Petition — Lora v. Board of Education

Supreme Court, U. &

~ FILED

oct 9 1916

In THE

Supreme Court of the Wiss Bhates

October Term, 1976.

ISAAC LORA, by his mother and legal guardian, CARMEN Lora;

KELVIN WALTERS, by his mother and legal guardian, RITA

WaALTers; RANJEET MARTIN, by his mother and legal guard-

ian, MELBA MARTIN; JEROME MOORE, by his mother and legal

guardian, THELMA Moore; LAWRENCE WHITE, by his mother

and legal guardian, MULVININA WHITE; MELVIN PRINCE, by

his mother and legal guardian, JoANN Prince; FRANCISCO

LUGO, by his attorney, CHARLES SCHINITSKY, on behalf of

themselves and all others similarly situated,

Petitioners,

against

THE BOARD OF EDUCATION OF THE CITY OF NEW YORK,

et al.,

Respondents.

Petition for Writ of Certiorari to the United States

Court of Appeals for the Second Circuit.

ee

GENE B. MECHANIC

MICHAEL J. DALE

THE LEGAL Alp Society, JUVENILE RiGHTs DIviIsION

189 Montague Street

Brooklyn, N. Y. 11201

(212) 858-1300

Attorneys for Petitioners

2 RL ere

Table of Contents.

Opinions Below

Jurisdiction

Questions Presented ;

Statutes Involved

Statement of the Case

Reasons for the Allowance of the Writ. The peti-

tion for certiorari should be granted because

the decree of the Second Circuit Court of Ap-

peals conflicts with decisions of other Courts

of Appeals on the same matter and involves an

important question of federal law which has

not been, but should be, settled by this court ....

A. Appealability under 28 U.S.C. §1292(a)(1) -....

B. The District Court order was final in nature

C. Propriety of District Court order

Conciusion. The instant case presents the Supreme

Court with an excellent opportunity to clarify

the appealability of denials of class certifica-

tion in civil rights actions. Hence, the peti-

tion for certiorari should be granted ...............

Appenpix A. Decision and Order of the United

States District Court for the Eastern District

of New York Denying Class Certification ........

10

13

14

Page

Aprenpix B. Order of United States Court of Ap-

peals for the Second Circuit re Ap-

peal 3 20

Apprenpix C. Transcript of Oral Decision of the

United States Court of Appeals for the Sec-

ond Circuit 23

Appenpix D. Order of United States Court of Ap-

peals for the Second Circuit Denying Rehear-

ing en banc vneiadl 25

Appenprx E. Relevant Statutes . 26

TABLE OF AUTHORITIES.

Cases CITED:

Blackie v. Barrack, 524 F. 2d 891, 896 (9th Cir.

TEED cieteicsnseenaebiitndesrebiinacibieinbiiiatiteanimaeiaioaiiiaiibmaiiimeaibiaanasins 13

Board of School Commissioners v. Jacobs, 420 U. S.

Bi SUPITITIIED senieussiceesceiaeciiaibibiinineneiiaaiateatinditan 7, 10, 11, 13

Brown v. Board of Education, 347 U. S. 483 (1954) .... 6

Brunson v. Board of Trustees of School District

No. 1 of Clarendon County South Carolina,

311 F. 2d 107 (4th Cir. 1962), cert. denied,

373 U.S. 933 (1963) “- 8, 9

Cohen v. Beneficial Industrial Loan Corp., 337 U. S.

541, 546 (1949) 12

Dunn v. Blumstein, 405 U. S. 333 (1972) 12

=

Page

Eisen v. Carlisle & Jacquelin (“Eisen I”), 370 F. 2d

119, 120 (2d Cir. 1966), cert. denied, 386 U. S.

een 7, 13

Eisen v. Carlisle & Jacquelin, 417 U. S. 156

UETIPIED scossssscncninenieccaeeiapserepbeaiaiasidastiomesisine’ cabana 7, 12

Galvan v. Levine, 490 F. 2d 1255 (2d Cir. 1973),

cert. denied, 417 U. S. 936 (1974) - 4,5

Hackett v. General Host Corporation, 455 F. 2d 618

(3rd Cir. 1972), cert. denied, 407 U. S. 925

STEED <cctvedtiitininnidjeniniibenejustibiceiensanndiiitiindenisiliieieneaianinnss 9, 13

‘FR lobed sbi duekdscainlalastcacancsbatatslicsions 10

oan a 7,9, 10

King v. Kansas City Southern Industries, 479 F. 2d

1259 (7th Cir. 1973) ............. we 13

Monwich Asphalt Sales Co. v. Wilshire Oil Company

of Texas, 511 F. 2d 1073, 1067-7 (10th Cir.

SUUTED : cisnitatahaueeiidednsetianeinaiitcniaupeiiingsioniieiesiananenieatitetnes 13

Moore v. Ogilvie, 394 U. S. 814 (1969) —.....0..0002...... 12

Ott v. Speedwriting Publishing Company, 518 F. 2d

1143, 1149 (6th Cir. 1975) ..... 13

Parents Comm. of Public School 19 v. Community

School Board 14 of New York City, 524 F. 2d

1138, 1141 (2d Cir. 1975) 8

Preiser v. Newkirk, 422 U. S. 395 (1975) ................ 10

iv.

Page

In THE

Price v. Lucky Stores, Inc., 501 F. 2d 1177 (9th Cir.

1974) ...... 9 Supreme Court of the United States

Share v. Air Properties G. Inc., 538 F.2d 279 (9th October Term, 1976.

Che, WT) ceceseseeverecsersseresienentnnninsitiatminaaaaaae 13 No. 7

Sosna v. Iowa, 419 U. S. 393 (1975) ............ 7, 10, 12, 13 a

Weinstein v. Bradford, 423 U. S. 147 (1976) ........ 7, 10, 12 Isaac Lora, by his mother and legal guardian, Carmen

oe ee , Lora; Kacvix Watters, by his mother and legal guard-

Yaffe v. Powers, 454 F. 2d 1362, 1364 (1st Cir. ian, Rita Walters; Ranseet Martin, by his mother and

1972) 9 legal guardian, Melba Martin; Jerome Moorg, by his

mother and legal guardian, Thelma Moore; Lawrence

STATUTES CITED. Wuire; by his mother and legal guardian, Mulvinina

i White; Mervin Prince, by his mother and legal guard-

Fourth Amendment to the Constitution of the United ian, Joann Prince ; Francisco Luco, by his attorney,

States 3 _ Charles Schinitsky, on behalf of themselves and all

, | , , others similarly situated,

Eighth Amendment to the United States Constitu- Petitioners,

tion ..... 3 against

Thirteenth Amendment to the United States Consti-

tution 3 Tue Boarp or Epvucation or tHe City or New York, et

Fourteenth Amendment to the United States Consti- “. Respondents.

tution " 3 o

~~

8 USC. §1254(1) . 2 Petition for Writ of Certiorari to the United States

28 U.S.C. $1291 ................... . &%7%,12 8 Court of Appeals for the Second Circuit.

28 U.S.C. $1292 ......... 7,9 To: The Honorable, the Chief Justice and Associate Jus-

SS UBL. 9 RERPERD cnccsescnnoneeseninciaee 3, 8, 9 tices of the Supreme Court of the United States.

28 U.S.C. § 1848(8) and (4) 3 Petitioners pray that a Writ of Certiorari be issued to

42 U.S.C. §§ 1981, 1983 and 200(d) 3 review the judgment, order and decree of the United

States Court of Appeals for the Second Cirenit entered

Rule 23 of the Federal Rules of Civil Procedure, in the above case on July 20, 1976.

28 U.S.C. 3, 4, 5, 6, 7

4

2

Opinions Below.

The decision and order of the District Court for the

Eastern District of New York are printed in Appendix

“A” and are unreported. The order of the United States

Court of Appeals for the Second Circuit entered on May

5, 1976, dismissing the appeal and a transcript of the

oral decision in support of said order are printed, re-

spectively, in Appendix “B” and Appendix “C.” The

order of the Court of Appeals denying petitioners’ re-

quest for a rehearing en bane entered on July 20, 1976,

is printed in Appendix “D.”

Jurisdiction.

The decree of the United States Court of Appeals for

the Second Circuit, upon which certiorari is sought, was

dated and filed on May 5, 1976. An order denying a peti-

tion for a rehearing, timely filed on May 19, 1976, was

dated and filed on July 20, 1976.

The jurisdiction of this court is invoked under 28 U.S.C.

§1254(1).

Questions Presented.

1. Whether a federal district court order denying class

certification in an action for declaratory and injunctive

relief brought under the Civil Rights Act by minority

group public school children is an appealable order be-

cause it not only narrowed the scope of possible injunctive

relief, but was “final” in nature, ringing the “death knell”

of the action?

2. Whether the federal district court improperly denied

petitioners’ motion for class certification on the ground

that class certification was “unnecessary ?”

3

Statutes Involved.

| The statutory provisions involved are Rule 23 of the

Federal Rules of Civil Procedure, 28 U.S.C., p. 289; 28

U.S.C. §1291; and 28 U.S.C. §1292(a) (1). See Appendix

“Bh.”

Statement of the Case.

This is a civil rights action instituted by seven Black

and Hispanic youths who were placed into “special day

schools for the socially maladjusted and emotionally dis-

turbed,” operated by the New York City Board of Educa-

tion, also known as “SMED” schools, and formerly named

“600” schools. The basis for federal jurisdiction over the

action, brought in the Eastern District of New York, was

the Fourth, Eighth, Thirteenth and Fourteenth Amend-

ments to the United States Constitution, and 42 U.S.C.

§§ 1981, 1983 and 2000(d) and 28 U.S.C. §1343 (3) and

(4).

Petitioners allege that the SMED schools constitute a

racially discriminatory and educationally deficient school

system which promotes the exclusion of minority group.

children from the regular school system. Over 92% of the

SMED school population of about 2,800 is Black and

Hispanic, while about 60% of the regular school system

is Black and Hispanic.

Petitioners further claim that they were classified as

“socially maladjusted and emotionally disturbed” and

segregated into the SMED schools without necessary due

process safeguards. Moreover, even assuming, arguendo,

that SMED school children have difficulty adjusting to the

structure of the regular school class as it presently oper-

ates, petitioners contend that less restrictive and racially

segregated and more effective educational alternatives

4

could be made available to them. Therefore, they claim

inter alia that their rights, and the rights of other minor-

ity group children now segregated into the SMED school

system, to due process, equal protection and equal educa-

tional opportunity have been violated by the defendants.*

In the court below, petitioners sought to represent a

class pursuant to Rule 23 of the Federal Rules of Civil

Procedure consisting of themselves and the other minority

students segregated into the SMED schools. There are

presently seventeen SMED schools, all at the junior and

senior high school level. The total student population is

about 2,800. Although petitioners’ allegations presented

the paradigm circumstances for class action certification

under Rule 23(b) (2) of the Federal Rules of Civil Pro-

cedure, the district court denied petitioners’ motion, with-

out determining whether the prerequisites for a class ac-

tion under Rule 23 were met. Erroneously relying on

Galvan v. Levine, 490 F.2d 1255 (2d Cir. 1973), cert. de-

nied, 417 U.S. 936 (1974), and paraphrasing the Cor-

poration Counsel’s statement in an affidavit that defend-

ants would halt any actions as to all SMED students

determined to be unconstitutional, the lower court, with-

out holding any hearing, determined that:

It is unnecessary to consider whether the require-

ments of Rule 23 have been satisfied, because the

court .. . concludes that a class action status is un-

necessary. ;

*The action was brought against officials of both New York

City and New York State. The State defendants are Ewald Ny-

quist, the Commissioner of Education, and three officials (Rios,

King, Detore) of the Division for Youth. Although the State

defendants submitted an Answer, they did not otherwise parti-

cipate in the lower court motions or appeals and can be expected

not to participate in the instant petition for certiorari. The

State defendants are represented by the New York State Attorney

General, and the other defendants are represented by the New

York City Corporation Counsel.

See Appendix “A.”*

Appealing to the Second Circuit, petitioners argued

that District Judge Bruchhausen’s order was both ap-

pealable and erroneous because, without considering the

merits of their complaint, he not only narrowed the

scope of possible injunctive relief, but rang the “death

knell” for the plaintiffs, all of whom are teenage students

who could not retain standing until the case could be

fully litigated. |

Not mentioning any of the Supreme Court or other

Circuit Court decisions cited by petitioners in support of

their argument, the panel hearing the appeal (Hays, Mul-

ligan, Palmieri) ruled from the bench that the lower court

order denying class certification was nonappealable and,

anyway, was proper since relief for the named plaintiffs

“would inure to the benefit” of the class. See Appendices

“B” and “C.” On July 20, 1976, petitioners’ request for

’ *In Galvan v. Levine, supra, the district court found the ap-

plication of a state unemployment compensation statute to be

unconstitutionally applied to Puerto Ricans. The Second Circuit

held that class action designation would be a mere formality and,

therefore, need not be granted. It specifically found that denial

of class status would not ‘‘ring a death knell on the prosecution

of the action’’ since a final decision had already been made in fa-

vor of the named plaintiffs, the City had submitted an affidavit

stating that it understood the entered judgment to bind it to all

claimants, and, in fact, the defendants already had withdrawn the

challenged policy even more fully than the court directed. No

conceivable mootness question existed nor did denial of class ac-

tion status create possible prejudice to full litigation of the issues

raised or the relief sought.

6

a rehearing en banc on the class action issue was denied

without a vote being taken. See Appendix “D.’*

Reasons for the Allowance of the Writ.

The petition for certiorari should be granted because

the decree of the Second Circuit Court of Appeals con-

flicts with decisions of other Courts of Appeals on the

same matter and involves an important question of fed-

eral law which has not been, but should be, settled by

this court.

The Second Circuit has ignored the decisions of several

other circuits which have found orders denying class certi-

fication in civil rights actions wherein system-wide in-

junctive relief is sought to be appealable. The appellate

court has established an arbitrary judicial screen, contem-

plated neither by the Constitution nor Congress, which

can only be viewed as a repudiation of the line of cases

since Brown v. Board of Education, 347 U.S. 483 (1954),

which have recognized the use of class litigation by

minority group school children to vindicate deprivation

of constitutional rights. A dangerous precedent has been

set whereby federal courts can disregard the intent of

Rule 23(b) (2) to enhance judicial economy and provide

a remedy for a class of persons in civil rights cases.

*Petitioners’ appeal from a later order of Judge Bruchhausen

denying a preliminary injunction on their procedural due process

and a Fourth Amendment claim only was consolidated with the

class action appeal. That order was affirmed from the bench.

Petitioners are not seeking certiorari on that question. The ini-

tial written order of the Second Circuit on May 5, 1976, was in

error in that both the lower court order denying a class action

and the lower court order denying a preliminary injunction were

‘‘affirmed.’’ However, the Second Circuit issued an amended

order on May 5, 1976, dismissing the appeal from the order deny-

ing class certification, thereby conforming to its decision.

7

Most importantly, the Second Circuit failed to heed the

warnings of the Supreme Court that class certification

may be necessary in some cases to prevent mootness.

Board of School Commissioners v. Jacobs, 420 U.S. 128

(1975); Sosna v. Iowa, 419 U.S. 393 (1975); Weinstein v.

Bradford, 423 U.S. 147 (1976).

Dismissal of petitioners’ appeal was tantamount to a

finding that a district judge has unreviewable discretion

to deny class certification, regardless of its appropriate-

ness under Rule 23, even though no individual plaintiff

can maintain standing long enough to prosecute fully the

action.

The case at bar gives the Supreme Court an excellent

opportunity to set forth workable standards for the fed-

eral courts to follow in resolving class certification re-

quests where the named plaintiffs may lose standing

prior to full litigation.

As a general rule, an order denying class action certifi-

cation which permits the individual case to proceed, is

not a “final” order which may be appealed as of right

under 28 U.S.C. §1291. Nor is it an interlocutory order

of the kind from which an immediate appeal may be

taken under 28 U.S.C. §1292. Eisen v. Carlisle & Jacque-

lin (“Eisen I’), 370 F.2d 119, 120 (2d Cir. 1966), cert.

denied, 386. U.S. 1035 (1967); Jones v. Diamond, 519 F.2d

1090, 1095 (5th Cir. 1975). See also Eisen v. Carlisle &

Jacquelin, 417 U.S. 156 (1974). However, several fed-

eral appellate courts have developed exceptions to the

general rule which the Second Circuit’s decree contra-

dicts. Additionally, the Second Circuit failed to consider

8

the flexible standards for determining appellate jurisdic-

tion established by the Supreme Court.

A. Appealability under 28 U.S.C. §1292(a) (1).

Petitioners do not allege that they alone are being de-

prived of equal educational opportunity and procedural

due process and are being racially discriminated against.

Rather, they contend that such deprivations are common

to a large class of minority group children. Their com-

plaint sought permanent injunctions, on behalf of the

named plaintiffs and members of their class, sufficient to

rectify the unconstitutional acts and omissions alleged.

The district court’s order denying class action certifica-

tion has, in effect, narrowed the scope of injunctive relief

available to petitioners and, therefore, the Second Circuit’s

unwillingness to hear the appeal from that order conflicts

with the opinions of other Courts of Appeals.*

In Brunson v. Board of Trustees of School District No.

1 of Clarendon County South Carolina, 311 F.2d 107 (4th

Cir. 1962), cert. denied, 373 U.S. 933 (1963), Black children

sought injunctive relief against a school board which was

allegedly maintaining a biracial school system. The dis-

trict court dismissed the class action, allowing the suit to

proceed only on an individual basis. The Fourth Circuit

took jurisdiction over an appeal from the district court’s

order under $1292(a)(1), stating at 108 that:

*Interestingly, the Second Circuit accepted jurisdiction of an

appeal from a pre-trial discovery order against school officials

on the theory that the order ‘‘inclines more to the side of manda-

tory injunctive relief.’’ Parents Comm. of Public School 19 v.

Community School Board 14 of New York City, 524 F. 2d 1138,

1141 (2d Cir. 1975).

9

The order ... was a denial of the broad injunctive

relief which the plaintiffs sought, which presumably,

would have affected all schools and all grades in

the School District. The order was, therefore, an

appealable one under $1292, for it was a denial of

the broad injunctive relief which the plaintiffs

sought.

Several other circuits have followed the reasoning of

the court in Brunson and have taken jurisdiction over ap-

peals, under §1292(a)(1), from orders denying class ac-

tions when “the substantial effect [of the order] is to

narrow considerably the scope of any possible injunctive

relief in the event plaintiffs ultimately prevail on the

merits.” Yaffe v. Powers, 454 F.2d 1362, 1364 (1st Cir.

1972); see Jones v. Diamond, supra, at 1095-1097; Price

v. Lucky Stores, Inc., 501 F.2d 1177 (9th Cir. 1974).*

Significantly, although the Third Cireuit rejected use

of the “death knell” doctrine in Hackett v. General Host

Corporation, 455 F.2d 618 (3rd Cir. 1972), cert. denied,

407 U.S. 925 (1972) (see Subpoint “B” infra), it realized

at 622 that:

.. . Etsen is not needed to afford interlocutory ap-

pellate review in those cases in which the refusal

to grant class action designation amounts to a de-

nial of a preliminary injunction broader than would

be appropriate for individual relief. 28 U.S.C. $1292

*Not only has petitioners’ remedy been narrowed, but their

ability to present the very heart of their case has been severely

crippled. With an action concerning violations only as to them-

selves, the named plaintiffs are not entitled to the class-wide dis-

covery so material and necessary for them to prove that constitu-

tional infirmities exist throughout the SMED school system (for

example, access to the records of class members).

10

(a)(1).... This category of interlocutory appeals

is adequate, we think, to protect against most dis-

trict court inhospitality to class action litigation in-

volving civil rights. . . . (emphasis added)

By condoning the district court’s action of arbitrarily

cutting out “the heart of the relief” petitioners sought

(Jones v. Diamond, supra, at 1095), the Second Circuit re-

jected the decisions of the First, Third, Fourth, Fifth

and Ninth Circuits.

B. The District Court order was final in nature.

The Second Cireuit’s order dismissing petitioners’ ap-

peal is inexplicable in light of the teaching of the Supreme

Court that, in some cases, a class needs to be certified in

order to prevent termination of the lawsuit prior to ex-

haustion of appellate review on the ground of mootness.

In Jacobs, supra at 130, the Supreme Court held an ac-

tion on behalf of a group of high school students to be

moot because by the time the case reached the Supreme

Court, plaintiffs had graduated.

The need for definition of the class purported to

be represented by the named plaintiffs is especially

important in cases like this one where the litiga-

tion is likely to become moot as to the initial named

plaintiffs prior to the exhaustion of appellate re-

view.

See also Sosna v. Iowa, supra; Weinstein v. Bradford,

supra; concurring opinion of Justice Marshall in Preiser

v. Newkirk, 422 U.S. 395 (1975); and Jimenez v. Wein-

berger, 523 F.2d 689, 700 (7th Cir. 1975) where Mr. Justice

11

Stevens, citing Jacobs just before his Supreme Court ap-

pointment, emphasized the necessity of an early court de-

cision on whether a case is to proceed as a class action

because of several reasons, including the “risk that the

failure to certify may result in a dismissal of an entire

case if the claim of the named plaintiff should become

moot.”

At the time the instant complaint was filed, all the named

plaintiffs were assigned to SMED schools. In seeking

class action status, appellants informed Judge Bruchhausen

that class certification was necessary to preserve the forum.

They emphasized that the issues raised, by their very

nature, would not remain ripe for the named plaintiffs

until the lower court proceedings were completed and

appellate review was exhausted. See Jacobs, supra.

The SMED school system contains students only at the

junior high school and high school levels. The popula-

tion is transient. The time spent in SMED school place-

ment is substantial in the life of a young person, but all

the named plaintiffs will leave the SMED and regular

school systems prior to the exhaustion of appellate re-

view.

Events subsequent to appellants’ lower court class ac-

tion motion substantiate the accuracy of projections con-

cerning the problem of mootness. Of the four named

plaintiffs still in SMED school placement at the time of

said motion, one has moved out of the state (Lora), and

the remaining three (Walters, Martin, Lugo) have been re-

a to the regular public school system “on a trial

s.”’

12

The case presently escapes mootness under the theory

that the issues raised are “capable of repetition, yet

evading review.” Dunn v. Blumstein, 405 U.S. 330, 333

(1972); Moore v. Ogilvie, 394 U.S. 814 (1969). Clearly,

there is a “reasonable expectation” that at least those

named plaintiffs who have been returned to the regular

school system on a trial basis will be again subjected to

SMED school placement. Weinstein v. Bradford, supra,

at 349; Sosna v. Iowa, supra, at 557-8. But there exists

no likelihood that they will retain such standing until the

ease is fully litigated.*

It would appear that the Second Circuit should have

taken jurisdiction over petitioners’ appeal if it had prop-

erly applied the Supreme Court teachings in Jacobs and

Sosna to the mandate that federal courts must give the

requirement of “finality” under 28 U.S.C. §1291 “a prac-

tical rather than technical construction.” Eisen v. Carlisle

& Jacquelin, 417 U.S., supra, at 171; Cohen v. Bene-

ficial Industrial Loan Corp., 337 U.S. 541, 546 (1949). In

fact, the appellate court’s use of the “death knell” doc-

trine would have seemed to be appropriate.

Where the effect of a district court’s order [deny-

ing a class action motion], if not reviewed, is the

death knell of the action, review should be allowed.

*During oral argument, the Second Circuit asked counsel why

he couldn’t intervene more plaintiffs. In response, counsel in-

formed the Court that a ‘‘public interest’’ law firm should not be

held to a higher standard than private lawyers (i. e., those who

receive a fee as counsel in securities actions) and, in any event,

although many persons are available for intervention and, in fact,

are prepared to intervene, even intervenors who are in SMED

schools when final judgment is made will most likely be discharged

before exhaustion of appellate review.

13

Eisen v. Carlisle & Jacquelin, 370 F.2d, supra, at 120.

See Blackie v. Barrack, 524 F.2d 891, 896 (9th Cir. 1975) ;

Ott v. Speedwriting Publishing Company, 518 F.2d 1143,

1149 (6th Cir. 1975); Monwich Asphalt Sales Co. v. Wil-

shire Oil Company of Texas, 511 F.2d 1073, 1076-7 (10th

Cir. 1975). Contra: Hackett v. General Host Corporation,

supra; King v. Kansas City Southern Industries, 479 F.2d

1259 (7th Cir. 1973).

It is obvious that the death knell doctrine has created

confusion among the Circuits. In fact, as recently as July,

1976, the Ninth Circuit said that “the theoretical bases

for * * * ‘death knell’ appeals have not been properly

articulated and are often confused.” Share v. Air Prop-

erties G. Inc., 538 F.2d 279 (9th Cir. 1976).

In any event, whether premised upon the “death knell”

doctrine or a doctrine with a different name, when the de-

nial of a class action will effectively terminate the liti-

gation before the case is fully adjudicated, as it will in

this case, the order must be deemed “final” in nature and,

thus, appealable.

The Supreme Court’s warnings in Jacobs and Sosna

have little meaning if Circuit courts do not take jurisdic-

tion over appeals from orders denying class certification

when mootness will result before complete litigation.

C. Propriety of District Court order.

Although stated in dicta, the Second Circuit agreed with

the reasoning of Judge Bruchhausen that petitioners’ re-

quest for class certification should be denied because class

status was “unnecessary.” See Appendix “C.” Since the

appropriateness of the district court order is inextricably

14

intertwined with petitioners’ right to appeal the order,

petitioners are requesting the Supreme Court to rule on

whether Judge Bruchhausen’s order should be vacated.

Petitioners suggest that class certification is necessary

when its denial will narrow the scope of possible injunc-

tive relief and ring the “death knell” of the action.

CONCLUSION.

The instant case presents the Supreme Court with

an excellent opportunity to clarify the appealability of

denials of class certification in civil rights actions.

Hence, the petition for certiorari should be granted.

Respectfully submitted,

Gene B. MEcHANIC

Micwae. J. Dae

Tur Lecat Am Socrety, Juvenme Ricuts

Drvision

Attorneys for Petitioners

189 Montague Street

Brooklyn, N. Y. 11201

(212) 858-1300

APPENDIX.

15

APPENDIX A.

Decision and Order of the United States District Court

for the Eastern District of New York Denying Class

Certification.

UNITED STATES DISTRICT COURT,

Eastern District or New York.

—<—

Isaac Lora, et al.,

Plaintiff s,

against

Tue Boarp or Epucation or THE City or New York, et al.,

Defendants.

No. 75 C 917

January 6, 1976

=

Appearances:

Charles Schinitsky, Esq., The Legal Aid Society, At-

torney for Plaintiffs.

Gene B. Mechanic, Esq., Deborah G. Steinberg, Esq.,

Of Counsel.

W. Bernard Richland, Esq., Corporation Counsel, At-

torney for Defendants.

Joseph F. Bruno, Esq., Of Counsel.

Memorandum and Order.

Brucunavsen, D. J.

The plaintiffs move pursuant to Rule 23 of the Fed-

eral Rules of Civil Procedure for a determination that

16

this action be maintainable as a class action. Secondly,

plaintiffs move for an order, pursuant to Rules 34 and

37 of the Federal Rules of Civil Procedure, compelling

defendants to produce records, maintained by the Bureau

of Child Guidance, and to inspect defendants special day

schools for socially maladjusted and emotionally dis-

turbed children.

This action was commenced pursuant to the Civil

Rights Act, 42 U.S.C. 1981, 1983 and 2000(d) seeking in-

junctive and declaratory relief. The suit was instituted

by seven Black and Hispanic children, assigned to pub-

lie schools for socially maladjusted and emotionally dis-

turbed children (SMED Schools), also referred to as

“600” schools, under the jurisdiction of the Board of

Education of the City of New York. It is claimed that

placement in these schools violates plaintiffs’ rights

under the Eighth, Thirteenth, and Fourteenth Amendments

to the United States Constitution.

The suit is also against individual local and state

defendants, as well as the named defendants, who, as

assistant high school superintendents, community school

district superintendents or public school principals, mem-

bers of a class, who are authorized to approve the

transfer to the SMED schools.

In brief, it is alleged that the rights of the plaintiffs

to due process, equal protection, equal educational op-

portunity, and to be free from involuntary servitude are

being violated as a result of being placed into these

special day schools whose population is overwhelmingly

Black and Hispanic, without providing them with ad-

equate and appropriate education. Plaintiffs contend that

less than 10% of these children attending these schools

will earn a high school diploma, and that by being

“pushed out” of their regular schools the defendants have

failed to provide these children with an adequate aca-

demic program. Also less restrictive and more effective

educational alternatives can be used. It is alleged that

17

these assignments are made without any evidentiary

hearing to determine if these assignments are justified.

That these “600” schools are sexually segregated and

that the practice of daily searches of the students for

weapons violates their rights to be free from unreason-

able search and seizure, and to their rights of privacy.

Furthermore, the defendants’ use of corporal punish-

ment or excessive use thereof results in cruel and un-

usual punishment in violation of due process of law.

Finally, these special educational classes are not con-

ducted within the regular public schools, which would

provide the “600” students with smaller classes and addi-

tional staff resources.

The plaintiffs seek to have the above acts declared

unconstitutional.

The defendants argue that the SMED schools provide

proper and meaningful education and clinical programs

to aid these students, and in no respect, violate any of

their guaranteed rights.

The defendants urge that the SMED schools are under

the specific control of the Bureau for the Education of

Socially Maladjusted and Emotionally Disturbed Chil-

dren (BSMEDC), which is a bureau within its central-

ized Division of Special Education and Pupil Personnel

Services (DSEPPS), which operates a program for the

education of all handicapped and emotionally disturbed

children. That the SMED schools are geared to instruct

these students in the regular academic subjects with in-

dividualized programs wherein the student and teacher

become closely involved on a personal basis. That each

SMED school is assigned clinical personnel and working

together creates a comprehensive educational and thera-

peutic environment for these disturbed students. That

each student prior to placement in a SMED school is

screened and must be clinically assessed by professionals

to determine whether the student is handicapped and

whether SMED school placement is appropriate. Also

18

parental consent is required of each stage of this pro-

cedure. That sexual segregation is based upon sound

educational reasoning because coeducational classes would

result in overwhelmingly (sic) ratios of boys to girls. That

there is no practice of daily searches of the students,

and that corporal punishment is expressly forbidden.

Finally, these SMED schools operate as a viable and

useful educational tool established to assist any emo-

tionaly handicapped student, within constitutional guide-

lines.

The court in determining whether a class certifica-

tion is appropriate is referred to Galvan v. Levine, 490

F.2d 1255, cert. denied 417 U.S. 936, in which the court

held in part at page 1261:

“* * * But insofar as the relief sought is pro-

hibitory, an action seeking declaratory or injunc-

tive relief against state officials on the ground of

unconstitutionality of a statute or administrative

practice is the archetype of one where class action

designation is largely a formality, at least for the

plaintiffs. As we have recently noted in Vulcan

Society v. Civil Service Comm’n, 490 F.2d 387,

399 (1973), what is important in such a case for

the plaintiffs or, more accurately, for their coun-

sel, is that the judgment run to the benefit not only

of the named plaintiffs but of all other similarly

situated, see Bailey v. Patterson, 323 F.2d 201,

206-207 (5 Cir. 1963), cert. denied, 376 U.S. 910,

84 S.Ct. 666, 11 L.Ed.2d 609 (1964); ef. United

States v. Hall, 472 F.2d 261, 266 (5 Cir. 1972), as

the judgment did here. The State has made clear

that it understands the judgment to bind it with

respect to all claimants; * * *.”

In Thomas v. Weinberger, 384 F. Supp. 540 (1974)

(S.D.N.Y.), the court held in part at page 543:

i a a

19

“* * * However, class action status is unneces-

sary in this case since any relief which might

be ordered on behalf of the named plaintiffs as in-

dividuals with respect to the hearing rights man-

dated by due process and the adequacy of the

present procedures would necessarily inure to the

benefit of the class as a whole. See, e. g., Galvam

v. Levine, 490 F. 2d 1255 (2d Cir. 1973), cert. de-

nied, 417 U.S. 936, 94 S.Ct. 2652, 41 L.Ed.2d 240

(1974); Tyson v. New York City Housing Au-

thority, 369 F. Supp. 513 (S.D.N.Y. 1974); Mce-

Donald v. McLucas, 371 F. Supp. 831 (8.D.N.Y.

1974), * * *. The motion for class action deter-

mination is accordingly denied.”

In the case at bar, the defendants urge that a class

action is unnecessary, and concede that in the event the

plaintiffs are successful, all present practices will be ter-

minated. It is also urged that the plaintiffs have failed

to meet the requirements of Rule 23 for certification as a

class action.

It is unnecessary to consider whether the require-

ments of Rule 23 have been satisfied, because the court

after a consideration of all arguments and applicable

law above referred to concludes that a class action

status is unnecessary.

The motion to compel discovery of the defendants files

and records is granted, subject to the conditions stated

in the affidavit of Joseph F. Bruno, Esq., sworn to the

28th day of November, 1975.

It is so ordered.

A pre-trial conference shall be scheduled for March

15, 1976, at 10 A.M. in Part 3 of this Court.

Copies hereof will be forwarded to the attorneys for

the respective parties.

s/ WALTER BRUCHHAUSEN

Senior U. 8S. D. J.

20

APPENDIX B.

Order of United States Court of Appeals for the Second

Circuit Dismissing Appeal.

AMENDED

UNITED STATES COURT OF APPEALS,

For tHe Seconp Circurt.

At a stated Term of the United States Court of

Appeals for the Second Circuit, held at the

United States Courthouse in the City of

New York, on the fifth day of May one thou-

sand nine hundred and seventy-six.

Present:

Hon. Paul R. Hays,

Hon. William H. Mulligan, C.JJ.

Hon. Edmund L. Palmieri, D.J.

Cireuit Judges.

<>

Isaac Lora, by his mother and legal guardian, Carmen

Lora, Ketvin Watters, by his mother and legal guard-

ian Rita Walters, Ranseer Martin, by his mother

and legal guardian, Thelma Moore, Lawrence WHiTtTE,

by his mother and legal guardian, Mulvinina White,

Metvin Prince, by his mother and legal guardian, Jo-

ann Prince, Francisco Lueo, by his attorney, Charles

Schinitsky, on behalf of themselves and all other simi-

larly situated,

Plaintiff s-Appellants,

v.

Tue Boarp oF Epucation or THE City or New York,

James F. Recan, individually and in his official ca-

pacity as President of the Board of Education of the

City of New York, Isaran E. Rosrnson, Individually

and in his official capacity as Vice-President of the

Board of Education of the City of New York, AMELIA

H. Asue, JosepH Monserrat, Ropert CHRISTEN, JOSEPH

G. Barkan, StepHen R. Are.o, individually and in

their capacity as members of the Board of Education

of the City of New York,

Defendants-A ppellees.

76-7036

—_—

Appeal from the United States District Court for the

Eastern District of New York.

This cause came on to be heard on the transcript of

record from the United States District Court for the

Eastern District of New York, and was argued by coun-

sel.

22

On ConsIDERATION WHEREOF, it is now hereby ordered,

adjudged, and decreed that the order of said District

Court denying the preliminary injunction be and it hereby

is affirmed.

It is further ordered, adjudged and decreed that the ap-

peal from the order denying class action certification be

and it hereby is dismissed with costs to be taxed against

the appellant.

A. DANIEL FUSARO,

Clerk

by: Vincent A. Carin

Chief Deputy Clerk

23

APPENDIX C.

Transcript of Oral Decision of the United States Court

of Appeals for the Second Circuit.

UNITED STATES COURT OF APPEALS,

For THE Seconp Circuit.

——__< >

Isaac Lora, ete., et al.

v.

Boarp or Epucation or THE City or New York, et al.

Docket No. 76-7036

~~

Before:

Mulligan, Hays, Circuit Judges, Palmieri District Judge.

New York, N.Y.

May 5, 1976.

Statement made by the Court at the disposition of the ap-

peal in open court.

We have read the briefs and we have considered the

argument. First, we are affirming. With respect to the

preliminary injunctions, we feel that there was no abuse of

24

discretion at all, that there is no showing of any prob-

ability of success, that as a matter of fact the new reg-

ulations which are effective as of the first of May, in our

opinion practically moot the action. Moreover the func-

tion of the preliminary injunction is to preserve the status

quo, not to change it, and here the relief sought would

do that. With respect to the class action, we find it is not

appealable under Eisen 1. Also as the Court said below

any judgment entered here will automatically inure to

the benefit of all the so called class claimants, and I cite

to Galvin v. Levine in 490 Fed. 2nd 1261. So for these

reasons we affirm.

25

APPENDIX D.

Order of United States Court of Appeals for the Second

Circuit Denying Rehearing en banc.

UNITED STATES COURT OF APPEALS,

Seconp Circuit.

At a stated term of the United States Court of Appeals,

in and for the Second Circuit, held at the United States

Court House, in the City of New York, on the 20th day

of July, one thousand nine hundred and seventy-six.

~~

Isaac Lora, ete.,

Plaintiff s-Appellants,

v.

Tne Boarp or Epucation or THE Crry or New York, et al.,

Defendants-A ppellees.

Docket No. 76-7036

——

A petition for rehearing containing a suggestion that

the action be reheard in banc having been filed herein by

counsel for the plaintiffs-appellants, Issac Lora, etc., and

no active judge or judge who was a member of the panel

having requested that a vote be taken on said suggestion,

Upon consideration thereof, it is

Ordered that said petition be and it hereby is denied.

IRVING R. KAUFMAN

Chief Judge

26

APPENDIX E.

Relevant Statutes.

Federal Rules of Civil Procedure

Rule 23. Class Actions

(a) Prerequisites to a Class Action. One or more mem-

bers of a class may sue or be sued as representative parties

on behalf of all only if (1) the class is so numerous that

joinder of all members is impracticable, (2) there are ques-

tions of law or fact common to the class, (3) the claims

or defenses of the representative parties are typical of

the claims or defenses of the class, and (4) the represent-

ative parties will fairly and adequately protect the inter-

ests of the class.

(b) Class Actions Maintainable. An action may be main-

tained as a class action if the prerequisites of subdivision

(a) are satisfied, and in addition:

(2) the party opposing the class has acted or refused

to act on grounds generally applicable to the class, thereby

making appropriate final injunctive relief or correspond-

ing declaratory relief with respect to the class as a whole;

Pee

28 U.S.C. $1291. Final decisions of district courts

The courts of appeals shall have jurisdiction of appeals

from all final decisions of the district courts of the United

States, the United States District Court for the District

of the Canal Zone, the District Court of Guam, and the

District Court of the Virgin Islands, except where a di-

rect review may be had in the Supreme Court.

27

28 U.S.C. § 1292. Interlocutory decisions

(a) The courts of appeals shall have jurisdiction of ap-

peals from:

(1) Interlocutory orders of the district courts of the

United States, the United States District Court for the

District of the Canal Zone, the District Court of Guam,

and the District Court of the Virgin Islands, or of the

judges thereof, granting, continuing, modifying, refusing

or dissolving injunctions, or refusing to dissolve or modify

injunctions, except where a direct review may be had in

the Supreme Court...