I programs notwithstanding the logistical and constitutional problems inherent in providing services to such students. Wheeler v. Barrera, 417 U.S. 402, 94 S.Ct. 2274, 41 L.Ed.2d 159 (1974).
In 1966, more than a year-and-a-half after the passage of Title I a taxpayer suit challenging the use of Title I, funds to finance educational services in religious schools was instituted by a group of plaintiffs, two of whom are also now before this Court as plaintiffs. That action was dismissed for lack of standing by a three-judge court, Flast v. Gardner, 271 F.Supp. 1 (S.D. N.Y.1967); the Supreme Court reversed in a well-known decision. Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968). The action was pursued no further on remand, however, for the Flast plaintiffs had concluded, on the advice of their counsel (who is also representing the plaintiffs in the instant action), that the case should not be pursued "until the position of the Supreme Court on the contested issue was clarified." Affidavit of Leo Pfeffer, sworn to October 26, 1977, ¶ 7 ("Pfeffer Affidavit").
Some years later—on May 19, 1975—the Supreme Court decided Meek v. Pittenger, 421 U.S. 349, 95 S.Ct. 1753, 44 L.Ed.2d 217 (1975), holding unconstitutional certain aspects of a Pennsylvania state program of aid to predominantly church-related schools. This decision caused counsel for the plaintiffs to conclude that the time was ripe for further pursuit of the old claim. Accordingly, he wrote to and subsequently met with the Commissioner of Education, urging the discontinuance of the practice of "assigning teachers paid with federal funds to perform educational services in religious schools during regular school hours." Pfeffer Affidavit ¶¶ 9-10. When the plaintiffs received no response to their request for action, they instituted this suit in February 1976.
We do not feel that a preliminary injunction is warranted in this case. As the United States Court of Appeals for the Second Circuit recently emphasized, the plaintiff seeking a preliminary injunction Triebwasser & Katz v. American Tel. & Tel. Co., 535 F.2d 1356, 1359 (2d Cir. 1976). The manner in which this action has been prosecuted reveals the absence of such irreparable harm to these plaintiffs: they waited eleven years from the enactment of Title I, eight years from the decision in their favor in Flast v. Cohen, supra, and 20 months from the commencement of this action to request a preliminary injunction. No mention of preliminary injunctive relief was made to the Court in the pretrial conference held on October 12, 1977.
Moreover, if the absence of irreparable harm to these plaintiffs is compared to the hardship which an injunction would cause to the defendants in this case, the inappropriateness of a preliminary injunction becomes even clearer. In New York City alone, Title I funds to be expended for the current academic year (1977-78) amount to more than $10,000,000; services are being provided to over 13,000 pupils through the employment of more than 400 persons. Affidavit of Lawrence F. Larkin, sworn to November 21, 1977, ¶¶ 4, 8-9. To halt this program in the middle of an academic year, at a time which can only be deemed arbitrary in light of the history of this litigation, would be to work an unwarranted hardship on these defendants. Such relief would also harm the public interest in the continuity of educational programs, a factor which must also be weighed by this Court. See Brown & Williamson Tobacco Corp. v. Engman, 527 F.2d 1115, 1121 (2d Cir. 1975), cert. denied, 426 U.S. 911, 96 S.Ct. 2237, 48 L.Ed.2d 837 (1976). Accordingly, the plaintiffs' request for a preliminary injunction is denied.
Plaintiffs argue that they are entitled to summary judgment because the Supreme Court twice "has faced the constitutional question raised in this case, and in both instances it has ruled the challenged statute unconstitutional on its face." Plaintiffs' Memorandum 2, relying on Meek v. Pittenger, 421 U.S. 349, 95 S.Ct. 1753, 44 L.Ed.2d 217 (1975), and Public Funds for Public Schools v. Marburger, 358 F.Supp. 29 (D.N.J.) (three-judge court), aff'd mem., 417 U.S. 961, 94 S.Ct. 3163, 41...
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National Coalition for Public Ed. v. Harris
...Memorandum in Support of Motion for Summary Judgment at 2. The Court denied both motions. National Coalition for Public Education and Religious Liberty v. Califano, 446 F.Supp. 193, 196 (S.D.N.Y.1978). Not only did the plaintiffs fail to show the threat of irreparable injury that is a prere......