Amicus Curiae Brief — Johnson v. New York State Education Department

Supreme Court brief1972

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FILE COPY FILED

E. ROBERT SEAVER, CLERK

in the J

Supreme Court of the United States

Octoser TreRM, 1971

No. 71-5685

DAISY JOHNSON, ET AL., PETITIONERS,

NEW YORK STATE EDUCATION

DEPARTMENT, ET AL.

ON PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF AMICUS CURIAE OF THE CENTER FOR

LAW AND EDUCATION HARVARD UNIVERSITY,

AND THE UNITED MINISTRIES IN PUBLIC

EDUCATION, IN SUPPORT OF THE PETITION

J. Harotp FLANNERY

Rosert PRESSMAN

Pavut R. Dimonp

JEFFREY Koprick

Center for Law and Education,

Harvard University

Tae Unirep MrinistrRIEs

in Pusiic Epvucation

INDEX

Page

I 5 Ginaee aa cy hy Ark URS SAE MA od 8 0s 1

ye acura cra ¢ ne ahaerapene ak Garg ras ee 2

CSAS. , Saas en Ai ak chk vn Pa ks LAs wks 4

MN es ko iQ Kass beoe dares = 8

Reasons For Granting The Writ .................... 12

A. The Court of Appeals Decision in this Case Con-

flicts with the Ruling in Williams v. Page, ——

F.2d Aen, SUN Ee? ee ak. 12

B. The Court of Appeals Decided Fourteenth Amend-

‘ment Issues in a Way in Conflict with Decisions of

Seals On spp ais AG al ag ee 14

1. Preliminary Statement: The Procedural Pos-

De SeA re OE a es ae ek ee

2. The Standard for Reviewing the Challenge

UII So ps eh i ee en ee 15

a. Education is a ‘‘fundamental interest’... 16

b. Wealth is a ‘‘suspect’’ classifying factor . 21

3. The Decision Below Conflicts with this Court’s

Rulings on the Scope of the Fourteenth

Amendment in Griffin v. Illinois, 351 U.S. 12,

Douglas v. California, 372 U.S. 353 and Subse-

UE MNO TR eee ae EF 23

a. The Fourteenth Amendment principles es-

tablished in Griffin-Douglas and subsequent

I FOr ae 23

b. The Court of Appeals erroneously con-

strued Griffin-Douglas and their progeny . 25

4. The Decision Below Conflicts with Rulings of

this Court Applying the ‘‘Compelling State

Interest’? Standard of Review .............. 29

a. The treatment of alternatives for satisfy-

ing the state’s interests ................ 30

Index

b. The ‘‘fiscal resources’’ arguments

ce. The special interests of the children disad-

vantaged by the classification ........... 34

5. The Decision Below Is Not Supported by this

Court’s Ruling in Dandridge v. Williams, 397

RE Be a tk se ns 3 Re Re ew Rk a 37

6. The Statutory Scheme Denies Due Process of

BS lets. ss thal, Pika Kis Die dA dees tad: 40

C. Alternatively, the Court of Appeals Decided Im-

portant Questions of Federal Law which Have Not

Been but Should Be Settled by this Court ........ 43

ENTE 6 oY ERE as g es ay ee 44

APPENDIX ONE (Decision in Williams v. Page, ——

pi eS RS: |) eee

TABLE OF CITATIONS

Cases

Board of Education vy. Allen, 392 U.S. 236 ............

Boddie v. Connecticut, 91 S.Ct. 780 ..... 10, 11, 14, 26, 27,

29, 34, 43, 44

Bolling v. Sharpe, 347 U.S. 497 ............... 40, 41, 43

Brown v. Board of Education, 347 U.S. 483 ...... 13, 16, 17,

20, 22, 27, 28, 35

Burns v. Oto, 360 U.S. 252 ........ 0... ee. 24, 26

Bush v. Orleans Parish School Board, 187 F. Supp. 42

(E.D.La., 1960), affirmed per curiam, 365 U.S. 569 .. 17

California Water Services v. City of Redding, 304 U.S.

meee ere 11, 32, 39, 40

Chandler v. South Bend Community School Corpora-

tion, C.A. No. 718. 51 (N.D.Ind., August 26,1971) .. 13,

39, 43

Index iii

Page

Cipriano v. City of Houma, 395 U.S. 701 ............. 20

City of Phoenia v. Kolodziejski, 399 U.S. 204 ..... 10, 32,

34, 37

Conley v. Gibson, 355 U.S. 41 ...................00.- 15

Cooper v. Pate, 378 U.S. 546 .................... 14, 25

Dandridge v. Williams, 397 U.S. 471 ....... 11, 37, 38, 39

Dean Milk Co. v. City of Madison, 340 U.S. 349 .... 39, 40

Dixon v. Alabama, 294 F.2d 150 (C.A. 5, 1961) ........ 18

Douglas v. California, 372 U.S. 353 .... 9, 10, 11, 21, 22, 24,

25, 26, 27, 28, 33, 34

Draper v. State of Washington, 372 U.S. 487 ......... 24

Eskridge v. Washington State Bd., 357 U.S. 214 ...... 24

Evans v. Cornman, 398 U.S. 419 ................. 20, 34

Gardner v. California, 393 U.S. 367 ................. 24

Gardner v. Toilet Goods Association, 387 U.S. 167 .. 14, 25

Gideon v. Wainwright, 372 U.S. 335 ........... 26, 31, 33

Graham v. Richardson, 91 S.Ct. 1848 ... .9, 10, 22, 23, 30, 34

Griffin v. Illinois, 351 U.S. 12 ... .9, 10, 11, 12, 20, 21, 23, 24,

25, 26, 27, 28, 33, 34, 35, 44

Griffin v. School Board of Prince Edward County, Va.,

RM 2 oo Su, vate ELLE oR he ee we 28

Hall v. St. Helena Parish School Board, 197 F. Supp.

649 (E.D. La., 1961), affirmed per curiam, 368 U.S.

CS cise fia kak 5 COR oe DREN EOC ER LE 32

Hargrave v. McKinney, 413 F. 2d 302 (C.A. 5, 1969) ;

Hargrave v. Kirk, 313 F.Supp. 944 (M.D. Fla., 1970),

vacated and remanded, sub nom. Askew v. Hargrave,

LT A EOP ne he eg 18, 22

Harper v. Virginia State Board of Elections, 383 U.S.

| vel a eae 9, 10, 11, 12, 16, 19, 20, 21, 27, 29, 44

Hobson v. Hansen, 269 F. Supp. 401 (D.C., 1967), aff’d,

sub nom. Smuck v. Hobson, 408 F. 24 175 (D.C. Cir.,

NE iS ic saccin s bicd BES UT EA SUC OT ORS 22

Hosier v. Evans, 314 F. Supp. 316 (D.C. Vir. Is.,

iv Index

Page

James v. Valtierra, 402 U.S.137 .............. 22, 23, 31

Johnson v. Avery, 393 U.S. 483 ..................... 27

Johnson v. New York State Education Department, 319

¥. Supp. 371 (E.D.N.Y., 1970) 2. 2s ss... 2

Johnson v. New York State Education Department, ——

F, 2d —— (C.A.2, August 13,1971) ............... 1?

Kramer v. Union Free School District, 395 U.S. 621 .. 3, 15,

20, 21, 30, 32, 34

See sarees A. GAY os ee es... 25

Lemon v. Kurtzman, 918.Ct.915.................... 3

Levy v. Louisiana, 391 U.S.68 ................ 26, 39, 42

Long v. District Court, 385 U.S.192 ................ 24

Lovell v. City of Griffin, 303 U.S. 444 ................. 19

Lucas v. Forty-Fourth General Assembly of Colorado,

Pe NER as Os ed eas ASE SA bs 5s ob hex 32

McDonald v. Board of Election Commissioners, 394

SERIE A Otani) 2 ae ate) eg 15, 21

eee ere, BOT es OND eo eke. 35

Meyer v. Nebraska, 262 U.S. 390 .......... 11, 40, 41, 42

NAACP v. Alabama, 357 U.S. 449 .................. 19

NAACP v. Alabama, 377 U.S. 288 .................. 32

Ordway v. Hargraves, 323 F. Supp. 1155 (D.Mass.,

IR eh a nt Re cee 8 Te do 18

Palmer v. Thompson, 91 S.Ct. 1940 .............. 17, 38

Pierce v. Society of Sisters,268 U.S.510............ 40

Reynolds v. Sims, 377 US. 538....................... 21

Roberts v. LaVallee, 389 U.S. 40 .................... 24

Robumson v. California, 370 U.S. 660 ................ 42

Serrano v. Priest, 487 P. 2d 1241 (Cal. Sup. Ct.,

Re A ie er 18, 22

Shapiro v. Thompson, 394 U.S. 618 ..«.. 19, 30, 32, 33, 34

Shelton v. Tucker, 364 U.S. 479 ..................... 32

Skinner v. Oklahoma, 316 U.S. 535 .................. 35

Smith v. Bennett, 365 U.S. 708 .................. 25, 26

Index v

Page .

Swann v. Charlotte-Mecklenberg Board of Education,

ON sped ARBs Ra alg artis 29

Swenson vy. Bosler, 886US.258.........0 22 24

Tate v. Short, 91 S.Ct. - OCU re ee ek 25

United States vy. Carolene Products Co., 304 U.S. 144 _. 9,

United States v. School District 151 of Cook County,

Iil., 301 F. Supp. 201 (N.D.IIL, 1969), aff’d as modi-

fied, 432 F. 2d 1147 (C.A.7, 1970), cert. denied, 402

MMM eis eae Os SRA oe. 29

Van Dusartz y. Hatfield, C.A. No. 3-71 Civ. 243 (D.

Minn., October so sees’, Se ag age 18, 22

West Coast Hotel Co. v. Parrish, 300 U.S.379... 35

Williams v. IMinois, 399 U.8.235 10, 11, 21, 25, 27, 28

32, 40, 41, 42

Williams v. Oklahoma City, 395 U.S.458 25

Williams vy. Page, —— F, 24 —_ (C.A.7, June 9,

oo DREN CORT entire aera 8, 12, 13, 15, 32

Wisconsin vy. Constantineau, 91 S.Ct. 507 --.. 11, 39, 40, 43

Yick Wo v. Hopkins, 118U.8.356......000022~2-*”

Constitutional and Statutory Provisions

New York

WN Sek te, , 22 ERT 4,14

tae azine t, eI AR IE HAS 4g 4,14

PE RSES I Sei ramen i sa

cu. +, MORE e eon ae 20, 39, 42

Page

United States

Elementary .nd Secondary Education Act of 1965,

Te a ae Ua ene kb ey kee’ 2, 19, 35

Johnson-O’Malley Act, Title 25 U.S.C. .......... 19

National Defense Education Act of 1958, Title 20

US.C.

Public Law 89-10

Public Law 91-230, § 132 (a) ..................

Title 20 U.S.C.

§ 241a - 241m ..

§ 241a

§ 241e (a) (1)

Title 28 U.S.C.

Miscellaneous

Advisory Commission on Intergovernmental Relations,

State and Local Finances, Tables 8 and 12 (1969)

Bloom, Davis and Hess, Compensatory Education For

Cultural Deprivation (Holt, Rinehart and Winston,

Inc., 1967) 36, 37

Bloom, Stability and Change in Human Characteristics

(John Wiley and Sons, Inc. 1964)

45 C.F.R. Part 116

§ 116.17 (d)

§ 116.1(i)

Coons, Clune and Sugarman, Educational Opportunity:

A Workable Constitutional Test for State Financial

Structures, 57 Cal.L.Rev. 305 (1969),.. 18, 19, 27, 28, 42

Goldstein, The Scope and Sources of School Board Au-

thority to Regulate Student Conduct and Status:

Non-Constitutional Analysis, 117 U. Pa.L.Rev. 373

Index

Page

Hunt, The Challenge of Incompetence and Poverty,

Papers on the Role of Early Education, (University

ey ees OE, BOUD ow... ccc cane 36

Kirp, The Poor, the Schools, and Equal Protection, 38

| 18

Michelman, The Supreme Court, 1968 Term, Forward:

On Protecting the Poor Through the Fourteenth

Amendment, 83 Harv.L.Rev. 7 (1969) ............. 19

2A Moore’s Federal Practice § 12.08 (2d oa, 1968) . 15

President Nixon, Statement by the President on Ele-

mentary and Secondary School Desegregation,

MS 8

8.Rep. 91-634, 91st Cong., 2d Sess. 36

Supreme Court Rules

IN a 6d, Cano GER tes x Tee +s ft fk

Sana ae Pe acne wee 4

TNE Die RL ali eee ean 1

U.S. Code Cong. and Ade. News

1958 at 5412 ....... PRR ie abe para btcarg' Satehes 19

ERS ay RS a ae a a es 19

EE aD ~

rcs Co Reet

a 19

United States Office of Education, ESEA Program

Guide 44, March 18, 1968,4 11 ...................

in the

Supreme Court of the Anited States

Ocroser Term, 1971

No. 71-5685

DAISY JOHNSON, ET AL., PETITIONERS,

NEW YORK STATE EDUCATION

DEPARTMENT, ET AL.

ON PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF AMICUS CURIAE OF THE CENTER FOR.

LAW AND EDUCATION HARVARD UNIVERSITY,

AND THE UNITED MINISTRIES IN PUBLIC

EDUCATION, IN SUPPORT OF THE PETITION

Introduction

We present this brief in support of the petition for a writ

of certiorari with the consent of all parties, pursuant to

Supreme Court Rule 42(1).1 We rely on the petitioners’

1 Copies of the three letters of consent are attached to our covering

letter to the Clerk of this Court.

treatment of this Court’s jurisdiction, the questions pre-

sented for review and the constitutional and statutory pro-

visions involved in this case.

The opinion of the district court dismissing the complaint

is reported as Johnson v. New York State Education De-

partment, 319 F. Supp. 271 (E.D.N.Y., 1970). The decision

of the Court of Appeals affirming the district court’s de-

cision, Circuit Judge Irving Kaufman dissenting, is un-

reported. We cite the official slip opinion, copies of which

we have furnished.

Interest of the Amici

The Center for Law and Education, Harvard University,

was formed in 1969. Sponsored jointly by the Harvard Law

School and the Harvard Graduate School of Education, the

Center is funded by the United States Office of Economic

Opportunity to work with local legal service offices and

other attorneys on behalf of the poor, to promote reform

in education. Center attorneys have worked on problems in

the following areas: school fees (about which we have re-

ceived numerous inquiries) ; student rights; resource allo-

cation, within and between school districts; ‘‘ability group-

ing’’ practices; racial discrimination; and federai pro-

grams, particularly Title I of the Elementary and Secon-

dary Education Act of 1965. The Center publishes a bulle-

tin, Inequality in Education.

Center personnel have participated in significant litiga-

tion; done research and writing; drafted legislation; and

negotiated with public officials. The Court of Appeals en-

tered orders in this case accepting a brief and a reply brief,

amicus curiae, filed by the Center. The Court’s opinion re-

ferred to these briefs.? In the October, 1970 term, this Court

2“In addition to the briefs of the parties, this court has the ad-

vantage of a well-prepared brief and reply brief submitted by the

Center for Law and Education of Harvard University.” (Slip Op. at

4650.)

accepted an amicus curiae brief prepared by Center attor-

neys in the cases involving aid to parochial schools. See

Lemon v. Kurtzman, 91 8.Ct. 915.

The Center’s affiliation with the Harvard Graduate

School of Education facilitates our presenting to courts

educational data which is material under governing legal

principles. In this brief, we present such data bearing upon

the ‘‘interests of those who are disadvantaged by the [chal-

lenged] classification.’’ Kramer v. Union Free School Dis-

trict, 395 U.S. 621, 626.

The United Ministries in Public Education (UMPE) was

created by a group of agencies of the Episcopal Church,

Presbyterian Church of the United States, the United

Church of Christ, and the United Presbyterian Church,

U.S.A., to serve as a joint agency of these religious com-

munions. Its purpose is to assert that the Church is a vital

force in our society and as such must accept its account-

ability for education. The UMPE serves to support the

public educational system where it is contributing to the

humane development of persons and to call for reevalua-

tion of the system where needed. The UMPE works in coa-

lition with others for the reform of educational policy and

practice where necessary.

The stated goals of this program cover a wide spec-

trum of concerns for equalized educational opportunity

for all. The goals specifically include an endorsement of

support of litigation seeking to equalize educational oppor-

tunity by challenging special tax measures and tax allo-

cation formulas for public education which perpetuate in-

equality of opportunity.

Statement

Parents of elementary school students in Union Free

School District No. 27, Town of Hempstead, began this

action. They alleged, inter alia, that the denial of textbooks

to their children because of their indigency violated the

equal protection clause of the Fourteenth Amendment.

(App. at 13-14; Third Claim.)* They prayed, in part, for

an injunction against enforcement of Section 701 of the

New York Education Law, and such ‘‘alternative relief as

the Court may deem to be just and appropriate.’’ (App. at

15-16.) The district court dismissed the complaint for fail-

ure to state a claim, without holding an evidentiary hear-

ing, and the Court of Appeals affirmed, Judge Kaufman

dissenting.

The Answer of the defendant local school officials, the

Superintendent and School Board of District 27, forth-

rightly admits, in our view, that the challenged statutory

scheme for textbook distribution denies the equal protec-

tion of the laws:

12. Admit that the denial of free textbooks places

some children under an educational disadvantage and

denies to them an educational opportunity equal to the

children of those families that can afford to pay a

rental charge for textbooks. (App. at 46.)

This admission is fully supported by the other facts of rec-

ord, briefly summarized as follows:

1. Under the statutory scheme,‘ the system in 1970-71

3 Our citations are to the appendix “printed for the use of the court

below. . . .” Supreme Court Rule 21 (2).

¢ Throughout this brief we refer to the “statutory scheme,” with

the following meaning: 1) Section 701 of the New York Education

Law requires districts to lend textbooks free to students in grades

7-12. 2) Section 703 of the New York Education Law requires districts

(and again in 1971-72 as shown by the Petition) provided

free texts to students in grades 7 to 12, but required pay-

ment of a $7.50 fee by all students in grades 1 to 6, regard-

less of the economic status of their families. (Admitted;

App. at 8, 45.)

2. The named plaintiffs had a total of five children

enrolled in grades 1-3 in the system. (App. at 25, 28, 30.)

3. The Complaint alleged that ‘‘[p]laintiffs, recipients

of public assistance, are indigent and cannot pay [the] fee.’’

(App. at 4, 9-10.) While the local defendants generally de-

nied this allegation (App. at 45), the named plaintiffs znade

uncontroverted affidavits, filed in the district court, that

they were unable to pay the fee. (App. at 26, 29, 31.)

4. ‘Children who did not bring the fees demanded were

denied text-books ....’’ (Admitted; App. at 8, 45.)

5. The Complaint alleges that in view of plaintiffs’

inability to pay the fee ‘‘[t]heir children are hence being

denied essential text-books, which are nonetheless available

to other similarly situated but more wealthy children, and

hence receive a significantly inferior education solely be-

vause of plaintiffs’ indigency.’’> (App. at 4-5.) This alle-

gation is established by the record. In addition to the ad-

mission by the local defendants in paragraph 12 of the

Answer quoted above, their papers filed in the courts below

contain the following statements:

to lend textbooks free to students in grades 1-6, only if the voters

approve a tax for this purpose. 3) When, as in this school district

in 1979-71 and 1971-72, the voters do not approve this real estate

tax for texts for grades 1 to 6 and other purposes, the district

can still levy a tax for “ordinary contingent expense.” (N.Y. Education

Law, Sec. 2023.) 4) Opinion Number 213 of the Counsel to the

Education Department, July 6, 1967, holds that expenditures for

texts for grades 1-6 are not an “ordinary contingent expense.” 5) Ac-

cordingly, the district provided texts free to grades 7-12, but charged

a fee for grades 1-6. (See Slip Op. at 4647-4649. )

§In his dissenting opinion in Board of Education v. Allen, 392

U.S. 236, 252, Mr. Justice Black stated: “Books are the most essen-

tial tool of education, since they contain the resources of knowledge

which the educational process is designed to exploit.”

We believe . . . that textbooks for all pupils are essen-

tial to a quality educational program and a necessary

and fundamentally basic tool in the education of

youngsters.

Affidavit of School Board President Donald J.

Siskind, September 23, 1970. (App. at 52.)

The denial of free textbooks places some children

under an educational disadvantage and denies to them

an educational opportunity equal to the children of

those families that can afford to pay a rental charge

for textbooks.

Affidavit of Superintendent Edward Moyer, Sep-

tember 25, 1970 (App. at 53.)

The defendant Board of Education believes that text-

books for all pupils are essential to a quality educa-

tional program and a necessary tool in the education

of youngsters.

Brief of local defendants in Court of Appeals at 3.

In the District Court, the plaintiffs presented the affidavit

of Dr. Gerald G. Glass, Professor of Education and Diree-

tor of the Reading and Study Center and Graduate Pro-

gram in Reading at Adelphi University. It reads, in part,

as follows:

No education program can exist without books. Ii is

professionally unthinkable to assume that an educa-

tional program of even the meagerest scope would not

minimally include books. Books of all kinds, readers,

workbooks, trade books, reference books, et al. The

process of education, as conceived in this country, as-

sumes that persons must ‘learn’ not only from their

own relatively narrow, actual experiences, but also

from that extensive dimension that can only be offered

through books. (App. at 40-41.)

In fact, in my opinion a good case could be made for

the grade school as having more pertinent require-

ments for text-books. Because the early school years

are the formative school years a wealth of material

needs to be applied to offer the youngsters reinforce-

ment for learning. It is not uncommon that a textbook

in the primary grades serves as the major structure

for the whole curriculum in any one subject. (App. at

42.)

6. The Complaint alleged, in part, (App. at 15):

(XII) (b) Indigent children sitting, bookless, side by

side in the same classroom with other more

wealthy children learning with purchased text

books engenders a widespread feeling of infe-

riority and unfitness in poor children and is psy-

chologically, emotionally and educationally

disastrous to their well-being.

While affirming the district court’s dismissal of the action,

the Court of Appeals majority described this allegation as

“quite [realistic],”’ a position with which Circuit Judge

Kaufman dissenting agreed. (Slip Op. at 4649, 4670.)

In summary, this case involves a shocking situation: the

challenged statutory scheme requires poor children to at-

tend school without an “‘essential’’ educational tool, for

reasons wholly beyond their own control; as a direct con-

sequence, they are denied an educational opportunity equal

to children from more affluent families, and stigmatized ;

and all this occurs in a nation whose Constitution guaran-

tees ‘‘the equal protection of the laws’? and whose presi-

dent proclaims:

Economic, educational, social mobility — all these,

too, are essential elements of the open society, When

we speak of equal opportunity we mean just that: that.

each person should have an equal chance at the start-

ing line, and an equal chance to go just as high and as

far as his talents and energies will take him.

Statement by the President [Nixon] on Elemen-

tary and Secondary School Desegregation, March

24, 1970, at 17. (emphasis added.)

Summary of Argument

1. The motion to dismiss was erroneously granted,

given applicable decisions of this Court with which the rul-

ing below conflicts, whether plaintiffs’ claim that the statu-

tory scheme denies Fourteenth Amendment rights to in-

digents is deemed to require a three-judge court, or merely

to challenge an application of the legislative scheme. (See

discussion at 14-15.)

2. The Second Circuit’s ruling conflicts with the deci-

sion in Williams v. Page, —— F. 2d (C.A. 7, June 9,

1971), petition for certiorari filed, August 31, 1971, No. 71-

313. In reversing the district court’s dismissal of a Four-

teenth Amendment challenge by indigent students to fees

for graduation-related acivities, the Seventh Circuit used a

standard which would require an ‘‘evidentiary hearing”’

in this case. (See discussion at 12-13.)

3. The court below found a rational basis for the chal-

lenged classification and approved the district court’s con-

clusion that it was supported by a compelling state interest.

Each determination conflicts with applicable decisions of

this Court. [See points (5) and (6) of Summary.] We sub-

mit that the compelling state interest standard should be

employed here because the legislative scheme burdens ed-

eee

ucation a ‘‘fundameutal interest’’, and creates a ‘‘suspect’’

wealth classification. The decisions of this and other courts,

the pronouncements of public officials, the objective treat-

ment of education by Congress and the states and its gen-

eral importance to the individual and society warrant clas-

sifying education a ‘‘fundamental interest.’’ This would not

require the recognition of a federal constitution right to an

education. Harper v. Virginia State Board of Elections, 383

U.S. 663, 665. In many cases this Court has treated as ‘‘sus-

pect’’ classifications having an impact on wealth lines.

Moreover, here the lower court acknowledged that poor

children would be stigmatized, similarly, we submit, to

black students in the dual system; and poor children ‘‘are

a prime example of a ‘discrete and insular’ minority .. .

for whom . . . heightened judicial solicitude is appropri-

ate.’? Graham v. Richardson, 91 S.Ct. 1848, 1852. (quoting

United States v. Carolene Products Co., 304 U.S. 144, 152-

153, n. 4). (See d’scussion at 15-22.)

4. The ruling below conflicts with a series of decisions

of this court on the scope of the Fourteenth Amendment

beginning with Griffin v. Illinois, 351 U.S. 12 and Douglas

v. California, 372 U.S. 353. In these cases this Court has

held that the Fourteenth Amendment requires a state to

provide an indigent criminal defendant a document such as

a transcript, or an attorney, vital to adequate use of a re-

medial procedure fully available to more affluent persons.

Here, the impact of the challenged statutory scheme paral-

lels Griffin-Douglas: a vital interest is at stake (education),

and students from indigent families are admittedly denied

an educational opportunity equal to students from more

affluent families. Accordingly, we submit, the constitutional

principles applied in Griffin-Douglas require the state to

provide texts to indigent students (so long as the state con-

tinues to make books an essential element of the educational

process).

The court below erroneously construed Griffin-Douglas.

First, it said that they were solely due process cases; but

see Williams v. Illinois, 399 U.S. 235, 241. Second, the lower

court concluded that in this case state funds are being used

to benefit all students, including indigents, with discrimi-

nation resulting from private supplements. Similar conten-

tions in Griffin and Douglas, raised in dissent by Justice

Harlan, were rejected by the majority which held that the

Fourteenth Amendment required more than such ‘‘neutral-

ity’’. This Court has recognized that further action is also

required by the Fourteenth Amendment to secure equal ed-

ucational opportunity. We show that it is not a material

distinction that this case involves education rather than the

criminal process. Finally, this Court’s rulings invalidating

fee requirements for voting (Harper, supra) and commenc-

ing divorce litigation (Boddie v. Connecticut, 91 S.Ct. 780)

also demonstrate the substantiality of plaintiffs’ claim.

(See discussion at 23-29.)

5. The district court’s application of the compelling in-

terest standard, approved by the court below, conflicts with

decisions of this court. No doubt because of its failure to

hold an ‘‘evidentiary hearing’’, the district court did not

consider several concrete, alternative methods, free of the

harmful effects of the challenged scheme, for achieving the

state’s interests. The court below approved a scheme

whereby resources are conserved by ‘‘invidious distinctions

between classes of citizens’’. Graham v. Richardson, 91

S. Ct. 1848, 1853. Finally the lower court failed adequately

to weigh the interests of the indigent students disadvan-

taged by the challenged scheme. City ‘of Phoenix v. Kolod-

ziejski, 399 U.S. 204, 209-212. The evidence as to the inter-

ests of poor, elementary students is overwhelming. (See

discussion at 29-37.)

6. The challenged classification satisfies neither branch

of the standard articulated in Dandridge v. Williams, 397

U.S. 471, 487 (‘‘rationally based and free from invidious

discrimination’’.) It is completely irrational to further two

of the purported state interests — conserving resources

and maximizing the impact of state aid — by providing

texts to the children of the wealthy in grades 7-12 and de-

nying them to children of the poor in 1-6. There is invidi-

ous discrimination: poor children are required to attend

school, admittedly denied an _ essential educational

tool and equal educational opportunity, and stigmatized,

for reasons wholly beyond their own control. Moreover,

there are available alternative schemes, avoiding these con-

sequences, which must be considered even if the compelling

interest standard doesn’t apply. Carrington v. Rash, 380

U.S. 89, 95-96. (See discussion at 37-40.)

7. The statutory scheme denies due process of law by

arbitrarily infringing the interest of indigent children in an

education, Meyer v. Nebraska, 262 U.S. 390; Williams v.

Illinois, 399 U.S. 235, 259-266 (Harlan, J., concurring).

There are less onerous alternatives for achieving the pur-

ported state interests; and, in certain respects, the statu-

tory scheme is irrational. In addition, the lower court

agreed that poor children could be stigmatized. Wisconsin

v. Constantineau, 91 S. Ct. 507. (See discussion at 40-43.)

8. Alternatively, the writ should be granted because

this case presents important questions which have not been

but should be settled by this Court. The questions are

analagous, factually and in significance, to the ones resolved

in Griffin-Douglas, Harper and Boddie. (See discussion at

43-44.)

Reasons for Granting the Writ

A. Tue Court OF Appgats Decision IN THIS Cass Con-

FLICTS WITH THE RULING IN Williams v. Page, —— F. 2d

—— (C.A. 7, June 9, 1971)

The Second Circuit majority affirmed the district court’s

dismissal of the complaint in this case, explicitly rejecting

plaintiffs’ contention that the fee requirement for text-

books effectively denies poor children an educational op-

portunity equal to children from more affluent families in

violation of the Fourteenth Amendment. (Slip Up. at 4659-

4663.) The Second Cireuit’s decision is ‘tin conflict with the

decision of another court of appeals on the same matter”

[Supreme Court Rule 19(1)(b)], the unanimous ruling of

the Court of Appeals for the Seventh Cireuit in Williams v.

Page, —— F. 24 —— (June 9, 1971),* reversing 309 F.

Supp. 814 (N.D. Tll., 1970). A petition for a writ of certio-

rari was filed in Williams on August 31, 1971, No, 71-315.

Williams v. Page, supra, is a Fourteenth Amendment

challenge by elementary and high school students to the

collection of fees as & condition for participation in gradu-

ation-related activities in public schools. The complaint

alleges that as a consequence of the fee requirement the

activities ‘‘are not available to the plaintiffs on equal terms

because they are indigent.”’ Williams v. Page, supra, 309

F. Supp. at 815. In dismissing the complaint in Williams,

the district court reasoned similarly to the Court of Ap-

peals here.

The court viewed Griffin v. Illinois, 351 U.S. 12 and

Harper v. Virginia State Board of Elections, 383 U.S. 663,

as limited to burdens on only ‘‘the most fundamental

rights’’, and noted plaintiff’s reliance on the language in

® The “order” deciding the Williams case is not reported. A copy is

Appendix One of this brief.

Brown v. Board of Education, 347 U.S. 483, that education

‘twhere the state has undertaken to provide it, is a right

which must be made available to all on equal terms.’’ (Jd.

at 816, quoting Brown I, supra at 494.) The court held:

‘‘plaintiffs are not being denied the opportunity of an edu-

cation on equal terms [everyone pays the same fee], rather

they are potentially being deprived of free access to extra

graduation activities.’’ 309 F. Supp. at 816.

The Seventh Circuit’s brief order reversing the dismissal

of the complaint in Williams reads, in part, as follows:

The complaint alleges that graduation participation

is an essential part of a child’s education and the com-

plaint may be construed as claiming that in the schools

concerned the activities for which the fees are required

have been recognized by the school administrators,

teachers, parents and students as integral parts of the

school experience, from which indigent children are

being excluded. Until these and related factual ques-

tions are explored at an evidentiary hearing, the pre-

cise contours of the constitutional rights which plain-

tiffs claim were violated are not readily discernible.

Application of the Williams standard would require an evi-

dentiary hearing on the complaint in this case. To para-

phrase the quoted language, the complaint herein alleges

that ‘‘fees are required"’ for textbooks, ‘‘an essential part

of a child's education’’, and as a consequence that ‘‘indi-

gent children are being excluded.’’ Moreover, in this case,

the local defendants expressly admit that the statutory

scheme operates to deny poor children an equal educational

opportunity.”

™ The decision by the Court of Appeals in this case is also in con-

flict with a recent district court decision, Chandler v. South Bend

Community School Corporation, C.A. No. 71 S 51 (N.D. Ind., Aug.

B. Tue Courr or Appeats Decipep FourTEENTH AMEND-

MENT IssuEs IN a Way 1n CONFLICT WITH DeEcIsIONS OF

THis CouRT.

1. Preliminary Statement: the Procedural Posture

The procedural posture of this case is significant. The

district court dismissed the complaint for failure to state

a claim without requesting that a three-judge court be con-

vened, even though the complaint sought, in part, the en-

joining of Section 701 of the Education Law. (App. at 15.)

(See 28 U.S.C. 2281, 2284.) The Court of Appeals affirmed.

The inquiry accordingly must focus on whether plaintiffs’

claim is substantial. See e.g. California Water Services v.

City of Redding, 304 U.S. 252, 259. We maintain that it is,

given past decisions of this Court with which the ruling

below conflicts, and the requirement that on motion to dis-

miss the well-pleaded allegations of the complaint and affi-

davits must be taken as true.®

The majority below suggested that this might not be a

proper case for a three-judge court. (Slip Op. at 4660, n. 8.)

However, even if the lower court viewed the case as involv-

ing only an application of the statutory scheme,® not re-

quiring a three-judge court, the motion to dismiss should

have been denied.

26, 1971), holding that it violates the Fourteenth Amendment to sus-

pend a student for three days because of the failure of his parents to

pay a school fee. The thrust of the decision is that education is a fun-

damental right, and that a student’s right to an education can not be

conditioned on factors over which he has no control.

8 Gardner v. Toilet Goods Association, 387 U.S. 167, 172 (1967);

Cooper v. Pate, 378 U.S. 546.

® The complaint challenges, inter alia, the application of the sta-

tutory scheme to indigent students. (App. at 13-14; Third Claim.)

See also Boddie vy. Connecticut, 91 S.Ct. 780, 787, and the dissenting

opinion of Judge Kaufman below. (“I dissen¢ and would hold that

plaintiffs have established at the very least a substantial claim that

as applied in . . . District No. 20... New York Edvcation Law §703

deprives indigent children of the equal protection of the laws.” (Slip

Op. at 4663-4664; emphasis added; footnote omitted. )

Given the allegations of the complaint and affidavits, the

admissions of the local defendants and pertinent substan-

tive case law, it can not be said that ‘“‘it appears beyond

doubt that the plaintiff[s] can prove no set of facts in sup-

port of [their] claim which would entitle them to relief.”’

Conley v. Gibson, 355 U.S. 41, 45-46; 2A Moore’s Federal

Practice, § 12.08, at 2271-74 (2d ed., 1968), quoted in Wil-

liams v. Page, F. 24 —— (C.A. 7, 1971), discussed

above at 12-13."

The three-judge court procedure may not be working as

originally envisioned.’ However, frustration at the process

can not be a basis for penalizing plaintiffs whose claims

satisfy the standard for convening the statutory court.

2. The Standard for Reviewing the Challenged Classi-

fication,

Kach of the lower courts considered the standard of equal

protection review applicable in this case, ie., ‘rational re-

lationship to a legitimate state end’? (McDonald v. Board

of Election Commissioners, 394 U.S. 802, 809), or ‘‘neces-

sary to promote a compelling state interest.’? Kramer v.

Union Free School District, 395 U.S. 621, 627. The district

court purported to apply the compelling interest standard,

finding it satisfied. (319 F. Supp. at 278.) While approving

this conclusion, the Court of Appeals held that decisions

0 Finally, the court below Suggested that it might be necessary

for plaintiffs to amend the complaint “to attack the constitution-

ality of the voter's action.” (Slip Op. at 4660, n. 8.) However, plain-

tiffs did allege the voter's action and challenge the statutory scheme

as denving Fourteenth Amendment rights to indigent students. (App.

at 7, 12-13.) This surely was adequate. “The Federal Rules reject

the approach that pleading is a game of skill in which one mis-

step by counsel may be decisive to the outcome and accept the prin-

ciple that the purpose of pleading is to facilitate a proper decision on

the merits.” Conley v. Gibson, 355 US. 41, 46.

™ See the discussion by the majority and Judge Kaufman below.

(Slip Op. at 4650-4655, 4664-4666. )

of this Court ‘‘would indicate that [the rational basis]

standard ... is also appropriate in cases such as this.’’ It

then upheld the challenged statutory scheme. (Slip. Op. at

4655-4656, 4656-4663 ; explanation added.)

We demonstrate below that the lower courts applied each

standard ‘‘in a way in conflict with applicable decisions of

this court; .. .’? Supreme Court Rule 19(1)(b). We wish

to stress at the outset, however, our view that the chal-

lenged statutory scheme should be judged by the compelling

state interest test. It ‘‘must be closely scrutinized and care-

fully confined’? (Harper v. Virginia State Board of Elec-

tions, 383 U.S. 663, 670) because, as the local defendants

admit, the classification at issue burdens education, a ‘‘fun-

damental interest’’, and draws lines based upon wealth, a

‘“suspect’’ classifying factor.

a) Education is a ‘‘fundamental interest”’

In 1954, this Court unanimously stressed the fundamental

importance of educational opportunity in Brown v. Board

of Education, 347 U.S. 483, 493.

Today; education is perhaps the most important func-

tion of state and local governments. Compulsory schoo]

attendance laws and the great expenditures for educa-

tion both demonstrate our recognition of the impor-

tance of education to our democratic society. It is re-

quired in the performance of our most basic public

responsibilities, even service in the armed forces. It is

the very foundation of good citizenship. Today it is a

principal instrument in awakening the child to cultural

values, in preparing him for later professional train-

ing, and in helping him to adjust normally to his en-

vironment. In these days, it is doubtful that any child

may reasonably be expected to succeed in life if he is

ee a

denied the opportunity of an education. Such an op-

portunity, where the state has undertaken to provide

it, is a right which must be made available to all on

equal terms.

During the October, 1970 Term, the Court reiterated this

view on the importance of education, quoting from the same

part of Brown I in Palmer v. Thompson, 91 S. Ct. 1940,

1943, n. 6.* In this case, despite ruling against plaintiffs,

the Court of Appeals majority characterized education as

“no doubt an area of fundamental importance’? ( Slip Op.

at 4661), a conclusion with which Circuit Judge Kaufman

dissenting agreed. (Id. at 4667-4669.)

Other lower federal courts have recognized that educa-

tion is a ‘‘fundamental interest’’. In Hosier v. Evans, 314

F. Supp. 316 (D. Vir. Is., 1970), the court invalidated, on

equal protection grounds, a regulation permitting the ex-

clusion from school of ‘‘non-immigrant visitors’’. In stress-

ing the importance of education, District Judge Christian

stated (Jd. at 319): ‘We are here dealing with an aspect

of twentieth century life so fundamental as to be fittingly

considered the corner stone of a vibrant and viable repub-

lican form of democracy, such as we so proudly espouse,

i.e., free and unrestricted public education.’’ The court re-

jected the government’s argument that existing facilities

would become overcrowded, writing: ‘The short answer to

that argument is that fundamental rights guaranteed by

the Constitution may be neither denied nor abridged solely

In Palmer, this court distinguished the closing of swimming

pools involved in Palmer, and public schools in Bush v. Orleans Par-

ish School Board, 187 F. Supp. 42 (E.D. La., 1960), affirmed per

curiam, 365 U.S. 569, stating: “Of course that case [Bush] did not

involve swimming pools but rather public schools an enterprise we have

described as ‘perhaps the most important function of state and local

governments.’ Brown v. Board of Education... .” Palmer, supra, 91

S.Ct. at 1943, n. 6; see also 1947 (concurring opinion of Black-

mun, J.)

because their implementation requires the expenditure of

public funds.’’ 314 F. Supp. at 320. (emphasis added.)

In Ordway v. Hargraves, 323 F. Supp. 1155 (D. Mass.,

1971), the court held impermissible a school board’s exclu-

sion from regular classes of a pregnant girl. In the course

of the opinion, the district judge stated: ‘‘It would seem

beyond argument that the right to receive a public school

education is a basic personal right or liberty. Consequently

the burden of justifying any school rule or regulation limit-

ing or terminating that right is on the school authorities

(citation omitted).’? The court found no such justification.

(Id. at 1158.)?°

The California Supreme Court has recently considered

statutory classifications touching upon education, and chal-

lenged on equal protection grounds. Serrano v. Priest, 487

P. 2d 1241 (1971). In an opinion, discussing its own deci-

sions and those of this Court, commentaries and other

13 See also Van Dusartz v. Hatfield, C.A. No. 3-71 Civ. 243 (D.

Minn., Memorandum and Order, October 12, 1971), holding education

a “fundamental interest” for purpose of determining appropriate stand-

ard of equal protection review. [“Education has a unique impact on

the mind, personality, and future role of the individual child. It is

basic to the functioning of a free society and thereby evokes special

judicial solicitude. (Footnote omitted.) Mem. Op. at 7.] Hargrave v.

McKinney, 413 F.2d 320 (C.A.5., 1969), Hargrave v. Kirk, 313

F. Supp. 944 (M.D. Fla. 1970), vacated and remanded on other

grounds, sub nom. Askew v. Hargrave, 401 U.S. 476;

(“. . . interests which may well be deemed fundamental .. . ” 413

F. 2d at 328); Dixon v. Alabama, 294 F.2d 150 (C.A. 5, 1961),

holding due process requires notice and opportunity for hearing prior

to expulsion of students from public college. (“It requires no argu-

ment to demonstrate that education is vital and, indeed, basic to

civilized society. Without sufficient education the plaintiffs would not

be able to earn an adequate livelihood, to enjoy life to the fullest, or to

fulfill as completely as possible the duties and responsibilities of good

citizens.” Jd. at 157, per Rives, J.) ”

14 Commentaries support our position that education should be con-

sidered a “fundamental interest.” Coons, Clune and Sugarman, Edu-

cational Opportunity: A Workable Constitutional Test for State Fin-

ancial Structures, 57 Cal. L.Rev. 305, 382-389 (1969); Kirp, The

Poor, The Schools and Equal Protection, 38 Harv. Ed. Rev. 635,

pertinent factors, the court concluded: ‘*We are convinced

that the distinctive and priceless function of education in

our society warrants, indeed compels, our treating it as a

‘fundamental interest’.”’ (487 P.2d at 1258; footnote omit-

ted.)

Education is precious not only in its own right, but also

because it provides the tools necessary for exercising other

rights which this court has recognized as fundamental —

voting (Harper vy. Virginia State Board of Elections, 383

U.S. 663); speech (Lovell v. City of Griffin, 303 U.S. 444,

450) ; association (NAACP vy. Alabama, 357 U.S. 449) ; and

travel (Shapiro v. Thompson, 394 U.S. 618, 629-631).

“‘{E]ducation underlies the whole substance of the politi-

cal process and is antecedent to voting in the orders of both

time and cause. All. political behavior inevitably must re-

flect the presence or absence and the quality of education.

A man’s understanding of public issues is a function of

those communications which are intelligible to him.’’

The courts’ statements are not merely rhetoric; all of

the other institutions of government reflect similar concern

for education. The last four presidents of this nation have

expressed agreement with the courts.2® Congress has en-

acted legislation providing funding for educational pro-

grams.” Education is made compulsory for at least ten

642-645 (1968); Michelman, The Supreme Court, 1968 Term, Fore-

ward: On Protecting the Poor through the Fourteenth Amendment, 83

Harv. L. Rev. 7, 28, 48 (1969).

15 Coons, Clune and Sugarman, supra n. 14, at 368.

16 President Nixon: 1969 U.S. Code Cong. and Adm. News at

2830 (Proclamation on American Education Week; September 26,

1969); President Johnson: 1968 Code at 4648-9 (Proclamation on

American Education Week; August 29, 1968); 1965 Code at 1448-

9 (Message on Education Act of 1965); President Kennedy: 1963

Code at 1450 (Education Message to Congress; January 29, 1963);

President Eisenhower: 1958 Code at 5412 (Education Message ).

17 See e.g. Elementary and Secondary Education Act of 1965, 20

U.S.C. 236-244, 331, 332, 821-827, 841-848, 861-870, 881-885,

National Defense Education Act of 1958, Title 20 U.S.C. and John-

son-O’Malley Act, Title 25 U.S.C.

Shen

years by New York and all but three of the other states.”

New York’s Constitution provides in Article XI, Section 1:

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.

And, in fiscal 1968, 35 percent of New York’s state and local

tax dollars were spent on public schooling.’®

We note that it is not necessary to recognize a federal

constitutional right to an education in order to classify edu-

cation a ‘‘fundamental interest’’. In a series of cases, this

court has held qualifications for voting in state elections

violative of the equal protection clause of the Fourteenth

Amendment by application of the more stringent standard

of review. Harper v. Virginia State Board of Elections, 383

U.S. 663, 670; Kramer v. Union Free School District, 395

U.S. 621, 627, 630; Cipriano v. City of Houma, 395 U.S. 701,

704; Evans v. Cornman, 398 U.S. 419, 422.

These cases rest not on a federal constitutional right to

vote, but on the ground that ‘‘once the franchise is granted,

lines may not be drawn which are inconsistent with the

Equal Protection Clause of the Fourteenth Amendment.”’

Harper, supra, 383 U.S. at 665; see also Kramer, supra, 395

U.S. at 629.7? Indeed, in Harper, while noting that ‘‘the

18N.Y. Education Law, § 3205(1)(a); Goldstein, The Scope and

Sources of School Board Authority to Regulate Student Conduct and

Status: Non-Constitutional Analysis, 117 U. Pa. L. Rev. 373, 393-4,

n. 74 (1969).

19 Calculated from Advisory Commission on Intergovernmental: Re-

lations, State and Local Finances, Tables 8 and 12 (1969).

20 Compare Griffin v. Illinois, 351 U.S. 12, 18. (“It is true that a

State is not required by the Federal Constitution to provide appellate

courts or a right to appellate review at all. See, e.g., McKane v. Dur-

ston, 153 U.S. 684, 687-688 .... But that is not to say that a

State that does grant appellate review can do so in a way that dis-

criminates against some convicted defendants on account of their pov-

erty.”); and Brown I, supra, 347 U.S. at 494. (“Such an oppor-

eunity [of an education] where the state has undertaken to provide it,

is a right which must be made available to all on equal terms.”)

_—

right to vote in federal elections is conferred by Art. I, § 2

of the Constitution,’’ the Court found it unnecessary to

decide whether ‘‘the right to vote in state elections’? is con-

ferred by the federal] constitution. Harper, supra, 383 U.S.

at 665. The challenged statutes were subject to more strin-

gent review in these cases because voting was viewed as

“‘fundamental”’ and << preservative of other basic civil] and

political rights”? (Harper, supra, 383 U.S. at 667) and at

the ‘‘foundation of our representative society.’? K ramer,

supra, 395 U.S. at 626. As we have shown, education is in

the same position.

b) Wealthisa ““suspect’’ classifying factor

Our contention that the statutory scheme must be judged

by the compelling interest standard is buttressed by the fact

that the admitted impact of the statutory scheme is to clas-

sify students based upon the affluence of their families.

“Lines drawn on the basis of wealth or property, like those

of race... are traditionally disfavored.’ Harper v. Vir-

gimia State Board of Election Commissioners, 383 U.S. 663,

668. 22 While rejecting plaintiff’s claims, the court below

agreed with plaintiffs’ allegation that the statutory scheme

would operate to stigmatize poor children (see Statement

Supra at 7), similarly to Segregation based upon race

in the dual system. See Brown I, supra, 347 U.S. at 494.

We note also that poor children, punished here for rea-

sons wholly beyond their own control, ‘‘are a prime ex-

ample of a ‘discrete and insular’ minority . . . for whom

. . » heightened judicial solicitude is appropriate.’’ Gra-

ham v. Richardson, 91 S. Ct. 1848, 1852 (quoting United

States v. Carolene Products Co., 304 U.S. 144, 152-153, n.

4).

In cases which we have cited, lower federal courts and

the California Supreme Court have concluded that the

more rigorous standard of review is particularly appro-

priate when a case involves both the interest in education,

and wealth classifications. Van Dusartz v. Hatfield, C.A.

No. 3-71 Civ. 243 (D. Minn., October 12, 1971) (Mem. Op.

at 6, 8); Hargrave v. Mckinney, supra at 413 F.2d 328;

Serrano v. Priest, 487 P.2d 1241, 1250-1259 (S. Ct. Cal.,

1971). See also Hobson v. Hansen, 269 F. Supp. 401, 513

(D.D.C., 1967), affirmed, sub nom. Smuck v. Hobson, 408

F.2d 175 (D.C. Cir., 1969).*

23In his dissenting opinion, Circuit Judge Kaufman stated: “In

short, the legislative scheme here creates two classes of children, not

physically separate yet unequal — the poor suffer while the rich re-

ceive the full benefits of the state’s educational program. But ‘[IJines

drawn on the basis of wealth or property, like those of race. ...,

are traditionally disfavored.’ Harper v. Virginia Board of Elections,

383 U.S. 663, 668 (1966).” (Slip Op. at 4670.)

24 Our contention that, on the facts of this case, wealth is a “sus-

pect” classifying factor is consistent with James v, Valtierra, 402

U.S. 137. The lower court in Valtierra held that Article XXXIV of

the California Constitution violated the equal protection clause of

the Fourteenth Amendment, focusing on the fact that on its face Ar-

ticle XXXIV “applie[d] only to ‘low income persons’... .” (313 F.

Supp. at 4.) In reversing this Court viewed plaintiffs’ challenge as

directed to the face of the provision: “[A]ppellees contend that Ar-

ticle XXXIV denies them equal protectiong because it demands a

mandatory referendum while many other referendums only take place

upon citizen initiative.” (402 U.S. at 141-142.)

In contrast, the admitted impact of the statutory scheme here is

to apportion educational opportunity along lines of wealth. Valtierra

_ apeeaimmal

3. The Decision Below Conflicts with this Court’s

Rulings on the Scope of the Fourteenth Amend-

ment im Griffin v. Illinois, 351 U.S. 12, Douglas

v. California, 372 U.S. 353 and Subsequent Cases

a) The Fourteenth Amendment principles es-

tablished in Griffin-Douglas and subsequent

, cases

In Griffin v. Tilinois, 351 U.S. 12, this Court held that the

Illinois system of criminal, appellate review, challenged

by indigent defendants because of its failure to provide

for free trial transcripts in the cireumstances of their case,

violated the Fourteenth Amendment by denying them the

‘fadequate appellate review accorded to all [with] money

enough to pay the costs in advance.’’ Griffin, supra, 351

U.S. at 18. The state ‘‘concede[d] that . . . petitioners

needed a transcript in order to get adequate appellate

review of their alleged trial errors.’’ Griffin, supra, 351

U.S. at 16.

This Court decided Griffin on the premise that Illinois

was not required by the Federal Constitution to afford

any appellate review. ‘‘But that is not to say that a state

that does grant appellate review can do so in a manner

that discriminates against some convicted defendants on

account of their poverty.’’ Griffin, supra, 351 U.S. at 18.

Finally, emphasizing its antipathy to wealth classifications,

may suggest that facial racial classifications are more carefully scru-

tinized than those based upon wealth, but construing Valtierra to

foreclose our argument on wealth classification requires acceptance

of the proposition that this Court limited, sub silentio, more than 15

decisions holding practices having an impact along lines of wealth vio-

lative of the Fourteenth Amendment, (See cases cited supra at 21,

n, 22, and infra at 23-25, 29.)

25TIt is clear, therefore, that the decision below cannot be sup-

ported by any right-privilege rationale. See also Graham vy. Richard-

son, 91 S.Ct. 1848, 1853.

the Court stated: ‘‘There can be no equal justice where

the kind of trial a man gets depends on the amount of

money he has.’’ Griffin, supra, 351 U.S. at 19.

Griffin has had a steady growth. For example, in Douw-

glas v. California, 372 U.S. 353, indigent criminal defen-

dants challenged an appellate court’s failure to appoint

counsel to present their appeals. The court relied upon a

rule requiring such appointment only if it determined,

after examining the record, that counsel would be helpful

to the defendant or the court. This Court, viewing the

procedure as one in which ‘‘the rich man can require the

court to listen to argument of counsel before deciding on

the merits, but a poor man cannot’’, held that ‘‘an uncon-

stitutional line [had] been drawn between rich and poor.”’

Douglas, supra, 372 U.S. at 357.

In six cases in addition to Griffin and Douglas, this Court

has held violative of the Fourteenth Amendment proce-

dures nominally available to all criminal defendants or

accused persons, but actually available in a less adequate

form to indigents because of their poverty.” Finally, in

four cases, the Griffin principle has been applied in in-

stances where some requirement imposed by the State

made entirely unavailable to the indigent defendant a

remedy fully open to more affluent persons. For example,

in Burns v. Ohio, 360 U.S. 252, payment of a $20 fee was

required to invoke the criminal, appellate jurisdiction of

26 Eskridge v. Washington State Bd., 357 U.S. 214 (free tran-

script for appeal only if trial judge concludes justice promoted);

Swenson v. Bosler, 386 U.S. 258 (no provision for counsel to brief

appeal of convicted indigent); Draper v. State of Washington, 372

U.S. 487 (free transcript for appeal only if trial judge makes certain

findings); Long v. District Court, 385 U.S..192 (no provision for

free transcript for indigent’s appeal from denial of habeas corpus

petition); Gardner v. California, 393 U.S. 367 (no provision for free

transcript of hearing denying habeas corpus petition, where a de novo

hearing on petition in appellate court); Roberts vy. LaVallee, 389

U.S. 40 (no provision for free transcript for indigent—accused of

testimony of witnesses at preliminary hearing).

_—

the Ohio Supreme Court. Since the remedy was fully

available to more affluent persons, the Court held that the

fee requirement was violative of the Fourteenth Amend-

ment as construed in Griffin.””

During the past two terms, this Court has again demon-

strated its antipathy to wealth classification. In two cases

‘‘(alpplying the teaching of the Griffin case’’, the Court

has held ‘‘that an indigent criminal defendant may not be

imprisoned in default of payment of a fine beyond the

maximum authorized by the statute regulating the sub-

stantive offense.’’ Williams v. Illinois, 399 U.S. 240, 241;