Petitioners Brief — Johnson v. New York State Education Department
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VAY 25 1972
IN THE
Supreme Court of the Unite
OCTOBER TERM, 1971
MICHAEL RODAK, JR.,.CLER
No. 71-5685
DAISY JOHNSON, DOROTHY MILLER, FORESTINE
PRESSY, individually, and on behalf of their minor
children and on behalf of all others similarly situated,
Plaintiffs-A ppellants,
NEW YORK STATE EDUCATION DEPARTMENT,
EWALD B. NYQUIST, as Commissioner of the New York
State Education Department, and the BOARD OF
EDUCATION OF UNION FREE SCHOOL DISTRICT
No. 27, Town of Hempstead,
Defendants-A ppellants.
ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE SECOND CIRCUIT
PETITIONERS
BRIEF OF ABREEEAASES
CARL JAY NATHANSON
NASSAU COUNTY LAW SERVICES
COMMITTEE, INC.
1570 Old Country Road
Westbury, New York 11590
Attorney for Appellants
EE RENE EASE ROE.
Wasrington O C THIEL PRESS 202 393.0625
EERIE LOT Me ee RENE PPT MY
a
INDEX
A. The Legislative History of Statutory
EE Ge WG Ais ON SOS 5 cho 454 dn Saat
4
EE ET ee ee 5
C. The History of These Proceedings............... 6
cs ee rr ere 8
POINT I. APPELLANTS’ CHILDREN WERE DENIED
EQUAL PROTECTION OF THE LAWS IN
VIOLATION OF THE FOURTEENTH
AMENDMENT WHEN THEY WERE DENIED
TEXTBOOKS ESSENTIAL TO THEIR
PUBLIC SCHOOL EDUCATION SOLELY
BECAUSE OF THEIR POVERTY .......... 10
A. The Statutory Scheme for the Dis-
tribution of Textbooks Divides
Children into Two Classes and
Denies Equal Public Education to
Children in Grades 1-6 Solely on
Account of their Poverty ............ 10
B. The Equal Protection Clause Requires
that the Burdening of a Fundamental
Interest be Justified by a Standard
of Compelling Interest .............. 11
1. Education is a Fundamental
Interest and the Sine Qua Non
of Useful Existence ............ 12
Se er UNO ie ae
(ii)
2. Education is Preservative of All
Other Fundamental Basic
Civil and Political Rights. ........
3. Those Subject to the Depriva-
tion Created by the Statutory
Scheme Comprise a Politically
impotent Class Requiring this
Court’s Special Protection. .....-..
4. The Statutory Scheme Creates
Classification of Children Based
on Conduct of their Parents
Over Which they Have no
Sr ey ee ee ee
C. The Equal Protection Clause Forbids
Economic Discrimination in the Enjoy-
ment of Fundamental Interests ........
D. The Proffered State Interests Fail To
Justify the Denial of Equal Educational
Opportunity ...... 6... 5+ e eee eee:
1. The Desire to Provide Textbooks
to as Many Children as Possible . . . .
2. The Denial of Textbooks to
Indigent Children in Grades 1-6
Conserves Fiscal Resources .......
3. The Denial of Textbooks to
Indigent Children in Grades 1-6
Fosters the Study of Certain
Subjects in Grades 7-12 .......--
POINT II. INDIGENT CHILDREN DENIED TEXT-
BOOKS BY THE STATUTORY SCHEME
ARE DEPRIVED OF THEIR RIGHT TO
ACQUIRE KNOWLEDGE WITHOUT
DUE PROCESS OF LAW.......---+--->>
POINT Ill. THE COURT BELOW ERRONEOUSLY
FOUND THE CONSTITUTIONAL QUES-
TION INSUBSTANTIAL BY APPLYING
AN UNDULY RESTRICTIVE STANDARD
IN CONFLICT WITH THE GUIDELINES
ESTABLISHED BY THIS COURT........-;
23
33
35
37
» (iti)
A. The Court Below Applied a Standard
in Conflict with an Unbroken Line
of Decisions of this Court ........... 44
B. The Court Below Erroneously
Applied this Court’s Ruling in
Dandridge v. Williams, 397 US.
471 in Rejecting Appellants’
Equal Protection Claim ............. 49
Ee CaN &K SRA CARE SRA S SK Onde hae Oks «a $2
TABLE OF AUTHORITIES
Cases Cited:
Abington School District v. Schempp, 374 U.S. 203 (1963) ... 12
Askew v. Hargrave, 401 U.S. 476 (1971) ............... 46
Barnette v. West Virginia Board of Education
IR, Does Chk GARE UK Gs cack ccwese 37
Blocker v. Board of Education, 226 F. Supp. 208
ed coc aT 31
Board of Education v, Allen, 392 US. 236 (1968) ..... 12, 16, 35
Boddie v. Connecticut, 401 U.S. 371 Se passim
Bolling v. Sharpe, 347 U.S. 497 (1954) .. 2.2.0.0... 41
Brown v. Board of Education, 347 U.S. 483 EN < <<4-ma% Passim
Bullock v. Carter, 92 S. Ct. 849 (1972) ..... 2... 2... 33
Burns v. Ohio, 360 U.S. 252 (1959) ................... 25
California Water Service Co. v. City of Redding,
RES 44
Carrington v. Rash, 380 U.S. 89(1965) ................. 33
Chandler v, South Bend Community School Corporation,
Gmwee. 72 O51 (UD IND. 1971) ....... wee 49
Cooper v. Pate, 378 US. $46 (1964) ................... 7
Dandridge v. Williams, 397 U.S. 471 (1970) ............ 49, 50
Douglas v. California, 372 U.S. 353 (1963) ............... 25
Dunn v. Blumstein, 92 S.Ct.995(1972) sw... se 30, 31
Edwards v. California, 314 US. 160 (1941) .............. 23
——$——__—
Eskridge v. Washington State Board of Prison T. & P.
Rh oT) Re Ars nnn ini 25
Gardner v. Toilet Goods Association,
oR Be. Er eee. eee ee 7
Graham v. Richardson, 403 U.S. 365 (1971)... .....-. 20, 33,51
Griffin v. Illinois, 351 U.S. 12 (1956) .....-..---- 9, 24, 40, 51
Griswold v. Connecticut, 381 U.S. 479 (1965) ........ 19, 37, 38
Gulf, Colorado & Sante Fe Ry. v. Ellis,
“) Q) ) ROCT eek eee eee eee 29
Hargrave v. Kirk, 313 F. Supp. 944 (M.D. Fla. 1970)........ 46
Hargrave v. McKinney, 413 F. 2d 320 (Sth Cir. 1969) ..... 46, 48
Harper v. Virginia State Board of Elections,
Poke Of err er eres 19, 22, 26, 50
Hobson v. Hansen, 269 F. Supp. 401 (D.D.C. 1967) ...... 16, 21
Hosier v. Evans, 314 F. Supp 316 (D. Vir. Is. 1970) .....-.-. 14
Idlewild Bon Voyage Liquor Corp. v. Epstein,
> i Bo). ert fo eee 44
Interstate Consolidated Railway Co. v. Massachusetts,
, ke fT) ne ne 13
Jackson v. Choate, 404 F. 2d 910 (Sth Cir. 1968) .......... 47
James v. Valtierra, 402 U.S. 137 (1971)... . 2 6. 2 ee ee ee 42
Johnson v. New York Education Department,
ee eee eS eee rere !
Kent v. Dulles, 357 U.S. 116 (1958) .......----5- ++ 5555 38
Keyishan v. Board of Regents, 385 U.S. 589 (1967)... ....-- 16
Korematsu v. United States, 323 U.S. 214 (1944) ........-. 22
Kramer v. Union Free School District,
395 US. 621 (1969)... .. eee eee ee eee eee 11, 30, 31,37
Lane v. Brown, 372 US. 477 (1963) .... 50-00 eee eee 3S
Lassiter v. Northampton County Board of Elections,
960 US. 45 (19599)... ... 6.62.08 of EAR 19,27
Levy v. Louisiana, 391 U.S. 68 (1968)... ---- +. 6-52 eee 22
Long v. District Court of lowa, 385 US. 192 (1966) ........ 25
Lovell v. City of Griffin, 303 U.S. 444 (1938) .....------> 19
a (v)
Loving v. Virginia, 388 U.S. 1 (1967) .............00055 19
Mayer v. Chicago, 404 U.S. 189 (1971) .............045. 29
McDonald v. Board of Elections Comm.,
ee ee 27
McGowan v. Maryland, 366 U.S. 420 (1961).............. 11
McLaughlin v. Florida, 379 U.S. 184 (1964) .............. 0m)
McMillan v. Board of Education, 430 F. 2d 1145
PC. ck bha see shaek Ase h et eacdencan 47,49
Meyer v. Nebraska, 262 U.S. 390 (1923) .............. passim
Miller v. New York Stock Exchange, 425 F.2d 1074
: (2nd Cir. 1970), cert. den. 398 U.S. 905 (1970) ......... 46
| NAACP y, Alabama, 357 US. 449 (1958). ...........-... 19
NAACP y. Button, 371 U.S. 419 (1963)... ..........0-0. 31
Oyama v. California, 332 U.S. 633 (1948)... 2... 2... oe ee. 22
Pierce v. Society of Sisters, 268 U.S. 510 (1925) ........... 39
| Poe v. Ullman, 367 U.S. 497 (1961)... 2.6.62 eee eee 38
| Poresky, Ex parte, 290 U.S. 30 (1933) ............. 10, 44, 48
Protestants and Other Americans United for Separation of
Church and State v. United States, 435 F. 2d 627
Ss a oe ie rie, ees whee d 46
Richards v. United States, 369 US. 1 (1961) ............. 35
Robinson v. Cahill, 118 N.J. Super. Ct. 223,
a eri Ae i a aa name wok 16
Rodriguez v. Brown, 437 F. 2d 34 (Sth Cir. 1971) ......... 46
Rodriguez v. San Antonio Independent School District,
aoe ©. Sepp. 200 CWP. Temes 197G) ... . «2... eens. 16
Rosado v. Wyman, 397 U.S. 397 (1970)... ...........-.. o
Rosado v. Wyman, 322 F. Supp. 1173
Eid ha ee bag chin weil 6
Serrano v. Priest, 96 Cal. R’prtr. 601,
a wit wine th Alec a kis 16
Shapiro v. Thompson, 394 U.S. 618 (1969) .............. passim
Shelton v. Tucker, 364 U.S. 479 (1960)... ............. 31, 50
Skinner v. State of Oklahoma, 316 U.S. §35 (1942)......... 38
(vi)
Smith v. Bennett, 365 U.S. 708 (1961) ..........-----5- 25
Smuck v. Hobson, 408 F. 2d 175 (D.C.Cir. 1969) .......... 21
Schneider v. Rusk, 377 U.S. 163 (1964)... .........-5--- 44
Snyder v. Commonwealth of Massachusetts,
Pg | SS eee 37
Tate v. Short, 401 U.S. 395 (1971) .... 2... 22 eee ee eee 28
Tinker v. DesMoines Ind. Community School District,
ge ran a 37
United States v. Carolene Products, 304 U.S. 144 (1938) ..... 20
Van Dusartz v. Hatfield, 334 F. Supp. 870
CD Minn. 1971) ow eect eeeeeeeee 16
Williams v. Illinois, 399 U.S. 235 (1970) .........-5555- 28, 3¢
Williams v. Page, 309 F. Supp. 814 (N.D. Ill. 1970)
reversed No. 18536 (7th Cir. 197!)
[unreported] , cert. den. 404 U.S. 1005 (1972) ......--- 46, 4
Williamson v. Lee Optical of Oklahoma, Inc.,
EE ee ee ee 1!
Wisconsin v. Constantineau, 400 U.S. 433 (1971) ......---- 4
Constitutional Provisio.1s:
United States Constitution
TORS P EET eee EET EEE 3
Ninth Amendment .. 1... tee eens 3
Fourteenth Amendment .............5-0- eee eeee passi?
New York State Constitution
Article Mi, Section 1... ww cece eee cee 3
Federal Statutes:
PO USC. 86 234-244 ... 2... cece eee l
WO USO. BB331-332 . . 5 eee eee eee I
20 US.C. §§401-602............--- “os Fo ee ere
20 US.C. §§ 821-827... ...-- eee eee eee
20 USC. -8§ 861-870... 1... eee eee
2 USC. §8881-88S.... 1... eee eee eee eee
Ce cee
No ig ok tere y fo ok coo eS 2
SG 29 eh eee ee ee Se 10, 43, 45
NER RE Re es a aa aCe OE 43
Northwest Ordinance of 1787 ........................ 38
New York Statutes:
New York Education Law §701 ............... 2, 4, 5, 35
New York Education Law §701(2) ............... 2, 16, 40
New York Education Law §703(3) .............00000. 2
New York Education Law §703 ................. 3, 4, 32
New York Education Law §703(1) ................... 3
New York Education Law §703(2) Pere ee ee ts ee 3
New York Education Law §2023 ................... 5, 32
New York Education Law § 2503(7) .................. 4
New York Education Law §2554(7) .................. 4
New York Education Law §3205(1) .................. 14
mow Wom Election law §1590...................... 19
New York Social Services Law §13l-a................ 6
Regulation:
I Fs os 6 6G 6 Cis eb ka cee ck cs 6
Opinion:
Opinion No. 213 of the Counsel to the Education Department
EN es FAK 4s SO CNW ew Be eS 5
Other Authorities Cited:
Bloom, Stability and Change in Human Characteristics (1964) .17, 36
Bloom, Davis, Hess, Compensatory Education
for Cultural Deprivation (1965)..................... 18
Burns, Childhood Poverty and the Children’s
Allowance, Children’s Allowances and the
Econimic Welfare of Children (1968) ................ 22
Grlton, Economic Influences Upon Educational
Progress in the United States (1908) ............... 12.13
aeeen Me Nt a a
(viii)
Conant, Slums and Suburbs (1961) -..--- +--+ ++ s5c rect
Coons, Clune and Sugarman, Educational Opportunity:
A Workable Constitutional Test for State Financial
Structures, 57 Cal. L. Rev. 305 (1969). ...---------> 15
Developments in the Law— Equal Protection,
82 Harv. L. Rev. 1065 (1969)....--------eerrrce 1]
Discrimination Against the Poor, and the Fourteenth
Amendment, 81 Harv. L.Rev. 435 (1967) .--.------ +++:
Harrington, The Other America (1966)... 2... 22 - eee eees 18
Kirp, The Poor, the Schools and Equal Education,
38 Harv. Ed. Rev.635(1968) ee tt
North, Economic Growth of the United States,
1790-1860 (1966) ....-.-. eee eet ete tee
Redlich, “‘Are there ‘Certain Rights... Retained by the
People’?” NYU L.Rev. 787 1) ) Si re
Sexton, Education and Income (1961) ..-----+++s5s0000°
Tussman & tenBroek, The Equal Protection of the Laws,
37 Cal. L.Rev. 341 (1949) ....--- eee eee errr
U.S. Dept. of Health, Education and Welfare, Welfare
Administration, Division of Research, Low Income
Life Styles (1968) ...---- 0+ seereeeer ert 2
U.S. Dept. of Health, Education and Welfare, Welfare
Administration, Division of Research, Growing Up
RE REI ee sk ee he
Wise, Rich Schools, Poor Schools: the Promise of
Equal Educational Opportunity (1968). .------ 2-50-00
7 IN THE
Supreme Court of the United States
9 OCTOBER TERM, 1971
0 No. 71-5685
| DAISY JOHNSON, DOROTHY MILLER, FORESTINE
PRESSY, individually, and on behalf of their minor
3 children and on behalf of all others similarly situated,
Plaintiffs-A ppellants,
13 v.
38 NEW YORK STATE EDUCATION DEPARTMENT,
18 EWALD B. NYQUIST, as Commissioner of the New York
State Education Department, and the BOARD OF
33 EDUCATION OF UNION FREE SCHOOL DISTRICT
No. 27, Town of Hempstead,
Defendants-A ppellants.
ON WRIT OF CERTIORARI TO THE UNITED STATES
21 1 COURT OF APPEALS FOR THE SECOND CIRCUIT
BRIEF OF APPELLANTS
OPINION BELOW |
The Opinion of the Court of Appeals (A-59-81)*
is reported at 449 F.2d 871 (1971)
“Numbers in parenthesis preceded by “A” refer to pages of the
Appendix.
——e
JURISDICTION OF THIS COURT
The judgment of the Court of Appeals was entered
August 13, 1971. The petition for a Writ of Certiorari
was filed November 6, 1971 and was granted February
22, 1972. The jurisdiction of this Court rests on 28 U.S.C.
1254(1).
CONSTITUTIONAL PROVISIONS
FOURTEENTH AMENDMENT OF THE
UNITED STATES CONSTITUTION
Section 1. All persons born or naturalized in the United .
States, and subject to the jurisdiction thereof, are citizens
of the United States and of the State wherein they reside.
No State shall make or enforce any law which shall abridge
the privileges or immunities of citizens of the United States;
nor shall any State deprive any person of life, liberty or
property, without due process of law; nor deny to any per-
son within its jurisdiction the equal protection of the laws.
STATUTES INVOLVED
New York Education Law § 701 in pertinent part, pro-
vides:
“2. A text-book, for the purposes of this section
shall mean a book which a pupil is required to use
as a text for a semester or more in a particular class
in the school he legally attends.
3. In the several cities and school districts of the
state, boards of education, trustees or such body
or officers as perform the function of such boards
shall have the power and duty to purchase and to
loan upor individual request, to all children residing
in such district who are enrojled in grades seven to
twelve of a public or private school which complies
with the compulsory education law, text-books.
Text-books loaned to children enrolled in grades
seven to twelve of said private schools shall be
ES
New
textbooks which are designated for use in any
public, elementary or secondary schools of the
state or are approved by any boards of education,
trustee or other school authorities. Such text-books
are to be loaned free to such children subject to
such rules and regulations as are or may be prescribed
by the board of regents and such boards of edu-
cation, trustees or other school authorities.”
* * * * *
York Education Law $703 provides in pertinent
,
“1. The qualified voters of any school district
present at any annual school meeting or at any
special school meeting duly and legally called for
that purpose, shall have power, by a majority
vote, to be ascertained by taking and recording
the ayes and noes, to vote a tax for the purchase
of all text-books used, or to be used, by pupils
enrolled in grades one to six, inclusive, in the
schools of the district.
2. If such tax shall be voted, it shall be the
duty of the board of education or trustees of such
district, within ninety days thereafter, to purchase
and furnish free, text-books to all the pupils in
grades one through six inclusive attending the
schools in such district. [Notwithstanding the pro-
visions of subdivision one of this section, where
the qualified voters have failed, neglected or
refused to authorize free distribution of textbooks,
the board of education or trustees of the district
may, within its discretion, purchase textbooks and
either rent or sell the same to pupils in grades
one through six, inclusive, attending the schools
in such district]** Such board of education or
trustees shall have power to establish such rules
and regulations concerning the use by the pupils
of such text-books, and the care, preservation and
custody thereof as it shall deem necessary.”
**Matter in brackets [ ] was approved and became effective June 22,
1971, Laws of 1971, ch. 699.
QUESTIONS PRESENTED
(1) May New York State constitutionally deny indi-
gent children textbooks essential for required instruction
solely because of their inability to pay rental fees?
(2) Have petitioners raised a substantial constitutional
claim requiring that a three judge court be convened?
STATEMENT OF THE CASE
A. The Legislative History of Statutory Provisions
Prior to 1965, the New York legislative scheme for dis-
tributing textbooks provided that they were to be distri-
buted free to children in all grades of public schools only
when authorized by the voters of the district. [Laws 1947,
c. 820}.
In 1965, the New York State Legislature amended Sec-
tion 701 of the Education Law [Laws 1965, c. 320] to
require local public school authorities to purchase and loan
textbooks free of charge to all pupils in grades 7-12 in pub-
lic and private schools. No similar mandatory provision was
established for the distribution of textbooks free of charge
to children in grades one through six. Instead, § 703 of the
Education Law was amended [Laws 1965, c. 320] to auth-
orize the qualified voters of local school districts to vote a
tax for the purchase of textbooks, and if voted, requires
the local school board to purchase and furnish textbooks
free to all pupils in grades one through six attending the
schools in said districts.'
'The complete scheme for distributing textbooks includes provisions
for the distribution of textbooks to pupils attending schools in city
school districts. As to school districts in cities of less than 125,000
population, § 2503 (7) of the Education Law provides that Boards of
Education may, without authorization by the voters, provide textbooks
to children attending school in the district. As to school districts in
cities of over 125,000 population, §2554 {7) of the Education Law
provides that Boards of Education of a city which provided free text-
books to pupils prior to June, 1917, must continue to supply them
free. In the case of school districts which did not make such a provision
in 1917, the authority to provide free textbooks is discretionary.
b)
Where the voters fail to approve a proposed tax to finance
school operations, the Board may, nevertheless, levy a tax
on the property owners living within the school district but
only for such amounts as are necessary for “‘ordinary con-
tingent expenses” of such school district.”
B. The Ultimate Facts
The Board of Education of Union Free School District
No. 27, Town of Hempstead, following rejection of the
1970-71, 1971-72 school budgets by the voters of the dis-
trict, furnished textbooks free to all children in grades seven
through twelve as is required by New York Education Law
$701. Children in grades one through six, however, regard-
less of the economic status of their family, were required
to pay a fee to obtain textbooks.?
Appellznts are recipients of public assistance and the
parents of a total of 6 children in public school grades 1-6.
They were unable to pay the rental fees for textbooks,
which ranged from $6.00 to $58.50 per household and their
children, and all other children too poor to pay the rental
fees, were denied textbooks which are recognized by the
state to be essential to obtaining an adequate public edu-
cation. Books were provided only to those children in grades
1-6 whose parents could afford the rental fees.* (A-38).
2The Board concluded on the basis of Opinion Number 213 of the
Counsel to the Education Department, dated July 6, 1967, that
textbooks may not be provided free of charge to pupils in grades 1-6
when the voters have failed to approve a school district budget, inasmuch
as textbooks are not considered to be “ordinary contingent expense”
items within the meaning of §2023 of the Education Law. (A-38).
3Because no budget was approved, the school board charged for
various other services and supplies. Appellants were required to pay
transportation costs for their children. In addition, charges were made
for certain other supplies, e.g., workbooks, duplicating paper, materials,
etc. (A-22).
‘There is no dispute concerning appellants’ inability to pay the
fees. Prior to July, 1969, New York met educational expenses for
AFDC children ages 6 through II in two ways. The sum of $1.00
C. The History of These Proceedings
‘ On September 16, 1970, this class action was commenced
in the United States District Court for the Eastern Dis-
trict of New York. ‘.ppellants sought both injunctive and
declaratory relief. The constitutionality of the legislative
scheme was subjected to a threefold challenge. The third
cause of action claimed, in essence, that New York had
denied indigent children textbooks essential for their
required instruction solely because of their poverty, in
violation of the Fourteenth Amendment (A-12). Appel-
lants also alleged that textbooks can be obtained for
children in grades 1-6 only upon payment of a fee
{$7.50 per pupil]; that plaintiffs are indigent and cannot
pay a fee; that by reason of plaintiffs’ poverty their children
are deprived of the equal protection of the law and deprived
of equal educational opportunity; and that poor children
denied textbooks receive an education inferior to those
children learning with books, resulting in widespread feel-
ings of inferiority and unfitness. (A-13)*
each month was included in the basic needs grant. In addition, 18
NYCRR §352.5 (d) permitted special needs grants for such items as
transportation, lunches, activity fees, gymnasium clothing, locker fees
and textbooks, upon demonstration of a particular need. With the
enactment of 131-a of the New York Social Services Law, [Laws 1969,
c. 184] effective July 1, 1969, New York eiiminated all special grants
and substituted a system of flat grants to cover all items of basic
sustenance, exclusive of rent and fuel which were added to the
recipient's allowance on a separate basis. See Rosado v. Wyman, 397
U.S. 397 (1970). On remand, the Court in Rosado v. Wyman, 322
F. Supp. 1173 (E.D.N.Y. 1970) determined that approximately $3.00
is included in the monthly grant of a family of four for all educational
expenses. Effective July 1, 1971, New York Social Services Law §131-a
was amended [Laws 1971, c. 133] and New York enacted a ten percent
reduction in the level of benefits. New York State now pays ninety
percent of the standard of need of families with dependent children.
SThe children, forced to attend classes without textbooks, were
subjected to intolerable and harsh pressures, e.g., (a) being told that
“he will receive an ‘F’ for each day he is without the required
textbooks”, (b) “when other pupils in class read from textbooks, the
teacher doesn’t let him share a book, instead she gives him paper and
:
4
¥
¢
5
The appellee, New York State Education Department,
did not controvert any of appellants’ allegations and filed
no pleadings or affidavits in District Court.®
Appellee school district, in its answering papers filed
in the District Court, actually supported the substantiality
of the claim when it admitted:
“That the denial of free textbooks places some
children under an educational disadvantage and
denies to them an educational opportunity equal
to the children of those families that can afford
to pay a rental charge for textbooks.” (A-35)
The District Court [Travia, J.] without holding an evi-
dentiary hearing, denied appellants’ application for the
convening of a three judge court to hear the controversy,
their application for preliminary injunctive relief, and dis-
missed the complaint. (A-58). The opinion failed to dis-
cuss appellants’ claim that the challenged scheme denies
indigent children the equal protection of the laws.
(A-42-46).
The Court of Appeals for the Second Circuit by judg-
ment entered August 13, 1971, affirmed. The majority
conceded education to be an area of fundamental impor-
tance, and agreed that appellants had realistically described
the deprivation visited upon poor children. (A-62).
- The majority court held, however, that the legislative
scheme did not invidiously discriminate against indigent
children. Judge Moore, writing for the majority, reasoned:
“.. . those who can afford textbooks will also no
doubt receive a better education than those who
tells him to ‘draw’,” (c) a six year old child being told by her
teacher, “no money, no books.” (A-28)
The New York State Department of Education apparently conceded
the factual allegations made by plaintiffs. On a motion to dismiss, the
well-pleaded allegations of the complaint and affidavit must be taken as
true. See, e.g., Gardner v. Toilet Goods Association, 387 U.S. 167, 172
(1967); Cooper v. Pate, 378 U.S. 546 (1964).
cannot but that is because they had the financial
means to supplement that which the State provides
and not because the State has provided them with
more than has been provided plaintiffs.” [ft. omit.]
(A-73).
Judge Kaufman, dissenting, found that the State had
handicapped indigent children by denying them textbooks
provided to others who can afford them and that the fee
requirements effectively bar indigent children from receiving
an adequate education. (A-80).
SUMMARY OF ARGUMENT
The challenged legislative scheme for distributing text-
books to grades 1-6 of New York’s public schools must be
measured by the most exacting equal protection standard
because the legislation burdens both a “fundamental” inter-
est, education, and discriminates on the basis of economic
status, a suspect and traditionally disfavored criteria. In
order to justify the classification, the State bears the heavy
burden of demonstrating a compelling interest which is
served by the challenged legislation and cannot be satisfied
by less burdensome means.
Education qualifies as a “fundamental” interest because
of its long history of public esteem and its profound and
measurable impact upon an individual's life chances for
economic and social advancement. Education provides the
very tools necessary to exercise those basic rights which
are vital to the maintenance and preservation of our demo-
cratic society. The classic expression of the significance
of education to the individual and society can be found in
Brown v. Board of Education, 347 U.S. 483, where it was
recognized as basic to the functioning of a free society.
Textbooks are an indispensable part of public education
and often serve as the entire curricula for children in the
primary grades.
The State has denied equal protection of the laws by
dividing public school children in grades 1-6 into two classes,
_ —— ——
poor and non-poor, extending the full benefits of public
education to those who can pay the textbook rental fees.
but withholding the benefits of the State’s educational pro-
gram from those who cannot. The classification on the
basis of wealth penalizes children, a discrete and insular
minority, not because of any conduct of their own, but
because of their status as members of poor families. Finan-
cial barriers which preclude indigents from exercising their
fundamental rights were held violative of the Equal Pro-
tection Clause in cases involving the right to vote and cases
involving the right to appeal from criminal convictions.
The principle developed in Griffin v. Illinois, 351 U.S. 12
and its progeny applies to the equally important right to
public education.
The State has also denied due process of law to poor
children. The Fourteenth Amendment, in guaranteeing
due process to all, protects a sphere of personal liberties
so rooted in the tradition and conscience of our people
that they rank as fundamental. The right to acquire know-
ledge has been held to be within the ambit of this sphere
of protected personal liberties. Meyer v. State of Nebraska,
262 U.S. 390.
Education is assigned no lower a place on our society’s
hierarchy of furrdamental values than is marriage or divorce.
The public schools, like the courts, remain under the State’s
exclusive control. The rationale expressed in Boddie y.
Connecticut, 401 U.S. 371, should be applied to fees which
effectively bar indigent children from obtaining an ade-
quate public education.
There can be no justification for this violation of funda-
mental constitutional principles. The various interests prof-
fered by the State fail to justify the challenged classifica-
tion. By denying textbooks only to poor children in grades
1-6, New York does not realize its goal of providing books
to as many children as possible. Neither is the deprivation
of books in the primary grades rationally related to the State’s
desire to foster the study of specific subjects in secondary
10
school. Additionally, there are several alternative and less
restrictive means available to New York to achieve the
governmental objective, means which do not burden funda-
mental rights.
The Court of Appeals erroneously affirmed the lower
court’s denial of the application for the convening of a three
judge court to hear the controversy by employing an
improper and unduly restrictive standard in conflict with
the provisions of 28 U.S.C. §2281 and the guidelines estab-
lished in Ex Parte Poresky, 290 U.S. 30. The Court, having
acknowledged the existence of a legitimate controversy and
the absence of direct precedent on the constitutional claim
presented, should have refrained from assessing the ultimate
merits of the claim and, instead, remanded the case to the
District Court so that a three judge panel could be con-
vened to hear the controversy.
POINT I
APPELLANTS’ CHILDREN WERE DENIED EQUAL
PROTECTION OF THE LAWS IN VIOLATION OF THE
FOURTEENTH AMENDMENT WHEN THEY WERE
DENIED TEXTBOOKS ESSENTIAL TO THEIR PUBLIC
SCHOOL EDUCATION SOLELY BECAUSE OF THEIR
POVERTY.
A. The Statutory Scheme for the Distribution of
Textbooks Divides Children into Two Classes and
Denies Equal Public Education to Children in
Grades 1-6 Solely on Account of their Poverty.
Appellants’ basic contention is that the New York sta-
tutory scheme for distributing textbooks to public school
children in grades 1-6 violates the Equal Protection Clause.
The challenged scheme divides children attending public
schools into two classes and, without any compelling state
interest, burdens the fundamental right of poor children
in grades 1-6 to equality of educational opportunity solely
on account of their poverty by depriving them of textbooks
- 1]
hich are both required and essential to their education.
he classification frustrates the attainment of the central
urpose of compulsory education in New York State,
amely, the education of all children of the state.
In New York State, under the challenged statutory scheme,
»xtbooks must be loaned free of charge to all pupils in
ublic and private schools in grades 7-12. Textbooks
ay be loaned free of charge to public school children
1) grades 1-6 only where the voters of the district have
pproved a tax for that purpose. In the absence of voter
pproval ,the school board may levy a tax for ordinary con-
ngent expenses but not for textbooks. (A-38). To obtain
*xtbooks in the absence of voter approval, public school
hildren in grades 1-6 must pay textbook rental fees. The
ppellants, receiving public assistance from the Nassau
ounty Department of Social Services, were unable to pay
ie textbook rental fees which ranged from $6.00 to $58.50.
heir children were compelled to suffer educational depri-
ation by attending school without those textbooks which
re required for their instruction and suffer emotional and
sychological harm as a result of sitting side by side with
iore affluent children learning with textbooks. The legis-
tive scheme creates two classes of children, not physicaily
-parate, yet unequal—the poor suffer while the rich receive
1e full benefits of the State’s educational program.
B. The Equal Protection Clause Requires that
the Burdening of a Fundamental Interest Be
Justified by a Standard of Compelling Interest.
In considering laws challenged under the Equal Protection
lause, this Court has evolved more than one test, depending
pon the interest affected and the classification involved.’
7See, Note Developments in the Law - Equal Protection, 82. Harv.
. Rev. 1065 (1969). Compare, e.g., Shapiro v. Thompson, 394 U.S.
18 (1969) and Kramer v. Union Free School District, 395 U.S. 621
1969), classification must be justified by compelling state interest with
fcGowan v. Maryland , 366 U.S. 420 (1961) and Williamson v. Lee
ptical of Oklahoma, Inc., 348 U.S. 483 (1950) classification must
e rationally related to legitimate state interest.
Te
In the present case whether we look to the interest
affected [equal educational opportunity] or the basis for
the classification [limited fiscal resources coupled with
the State’s desire to foster study in certain subjects], the
challenged legislative scheme must be measured by the
more exacting equal protection standard because the class-
ification burdens the entitlement of poor children in grades
1-6 of the public schools to equal educational opportunity.
Appellants’ right to the most searching judicial protection
is based upon the fundamental importance of education,
that education is preservative of other basic civil and polit-
ical rights; the politically impotent class subjected to the
deprivation; and the discrimination by the State against chil-
dren in the offering of public education based on their
poverty.
1. Education is a Fundamental Interest and the
Sine Qua Non of Useful Existence
“Americans regard the public school as a most vital
civic institution for the preservation of a democratic sys-
tem of government.” Abington School District v. Schempp,
374 U.S. 203, 230 (1963).
The creation and development of the tax supported public
school system permits little doubt that Americans “have
considered high quality education to be an indispensable
ingredient for achieving the kind of nation, and the kind
of citizenry, that they have desired to create.” Board of
Education v. Allen, 392 U.S. 236, 247 (1968).
The “free school system” is perhaps the most char-
acteristic institution in America. The early architects of
universal schooling viewed the concept of public education
as the bulwark of the republic.* Education has historically
8The American concept of free public school education available
to all children can be traced to the establishment of the North Ameri-
can colonies. The first compulsory education law was passed in the
Massachusetts Bay Colony in 1642 and the first public school system
was created in Massachusetts in 1647. See, Carlton, Economic
Influence Upon Educational Progress in the United States (1908)
———— 13
been viewed by the courts as “one of the purposes for
which what is called the police power may be exercised”
and has been recognized as “‘one of the first objects of
public care.” Interstate Consolidated Street Railway Co.
vy. Massachusetts, 207 U.S. 79 (1907).
Early advocates of universal education advanced three
arguments in support of free public schools.? First, and
foremost, that it was necessary for the political safety
and well-being of the State; second, that education pro-
moted the elimination of such social evils as crime and
pauperism; and third, that education promoted the econ-
omic well-being of the individual and prevented class differ-
entiation. Education has long been regarded the prime
factor in upward social and economic mobility. A major
promise of our society, born of a literal belief in the
equality of mankind, was the attempt to make education
and schools the chief agent of social mobility, a means of
self-improvement available to all.'° The American people
value education, not only as a reflection of itself, but as
p. 9. The public school system in this country finally took root in
the 1820’s and 1830's, under the impetus of Jacksonian democracy.
By 1820, New York, New England and most of the middle Atlantic
s ates had a tax supported public school system, see, North, Economic
Growth of the United States, 1790-1860 (1966) p. 174, By 1860 the
majority of states established a public school system and more than
half of the nation’s children were receiving the benefits of education.
See Wise Rich Schools, Poor Schools: The Promise of Equal Educational
Opportunity, (1968) pp. 112-113.
9%Governor Clinton, in his opening address to the New York Legis-
lature, said in 1827: “The great bulwark of the republican form of
government is the cultivation of education for the right of the suffrage
cannot be exercised in a Salutory manner without intelligence.”
Carlton, Economic Influences Upon Educational Progress in the
United States (1908) p. 51.
'0Horace Mann, a commanding figure in the public school move-
ment considered education beyond all other devices of human origin,
as the great equalizer of the conditions of man - the balance-wheel
of the social machinery. See Kirp, The Poor, the Schools and Equal
Education, 38 Harv. Ed. Rev. 635 (1968).
14
a developer of society in all its cultural and social aspects.
The pivotal position of education to success in American
society and its essential role in opening up to the indi-
vidual the central experiences of our culture lend it an
importance that is undeniable, as was recognized by this
Court in Brown v. Board of Education, 347 U.S. 483,
493 (1954), when it stated:!!
“Today, education is perhaps the most important
function of state and local governments. Compul-
sory school attendance laws and the great expen-
ditures for education both demonstrate our recog-
nition of the importance of education to our
democratic society. It is required in the perform-
ance of our most basic public responsibilities. ...
It is the very foundation of good citizenship. Today
it is a principal instrument in awakening the child
to cultural values, in preparing him for later pro-
fessional training, and in helping him to adjust
normally to his environment. In these days, it is
doubtful that any child may reasonably be expected
to succeed in life if he is denied the opportunity
of education. Such an opportunity, where the state
has undertaken to provide it, is a right which must
be made available to all on equal terms.”
Education is essential to democracy so much so that it
has been characterized by one Court as “an aspect of
twentieth century life so fundamental as to be fittingly
considered the cornerstone of a vibrant and viable repub-
lican form of democracy. . .”” Hosier v. Evans, 314 F. Supp.
316, 319 [D. Vir. Is. 1970]. The importance the State
places upon education is attested to by the fact that in New
York [N.Y. Education Law §3205(1)], as in all but three
states, education is made compulsory for a minimum of
11The enactment by Congress of laws proyiding funding for educa-
tion programs also attest to its significance. See, e.g., Elementary and
Secondary Education Act of 1965, 20 U.S.C. §§ 234-244, 331-332,
821-827, 861-870, 881-885; Johnson-O’Malley Act, 25 U.S.C. §§452
454; National Defense Education Act of 1958, 20 U.S.C. §§401-602.
_ moeananl 15
ten years.'? While voting is of such importance that it is
accorded special protective status as a right, education is
considered of such fundamental importance to society
that the State has rendered education a duty, imposed
by reason of the State’s police power, to prepare citizens
for full participation in society.'*
It is implicit in the history and character of American
public education that the public schools, which are sup-
ported almost entirely in most communities by public
funds, serve a uniquely public function: the training of
American citizens so that they may assimilate a heritage
common to all American groups. Attendance at public
schools is not compulsory; parents remain constitutionally
free to satisfy the compulsory education requirements by
enrolling their children in private schools. See, Meyer vy.
Nebraska, 262 U.S. 390 (1923). To poverty stricken par-
ents, the alternative between the public school system
and private school system is illusory. The children of the
poor are, in actuality, not only compelled to attend school
for ten years, but must be dependent upon the public school
system for their education.'* The public school system,
therefore, has enormous influence upon the personal devel-
ment and the minds of children.
12The compulsory character of education is not unlike the com-
pulsory character of criminal process. Although the individual’s
interest in freedom is unique from a larger perspective, education may
have far greater social significance upon liberty than a free transcript
or court appointed lawyer. Education, in addition, affects a vastly
greater number of persons than the criminal law. Education also has
an inverse relation on the rate of crime.
13See Coons, Clune and Sugarman, Educational Opportunity: A
Workable Constitutional Test for State Financial Structures, 57 Cal.
L. Rev. 305 (1969).
14In this context, it has been suggested that “a child of the poor
assigned willy-nilly to an inferior school takes on the complexion of
prisoner, complete with a minimum sentence of twelve years.” Coons,
Clune and Sugarman, supra, 57 Cal. L. Rev. at 388.
6 :
entrusted to it.'5 The methods and curricula are not chosen
by the parent but by the State:
“*{T Jhe influence of the school is not confined to
how well it can teach the disadvantaged child; it
also has a significant role to play in shaping the
student’s emotional and psychological make-up.”
Hobson v. Hansen, 269 F. Supp. 401, 483 [D.D.C.
1967].
The importance of education was recognized by the Court
below when it characterized it as ‘‘an area of fundamental
importance.” (A-72). Other courts, both federal and state,
have also considered education as an area of fundamental
importance.!®
Textbooks are the heart of the public school system. In
New York State, as in most other public school systems,
textbooks are at the core of the curricula!” and are essen-
tial, critical and an indispensable part of the teaching process.
“Books are the most essential tool of education since
they contain the resources of knowledge which the educa-
tional process is designed to exploit.”” Board of Education
v. Allen, supra, 392 U.S. at 252 [Dissenting opinion, Jus-
1SThe classroom is peculiarly the “market place of ideas”. Keyi-
shan v. Board of Regents, 385 U.S. 589 (1967).
16In Serrano v. Priest, 96 Cal. R’ptr. 601; 487 P. 2d 1241, 1244
(1971) in a suit challenging the inequality of the local property tax
scheme for financing public education, the Court, in declaring the law
unconstitutional, stated that: “the right to an education in our pub-
lic schools is a fundamental interest which cannot be conditioned on
wealth. ...” The Serrano rationale was followed by the New Jersey
Superior Court in Robinson y. Cahill, 118 NJ. Super. 223, 287 A. 2d
187 (1972). Several recent federal courts have struck down state
methods of financing public education as unconstitutional, applying
a more exacting standard because of the fundamental interest in-
volved. See, e.g., Van Dusartz v. Hatfield, 334 F. Supp. 870 [D. Minn.
1971], and Rodriguez v. San Antonio Independent School District
337 F. Supp. 280 [W.D. Texas, 1971].
17New York Education Law § 701 (2) defines textbooks as a book
which a pupil is required to use as a text for a semester or more in
a particular class in the school he legally attends.
oe
tice Black]. “No educational program can exist without
books. . . A curriculum cannot survive without books.’’!®
Judge Kaufman, dissenting in the Court below, stated:
“Curricula not keyed to textbooks are advocated by some
educators and have been put into practice in some pri-
vate and public schools. But defendants do not dispute
that New York’s own public education system continues
to rely extensively on the traditional method of teaching
from texts. Children without the benefit of these texts,
one must imagine and as affidavits before us aver, are
) afforded a markedly inferior education during their early
years of schooling than are their non-indigent peers.” (A-79).
Textbooks in the primary grades serve as the major
structure for the entire curriculum. Children in the elemen-
tary school grades are learning to read, often they are unable
to leave their textbooks and utilize outside resources and
‘teferences found in libraries. In the first three grades,
learning to read is perhaps the major occupation of the
pupil. Beginning in about grade 4, reading becomes a tool
for learning. Consequently, pupils who have not sufficiently
mastered reading skills have ever-increasing difficulties with
textbooks in different subject areas.'? The early years of
education are particularly critical to the learning process.
Benjamin S. Bloom, Professor of Education at the Univer-
sity of Chicago, concluded that 30 percent of the develop-
ment of general intelligence takes place between ages 4 and
8, and that 50 percent of vocabulary development at grade
12 [age 18] has been reached by the end of grade 3.”°
18Affidavit of Dr. Gerald G. Glass, Professor of Education and
Director of the Reading and Study Center and Graduate Program in
Reading at Adelphi University, New York, September 24, 1970, pre-
sented by plaintiffs in the District Court. (A-31).
19James B. Conant, Slums and Suburbs [McGraw-Hill Book Com-
pay, Inc. 1961], p. 57.
20Benjamin S. Bloom, Stability and Change in Human Character-
istics [John Wiley and Sons, Inc. 1964] pp. 88-89, 127. Bloom’s study
concludes that there is plasticity in the intelligence of children and
that marked change in the environment of early years can produce
greater changes than equally marked changes in later years.
aad
Children from the lower socio-economic class have demon-
strated a greater need for reading skills. Within a few
years, the child from the deprived background is retarded
in basic reading skills. The reading retardation in early
years prevents the pupil in later years from moving up
into higher paying positions. Thus, reading disability tends
to perpetuate the poor child’s social class. Reading is the
basic learning skill from which almost all academic learn-
ing is founded and is an indispensable requirement for
upward movement through social classes.?4_ Poor chil-
dren deprived of textbooks in public schools are fur-
ther handicapped by the lack of educational stimulus
in the home. The handicap includes the lack of books
and emphasis on reading in the home.”? While the State
has not controverted plaintiffs’ contention that textbooks
are a critical and an inseparable part of education, the local
school board in the District Court admitted that, “‘text-
books . . . are essential to a quality educational program
and a necessary and fundamentally basic tool in the edu-
cation of youngsters.” (A-40).
2. Education is Preservative of All Other Fundamental
Basic Civil and Political Rights
Education is further recognized as important, not only
in its own right, but because it is preservative of all other
fundamental rights. Education provides the tools necessary
to exercise every right considered vital to the maintenance
of democratic institutions. While the right of suffrage is
guaranteed by the Constitution, this Court has held that a
21Benjamin Bloom, Allison Davis, Robert Hess - Compensatory
Education for Cultural Deprivation (Holt, Rinehart & Winston, Inc.
1965].
' 22Patricia Cayo Sexton, Education and Income [The Viking Press,
Inc. 1961]. The failure to develop reading skills locks the poor child
into his socio-economic class and effectively ends the American Dream.
The incidence of school dropout is three times higher among poor
children; See, too, Michael Harrington, The Other America, pp. 182-
183. (1966)
—— 19
State may require literacy as a prerequisite to voting.?’ In
Lassiter v. Northampton County Board of Elections, 360
U.S. 45, 52 (1959), this Court stated:
“Literacy and intelligence are obviously not synony-
mous. Illiterate people may be intelligent voters.
Yet in our society where newspapers, periodicals,
books, and other printed matter canvass and debate
campaign issues, a State might conclude that only
those who are literate should exercise the franchise.
[citation omitted]. It was said last century in Mass-
achusetts that a literacy test was designed to insure
an independent and intelligent exercise of the right
of suffrage.”
“({E]ducation underlies the whole substance of political
process and is antecedent to voting in the orders of both
time and cause. All political behavior inevitably must reflect
the presence or absence and the quality of education. A
man’s understanding of public issues is a function of those
communications which are intelligible to him.”?* Education
is essential for the enjoyment of the following rights which
this Court has already characterized as fundamental: voting
[Harper v. Virginia State Board of Elections, 383 U.S. 663);
free speech [Lovell v. City of Griffin, 303 U.S. 444] ; associ-
ation [VAACP v. Alabama, 357 U.S. 449]; marriage [Loving
v. Virginia, 388 U.S. 1]; travel [Shapiro v. Thompson, 394
U.S. 618]; divorce [Boddie v. Connecticut, 401 U.S. 371];
privacy [Griswold v. Connecticut, 381 U.S. 479].
Education bears directly on the ability of the individual
to exercise all of the foregoing rights and the ability to par-
ticipate meaningfully in the life of the community. As Judge
Kaufman, dissenting, correctly observed:
_ “The ideal of education in our society is to free men
and women to pursue their own lives more fully.
Economic and social mobility, cultural richness
23In New York State eligibility to vote is dependent upon ability
to read and write English. N.Y. Election Law §150.
24Coons, Clune and Sugarman, supra, 57 Cal. L.Rev. 305, 368.
and diversity, the inheritance of arts, skills, thoughts
and values, the strong and flexible operation of
democratic political processes, the growth and
function of private institutions and associations,
the habits, structures, virtues and idiosy ncracies
that make our society unique and coherent take
root in formal and informal education.” (A-77).
3. Those Subject to the Deprivation Created by the
Statutory Scheme Comprise a Politically Impotent Class
Requiring this Court's Special Protection
Legislation with respect to public education, like that
dealing with welfare, deals with a critical aspect of the
personal lives of citizens. Its importance is magnified by
the defenseless and disadvantaged state of the class of citi-
zen involved, poor children, who are less able than others
to enforce their rights. As this Court has recognized:
“Prejudice against discrete and insular minorities
may be a special condition, which tends seriously
to curtail the operation of those political processes
ordinarily to be relied upon to protect minorities,
and which may call for a correspondingly more
searching judicial inquiry.” United States v. Carolene
Products, 304 U.S. 144, 153, fn. 4 (1938).?5
A class comprising children of parents too poor to pay
textbook rental fees which range from $6.00 - $58.50
per household, comprising the poorest of the poor, pub-
lic assistance recipients, clearly qualifies as such a discrete
and insular minority.
“More than any other segment of society, the very
lowest economic stratum is socially isolated. The
poor man not only fails to comprehend society or
his community, he is out of touch with it. He
reads fewer newspapers, hears fewer news programs,
joins fewer organizations, and‘knows less of the
25in Graham v. Richardson, 403 U.S. 365, 372 (1971), the Court
cited aliens as a prime example of a discrete and insular minority for
whom heightened judicial solicitude is appropriate.
Se we
current life of either the community or the larger
world than more prosperous, better educated people
do.” U.S. Dept. of Health, Education and Welfare,
Welfare Administration, Division of Research, Low-
Income Life Styles (1968) pp. 4-5.
As Michael Harrington concluded in his classic study, The
Other America, (1966) p. 13,?® “The poor are politically
invisible."’ Within the class of the poor the welfare poor
are, if anything, even more isolated from the social and
political life of the large community than are the poor
as a whole:
“[T]here are important differences between the
very poor who manage to maintain themselves
without public assistance and those who do not have
the resources to achieve even a minimum level of
economic independence. For example, negative
public attitudes towards mothers who are depend-
ent on AFDC tend to transfer to the mothers and
their children, with an associated sense of failure,
strong self-disparagement and hopelessness.” U.S.
Dept. of Health, Education and Welfare, Welfare
Administration, Division of Research, Growing up
Poor, (1966) p. 7.
And the most powerless of the poor, lacking even theo-
retical access to the political process through the fran-
chise, are the children whose education is here at issue:
“{O]f all groups among the poor it is children
who have been most neglected and most shabbily
treated by current social policies, despite the fact
26“[T]he poor and racial minorities . . . are not always assured a
full and fair hearing through the ordinary political processes, not so
much because of the chance of outright bias, but because of the
abiding danger that the power structure may incline to pay little heed
to even the deserving interests of a politically voiceless and invisible
minority. These considerations impel a closer judicial surveillance and
review of administrative judgments adversely affecting racial minori-
ties, and the poor, than would otherwise be necessary. Hobson y.
Hansen, 269 F. Supp. 401, 507-08 (D.D.C. 1967), aff'd. sub nom,
Smuck v. Hobson, 408 F. 2d 175 (D.C. Cir. 1969).
that of all population groups they are the most
vulnerable.” Burns, Childhood Poverty and the
Children’s Allowance, in Children’s Allowances
and the Economic Welfare of Children |Burns, ed.
1968] p. 3.
4. The Statutory Scheme Creates Classification of Children
Based on Conduct of Their Parents Over Which They
Have No Control
The effect of the challenged scheme is to penalize child-
ren, not because of any conduct of their own, but because
of their status as members of poor families. Classification
embodying discrimination based on personal characteristics
over which an individual has no control—such as race,?’
alienage,2* indigence,”° illegitimacy,”° —have been regarded
by this Court as inherently suspect and as calling iorth
“the most rigid scrutiny.” Korematsu v. United States,
323 US. 214, 216 (1944).
In the context of the statutory right to recover for the
wrongful death of a parent, this Court has concluded that
“it is invidious to discriminate against [illegitimate child-
ren} when no action, conduct or demeanor of theirs is
possibly relevant to the harm that was done the mother.”
Levy v. Louisiana, 391 U.S. 68. 72 (1968) [footnotes omitted].
The same rationale must apply to the statutory right to
receive a public education. It is invidious to discriminate
against certain innocent children “when no action, conduct
or demeanor of theirs is possibly relevant” to their educa-
tional needs.
Because this Court is here concerned with a fundamental
interest, high on our society’s hierarchy of values, and the
27e.g. McLaughlin v. Florida, 379 US. 184 (1964); Brown v. Board
of Education, 347 U.S. 483 (1954).
28e.g., Oyama v. California, 332 US. 633 (1948)
2%e.g. Harper v. Virginia Board of Elections, 383 U.S. 663 (1966).
30e.g. Levy v. Louisiana, 391 US. 68 (1968).
———— 23
children involved are being burdened for reasons of poverty
over which they have no control, and inasmuch as children
are politically the most impotent members of our society,
the educational disadvantage and unequal education that
the local school board admits result from the imposition
of textbook rental fees must be subjected to the most search-
ing judicial scrutiny possible. Such an inquiry, even in
light of the proffered justification for the classification,
must inevitably lead to the conclusion that appellants and
the class, they represent are being denied the equal protec-
tion of the laws.
C. The Equal Protection Clause Forbids Economic
Discrimination in the Enjoyment of Funda-
mental interests.
The Fourteenth Amendment to the United States Con-
stitution requires the States to extend equal protection of
the laws to all citizens. Tussman and tenBroek, discussing
the Equal Protection Clause, wrote of the Fourteenth Amend-
ment:
“We now know that the equal protection clause
was designed to impose upon the states a positive
duty to supply protection to all persons in the
enjoyment of their natural and inalienable rights—
especially, life, liberty and property—and to do so
equally. We also know that the equal protection
clause, the only clause of section one of the Four-
teenth Amendment that added new language to
the Constitution, was originally regarded as the
most basic and sweeping of the three... .°3!
The Equal Protection Clause has been applied to econ-
omic discrimination, and its effect has been to render the
“mere state of being without funds. . .a neutral fact—
constitutionally an irrelevance, like race, creed or color.”
Edwards v. California, 314 U.S. 160. 184-185 (1941)
(Jackson, J. concurring]. Thus, income and ability to pay
——
3! The Equal Protection of the Laws, 37 Cal. L.Rev. 341 (1949).
ai ihieeteeneiaiatamemaiil SL
24
appear to be joining race as a suspect criteria and when
serving as the basis for discrimination, render government
action vulnerable to attack on Fourteenth Amendment
grounds. Financial barriers may not be imposed by the
State to deny indigent citizens the equal protection of
fundamental rights.*
The starting point for consideration of invidious dis-
crimination against the poor, and the equal protection
clause, is Griffin v. Illinois, 351 U.S. 12 (1956). The ques-
tion before the Court was whether Illinois, consistent with
the Due Process Clause, could deny adequate appellate
review to the poor while granting the review to others.
The State had conceded that transcripts were necessary
for adequate appellate review of trial errors. The Court
found the classification on the basis of poverty discrim-
inatory and stated:
“It is true that a State is not required by the
Federal Constitution to provide . . . appellate
review at all. [Citations omitted]. But that is not
to say that a State that does grant appellate review
can do so in a way that discriminates against some
convicted defendants on account of their poverty.”
351 U.S. at 18.
Poverty bears no relationship to the goals of criminal
justice. The Court stated:
“There can be no equal justice where the kind of a
trial a man gets depends upon the amount of money
he has. Destitute defendants must be afforded as
adequate appellate review as defendants who have
money enough to buy transcripts.”*? 351 U.S. at 19.
32 Note, Discriminations Against the Poor and the Fourteenth
Amendment, 81 Harv. L.Rev. 435 (1967).
33The Court, having found that petitioners’ constitutional rights
were violated, refrained from dictating how. the state might satisfy
those rights and stated: “We do not hold, however, that Illinois must
purchase a stenographer’s transcripts in every case where a defendant
cannot buy it . . . We are confident that the state will provide cor-
rective rules to meet the problem which the case lays bare.” 351 US.
at 20.
25
The Griffin case was followed by a series of decisions
which both reaffirmed and amplified its basic principles. **
In Douglas v. California, 372 U.S. 353 (1963) this Court
considered the impact of poverty on the state guaranteed
appellate review of a criminal conviction. Under the chal-
lenged California law, those who could afford counsel had
received a full hearing automatically; those who could not
afford counsel had been provided free counsel only if,
after examination of the trial record, the appellate court
concluded that counsel would be of particular value to
the defendant. The Court found that the failure to provide
counsel resulted in an impermissible classification between
rich and poor, and stated:
‘
*.... [T]he rich man can require the Court to listen
to argument of counsel before deciding on the mer-
its, but a poor man cannot. There is lacking that
equality demanded by the Fourteenth Amendment.”
372 U.S. at 357-358.
There is a striking parallel between the pivotal facts in
Griffin and the case before the Court. In both cases, the
challenged statute offers all persons the right to receive
some benefit—right to appeal or the right to an education.
In both cases, the enjoyment of the benefit is conditioned
upon the payment of a fee. In Griffin, the State conceded
that trial transcripts were necessary for adequate appellate
review. Here, the State has not controverted appellants’
allegations that textbooks are indispensable to the education
of their children and the local school board has, in fact,
admitted that ‘textbooks are essential to a quality edu-
cational program and a necessary and fundamentally basic
tool in the education of youngsters.” (A-40).
34See, e.g. Eskridge v. Washington State Board of Prison T. & P.. 357
US. 214 (1958), [Griffin applied retroactively] ; Burns v. Ohio, 360
U.S. 252 (1959) filing fees for appeal; Smith v. Bennett, 365 U.S. 708
(1961) filing fees for habeas corpus; Lane v. Brown, 372 U.S. 477
(1963) free transcript required in coram nobis proceeding; Long v.
District Court of Iowa, 385 U.S. 192 (1966), free transcript required
for habeas corpus.
26
In Griffin, all convicted defendants had a right to appeal,
but the inability of indigent defendants to pay a fee
deprived them of the opportunity for adequate appellate
review. In New York all children in grades 1-6 have the
right to an education, but those too poor to pay the
textbook rental fees which are a prerequisite to the dis-
tribution of textbooks, are, in the words of the local
school board:
“[U] nder an educational disadvantage and denie(d) . . .
an educational opportunity equal to the children
of those families that can afford to pay a rental
charge for textbooks.” (A-41).
The Court’s observation in Griffin that “[i]n criminal
trials a State can no more discriminate on account of
poverty than on account of religion, race, or color,” supra,
351 U.S. at 17, applies with equal force to the fundamentally
important institution of public education. In both cases, indi-
gents are denied access to their rights solely because of
their inability to pay the fees. Just as no rational rela-
tionship existed in Griffin between the ability to pay a
fee and the guilt or innocence of the defendant, here too,
no rational relationship exists between a child’s need for
a public school education and the affluence of his parents.
The Court focused on the impact of fees upon ability
of the poor to exercise fundamental rights in Harper v.
Virginia State Board of Elections, 383 U.S. 663, 670
(1966). The Court, in declaring a $1.50 poll tax imposed
by the State as a prerequisite to voting unconstitutional,
stated:
“We have long been mindful that where funda-
mentalkrights and liberties are asserted under the
Equal Protection Clause, classifications which might
invade or restrain them must be closely scrutin-
ized and carefully confined. ,. [WJealth or fee
paying has, in our view, no relation to voting qual-
eee 27
ifications; the right to vote is too precious, too
fundamental to be burdened or conditioned.’*5
In ruling the economic discrimination of the poll tax
violative of the Equal Protection Clause, this Court focused
on the impact of the legislation on the right of the poor to
exercise their franchise. The Court recognized voting as
preservative of other basic civil and political rights. 383
U.S. at 667. The Court found that the economic discrimi-
nation kept poor people with an important stake in the
political process from the ballot. Here the rental fee keeps
poor children with an important stake in the system of
public education from receiving a quality education provided
to their more affluent classmates. Education is no less pre-
servative of basic civil and political rights than is the ballot.
Education and literacy often are the precondition to the exer-
cise of the ballot. See, Lassiter v. Northampton Election
Board, 360 U.S. 45 (1959).
The foregoing cases cannot be distinguished on the basis
that they relate only to basic federal constitutional rights
as was argued by the State in the Court below. In Harper,
the Court did not decide whether the right to vote in a
state election is conferred by the federal constitution;
instead, the holding rests upon the principle:
‘““... once the franchise is granted to the electorate
lines may not be drawn which are inconsistent with
the Equal Protection Amendment.” 383 U.S. at 665.
Neither Griffin nor Douglas involve a basic federal consti-
tutional right; in each case the state has conferred a right to
appellate review. The holdings stand for the principle that
once a state has granted a right or benefit the Equal Pro-
Sin McDonald v. Board of Elections Comm. 394 U.S. 802 (1969),
while the Court rejected a constitutional challenge to the absentee
voting statute brought by inmates of a county jail, it reaffirmed the
principle of Harper and stated: “‘[A] careful examination on our part
is especially warranted where lines are drawn on the basis of wealth
or race.” 394 U.S. at 807.
rs:
tection Clause protects defendants from invidious discrimi-
nation on account of their poverty.
As Judge Kaufman, in the Court below, observed, “It
will not do to say, as does the majority, that in this case
‘public funds are distributed equally’.”” (A-81). In Griffin,
Douglas, and Harper, the statute found constitutionally im-
permissible did not expressly discriminate against indigents
as a Class. Instead, in each case payment of a fee was the
prerequisite to securing a transcript, a lawyer and a ballot.
The Court in each case held the impact of the requirement
was no different than if the poor had been expressly
excluded.
Here, the statutory scheme for providing textbooks,
although non-discriminatory on its face, is grossly discrimi-
natory in its operation. In Williams y. Illinois, 399 US.
235 (1970), the Court held that a State may not constitu-
tionally imprison beyond the maximum duration fixed by
statute a defendant who is financially unable to pay a
fine.*° The Court considered, and rejected, the State’s argu- ]
ment that the law was non-discriminatory on its face, found
that the statute worked an invidious discrimination, and
stated:
“On its face the statute extends to all defendants an
apparently equal opportunity for limiting confine-
ment to the statutory maximum simply by satisfy-
ing a money judgment. In fact, this is an illusory
choice for Williams or any indigent who by defini-
tion, is without funds.” 399 U.S. at 242.
Here, as in Williams, the statute although non-discrimina-
tory on its face, is in operation discriminatory. ,While the
statute extends to all children an apparently equal oppor-
tunity to obtain textbooks by payment of rental fees, such
36In Tate v. Short, 401 U.S. 395, (1971), the Court held it was a
denial of equal protection to limit punishment of a crime to those
who are able to pay it but to convert the fine to imprisonment for
those who are unable to pay it.
Ee 29
choice is an illusory one for indigent children who are with-
out funds.
Recently, in Mayer v. Chicago, 404 U.S. 189 (1971) this
Court declined to re-examine Griffin and upheld the right of
indigents to trial transcript in non-felony cases where pun-
ishment was fine rather than confinement. Contentions of
the City that Griffin and its progeny are confined to cases
where the indigent is subject to confinement, and that the
interest of the indigent was outweighed by the State’s fiscal
and other interests in not burdening its appellate process,
was expressly rejected by the Court:
“Griffin does not represent a balance between the
needs of the accused and the interests of society;
its principle is a flat prohibition against pricing indi-
gent defendants out of as effective an appeal as
would be available to others able to pay their own
”
way.
The opportunity of education “where the state has
undertaken to provide it, is a right which must be made
available to all on equal terms.” Brown v. Board of Educa-
tion, supra, 347 U.S. at 493. New York State, by discriminat-
ing against poor children in grades 1-6 solely on account of
their poverty, has breached that guarantee of ‘‘equal educa-
tional opportunity without the vestige of invidious discrim-
ination.”
D. The Proffered State Interests Fail to Justify the
Denials of Equal Educational Opportunity.
To fulfill the constitutional command that “‘no state...
shall deny to any person within its jurisdiction the equal
protection of the laws,” a state-imposed classification, at
the very minimum, must be rationally related to the attain-
ment of a legitimate governmental objective. Gulf, Colorado
and Santa Fe Ry. v. Ellis, 165 U.S. 150, 155 (1897). How-
ever, laws which are based upon suspect criteria such as
race or wealth, or burden the exercise or enjoyment of a
fundamental right or interest, are unconstitutional unless
"30
the State can demonstrate that such laws are ‘“‘necessary to
promote a compelling governmental interest.”” Shapiro y.
Thompson, supra, 394 U.S. at 634. [Emphasis added];
Kramer v. Union Free School District, supra, 395 U.S. at
627. As this Court recognized in Dunn v. Blumstein,
92 S. Ct. 995, 1003 (1972):
“*[L]egal ‘tests’ do not have the precision of mathe-
matical formulas. The key words [necessary to pro-
mote a compelling governmental interest] emphasize
a matter of degree: that a heavy burden of justifica-
tion is on the State, and that the statute will be
closely scrutinized in light of its asserted purposes.”
The District Court dismissed the complaint without benefit
of an evidentiary hearing, or answer and affidavits by the
State and concluded that the legislature had three objectives
in enacting the statutory scheme: (a) a legitimate interest in
conserving fiscal resources; (b) a legitimate interest in pro-
viding textbooks to as many children as possible, and (c) a
desire to foster study in certain subjects. (A-54-55). The
District Court opinion conspicuously avoids any discussion
of what Judge Kaufman, in his dissenting opinion in the
Court below, characterized as the essence of plaintiffs’ case,
“discrimination between poor children in elementary
schools without textbooks and their more affluent class-
mates who can afford texts.” (A-74). The majority in the
Court below approved the District Court’s application of
the compelling interest standard and concluded that “‘the
legislative scheme is reasonable; it is buttressed by compel-
ling state justifications and is not tainted with the slightest
hint of invidious discrimination.” (A-67).
It is not sufficient to merely show that the statute which
burdens a fundamental interest furthers a substantial state
interest, for a state may not choose means which unneces-
sarily burden a fundamental right. Statutes affecting funda-
37See, Note, Developments in the Law: Equal Protection, 82
Harv. L. Rev. 1065 (1969).
——— 31
mental interests must be drawn with “precision”, NAACP
v. Button, 371 U.S. 419, 438 (1963), and must be “‘tailored”’
to serve their legitimate objectives. Shapiro v. Thompson,
supra, 394 U.S. at 631. The State has failed to show that
this classification which burdens the right of poor children
is more than just one of several reasonable ways of achiev-
ing its goals.
“(I]f there are other, reasonable ways to achieve those
goals with a lesser burden on constitutionally protected
activity, a State may not choose the way of greater inter-
ference.” Dunn v. Blumstein, supra, 92 S. Ct. at 1003.
Thus, even though the governmental purpose be legitimate
and substantial, that purpose cannot be pursued by means
that burden fundamental interests when the end can be
achieved through less onerous alternatives.** The review for
less restrictive alternatives to achieve a valid governmental
objective must be a searching one. Shapiro v. Thompson,
supra, 394 U.S. at 633-8; Kramer v. Union Free School Dis-
trict, supra, 395 U.S. at 632.
In Shelton v. Tucker, 364 U.S. 479, 488 (1960), this
Court said:
“The breadth of legislative abridgement must be
viewed in light of less drastic means for achieving
the same basic purpose.”
Appellants will now turn to consideration seriatim of the
State’s justification for denying textbooks to indigent child-
ren in grades 1-6.
38 The principle of the least onerous alternative has been applied
to public education. See, e.g., Blocker v. Board of Education, 226
F. Supp. 208, 223, 229 [E.D.N.Y. 1964].
—_—_——_—_——
1. The desire to provide textbooks to as many
children as possible.
If, indeed, the statutory scheme is intended to enable as
many children as possible to have textbooks, the District
Court erroneously failed to consider other less onerous
alternatives for achieving this legitimate goal.*? Without
additional expenditures, New York State could avoid the
invidious discrimination by providing free textbooks in
grades 1-12 to only those children in financial need. By
providing free textbooks to only those children who are
unable to pay the textbook rental fees, the articulated State
goal of assuring that as many children as possible have text-
books will be realized, while preserving the limited resources
available.
Another less restrictive alternative which the District
Court failed to consider, and which was pointed out by
plaintiffs in the Court of Appeals, was that the New York
Education Law § 2023 could be amended to include text-
books for children in grades 1-6 in the definition of “ordin-
ary and contingent expenses” so that a local school district
could nevertheless levy a tax for textbooks even in the
absence of voter approval.
Appellants contend that a close scrutiny of the proffered
reasons for the classification fail to satisfy either the “tradi-
tional” equal protection standard or the “more stringent
standard” applied where fundamental interests, such as edu-
cation, are burdened.
3°The District Court, ina less than searching analysis of alterna-
tives, concluded that there were only four choices available to the
Legislature, 1) make no contribution for purchase of textbooks for
any children, 2) contribute to purchase of textbooks to be loaned
free to all children in grades 1-12, 3) contribute to purchase of text-
books to be loaned free to all children im grades 1-12, but limit
amount to be spent, 4) contribute to the purchase of textbooks
to be loaned free to some children and amend §703 to provide for the
others. (A-54).
ae
2. The Denial of Textbooks to Indigent Children
in Grades 1-6 Conserves Fiscal Resources.
This Court has recognized that in cases where a funda-
mental interest is burdened by the challenged classification,
it is not sufficient to merely ask whether the policy
adopted is “rational”, for it is always rational to practice
public parsimony. Attempts by states to justify the con-
ditioning of fundamental rights or the enjoyment of funda-
mental interests on the basis of their need to conserve
resources has been rejected by this Court. In Shapiro v.
Thompson, supra, 394 U.S. at 633, this Court in dictum,
stated:
“*( A] State has a valid interest in preserving the fiscal
integrity of its programs. It may legitimately
attempt to limit its expenditures, whether for pub-
lic assistance, public education, or any other pro-
gram. But a State may not accomplish such a
purpose by invidious distinctions between classes of
its citizens. It could not, for example, reduce
expenditures for education by barring indigent
children from its schools. ... The saving of . . . costs
cannot justify an otherwise invidious discrimina-
tion:”
This Court rejected the fiscal resource argument proffered
by Arizona in a recent equal protection case involving a
denial of welfare benefits to aliens. See, Graham y.
Richardson, supra, 403 U.S. at 374.
In Bullock v. Carter, 92 S. Ct. 849, 858-859 (1972), the
Court rejected the State’s argument that filing fees in pri-
mary elections were fiscally necessary:
“Without making light of the State’s interest in hus-
banding its revenues, we fail to see such an element
of necessity in the State’s present means of financ-
ing primaries as to justify the resulting incursion on
the prerogative of voters.”
The State may not, because of its desire to conserve fis-
cal resources, or some more remote administrative benefit,
burden a citizen’s fundamental interests. Carrington v. Rash,
380 U.S. 89, 96 (1965). So too, the State may not deprive
indigent children of the tools essential for their education
by consideration of minimum financial expediency.
The District Court, in upholding the limited fiscal
resources justification, stated:
“The Legislature may justify its failure to [provide
textbooks free of charge to all children in grades
1-12] on the basis of its legitimate interest in con-
serving the State’s fiscal resources, providing that
choice does not result in any invidious discrimina-
tion.... [S]ince this Court cannot compel the
State to expend any funds, much less additional
funds for textbooks, this Court cannot fault the
Legislature’s failure to choose the second alterna-
tive.” (A-54)
The District Court improperly proscribed its analysis by
excluding any alternative to the invidious classification
which required the expenditure of funds. In Griffin and its
progeny, however, this Court required the states to provide
services wrongfully denied citizens solely because of their
poverty. Implementation of these decisions necessarily
required increased expenditures. “IN]lew cases expose
old infirmities which apathy or absence of challenge have
permitted to stand. But the Constitutional imperatives of
the Equal Protection Clause must have priority over the
comfortable convenience of status quo.” Williams v. Illinois,
supra, 399 U.S. at 245.
Maximizing the impact of limited funds so that as many
children as possible receive textbooks in New York State is
a formidable sounding state interest. Such interest is a
legitimate and compelling government goal. However, it is
impossible to see how the challenged scheme for distribut-
ing textbooks is necessary to fulfill the pertinent State
objective. The desire to provide books to as many children
as possible hardly justifies denying textbooks to indigent
children in grades 1-6 while making‘ them available to non-
poor children in the same grades, and by providing text-
books to all children in grades 7-12 irrespective of their
financial need. To make textbooks available to as many
children as possible, New York State simply has to pro-
2 OL OEE BORO UT oD ey
a 0 <1 2a Rarny tapiemye mrgansnenees aM
35
vide free textbooks to those children who are unable to
pay the required fees. Objective criteria to establish need
can easily be formulated and implemented without impos-
ing an excessive administrative burden.
3. The Denial of Textbooks to Indigent Children in
Grades 1-6 Fosters the Study of Certain Subjects
in Grades 7-12.
“In construing legislation, it is fundamental that [the
Court] must not be guided by a single sentence or member
of a sentence but [should] look to the whole iaw, and its
objects or policy.” Richards v. United States, 369 U.S. 1,
11 (1961). Both Courts below upheld the denial of text-
books to indigent children in grades 1-6 by finding the
compelling “interest standard” satisfied by reason of the
_Legislature’s policy statement that textbooks were provided
free of charge to pupils in grades 7-12 to increase the pro-
ficiency of students in science, mathematics and foreign
languages. (A-69).
A careful reading of the policy statement which accom-
panied the passage of § 701 by the New York Legislature
does not support the interpretation given to it by the lower
courts. The Legislature, in its “statement of policy” to the
Act [Laws of 1965, c. 320 §1] speaks of aiding ‘“‘non-
sectarian subjects” and gives as examples, “‘science, mathe-
matics (and) foreign languages.” The policy statement was
clearly intended to limit public aid to parochial schools to
non-sectarian textbooks and thereby avoid a conflict witk
the First Amendment.*° The desire of the Legislature as
reflected in its policy statement “for more adequate educa-
tional opportunities and increased efforts to educate more
of the talent of our nation. . .” bears no rational relation-
ship to the denial of textbooks to poor children in grades
1-6.
§See, dissenting opinion of Justice Douglas in Board of Education
v. Allen, supra, 392 U.S. at 255-256, for a full discussion of the legis-
lative policy statement.
The State has not controverted plaintiffs’ proof that text-
books are more critical to education in grades 1-6 than 7-12.
The evidence presented to the District Court establishes
that textbooks provide the entire curriculum for children
in grades 1-6 who are still “learning to read” and have not
developed the ability of “reading to learn” which high
school students are capable of doing. Students deprived of
textbooks in grades 1-6 will not have the basic skills neces-
sary to become proficient in elementary school, much less
in high school.*!
There is no rational relationship between the State's
objective of fostering the study of certain subjects in secon-
dary school and maximizing the impact of contributions for
textbooks, with the burdening of the right of indigent ele-
mentary school children to acquire knowledge. In Meyer v.
State of Nebraska, 262 U.S. 390, 403, the Court, in dicta,
observed: “It is well known that proficiency in a foreign
language seldom comes to one not instructed in a foreign
language at an early age....” Children deprived of text-
books in the years of greatest development of intelligence :
will seldom become proficient in studies in their secondary
grades.
The importance of textbooks to children in their forma-
tive years of schooling cannot be overemphasized, for the
deprivation of textbooks in elementary grades will perma-
nently retard reading skills; without these basic skills,
enriched curriculum on a secondary level will be of dubious
value. Textbooks distributed to children at grade 7 who
have been deprived of these basic tools in elementary
school and the needed foundation to learning is useless, for
they have already been programmed by the state for fail-
ure throughout their school career“ The challenged statute
“'See, Affidavit of Dr. Gerald G. Glass, Professor of Education at
Adelphi University, Garden City, New York, filed in the District
Court. (A-31). ”
42 Benjamin S. Bloom, Stability and Change in Human Character-
istics [John Wiley and Sons, Inc. 1964] p. 127.
_ — 37
does not accomplish the articulated State purpose with suf-
ficient precision. Kramer v. Union Free School District,
supra, 395 U.S. at 632. The classification is destructive of the
State goal of providing ““more adequate educational oppor-
tunity’’ and the denial of textbooks to indigent children
does not further the State’s constitutional mandate to pro-
vide for the maintenance and support of a system of free
common schools “wherein all the children of [the] State
may be educated.” New York State Constitution, Article
XI, §1.
POINT Hl
INDIGENT CHILDREN DENIED TEXTBOOKS BY THE
STATUTORY SCHEME ARE DEPRIVED OF THEIR
RIGHT TO ACQUIRE KNOWLEDGE WITHOUT DUE
PROCESS OF LAW.
The Due Process Clause of the Fourteenth Amendment
protects all citizens, students included, against the State and
all its creatures—boards of education not excepted.
Barnette v. West Virginia Board of Education, 319 U\S.
624, 637 (1943); Tinker v. DesMoines Independent Com-
munity School District, 393 U.S. 503, 511 (1969).
This Court has written that the Fourteenth Amendment
establishes a sphere of personal liberty for every individual
and protects those personal liberties so rooted in the tradi-
tion and conscience of our people that they rank as funda-
mental. Snyder v. Commonwealth of Massachusetts, 291
US. 97, 105 (1934). The sphere of fundamental rights
protected by the “liberty” assurance includes, but is not
restricted to, the specific terms of the Bill of Rights.*?
Freedom of speech and of the press are prime examples of
those personal rights and liberties protected by the Due
Process Clause.
*3See, e.g., Griswold v. State of Connecticut, 381 U.S. 479, 484
(1965), where the Court held the right of marital privacy to be within
.the protective penumbra of the specific guarantees of the Bill of
Rights and therefore protected by the Due Process Clause.
—38
The language and history of the Ninth Amendment sup-
ports this Court’s conclusion in Griswold v. Connecticut,
supra, 381 U.S. at 488, that there are additional funda-
mental rights which exist alongside those expressly men-
tioned in the first eight constitutional amendments.** See,
Redlich, “Are there ‘Certain Rights . .. Retained by the
People’?”’, 37 N.Y.U.L. Rev. 787, 804-812 (1962).
Due Process has never been defined with any precision,
but through the decisions of this Court “it has represented
the balance which our Nation, built upon postulates of
respect for the liberty of the individual has struck between
that liberty and the demands of organized society.” The
liberty guaranteed by the Due Process Clause “‘is a rational
continuum which, broadly speaking, includes a freedom
from all substantial arbitrary impositions and purposeless
restraints, .. . and which also recognizes, what a reasonable
and sensitive judgment must, that certain interests require
particularly careful scrutiny of the state needs asserted to
justify their abridgment.” Poe v. Uliman, 367 U.S. 497,
542, 543 (1961) (dissenting opinion, Harlan, J.); see, Skinner
v. State of Oklahoma, 316 U.S. 535 (1942).
Education is valued as a major determinant of an individ-
ual’s chances for economic and social success in our society.
The respect which the American people hold for education
is deeprooted and the acquisition of knowledge has long
been regarded as a matter of fundamental importance.**
The significance of education was perhaps best expressed
in Brown v. Board of Education, supra, 347 US. at 493,
which stated, “In these days it is doubtful if any child
441n ent v. Dulles, 357 U.S. 116, 125 (1958), and Shapiro v.
Thomp:.n, 394 U.S. 618, 629-631 (1969), the right to travel
was held to be a fundamental right protected by the “liberty” assur-
ance of the Due Process Clause.
45in the Northwest Ordinance of 1787, Congress declared: “‘Reli-
gion, morality and knowledge being necessary to good government
and the happiness of mankind, schools and the means of education
shall forever be encouraged.”
_ — 39
may reasonably be expected to succeed in life if he is
denied the opportunity of an education.’ Public education
supports each and every other value of our society.
In Pierce v. Society of Sisters, 268 U.S. 510, 534-535
(1925), the Court struck down a law which compelled
attendance of all children in public schools, holding that it
conflicted with the “liberty of parents and guardians to
direct the upbringing and education of children under their
control.”
In Meyer v. State of Nebraska, 262 U.S. 390 (1923), the -
Court held that a law which prohibited the teaching of a
foreign language to children in elementary schools deprived
the children of their right to acquire knowledge without
due process; the Court, holding that the State may not,
consistent with the Fourteenth Amendment, contract the
spectrum of available knowledge, stated:
“While this Court has not attempted to define with
exactness the liberty thus guaranteed . . . without
doubt, it denotes not merely. freedom from bodily
restraint but also the right of the individual... to
acquire useful knowledge . . . and generally to enjoy
those privileges long recognized at common law as
essential to the orderly pursuit of happiness by free
men.” 262 U.S. at 399.
While recognizing the interest of the State in improving the
quality of its citizens, the Court concluded that it may not
do so by burdening the pupil’s basic right to the acquisition
of knowledge.
In this case, just as in Meyer, the State has burdened the
right of indigent children to acquire knowledge without any
rational, much less compelling, governmental objective. The
deprivation in Meyer involved the right to acquire know-
ledge in a single subject, whereas in this case, indigent
children in grades 1-6 who are denied textbooks are in
actuality deprived of the curriculum for every subject.
In Boddie v. Connecticut, 401 U.S. 371 (1971), the
Court held that indigents barred from obtaining divorces
40 —
because they were unable to pay court costs and fees aver-
aging $60 were deprived of due process of law. The Court
considered the interests affected—the basic position of the
marriage relationship in our society’s hierarchy of values
and the State’s exclusive control of the machinery for the
dissolution of the marriage relationship, and concluded:
“[A] State may not, consistent with the obligations
imposed on it by the Due Process Clause of the
Fourteenth Amendment, pre-empt the right to dis-
solve the legal relationship without affording all citi-
zens access to the means it has prescribed for doing
so.”’*6 401 U.S. at 383.
The Boddie decision is grounded upon the importance of
the marriage relationship on the nation’s traditional scale of
values and the State’s monopolization of the means for
legally dissolving that relationship. The Boddie rationale is
applicable to this case. Here the interest of indigent child-
ren to acquire knowledge and obtain an adequate public
education is no less important to our society than is dissol-
ution of marriage relationships. In Boddie, the State was in
exclusive control of the machinery to dissolve the relation-
ship. The same can be said for public education. New
York State has arrogated to itself responsibility for admin-
istering and enforcing a formal system of education. It
does so by compelling attendance of all children between the
ages of 6-16 for required instruction. It must be assumed
that New York considers textbooks to be of positive value
to the education of children in grades 1-6 since their use is
required by state law.*” The local school board has admit-
ted that “‘textbooks ...are essential to a quality educa-
tional program and a necessary and basic tool in the educa-
tion of youngsters.”” New York is in the anomalous position
of withholding only from poor children what it acknow-
46In separate concurring opinions, Justiaes Douglas and Brennan
concluded that the case should have been decided on the basis of the
Equal Protection Clause and the line of cases marked by Griffin v.
Illinois, 351 U.S. 12 (1956).
47See, § 701(2) of the New York Education Law.
_ — 41
[AP Pm a a mo
ledges to be essential for the education of all children.
Education for only the wealthy is an elitest concept alien
to our democratic heritage and contrary to the tradition of
public education.
A statute may be constitutionally invalid as applied when
it operates to deprive an individual of a protected right
although its general validity as a measure enacted in the
legitimate exercise of a police power is beyond question.
Boddie v. Connecticut, supra, 401 U.S. at 379. The Boddie
Court, onthe basis of the Griffin rationale, considered and
rejected the State’s argument that the costs and fees were
justified as a mechanism of resource allocation or cost
recoupment. The fiscal resources argument is not sufficient
to override the right of the indigents to full access to inter-
ests of fundamental importance.
‘In Brown v. Board of Education, supra, 347 U.S. at 494,
the Court found that the denial of equal educational oppor-
tunity on the basis of race “‘generates a feeling of inferior-
ity as to their status in the community that may affect
their hearts and minds in a way unlikely ever to be undone.”
The majority in the Court below recognized that the chal-
lenged legislative scheme “‘engenders a widespread feeling of
inferiority and unfitness in poor children and is psycholog-
ically, emotionally and educationally disastrous to their
wellbeing.” (A-62). Requirements of due process prohibit
state stigmatization and imposition of badges of disgrace
upon innocent:children. Cf Wisconsin v. Constantineau,
400 U.S. 433, 437 (1971).
In Bolling v. Sharpe, 347 U.S. 497, 499 (1954) the
Court, in holding that segregation in the public schools
deprived Negro children of due process of law, considered
the psychological burden and feeling of inferiority gener-
ated by segregated education and concluded that the restric-
tion on the liberty of children [to equality education] was
not reasonably related to any valid governmental objective.
The Court stated:
ee
“[T]he concepts of equal protection and due process,
both stemming from our American ideal of fairness,
are not mutually exclusive. The ‘equal protection
of the laws’ is a more explicit safeguard of prohi-
bited unfairness than ‘due process of law,’ and,
therefore, we do not imply that the two are always
interchangeable phrases. But, as this Court has
recognized, discrimination may be so unjustifiable
as to be violative of due process.”
In sum, the legislative scheme creates two classes of child-
ren, not physically separate as in Brown and Bolling, but
certainly unequal. New York, on the basis of wealth-
which like race is a traditionally suspect criteria—has dis-
criminated against the right of appellants’ children to
acquire knowledge and receive public education equal to
. those of their classmates wealthy enough to obtain textbooks
from the State. Here the rich receive the full benefits of
a public school education, while the poor are denied equal-
ity of educational opportunity. New York has failed to
justify this psychological stigmatization and educational
handicapping of indigent school children.**
48in James v. Valtierra, 402 U.S. 137, 145 (1971), Justice Marshal,
in a dissenting Opinion joined by Justices Brennan and Blackmun,
wrote: “It is far too late in the day to,contend that the Fourteenth
Amendment prohibits only racial discrimination; and to me, singling
out the poor to bear a burden not placed on any other class of citi-
zens tramples the values that the Fourteenth Amendment was
designed to protect.”
ee Um
POINT Ill
THE COURT BELOW ERRONEOUSLY FOUND THE
CONSTITUTIONAL QUESTION INSUBSTANTIAL BY
APPLYING AN UNDULY RESTRICTIVE STANDARD IN
CONFLICT WITH THE GUIDELINES ESTABLISHED BY
THIS COURT.
The Court below affirmed the District Court’s denial of
appellants’ application for the convening of a three judge
court pursuant to the requirements of 28 U.S.C. $2281.
The District Court’s decision cited no precedent for its
refusal to convene a three judge court to hear appellants’
clam. One surmises that the Court evaluated appellants’
claim on the merits and, finding it insufficient as a matter
of law, used this finding as a basis for its decision on the
three judge court.°°
The precise guidelines to be followed by a district court
in deciding a motion to convene a three judge court have
49 §2281 provides:
“Injunction against enforcement of State statutes; three judge
court required:
An interlocutory or permanent injunction restraining the
enforcement, operation or execution of any State statute by .
restraining the action of any officer of such State in the
enforcement or execution of such statute or of an order made
by an administrative board or commission acting under State
statutes, shall not be granted by any district court or judge
thereof upon the ground of the unconstitutionality of such
statute unless the application therefor is heard and deter-
mined by a district court of three judges under section 2284
of this Title.”
S0Judge Travia’s opinion does not make it clear as to whether he
found plaintiffs’ claim to be “wholly insubstantial” or merely lacking
in sufficient merit to ultimately prevail. The distinction is not unim-
portant. If the single judge employed the latter standard, as it appears
that Judge Travia did from his lengthy consideration of many balan-
cing and counterbalancing factors, then he is, in fact, performing and
usurping the function of the three-judge court to decide after a full
hearing upon the merits of the cause presented.
cee on —
been clearly delineated by this Court in /dlewild Bon Voyage
Liquor Corp. v. Epstein, 370 U.S. 713, 715 (1962), when it
stated:
“When an application for a statutory three-judge court
is addressed to a district court, the court’s inquiry is
appropriately limited to determining whether the con-
stitutional question raised is substantial, whether
the complaint at least formally alleges a basis for
equitable relief, and whether the case presented
otherwise comes within the requirements of the
three-judge statute.”
In weighing these questions, the district court judge must
convene a three judge panei unless the constitutional claim
against statewide regulations is “obviously without merit,”
Ex Parte Poresky, 290 U.S. 30, 31-32 (1933), or “‘because
its unsoundness so clearly results from the previous deci-
sion of this Court as to foreclose the subject.” California
Water Service Co. v. City of Redding, 304 U.S. 252, 255,
(1938); see Schneider v. Rusk, 377 U.S. 163 (1964).
A. The Court below applied a standard in con-
flict with an unbroken line of decisions of
this Court.
In its analysis of appellants’ constitutional claim, the
Court below recognized that appellants had realistically
described the plight of their children when they stated:
“Indigent children sitting bookless, side by side in
the same classroom with other more wealthy children
learning with purchase[d] textbooks engenders a
widespread feeling of inferiority and unfitness in
poor children and is psychologically, emotionally,
and educationally disastrous to their well-being.”
(A-62).
The majority, in assessing this deprivation, seemingly ac-
knowledged the substantiality of petitioners’ claim that the
challenged statutory scheme effectively denied equal protec-
eines owt aee ey egy
tion of the laws to indigent children unable to obtain required
textbooks because they lacked the prerequisite fees. It
appeared to be troubled by its burden of determining “what
is substantial’ and concluded that in the final analysis only
this Court could make that determination. Faced with an
equal protection challenge in the area of education and pre-
sented with constitutional questions which have not been
foreclosed by earlier decisions of the Supreme Court, the
Court of Appeals proceeded to obscure the clear guidelines
established by this Court in /dlewild, Poresky and California
Water Service Co., and adopted a new and unduly restrictive
standard: whether the constitutional claim “‘might” be fore-
closed by earlier decisions of this Court.
The standard of review actually used by the Court below
was an assessment of the case upon the merits, requiring a
three judge court to determine the controversy only if the
statute was likely to be held unconstitutional, i.e., no exist-
ing precedent which “might” foreclose the subject. No
authority by this Court exists for this narrow interpretation
of 28 U.S.C. $2281. What precedent there is requires that
the claim’s unsoundness be clear and beyond doubt if a three
judge court is to be denied. Otherwise, the statutory panel
must be convened. Under the erroneous standard applied,
and contrary to the express rulings of the Court, the possi-
bility of ultimate defeat on the merits was found to be
sufficient reason to deny the convening of the three judge
court, rather than the certainty of being foreclosed.
The reasoning of the majority in using the restrictive
standard of “possibility of loss’ was twofold. First, it was
said that fewer judges and fewer “indiscriminate three judge
appeals” would be involved, a projection accurately labeled
by Judge Kaufman in his dissenting opinion as amounting
“at best to a self-fulfilling prophesy.” 5! (A-75). See Har-
51 Judge Kaufman, in his dissenting opinion (A-75) correctly ob-
served that the convening of the three judge court in the first instance
because it bypasses the normal appellate level, will involve fewer
judges in the ultimate disposition of the case, as has been amply
demonstrated by the procedural history of this case.
,
ey
grave v. McKinney, 413 F. 2d 320 (Sth Cir. 1969).5? Se-
condly, the majority contended that any harm to petitioners
in an erroneous denial of the direct Supreme Court Appeal
from a three judge court can be remedied by certiorari re-
view, as herein sought. See Miller v. New York Stock Ex-
change, 425 F. 2d 1074 (2nd Cir. 1970), cert. den. 398
U.S. 905 (1970). But, of course, if the claim is in fact
“substantial”, then certiorari is an extremely lengthy process
by which to determine the constitutional question, far
lengthier than the convening of the three judge court in the
first instance. The Court below, having acknowledged that
“those who can afford textbooks will also no doubt receive
a better education than those who cannot”’ (A-73) should
have remanded immediately without attempting to assess
the ultimate outcome of the case. Judge Kaufman, dissent-
ing, properly concluded that the “substantial claim” test
may well produce the “most efficient operation of the three
judge court scheme as presently constituted,” and that in
any event, “judges should not in their frustration yield to
the temptation to legislate their own solutions .. . . especially,
as here, when the judicial statutory amendment is as likely to
increase buriens and delays as to alleviate pressures.” (A-76).
The standard applied by the Court below is in conflict with
that applied: by the Fifth, Sixth and Seventh circuits? In
$2The Hargrave case clearly demonstrates the waste of judicial
time which results from the refusal of a district court to convene a
three judge court in the first instance. In Hargrave, the Fifth Circuit
reversed the lower court and ruled that a three judge court must be
convened to consider the constitutionality of a Florida public school
financing statute under an equal protection challenge. On remand, a
three judge court held the statute unconstitutional. Hargrave v. Kirk,
313 F. Supp. 944. (1970) On appeal, this Court vacated the district court
decision on other grounds, but indicated on remand that the lower court
should thoroughly explore the equal protection issue. Askew v. Har-
grave, 401 U.S. 476 (1971).
53 See, too, Rodriguez v. Brown, 437 F.28 34 (Sth Cir. 1971); Pro-
testants and Other Americans United for Separation of Church and
State v. United States, 435 F. 2d 627 (6th Cir. 1970); Hargrave v.
McKinney, 413 F.2d 320 (Sth Cir. 1969); Williams v. Page, 309 F. Supp.
814, rev'd. No. 18536 (7th Cir. 1971) [unreported] cert. den. 404 US.
1005 (1971).
a —— 47
Jackson v. Choate, 404 F. 2d 910, 913 (Sth Cir. 1968), the
Court held that a three judge court must be convened to pass
on the merits of the claim unless it is an “open and shut case.”
The Court stated:
“In this day and time of dynamic expansion of con-
stitutional principles and their application to new
and sometimes unheard of situations it takes judicial
prescience of a Delphic order to say with certainty
that the attack is insubstantial. It is the better course
—certainly from an administrative standpoint—to fore-
go the doubts, constitute a 3-Judge Court, and allow
that court to determine initially this and the other
issues.”
Furthermore, the standard applied by the Court below is in
_ conflict with the Second Circuit opinion in McMillan v. Board
. of Education, 430 F.2d 1145, (2d Cir. 1970), a case
also involving a Fourteenth Amendment challenge to the dis-
tribution of educational benefits. The Court recognized that
the constitutional question in this area of law remains unre-
solved and stated:
“In stating these questions, we are not suggesting
that they will necessarily be resolved in plaintiffs’
favor. The state may well be able to develop suf-
ficient reasons to justify what it has done. We
hold merely that the claims were sufficiently sub-
stantial to deserve exploration, possibly after the
taking of evidence, before a court of three judges.
This is a developing area of application of the equal
protection clause [ft. omit] and questions should
not be deemed unsubstantial merely because they
might have been so considered twenty years ago
when the right-privilege distinction was more highly
regarded than it is today.” Jd. at 1150.
54McMillan held that a three judge court was required to consider
plaintiffs’ claim that they were denied the equal protection of the
law because their poverty would not permit them to take advantage
of the state’s offer to pay $2,000 for the tuition at special private
schools for handicapped children [which was only available if they
could pay the difference between the stipend and full tuition].
net RNC
This Court has clearly defined substantiality for the pur-
pose of convening a three judge court in Ex Parte Poresky,
supra, 290 U.S. 30, 32 (1933):
“The existence of a substantial question of consti-
tutionality must be determined by the allegations
of the bill of complaint. [cit. omit] The question
may be plainly unsubstantial, either because it is
‘obviously without merit’ or because ‘its unsound-
ness so clearly results from the previous decisions
of this court as to foreclose the subject and leave
no room for the inference that the question sought
to be raised can be the subject of controversy.’ ”
The narrow question for determination in the courts below
was whether plaintiffs’ claim is “obviously without merit.”
290 U.S. at 32.
The lower courts lengthy and intricate balancing of legis-
lative factors [many of which were not substantiated by
evidence in the record] is, in fact, more than a recognition
of a legitimate controversy raised by appellants. It consti-
tutes a clear admission that a substantial claim had been
raised which then required the court’s positing of counter-
vailing factors. Having acknowledged the existence of the
legitimate controversy, the lower court’s proper role was
to immediately convene a three judge court, irrespective of
the court’s own lingering doubts as to the ultimate out-
come of the case on the merits. See Hargrave v. McKinney,
413 F.2d 320, 324, 328 (Sth Cir. 1969).
The majority’s conclusion that the claim presented in
this case is not substantial is inconsistent with its admis-
sion that education is an area of fundamental importance
and its recognition that binding precedent requires states
to demonstrate the existence of a compelling state interest
in order to justify conditioning the exercise of fundamental
rights or the enjoyment of fundamegtal privileges upon the
payment of money. The holding is properly questionable
in light of the admissions by the local school board that:
49
“textbooks for all pupils are essential to a quality
educational program and a fundamental tool in
the education of youngsters.”’ (A-40)
and
“That the denial of free textbooks places some
children under an educational disadvantage and
denies to them an educational opportunity equal
to the children of those families that can afford
to pay a rental charge for textbooks.” (A-41)
B. The Court Below Erroneously Applied this
Court’s Ruling in Dandridge v. Williams, 397
U.S. 471, in Rejecting Appellants’ Equal Pro-
tection Claim.
As was recognized by the Court in McMillan v. Board of
Education, supra, 430 F.2d at 1150 (2d Cir. 1970), the
application of the equal protection clause to the area of
education is a “developing area” of law. This is evidenced
by recent litigation which challenged the validity of condi-
tioning public education upon the payment of fees.*S
The Court below erroneously concluded that the consti-
tutional claim had been rendered insubstantial by this
$SIn Chandler v. South Bend Community School Corporation, CA.
No. 71S51 (N.D. Ind. August 26, 1971), the Court issued a permanent
injunction restraining a school board from suspending children whose
parents tailed to pay textbook tees or execute “inability (to pay)
forms.” The Court reasoned that the right to receive an education is
a personal fundamental right belonging to the student and that any
State interference with that right required a substantial burden of
justification. The Court conciuded that the suspension of the students
because of the failure of their parents to pay the required fees denied
them equal protection of the law; in Williams v. Page, 309 F. Supp.
814, rev'd. No. 18536 (7th Cir. 1971) (unreported), cert. den. 404 US.
1005 (1971) poor chiidren were denied participation in school
sponsored or sanctioned extra graduation activities solely because
they were unable to pay the required fees. The District Court
found the classification to be due to the disparity of wealth in our
society and not to the deliberate attempt by the State to set one
group apart [as did the majority in the instant case] and dismissed
the complaint. The Court of Appeals, finding the constitutional claim
to be substantial, reversed and remanded the case to the District Court.
(1970). Dandridge involved a dilution of welfare benefits
whereas in the instant case the denial of textbooks, which
appellees have conceded are “‘necessary” and “essential to
a quality education program,” effectively bars appellants’
children from receiving an adequate public education. In
Dandridge, this Court found the challenged regulation free
from invidicus discrimination and rationally supportable on
at least four grounds. Here there has been no showing to
justify the deprivation, as we have demonstrated in our pre-
vious argument.
More importantly, however, the classification in this case,
unlike Dandridge, burdens public education, a fundamental
interest, and the constitutionally protected right to acquire
knowledge.*® See, Meyer v. Nebraska, supra, 262 U.S. at
390. In addition, classifications based on wealth are tradi-
tionally suspect and disfavored criteria by this Court. Harper
v. Virginia Board of Elections, 383 U.S. 663. In
Shapiro v. Thompson, 394 U.S. 618, the Court, in
dictum, indicated that certain wealth discrimination in the
area of education would be unconstitutional and that a
state could not, for example, “reduce expenditures for
education by barring indigent children.”” Judge Kaufman,
dissenting in the Court below, recognized the actuality of
the deprivation when he stated:
“The fees required by New York here as a prerequi-
site to the distribution of textbooks, according to
evidence presently in the record, range from $6.00
to $58.50 per household, and effectively bar plain-
tiff’s children from receiving an adequate public
education.” (A-80).
56 The majority opinion in Dandridge, 397 U.S. at 484, cites Shel-
ton v. Tucker, 364 U.S. 479 (1960) as the examplar of the Court's
special commitment to a special view ef equal protection in those areas
where “freedoms guaranteed by the Bill of Rights” may be affected.
In Shelton, Mr. Justice Stewart, for the majority had declared that
“The vigilant protection of constitutional freedoms is nowhere more
vital than in the community of American Schools.” 364 U.S. at 487.
crCenCenee, meee
Court’s holding in Dandridge v. Williams, 397 U.S. 471 :
EE FIR Ae Sint hall Be
Recently, in Graham v. Richardson, supra, 91 S.Ct. at
1854 (1971), this Court declined to rely on the holding of
Dandridge in a case involving denial of welfare benefits to
aliens. The Court stated:
“The classification involved in the instant cases, on
the other hand, are inherently suspect and are there-
fore subject to strict judicial scrutiny whether or
not a fundamental right is impaired. Appellants’
attempted reliance on Dandridge v. Williams | cita-
tions omitted] is also misplaced, since the classifi-
cation involved in that case [family size] neither
impinged upon a fundamental constitutional right
nor employed an inherently suspect criterion.”’’
The Court below, in extending the holding of Dandridge
to justify the conditioning of a fundamental interest upon
the payment of a fee, necessarily had to disregard the
‘unbroken line of decisions by this Court expressly reject-
ing such classifications. It rejected the precedental value
of Boddie v. Connecticut, 401 U.S. 371, and Griffin v.
Illinois, 351 U.S. 12, as due process cases. The Court
rejected the relevancy of the holdings in Shapiro v. Thompson,
394 U.S. 618, and Harper v. Virginia Board of Elections, 383
U.S. 663, which both affected fundamental interests, con-
cluding that the ““compelling state interest” theory is inap-
plicable to education.
As we have argued in the previous points, a proper inter-
pretation of Griffin, Harper, and Boddie requires the con-
57The analysis of the Court below was less than searching and was
without benefit of a developed trial record. While the appropriate
_ Standard to be applied is the compelling interest standard, it is clear
that not even the Dandridge standard was satisfied. There was no
tational basis upon which to conclude that the denial of textbooks
to children in elementary school will foster the study of science, math-
ematics and foreign languages in secondary school. It also strains
rationality to conclude that the state’s interest in conserving fiscal re-
sources if furthered by a scheme that distributes textbooks to children
in grades 7-12, irrespective of their financial need, while denying text-
books to children in grades 1-6 too poor to pay rental fees.
——————E————————— CC
ve
clusion that their rationale is applicable to classifications
which deprive children of an adequate public education
solely because of their poverty. At a minimum, the only
conclusion the Court of Appeals could have reached on the
claim presented was that the constitutional challenge was
still an open question.
While the requirements of three judge courts may entail
a serious drain upon the federal judicial system which Con-
gress may choose to rectify in the future, the problems will
not be resolved by federal courts refusing to hear substan-
tial constitutional claims.
CONCLUSION
The Court should hold that New York State may not,
consistent with the obligations imposed upon it by the
equal protection and due process clauses of the Fourteenth
Amendment, deny indigent children attending public school
textbooks essential for their required instruction solely
because of their inability to pay rental fees. The decision
of the Court of Appeals should be reversed.
Respectfully submitted,
CARL JAY NATHANSON
Nassau County Law Services
Committee, Inc.
1570 Old Country Road
Westbury, New York 11590
(516) 997-9680
Atiorney for Appellants
Ait a
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