Spencer v. Kugler

• Decision Date: 13 May 1971
• Docket Number: Civ. A. No. 1123-70.
• Citation: 326 F. Supp. 1235
• Parties: Vivian SPENCER et al., Plaintiffs, v. George F. KUGLER, Attorney General of New Jersey, Carl Marburger, Commissioner of Education and the State Board of Education of the State of New Jersey, Defendants.
• Court: U.S. District Court — District of New Jersey

326 F. Supp. 1235

Vivian SPENCER et al., Plaintiffs, v. George F. KUGLER, Attorney General of New Jersey, Carl Marburger, Commissioner of Education and the State Board of Education of the State of New Jersey, Defendants.

Civ. A. No. 1123-70.

United States District Court, D. New Jersey.

May 13, 1971.

Harold J. Ruvoldt, Jr., Jersey City, N. J., for plaintiffs.

Stephen G. Weiss, Sp. Counsel, Wayne, N. J., for defendants.

Before FORMAN, Circuit Judge,^* and BARLOW and WORTENDYKE, District Judges.

OPINION

WORTENDYKE, District Judge:

This action was commenced on August 18, 1970 by the filing of a complaint by Vivian Spencer and Geraldine Chavis by their respective guardians ad litem against George F. Kugler, Attorney General of New Jersey, Carl Marburger, Commissioner of Education, and the State Board of Education of the State.

This Court's jurisdiction is invoked under: (a) 28 U.S.C. § 1331, as arising under § 1 of Amendment 14 of the United States Constitution; (b) 28 U.S.C. § 1343 to redress the alleged deprivation under color of the law of New Jersey of rights secured by § 1 of Amendment 14 of the same constitution, and (c) §§ 1981, 1983 and 1988 of 42 U.S.C. §§ 1983, 2000a et seq. (The Civil Rights Act of 1964).

Plaintiffs are citizens of the United States and of the State of New Jersey and sue on their own behalf and under Rule 23(a) (2) of the Federal Rules of Civil Procedure on behalf of all other Black Americans similarly situated who attend the public schools of New Jersey, which were established pursuant to a constitutional mandate to "provide for the maintenance and support of a thorough and efficient system of free public schools" as prescribed in 1947 New Jersey Constitution Article VIII, § 4 par. 1. Each of the infant plaintiffs and members of the class they purport to represent is a Black American who attends the public schools of New Jersey so maintained and supported.

Defendant Kugler is Attorney General of New Jersey charged with enforcement of the laws. Defendant Marburger is Commissioner of Education of New Jersey and the State Board of Education is a public body charged with the supervision of Public Schools in that State.

Plaintiffs allege that the public schools of New Jersey are "racially imbalanced" which "violates the equal protection clause of the United States Constitution and the Civil Rights Act of 1964 and deprives the plaintiffs and the class they represent of federally guaranteed rights" and they "will be irreparably harmed if another school year commences without correction of the aforementioned condition."

Plaintiffs demand judgment:

1. Directing defendants to terminate the racial segregation of the New Jersey schools "forthwith".

2. Directing defendants to file a plan with this Court (a) to correct the racial imbalance of the schools "at the start of the semester immediately after the entry of judgment herein"; (b) to provide compensatory education in those districts which are racially imbalanced immediately and/or to provide funding for said programs.

3. Directing defendants to cease and desist from continuing a segregated system of public schools.

In the second count the allegations of the first count are incorporated by reference. "The schools * * * are racially imbalanced by reason of N.J.S. 18A:8-1 to 42 and N.J.S. 18A:38-1 to 24 which sets school district boundaries thereby rendering racial balance mathematically impossible in many districts, thus providing unequal educational opportunities. The State has taken no steps to achieve racial balance by reason of the mathematical composition of the geographical area which comprises the school district, has not attempted to redraw school district lines to achieve racial balance, has not provided funds for compensatory education to overcome adverse educational effects of racial imbalance." The State has failed to act "in the foregoing area in violation of the equal protection clause of the United States Constitution and the civil rights of the plaintiffs and the class they represent. The State is obligated to integrate all the schools or to provide compensatory education in those districts which it does not integrate. The school districts lacked the power to achieve racial balance."

Plaintiffs contend they and the class they represent will be irreparably harmed if another school year commences without correction of the aforementioned condition.

Relief prayed:

(a) Convention of three judge court

(b) Judgment enjoining defendant from continuing said system of schools

(c) Declaratory judgment declaring N.J.S. 18A:8-1 to 42 and 18A:38-1 to 24 unconstitutional

(d) Permanent injunction against enforcement of N.J.S. 18A:8-1 to 42 and 18A:38-1 to 24

(e) Judgment directing defendants to redraw school district lines and submit a plan for new school district lines to be in effect prior to the opening of schools for the next semester immediately following entry of judgment herein

(f) Judgment directing defendants to submit a plan for providing compensatory education to those districts which are racially imbalanced immediately and/or to provide the funding for such programs

Defendants urge this Court to abstain from deciding the issues presented by the complaint. The doctrine of federal abstention first appeared in Railroad Commission v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941), based on comity between the federal and state judicial systems, and the desire to avoid friction between them through premature interference with state legislative policy and statutory interpretation.

The power to abstain is one residing in the sound discretion of the Court. In a civil suit attacking a state statute on federal constitutional grounds the federal court should hear and decide the case unless the statute is fairly subject to an interpretation which will avoid or modify the federal constitutional question. NAACP v. Bennet, 360 U.S. 471, 79 S.Ct. 1192, 3 L.Ed.2d 1375 (1959); Cameron v. Johnson, 390 U.S. 611, 88 S.Ct. 1335, 2 L.Ed.2d 182 (1968). The statutes here in question are not subject to such an interpretation. A limitation on this rule occurs in cases when the identical issue is pending in the state court, Askew v. Hargrave, 401 U.S. 476, 91 S.Ct. 856, 28 L.Ed.2d 196 (1971). Defendants contend that the state court case of Robinson v. Cahill raises issues identical to those in the case sub judice. That suit alleges a violation of equal protection resulting from the taxing measures used to finance education; but does not attack the purported racial imbalance in the schools. The issues framed in the pleadings before this constitutional court are not being considered in any on-going state court action.

Ultimately, this Court relies upon McNeese v. Board of Education, 373 U.S. 668, 83 S.Ct. 1433, 10 L.Ed.2d 622 (1963), in refusing to abstain in this case. The Court in McNeese, supra, stated:

"Petitioners assert that respondents have been and are depriving them of rights protected by the Fourteenth Amendment. It is immaterial whether respondents conduct is legal or illegal as a matter of state law. Such claims are entitled to be adjudicated in the federal courts." at p. 674, 83 S.Ct. at p. 1437 citations omitted.

Plaintiffs' substantive claim rests wholly on the assertion that there is an affirmative constitutional duty to achieve racial balance among the several districts of a state system of public schools; and that a failure to do so is in violation of Fourteenth Amendment rights. In view of the alleged deprivation of Fourteenth Amendment rights, Spencer is not an appropriate case for abstention.

In his Appendix presented to the Court on the oral argument counsel for the plaintiffs included a copy of the Opinion of the United States Court of Appeals for the Third Circuit filed September 23, 1970 in Porcelli, et al. v. Titus, Superintendent of Schools, etc., 431 F.2d 1254 (3rd Cir. 1970), and relied on the following in support of his contention:

"State action based partly on considerations of color, when color is not used per se, and in furtherance of a proper governmental objective, is not necessarily a violation of the Fourteenth Amendment. Proper integration of faculties is as important as proper integration of schools themselves, as set forth in Brown v. Board of Education, 349 U.S. 294, 295, 75 S.Ct. 753, 99 L.Ed. 1083 (1955), the thrust of which extends to the selection of faculties. In Kemp v. Beasley, 8 Cir., 389 F.2d 178 (1968), the court held, at 189, where race was a consideration in the selection of teachers and faculties, `We reaffirm the principle that faculty selection must remain for the board and sensitive expertise of the School Board and its officials.' And, at page 190, `The question thus becomes, when is there such faculty distribution as to provide equal opportunities to all students and to all teachers—whether white or Negro? Students in each school should have the same quality of instruction as in any other school. Every predominantly Negro school should have, wherever possible, substantially as integrated a faculty as the predominantly white school.'" at p. 1257

Neither Porcelli nor Kemp is an authority for the contention of the plaintiffs in the case before us that the predominance of blacks in a public school to which both blacks and whites are admitted amounts to the segregation disapproved in Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954). Brown rejected the "separate but equal" doctrine announced in Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256 (1896). Brown was based upon the finding that "segregation is a denial of the equal protection of the laws," but expressly refrained from consideration of the question of whether "segregation also violates the Due Process Clause of the Fourteenth Amendment." It described the effects of segregation in the language of the United States District Court for the District of Kansas where the action...