Petition — Nyquist v. Surmeli

Ix THE

Supreme Court of the

OCTOBER TERM, 1976

No. 76- 1169 4

Ewatp B. Nyquist, as Commissioner of Education of the

State of New York; Joserpn W. McGovern, Evenerr J.

Penny, Atexanver J. Arian, Ja., Cant H. ProrsHermen,

Epwarp M. M. Warsure, Josern T. Kino, Josern C.

IypeticaTo, Herzen B. Power, Francis W. MoGrytey,

Kewvetu B. Ciarx, Harotp E. Newcooms, Tueopore M.

Black, WU Lan A. Genricn and Emiyw I. Gairrira,

constituting Tae Boarp or Recents or THe Untiversiry

or THE State or New York,

Petitioners,

against

Surm Sunn, Gevaer Turkan Atayatvac, Cevat Nezi-

roatu, Nezyar Cacryautp, Ati Mos Tosyaui, Suncer

Tron, Semra H. Guwopay, and Au Goxnay,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SECOND CIRCUIT

Louis J. Lerxowrrz

Attorney General of the

State of New York

Attorney for Petitioners

Office & P.O. Address

Two World Trade Center

New York, New York 10047

Tel. No. (212) 488-3394

Saul A. Himsnowrrz

First Assistant Attorney General

Rosert S. Hammer

Assistant Attorney General

of Counsel

*

TABLE OF CONTENTS

PAGE

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...... 2

Constitutional Provisions, Statutes and Regulations

88 cn csccqnevvécnst césenn 3

. bbc dec wetcedeccccccnteccedes 4

Reasons for Granting the Writ .................... 6

1 10

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Opinion of the District Court ..................... 3a

Ix THE

Supreme Court of the Anited States

OCTOBER TERM, 1976

*

Ewu B. Nyquist, as Commissioner of Education of the

State of New York; Josepn W. McGovern, Everetr J.

Penny, ALEXANDER J. ALLAN, In., Cant H. ProrsHEIMER,

Epwarp M. M. Warsvurc, Josepn T. Kino, Josern C.

InpeticaTo, Hetew B. Power, Francis W. Meder,

Kewwetso B. CLAnk, Harorn E. Newooms, Tueopore M.

Black, WILIA A. Genaicn and Emtiyw I. Garrrira,

constituting Tue Boarp or Recents or THE UNIveRsITY

or THE State or New York,

Petitioners,

against

Surni Sunn, Gevaer Turkan Atayatvac, Cevat Nezi-

nOGLU, Nezar Cacrnaup, Ati Mosi Tosyaui, Suncer

Tece, Searm H. Guwpay, and Alu Goxnan,

Respondents.

*

vv

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SECOND CIRCUIT

Petitioners, the Commissioner of Education of the State

of New York, and the members of the Board of Regents of

the University of the State of New York respectfully pray

that a writ of certiorari issue to review the judgment of

the Court of Appeals for the Second Circuit entered herein

on November 24, 1974.

2

Opinions Below

The decision of the Court of Appeals was rendered with-

out opinion and is not yet reported. A copy of that Court’s

order of affirmance is appended hereto at page la. In

announcing its decision, the presiding judge stated that the

Court was affirming upon the opinion of the District Court

for the Southern District of New York. The District Court

opinion is reported at 412 F. Supp. 394 and is appended

at page 3a. The judgment of the District Court is ap-

pended at page 10.

Jurisdiction

The judgment of the Court of Appeals was rendered

and entered on November 24, 1976. The jurisdiction of

this Court to review that judgment rests on 28 U.S.C.

§ 1254(1).

Questions Presented

1. Were respondents estopped from challenging the con-

stitutionality of the statutes and regulations at bar by ac-

cepting their benefits?

2. Did the Courts below err in failing to address them-

selves initially to a non-constitutional question, viz.

whether the challenged statutes and regulations infringed

a federally pre-empted area?

3. Are State statutes and regulations which require an

alien licensed as a physician to become naturalized within

ten years, a violation of the Equal Protection Clause of the

Fourteenth Amendment to the Constitution?

Constitutional Provisions, Statutes and

Regulations Construed

United States Constitution, Article I, 68 provides in

pertinent part: A

“The Congress shall have the power * to establish

a uniform Rule of Naturalization * * *”

United States Constitution, Article VI, provides in per-

tinent part:

“This Constitution, and the Laws of the United States

which shall be made in Pursuance thereof; and all

United States Constitution, Amendment XIV, $1 pro-

vides in pertinent part:

“* * * nor shall any State deprive any person of

* * * liberty or property, without due process of law;

nor deny to any person within its jurisdiction the equa!

protection of the laws.”

New York Education Law § 6524(6) provides:

“To qualify for a license as a physician, an applicant

shali fulfill the following requirements: (6) Citizen-

ship: be a United States citizen or file a declaration

of intention to become a citizen unless such require-

ment is waived, in accordance wtih the commissioner’s

regulations

New York Education Law former 9 6509 provides:

“There shall be issued to an applicant who, when ad-

mitted to the licensing examination, was a citizen of

4

a foreign country, and who had declared intention of

becoming a citizen.of the United States, upon passing

the examination, a license but upon failure of such li-

censee within ten years from the date of such declara-

tion of intention to furnish evidence that he has

become a citizen his license shall terminate and his

registration shall be annulled.”

8 NYCRR § 24.7 provides:

“24.7 Extension of a professional license. For the

extension of a professional license for time in which

to complete requirements as to the United States

citizenship, not exceeding two years, the Committee on

the Professions may accept satisfactory evidence of

persona! or family illness or other extenuating circum-

stances.”

Statement of the Case

Petitioners seek review of a judgment of the Court of

Appeals for the Second Circuit which affirmed a judgment

of the District Court for the Southern District of New

York (Hon. Edward Weinfeld, J.) declaring unconstitu-

tional as in violation of the Equal Protection Clause

of the Fourteenth Amendment, N.Y. Education Law

§ 6524(6), former 9 6509 and 8 NYCRR 247 which pro-

vide, that aliens licensed as physicians are subject to hav-

ing their licenses revoked unless they acquire United

States Citizenship within ten years (1la).*

The facts of this case are not in dispute.

Plaintiffs are resident alien physicians presently li-

censed to practive medicine in the State of New York (3a).

Under N.Y. Edueation Law § 6624(6) to be licensed as a

physician, one must either be a citizen unless that re-

Numbers in parentheses followed “a’’ refer to pages of

the Appendix. *

quirement is waived in accordance with the Commissioner

of Education's regulations, 8 NYCRR 4% 24.7, 60.9.

Under former § 6509, an alien physician so licensed

would be required to exhibit proof of United States citi-

zenship within ten years or such license would be subject

to cancellation. This requirement was transferred to the

Commissioner’s regulations, see 8 NYCRR § 24.7 as part

of the recodification of the New York Education Law.

See L. 1971, C.987, eff. September 1, 1971.

Unless plaintiffs submit proof that they have assumed

United States Citizenship, within ten years of their li-

censure (unless such requirement is deferred or waived,

8 NYCRR 5 24.7, 60.9) their licenses would be subject

to cancellation (3-4a).

Suing under the civil rights law, 42 U.S.C. § 1983 and

28 U.S.C. 5 1343 as well as daiming federal questions, 28

U.S.C. § 1331, plaintiffs alleged that the licensing statute

and regulations thereunder denied them due process, the

equa! protection of the laws and interfere with the federal

naturalization laws, they sought a judgment declaring the

statute and regulations thereunder null and void (4a).

The defendants, consisting of the Commissioner of Edu-

cation, the members of the Board of Regents of the Uni-

versity of the State of New York, the State and its Edu-

cation Department,“ contended that having accepted li-

censure plaintiffs were estopped from challenging the con-

ditions of licensure imposed under the statute and regu-

lations (4a); that the statutes and regulations neither

infringed federal power over immigation and naturaliza-

tion had denied the plaintiffs the equal protection of the

laws (7a).

The District Court rejected the claim of estoppel (45a)

and held the statute and regulations unconstitutional,

largely on the authority of In re Griffiths, 413 U.S. 717

(1973). The court refused to address itself to defendants’

contention that the non-constitutional question of federal

supremacy, which it was argued, should have been dealt

with before reading plaintiffs’ “equal protection’’ claims

(8a).

An appeal was taken to the Court of Appeals for the

Second Cireuit which summarily affirmed the District

Court (la).

Reasons for Granting the Writ

L.

In overruling petitioners’ contention that respondents

were estopped from challenging the statutory scheme

under which they had applied for and had accepted li-

censure, the courts below have decided an important qnes-

tion of law which has not been, but should be, settled by

this Court.

This Court’s past decisions have produced conflicting

authority on this point, Cf. Ashwander v. T.V.A., 297 US.

288, 323, 348 (1936), which precluded a challenge where a

statute’s benefits have been accepted, with W.W. Cargill

Co. v. Minnesota, 180 US. 452, 468 (1901), contra. In its

most recent comment on this issue, this Court has only

underscored the uncertainty that exists over whether the

beneficiary of a statute may challenge its constitutionality,

see Arnett v. Kennedy, 416 U.S. 134, 153 (1975).

This question is obviously one of substantial public im-

portance. The sheer volume of constitutional litigation

faced by government at every level is large enough. It

should not, we urge, be necessary to defend lawsuits

brought by individuals who wish to have their cake and

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— US. — , 4 US.LW. 4235, 4239 (1976) ; Mathews v.

Diaz, —— US. —, 44 US.LW. 4748, 4753 (1976):

Hampton v. Mow Sun Wong, — US. —, # US.L.W.

4737, 4738-4739 (1976). In the interests of comity and

federalism, the lower courts should not have reached the

constitutional issues unless they were unavoidable.

This case presents yet another important question not

heretofore decided by this Court.

Unlike the statutes struck down in Graham v. Richardson,

supra, which barred al! aliens who were not residents for at

least fifteen years from welfare benefits, Sugarman v.

Dougall, 413 U.S. 1634 (1973) which placed an absolute bar

against employment of aliens in all civil service jobs, In re

Griffiths, 413 U.S. 717 (1973) which barred aliens from the

practice of law, or the recently decided DeOtero case, supra,

which barred aliens from the private practice of engineer-

ing, the statutes under review herein do not prevent aliens

from being licensed to practice medicine. The plaintiffs

at bar are perfect illustrations. Their alienage posed no

barrier to their licensure. No “irrebutable presumption” of

unfitness, ef. Cleveland Board of Education v. LaFleur,

414 U.S. 682 (1974), was used to their detriment. Since

N.Y. Education Law §§ 6524(6) and 6509 do not involve an

absolute denial of a privilege because of alienage, cf.

DeOtero, supra at 44 U.S.L.W. 4489, the traditional “ra-

tional relationship” test, see e.g. McGowan v. Maryland,

366 U.S. 420, 425 (1961) would be used in determining con-

stitutionality. The Courts below have erroneously read

this Court’s decisions as barring any state statutory pro-

vision referring to aliens, a conclusion which appears to

us to be contrary to the careful delimitation in such cases.

Under its statutory scheme, the State of New York per-

mits any qualified alien to become licensed to practice

medicine. It does, however, require that within the time

that one would expect a professional to become established

in practice that he demonstrate a political commitment to

this country and the community within which he resides

and practices his profession.“

The organization and delivery of health care are matters

of concern to the community and necessarily enter into the

political sphere. Matters of public policy involving regu-

lation of abortion, definition of death, withdrawal of care

* This requirement is waived in special circumstances, 8 NYCRR

§ 60.9.

to the hopelessly ill, to name a few, are questions upon

which members of the medical profession ought to be heard

and to fully participate when political and legal decisions

are made. As aliens, plaintiffs cannot possibly participate

fully in the affairs of the community. The State therefore

has a vital interest in encouraging their full participation,

as well as for the general reason that those who are edu-

cated, talented and esteemed in the community should be

encouraged to participate in public affairs.

Since the State may define its political community and

establish citizenship as a qualification for full civic par-

ticipation, Sugarman v. Dougall, supra, 413 U.S. at 642-

643; Dunn v. Blumstein, 405 U.S. 330, 334 (1972). Kramer

v. Union Free School District, 395 U.S. 621, 626 (1969), it

may adopt what it deems an effective method to achieve

that end, Rosario v. Rockefeller, 410 U.S. 752, 762 n. 10

(1973).

Moreover, a political commitment to the United States

will tend to promote stability in the treatment of patients

in plaintiffs’ respective communities. An alien physician

who remains a ‘‘sojourner’’ rather than become a citizen

is more likely than the latter to remove from the country,

leaving his patients to become familiar with another doctor.

Plaintiffs’ increased skills and experience as acquired over

the years is a compelling reason why the State should be

permitted to encourage them to remain and be naturalized.

The lower courts’ rationale thus supports petitioners’

position.

10

CONCLUSION

Certiorari should be granted.

Dated: New York, New York

February i8, 1977

Respectfully submitted,

Louis J. Lerxowrrz

Attorney General of the

State of New York

Attorney for Petitioners

Sauk A. HinsHowrrz

First Assistant Attorney General

Rosert S. HaMMER

Assistant Attorney General

of Counsel

la

Judgment of Affirmance.

UNITED STATES COURT OF APPEALS

FOR THE

Seconp Cmcurr

At a stated Term of the United States Court of Appeals

for the Second Circuit, held at the United States Court-

house in the City of New York, on the twenty-fourth day

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

Present: How. Waurer R. Mansrietp

Hon. ELAswonrn A. VANGRAAFEILAND

How. THomas J. Mesxri.

Cireuit Judges,

76-7291

+

Suphi Surmeli, Gevher Turkan Atayalvic, Cevat Neziroglu,

Nejar Caginalp, Ali Muahin Tesyali, Sunger Tece,

Semih H. Gunday, and Ali Gokhan,

Plaintiffs- Appellees

V.

The State of New York, New York State Education De-

partment, Ewald B. Nyquist, as Commissioner of Edu-

cation of the State of New York, Joseph W. McGovern,

Ererett J. Penny, Alexander J. Allan, Jr., Carl H.

Pforzheimer, Edward J. J. Warburg, Joseph T. King,

Joseph C. Indelicato, Helen B. Power, Francis W.

McGinley, Kenneth B. Clark, Harold E. Newcomb,

Theodore M. Black, Willard A. Genrich and Emlyn I.

Griffith, constitutiing The Board of Regents of the Uni-

versity of the State of New York,

Defendants- Appellants.

+

2a

Judgment of Affirmance.

Appeal from the United States District Court for the

Southern District of New York.

This cause came on to be heard on the transcript of

record from the United States District Court for the

Southern District of New York, and was argued by counsel.

ON OONSIDERATION WHEREOF, it is now hereby ordered,

adjudged and decreed that the judgment of said District

Court be and it hereby is affirmed with costs to be taxed

against the appellants.

A. Daxter Fusaro

Clerk

by

Vincent A. Carlin

Chief Deputy Clerk

3a

Opinion of the District Court.

Epwarp WEIxT EI, District Judge.

Plaintiffs commenced this action for a judgment declar-

ing unconstitutional the New York State Education Law,

section 6524(6), and the rules and regulations promul-

gated thereunder which (1) require that a physician, to be

licensed to practice medicine in the state, must be either a

citizen of the United States or file a declaration of intent

to become a citizen, and (2) terminate any such license

upon the alien physician’s failure to become a citizen

within ten years of licensure.’ Since the material facts are

not in dispute, the parties agree that the matter is ripe for

summary disposition pursuant to Rule 56 of the Federal

Rules of Civil Procedure.

Plaintiffs, eight physicians, citizens of Turkey, are all

resident aliens of the United States and have been licensed

to practice medicine by the State of New York under the

challenged provision. They were individually licensed on

various dates during the period of 1965 to 1971 and are

This section r former § 6509, which was repealed in 1971

and which

.

to the licensing examination, was a citizen of a coun-

try, and who had declared intention of becoming a

if

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11

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4a

Opinion.

practicing their particular disciplines both privately and

at medical institutions. The license of each specifies the

date by which citizenship is “required” and each is in im-

minent danger of revocation of his license under the chal-

lenged provision on the sole ground that he has not become

a citizen within the prescribed time period.

The complaint charges that the state regulatory scheme

which would deprive plaintiffs, who have already been

found qualified as physicians and licensed to practice, of

their licenses exclusively on the basis of their alienage vio-

lates their constitutional rights to equal protection of the

laws and due process under the Fourteenth Amendment,’

and further that this program interferes with the exclusive

federal authority to regulate immigration and naturaliza-

zation under Article VI of the Constitution.

[l, 2] The defendants, at the threshold, contend that

plaintiffs, having obtained the benefits of the licensing

statute, are estopped from challenging its constitutional-

ity." However, this doctrine of estoppel is a slender reed

for defendants to rely on in their attempt to foreclose

plaintiffs’ constitutional attack. As the Supreme Court

observed recently: ‘‘[T]his doctrine has unquestionably

been applied unevenly in the past, and observed as often

as not in the breach.“ Plaintiffs, once having been found

qualified and licensed to practice, acquired a property

right wi.ich was entitled to constitutional protection.’ The

* Plaintiffs assert this cause of action under the Fourteenth

Amendment and under 42 U.S.C. § 1983.

* Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 348,

56 8. Ct. 466, 483, 80 L.Ed. 688, 711 (1936).

* Arnett v. Kennedy, 416 U.S. 134, 153, 94 S.Ct. 1633, 1644, 40

L. Ed.2d 15, 33 (1975).

The Supreme Court has consistently held that [a] State can-

not exclude a person from the practice of law or from any other

(footnote continued on following page)

oo

— . —ñ6—) — —

5a

Opinion.

acceptance of the license did not deprive them of the right

to challenge the constitutional validity of the ten-year re-

striction. As the first Mr. Justice Harlan reasoned in

W. W. Cargill Co. v. Minnesota:*

‘(T]he acceptance of a license, in whatever form, will

not impose upon the licensee an obligation to respect

or to comply with any provision of the statute or with

any regulations prescribed by the state . . . that are

repugnant to the Constitution of the United States.

If the [state] refused to grant a license, or if it

sought to revoke one granted, because the applicant in

the one ease, or the licensee in the other, refused to

comply with statutory provisions or with rules or

regulations inconsistent with the Constitution of the

United States, the rights of the applicant or the licensee

could be protected and enforced by appropriate judicial

proceedings. [emphasis added.]

The court holds plaintiffs are not debarred from attacking

the provision requiring citizenship within a ten-year period,

absent which their licenses are subject to revocation.

We now turn to the merits of plaintiffs’ claims. Initially

they contend that the defendants’ threatened and present

enforcement of the statute ‘‘arbitrarily and irrationally

(footnote continued from preceding page)

occupation in a manner or for reasons that contravene the Due

Process or Equal Protection Clause of the Fourteenth Amend-

ment. Schware v. Board Bar Examiners, 353 U.S. 232, 77

which the Court held that the] right to hold specific private

employment and to follow a chosen profession free from unrea-

sonable governmental interference comes within the ‘liberty’ and

21 of the Fifth Amendment. United States v.

riggs, 514 F.2d 794, 798 (Sth Cir, 1975).

*180 U.S, 462, 468, 21 S.Ct. 423, 429, 45 L.Ed. 619, 626

(1901).

6a

Opinion.

discriminate against, and separately classify and treat, the

plaintiffs solely on the basis of their alienage’’ in violation

of the equal protection clause of the Fourteenth Amend-

ment.

The issue so presented seemingly was put at rest in

In re Griffiths,’ where the Supreme Court held unconstitu-

tional Connecticut’s exclusion of aliens from admission to

practice law. The Court premised its judgment upon basic

constitutional concepts: first, that a lawfully admitted

resident alien is a ‘‘person” within the Fourteenth Amend-

ment’s prohibition against denial ‘‘to any person within

its jurisdiction the equal protection of the laws”’;* second,

that the ‘‘right to work for a living in the common occupa-

tions of the community is of the very essence of the

personal freedom and opportunity that it was the purpose

of the [Fourteenth] Amendment to secure“; third, that

‘‘classifications based on alienage, like those based on

nationality or race, are inherently suspect and subject to

close judicial scrutiny“';“ fourth, that a state which adopts

a suspect classification ‘‘bears a heavy burden of justifica-

tion“; and fifth, that “to justify the use of a suspect

classification, a State must show that its purpose or in-

terest is both constitutionality permissible and substantial

and that its use is necessary. . to the accomplishment’

of its purpose or the safeguarding of its interest.“

413 US. 717, 93 S.Ct. 2851, 37 L.Ed.2d 910 (1973).

* Yick Wo v. Hopkins, 118 U.S. 356, 369, 6 S.Ct. 1064, 1070, 30

I. Ed. 220, 226 (1886).

* Truaz v. Raich, 239 U.S. 33, 41, 36 S.Ct. 7, 10, 60 L. Ed. 131,

135 (1915).

” Graham v. Richardson, 403 U.S. 365, 372, 91 S.Ct. 1848, 1852,

29 L.Ed.2d 534, 541 (1971).

™ McLaughlin v. Florida, 379 U.S. 184, 196, 85 8.Ct. 283, 290,

13 L.Ed.2d 222, 231 (1964).

In re Griffiths, 413 U.S. 717, 721-22, 93 S.Ct. 2851, 2855, 37

L.Ed.2d 910, 915 (1973).

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the state urges, or the compelling or overriding state in-

terest test is the proper standard,” the conclusion is com-

pelled that the state’s requirement of citizenship as a condi-

tion of continued licensure after it has already found an

alien physician qualified and licensed him to practice his

profession bears no logical relationship to his continued

professional competence and thus lacks a rational basis.

The requirement of citizenship after ten years of licensure

is not to test or determine the physician’s professional

competence; that was decided when the plaintiffs were

previously licensed by the state and permitted to minister

to the ill in the community. Their competency during that

period in no respect depended upon their citizenship. Each

now has the advantage of additional years of experience.

If anything, this experience makes them better qualified

than when they were first granted their licenses. Thus the

instant case is even stronger than Ja re Griffiths, where

the state sought to justify exclusion of aliens from the

practice of law; here the state seeks to justify expulsion

from the practice of medicine after having found plaintiffs

qualified and permitted them to practice for ten years,

during which period they were subject to disciplinary action

for any professional misconduct. The state’s attempted

justification is without substance and accordingly the court

decrees section 6524(6) of the State Education Law and the

rules and regulations promulgated thereunder unconstitu-

tional as an unlawful discrimination against resident aliens,

in violation of the equal protection clause of the Fourteenth

Amendment.”

* See In re Gri 413 U.S. 717, 722 n. 9, 93 S.Ct. 2851, 2855,

37 L.Ed.2d 910, 915 (1973).

Nr 413 U.S. 634, 646, 93 8. Ot.

2842, 2849, 37 L. . SS (): ©. SS ee

v. Board of Educ, —— F Supp. ——, 1976 (E.D.N.Y. 3-judge

(footnote continued on following page)

9a

—

This disposition makes is unnecessary to consider plain-

tiffs’ further argument that the act is unconstitutional

because it interferes with the exclusive federal power over

aliens.

4] Plaintifis’ motion for summary judgment is granted,

but only as to the individual defendants, since the defend-

ants State of New York and the New York State Education

Department are not amenable to suit.“

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Judgment.

UNITED STATES DISTRICT COURT

Soutruern District or New York

U.S. Disraicr Court

Fucep

May 18, 1976

S.D.N.Y.

75 Civil 4520

~~

—

Supui Sunn, GEIE Turkan Atayarvac, Cevat Nezi-

rootu, NIA Caornate, Ati Musi Tosyaui, Suncer

Tece, Semrra H. Guynpar, and Au; Goxmax,

Plaintiffs,

—against—

Tue State or New York; New Yorx Strate Epvucation

Department; EWA B. Nyquist, as Commissioner of

Education of the State of New York; Joszrn W. Mo-

Govern, Everert J. Penny, Avexanper J. AAA, In.,

Carat H. Prorzmemer, Enwarp M. M. Waun, Josern

T. Kuve, Josern C. Lypeticato, Hetew B. Power, Francis

W. Meter, Kewwern B. Crank, Hao R. Newcoms,

Tueopore M. Brack, WIA A. Gewaicn and EM I.

Gntrrrrn, constituting Tue Boarp or Recents or THE

Unrvensrry or THe State or New York,

Defendants.

~~

Plaintiffs having moved for summary judgment declar-

ing New York State Education Law § 6524(6) and the rules

and regulations promulgated thereunder including 8 New

York Code Rules and Regulations § 24.7 unconstitutional,

lla

Judgment.

and the Court having filed its written opinion dated Apri!

7, 1976 granting plaintiffs’ motion except as to defendants

The State of New York and The New York State Education

Department ;

It is Onperep, Apsupcep Ax D Dec iarep that:

1. Plaintiffs’ motion for summary judgment is granted,

except as to defendants The State of New York and the

New York State Education Department;

2. New York State Education Law § 6524(6) and the

rules and regulations promulgated thereunder, including

8 New York Code Rules and Regulations § 24.7, are un-

constitutional uader the Fourteenth Amendment of the

United States Constitution;

3. Plaintiffs shall recover of all defendants except the

State of New York and the New York State Education

Department, jointly and severally, costs of this action,

and it is further

Ordered that the judgment entered by the Clerks of

the Court on April 9, 1976 is vacated.

Dated: New York, New York

May 17, 1976

Jupement Ewterep—5/18/76

s/ Raymonp F. Buremarpt

Clerk of the Court

The foregoing is approved as to form.

s/ Epwarp WEINFELD

US.DJ.