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

Supreme Court brief1972

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In the

Supreme Court of the United States

— _—_—

Supreme Court, U. S.

riLanR

Ocroper Term, 1971 Fi

No. 71-5685 APR 20 1972

| MICHAEL RODAK, JR.,CLER

DAISY JOHNSON, ET AL., palette

NEW YORK STATE EDUCATION

DEPARTMENT, ET AL.

ON 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 PETITIONERS

J. Hanoy FLANNERY

Rosert PressMAN

Center for Law

and Education,

Harvard University

Tae Unrrep Ministries

tn Pusiic Epucation

Blanchard Press, Inc., Boston, Mass. — Law Printers

_ —— Se he RP es ee ea

INDEX

Introduction — Interest of the Amici

rts Meare) vats 3 wh Bb uloa gh

Procedural History .......

PN 65 isssig hs;

Summary of Argument.

Argument . iow’

I. The Procedural. Pashere Te eee

II. The Defendants Have Denied Children From

Poor Families the Equal Protection of the Laws

in Violation of the Fourteenth Amendment

A. Introduction: The Fee and Payment Cases

and the Importance of Educational Oppor-

is ef cack itis tats acsddanhal sci s..

1. The fee and payment cases ..__.

2. The importance of educational oppor-

WIIG 3s apa ies Lizbenn veel

B. The Denial of Books to Poor Children in

Grades 1-6 Is Not Rationally Based and

Constitutes Invidious Discrimination .

1. The classification is not ‘‘rationally

De oriG, aatibscak Cowes ibwss ss...

2. The denial of bocks conatitutes ‘*invidi-

ous discrimination’? .................

C. Defendants’ Fee Requirement Contravenes

the Fourteenth Amendment as Construed in

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

California, 372 U.S. 353 and Their Progeny

1. The Fourteenth Amendment principles

established in Griffin-Douglas and their

ESSENSE + ORE oe eis hae ae aera

———

ii Index

Page

2. The Fourteenth Amendment principles

set forth in Griffin-Douglas and their

progeny require that poor children be

provided free textbooks ............. 32

3. The Court of Appeals erroneously con-

strued Griffin-Douglas and their progeny 36

D. The Denial of Books to Poor Children in

Grades 1-6 Violates the Equal Protection

Clause, Even if the Asserted Bases for Dis-

tinguishing Grades 1-6 and 7-12 Are Con-

a ee AS OL AOR Teo. 38

1. The availability of less onerous alterna-

NE ER PES OREO FG. . 40

2. The statutory scheme is not adequately

tailored to achieving the asserted state

objectives to justify the challenged im-

ee 41

3. The special interests ef the children

disadvantaged by the classification 44

4, The limited resources arguments... 47

E. The Denial of Books to Poor Children in

Grades 1-6 Is Not Rationally Based and

Constitutes Invidious Discrimination, Even

if the Asserted Bases for Distinguishing

Grades 1-6 and 7-12 Are Considered ...... 49

III. The Denial of Books to Children from Poor

Families in Grades 1-6 Contravenes the Due

Process Clause of the Fourteenth Amendment... 50

Conclusion ............ Mey teen rt OR eo 53

TaBLE oF CITATIONS

Cases

A Book, Etc. v. Attorney General ’ Com. of Mass.,

383 U.S. 413 . cca ecg erry s 22

— |

Index iii

Page

Alexander v. Holmes County Board of Education, 396

EE haar CE ye eee es ON eke f 55

Anders v. California, 386 U.S.738 ................... 18

Bailey v. Patterson, 369 U.S.31..................... 53

Board of Education v. Allen, 392 U.S. 236 .......... 6, 42

Boddie v. Connecticut, 401 U.S. 371 .... 13, 15, 16, 17, 33,

37, 39, 40, 48, 52, 54

Bolling v. Sharpe, 347 U.S.497 .................... 50, 51

Brown v. Board of Education, 347 U.S. 483 .. 19, 20, 21, 25,

27, 33, 36, 45

Bullock v. Carter, 92S. Ct. 849 .......... 16, 17, 19, 39, 40,

41, 47, 49

Burns v. Ohio, 350 U.S. 252 .................... 16, 31, 37

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

(E.D. La., 1960), affirmed per curiam, 365 U.S. 569 20

Carrington v. Rash, 380 U.S. 89 ........ 11, 28, 29, 40, 41

Chandler v. South Bend Community School Corporation,

C.A. No. 718. 51 (N.D. Ind., Aug. 26,1971) ........ 25

Conley v. Gibson, 355 U.S.41 .............. 13, 15, 16, 54

weer v, fete, STOUR. GM eas 16, 32

Dandridge v. Williams, 397 U.S. 471 ...... 11, 12, 19, 24,

27, 28, 49

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

Diawon v. Alabama, 294 F. 2d 150 (C.A. 5, 1961) ... ~ @

Douglas v. California, 372 U.S. 353 .... 12, 18, 28, 29, 31,

32, 33, 34, 36, 37, 48

Draper v. State of Washington, 372 U.S. 487 ......... 17

Dunn v. Blumstein, 40 U.S. Law Wk. 4269 .. 12, 39, 40, 44

Eskridge v. Washington State Bd., 357 U.S.214...... 17

Evans v. Cornman, 398 U.S. 419 .............. 12, 44, 47

Gardner v. California, 393 U.S. 367 ........ 17, 28, 32, 35

Gardner v. Toilet Goods Association, 387 U.S.167 16, 17, 32

Gideon v. Wainwright, 372 U.S. 385 ............ 28, 37, 48

- Goldberg v. Kelly, 397 U.S. 254 ...............0000..., 27

iv Index

Page

Graham v. Richardson, 403 U.S. 365 ........ 12, 30, 39, 47

Griffin v. Winois, 351 U.S. 12... 10, 12, 17, 18, 19, 29, 30,

31, 32, 33, 34, 35, 36, 37, 38, 48

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

Ce Ne URS idk EB ok wha Speco ake Kee 36

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

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

US ied ha Be kiosk oh RN Pike awa © maces 29

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

ARO er 5 Ser oe ocier es Rae eM 10, 16, 17, 18, 19, 21, 33, 34

Hosier v. Evans, 314 F. Supp. 316 (D.C. Vir. Is., 1970) 21, 36

Jacobellis v. Ohio, 378 U.S. 184 ..................... 22

James v. Valtierra, 402 U.S. 137, reversing, 313 F. Supp.

hos ate g Ae oll 18, 29

Johnson v. Avery, 393 U.S. 483 ..................... 34

Johnson v. New York State Education Department, 319

eS igs 2 & A) re 4

Johnson v. New York State Education Department, 449

Be ri MD ah ck ic GA KS eons bn

Kennedy v. Mendoza-Martinez, 372 U.S. 144 ....... 13, 14

Keyishian v. Board of Regents, 385 U.S. 589 ........ 19

Kramer v. Union Free School District, 395 U.S. 621 .. 2, 12,

39, 43, 44

eRe ef RIE: Oe ee 18

Lemon v. Kurteman, 401 U.S. 931 ............. eee

Levy v. Louisiana, 391 U.S. 68 ................ 11, 27, 52

Lindsey v. Normet, 92 8, Ct. 862 ........ 18, 19, 24, 25, 34

Long v. District Court, 385 U.S. 192 ................ 17

Lovell v. Griffin, 303 U.S. 444 .............0 00.00 22

Lucas v. Forty-Fourth General Assembly of Colorado,

RI es i NCAT UMN AN Aen oe varies 29

McLaughlin v. Florida, 379 U.S.4184 ....... cet a 28

Mayer v. Chicago, 404 U.S.189 .............. 18, 19, 47

Meyer v. Nebraska, 262 U.S. 390.......... 13, 50, 51, 52

Fanaa,

Index v

Page

Mitchell v. Donovan, 398 U.S. 427 ................ 14

NAACP v. Alabama, 357 U.S. 449 ............... 22

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

ae, DENG Wal Lc hobs ber aad by ak boll 21

Palmer v. Thompson, 403 U.S. 217 ................ 20, 27

Perez v. Ledesma, 401 U.S. 82................... 14, 15

Phoenix v. Kolodziejski, 399 U.S. 204...... 12, 39, 40, 44,

‘ 45, 47

Pierce v. Society of Sisters, 268 U.S.510............ 50

Ee » eee eee 11, 25, 26

Rinaldi v. Yeager, 384 U.S. 305 ............... 25, 28, 44

Rockefeller v. Catholic Medical Center, 397 U.S. 820,

vacating per curiam for entry of ‘‘fresh decree,’’ 305

F. Supp. 1256, 305 F. Supp. 1269 (E.D.N.Y., 1969) 13, 14

Roberts v. La Vallee, 389 U.S. 40 ................... 17

Robinson v. California, 370 U.S. 660 .............. 45, 52

Rodriguez v. San Antonio Independent School District,

40 Law Wk. 2398 (Jan. 4, 1972), C.A. No. 68-175-SA

(was, Tex. Dec. 38, 1971) (8 J. Ct.) ........... 21

San Francisco Unified School District v. Johnston, 3

Cal. 3d (Cal. Sup. Ct. 1971), cert. denied, 401 U.S.

ER Gai Deir ae Maer sial Sass iende bes jee

Schneider v. Rusk, 372 U.S. 224 ................. 15, 55

Serrano v. Priest, 487 P. 2d 1241 (Cal. Sup. Ct., 1971) 21

Shapiro v. Thompson, 394 U.S. 618 ............ 22, 40, 47

Smith v. Bennett, 365 U.S. 708 ............ 16, 17, 31, 37

Stanley v. Illinois, 40 U.S. Law Wk. 4371 .......... 11, 26

Swann v. Charlotte-Mecklenberg Board of Education,

Sr SES Saas Wi ciy PE dyes dT k wd we ew OR 36

Swenson v. Bosler, 386 U.S. 258 .................... 18

Tate v. Short, 401 U.S. 395 ................ 18, 26, 40, 41

Terminiello v. Chicago, 387 U.S.1.................. 22

Tinker v. Des Moines Ind. Com. School District, 393

RSENS SGER a as NN a titel: 11, 25

vi Index

Page

Townsend v. Swank, 404 U.S. 282 ................ 18, 19

United States v. School District 151 of Cook County,

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

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

Ge EE bck dlvc sc ck Rcd, dubrhc ecemnedis ce «s. 36

Van Dusartz v. Hatfield, 40 Law Wk. 2228 (Oct. 26,

1971), C.A. No. 3-71 Civ. 243 (D. Minn., Oct. 12,

BS Cia ita ek analeae atin whekiea i 44 Sek te bass « 21

Wiliams v. Dade County School Board, 441 F. 2d 299

SNe EE XA ca wanwasuca abe cu oisObw ened ss. 21

Williams v. Illinois, 399 U.S. 235 ........ 13, 18, 37, 38,

44, 50, 51, 52, 53

Williams v. Oklahoma City, 395 U.S. 458 ........ 18

Williams v. Page, No. 18536 (C.A. 7, June 9, 1971)

(unreported), cert. denied, 404 U.S. 1005 (1971), re-

versing 309 F. Supp. 814 (N.D. TL, 1970) .... 15, 34, 35

Williams v. Rhodes, 393 U.S. 23 ............ . 2, 39, 4

Wisconsin v. Constantineau, 400 U.S. 4383 ........ 11, 13,

27, 50, 53

Constitutional and Statutory Provisions

New York

Code of Criminal Procedure, Sec. 308 ............

Constitution, Article XI, See. 1 ............

Educational Law

REE 5 ix dae exch Lo vena. Hui Oe GE

5, 6,1

Sec. 3205 (1) (a) ......... Salisee 5, 11, 24, 25, 26, 50

Laws of 1928, Ch. 646, Sec. 627 F ................

Index

Page

Laws of 1965, Ch. 320,Sec.1 .. 40, 44

Ne 6

Opinion No. 213, Counsel to the State Education

Department, July 6, 1967 .... ____. 5

Social Services Laws, Sec. 131(a)..... 28

United States

Elementary and Secondary Education Act of 1965,

Se en ee 23, 45

Johnson-O’Malley Act, Title 25U.S.C.. 23

National Defense Education Act of 1958, Title 20

EE 2s ars SEE AC SS Wao Oe cee re out eee

SE Aon ae aor

. Public Law 91-230, Sec. 132(a) ......... bad 45

Title 20 U.S.C.

a eee ee Vea ae

REBUT... TU eho TR ok eos 45

Sec. 241e (a) (1) eG ee

Title 28 U.S.C. Sec. 2281 ............ .. 143

Miscellaneous

Advisory Commission on Intergovernmental Relations,

State and Local Finances, Tables 8 and 12 (1969) .. 24

Bloom, Davis and Hess, Compensatory Education for

Cultural Deprivation (Holt, Rinehart and Winston,

Ts COCs FERRO Lh om 8 6«

Bloom, Stability and Change in Human Characteris-

tics (John Wiley and Sons, Inc., REE ea ae 46

45 C.F.R. Part 116

EE, ocak...) s. dak Sey vee 45

Sec. RE “Ean Cantu >, ple sc eal TitreRe

viii Ind

Page

Chief Justice Warren Burger, Address to the National

Conference on Corrections, Dec. 7, 1971 ........... 33

Coons, Clune and Sngarman, Educational Opportun-

ity: A Workable Constitutional Test for State Fin-

ancial Structures, 57 Cal. L. Rev. 305 (1969) ...... 21,

22, 33, 36

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

Re a cA, Sa iow wR. Cav oe 24

Hunt, The Challenge of Incompetence and Peverty,

Papers on the Role of Early Education, (University

SP ee I ND FKP Su 1 hee. Ofek ka 46

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

Harv. Ed. Rev. 685 (1968) ...................... 21

Michelman, The Supreme Court, 1968 Term, For-

ward: On Protecting the Poor Through the Four-

teenth Amendment, 83 Harv. L. Rev. 7 (1969) .. 21, 27

Miller, Herman P., Bureau of the Census, Income Dis-

tribution in the United States, (U.S. Government

oe ee eee ee 22

2A Moore’s Federal Practice Sec. 1208 (2d ed., 1968) .. 15

President Nixon, Education Reform Message to Con-

gress, March 3, 1970, in Weekly Compilation of Presi-

dential Documents, March 9, 1970 ............... 23

N.Y. State Education Dept., Center on Information in

Education, Basic Educational Data System Statis-

CRD 9 Sat L cask awed. Laces eolat. Gis.:. 43

N.Y. State Education Dept., French for Elementary

rere ere 43

N.Y. State Education Dept., Spanish for Elementary

ae. eee 43

Index ix

Page

President Nixon, Statement by the President on Ele-

mentary and Secondary School Desegregation,

es Sie Ci en, 10, 23

President Nixon, Statement (on School Desegregation),

EE 23

S. Rep. 91-634, 91st Cong., 2d Sess..........._.. .. 46

Supreme Court Rule 42(2) .................... 1

The Handbook of Private Schools, 52nd. Edition, (Por-

I, 42

United States Office of Education, ESEA Program

Guide 44, March 18, 1968, Sec. 1.1 .........___ 45

dn the

Supreme Court of the Rnited States

Octosgr Ter, 1971

No. 71-5685

DAISY JOHNSON, ET AL., PETITIONERS,

NEW YORK STATE EDUCATION

DEPARTMENT, ET AL,

ON 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 PETITIONERS

Introduction — Interest of the Amici

We present this brief, supporting the petitioners, with

the consent of all parties pursuant to Supreme Court

Rule 42(2). Copies of the three letters of consent are at-

tached to our covering letter to the Clerk of this Court.

UeiR in CeneeccemmnmmmanamEnn ta

The Amici are the Center for Law and Education, Har-

vard University, and the United Ministries in Public Edu-

cation. The Center was formed in 1969. Sponsored 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 received numerous inquiries) ; stud-

ent rights; resource allocation, within and between school

district; ‘‘ability grouping’’ practices; racial discrimina-

tion; and federal programs, particularly Title I of the

Elementary and Secondary Education Act of 1965. The

Center publishes a bulletin, 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

referred to these briefs.’ In this Court, the Amici filed a

brief in support of the petition in November, 1971. This

Court accepted an amicus curiae brief prepared by Center

attorneys in the cases involving aid to parochial schools

during the October, 1970 Term. See Lemon v. Kurtzman,

401 U.S. 931.

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

[challenged] classification.’’ K: ramer v. Union Free School

1 “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 Cen-

ter for Law and Education of Harvard University.” (App. at 63.)

District, 395 U.S. 621, 626, quoting Williams v. Rhodes,

393 U.S. 23, 30 (explanation added).

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 ac-

countability for education. The UMPE supports the public

educational system where it is contributing to the humane

development of persons and calls for reevaluation of the

system where needed. The UMPE works in coalition with

others for the reform of educational policy and practice

where necessary.

The UMPE’s goals cover a. wide spectrum of concerns for

equalized educational opportunity. The UMPE supports

litigation seeking to equalize educational opportunity by

challenging special tax measures and tax allocation for-

mulas for public education which perpetuate inequality of

opportunity.

Statement

Procedural History

Parents of elementary school students in Union Free

School District No. 27, Town of Hempstead, New York,

began this class action on September 16, 1970, challenging

the denial of textbooks to their children as violative of the

equal protection clause of the Fourteenth Amendment.”

Plaintiffs presented three claims, focusing on the denial

of texts to their children because of plaintiffs’ inability

2 The defendants are the superintendent and school board of Dis-

trict 27, the New York State Education Devertment and the Depart-

ment’s commissioner. (App. at 10.)

to pay the rental fee (Claim III), and the differences in the

procedures for providing texts for students in grades 7-12

and 1-6 under Sections 701 and 703, respectively, of New

York’s Education Law (Claims II and ITT). (App. at 10-12.)

Plaintiffs prayed, in part for:

— an order ‘‘enjoining the defendants ... from en-

forcing or implementing New York Education Law

Sec. 701 insofar as it denies free textbooks to those

pupils in first through sixth grades, while requir-

ing free textbooks for pupils in grades seven to

twelve....”?

— a ‘‘declaratory judgment declaring New York Edu-

cation Law Sec. 701, et seq. unconstitutional ....”

— and ‘‘such additional or alternative relief as the

Court may deem to be just and appropriate.”

(App. at 13-14.)

The district court dismissed the complaint for failure to

state a claim, without holding an evidentiary hearing or

requesting that a three-judge court be convened. See 319

F. Supp. 271. The court of appeals affirmed, Judge Kauf.

man dissenting. See 449 F. 2d 871.

On February 22, 1972, this Court granted plaintiffs’ peti-

tion for a writ of certiorari. See 92 S. Ct. 986. Plaintiffs’

petition raised only the third or poverty claim, presenting

two questions:

(1) May New York State constitutionally deny indi-

gent children textbooks essential for required instruc-

tion solely because of their inability to pay rental fees!

(2) Have petitioners raised a substantial constitutional

claim requiring that a three-judge court be convened!

aaa

Facts

The answer of the defendant local school officials, the

superintendent and school board of District 27, forth-

rightly admits that the denial of textbooks to poor children

in grades 1 to 6 creates two classes of students in those

grades, and contravenes the equal protection clause of the

Fourteenth Amendment.

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 35.)

This admission is fully supported by the other facts of

record, briefly summarized as follows:

1. New York’s compulsory attendance law requires chil-

dren between the ages of 6 and 16 to attend school. N.Y.

Education Law, Sec. 3205(1) (a).

2. In 1970-71 (and again in 1971-72 as shown by the

Petition), the system required payment of a $7.50 rental

fee for textbooks for all students in grades 1 to 6, regardless

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

at 7, 34.)°

3 The overall textbook distribution scheme,

action, was as follows: (1) Section 701 of

tion Law required districts to lend textbooks to all

grades 7-12 attending public and private schools, and provided f

state grant to cover the cost. (2) Section 703 of the N

cation Law required districts to lend textbooks free to stu i

grades 1-6, if the voters approved a tax for these books. (3) When,

as in this school district in 1970-71 and 1971-72, the voters did not

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

district could still levy a tax for “teachers’ salaries” and “ordinary con-

tingent expenses.” New York Education Law, Sec. 2023. (4) Opi-

nion Number 213 of the Counsel to the Education Department, July

6, 1967, did not include expenditures for texts for grades 1-6 as

3. The named plaintiffs had a total of five children en-

rolled in grades 1-3 in the system. (App. at 22, 24, 26.)

4. The complaint alleged that ‘‘[p]laintiffs, recipients

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

fee.’’ (App. at 4, 8-9.) While the local defendants generally

denied this allegation (App. at 34), the named plaintiffs

made uncontroverted affidavits, filed in the district court,

that they were unable to pay the fee. (App. at 22, 24, 27.)*

5. ‘*Children who did not bring the fees demanded were

denied textbooks ....’’ (Admitted; App. at 7, 34.)

6. The complaint alleges that the operative effect of the

fee requirement is to create two classes of students in

grades 1-6. ‘‘[Plaintiffs’] children are ... being denied es-

sential textbooks,® which are nonetheless available to other

similarly situated but more wealthy children, and hence

receive a significantly inferior education solely because of

plaintiffs’ indigency.’’ (App. at 4.) The allegation of an

being in the category of “ordinary contingent expenses.” (5) The

district provided texts free to grades 7-12, but charged a fee for

grades 1-6. (See App. at 59-60.)

On June 22, 1971, the legislature added the following sentence to

Section 703, “Notwithstanding the provisions of subdivision one of this

section, where the qualified voters have failed, neglected or refused to

authorize free distribution of textbooks, the board of education or

trustees of the district may, within its discretion, purchase textbooks and

either rent or sell the same to pupils in grades one through six, inclu-

sive, attending the schools in such district.” N.Y. Laws of 1971, Ch.

699.

* As set forth in the complaint, in addition to the textbook fee, the

system charged fees, varying in amount based upon grade level, for

workbooks, duplicating paper and other supplies and materials, (App.

at 7, 83.) Under this schedule, the named plaintiffs were assessed

the following amounts. Daisy Johnson (4 children) — $58.50; Dor-

othy Miller (1 child) — $6.00; and Forestine Pressy (1 child) —

$17.50. (App. at 9, 83.) Also, plaintiffs made affidavits that they

lived more than a mile from the schools to which their children were

assigned and that the system informed them that it would no longer

provide free bus transportation. (App. at 22, 24, 26.)

5 In his dissenting opinion in Board of Education vy. Allen, 392 US.

236, 252, Mr. Justice Black stated: “Books are the most essential

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

the educational process is designed to exploit.”

‘tinferior education’’ is established by the record. In addi-

tion to the admission by the local defendants in paragraph

12 of the answer quoted above, their papers filed in the

courts below and this Court contain the following state-

ments :

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 young-

sters.

Affidavit of School Board President Donald J.

Siskind, September 23, 1970. (App. at 40.)

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 41.)

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.

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 in Opposition of local defendants in this

Court at 3.

In the district court, the plaintiffs presented the affidavit

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

rector of the Reading and Study Center and Graduate Pro-

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

as follows:

No educational program can exist without books. It

is professionally unthinkable to assume that an edu-

cational program of even the meagerest scope would

not minimally include books. Books of all kinds, read-

ers, workbooks, trade bocks, reference books, et al.

The process of education, as conceived in this country,

assumes that persons must ‘learn’ not only from their

own relatively narrow, actual experiences, but also

from the extensive dimension that can only be offered

through books. (App. at 31-32.)

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

the grade school as having more pertinent require-

ments for textbooks. 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 33.)

7. The complaint alleged, in part, (App. at 13) :

(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 in-

feriority and unfitness in poor children and is

psychologically, 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 Judge Kaufman

dissenting agreed. (App. at 62, 79.)

Plaintiffs’ affidavits portray clearly the tragic impact of

the denial of texts:

On the first day of school my daughter asked her

teacher for textbooks and was told that she would have

to bring money from her mother to obtain textbooks.

My daughter asked me upon her return from school

why some children in her class were given books, and

I told her, that the parents of those children were

able to pay for the textbooks.

Affidavit of Plaintiff Forestine Pressy. (App. at

26.)

... (a) Herron.Johnson, age 8, attends the third

grade. Each day he is told that he will receive an ‘F’

for the day because he is without the required text-

books. When the other pupils in the class read from

textbooks, the teacher doesn’t let him share a book

with another pupil, instead she gives him paper and

tells him to draw.

Affidavit of Plaintiffs’ counsel Carl Nathanson.

(App. at 28.)

8. In summary, this case involves a shocking situation:

poor children are required to attend school without an

“‘essential’’ educational tool, for reasons wholly beyond

their own control; as a direct consequence, they are denied

an educational opportunity equal to children from more af-

fluent families, and stigmatized; and all this occurs in a

nation whose constitution guarantees the equal protection

of the laws and whose President 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 textbook fee operates to create two classes of stud-

ents in grades 1-6. Students whose parents can pay the

rental fee receive essential texts and can participate fully

in the educational program. Other students, denied texts

because of their parents’ poverty, are admittedly deprived

of an equal educational opportunity. Moreover, poor chil-

dren suffer this fate in the schools which New York re-

quires them to attend.

During the past 17 years, in a series of approximately 19

cases, this Court has held a variety of fee and payment

requirements, with a similar wealth-impact, violative of the

Fourteenth Amendment. These cases, in which the Court

scrutinized carefully the particular interest burdened, in-

volved the criminal process (e.g., Griffin v. Illinois, 351

U.S. 12), voting (Harper v. Virginia State Board of Elec-

tions, 383 U.S. 663) and divorce litigation (Boddie v. Con-

necticut, 401 U.S. 371.)

The pronouncements of this and other courts, and our

Presidents, the objective treatment of education by Con-

gress and the states, and the importance of education to the

individual and society—demonstrate that its significance

parallels that of the interests inyolved in the previous

wealth-impact cases. We show, herein, that the principles

employed in those cases require a holding that defendants’

conduct violates the Fourteenth Amendment. Our conten-

tion is buttressed by the stigmatization which must neces-

sarily occur when children of poor families are required

to sit bookless in the classroom. See Wisconsin v. Constan-

tineau, 401 U.S. 433. (See discussion at 16-24.)

2. Defendants’ conduct is ‘not rationally based and free

from invidious discrimination.”’ Dandridge v. Williams, 397

U.S. 471, 487. All children, rich and poor, arrive at the

schoolhouse door similarly situated in terms of their own

conduct. Further, it is the students ’, not the parents’ consti-

tutional rights which are at issue (Tinker v. Des Moines

Ind. Com. Sch. Dist., 393 U.S. 503, 511); and New York’s

compulsory attendance law expresses the legislature’s de-

‘termination, where education is concerned, not to rely upon

parental action. Given these factors, treating children, other-

wise similarly situated, differently because of their parents’

poverty is not ‘‘rationality,”’ but an ‘arbitrary ... choice.’’

Reed v. Reed, 404 U.S. 71, 76-77.

Moreover, denying children books is unrelated to the

local system’s objective of raising funds; their parents

are too poor to pay. And, the denial of books is affir-

matively destructive of the goal of educating all chil-

dren manifested by Article XI, Section 1 of New York’s

Constitution and the compulsory attendance law, Section

3205 (1) (a). ‘‘[T]he State spites its own articulated goals

-++.”? Stanley v. Illinois, 40 U.S. Law Wk. 4371, 4373.

The ‘‘invidious discrimination’? is clear. Poor children

will be stigmatized. The personal right of a child is bur-

dened because of his parents’ poverty, wholly beyond his

control. See Levy v. Louisiana, 391 U.S. 68, 72. The fee has

a wealth-impact. Finally, it is material that New York

law demonstrates that there are less onerous alternatives.

Carrington v. Rash, 380 U.S. 89, 95-96. (See discussion at

24-29.)

3. The material facts are indistinguishable from those in

Griffin v. Iinois, 351 U.S. 12, Douglas v. California, 372

U.S. 353 and their progeny. In each situation: (1) the in-

dividual’s predicament arises from state coercion (pro-

secution and the compulsory attendance law); (2) some-

thing unavailable to the poor is an essential tool for en-

joyment of a right; and (3) the tool is fully available to

persons who can pay the fee in advance. We show that

this case is not distinguishable because it involves educa-

tion rather than the criminal process. (See discussion at

29-38.)

4. Defendants’ conduct violates the Fourteenth Amend-

ment, even if consideration is given to the asserted bases

for distinguishing, in the statutory scheme, grades 1-6 and

7-12. First, there are ‘‘less drastic’’ alternatives (Dunn v.

Blumstein, 40 U.S. Law Wk. 4269, 4276) for satisfying state

interests. Second, analysis of the legislation reveals a

scatter-shct approach, insufficiently tailored to achieving

the purported interests to justify the denial of an essential

educational tool to the poor. Kramer v. Union Free School

District, 395 U.S. 621, 633. Third, both in terms of the pur-

ported state objectives, and independently, those disad-

vantaged by the classification have, at a minimum, ‘“‘a stake

equal to that of other [pupils].’’ Fvans v. Cornman, 398

U.S. 419, 426; Phoenix v. Kolodziejski, 399 U.S. 209-212.

Fourth, the court below approved a scheme whereby re-

sources are conserved by ‘‘invidious distinctions between

classes of citizens.’? Graham v. Richardson, 403 U.S. 365,

374-375. (See discussion at 38-49.)

5. We show also that the clagsification does not satisfy

the standard of Dandridge v. Williams, 397 U.S. 471, 487,

even if the asserted bases for distinguishing grades 1-6 and

7-12 are considered, and that defendants deny due process

of law by arbitrarily infringing the interest of poor chil-

dren in an education [Meyer v. Nebraska, 262 U.S. 390;

Williams v. Illinois, 399 U.S. 235, 259-266 (concurring

opinion of Harlan, J.)], and stigmatizing them. Wisconsin

v. Constantineau, 400 U.S. 433. (See discussion at 49-53.)

6. Plaintiffs sought only declaratory relief on their third

or paverty claim, the only claim which they argue in this

Court. This claim for declaratory relief does not require

the convening of a three-judge court. Kennedy v. Mendoza-

Martinez, 372 U.S. 144; see also Rockefeller v. Catholic

Medical Center, 397 U.S. 820, vacating per curiam, 305 F.

Supp. 1256, 305 F. Supp. 1268 (E.D. N.Y., 1969). The dis-

missal of the poverty claim, without any evidentiary hear-

ing, was erroneous. Conley v. Gibson, 355 U.S. 41, 45-46.

Moreover, the record is adequate, and this Court’s autho-

rity broad enough (Boddie v. Connecticut, 401 U.S. 371),

for the Court to declare that children whose parents are

unable to pay the rental fee have a right to free books.

In addition, the district court should be required to iden-

tify, expeditiously, the class of students entitled to free

texts. (See discussion at 13-16, 53-55.)

Argument

I Tue Procepvrar Posture.

The procedural posture of this case delineates both the

issue in this Court and the scope of this Court’s remedial

authority. There are three pertinent factors: the failure to

convene a three-judge court; the dismissal without an evi-

dentiary hearing; and the fact that plaintiffs sought only

declaratory relief with respect to the substantive claim

which they press in this Court.

Plaintiffs’ complaint presented three claims. They chal-

lenged: (1) the differences in the circumstances in which

texts are provided free to grades 7-12 and 1-6 under Sec-

tions 701 and 703, respectively (Claim I); (2) the applica-

tion of the procedural burden of voter approval only to

grades 1-6 under Section 703 (Claim IT) ; and (3) the denial

of books to children because of their parents’ poverty

(Claim III). (App. at 10-12.) Plaintiffs sought injunctive

relief as to Claim I and apparently Claim II. (App. at 13.)

As to the third or poverty claim, however, plaintiffs sought

only declaratory relief.®

The lower courts held all three claims insubstantial. In

this Court, plaintiffs advance only the third, or poverty

claim on which they sought declaratory relief. Thus, plain-

tiffs do not challenge the insubstantiality findings on Claims

I and II, and argue a claim for declaratory relief which

would not require the convening of a three-judge court.

Kennedy v. Mendoza-Martinez, 372 U.S. 144, 152-155; see

also Rockefeller v. Catholic Medical Center, 397 U.S. 820

(per curiam) ;* Mitchell v. Donovan, 398 U.S. 427; Perez

® App. at 13; compare numbered paragraphs 2 and 3 of the prayer

for relief. See also App. at 3, 15, 17 and 21. In one isolated in-

stance, plaintiffs did refer to an injunction against the operation of

“Sec. 701, et seg. .. .” (App. at 5.)

7In Catholic Medical Center, plaintiff-hospitals challenged in a

class action, on federal statutory and constitutional grounds, a New

York law freezing the rate of state reimbursement for Medicaid serv-

ices irrespective of the actual reasonable cost to the hospitals. The

hospitals sought injunctive and declaratory relief apparently invol-

ving millions of dollars. Viewing the statute as inconsistent with fed-

eral law, the three-judge court nevertheless granted only declara-

tory relief, in part because the “state ha[d] shown a desire to com-

ply ... .” See Catholic Med. Center v. Rockefeller, 305 F. Supp.

1256; 305 F. Supp. 1268 (E.D.N.Y. 1969). In dismissing the state’s

appeal of the declaratory relief, this court held that it did not have

jurisdiction on direct appeal because the “judgment appealed does not

include an order granting or denying’ an interlocutory or permanent

injunction .. . .” See 397 U.S, 820.

We note that in Catholic Medical Center this Court construed 28

U.S.C. 1253, whereas our argument concerns the meaning of 28 U.S.C.

2281. However, in each instance the critical factor is the meaning of

bese

e+; qd po or

qe we adres °¢

SSemeassearzgors sos] &

Ledesma, 401 U.S. 82, 128-129 at n.18 (concurring opin-

n). Accordingly, in reviewing the dismissal of the com-

aint, this Court’s remedial authority is considerably

roader than if the issue were limited to the correctness

’ the failure to convene a three-judge court. Compare

chneider v. Rusk, 372 U.S. 224 (per curiam) with Boddie

Connecticut, 401 U.S. 371.2 We discuss our views on

Appropriate relief in greater detail in the Conclusion.

Although plaintiffs’ poverty claim does not require the

mvening of a three-judge court, the dismissal was er-

meous unless it appears ‘‘beyond doubt that the plain-

ff{s] can prove no set of facts in support of [their] claim

hich would entitle them to relief.’’ Conley v. Gibson, 355

S. 41, 45-46; 2A Moore’s Federal Practice, Sec. 12.08, at

171-74 (2d ed., 1968), quoted in Williams v. Page, No.

5536 (C.A. 7, June 9, 1971) (unreported), cert. denied, 404

S. 1005, reversing, 309 F. Supp. 814 (N.D. IL, 1970).

iven this standard, we maintain that in view of the perti-

nt substantive case law, the admissions of the local de-

ndants and the allegations of plaintiffs’ complaint and

fidavits which must, on motion to dismiss, be accepted as

e words “an interlocutory or permanent injunction.” Further, the

burt’s construction of the same words in 28 U.S.C. 2282 in Men-

za-Martinez supports our position.

®In Schneider, the court of appeals affirmed the district court’s

nclusion that the complaint presented no substantial constitutional

sue, and the consequent refusal to convene a three-judge court. This

yurt reversed, finding the constitutional question “not plainly in-

bstantial” in view of “intervening decisions,” the opinion also not-

g, in part: “No view is here intimated as to the merits of the con-

tutional question . . . .” 372 U.S. at 225. In Boddie, the three-judge

urt dismissed, without an evidentiary hearing, plaintiffs’ Four-

enth Amendment challenge to the filing fee requirement for com-

encing divorce litigation, as applied to indigent persons. See 286

Supp. at 972. (D. Conn., 1969). On appeal, this Court found

e factual record adequate, and, implicitly, its authority broad enough

hold the fee requirement, as applied to poor persons, violative of the

le process clause.

true,® the lower courts erred in dismissing the complaint.”

II. Tae Derenpants Have Denrep Cumpren From Poor

Famiuties Toe Equant Protection Or Tue Laws In

Vio.aTion Or THe FourteENtTH AMENDMENT.

A. Introduction: The Fee And Payment Cases And

The Importance Of Educational Opportunity.

1. The fee and payment cases.

The local defendants admit that the impact of their fee

requirement is to deny to poor children an educational op-

portunity equal to children from more affluent families.

We note, therefore, at the outset, that this Court has in

five cases held ‘‘fees’’ having a similar, discriminatory

impact, based upon wealth, violative of the Fourteenth

Amendment. See Burns v. Ohio, 360 U.S. 252; Smith v.

Bennett, 365 U.S. 708; Harper v. Virginia State Board of

Elections, 383 U.S. 663; Boddie v. Connecticut, 401 U.S.

371; Bullock v. Carter, 92 S. Ct. 849.

Burns and Smith involved, respectively, $20 and $4 fees

to invoke appellate jurisdiction to review a criminal con-

viction and the denial of a habeas corpus petition. In each

~~ ‘euse, the fee operated to prevent an indigent defendant

from using the remedy fully available to more affluent per-

» the court below suggested that it might be necessary

for to amend the complaint “to attack the constitutionality

of the voters’ action.” (App. at 71, n.8.) However, plaintiffs did allege

the voters’ action and the statutery scheme as denying Four-

teenth Amendment rights to t students. (App. at 7, 12.) This

Federal Rules reject the approach that

is in which one misstep by counse] may be

decisive to the outcome and accept the principle that the purpose of

*) is to facilitate a proper decision on the merits.” Conley v.

en -

eh ee ag ea

a, > Aa eh ot — 2h

ons." In Harper, the Court held that Virginia’s $1.50

oll tax contravened the Fourteenth Amendment. During

ne 1971 Term, in Bullock, the Court ruled that certain

exas filing fee requirements for primary elections were

iolative of the equal protection clause. The Court noted

nat the filing fee had a ‘‘real and appreciable impact’’ on

oting, stressing that ‘‘this impact [was] related to the

esources of voters supporting a particular candidate. ...’’

2 S.Ct. at 856; emphasis added. Finally, in Boddie, the

ourt ruled that as applied to indigent persons Connec-

cut’s fee requirement for commencing divorce litigation

enied due process of law.

Furthermore, in a number of cases, the Court has found

‘ourteenth Amendment violations where some other pay-

ent requirement operated to deny to the poor the benefit

f a right fully available to more affluent persons. These

ases began with Griffin v. Illinois, 351 U.S. 12 (1956) in

hich adequate appellate review was unavailable to in-

igent defendants because they could not afford a tran-

ript and the state did not provide one free in the cir-

umstances of their case.

Griffin has been followed in approximately 13 cases in

1e criminal process area, involving transcripts and other

gal instruments,” requirements to invoke appellate juris-

11 “While $4 is, as the State says, an ‘extremely nominal’ sum,

one does not have it and is unable to get it the fee might as

ell be $400—which the State emphasizes it is not.” Smith vy. Ben-

tt, 365 U.S. 708, 712.

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

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

raper v. State of Washington, 372 U.S. 487 (free transcript for

peal only if trial judge makes certain findings); Long v. District

ourt, 385 U.S. 192 (no provision for free transcript for indigent’s

peal from denial of habeas corpus petition); Roberts v. LaVallee,

89 U.S. 40 (no provision for free transcript for indigent-ac-

used of testimony of witnesses at preliminary hearing); Gardner

_ California, 393 U.S. 367 (no provision for free transcript of hear-

ig denying habeas corpus petition, where a de novo hearing on peti-

on in appellate court).

diction,“ counsel for indigent defendants on appeal* and

the conversion of a fine assessed an indigent defendant to

time served.” During the 1971 Term, the Court applied the

Griffin rule in a non-felony case, Mayer v. Chicago, 404

U.S. 189, noting the ‘‘invidiousness’’ of a rule having an

impact along lines of wealth. 404 U.S. at 196-197.%¢

In sum, in the fee and payment cases, this Court held

that procedures which had an impact along lines of wealth

‘*introduce[d] capricious or irrelevant factor[s].’’ Harper

v. Virginia State Board of Elections, 383 U.S. 663, 668.”

13 Lane v. Brown, 372 U.S. 477 (filing of transcript, available

to indigent only on request of public defender, necessary for appel-

late jurisdiction to review denial of coram nobis petition); Williams

v. Oklahoma City, 395 U.S. 468 (filing of “case made” in appellate

court necessary to invoke jurisdiction to review criminal] conviction).

14 Douglas v. California, 372 U.S. 353; Swenson v. Bosler, 386

U.S. 258; Anders v. California, 386 U.S. 738.

15 Williams v. Illinois, 399 U.S. 235, Tate v. Short, 401 USS.

395. In these two cases, “[a]pplying the teaching of the Griffin

case,” the Court 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 substantive offense.” Williams

v. Illinois, 399 U.S. 235, 241.

16 See also Lindsey v. Normet, 92 S. Ct. 862; Townsend v, Swank,

404 U.S. 282. The Court held in Lindsey that Oregon’s double bond

requirement for appealing certain landlord-tenant actions contravened

the equal protection clause. The opinion stated, in part: “The dis-

crimination against the poor...is particularly obvious.” 92 S. Ct.

at 877. In Townsend, the Court stated: “[A] classification which

channels one class of people, poor people, into a particular class of

low paying, low status jobs would plainly raise substantial questions

under the Equal Protection Clause.” 404 U.S. at 292, n. 8. (Dictum.)

17 The Court’s decision in James v. Valtierra, 402 U.S. 137 is

consistent with the wealth-impact cases. The lower court in Valtierra

held that Article XXXIV of the California Constitution violated the

equal protection clause of the Fourteenth Amendmert, focusing on the

fact that on its face Article 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 Article XXXIV denies them equal protection 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

The Court used several analyses in deciding these cases.

We show in this brief that the textbook fee denies Four-

teenth Amendment rights under each approach. We de-

monstrate also that application of the standard articulated

in Dandridge v. Williams, 397 U.S. 471, 487—‘‘ rationally

based and free from invidious discrimination’’—mandates

the same result.

2. The importance of educational opportunity.

In the fee and payment cases, this Court has considered

earefully the particular interest burdened. See, e.g., Boddie

v. Connecticut, 401 U.S. 371, 374; Harper v. Virginia State

‘Board of Elections, 383 U.S. 663, 670; Griffin v. IVinois,

351 U.S. 12, 19. Important interests are at stake here, for

books ‘‘are the most essential tool of education,’’® and

“‘foJur public educational system is the genius of our de-

mocracy.’’ Keyishian v. Board of Regents, 385 U.S. 589,

628 (dissenting opinion).

In 1954, this Court unanimously stressed the importance

of educational opportunity in Brown v. Board of Educa-

tion, 347 U.S. 483, 493.

Today, education is perhaps the most important func-

tion of state and local governments. Compulsory school

attendance laws and the great expenditures for edu-

cation both demonstrate our recognition of the im-

portance of education to our democratic society. It is

required in the performance of our most basic public

responsibilities, even service in the armed forces. It

suggests that this Court will treat differently facial racial classifications

and facial classifications based upon wealth. To construe the case

more broadly, however, is to ignore the prior wealth-impact decisions

and the subsequent holdings and statements in Mayer, Townsend,

Lindsey and Bullock.

% Board of Education v. Allen, 392 U.S. 236, 252 (dissenting

opinion of Black, J.).

mma

is the very foundation of good citizenship. Today it is

a principal, instrument in awakening the child to cul-

tural values, in preparing him for later professional

training, and in helping him to adjust normally to

his environment. In these days, it is doubtful that any

child may reasonably be expected to succeed in life if

he is denied the opportunity of an education. Such an

opportunity, where the state has undertaken to pro-

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

on equal terms.

Fourteen years after Brown I, this Court expressed sim-

ilar views on education in Board of Education v. Allen,

392 U.S. 236, interestingly in construing the same provi-

sions of New York State law involved in this controversy.

In Allen, the Court upheld the requirement in Section 701

that public school systems provide texts for students en-

rolled in parochial schools, noting in the opinion: ‘‘ Amer-

icans care about the quality of the secular education avail-

able to their children. They have considered high quality

education to be an indispensable ingredient for achieving

the kind of nation, and the kind of citizenry, that they have

desired to create.’’ 392 U.S. at 247.

During the October, 1970 Term, this Court reiterated

its view on the importance of education, quoting from

Brown I in Palmer v. Thompson, 403 U.S. 217, 221, n.6.¥

In this case, despite ruling against plaintiffs, the court

of appeals majority characterized education as ‘‘no doubt

19 In Palmer, the Court distinguished the closing of swimming pools

involved in Palmer, and public schools in Bush v. Orleans Parish

School Board, 187 F. Supp. 42 (ED. 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, 403

U.S. at 221, n. 6; see also 403 U.S, at 229 (concurring opinion of

Blackmun, J.).

—

an area of fundamental importance’’ (App. at 72), a con-

clusion with which Judge Kaufman dissenting agreed.

(App. at 77-79.) Other lower federal courts have reached

the same conclusion. In a seminal case, the Court of Ap-

peals for the Fifth Circuit held in Dizon v. Alabama, 294

F. 2d 150 (1961), that due process required notice and

hearing prior to the expulsion of a student from a public

college: The court’s opinion, by Judge Richard Rives,

reads, in part, as follows (294 F. 2d at 157):

It requires no argument 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.”

Commentaries have also recognized the unique significance

of education.”*

As the quotations from Brown I and Dixon reveal, edu-

cation is precious not only in its own right, but also because

it provides the tools necessary for exercising other impor-

tant rights—voting (Harper v. Virginia State Board of

20 See also Williams v. Dade County School Board, 441 F. 2d 299,

$02 (C.A, 5, 1971) (Per Tuttle, J.); Hosier v. Evans, 314 F. Supp.

$16, 319, 320 (D. Vir. Is., 1971); Ordway v. Hargraves, 323 F.

Supp. 1155, 1158 (D. Mass., 1971); Sullivan v. Houston Independent

School District, 333 F. Supp. 1149, 1171-1172 (S.D. Tex., 1971);

Van Dusartz v. Hatfield, 40 Law Wk. 2228 (Oct, 26, 1971), No. 3-71

Civ. 243 (D. Minn., Oct. 12, 1971); Rodriguez v. San Antonio

Independent School District, 40 Law Wk. 2398 (Jan. 4, 1972),

C.A. No. 68-175-SA (W.D. Tex., Dec. 23, 1971); Serrano v. Priest,

487 P, 2d 1241, 1258 (Cal. Sup. Ct., 1971).

21 Coons, Clune and Sugarman, Educational Opportunity: A Work-

able Constitutional Test for State Financial Structures, 57 Cal. L. Rev.

305, 382-389 (1969); Kirp, The Poor, the Schools and Equal

Protection, 38 Harv. Ed. Rev. 635, 642-645 (1968); Michelman,

The Supreme Court, 1968 Term, Foreword: On Protecting the Poor

w through the Fourteenth Amendment, 83 Harv. L. Rev. 7, 28, 48 (1969).

Elections, 383 U.S. 663) ; speech (Lovell v. Griffin, 303 U.S.

444) ; association (NAACP v. Alabama, 357 U.S. 449); and

travel (Sapiro v. Thompson, 394 U.S. 618). As one article

notes :

[E]ducation underlies the whole substance of the poli-

tical process and is antecedent to voting in the orders

of both time and cause. All political behavior inevit-

ably must reflect the presence or absence and the

quality of education. A man’s understanding of pub-

lic issues is a function of those communications which

are intelligible to him.”

Similarly, the ability to write a book or magazine article,

play a part in the production of a motion picture or give

a speech are facilitated and enhanced by education.” Con-

versely, an inadequate education is likely to have a linger-

ing, negative impact. ‘‘ Unequal education ... leads to un-

equal job opportunities, disparate income,* and _handi-

22 Coons, Clune and Sugarman, supra n. 21, at 368.

33 See, e.g., A Book, Etc. v. Attorney General of Com. of Mass.,

383 U.S. 413 (book); Jacobdellis v. Ohio, 378 U.S. 184 (motion

picture); Terminiello v. Chicago, 337 U.S. 1 (speech).

24 A comprehensive Bureau of the Census analysis demonstrates the

correctness of the court’s observation on “disparate income.”

In every year for which data are presented, additional school-

ing is associated with a very substantial increase in lifetime

On the basis of conditions in 1961, a man with less

than 8 years of schooling could expect to earn about $151,000

in a lifetime. Graduation from elementary school would add

a lif

$54,000 to his expected earnings, Similarly, a man with 1 to 3

years of high school could expect to earn $235,000 over a life-

time with a total of $273,000 for the high school

graduate. Financial returns prove greatest, as might be expected,

evel. The man with some college training, but

a degree, could expect to earn about one-third of a

dollars in a lifetime, whereas the total for the college

uate was nearly half a million.

Miller, Herman P., heme of the Census, Income Distribution in the

United States, (U.S. Government Printing Office, 1966), Chapter VI,

“Income and Education,” at 162-163.

pped ability to participate in the social, cultural, and

litical activity of our society.’’ San Francisco Unified

school District v. Johnson, 3 Cal. 3d 937, 950 (Cal. Sup. Ct.,

171), cert. denied, 401 U.S. 1012.

The courts do not stand alone; all of the other institu-

ons of government reflect similar concern for education.

has, President Nixon has recognized its importance to

e individual and society, terming ‘‘education ... the

yy that opens the door to personal progress,’™ and stat-

g: ‘‘America’s public schools are our principal invest-

ent in our own future. In every State the public schools

e literally the guarantee of the State’s life and growth

1d health.’* The President has specifically noted the need

r dealing with the educational problems of poor children,

xe those denied textbooks here, stating: ‘‘The most glaring

ortcoming in American education today continues to be

e lag in essential learning skills in large numbers of

uildren of poor families.’”"

Congress has enacted legislation providing funding for

lucational programs.” Education is made compulsory

25 Statement by the President on Elementary and Secondary School

esegregation, March 24, 1970, at 18.

26 Statement by President Nixon, Feb. 16, 1970, at 1. Similarly,

an Education Message to Congress on January 29, 1963, President

ennedy stated:

Education is the keystone in the arch of freedom and progress.

Nothing has contributed more to the enlargement of this Nation's

strength and opportunities than our traditional system of free,

universal elementary and secondary education, coupled with

widespread availability of college education.” (1968 U.S. Code

Cong. and Adm. News at 1450.)

¢ also 1968 Code at 4648-4649, Statement of President Johnson

1 American Education Week. (“Education—universal, equal and

cellent—is a goal which we have cherished since our country’s birth.”)

27 President Nixon, Education Reform Message to Congress, March

1970, in Weekly Compilation of Presidential Documents, March 9,

970, at 304, 308.

%8 See, e.g., Elementary and Secondary Education Act of 1965,

) U.S.C.; National Defense Education Act of 1958, Title 20 U.S.C.;

1d Johnson-O’Malley Act, Title 25 U.S.C.

for at least ten years by New York and all but three of the

other states.”* And, in fiscal 1968, 35 percent of New York’s

state and local tax dollars were spent on public scheoling.”

B. The Denial of Books to Poor Children in Grades

1 to 6 Is Not Rationally Based and Constitutes

Invidious Discrimination.

The local defendants’ fee requirement for texts operates

to create two classes of students in grades 1-6. Children

whose parents can afford the fee receive ‘‘essential’’ text-

books. Other children, because of their parents’ poverty,

are denied texts, and, the local defendants admit, an edu-

cational opportunity equal to the children of the more af-

fluent families.* As noted by Judge Kaufman in dissent,

here there are ‘‘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.”’

(App. at 80.) We submit this classification is not ‘‘ra-

tionally based and free from invidious discrimination”’

(Dandridge v. Williams, 397 U.S. 471, 487),* and, there-

fore, denies the equal protection of the laws.

1. The classification is not ‘‘rationally based.”

At the threshold, the equal protection clause ‘‘imposes a

2° N.Y. Education Law, Sec. 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).

30 Calculated from Advisory Commission on Intergovernmental

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

31 See pp. 6-8, supra. @ ;

32See also Lindsey v. Normet, 92 S. Ct, 862, 876. [“Section

105.160, however, imposes additional requirements which in our

judgment bear no reasonable relationship to any valid state objective

and which arbitrarily discriminate st tenants appealing from

adverse decisions in FED actions.” ( is added.) ]

requirement of some rationality in the nature of the class

singled out.’’ Rinaldi v. Yeager, 384 U.S. 305, 308-309. The

challenged classification does not satisfy this standard.

In terms of their own conduct, all elementary students,

rich and poor, arrive at the schoolhouse door in District

27 similarly situated. The students’ conduct is the proper

reference point. First, it is their Fourteenth Amendment

rights‘ which are at issue.** Second, while children must

often rely upon their parents, here the state makes school

attendance compulsory. See New York Education Law,

Section 3205 (1) (a). Given these factors, depriving chil-

dren because of their parents poverty is an example not of

_“‘rationality,’’ but instead an ‘‘arbitrary ... choice’? by

which defendants provide ‘‘dissimilar treatment for {stud-

ents] who are ... similarly situated ....’’ Reed v. Reed,

404 U.S. 71, 76-77. Defendants ‘‘arbitrarily discriminate

...”? Lindsey v. Normet, 92 S. Ct. 862, 876.

Such arbitrariness formed the basis for the ruling in-

validating school fee policies on equal protection grounds

in Chandler v. South Bend Community School Corporation,

C.A. No. 71 S 51 (N.D. Ind., Aug. 26, 1971). The opinion

states, in part:

..» Defendant herein has totally failed to present any

reason why the Plaintiff-students should incur sanc-

tions for their parents’ failure to pay school fees. The

school fee collection procedure as applied to these

minor-Plaintiffs, conditions their personal right to an

education upon the vagaries of their parents’ conduct,

See Tinker v. Des Moines Ind. Com. Sch. Dist., 393 US. 503,

511. (“Students in school as well as out of school are ‘persons’ under

our constitution. They are possessed of fundamental rights which the

state must respect ....”) Brown I, 347 U.S. 483, 493. (“We come

then to the question presented: Does segregation of children in public

schools solely on the basis of race, sven thongh the physical facilities

and other ‘tangible’ factors may be equal, deprive the children of the

minority group of equai educational opportunities? We believe it does.”)

an intolerable practice.... (Mem. Op. at 6.) (Empha-

sis in original.)

Defendants’ conduct fares no better if the objectives of

the fee policy are considered. The apparent purpose of the

requirement is to raise funds to secure texts for grades 1-6.

Given this goal, the challenged requirement places children

in ‘‘different classes on the basis of criteria wholly unre-

lated to the [state’s] objective ....”’ Reed v. Reed, 404

U.S. 71, 75-76. For where parents are poor, this classifica-

tion produces ..o greater revenue.*

The classification cannot be justified as ‘*rationally

based’’ on the ground that denying books ‘to poor children

decreases the total needed, and, therefore, enables the sys-

tem to secure a sufficient number of texts with revenue from

the fees paid. The fee requirement is but one small thread

in the fabric of New York’s education law. Denying books

to children of the poor is affirmatively destructive of other,

and, we submit, overriding state objectives. New York’s

Constitution requires the legislature to maintain a system

of schools ‘‘wherein all the children of [the] state may be

educated.’’ N.Y. Const., Art. XI, See. 1. The state’s com-

pusory attendance law requires children between the ages

of 6 and 16 to attend school. N.Y. Education Law, See. 3205

(1) (a). Manifestly, the deprivation at issue here is directly

contrary to the concern for the education of all the state’s

children which Article XI, Section 1, and Section 3205 (1)

(a) evince. ‘‘([T]he state spites its own articulated goals

_. 2? Stanley v. Illinois, 40 U.S. Law Wk. 4371, 4873.

———

34 See Tate v. Short, 401 U.S. 395,399. (“Imprisonment in such

a case is not imposed to further any penaf objective of the State. It is

imposed to augment the State’s revenues but obviously does not serve

that purpose; the defendant can’t pay because he is indigent... -?

—

2. The denial of books constitutes ‘invidious

discrimination’’.

It is equally clear that the classification is invidiously

discriminatory. First, the state requires poor children to

attend school, where plaintiffs allege, and the lower court

concedes, sitting bookless in the classroom while other have

the ‘‘essential’’ educational tool, they are likely to be stig-

matized, similarly to black students in the dual system.

Compare Brown I, 347 U.S. at 494, and App. at 62.5 Further,

there can be no claim that the stigmatization serves any

remedial purpose. Compare Wisconsin v. Constantineau,

400 U.S. 433.

Second, the independent, personal rights of children are

burdened because of their parents’ failure to pay fees. But

“it is invidious to discriminate against them when no ac-

tion, conduct, or demeanor of theirs is possibly relevant to

the harm [thus done to them] ....”’ Levy v. Louisiana, 391

US. 68, 72.°¢

Third, we view the stigmatization and arbitrariness as

sufficient alone to establish that the state has *‘impose[d]

a regime of invidious discrimination... .’’ Dandridge v.

Williams, 397 U.S. 471, 483. We note, also, however, that

% See also pp. 8-9, supra; Palmer v. Thompson, 403 U.S. 217,

266-268 (dissenting opinion of White, J.); and Michelman, supra

n. 21, at 20. [“An ‘invidious’ classification or trait is one which com-

bines, in greater or lesser degree and in varying proportions, three

qualities: (1) a general ill-suitedness to the advancement of any proper

governmental objective; (2) a high degree of adaptation to uses which

are oppressive in the sense of systematic and unfair devaluations,

through majority rule, of the claims of certain persons to non-

discriminatory sharing in the benefits and burdens of social existence;

(3) @ potency to injure through an effect of stigmatizing certain persons

by implying popular or official belief in their inherent inferiority or

undeservingness.” (Footnote omitted; emphasis added.) ]

36 Indeed, it would be arbitrary to deprive parents because of their

own poverty. “We have come to recognize that forces not within the

control of the poor contribute to their poverty.” Goldberg v. Kelly, 397

US. 254, 265.

the wealth-impact classification constitutes ‘‘invidious dis-

crimination,’’ (Douglas v. California, 372 U.S. 353, 356-

357 ; Gardner v. California, 393 U.S. 367, 370-371) ; and that

there are alternative procedures not involving the destruc-

tiveness of the challenged scheme. Consideration of these

alternatives is proper. Carrington v. Rash, 380 U.S. 89, 95-

96 ; Rinaldi v. Yeager, 384 U.S. 305, 310.27

There are at least two available alternatives to the exist-

ing procedures in Sections 701 and 703. Apparently without

additional expeditures, books could be provided free to

children in grades 1 to 12 from indigent families. The re-

maining revenue from the state appropriation could then

be used in a variety of ways to provide books free or at

a reduced price to other groups of students (including

students whose parents refused to pay although able to do

so). In the past, the state has employed a similar proce-

dure.* In addition, as plaintiffs pointed out below, state law

could include texts for grades 1 to 6 in the category of ‘‘or-

37In Carrington, like Dandridge written by Mr. Justice Stewart,

the Court held violative of the equal protection clause a provision of

the Texas Constitution prohibiting a person moving to Texas while

a member of the armed forces from voting in any election in Texas

while remaining in the armed forces. After stating the equal protection

standard to be “whether the classifications drawn in a statute are

reasonable in light of its purpose” (380 U.S. at 93, quoting McLaugh-

lin v. Florida, 379 U.S. 184, 191), the opinion noted in detail alterna-

tives available to the state to protect “the integrity of the qualification

of residence... .” 380 U.S. at 93, 95-96. Carrington stresses the

importance of voting (380 U.S. at 94, 96), but education—“perhaps

the most important function of state and local governments”—is of

paralle] significance, and this case involves a wealth-impact classification.

See pp. 16-24, supra. :

38 Section 3209 of the Education Law, repealed by Social] Services

Law Section 13la (Ch. 517, Laws of 1970), required welfare officials

to “furnish indigent children with suitable ... books, to enable them

to attend” school. This provision was in effect as early as 1927. See

N.Y. Laws of 1928, Ch. 646, Sec. 627.F*£ Moreover, the New York

law to implement Gideon v. Wainwright, 372 U.S. 335, requires the

appointment of counsel for persons “financially unable to obtain counsel

....” N.Y. Code of Criminal Procedure, Sec. 308.

(

]

i ——

dinary contingent expenses’’ for which a local district can

levy a tax even in the absence of voter approval. (See N.Y.

Education Law, Sec. 2023, and supra at page 5, n.3.) The ap-

propriateness of this alternative is clear since New York

authorizes its city school districts to provide textbooks free

to all grades without direct voter approval. See Education

Law, Sections 2503(7), 2554(7).°* Under each of these al-

ternatives, every student would have books.

Thus, the wealth-impact classification and the availability

of alternative procedures buttress our contention that New

York ‘‘imposes an invidious discrimination in violation of

the Fourteenth Amendment.’’ Carrington v. Rash, 380 U.S.

89, 96.

C. Defendants’ Fee Requirement Contravenes the

Fourteenth Amendment as Construed in Griffin v.

Illinois, 351 U.S. 12, Douglas v. California, 372

U.S. 353 And Their Progeny.

New York requires children to attend school. In District

27, textbooks are essential for meaningful participation in

the educational experience. Any child without books faces

an overwhelming situation. But it is not likely to be any

child, for the fee requirement increases the risk for chil-

3° The majority below appears to have suggested that under James

v. Valtierra, 402 U.S. 137, the state’s right to involve the electorate

in the financing process is unlimited. (App. at 70.) However, to justify

the inequity by this rationale would be to ignore the distinction between

Valtierra and this court’s wealth-impact cases which we have discussed.

(See pp. 16-19, supra.) In Valtierra, the asserted discrimination

was the facial requirement of a referendum which was not uniformly

applicable. Here, i in plaintiffs’ poverty claim, the impact of the scheme

on the poor is challenged, and the issue is whether a vote may validate

it. But “[a] citizen’s constitutional rights can hardly be infringed

simply because a majority of the people choose that it be.” Lucas v.

Forty-Fourth General Assembly of Colorado, 377 U.S. 713, 736-737;

Hall vy. St. Helena Parish School Board, 197 F. Supp. 649 (ED. La.,

1961), affirmed per curiam, 368 U.S, 515. (“No plebiscite can legalize

an unjust discrimination.” 197 F. Supp. at 659.)

dren of the poor. Common sense dictates that as alleged

by plaintiffs, and conceded by the Court below, children

without books will be severely stigmatized. In the words of

Judge Kaufman dissenting, ‘‘their disfavored treatment

must extend far beyond the classroom and aggravate to an

incalculable degree other disadvantages these indigent stud-

ents must in our society inevitably struggle against....”’

(App. at 79.)

The combination of state compulsion and injury to the

poor is a familiar one to this Court. In every material re-

spect, the facts here parallel those in this Court’s criminal

process decisions beginning with Griffin v. Illinois, 351

US. 12.

1. The Fourteenth Amendment principles estab-

lished in Griffin-Douglas and their progeny.

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

state’s system of criminal appellate review, challenged by

indigent defendants because of its failure to provide for

free trial transcripts in the circumstances of their case,

violated the Fourteenth Amendment by denying them the

‘‘adequate appellate review accorded to all [with] money

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

at 18. The state had ‘‘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 ac-

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

40 It is clear, therefore, that the decision below cannot be supported

by any right-privilege rationale. See also Graham v. Richardson, 403

U.S. 365, 374.

2. ed Pe a ieee rw

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imphasizing the irrationality of the wealth classification,

ne Court noted: ‘‘[T]he ability to pay costs in advance

ears no rational relationship to a defendant’s guilt or in-

ocense ....’’ Griffin, supra, 351 U.S. at 17-18. ‘‘There can

e no equal justice where the kind of trial a man gets de-

ends on the amount of money he has.’’ Griffin, supra,

51 U.S. at 19.

Griffin has had a steady growth, as we have noted. Two

ases involved fees similar to the defendants’ fee. See Burns

. Ohio, 360 U.S. 252 and Smith v. Bennett, 365 U.S. 708,

iscussed above at page 16. In Douglas v. California,

72 U.S. 353, indigent criminal defendants challenged

n appellate court’s failure to appoint counsel to pre-

ent their appeal. The court relied upon a rule requir-

1g such appointment only if it determined, after examin-

ig the record, that counsel would be helpful to the defen-

ant or the court. This Court, viewing the procedure as one

1 which ‘‘the rich man can require the court to listen to

rgument of counsel before deciding on the merits, but a

oor man cannot,’’ held that ‘‘an unconstitutional line [had]

een drawn between rich and poor.’’ Douglas, supra, 372

.S. at 357.4

In short, in Griffin-Douglas and their progeny, including

urns and Smith, this Court found access to an important

ight under state law, nominally available to all, totally or

ubstantially unavailable to poor persons. The Court con-

luded that the classification bore ‘‘no rational relation-

hip’’ to a permissible state objective; and held that the

‘ourteenth Amendment required state officials, at least so

mg as they followed the most likely course of action (con-

nued prosecution), to act affirmatively to insure access

or the indigent person. Thus, for example, in the transcript

ases, the state must provide a free transcript, or adequate

“ We have discussed 12 additional cases above. See pp. 17-18, supra.

substitute if any. Griffin, supra, 351 U.S. at 20; Gardner

v. California, 393 U.S. 367, 370.

.2. The Fourteenth Amendment principles set

forth in Griffin-Douglas and their progeny

require that poor children be provided free

textbooks.

There is a striking parallel between the pivotal facts in

Griffin-Douglas and this case. (1) In each instance, the

predicament results from state compulsion; in Griffin-

Douglas by prosecution, and here from the compulsory at-

tendance law. (2) Here, as in Griffin-Douglas, something,

unavailable to indigents,® is an essential tool for enjoyment

of the right. (3) Without books, similar to an indigent

without a transcript or an attorney, a student from a poor

family is denied the 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 received 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. Plainly, a parent’s ability to pay

costs in advance bears ‘‘no rational relationship to’’ a

child’s right to an education. Griffin, supra, 351 U.S. at

17-18.

There is no basis for construing the Fourteenth Amend-

42It 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.” (App. at

61-62, 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 » motion to dismiss, plaintiffs’

affidavits and allegations of their inability to pay the fees must be taken

as true. See, ¢.g., Cooper v. Pate, 378 U.S. 546; Gardner v. Toilet

Goods Association, 387 U.S. 167, 172.

ment differently from Griffin-Douglas, because this case

involves education rather than crime. The text of the Amend-

ment makes no such distinction between criminal and other

matters, and this Court has not so construed it.** The Griffin

opinion emphasizes the importance of fairness in the crim-

inal process, but education is of parallel significance, as

our argument at pages 19 to 24 demonstrates. Moreover,

the tmpact of the challenged conduct is to classify based

on wealth, similarly to Griffin-Douglas and the other wealth-

impact cases outside the criminal process area, which we

have discussed.“

Indeed, there are sound arguments that plaintiffs’ case

is stronger than Griffin-Douglas. First, education is our

_ hope to make unneeded protection in the criminal process.

In an address to the National Conference on Corrections

on December 7, 1971, Chief Justice Burger stated:

Here [prison education programs] perhaps our

failure is the greatest. The percentage of inmates in

all institutions who cannot read or write is staggering.

Another, and largely overlapping category, is made up

of those who have no marketable skills on which to

base even a minimally successful life.

The figures on literacy alone are enough to make one

wish that every sentence imposed could include a pro-

vision that would grant release when the prisoner had

learned to read and write, to do simple arithmetic,

and then to develop some basic skill that is salable in

the market place of the outside world to which he

must some day return and in which he must compete.

(Explanation added.)*

43 See, e.g., Boddie v. Connecticut, 401 U.S. 371; Harper v. Virginia

State Board of Elections, 383 U.S. 663; Brown v. Board of Education,

$47 U.S. 483.

4 See pp. 16-19, supra.

5 See also Coons, Clune and Sugarman, supra n. 21, at 362. [“Aside

from reducing the crime rate (the inverse relation is strong), education

Second, as we have shown, in this case unlike Griffin-

Douglas, children are deprived not because of their own

actions, but instead because of their families’ indigency,

for these poor children, an ‘‘unalterable [trait] ....’’ Lind-

sey v. Normet, 92 S. Ct. 862, 874. And, the scheme will

operate to stigmatize poor children, similarly to segrega-

tion based upon race in the dual system, with no basis for

claiming any remedial benefit from the procedure produc-

ing the stigmatization.“

Our contentions based upon Griffin-Douglas and their

progeny are buttressed by this Court’s decision in Harper

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

the Seventh Circuit’s school fee case, Williams v. Page,

No. 18536 (C.A. 7, June 9, 1971) (unreported), cert. denied,

404 U.S. 1005, reversing, 309 F. Supp. 814 (N.D. IIL, 1970).

In invalidating on equal protection grounds Virginia’s

$1.50 poll tax in Harper, this Court stated: ‘‘[WJealth or

fee paying has ... no relation to voting qualifications; the

right to vote is too precious, too fundamental to be so bur-

dened or conditioned.’’ Harper, supra, 383 U.S. at 670. As

we have shown,” the importance of education parallels that

of voting. We submit that similarly to Harper, ‘‘wealth or

fee paying has ... no relation to [an education] ; the right

also supports each and every other value of a democratic society... .”

(footnote omitted.) ] Johnson v. Avery, 393 U.S. 483, 487. [“Jails

and penitentiaries include among their inmates a high percentage of

persons who are totally or functionally illiterate, whose educational

attainments are slight, and whose intelligence is limited.” (Footnotes

omitted, ) ]

46 See pp. 8-9, supra. In his dissenting opinion, Judge Kaufman

stated: “The psychological and social impact of the badge of inferiority

implied by their disfavored treatment must extend far beyond the

classrooms and aggravate to an incalculable degree other disadvantages

these indigent students must in our society inevitably struggle against

as a result of the financial straits of thefr parents. The enduring lesson

they are thus taught in the public schools they attend without books

is that wealth breeds favored treatment while disadvantage leads on

to still greater handicaps.” (App. at 79.)

47 See pp. 19-24, supra.

to [an education] too precious, too fundamental to be so

burdened or conditioned. ”’

In Williams v. Page, elementary and high school students

challenged, on Fourteenth Amendment grounds, the collec-

tion of fees as a condition for participation in graduation-

related activities in public schools. The complaint alleged

that as a consequence of the fee requirement the activities

‘‘[were] not available to the plaintiffs on equal terms be-

cause they [were] indigent.’’ Williams v. Page, supra, 309

F. Supp. at 815. The district court dismissed the complaint.

The Seventh Circuit’s brief order reversing the dismissal

of the complaint 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 re-

quired have been recognized by the school administra-

tors, teachers, parents and students as integral parts

of the school experience, from which indigent children

are being excluded. Until these and related factual

questions are explored at an evidentiary hearing, the

precise contours of the constitutional rights which

plaintiffs claim were violated are not readily discer-

nible.

Application of the Williams standard would require re-

versal here. To paraphrase the quoted language, the com-

plaint herein alleges that ‘‘fees are required’’ for text-

books, ‘‘an essential part of a child’s education,’’ and as

a consequence that ‘‘indigent children are being excluded.”’

The record in this case is clear that textbooks are an

essential element of the educational process. (App. at 40-

41.) Therefore, the defendants must provide them free to

poor children. Griffin v. Illinois, supra, 351 U.S. at 20;

Gardner v. California, 393 U.S. 367, 370. 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 eurriculum could be other than textbook oriented.

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.“

3. The Court of Appeals erroneously construed

Griffin-Douglas and their progeny.

Despite the obvious parallels between Grifin-Douglas,

their progeny, and this case, the lower courts rejected

plaintiffs’ poverty claim. Indeed, the district court did

not even mention the poverty argument. The courts below

erred in deciding the Fourteenth Amendment issues.

The Court of Appeals rejected the poverty contentions

because ‘‘[t]he reasoning of [the] cases [relied upon by

48 “The remedy for the discrimination is simple, clear and effective

i.e., give the appellant a transcript (and a lawyer) or else let him

;...” Coons, Clune and Sugarman, supra n. 21, at 362.

4 This Court has approved affirmative remedial action to provide

. The Brown I opinion stated that the

. Charlotte-M : of Education, .

States v. School District 151 of Cook County, Ill., 301

affirthed as modified, 432 F. 2d

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.’’ (App. at 72.) 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

(%e., on teachers’ salaries, building maintenance and the

like.) (Footnote omitted.) ’’ (App. at 73.) Finally, while

acknowledging that students whose families could afford

texts would no doubt receive a better education, the court

said that this was due to their own means, and not because

the state provided them more. (App. at 73.)

Any surface plausibility of this reasoning does not with-

. Stand scrutiny. 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 ....”’

(App. at 80.) See Griffin, supra, 351 U.S. at 13, 18.5

Second, it could have been argued in Griffin-Douglas,

where appellate review was nominally available to the in-

digent, 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, etc., and that to

the extent that 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

% The court cited: Boddie v. Connecticut, 401 U.S. $71; Griffin

V. Illinois, 351 U.S. 12; Burns v. Ohio, 360 U.S. 252; Smith vy. Bennett,

365 U.S. 708; Gideon v. Wainwright, 372 U.S. 335.

51 See also Griffin, supra, 351 U.S. at 34 (dissenting opinion of

Harlan, J.); and Williams v. Illinois, 399 U.S. 235, 241, explaining

Griffin as finding “a violation of the Equal Protection Clause .. :.”

% Griffin, supra, 351 U.S. at 34; Douglas v. California, 372 US.

Amendment requires more than simply facial neutrality

(Griffin, supra, 351 U.S. at 17, n. 11):°

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 grossly discriminatory in its operation.

For the reasons we have given, the same principle should

apply here.

D. The Denial of Books to Poor Children in Grades

1-6 Violates the Equal Protection Clause, Even

If the Asserted Bases for Distinguishing Grades

1-6 and 7-12 Are Considered.

Plaintiffs’ poverty claim focuses on the division of stu-

dents in grades 1 to 6 into two groups; #.e., those who re-

ceive books, and the poor who do not receive the ‘‘essen-

tial’? tool and are stigmatized. Since the poverty claim

concerns only grades 1-6, the justifications advanced in

the courts below for the differing treatment of grades 1-6

and 7-12 in the statutory scheme are not material.* We

submit, however, that even if the asserted bases for dis-

tinguishing grades 1-6 and 7-12 are considered, the stat-

53 See also Williams v. Illinois, 399 U.S. 235, 242.

54 See pp. 6-8, 24, supra.

85 The district court, although without the benefit of an evidentiary

hearing, identified three state interests: (1) the legislature’s “legiti-

mate interest in conserving the State’s fiscal resources . . . .” (App. at

54); (2) insuring “that as many as possible of [New York’s] children

receive textbooks”; (App. at 56); and (3) “[t]he legislature's desire to

foster the study of certain subjects sciences, mathematics and

foreign languages}....” (App. at 57.) In approving the district

court’s analysis (App. at 67), the majority below referred to the legisla-

tive desire “to promote education in the fields of science, mathematics

and foreign languages,” and “limited resources.” (App. at 67, 69.)

utory scheme denies poor children the equal protection of

the laws.*

We view this result as mandated by this Court’s deci-

sions, for essentially four, interrelated reasons. First, there

are less onerous alternatives for satisfying the purported

state interests. See, e.g., Boddie vy. Connecticut, 401 U.S.

371, 381-382; Phoenix v. Kolodziejski, 399 U.S. 204, 212-

213. Second, the classifications are not sufficiently tailored

to achieving the purported state interests to justify the

virtual exclusion of poor children from all educational

opportunity. See, e.g., Kramer v. Union Free School Dis-

trict, 395 U.S. 621, 633; Bullock v. Carter, 92 S. Ct. 849,

857; Dunn v. Blumstein, 40 U.S. Law Wk. 4269, 4276, 4279.

Third, inadequate weight is given to ‘“‘the interests of

those who are disadvantaged by the classification”’ (Kra-

mer, supra, 395 U.S. at 626, quoting Williams v. Rhodes,

393 U.S. 23, 30), namely, indigent students without books.

Fourth, the approved scheme is one under which the state

impermissibly protects ‘‘the fiscal integrity of its pro-

grams’’ through ‘‘invidious distinctions between classes

of citizens.’ Graham v. Richardson, 403 U.S. 365, 374-375.

These principles are here applicable. The destructive

impact of the scheme on the education of poor children is

admitted. The significance of education — ‘‘perhaps the

most important function of state and local governments”’

— is analogous to the interests involved in the cited cases,

and others upon which we rely; ®7 and, like many of those

56 The first two claims in the complaint, which petitioners do not

press in this Court, did deal with the differing treatment of grades 1-6

and 7-12. The first claim concerned the requirement that free books be

provided only for grades 7-12, and the second that the procedural re-

quirement of voter approval applied only to grades 1-6. (App. at 10-11.)

5? For example, in Boddie v. Connecticut, 401 U.S. $71, 374, the

Court noted “the basic position of the marriage relationship in this

society’s hierarchy of values and the concomitant state monopolization

of the means for legally dissolving this relationship ....” As Judge

Kaufman stated in dissent below: “Only ‘through the looking glass’

eases, this matter involves conduct the tmpact of which

is to classify based upon wealth.

1. The availability of less onerous alternatives.

This Court has considered material, in assessing a wide

variety of constitutional claims, the availability of ‘‘less

drastic’’ alternatives for satisfying state objectives. Dunn

v. Blumstein, 40 U.S. Law Wk. 4269, 4276.5° Here, as we

have shown,® there are at least two available alternatives

for satisfying the purported state interests. First, aid

could initially be directed to indigent students in grades

1-12; second, the existing category of services for which

districts may levy a tax in the absence of voter approval

could be expanded to include texts for grades 1-6. New

York is familiar with each method.

Under each of these alternatives, costs to the state

would apparently not be higher, and all students in grades

1 to 12, including those from indigent families, would have

texts, the maximum possible impact. Accordingly, each

alternative would also foster development ‘‘in the fields

of science, mathematics, foreign languages and other non-

sectarian subjects.’’ N.Y. Laws of 1965, Ch. 320, Sec. 1.

Thus, all three of the purported state interests would be

satisfied. Indeed, as we show below, these alternatives

would in certain respects be superior methods of satisfying

the asserted state interests.

might one rank a child’s interest in education lower on the scale of

this nation’s traditional values than an adult’s interest in a divorce.”

(App. at 80.)

58 See also Boddie v. Connecticut, 401 U.S. 371, 381-382; Phoenix

v. Kolodziejski, 399 U.S. 204, 212-213; Carrington v. Rash, 380 U.S.

89, 95-96; Tate v. Short, 401 U.S. 395, 399-400; Bullock v. Carter,

92 S. Ct. 849, 857; Shapiro v. Thompson, 394 U.S. 618, 637; Dean

Milk Co. v. Madison, 340 U.S. 349, 354.

59 See pp. 28-29, supra.

89 See pp. 28 at n. 38, 29, supra.

The district court began its analysis correctly, consider-

ing the availability of a less onerous alternative. Expres-

sing the opinion that texts for grades 7 to 12 are more

costly than those for grades 1-6, Judge Travia stated that

the alternative of ‘‘grart[s] ... spread thinly’’ among all

students (grades 1 to 12) could, in view of the cost factor,

result in a larger number of students being without books.

(App. at 56.) The court concluded that ‘‘New York State

has a legitimate, compelling interest in seeing to it that

as many as possible of its children receive textbooks.’’

(App. at 56.)

The court erred, however, in giving full consideration

to only one alternative, i.e., ‘‘grant[s] ... spread thinly”’

_ (App. at 56), for the search for alternatives must be an

exhaustive one. Carrington v. Rash, 380 U.S. 89, 95-96;

Tate v. Short, 401 U.S. 395, 399-400. Here, New York law

demonstrates the feasibility of two alternatives not con-

sidered by the district court. Moreover, if the legislature’s

concern was that ‘‘as many as possible of [New York’s]

children receive textbooks,’’ the alternatives would be

superior, for every child, including poor children, wonld

have books.

2. The statutory scheme is not adequately tat-

lored to achieving the asserted state objectives

to justify the challenged impact on children

of the poor.

Cursory analysis demonstrates that if the legislature

intended to advance the interests mentioned by the lower

courts, the statutory scheme ‘‘is extraordinarily ill-fitted

to that goal; . . .’’ Bullock v. Carter, 92 S. Ct. 849, 857.

Providing free texts to a millionaire’s children and the

many other children in grades 7-12 whose parents can

afford texts, while denying them to the poor, does not

——

maxir. ize the impact of state aid. Nor does it conserve

limited resources. Similarly, the state cannot complain

about limited resources when it provides assistance in

grades 7-12 not only to public schools, but also to ‘‘ private

school[s] which [comply] with the compulsory education

law ....’’ N.Y. Education Law, Sec. 701(2).

We note also that the ‘‘statement of policy’’ prefacing

the 1965 amendments to Sections 701 and 703, from which

the lower courts identified a state interest to promote de-

velopment in certain subjects, reads as follows:

This calls for more adequate educational opportunities

and increased efforts to educate more of the talent of

our nation and requiring the correction of those im-

balances in our educational programs which have led

to an insufficient proportion of our population edu-

cated in the fields of science, mathematics, foreign

languages and other nonsectarian subjects. (Emphasis

added.)

The courts below read this provision as if it mentioned

only the three named subjects, ignoring the phrase ‘‘and

other non-sectarian subjects.’’? They then viewed the legis-

lative scheme as giving aid where the three ‘‘subjects

principally were taught.’’ (App. at 69.) This rationale is

faulty, for it is clear from the full provision that the

legislature’s goals apply equally to grades 1 to 6. (1) The

phrase ‘‘other non-sectarian subjects’’ covers every subject

in the public schools.@ (2) Science and mathematics are

61 Many “private school[s]” in New York, whose students are eligible

to receive free books, have high tuition charges. See The Handbook

of Private Schools, 52nd Edition, (Porter Sargent, 1971), at 254,

256-257, 269-270, 274, 278, 280 and, 281. ;

62 See Board of Education v. Allen, 392 U.S. 236, 248, [“Nothing

in this record supports the proposition that all textbooks, whether they

deal with mathematics, physics, foreign languages, history or literature,

are used by the parochial schools to teach religion.” (Emphasis added.)]

taught in the elementary grades in New York State.®

(3) Schooling in the elementary years is a necessary

foundation for success in classes in the secondary grades.

Poor children without books in the elementary grades will

not be compensated by having them in grades 7 to 12.

In Kramer v. Union Free Shool District, 395 U.S. 621,

this Court held that provisions of New York law excluding

certain persons from voting for school district officers

were ‘‘not sufficiently tailored to limiting the franchise to

those ‘primarily interested’ in school affairs [the asserted

state interest] to justify the denial of the franchise... .’’

395 U.S. at 633. (Explanation added.) Here, the interest

of poor children is in an education — ‘‘perhaps the most

important function of state and local governments.’’ Given

the scatter-shot approach to achieving the purported state

interests,“ in this case similarly to Kramer, the legisla-

3 In addition, New York State has a program of Foreign Languages

in the Elementary School (FLES) which enrolled the designated number

of students in the years indicated: 1963—45,000; 1968—83,000; and

1969-70 school year—60,000. The State Education Department has

published a series of program and teaching guides which discuss the

rationale and suggested content of FLES programs. N.Y. State Educa-

tion Dept., French for Elementary Schools, Albany, 1966, at iii; N.Y.

State Education Dept., Spanish for Elementary Schools, Albany, 1970,

at 3; N.Y. State Education Dept., Center on Information in Education,

Basic Educational Data System Statistics for 1969-70.

The guide for Spanish notes, inter alia, that “[i]t is generally

agreed that children should begin the study of a foreign language

at an early age” and that there “is clear and convincing [evidence] that

the introduction of foreign language study at the elementary school

level... contributes greatly to the child’s later success in foreign

language study.” Spanish Guide, supra, at 1-2. While “the major

focus in the FLES program is directed toward the development of

conversational skills, the development of reading skills is not neglected.”

Spanish Guide, supra, at 38. The guide refers specifically to “FLES

texts.” Jd. at 19-21. To the extent that FLES classes do not rely

as heavily on texts as other elementary subjects (e.g., reading), they

are similar to certain subjects at the secondary level which use texts

little, if at all (e.g., shop).

® We need not search far for the reasons for this irrationality. The

statute refers to books for “other non-sectarian subjects...” (N.Y.

aciemeemenieanenain NS a

tion is ‘‘not sufficiently tailored . . . to justify the denial

of [an ‘essential’ educational tool].’’ In sum, the classifica-

tion is ‘‘much too crude.’’ Dunn v. Blumstein, 40 U.S. Law

Wk. 4269, 4279. See also Rinaldi v. Yeager, 384 U.S. 305,

310.

3. The special interests of the children disad-

vantaged by the classification.

The governing standards require consideration of the

‘‘interests of those who are disadvantaged by the class-

ification.’’ Kramer v. Union Free School District, 395 U.S.

621, 626, quoting Williams v. Rhodes, 393 U.S. 23, 30;

Phoenia v. Kolodziejski, 399 U.S. 204, 209-212; Evans v.

Cornman, 398 U.S. 419. The question is ‘‘whether all those

excluded [poor children in grades 1-6] are in fact substan-

tially less interested or affected than those the statute in-

cludes [grades 7-12].’’ Kramer, supra, 395 U.S. at 632

(explanation added) ; Kolodziejski, supra, 399 U.S. at 209.

We have quoted the preliminary language of the 1965

amendments to Sections 701 and 703 and shown that the

legislature’s objectives apply as well to grades 1 to 6 as

grades 7 to 12.6 At a minimum, students in grades 1-6

are not ‘‘substantially less interested.”’

Laws of 1965, Ch. 320, Sec. 1; emphasis added.) And the majority

below stated: “The enactment of Sec. 701 provided public funds for

textbooks of children in private and parochial schools for the first time

in the modern history of New York State. The passage of Sec. 701

resulted in large part from pressure from those whose children attended

those schools ....” (App. at 70, n. 6.) The wording of the law and

the opinion below demonstrate that a dominant concern of the legis-

lature was the desire to create a constitutional underpinning for the

providing of books to parochial school students. Accordingly, in assess-

ing plaintiffs’ claim, this Court should be mindful not only of the

insufficient tailoring, but also that it cannot be confident “that the

statute reflects the legislative concerfi for the purpose that would

legitimately support the means chosen.” Williams v. Illinois, 399 U.S.

235, 260 (concurring opinion of Harlan, J.).

® See pp. 42-43, supra.

Moreover, scrutiny of the interests of poor elementary

students demonstrates that in this case there is a sound

basis for arguing that the ‘‘interests of those who are

disadvantaged’’ by the challenged classification are more

compelling than those who have texts. We take this posi-

tion on the basis of legislation and literature which re-

cognize both the critical importance of early childhood

education and the need for special attention to the educa-

tional problems of the poor.

First, in 1965, Congress enacted the Elementary and

Secondary Education Act, Pub. Law 89-10. Title I of the

law (20 U.S.C. 241a-241m) is a comprehensive program

for providing federal financial assistance to local school

systems with concentrations of children from low income

‘families. The congressional declaration of policy in Sec-

tion 24l1a begins by recognizing ‘‘the special educational

needs of children of low-income families.’’ School systems

are required by the law, implementing regulations and

other statements of governing criteria promulgated by the

Office of Education to concentrate Title I programs in

those attendance arcas with ‘‘high concentrations of

children from low incou:e families . . . .’’ 20 U.S.C. 241 e

(a)(1); 45 CPR. Part 116, Sec. 116.17(d); United States

Office of Eduestion, ESEA Program Guide 44, March 18,

1968, Sec. 1.1.7

Second, in April, 1970, Congress amended Title I in

Public Law 91-230. Section 132(a) recognizes the impor-

tance of projects at the elementary level, requiring, with

Jt is proper for the Court to consider these materials. Phoenix

v. Kolodziejski, 399 U.S. 204, 208 at n. 4, 210 at n. 6, 211 at n. 8;

Robinson v. California, 370 U.S. 660, 667, n. 9; Brown v. Board of

Education, 347 U.S. 483, 494, n. 11.

7 “Educationally deprived children,” the eligible beneficiaries for

Title I programs, include “children who are handicapped or whose

needs for . . . special educational assistance result from poverty, neglect,

delinquency, or cultural or linguistic isolation from the community at

large.” 45 C.F.R. Part 116, Sec. 116.1 (i) (Emphasis supplied).

- va to a

certain exceptions, that Title I funds be used ‘‘in pre-

school programs and in elementary schools serving areas

_ with the highest concentrations of children from low-income

families... .’’®

Third, available expert evidence supports the conclusion

of the Congress.” It presents the following pertinent pro-

positions: (1) a challenge to earlier notions of genetic-

ally determined and fixed intelligence — Hunt (1969, at

191-2); Bloom (1964, at 87-90); Bloom, Davis and Hess

(1967, at 12); (2) a suggestion that there is considerable

plasticity in intelligence in the pre-school and early ele-

mentary years — Bloom (1964, at 87-90; 126-9); (3) and,

accordingly, a suggestion that early education is critical

— Bloom (1965, at 127-8); Bloom, Hess and Davis (1967,

at 12, 16, 22); Hunt (1969, preface at VIII). It is note-

worthy that both Hunt (1969, at 209) and Bloom, Hess and

Davis (1967, at 30) refer to the absence of books in the

home as one of the underlying causes of the educational

deficiencies frequently exhibited by poor children.”

6 The Report of the Senate Committee on Labor and Public Welfare

(Senate Report 91-634, 91st Congress, 2d Session) provides the

following rationale for the amendment (at 20): “This requirement in

part C was adopted by the Committee on the basis of growing evidence

which indicates that the early years of education are of paramount

importance in a child’s development.” The Report also states that

Title I has focused federal monies on “what may well be the most

crucial problem challenging our schoo] systems today: how to educate

successfully the children of America’s poor.” (at 7.)

69 See Benjamin S. Bloom, Allison Davis and Robert Hess, Compen-

satory Education for Cultural Deprivation (Holt, Rinehart and Win-

ston, Inc., 1967) [cited: (Bloom, Davis, Hess, 1967) ]; Benjamin S.

Bloom, Stability and Change in Human Characteristics (John Wiley

and Sons, Inc. 1964) [cited: Bloom (1964)]; J. McVicker Hunt,

The Challenge of Incompetence and Poverty, Papers on the Role of

Early Education (University of Illinois Press, 1969) [cited: Hunt

1969) ].

7 The expert evidence also supports’ plaintiffs’ contention that the

book distribution procedure will adversely affect poor children “psycho-

logically [and] emotionally ....” (App. at 13.) Many children from

culturally deprived families begin school not having had adequate

In sum, while poor children ‘‘have interests somewhat

different from the interests of [students who have books]”’

(Phoenia v. Kolodziejski, 399 U.S. 204, 212), all things

considered, they ‘‘have a stake equal to that of other

[pupils].’’ Evans v. Cornman, 398 U.S. 419, 426. Defen-

dants ‘‘have not demonstrated a valid basis for distin-

guishing between . . . two legitimate costs of the [educa-

tional] process.’’ Bullock v. Carter, 92 8. Ct. 849, 858.

4. The limited resources arguments.

Each of the lower courts viewed the statutory scheme

as a legitimate effort to protect limited state resources.

- In relying in part on this ground in upholding the legis-

lation, the courts below erred; for a desire to conserve

resources can not insulate from constitutional attack legis-

lative classification with the flaws which we have demon-

strated in this scheme.” Shapiro v. Thompson, 394 U.S.

618, 633; Graham v. Richardson, 403 U.S. 365, 374-375;

Mayer v. Chicago, 404 U.S. 189, 197.

In Shapiro, followed in Graham and Mayer, this Court

stated (394 U.S. at 633):

We recognize that a State has a valid interest in

preserving the fiscal integrity of its programs. It may

legitimately attempt to limit its expenditures whether

for public assistance, public education, or any other

program. But a State may not accomplish such a

opportunities for “stimulation, language development, and intellectual

development . . . .” (Bloom, Davis, Hess, 1967, at 15.) Their experience

does not prepare them well for coping with the requirements of public

schools. (At 21.) This frequently means that “[a]s each year of

school goes by, the culturally disadvantaged child suffers further

frustration and failure.” (At 21.) The situation involved in this case

would aggravate the problem.

1 See, e.g., pp. 24-29, 38-47, supra.

purpose by invidious distinctions between classes of

citizens. It could not for example reduce expenditures

for education by barring indigent children from its

schools. Similarly, in the cases before us, appellants

must do more than show that denying welfare benefits

to new residents saves money. The saving of welfare

costs cannot justify an otherwise individious classifica-

tion. (Emphasis added; footnote omitted.)

Here, the saving of costs for education cannot ‘‘justify an

otherwise invidious classification.’’ The Court’s dictum on

education almost precisely covers this situation. While

children are not barred from school, they are, on this

record, ‘‘barred’’ from an essential tool of an educa-

tion.”

The trial court’s fiscal resources analysis, approved by

the court of appeals, is erroneous in two other respects.

First, the district judge assumed incorrectly that alter-

natives fully satisfying state objectives would be more

costly than the challenged scheme.” Second, the district

court rejected consideration of any alternative involving

increased expenditures. (App. at 55.) While it would not

appear necessary to reach the point here, we note that

states have adopted new procedures involving expenditures

of funds in response to many decisions of this Court.

Griffin-Douglas and their progeny and the landmark deci-

sion in Gideon v. Wainwright, 372 U.S. 335, holding that

counsel must be furnished to indigent criminal defendants

72 Any reliance by the local defendants on the collection of fees to

defray costs would not support a different conclusion. “We are thus

left to evaluate the states’ asserted interest in its fee and cost require-

ments as a mechanism of resource gllocation or cost recoupment.

Such a justification was offered and rejected in Griffin v. Illinois, 351

U.S. 12 (1956).” Boddie v. Connecticut, 401 U.S. 371, 382.

73 See App. at 54-55 and pp. 28-29, supra.

in state proceedings — are obvious examples. See also

Bullock v. Carter, 92 S. Ct. 849, 858-859. Constitutional

rights would be hollow, if states could avoid implementa-

tion simply by pleading that expenditures were required.”

E. The Denial of Books to Poor Children in Grades

1-6 Is Not Rationally Based and Constitutes In-

vidious Discrimination, Even If the Asserted

Bases for Distinguishing Grades 1-6 and 7-12

‘ Are Considered.

The denial of books to children of the poor is not ‘‘ra-

tionally based and free from invidious discrimination’’

(Dandridge v. Williams, 397 U.S. 471, 487), even if the

asserted bases for distinguishing grades 1 to 6 and 7 to 12

~ are considered. First, we have detailed above the invidious

discrimination.* In summary: (1) a child’s personal

right to an education is significantly burdened due to his

parents’ poverty over which he has no control; (2) the

child is likely to be stigmatized; (3) the impact of the

practice is along lines of wealth; (4) and, there are alter-

natives which would both avoid these injuries and advance

the state interests (in a superior fashion).

Second, the statutory scheme is so ‘‘extraordinarily

ill-fitted’’ (Bullock v. Carter, 92 S. Ct. 849, 857) to the

state’s asserted objectives as to be irrational. Providing

books to those who can afford them, but denying them

to the children of the poor, neither conserves limited re-

sources, nor maximizes the impact of the state aid. We

note again the anomaly of the state’s ‘‘conserving re-

sources’’ by providing books for private schools, including

those attended by wealthy children.”

Saeeeenanmnaeel

™ See also n. 49 at p. 36, supra.

% See pp. 27-29, supra.

% See p. 42, supra. The denial of books to poor children does not

provide funds to secure texts since their parents are too poor to pay

the fee. See p. 26, supra.

Contrary to the suggestion of the lower courts, the

state’s objective was to promote all ‘‘non-sectarian sub-

jects,’ not only science, mathematics and foreign lan-

guages. As we have shown, given this objective, it is irra-

tional to deny books to poor children in grades 1-6. More-

over, the poor without books in grades 1-6 will be unable

to benefit by having them in grades 7-12.” Finally, Article

XI, Section 1 of New York’s Constitution and the state’s

compulsory attendance law [Education Law, Sec. 3205(1}

(a)] manifest a policy of educating all of the state’s chil-

dren. Their consideration emphasizes the irrationality of

denying books to the poor.”

Il. Tse Dent or Booxs To CHILDREN FROM Poor Fam-

rms rx Grapes 1-6 CoNTRAVENES THE Dus Process

CLAUSE OF THE FOURTEENTH AMENDMENT.

The lower court’s conclusion that this case presents no

due process issue ™ conflicts with decisions of this Court

recognizing that the due process clause does protect against

arbitrary government infringement of important individual

interests, including education. Meyer v. Nebraska, 262 US.

390; Pierce v. Society of Sisters, 268 U.S. 510; Bolling v.

Sharpe, 347 U.S. 497; see also Williams v. Illinois, 399 U.S.

235, 259-266 (concurring opinion of Harlan, J.). More-

over, despite its view on due process, the majority below

expressed agreement with plaintiffs’ allegation that poor

children would be stigmatized by the operation of the stat-

utory scheme. See Wisconsin v. Constantineau, 400 U.S. 483.

In Meyer, this Court reversed the conviction of a teacher

under a Nebraska law which forbade the giving of instrue-

7 See p. 26,

supra. : t .

WR ye at 72.) (“Obviously, though, due process is not involved

tion in a language other than English to a student below

the ninth grade. The Court stressed the importance of

education and noted Nebraska’s compulsory attendance

law. Meyer, supra, 262 U.S. at 400. The ruling rested, in

part, on the premise that the law arbitrarily burdened

“the opportunities of pupils to acquire knowledge’’ in

violation of the due process clause. 262 U.S. at 401-403."

Mr. Justice Harlan premised his concurrence in Williams

v. Ifinois, 399 U.S. 235, 259-266, on the due process clause,

terming the issue whether the challenged legislation ‘‘ar-

bitrarily infringes a constitutionally protected inter-

est... .’’ 399 U.S. at 259." Applying a standard expressed

in his opinion,” he concluded that the Illinois procedure

was violative of the due process clause.

This case involves a due process violation, given these

controlling principles :

First, an important individual interest ® is significantly

burdened. In Meyer ‘‘the opportunitee of pupils to acquire

knowledge’’ were infringed by a rule forbidding the teach-

* In Bolling v. Sharpe, 347 U.S. 497, this Court held that operation

of a dual school system in the District of Columbia violated the due

clause of the Fifth Amendment. The Court concluded:

Gienecion in public education is not reasonably related to any

Proper governmental objective, thus it imposes on Negro children of

the District of Columbia a burden that constitutes an depri-

vation of their liberty in violation of the Due Process Clause.” 347

U.S. at 500.

%!'The majority held violative of the equal protection clause the

Illinois procedure allowing imprisonment of an indigent criminal

defendant, in default of payment of a fine, beyond the maximum

authorized by the statute regulating the substantive offense. Williams,

supra, 399 U.S. at 244.

#2“... the nature of the individual interest affected, the extent to

which it is affected, the rationality of the connection between legislative

means and purpose, the existence of alternative means for effectuating

the purpose, and the degree of confidence we may have that the statute

reflects the legislative concern for the purpose that would legitimately

Support the means chosen.” Williams, supra, 399 U.S. at 260 (con-

opinion ).

® See pp. 19-24, supra.

ing of foreign languages. Here, the burdening of the same

interest results from the failure of the state to provide

indigents an admittedly essential educational tool. The

deprivation is more extreme in this case, extending to all

elements of the curriculum in which books are used.

Second, with respect to ‘‘the rationality of the connection

between legislative means and purpose’’ (Williams v. II-

linois, supra, 399 U.S. at 260 (concurring opinion)], we

have shown that the statutory scheme is irrational.™

Third, we submit that the state interests do not outweigh

the impact of the challenged scheme on the critical in-

terests of the children [Williams v. Illinois, supra, 399

U.S. at 262-263 (concurring opinion)],™ particularly in

view of the apparent ‘‘existence of alternative means for

effectuating the [state’s] purpose[s] . .. .’’ Williams,

supra, 399 U.S. at 260 (concurring opinion).”

Fourth, a student’s interest in an education is a personal

one. Meyer, supra, 262 U.S. at 401; accordingly, it is pa-

tently arbitrary for that interest to be burdened due to

a circumstance over which the child has no control, the

indigency of his family. Levy v. Louisiana, 391 U.S. 68,

72. See also Robinson v. California, 370 U.S. 660, 667 and

n. 9; Boddie v. Connecticut, 401 U.S. 371, 383.

Fifth, as we have noted,” in view of the statutory re-

ference to ‘‘other non-sectarian subjects,’’ it appears that

the legislature’s reference to science, mathematics and

foreign languages, relied upon so heavily by the lower

courts, was designed to provide a constitutional underpin-

* See pp. 24-26, 49-50, supra. ;

® One commentary notes about Meyer: “The individual’s interest in

education is personal and important, important enough to subdue the

arguably rational of the state to democratize its children and

thus to avoid the divisions of sect and creed.” Coons, Clune and Sugar-

man, supra n. 21, at $76.

® See pp. 43-44 and n. 64, supra.

ning for providing books to parochial schools. Thus, with

respect to the purported justifications here, the Court can

not be ‘‘confiden[t] ... that the statute reflects the legis-

lative concern for the purpose that would legitimately

support the means chosen.’’ Williams, supra, 399 U.S. at

260 (concurring opinion).

Siath, our due process contention is buttressed by the

acknowledged stigmatization. Wisconsin v. Constantineau,

400 U.S. 433. As Judge Kaufman stated in dissent below

(App. at 79):

The psychological and social impact of the badge of

inferiority implied by their disfavored treatment must

extend far beyond the classrooms... . The enduring

lesson they are thus taught in the public schools they

attend without books is that wealth breeds favored

treatment while disadvantage leads on to still greater

handicaps.

This stigmatization is much more than simply the reflec-

tion of private inequality; it is directly attributable to the

operation and interaction of the state’s education laws

in the schools which poor children are required by state

law to attend. And unlike Constantineau, there is not even

a claim of any attempted remedial benefit to those stig-

matized.

Conclusion

Plaintiffs sought only declaratory relief on their poverty

claim, and did not contest, in the petition, the lower courts’

findings of insubstantiality on Claims I and IT. Accord-

ingly, this case is not one required to be heard by a three-

judge court, and this court has considerable authority in

fashioning a remedial decree. This brief shows that plain-

See pp. 13-15, supra. Alternatively, this Court might regard

the poverty claim as so clearly meritorious that a three-judge court is

not required. See Bailey v. Patterson, 369 U.S. 31.

tiffs’ complaint was erroneously dismissed, given the con-

trolling principles set forth in Conley v. Gibson, 355 U.S.

41, 45-46.

This Court should do more than simply reinstate the

complaint, however. In Boddie v. Connecticut, 401 US.

371, the three-judge court also dismissed the complaint

without an evidentiary hearing. This Court found the re-

cord adequate to hold that the fee requirement for com-

mencing divorce litigation, as applied to poor persons,

contravened the due process clause.

The disposition here should be similar to Boddie. The

Court may regard as established at least the following:

New York requires students between the ages of 6 and 16

to attend school; textbooks are ‘‘essential’’ for meaningful

participation in the educational process; the fee require-

ment operates to apportion educational opportunity along

lines of wealth; poor children have a special interest in

texts; poor children sitting bookless in the classroom will

be stigmatized; less drastic alternatives are available;

educational opportunity is of great importance. In addi-

tion, plaintiffs made affidavits that they received public

assistance and were unable to pay the fee; the local de-

fendants generally denied the claim of inability to pay.

We submit that this Court should:

(1) declare that the denial of textbooks to children

because of their parents’ inability to pay the

rental fee contravenes the equal protection

clause of the Fourteenth Amendment;

(2) declare that poor children have a right to free

textbooks ;*

(3) remand the case to the district court for identi-

8° Since the child’s right is at issue, it would be appropriate to

include any child whose parents’ failed to pay the fee by reason of

poverty, neglect, etc. See pp. 24-26, 28, supra.

fication, on an expedited basis, of the members

of the class entitled to receive free texts.”

Alternatively, in the event the Court regards plaintiffs’

poverty claim as one which must be heard by a three-judge

court pursuant to 28 U.S.C. 2281, the decisions below

should be vacated and the case remanded for the convening

of a three-judge court. As shown in this brief, the poverty

claim is ‘‘not plainly insubstantial.”’ Schneider v. Rusk,

372 U.S. 224, 225."

By: J. Hanoy Fuannery

Rozert Pressman

Center for Law and Education,

Harvard University

The United Ministries in

Public Education

April, 1972

promptly remedying denials of equal educational opportunity. Alexan-

der v. Holmes County Board of Education, 396 U.S. 19. This case

was filed at the start of the 1970-7] school year.

* Judge Kaufman stated, in part: “T dissent and would hold that

Plaintiffs have established at the very least a substantial claim that

as applied in... District No. 27... New York Education Law Sec.

703 deprives indigent children of the equal protection of the laws.”

(App. at 74; emphasis added; footnote omitted. ) “(T]he essence of

claim is unequal educational opportunity based on wealth. The

State has not justified the inequity sufficiently to warrant the refusal

to convene a three-judge court.” (App. at 81.)

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.