Reid v. Board of Education of City of New York, 253

• Decision Date: 14 December 1971
• Docket Number: Docket 71-1791.,No. 253,253
• Citation: 453 F.2d 238
• Parties: Riley REID, a minor under the age of 21 years, by his mother, Ellen Hoffman, and Benjamin Kennedy, a minor under the age of 21 years, by his mother, Virginia Kennedy, on behalf of themselves and all others similarly situated, Plaintiffs-Appellants, v. The BOARD OF EDUCATION OF the CITY OF NEW YORK, and Harvey B. Scribner, individually and as Chancellor of the Board of Education, Defendants-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

453 F.2d 238 (1971)

Riley REID, a minor under the age of 21 years, by his mother, Ellen Hoffman, and Benjamin Kennedy, a minor under the age of 21 years, by his mother, Virginia Kennedy, on behalf of themselves and all others similarly situated, Plaintiffs-Appellants, v. The BOARD OF EDUCATION OF the CITY OF NEW YORK, and Harvey B. Scribner, individually and as Chancellor of the Board of Education, Defendants-Appellees.

No. 253, Docket 71-1791.

United States Court of Appeals, Second Circuit.

Argued November 9, 1971.

Decided December 14, 1971.

Lawrence J. Fox, New York City (Community Action for Legal Services, Inc., New York City, Marttie Louis Thompson, David Rudenstine, New York City, of counsel), for plaintiffs-appellants.

Mary P. Bass, New York City (J. Lee Rankin, Corp. Counsel, Stanley Buchsbaum, New York City, of counsel), for defendants-appellees.

Before KAUFMAN and MANSFIELD, Circuit Judges, and LEVET, District Judge.^*

IRVING R. KAUFMAN, Circuit Judge:

This dispute centers around the special public school classes provided by the Board of Education of the City of New York for brain-injured and other handicapped children. Ellen Hoffman and Virginia Kennedy appeal on behalf of their respective sons, Riley Reid and Benjamin Kennedy, two unfortunate ten-year-old brain-injured children, from an order of Judge Metzner dismissing their complaint.

The complaint alleged that the Board and Harvey Scribner, as Chancellor of the New York school system, deprived Riley Reid and Benjamin Kennedy of due process of law, the equal protection of the law and the right to a free public education, all in contravention of the fourteenth amendment, by failing to screen applicants for these classes within a reasonable time and by failing to provide special classes for all eligible children.¹

Although the complaint is sparse, the allegations reveal the urgency of appellants' grievances. We are informed that Riley Reid, who has been diagnosed as minimally brain injured by the Child Psychiatric Evaluation Research Unit of the New York State Department of Mental Health, applied for placement in a special class on September 1, 1970. As of February, 1971, Riley had passed the first part of the screening process, but had not yet received a diagnostic evaluation, which comprises the second part.² Riley's mother allegedly was told that it would be approximately one year from time of screening (assuming Riley is found eligible) until placement. To the best of our knowledge, Riley's application still has not been fully processed. Thus, at a minimum, Riley will have waited at least 28 months from time of application until placement. During the intervening period, Riley withdrew from regular public school under a medical discharge because he was receiving no benefit and, it was alleged, being "severely injured." He now receives no formal education other than a few hours each week of home instruction,³ and is falling further behind his peers, while his handicap becomes progressively more difficult to treat.

Benjamin Kennedy was placed on the waiting list in March, 1970. Although found eligible in January of this year, he has yet to be placed in a special class. His mother allegedly has been advised that he may have to wait as long as two years. Benjamin, at the date of the complaint, was attending regular public school.

Appellants brought this action under 42 U.S.C. § 1983, asserting jurisdiction under 28 U.S.C. §§ 1343(3) and (4), on behalf of all brain-injured children eligible for the New York City special classes. According to the complaint, there are more than 400 children who, like Riley Reid, have applied for admission but have not been screened, and more than 200 children who have been declared eligible but have not been placed. "If all the children on the waiting list were screened promptly," the complaint tells us, "the inadequacy of the number of classrooms would be even more pronounced."

Appellants sought a preliminary and permanent injunction enjoining defendants "to provide special public school classes with adequate staff and resources for all eligible brain-injured children and to provide proper screening within a reasonable time for plaintiffs and all others similarly situated," as well as a declaratory judgment that defendants had violated the 14th amendment and the constitutional right to a free public education. On June 22, 1971, acting upon appellants' motion for a preliminary injunction and appellees' cross-motion for dismissal under Rule 12(b) (1) or (6), Judge Metzner dismissed the complaint, holding that the facts of the case called for exercising the doctrine of abstention. Although we agree that it was proper for the district court to stay its hand,⁴ Judge Metzner should have retained jurisdiction pending the determination of appellants' state law claims in the New York courts.

I.

Although appellants did not append state law claims to their complaint, it appears clearly that they have both a substantial statutory and constitutional claim under New York law. Section 4404, subd. 2 of the New York Education Law (McKinney's Consol.Laws, c. 16, 1970) requires "the board of education of each city . . . to furnish suitable education facilities for handicapped children by means of home-teaching, transportation to school or by special class. . . . Where there are ten or more handicapped children who can be grouped homogeneously in the same classroom for instructional purposes such board shall establish such special classes as may be necessary to provide instruction adapted to the mental attainments and physical conditions of such children."⁵ Under section 4401, a "handicapped child" is defined as "one who, because of mental, physical or emotional reasons, cannot be educated in regular classes but can benefit by special services and programs. . . ." We cannot say at this juncture of the case that the New York City Board of Education is not in default of its statutory obligations by not providing prompt screening and placement for all eligible brain-injured children. Moreover, Riley and Benjamin and the members of the class they represent may have been deprived of their rights under Article XI, section I of the New York Constitution:

The legislature shall provide for the maintenance and support of a system of free common schools, wherein all the children of this state may be educated.

Under these circumstances, where a decision under state law might obviate the necessity of a federal constitutional determination, but the state law is unclear and a federal adjudication under the court's pendent jurisdiction would thrust the federal courts into a sensitive area of state administration, the federal courts should abstain.

Almost 150 years ago Chief Justice Marshall wrote:

It is most true, that this court will not take jurisdiction if it should not; but it is equally true, that it must take jurisdiction, if it should. The judiciary cannot, as the legislature may, avoid a measure, because it approaches the confines of the constitution. . . . We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given. The one or the other would be treason to the Constitution.

Cohens v. Virginia, 6 Wheat. 264, 404, 5 L.Ed. 257 (1821). But this precept, unlike other landmark decisions of the Chief Justice concerning federal jurisdiction, has not withstood the demands of federalism and the complexities of constitutional adjudication.

In Railroad Comm'n of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941), Justice Frankfurter, writing for a unanimous Court, fashioned the beginnings of the modern doctrine of abstention. The Texas Railroad Commission had ordered that "no sleeping car shall be operated on any line of railroad in the State of Texas . . . unless such cars are continuously in the charge of an employee . . . having the rank and position of Pullman conductor." Previously, many sleeping cars had been in the charge of Pullman porters—all blacks. The conductors, on the other hand, were all whites. A three-judge federal district court enjoined enforcement of the Commission order as violative of the equal protection clause, but the Supreme Court reversed, directing the district court "to retain the bill pending a determination of proceedings, to be brought with reasonable promptness, in the state court . . .." 312 U.S. at 501-502, 61 S.Ct. at 646. The decision turned upon the claim that the Commission regulation exceeded the authority conferred on the Commission by Texas statute. The import of the Texas statute was far from clear, however, and the Court accordingly declined to reach the merits of either the state law claim or the constitutional claims:⁶

. . . the last word on the statutory authority of the Railroad Commission in this case, belongs neither to us nor to the district court but to the supreme court of Texas. In this situation a federal court of equity is asked to decide an issue by making a tentative answer which may be displaced tomorrow by a state adjudication. . . . The resources of equity are equal to an adjustment that will avoid the waste of a tentative decision as well as the friction of a premature constitutional adjudication. . . . Few public interests have a higher claim upon the discretion of the federal chancellor than the avoidance of needless friction with state policies. . . .

312 U.S. at 500, 61 S.Ct. at 645.

During the 1950's and 1960's the doctrine of abstention seemingly was confined within narrow limits. The most important of the "special circumstances" found to justify abstention was the "susceptibility of a state statute of a construction by the state courts that would avoid or modify the constitutional question," Zwickler v. Koota, 389 U.S. 241, 248-249, 88 S.Ct. 391, 396, 19 L. Ed.2d 444 (1967), or as Justice Harlan put it, "cases in which the federal constitutional issue might be mooted or `presented in a...