# Amicus Curiae Brief — Johnson v. New York State Education Department > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_1547%3A04 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1972 - **Citation:** 409 U.S. 75 ## Text _— 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 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