# Petition — Lora v. Board of Education > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_0729%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1976 - **Citation:** 429 U.S. 980 ## Text 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 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... --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_0729%3A1. Public record. Not legal advice.