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

_—

SUBJECT INDEX

Page

Interest of Amici .................. fA ALPERT A BOSE 2

| American Federation of Teachers ......... atonal 2

PRE LALIT ON 2

GEER ES TN et 3

Argument ................. TREN Hee ETSI! CAEN we ON: Sen EME 4

Introduction:

Under Either the “Close Scrutiny” Test or the

Traditional “Rationality” Test, Petitioner Chil-

dren Are Denied Equal Protection of the

Laws by New York State Statutes Which

Permit the Conditioning of Their Receipt of

School Books Upon the Payment of a Fee .... 4

Part I.

The Close Scrutiny Test Is Offended Because

the Right Asserted Is Constitutionally Fun-

damental, the Classification Is Suspect, and

the Discrimination Is Unnecessary to the

rn UN ho 6

A. Conditioning the Access of Children to

Classbooks Upon the Payment of a Fee

Is a Particularly Invidious Discrimina-

SUMIE -pnncagkiscedbisiail iakadéleatcceshebcadatitaingiai 6

1. The Consequence of Forcing

Some Children to Attend School

Without Books Is Educationally

RL OW RNa eee 6

2. Children Form a Powerless Class

Specially Protected by the Four-

teenth Amendment ............0......... &

i

Page

B. Education Is a Constitutionally Funda-

SR I ire 11

1. Education as an Aspect of the

First Amendment Right to Know.. 14

2. Education as an Aspect of the

First Amendment Rights of Polliti-

cal Expression and Association .. 17

C. The Injury to Petitioners Is Not Neces-

sary to Promote Any Compelling State

OUUUIDD ) " Seaiiiinitditatnedaanncttlltiininplicaiadunmibibiicis 23

Part II.

The Rationality Test Is Offended Because the

Book Rental Fee Requirement Is Not Rea-

sonably Related to State Objectives -......... 24

A. The Rental Fee Requirement Arbitrar-

ily Injures Children Because of the

Wealth or Behavior of Their Parents .. 24

B. The Classification Is Both Inconsistent

With State Purposes and Unnecessary

ND cdatehtsskiinanccshics canacdnceilal Sensatabecicch csisinditscemren 33

TABLE OF AUTHORITIES CITED

Cases Page

Application of President and Directors of George-

town College, 331 F.2d 1000 (D.C. Cir. 1964) .. 10

Breen v. Kahl, 296 F.Supp. 702 (W.D. Wis. 1969).. 10

Bullock v. Carter, 40 U.S. Law Wk. 4211 (February

nathan aR RE TIES LS EERE EA ioe Se > ©

Bunim v. Bunim, 298 N.Y. 391, 83 N.E.2d 848

ghee EEE AEE SLE NIR RY SAY ce RD SCRA 26

Carrington v. Rash, 380 U.S. 89 (1965) .................. 28

Chandler v. South Bend Community School Cor-

poration, Civil No. 71 § 51 (U.S.D.C. N.D. Indi-

SRE Gy SU ED circesccrctccccsoncntinsinicsinwcn 27, 33

Cox v. Louisiana, 379 U.S. 536 (1965) .................. 13

Dandridge v. Williams, 397 U.S. 471 (1970) ..........

PS 2 SESE le: SY T a ae OS OE TES 13; 28, mm

Dunn v. Blumstein, 40 U.S. Law Wk. 4269 (March

| I i a i al al <2

Epperson v. Arkansas, 393 U.S. 97 (1968) ............ 14

| | Seat, ta ee, 967 US. 1 (1967)... 27

_ Graham v. Richardson, 403 U.S. 365 (1971) ..........

|

| _ anaeeanensenonsennnsncennneeeenseressasersnseresensmnensesenseennsoees 5, 4, 3B

Griffin v. Illinois, 351 U.S. 12 (1956) .......... 6, 8, 25

| Griswold v. Connecticut, 381 U.S. 479 (1965) ...... 14

_ Harper v. Virginia Board of Election, 383 U.S. 663

I Si ich atl docchieadlaesakcnnie iliniaiisiptenil 6, 25

James v. Valtierra, 402 U.S. 137 (1971) ............ 21, 23

Keyishian v. Board of Regents, 395 U.S. 589 (1967)

ee ENACT tO OTTERS ae ee ET 15

Kramer v. Union Free School District, 395 U.S.

ACR SESE TENE ERI NL OT 5

——

iv.

Page

Lamont v. Postmaster General, 381 U.S. 301

C2DGES) nrceecsservecesercsenseecrerenseerserssnsnenscenanees 15, 16, 17

Lamont v. Postmaster General, 229 F.Supp. 913

(S.D.N.Y. 1964) .............scseecesceceeseeesnnensensensnnsenes 16

Lindsey v. Normet, 40 U.S. Law Wk. 4184 (Feb-

cuery 22, 1972 ..............--.. 11, 17, 25, 28, 29, 32

Meyer v. Nebraska, 265 U.S. 390 (1923) .......... 14, 15

Myers, In re, 119 N.Y.S.2d 98 (1953) ...-.--------0-0+0- 30

New York Times v. Sullivan, 376 U.S. 254 (1964) .. 19

People v. Turner, 277 App.Div. 317, 98 N.Y.S.2d

BEE (1950) ......ereeccecencerscerrerccccsnsensensenssenccesensencers 30

Pierce v. Society of Sisters, 268 U.S. 510 (1925)...

<a thieaeeendeigntnstenanipaamemiemaanamntctiiie 14, 15, 25

Prince v. Massachusetts, 321 U.S. 804 (1944) ....10, 27

Rinaldi v. Yeager, 384 U.S. 305 > as 28, 32

Schneider v. State, 308 U.S. 147 (1939) ...........- 12, 23

Serrano v. Priest, 5 Cal.3d 584, 487 P.2d 1241

(1971) m~ . ia ..12, 20

Shapiro v. Dorin, 99 N.Y.S.2d 830 | re 26

Shapiro v. Thompson, 394 U.S. 618 (1969) ...... 6, 32

Shelton v. Tucker, 364 U.S. 479 (1960) ............ 12, 22

Smith v. Smith, 15 Utah 2d 36, 386 P.2d 900

(1963) ..n.n.neeeecceeceenenensneneesneseneesnensnsnsnsnensnncsesnness 26

Stanley v. Georgia, 394 U.S. 557 (1969) ..........-..-- 15

Sweazy v. New Hampshire, 354 U.S. 234 (1957) .... 15

Tinker v. Des Moines School District, 393 U.S. 503

(1969) .........cecesesnseereceeneneneenssnsenenenenenneaens 14, 15, 27

United States v. Carolene Prodicts, 304 U.S. 144

(1938) ..nececscesceecseseensnenensnesnssenenensnsneneseeneneneneanes 9, 10

—

Page

Whitney v. California, 274 U.S. 357 (1927) 18

Williams v. Rhodes, 393 U-S. 23 (1968) ........ ™ ao

Constitutional and Statutory Provisions

New York Constitution, Article XI, Education, §1 .. 29

New York Education Code, §§701 et seq., §3204,

§3205, §3209

Books and Reports

Blackstone, Commentaries (Jones ed.) (San Fran-

cisco, Bancroft-Whitney, a 10

SE HP sthittiiiiatheieiissconsienseass. 12

Law, (St. Paul, a, aaa 18, 19

Report of the New York State Commission on the

Cost, Quality and Financing of Elementary and

Secondary Education, Volume 1 (Albany, 1972)

a

IN THE

Supreme Court of the United States

October Term, 1971

No. 71-5685

Daisy JOHNSON, ef al.,

Petitioners,

vs.

New YORK STATE EDUCATION DEPARTMENT, et al.,

Respondents.

On Writ of Certiorari to the United States Court

of Appeals for the Second Circuit.

BRIEF AMICUS CURIAE OF

AMERICAN FEDERATION OF TEACHERS

WILLIAM H. CLUNE Ill

JOHN E. COONS

AND

STEPHEN D. SUGARMAN

IN SUPPORT OF PETITIONER CHILDREN.

We present this brief in support of petitioner chil-

dren with the consent of the parties pursuant to Supreme

Court Rule 42.

The opinion below of the United States Court of

Appeals for the Second Circuit is reported at 499 F.2d

871 (2d Cir. 1971).

a

pao, ae

Interest of Amici.

American Federation of Teachers.

The American Federation of Teachers is a voluntary

association of education workers, which was founded

in 1916. It has more than 275,000 members through-

out the United States. The purpose of the organiza-

tion is to elevate the character and advance the interests

of the occupation of teaching and to promote the cause

of education in the United States. In furtherance of

this purpose, AFT has long worked to insure the ade-

quate and equitable financing of public education

throughout the nation. The AFT has worked for more

than a half century to provide for equal educational

opportunity for all American children. Though the

present case challenges only a single aspect of a com-

plicated school financing system for a single state, it

raises the applicability of the Equal Protection Clause

to state allocation of resources to school children, an

issue which has major implications for the financing of

public education in every American community, urban,

suburban and rural. For all these reasons the American

Federation of Teachers joins in presenting this brief.

Individual Amici.

Amici are private disinterested individuals who have

been writing and publishing on the problems of dis-

crimination in the distribution of educational resources

for a number of years. Their interest is that of scholars

concerned that the present issue be resolved in a man-

ner befitting our constitutional system as well as ful-

filling the educational aspirations of a free society.

Petitioners in this case include children and their par-

ents. This is a class action. Amici present this brief

—7—" aii

specifically on behalf of the children petitioners whose

interests in some cases may be different from their Par-

ents.

Summary of Argument.

Through Sections 701, et seq., of its Education Code,

the State of New York has established a system for the

provision of class books in its public elementary schools

which operates in a Particularly invidious manner. The

New York public education system is a multi-billion

state is doing great injury. Amici ask this Court

_ Squarely to hold that education is part of a child’s First

Amendment rights of speech and association and that

to condition his access to those rights upon the Payment

of a fee by a third Party constitutes a denial of equal

Protection of the law under the Fourteenth Amendment

of the U.S. Constitution.

This brief has two areas of special concern: First, it

deals with the need for heightened judicial solitude be-

cause of the unique relationship of the class of injured

petitioners and the interest at stake. Second, it em-

Phasizes the ways that education is planted on the feet

of the constitutionally fundamental rights of speech and

association.

ae ~

ARGUMENT.

Introduction:

Under Either the “Close Scrutiny” Test or the Tradi-

tional “Rationality” Test, Petitioner Children Are

Denied Equal Protection of the Laws by New York

State Statutes Which Permit the Conditioning of

Their Receipt of School Books Upon the Payment

of a Fee.

Petitioners argue that to condition their access to

public school books which are employed as the basic

texts for elementary courses upon the payment of a

fee gives rise to an invidious discrimination which de-

nies to them the equal protection of the laws. Amici

support this position.

While there has been much debate about the

reach of the equal protection clause, recent opinions of

the Court make clear the analytical process that is to

be employed. Mr. Justice Marshall, speaking for the

Court in Dunn vy. Blumstein, 40 U.S. Law Wk. 4269

(March 21, 1972), which strikes down durational

residency conditions upon the right to vote, sets out the

analysis succinctly: “To decide whether a law violates

the Equal Protection Clause, we look, in essence, to

three things: the character of the classification in ques-

tion; the individual interests affected by the classifica- f

tion; and the governmental interests asserted in support >

of the classification.” Jd. at 4271.

The Court then goes on to say “In considering laws

challenged under the Equal Protection Clause, this

Court has evolved more than one test, depending

upon the interests affected and the classification in-

volved.” Id. at 4271. Amici submit that there are es-

sentially two tests; or, better put, a State is held to

one of two standards in defending the constitutionality

of its challenged law. This point is neatly stated by

_ — = oe

Chief Justice Burger in Bullock v. Carter, 40 U.S. Law

Wk. 4211 (February 24, 1972), which strikes down

filing fee conditions on the right of a candidate to enter

a primary election: “The threshold question to be re-

solved is whether the filing fee system should be sus-

tained if it can be shown to have some rational basis

or whether it must withstand a more rigid standard of

review.” Id. at 4214. He calls that latter standard the

“close scrutiny” test. Mr. Justice Blackmun in Graham

v. Richardson, 403 U.S. 365 (1971), dealing with the

rights of aliens to welfare, uses essentially the same ap-

proach, saying “Under traditional equal protection

principles, a State retains broad discretion to classify

as long as its classification has a reasonable basis. . . .

But the Court’s decisions have established that [cer-

tain] classifications . . . are inherently suspect and sub-

ject to close judicial scrutiny.” Jd. at 371-372. A number

of decisions have phrased the “close scrutiny” test as

one in which the State must show that the classification

is “necessary to promote a compelling state interest.”

See Dunn v. Blumstein, 40 U.S. Law Wk. at 4272,

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

(1969), Williams v. Rhodes, 393 U.S. 23 (1968).

This case is one which invokes the “close scrutiny”

test, calling for the State to justify the challenged clas-

sification as necessary to support a compelling interest;

in addition, however the State’s interests with respect

to the challenged discrimination are so weak or unre-

lated that they cannot be justified even under the more

tolerant “rationality” test. Because of Amici’s belief

in the constitutionally fundamental importance of the

interest of the petitioners that is here at stake, we

turn in Part I to the “close scrunity” test and analysis.

In Part II the application of the “rationality” test and

analysis shall be considered.

oe

PART I.

THE CLOSE SCRUTINY TEST IS OFFENDED BECAUSE

THE RIGHT ASSERTED IS CONSTITUTIONALLY

FUNDAMENTAL, THE CLASSIFICATION IS_ SUS-

PECT, AND THE DISCRIMINATION IS UNNECES-

SARY TO THE STATE’S OBJECTIVE.

After the unanimous opinion in Bullock v. Carter,

supra, it seems firmly established that poverty may not

serve as a barrier to the enjoyment of certain consti-

tutionally fundamental interests. This case may be

viewed, then, as one of those in the line including

Griffin v. Ilinois, 351 U.S. 12 (1956); Harper v.

Virginia Board of Elections, 383 U.S. 663 (1966);

and Bullock v. Carter, supra, in which petitioners chal-

lenged a state rule which imposed a fee upon the exer-

cise of a constitutionally fundamental interest. The in-

terest here at stake is that of children in education;

that such interest is constitutionally fundamental is the

core of this brief. Before turning to the fundamentality

of education, however, Amici wish to emphasize the

invidiousness of the fee payment requirement.

A. Conditioning the Access of Children to Classbooks

Upon the Payment of a Fee Is a Particularly In-

vidious Discrimination.

1. The Consequence of Forcing Some Children to Attend

School Without Books Is Educationally Disastrous.

Seemingly stating what it thought was obvious, the

Court in Shapiro v. Thompson, 394 U.S. 618 (1969),

observed:

[The State] . . . could not, for example, re-

duce expenditures for education by barring indi-

gent children from its schools. Jd. at p. 633.

WER Gliekdeeee De

sushi Sdaa ae ate ae

_ eae ie

It is bitter irony that this is effectively the situation that

petitioners face.

Taking a disinterested view of the challenged prac-

tice, it is difficult to imagine a more efficient policy

for crushing whatever hopes these children have of be-

coming participating members of this society. Its effects

must inevitably resound in ever corner of the child’s

life and personality—now and in the future. Confining

our attention to his school experience two general effects

upon the child may be emphasized. First is his failure

to master the content of education; the second is the

labeling of the child as a person of none or little per-

sonal worth. Both the majority below and the defend-

ants concede both effects, but a word or two more is

appropriate.

The child’s plight must be viewed in the context of

complusory education. The fact that school attendance

is legally mandatory has powerful bearing on the state’s

constitutional obligation. It may be that in a purely

voluntary system the state would have no duty either

to provide educational services or to equalize those it

did provide. The element of compulsion, however,

changes all that. Compulsory school attendance is a

drastic imposition upon the individual’s freedom of ac-

tion and association, a massive system of regimentation

justified only by the overriding benefits which educa-

tion yields both to individual and society; deny those

benefits, and the burden on liberty becomes insup-

portable.

Ae, OS

The plain fact is, however, that bookless children are

not getting the education which provides the justifica-

tion for compulsion. They are not learning reading, or,

if they are, it is no fault of the school. Further, the

ne —

deprivation is here given a sharper edge because other

children in the same classroom do have books. This

makes the harm more serious than in Griffin v. Illinois,

supra. There, although the rich could afford trial tran-

scripts while the poor could not, rich and poor were

not competing with each other for limited opportunities

for jobs or college admission. Hence, a benefit for the

rich did not itself hurt the poor. Here, all school chil-

dren are in competition, a competition that will shape

their future roles and participation in society. Under a

system which is designed to operate for the benefit of

students who have books, the bookless suffer a most

onerous handicap. In short, to be bookless is effectively

to be excluded from the competition.

Instead, what the bookless children are learning is

that the government to which they pledge their alle-

giance each morning is providing others with education

while it provides them with compelled custody and

daily humiliation. They are learning that school is the

springboard to full personal life in this society—for those

other children with the key to the public system. For

themselves the experience is a conditioning exercise for

the sure-to-fail. This discrimination is so utterly crude

it is almost comic in its hyperbolic favoritism for the

well born.

2. Children Form a Powerless Class Specially Protected by

the Fourteenth Amendment.

Whether a particular child enjoys the intended bene-

fits of public education in Hempstead depends entirely

upon his luck. Being enrolled in public school is in-

sufficient; he must also have* been born in the right

home.

a

Nic ol a sha 2 en A Ene

Politics may or may not help him, but clearly there is

nothing that he himself can do to help politics along.

He must await the beneficence of others, because he

bears the “unalterable trait” of childhood. He has

neither money nor vote. He is but one of a unique

minority which is (we might say) disenfranchised by

its very minority. There is some danger that this may

be viewed merely as an advocate’s effort to be artful

with a purely formal and technical point. Children, it

may’ be urged, are “represented” politically by the

votes of their parents. However, for two good reasons

this answer suffers even more from formalism than

does the objection itself.

First, the truth is that a very significant number of

children do not have voting parents. This parental

failure to vote is a neglect of the child’s interest that

he is helpless to alter. Second, even the parent who

does vote is inevitably subject to many influences that

conflict with the educational interests of his children.

Every other public program competes with education

for voters’ (adult) support. It would be quite unrealis-

tic to imagine that, on educational issues, parents vote

as would their children if those children were them-

selves franchised and aware of their self-interest. For

both these reasons the proxy suffrage through the paren-

tal franchise must necessarily be seriously defective in

its representation of petitioners’ class.

That defect is a justification for “heightened judicial

solitude” by this Court for the plight of the children

who now seek its aid. Graham v. Richardson, supra,

365 U.S. at 372. Plaintiff-children qualify as one of

those “discrete and insular minorities” which are spe-

cial objects of judicial protection. United States v.

i ae

Carolene Products, 304 U.S. 144, 155 (1938). The

opinion in Breen v. Kahl, 296 F. Supp. 702, 708 (W.D.

Wis. 1969), well summarizes the predicament of the

student:

. Students . . . do not vote in school board

elections; political redress of their grievances is

not open to them; theirs is a situation in which

judicial vindication of constitutional protections

has been considered particularly appropriate. . . .

Cautious counsel to avoid judicial involvement in

serious constitutional issues merely because they

concern younger people, in my view, is neither

prudent, expedient, or just. It is time to broaden

the constitutional community by including within

its protections younger people whose claim to

dignity matches that of their elders. See In re

Gault, 387 U.S. 1, 87 S. Ct. 1428, 18 L.Ed.2d 527

(1967).

Their utter helplessness has been a source of the

common law’s tender concern for children from the

days of the Yearbooks. See generally Blackstone, Com-

mentaries (Jones ed.), Book I, Chs. X VI-X VII, 446-466

(San Francisco, Bancroft-Whitney, 1915). Special rules

for the protection of minors formed a significant part

of what tradition knew as the “Law of Persons”. Today

most of these protections have been codified. This is

not to suggest that every constitutional claim advanced

by or on behalf of a child has special weight, but only

that the best interests of children, as courts have

identified them, will weigh heavily—even in the constitu-

tional scale. Prince v. Massachusetts, 321 U.S. 158

(1944); Application of President and Directors of

Georgetown College, 331 F.2d 1000, 1008 (D.C. Cir.

1964).

ee Te

Plaintiff children are not in their present misfortune

because they deserve education less: Indeed, as far as

the record discloses, each is indistinguishable from his

peers. He is a child, merely another part of that natural

democracy of children—all poor, all helpless, all depend-

ent upon society. That these children should have been

singled out from their peers as they have is but the

curious effect of state policy. New York has decided that

it will provide quality education to those children who

find an adult to sponsor them—and some never find one.

Thus for all pupils the principal benefits of this multi-

billion dollar public enterprise depend upon the pay-

ment of fees by third parties. Such an apparatus is not

_ merely bizarre; it is a public humiliation and an un-

merited badge of inferiority for the child of poor or

obdurate parents. In this respect these pupils are in a

position strikingly similar to victims of racial or other

unjustified discrimination. They are made to suffer by

the “unalterable trait” of lineage or childhood. Lindsey

v. Normet, 40 U.S. Law Wk. 4184, 4189 (February 23,

1972).

B. Education Is a Constitutionally Fundamental In-

terest.

Petitioners and other amici, no doubt, will deal at

length with the vital role of education in our society.

Hence, on the general fundamentality of education, we

can be very brief. The essence of the argument is this:

Education is crucial to both state and individual in a

rich variety of ways—social, economic, intellectual, and

political. It cannot be dismissed as merely social and

economic or as “merely” anything. It is too rich in its

implications to be captured in a formula. To appreciate

the fundamentality of education it must be viewed in

—

all its many aspects—intellectual, political, social and

economic. This is a theme familiar and congenial to the

Court from its long consideration of education in the

racial context. In fact it is one of the most common

themes in our vast social literature. If there is any ac-

tivity accepted as fundamental in our society, surely it

is education. For a general discussion of the question

see Serrano v. Priest, 5 Cal.3d 584 at 604-610, 487

P.2d 1241 at 1255-1259; Coons, Clune, and Sugarman,

Private Wealth and Public Education, (Cambridge,

Harvard University Press, 1970) at 364-366, 370-373,

387-393, 397-419.

Amici, here, wish to emphasize but one aspect of

education, the aspect which we believe is most signif-

icant: This is education’s direct tie-in to First Amend-

ment rights of speech and association. We seek to re-

affirm education’s place among those “rights” and “fun-

damental interests” which are of peculiar juridical im-

portance because they are essentially intellectual activ-

ities (e.g. speech, press, thought) and/or political ac-

tivities (e.g. voting and association) and thus, in either

case, are “. . . vital to the maintenance of democratic

institutions”. Schneider v. State, 308 U.S. 147, 161

(1939). Of course, any distinction between intellectual

and political activities is artificial; the two are indis-

solubly linked in their crucial role as guardian of a free

society. Shelton v. Tucker, 364 U.S. 479 (1960). Only

a people which steadfastly remains both intellectually

and politically “open” retains the capacity for perpetual

self-renewal. A society may abide the widest range of

social and economic experimentation through legisla-

tion without losing the power fo reform itself—so long

as it rejects efforts by government to encourage per-

manent intellectual or political classes and orthodoxies.

_ — aaa Siins

Hence the Court has viewed its first responsibility to

be the protection of the sources of public communica-

tion and political participation from government con-

straint and discrimination.

Within this classic framework the Court has selec-

tively considered the application of the Equal Protec-

tion clause to a wide variety of legislative classifica-

tions involving many different human needs and ac-

tivities. While sometimes tolerating the most poignant of

merely personal economic deprivations, as in Dandridge

v. Williams, 397 U.S. 471 (1970), it has held the

state to the highest standard of fairness in matters af-

fecting politics and speech. In these areas the Court

has been virtually unanimous. Thus in Williams v.

_ Rhodes, supra, Mr. Justice Black himself emphasized

for the majority that the intertwining speech and politi-

cal rights there asserted “. . . rank among our most

precious freedoms . . .”, and for this reason trigger a

special burden of justification by the state. And where

the First Amendment was implicated in Cox. v. Loui-

siana, 379 U.S. 536 (1965), again it was Justice

Black insisting upon the state’s duty of neutrality in

the provision of opportunities to hear and be heard.

“To limit access . . . to some views but not other .. .”

is forbidden as an “invidious discrimination”. 379 U.S.

at 579-580.

Amici argue that education stands squarely planted

on the constitutional feet of politics and speech. Educa-

tion is at once a political activity of the first order and

the primary influence of the state upon the intellectual

life of its citizens. The majority below cites Dandridge

v. Williams, supra, and asserts that education is a “so-

cial and economic” interest. As far as it goes that is

quite correct. Education’s significance in this respect

— | 4—

could scarcely be denied. However, no matter how im-

portant the social and economic effects of education

may be and however much these add to its constitu-

tional status, it is chiefly education’s political and in-

tellectual character which give it its constitutional funda-

mental stature.

L. Education as an Aspect of the First Amendment Right

to Know.

In some contexts this Court has described education

specifically as a right encompassed by the First Amend-

ments guarantee of freedom of speech, tracing the rele-

vant judicial history to the 1920's. Thus in Griswold v.

Connecticut, 381 U.S. 479 (1965), the Court states

that “. . . By Pierce v. Society of Sisters, supra, the

right to educate one’s children as one chooses is made

applicable to the states by the force of the First and

Fourteenth Amendments”. 381 U.S. at 482. In Tinker

y. Des Moines School District, 393 U.S. 503 (1969),

the Court again interpreted Pierce v. Society of Sisters,

268 U.S. 510 (1925) and Meyer v. Nebraska, 265

U.S. 390 (1923) as based upon the First Amendment

and spoke of the rights of students, as students, arising

thereunder. 393 U.S. at 506-07. See also Epperson v.

Arkansas, 393 U.S. 97 (1968).

Technically, it may have been stretching a point for

the Court to cite either Pierce or Meyer as First Amend-

ment cases. Each is, formally speaking, an example of

substantive due process, and neither specifically men-

tions the First Amendment. Nevertheless, the Court is

clearly correct in its modern interpretation of these

cases, for their very core is the‘recognition that educa-

tion’s impact upon the personality, intelligence, and

loyalties of children raise fundamental issues of free-

— sellin

dom of the mind. It is not surprising that Pierce and

Meyer show a current vitality uncharacteristic of sub-

stantive due process decisions generally.

The ways in which speech and education interpene-

trate are diverse, and not all of them are at stake here.

For example, here there is no active frustration by the

State of a particular attempt to communicate such as

that presented in Tinker v. Des Moines, supra. What

is involved is another aspect of free speech—the right

to know and to receive information. That right

has been repeatedly declared by this Court. Thus

Sweazy v. New Hampshire, 354 U.S. 234, 250 (1957),

speaks of the right of students “. . . to inquire, to

study and to evaluate, to gain new maturity and un-

derstanding . . .” and Keyishian v. Board of Regents,

385 U.S. 589, 603 (1967) describes the classroom as

a unique example of the “marketplace of ideas”. Of

course, the right to receive information is enjoyed by

more than schoolboys, Stanley vy. Georgia, 394 US.

557 (1969), and is sufficiently precious that it moved

this Court in Lamont v. Postmaster General, 381 US.

301 (1965) to the first invalidation in history of a

federal statute on First Amendment grounds. The unani-

mous decision in that case deserves additional attention.

The Lamont decision struck down the federal act

and regulations which required addressees of “commu-

nist political propaganda” to specifically request such

mail before it would be delivered by the postal au-

thorities:

The Act sets administrative officials astride the

flow of mail to inspect it, appraise it, write the

addressee about it, and await a response before

dispatching the mail. Just as the licensing or tax-

ing authorities in the Lovell, Thomas, and Mur-

ieee

dock cases sought to control the flow of ideas to

the public, so here federal agencies regulate the

flow of mail. . . . the addressee in order to receive

his mail must request in writing that it be de-

livered. This amounts in our judgment to an un-

constitutional abridgment of the addressee’s First

Amendment rights. The addressee carries an af-

firmative obligation which we do not think the

Government may impose on him. 381 US. at

306-07.

In Lamont not only was the intended recipient of

speech recognized as the locus of the First Amendment

right, but the protection of the flow of ideas to him

extended even to unsolicited information. Lamont v.

Postmaster General, 229 F. Supp. 913, 916 (S.D.N.Y.

1964). In this regard a comparison of Lamont and

the instant case is instructive. New York has created

an enormous system for promoting the flow of a very

particular set of information and ideas to a very par-

ticular set of recipients including the plaintiff children.

This flow is invested with such importance by the State

that it constrains the intended recipients by law to

join the system and attend to its messages. For their

part the intended recipients have expressly indicated

(if not otherwise, by this very litigation) their strong

interest in receiving this information.

In all respects the comparison to Lamont favors

plaintiff children. Their right to receive the coveted

learning is scarcely inferior in status to that enjoyed

by the casual addressee of an unsolicited piece of mail.

Similarly, a comparison of the relative burdens im-

posed on speech favors the instant claim. New York

has cast upon plaintiff children an “affirmative obliga-

tion”—here the acquisition of books—as a precondi-

ee. 1

tion of equal access to the flow of ideas. In Lamont

the mere requirement that the addressee request the

mail was held “an unconstitutional abridgement of the

addressee’s First Amendment rights” that outcome is

all the more justified here where the affirmative obliga-

tion cannot even be performed by the very person af-

fected; that is, the child must depend on a third per-

son to provide the key to the information system.

The practical effect of the New York practice is a

crushing burden upon the right to know. Plaintiff-

children are effectively limited in their employment of

the public information system by the fee payment re-

quirement. It is no answer to this that the State has no

duty to promote the flow of ideas. Having chosen to do

so it may not proceed upon the basis of what is essen-

tially a discrimination by wealth and lineage, Lindsey v.

Normet, supra, at 4189.

The protection of the right here asserted is supported

by every consideration which has historically moved

this Court in speech cases. Education and speech share

the common objective that inquiry and debate in our

nation remain informed and vigorous. It is even false

to their nature to separate the two by the conjunction:

education is speech, just as speech is always a form of

education. And, if speech be precious, the full measure

of judicial concern must likewise focus on those in our

schools for whom the message of public education is

designed.

2. Education as an Aspect of the First Amendment Rights

of Political Expression and Association.

This argument, like the last, deals with education/

speech. It differs only in its concentration upon the

political side of the petitioner pupils’ future life as cit-

izen. It argues the existence of an important relation

ae

eam,

between what is happening to that child in the Hemp-

stead schools and what can be expected of him later

as a decision maker in a democratic society.

This Court has identified a wide variety of political

expression and associational activity specially protected

under the First and Fourteenth Amendments. See gen-

erally Lockhart, Kamisar, and Choper, Constitutional

Law, 766-1020 (St. Paul, West, 1967). These “recog-

nized rights” have a common quality—all are designed

to protect the citizen’s role in the democratic political

process by assuring both his access to ideas and his op-

portunity within the law to associate to promote such

ideas as he supports.

This central concept is so well and so long estab-

lished that the multiplication of precedent would be

pointless. Much of it is summarized in the terse expres-

sion of the majority in Whitney v. California, 274 US.

357 (1927).

Those who won our independence believed . . .

that public discussion is a political duty; and that

this should be a fundamental principle of the

American government. 274 U.S. at 375.

The interest at stake is speech to be sure, but clearly

it is more than the mere right to speak. The audience

is at least as important as the speaker. Meiklejohn

puts it nicely:

“[I]n . . . political self-government, the point of

ultimate interest is not the words of the speakers,

but the minds of the hearers . . . [A]s the self-

governing community seeks . . . to gain wisdom in

action, it can find it ofily in the minds of its

individual citizens. If they fail, it fails.” Meikle-

RPE re er ae I FEES a a Rr ere! ager I Trew

_ — slifioen

john, Free Speech and its Relation to Self-Govern-

ment (1948), reprinted in Lockhart, Kamisar,

and Choper, supra, at 789.

Thus, the cherished protection is not merely for the

speaker or even the particular audience; it is for all of

us:

The constitutional safeguard, we have said, “was

fashioned to assure unfettered interchange of ideas

for the bringing about of political and social

changes desired by the people.” Roth v. United

States, 354 U.S. 476, 484. “The maintenance of the

opportunity for free political discussion to the end

that government may be responsive to the will

of the people and that changes may be obtained

by lawful means, an opportunity essential to the

security of the Republic, is a fundamental princi-

ple of our constitutional system.” Stromberg vy.

California, 283 U.S. 359, 369. New York Times v.

Sullivan, 376 U.S. 254, 269 (1964).

It is the total system of free political discussion that

is crucial; it is the frustration of the system by govern-

ment that is forbidden. And if it be the case that public

education is indispensable to full and fruitful political

intercourse, then the character of its dispensation is a

speech issue of grave consequence.

That, of course, is the essence of the proposition here

asserted. It is direct and simple: Education is not only

important to political intercourse; it is the very gateway

to all effective participation. It is that human activity

which alone can justify the epistemological assumptions

of a political democracy. Without it the constitutional

dependence upon popular Participation is merely

absurd.

i

Thus when the state provides education it is engaging

the child in perhaps his first—and certainly his first

organized—political experience. On a mass basis the

state deliberately—and properly—affects the character

of our political life in two distinct but related ways.

First, through prescribed curricula the state largely fixes

the major concepts and content of our political dis-

course. Secondly, and more important, the acquisition

of skills and general culture through education power

fully conditions the young citizen’s general capacity for

effective participation in the life of his society, including

government.

The recent opinion in Serrano v. Priest, supra, makes

much of this political aspect of education:

At a minimum, education makes more meaningful

the casting of a ballot. More significantly, it is like-

ly to provide the understanding of, and the interest

in, public issues which are the spur to involvement

in other civic and political activities.

The need for an educated populace assumes

greater importance as the problems of our diverse

society become increasingly complex. The United

States Supreme Court has repeatedly recognized

the role of public education as a unifying social

force and the basic tool for shaping democratic

values. 5 Cal.3d at 608, 487 P.2d at 1258.

This Court has never before been asked to protect

the interest in education as part of the rights of speech

and political association. Amici believe it expedient for

the Court now to do so because of education’s unique

impact upoa the child’s development as 4 citizen. Edu-

cation is the very foundation of community life, of

effective participation in the political process, of the

Se ies

consensus of shared democratic values. By transmit-

ting the deposit of learning to the young, education

enables our pluralistic society to identify itself as a

people with a common destiny. As shaper of the child’s

capacity for civic contribution, education is indistin-

guishable from and an integral part of the rights of

speech and association. When the State discriminates

against children in the provision of education, it cor-

rupts the very sources of free discussion and civic

virtue."

Seeing this special role of education helps to correct

the view of the majority below concerning the relevance

of Dandridge v. Williams, supra, and James v. Valtierra,

402 U.S. 137 (1971). The basic theme of the majority

respecting these cases seems incorporated in a sentence

on p. 879:

[A]lthough education is no doubt an area of fun-

damental importance, the Supreme Court has made

clear its view that in the area of social welfare,

the “compelling state interest” theory does not

apply even though basic needs may be involved.

This misses the point. Mr. Justice Stewart in Dan-

dridge carefully avoided any such sweeping limitation

and made quite plain that merely affixing a label such

as “social welfare” or “social and economic” will be

insufficient to divert the Court’s scrutiny:

. . . [H]ere we deal with state regulation in the

social and economic field, not affecting freedoms

guaranteed by the Bill of Rights, and claimed to

violate the Fourteenth Amendment only because

the regulation results in some disparity in grants

of welfare payments to the largest AFDC families.

397 US. at 484.

a =

If anything is plain in the instant case, it is that the

discrimination is not limited to social welfare and that

it does affect speech and association—“freedoms guar-

anteed by the Bill of Rights.” Indeed, as argued at

length above that specific injury is what the case is

all about. (And it is not merely “some disparity”; for

the petitioner-children the result is “educationally dis-

astrous”.) To speak of the interest here as “social

welfare” is to reduce the education of human beings

to the level of their stomach. Did the majority below

come to suppose that the constitutional relevance of an

interest is to be determined merely by its importance to

the creature comfort of the individual? They suggest

as a reductio ad absurdum:

Certainly no one would contend that a student’s

need for textbooks is any more fundamental than

such items as food and clothing which are pro-

vided through welfare grants. 449 F.2d at 879

(f.n. 11).

But of course that is precisely what we do contend.

A child’s mind is constitutionally distinguishable from

his stomach. Dandridge may reject “economic needs of

impoverished human beings”, as the criterion of fun-

damentality, 397 U.S. at 485, but this scarcely implies

that discrimination respecting development of human in-

telligence is of the same order. Indeed, Dandridge explic-

itly states the opposite, citing Shelton v. Tucker, supra,

as an example of a general area in which the Court’s

intervention would be appropriate. 397 U.S. at 484.

=

James v. Valtierra, supra, is an inappropriate anal-

ogy for a like reason. The interest at stake in that

case was housing. One could readily concede the im-

portance of that interest to the affected individuals

without conceding its constitutional relevance. Con-

versely its nonfundamentality tells us nothing about the

issue here. Housing and welfare both being almost

purely economic and social interests, the conclusion

of the majority below with respect to education is sim-

ply a non sequitur.

C. The Injury to Petitioners Is Not Necessary to

Promote Any Compelling State Interest.

The book rental fee requirement must be justified

by the most compelling exigencies of government. But

the weightiest countervailing state interest here ad-

vanced is economy. Such a consideration is quite insuf-

ficient to submerge the right asserted. As with the costs

of littering imposed upon government by handbill distri-

bution “. . . Any burden imposed upon the .. . au-

thorities . . . results from the constitutional protection

of the freedom of speech and press”. Schneider v. State,

308 U.S. 147-162 (1939).

Rather than further detailing possible state interests

here, Amici will postpone that discussion until the “ra-

tionality” test is considered in Part II below, for in-

deed there is not even sufficient and relevant justifi-

cation for the fee under the traditional equal protection

analysis.

ePNEUR EAT ST TOGR MA A

tlie i

PART I.

THE RATIONALITY TEST IS OFFENDED BECAUSE THE

BOOK RENTAL FEE REQUIREMENT IS NOT REA-

SONABLY RELATED TO STATE OBJECTIVES.

A. The Rental Fee Requirement Arbitrarily Injures

Children Because of the Wealth or Behavior of

Their Parents.

The opinion below fails to distinguish relevant sub-

categories of the class represented by plaintiff pupils.

The total class of pupils injured by the challenged

state system is composed of all children who—for what-

ever reason—do not have access to those books re-

quired for participation in the courses of study man-

dated by the state. This larger class may be broken

analytically into at least two groups. The first is com-

posed of those children whose parents or guardians

would have provided the rental money but for their

indigency; it is on these children that Part I of this

brief has focused. The second group is composed of

those children who are bookless for any other reason,

including parental whim or selfishness.

The opinion below treats plaintiffs simply as “indi-

gent children”. By this expression the court clearly

means that they are the children of indigent parents;

it is not the child’s own economic status that is

thought to be relevant. In most contexts this would

be a sensible view; truly speaking all children are poor

and the relevant distinction among them is parental

wealth. However, in the circumstances of this case tiis

merger of child and parent by the majority below ob-

scures what is an important faetor—the separate and

independent status of the child’s right.

This confusion still would be inoffensive if the plain-

tiffs here were clearly members of the first group—

‘ —

those whose parents did not pay the rental fee because

of poverty. In that event the interest of child and par-

ent would in truth be functionally indistinguishable.

This is not to suggest, however, that the discrimination

would be rational.

With respect to this group of children with poor

parents, it is clear that the wealth classification should

play a distinct role in the application of the traditional

or 1<tionality test. This Court has made clear that

the very employment of a wealth distinction by the

State in its dispensation of benefits and burdens can

cast in doubt the rationality of the device. Thus, in

Harper v. Virginia, supra at 668, the majority stresses

that a voter’s affluence has no reasonable relation to

the purpose of the franchise. And most recently in

Lindsey v. Normet, supra at 4184, the majority opin-

ion by Mr. Justice White voids a financial burden on

appeals in forcible entry and detainer cases for its

very irrationality. Citing Griffin v. Illinois, supra,

and other indigence cases the opinion emphasized the

self-defeating function of a state policy which first

makes the appeal available and then effectively elim-

inates it for those who need it most.

Because petitioners are children, the fee requirement

is also arbitrary because it hurts those whose parents

have the funds yet do not provide the book fee. The

point here is that the child’s right is independent of the

parent. Pupils are not simply extensions of their parents

or guardian. The parent may enjoy an area of pri-

macy in the selection of the style and content of educa-

tion, at least for young children. Pierce v. Society of

Sisters, supra. Nevertheless, the separate interest of the

child is manifest in the limitations imposed on both

parental and state power.

SAARI ARIAS, AEM I

—iGa- _

The New York state decisions on the parental duty

to educate exemplify this position. Shapiro v. Dorin,

99 N.Y.S. 2d 830 (1950) is typical. In protecting the

child from parental neglect of this duty the court re-

marked:

Public Education Laws are the outgrowth of

social legislation designed to give equality of op-

portunity to all children in a society dedicated

to the democratic ideal. Without equality of op-

portunity in education there is no equality among

the children of our democratic society. This has

recently been made clear by the Supreme Court in

Sweat v. Painter, 339 U.S. 629, 70 S.Ct. 848; Me-

Laurin v. Oklahoma State Regents, 339 U.S. 637,

70 S.Ct. 851. . . . The kind and quality of educa-

tion our children receive have like bearing upon

whether they will in later life be able to take

their rightful place in civil society. . . . fd. at

pp. 834-835.

Shapiro v. Dorin, like most of the reported decisions

involves a conflict between the parent and the state

over the child. This tends to obscure the independence

of the child’s own right, making him seem the creature

of one or the other. But he is no one’s creature. This is

confirmed in the many decisions involving custody and

other rights respecting children. Here the touchstone is

“the interests and welfare of the children.” See e.g.

Bunim v. Bunim, 298 N.Y. 391, 83 N.E.2d 848

(1949). In many states the child’s own preference is

relevant in custody cases. See e.g. Smith v. Smith, 15

Utah 2d 36, 386 P.2d 900 (1963}.

This Court has never been faced directly with an

explicit conflict between the child on the one hand

“a =— =

and both parent and state on the other. Occasionally,

however, it has recognized the separate character of the

child’s right. One example is Prince v. Massachusetts,

supra. Here the parent and child were aligned against

the state, but the opinion repeatedly notes that the

child has rights which he enjoys as his own. Of course,

the decision in Tinker v. Des Moines, supra, rests en-

tirely upon the students’ own right to free speech

though it involved no conflict with parental interests.

There, as in In re Gault, 387 U.S. 1 (1967), the Court

gave recognition to the independent constitutional per-

sonality of children and students.

The most explicit and highly relevant affirmation of

the child's separate right is the recent decision in

Chandler v. South Bend Community School Corpora-

tion, Civil No. 71 § 51 (U.S.D.C., N.D., Indiana) de-

cided August 26, 1971. Chandler involved the refusal

of parents either to pay certain school fees or to have

them excused by a parental statement of indigency.

As a consequence of that refusal, plaintiff children

were excluded from certain school opportunities. The

court held this practice a violation of the children’s

rights under the Equal Protection clause. The language

of the opinion is explicit on the point of the child’s

Status:

. . . Defendant herein has totally failed to present

any reason why the Plaintiff-students should in-

cur sanctions 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, an intoler-

able practice. . . . (Slip opinion, p. 5)

—28--

It would be one thing for the state to decide that

parents shall have the choice whether children shall

attend school. It is quite another to establish a uni-

versal compulsory system, define the appropriate ex-

perience so as to require books for its enjoyment, and

then relegate the provision of books to an independent

private decision.

B. The Classification Is Both Inconsistent With State

Purposes and Unnecessary.

The first question here is whether the classification

of plaintiff children by their parents’ wealth or choice

bears a “reasonable relationship to any valid state ob-

jective”. Lindsey v. Normet, supra. If such classifica-

tion either fails to advance the state objective or is

“unnecessary to assure” its accomplishment, “. . . the

discrimination against the class . . . is arbitrary and

irrational . . .” Id. at 4191. It is not enough that the

practice advance the objective; the practice must be

reasonably “necessary” to that end. If it can be achieved

without imposing the burden, the state’s insistence upon

the classification becomes punitive and irrational. Car-

rington v. Rash, 380 U.S. 89 (1965); Rinaldi v.

Yeager, 384 U.S. 305 (1966).

In Lindsey v. Normet, supra, the state required un-

successful tenant defendants in forcible entry and de-

tainer actions to post a bond for double rent as a con-

dition of appeal. This Court found the requirement

both “. . . unrelated to actual rent accrued or to specif-

ic damage sustained by the landlord . . .” and “. ..

unnecessary to assure . . . payment of accrued rent

...” 40 U.S. Law Week at 4191. The irrationality

of the double-rent bond was particularly evident in its

=

effect upon the poor, for it largely frustrated the state’s

own purpose in providing a system of appeals:

The discrimination against the poor, who could

pay their rent pending an appeal but cannot post

the double bond is particularly obvious. For

them, as a practical matter, appeal is foreclosed,

no matter how meritorious their case may be. Jd.

Let us then put New York to the test. Does its prac-

tice promote its own policy? And, if so, is this practice

the only reasonable manner in which that policy may

be promoted?

First one must identify New York’s policy objective

respecting the education of primary students. What is

its relevant “purpose”? The majority seeks it in the

legislative statement which accompanied the challenged

§§701. et seq. 449 F.2d at 877. However, this en-

tirely misconceives the issue by fastening upon but one

element in a complex system of public education. One

might even concede (we do not) that the limited pur-

pose vaguely expressed in that preamble was in fact

advanced. This dwes not render irrelevant the larger

purposes held by the legislature for the whole system.

If the legislation effectively frustrates those larger pur-

poses, it may fail even though it accomplishes some

relatively minor objective. Indeed, it would be difficult

to imagine a legislative classification that accomplished

literally nothing of its purpose, even if only the saving

(or spending) of money.

What is the broader purpose of the New York sys-

stem? The state constitution mandates the following:

. a system of free common schools, wherein

all the children of this state may be educated.

N.Y. Const., Article XI, Education, § 1.

—30—

Other portions of the Education Code, for example

those respecting compulsory attendance, flesh out the

picture of legislative purpose. See e.g. § 3204, 3205.

The most explicit expression of relevant legislative pur-

pose may be § 3209:

Public welfare officials . . . shall furnish indigent

children with suitable . . . books . . . and other

necessaries to enable them to attend upon instruc-

tion as hereinbefore required by law. (This section

is noted here not for its creation of substantive

rights but solely as an indication of legislative

purpose in design of the system. )

The state courts have frequently interpreted the leg-

islative purpose of these and related code sections. The

opinion in People v. Turner is often cited:

The object of a compulsory education law is

to see that children are not left in ignorance, that

from some source they will receive instruction that

will fit them for their place in society. 277 App.

Div. 317, 98 N.Y.S. 2d 886, 888 (1950).

In re Myers, 119 N.Y.S.2d 98 (1953), expanded upon

the Turner language and applied it to a parent who

wished to instruct his child at home. Because the

mother was qualified and the child “. . . used the books

designated for this grade by the Board of Education”,

the parent was held to be justified. The purpose of the

legislative scheme was fulfilled.

What then is the relevant state purpose in the light

of these provisions and decisions? Amici suggest the

following formulation: The staté’s purpose is the main-

tenance of a system of education to which all children

have functional access.

. a

Measured by this purpose the challenged practice is

plainly self-defeating. It excludes from the central ex-

perience of the classroom all those who cannot pur-

chase the key. New York has spent billions of dollars

to provide a system of free common schools designed

to instruct all children and then made certain that that

system would fail for the plaintiff pupils. This is a clas-

sic example of irrationality.

Suppose, however, that the Court were to focus upon

the preamble of §§ 701 et seq. as an expression of the

legislative purpose. One would yet be left in impenetra-

ble doubt, for the language of that preamble is ex-

tremely vague. While it would promote science etc.,

it suggests nothing inconsistent with the state con-

stitutional norm of free public education for all. Quite

to the contrary, it calls for “more adequate educa-

tional opportunities”. In any event, these vague senti-

ments, whatever their tone, could scarcely be sub-

stituted for the historic constitutional and legislative ob-

jective we have identified. The only reasonable state-

ment of relevant state purpose is that of providing an

educational system truly accessible to all children.

Again, and obviously, the state here has failed in that

effort by effectively excluding plaintiff pupils.

There is, of course, the possibility argued by the

State that the purpose of the discrimination here is

simply to save money. There is nothing in the pre-

amble of §§ 701 et seq. to suggest this, but amici are

willing to assume it. It is, after all, but a truism; the

state spends for so many purposes, and beyond

that its purpose is not to spend. In any case the point

is easily disposed of. This Court has declared the state’s

Objective of economy an inadequate justification for _

an otherwise unsupportable classification. See e.g.

=

Graham vy. Richardson, supra; Rinaldi v. Yeager, supra;

Shapiro v. Thompson, supra.

But this is only the first reason for holding the

wealth classification irrational. What is ultimately so

exasperating is the pointlessness of this cruelty. Even

if one conceded weight to the state’s interest in saving

resources, that interest becomes irrelevant here where

any number of alternatives can be imagined which

satisfy that end without singling out helpless children as

victims.

In short, the second, equally cogent reason, is the

“unnecessary” character of the discrimination. Lindsey

v. Normet, supra. There exists a variety of methods

assuring the state achievement of all its purposes with-

out the present discrimination against petitioners by

the wealth or choice of their parents.

In evaluating alternatives it should not be overlooked

that New York’s present assistance to school districts

(especially poor districts) is all out of proportion to

the cost here at issue. In 1969-70 New York con-

tributed to local school districts more than $600 per

pupil on a statewide average. See Report of the New

York State Commission on the Quality, Cost and

Financing of Elementary and Secondary Education;

Volume 1, Chapter 2 (Albany, 1972). The point is

that it is misleading to view the $7.50 here at issue

apart from that subvention. New York could have the

effect it wishes merely by miniscule budget shifts which

are more general in their effect—that is which do not

focus upon the poor. What Ney York in fact has done

is to single out these plaintiffs to bear the full weight

of its interest in economy. The poor have been selected

to support the education of the nonpoor. |

; inal:

If the state still wished to permit charging a book

fee, it could, as under the system before the court in

Chandler, permit parents to submit a statement of in-

ability to pay; provided, as in Chandler, that failure to

do either led to sanctions only against the parents and

not the students. If relieving poor parents from the pay-

ment were thought too costly, then perhaps a portion

of the welfare budget could be diverted to the educa-

tion budget. Finally, if necessary, the state might re-

organize its education program so that it did not de-

pend upon books. The range of alternatives open to

the legislature emphasizes the very modest and limited

character of the judicial intrusion here requested.

Conclusion.

Petitioner children have been unconstitutionally

singled out and denied effective access to public educa-

tion in New York. The denial of class books to chil-

dren on whose behalf a fee has not been paid cannot

be tolerated. Respondents’ interest in saving money is

simply insufficient; moreover, amici submit that to save

money in this way is false economy of the worst sort.

Not only are other public school resources devoted

to bookless children substantially wasted; more im-

portantly, the state seems embarked on a course in

which it is squandering some of the most precious re-

sources that it has, namely, these petitioner children.

Dated: May 5, 1972.

JOHN E. Coons,

STEPHEN D. SUGARMAN,

WILLIAM H. CLuneE III,

Attorneys and Amici Curiae.