# Amicus Curiae Brief — Johnson v. New York State Education Department > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_1547%3A02 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1972 - **Citation:** 409 U.S. 75 ## Text 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, v. 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 ee 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, 22 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, v. 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. 2 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.) 3 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. 4 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 ga 5 (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.” 6 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.) Se 7 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 8 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 9 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- 10 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- a 11 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.) 12 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. 13 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. 14 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. ) ee 15 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. ) 16 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 17 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.) 18 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, a 19 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 20 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. 21 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 -_ 22 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 23 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. ag 24 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). _— 25 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; see also Tate v. Short, 91 S. Ct. 668. b) The Court of Appeals erroneously construed Griffin-Douglas and their progeny There is a striking parallel between the pivotal facts in Griffin-Douglas and this case. (1) Plaintiffs have a right under state law to attend public school, as petitioners in Griffin-Douglas had a right under state law to appeal their convictions. (2) Here, as in Griffin-Douglas, something, unavailable to indigents,” is an essential tool for enjoy- 27See also Smith v. Bennett, 365 U.S. 708 ($4 filing fee for appellate review of denial of habeas corpus petition); Lane v. Brown, 372 U.S. 477 (filing of transcript — available to indigent only on request of public defender — necessary for appellate jurisdiction to re- view denial of coram nobis petition); Williams vy. Oklahoma City, 395 U.S. 458 (filing of “case made” in appellate court necessary to invoke jurisdiction to review criminal conviction ). 28 It is true that the Court of Appeals suggested that the “fixed allowance” plaintiffs received under New York’s Welfare law “was intended to cover this as well as other contingent needs.” (Slip Op. 4649, n. 3.) Of course the suggested intent of the law is irrelevant; whether or not the parents were able to pay the fee is a question of fact. Since this case was decided on a motion to dismiss, plaintiffs’ affi- davits and allegations of their inability to pay the fees must be taken as true. See e.g. Cooper v. Pate, 378 U.S. 546; Gardner v. Toilet Goods Association, 387 U.S. 167, 172. ment of the right. (3) Without books, similar to an in- digent without a transcript or an attorney, a student from an indigent family is denied the full benefit of the right ‘accorded to all [with] money enough to pay the costs in advance.’’ Griffin v. Illinois, 351 U.S. 12, 18. The equal protection clause is as clearly violated when the quality of education a child receives depends upon the affluence of his parents, as where ‘‘the kind of trial a man gets depends on the amount of money he has.’’ Griffin, supra, 351 U.S. at 19. Indeed, in this case, unlike Griffin, children are punished for ‘‘no action, conduct or demeanor of theirs’’ (Levy v. Louisiana, 391 U.S. 68, 71), but instead because of their families’ indigency wholly beyond their own control. Despite the obvious parallels between Griffin-Douglas, their progeny, and this case, the lower courts rejected plaintiffs’ povery claim. (The District Court did not even mention the claim.) We submit that the court below de- cided the Fourteenth Amendment issues ‘‘in a way in conflict with applicable decisions of this court; .. .’? (Su- preme Court Rule 19 (1)(b).) The Court of Appeals rejected the poverty contentions because ‘‘[t]he reasoning of [the] cases [relied upon by plaintiffs] * is that the State is required to provide these services and access because to do otherwise would be to deprive indigents of due process. Obviously, though, due process is not involved here.’’ (Slip Op. at 4661.) The court also argued that ‘‘such money as the School Board has to spend is being spent in such a way as to benefit all students (i.e. on teachers’ salaries, building maintenance and the like). (footnote omitted.)’’? (Slip Op. at 4662.) Finally, while acknowledging that students whose families 2° The court cited: Boddie v. Connecticut, 91 S.Ct, 780; Griffin v. Illinois, 351 U.S. 12; Burns v. Ohio, 360 U.S. 252; Smith v. Ben- nett, 365 U.S. 708; Gideon v. Wainwright, 372 U.S. 335. 27 could afford texts would no doubt receive a better educa- tion, the court said that this was due to their own means and not because the State provided them more. (Slip Op. at 4663.) Any surface plausibility of this reasoning does not with- stand serutiny. First, as noted by Judge Kaufman in dis- sent, Griffin ‘‘rested by its own language squarely on the ” . equal protection guarantee, as well as on due process ... (Slip Op. at 4751.) See Griffin, supra, 351 U.S. at 13, 18.°° Second, no distinction can be made because this case in- volves education rather than the criminal process. The Fourteenth Amendment makes no such distinction between criminal and other matters and this Court has not so con- strued it. The Griffin opinion emphasizes the importance of fairness in the criminal process, but education is at least as important, as our argument at pages 16-21 demonstrates. Moreover, education may serve to make un- needed protection in the criminal process. Third, it could have been argued in Griffin-Douglas where appellate review was nominally available to the indigent, as the lower court did here, that ‘‘such money as the [State had] to spend [was] being spent in such a way as to benefit all [defendants]’’, that is, on salaries for judges and clerks, building maintenance, ete., and that %© See also Griffin, supra, 351 U.S. at 34 (dissenting opinion of Harlan, J.); and Williams vy, Illinois, 399 U.S, 235. 241, exp! “ning Griffin as finding “a violation of the Equal Protection Clause . . . 31See e.g. Boddie v. Connecticut, 91 S.Ct. 780; Harper v. Vir- ginia State Board of Elections, 383 U.S. 663; Brown v. Board of Edu- cation, 347 U.S. 483. 2 See Coons, Clune and Sugarman, supra, n, 14, at 362. [“Aside from reducing the crime rate (the inverse relation is strong), edu- cation also supports each and every other value of a democratic so- ciety . . . .” (footnote omitted.).] See also Johnson v. Avery, 393 U.S. 483, 487. (“Jails and penitentiaries include among their in- mates a high percentage of persons who are totally or functionally il- literate, whose educational attainments are slight, and whose intelli- gence is limited.” footnote omitted. ) to the extent the affluent defendant had a more adequate appeal, this was a result of a private supplement. In fact, similar contentions were urged in dissent by Justice Har- lan in both Griffin and Douglas.* A majority of this Court held, however, that in certain contexts the Fourteenth Amendment requires more than simply facial neutrality.” Strictly speaking, it would appear that in Griffin- Douglas, and this case, Fourteenth Amendment obligations could be satisfied by ways other than furnishing free a transcript, counsel or books. Thus, the state could release an indigent defendant ** and the curriculum could be other than textbook orientated. However, to the extent that furnishing a transcript, counsel or books is the most likely state response, the affirmative action here is precisely analogous to Griffin-Douglas. This Court has approved affirmative remedial action to provide equal educational opportunity. The Brown I opin- ion stated that the opportunity of an education ‘*where the state has undertaken to provide it, is a right which must be made available to all on equal terms.’’ Brown I, supra, 347 U.S. at 483, 493. Thereafter, in Griffin v. School Board of Prince Edward County, Va., 377 U.S. 218, 233, this Court held that the district court had the authority to direct public officials to exercise their power to raise funds adequate to operate a racially non-discriminatory school system. And finally, in the past term, the Court upheld unanimously the order of a district court which 33 Griffin, supra, 351 U.S. at 34; Douglas v. California, 372 US. $53, 361-362. 34 “Dissenting opinions here argue that the Illinois law should be upheld since by its terms it applies to rich and poor alike. But a law nondiscriminatory on its face may be ly discriminatory in its operation.” Griffin, supra, 351 USS. at 18, h. 11; see also Williams V. Illinois, 399 U.S. 235, 242. 35 “(3) The remedy for the discrimination is simple, clear and effec- tive — i.e., give the appellant a transcript (and a lawyer) or else let him go; . . .” Coons, Clune and Sugarman, supra n. 14, at 362. ee 29 required state officials to provide substantial, additional student transportation. Swann v. Charlotte-Mecklenberg Board of Education, 402 U.S. 1. See also United States v. School District 151 of Cook County, Illinois, 301 F. Supp. 201, 232 (N.D. Ill. 1969), affirmed as modified, 432 F.2d 1147 (C.A.7, 1970) cert. denied, 402 U.S. 943; Hosier v. Evans, 314 F. Supp. 316, 320 (D. Vis. Is., 1970). Our contention that plaintiffs present a substantial claim is buttressed by decisions of this Court invalidating, on Fourteenth Amendment grounds, fees in two additional areas. In each case, the Court’s opinion stressed the funda- mental interest involved. See Harper v. Virginia State Board of Elections, 383 U.S. 663; Boddie v. Connecticut, 91 S. Ct. 780. In striking down Virgina’s $1.50 poll tax, this Court stated in Harper: ‘“‘wealth or fee paying has - - no relation to voting qualifications; the right to vote is too precious, too fundamental to be so burdened or con- ditioned.’’ Harper, supra, 383 U.S. at 670. The Boddie case involved fees for the commencement of divorce litiga- tion. The Court held that the due process clause prohib‘ted Connecticut from denying access to the courts to indigents seeking divorces in good faith, emphasizing ‘‘the basic position of the marriage relationship in this society’s hierarchy of value... .”’ Boddie, supra, 91 S. Ct. at 784. This case too, as we have shown, involves a fundamental interest. Here, as in Harper, ‘‘wealth or fee paying has . no relation to [an education]; the right to [an educa- tion] is too precious, too fundamental to be so burdened or conditioned.’’ 4. The Decision Below Conflicts with Rulings of this Court Applying the ‘Compelling State Interest’? Standard of Review We maintain for the reasons set forth above that the challenged legislative scheme must be judged by the ‘‘com- 30 pelling state interest”’ standard. The district court pur- ported to apply this test, finding it satisfied. (319 F. Supp. at 278.) The court reasoned that the classification was adequately justified by the adoption of a scheme which would, in the court’s view: 1) advance the legislatures ‘legitimate interest in conserving the State’s fiscal re- sources... .’’ (Id. at 279;) 2) insure ‘“‘that as many as possible of [New York’s] children receive textbooks’’ (Jd. at 279-280;) and 3) fulfill ‘‘[t]he legislature’s desire to foster the study of certain subjects [the sciences, mathe- matics and foreign languages]... .”’ (Jd. at 280.) The majority below approved the district court’s con- clusion on the compelling interest test (Slip Op. at 4655- 4656), thereby incorporating the district judge’s erroneous application of the standard.* The decision below conflicts with rulings of this court in three respects: 1) by failing adequately to consider the availability of less onerous alternatives for achieving the state’s objectives; Shapiro v. Thompson, 394 U.S. 618, 631, 633-638; 2) by approving a scheme under which the state protects ‘‘the fiscal in- tegrity of its programs’’ through ‘‘invidious distinctions between classes of citizens’’; Graham v. Richardson, 91 S. Ct. 1848, 1853; and 3) by failing adequately to weigh ‘