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February 11, 1966

Wayne OLSON, a minor, by Arthur Olson, his parent and next friend, Plaintiff,
The BOARD OF EDUCATION OF UNION FREE SCHOOL DISTRICT NO. 12, MALVERNE, NEW YORK, Luis Bejarno, President, Board of Education of Union Free School District No. 12, Malverne, New York, Luis Bejarno, Fred Hook, Thomas Hanrahan, Paul A. Stone and William H. Moody, Members of the Board of Education of Union Free School District No. 12, Malverne, New York, and James E. Allen, Jr., Commissioner of Education of the State of New York, Defendants

The opinion of the court was delivered by: BARTELS

BARTELS, District Judge.

 Union Free School District No. 12 lies partially in the Village of Malverne, Lynbrook, Rockville Centre, West Hempstead and the Town of Hempstead and is known as the Malverne School District, which operates a school system containing three neighborhood elementary schools, maintaining classes from kindergarten through the fifth grade, as follows: (1) Woodfield Road School [Woodfield School]; (2) Lindner Place School [Lindner School]; and (3) Davison Avenue School [Davison School]. As a result of the residential pattern of the community, 91% of the students of the Woodfield School, 21% of the students of the Lindner School, and 18% of the students of the Davison School, are Negroes. On a district wide basis, the percentage of Negroes in the elementary grades is between 42% and 51%.

 In November of 1962, the parents of certain Negro children appealed to the Commissioner of Education (one of the defendants herein) under the New York State Education Law, McKinney's Consol. Laws, c. 16, § 310, seeking an order reversing the action of the Board of Education of District 12 [Board] which had declined to transfer their children from the Woodfield School to the other two schools having a lower percentage of Negro students, claiming that the refusal to do so deprived their children of equal educational opportunities because of the racial imbalance of the schools in the district. The Commissioner referred the matter to a three-man committee (two of whom were members of the N.A.A.C.P.) to visit the district, study the problems involved and make recommendations, which was done. Thereafter oral arguments were held and the Commissioner on June 17, 1963, made his determination in the appeal, accepting one of the Committee's proposals, which in effect ordered the Board to abandon the three neighborhood elementary attendance zones and to replace them by (a) substituting two attendance zones for grades kindergarten through 3, (K-3) by dividing the district into two approximately equal zones for attendance of all K-3 pupils in either one or the other of the remaining two schools, depending on relative proximity of the student to either one or the other of these two schools; and (b) substituting a single attendance zone for grades 4 and 5, consisting of the entire district - so that all students of grades 4 and 5 (as all students of grades 6-12 already were doing) would attend in one place, i.e., the Woodfield School (which then had had the 74% Negro attendance). *fn1"

 The Commissioner's three-man committee found, among other things, that "If racial difference were not a fact of life in this community, the attendance areas as defined could be cited as an excellent example of administrative planning" and also that "Your Committee believes that in the entire complaint there is one basic and real issue. Is the Woodfield Road School a racially imbalanced school? If it is, then it follows that the social psychological and educational problems which are ordinarily found in segregated or racially imbalanced schools are present in this situation. Your Committee has found that the Woodfield Road School is in fact a racially imbalanced school". In his order the Commissioner found, among other things, that racial imbalance existed in the Woodfield School but that the educational standards at that school were not below those of the other two elementary schools and that the Board had not been arbitrary in establishing or refusing to change school attendance lines. *fn2"

 Proceedings were then instituted in the Supreme Court of the State of New York, Albany County, under Article 78 of the Civil Practice Law and Rules [C.P.L.R.], seeking to annul the Commissioner's decisions, entitled: Vetere v. Allen and Hummel v. Allen. Upon appeal from the judgment of the Special Term annulling, in part, the Commissioner's determination, *fn3" the Appellate Division reversed this decision *fn4" and the Court of Appeals affirmed the determination of the Appellate Division with a per curiam opinion, to which there were two dissents. *fn5" Thereafter, on October 11, 1965, the United States Supreme Court denied a writ of certiorari. *fn6" Against this background, it is evident that all State administrative and judicial remedies have been exhausted. *fn7"

 In this particular case a parent of another student attending the fifth grade of the Lindner School, institutes this action pursuant to Rule 17(c), Fed.Rules Civ.Proc., 28 U.S.C.A., and under 42 U.S.C.A. §§ 1981, 1983, and 28 U.S.C.A. § 1343(3), upon the ground that the action of the Commissioner violates the plaintiff's rights under the Fourteenth Amendment and the Civil Rights Act of 1964 (42 U.S.C.A. § 2000c et seq.), seeking both a preliminary and a permanent injunction to restrain the defendants from enforcing the directive of the Commissioner to reorganize the attendance areas of Union Free School District No. 12, Malverne, New York, as above proposed. Plaintiff moves for a preliminary injunction under Rule 65(b), Fed.Rules Civ.Proc., 28 U.S.C.A., and the defendants cross-move to dismiss the complaint under Rule 12(b)(6), Fed.Rules Civ.Proc., 28 U.S.C.A., or in the alternative, for a summary judgment under Rule 56, Fed.Rules Civ.Proc., 28 U.S.C.A.


 Because the defendants' main arguments are predicated upon lack of jurisdiction, failure to state a claim for relief, and res judicata, it is appropriate to consider these contentions at the outset. It is claimed that the complaint does not set forth facts showing (i) any deprivation under color of State law or regulation of any right, privilege or immunity as required by 28 U.S.C.A. § 1343 and 42 U.S.C.A. §§ 1981, 1983, or (ii) irreparable injury, and that the Civil Rights Act of 1964, 42 U.S.C.A. § 2000c et seq., does not, as claimed by plaintiff, invalidate the Commissioner's plan. Defendants further contend that the issue has been foreclosed by the denial of certiorari by the United States Supreme Court in Allen v. Hummel and consequently no substantial Federal question is involved. Moreover, they also assert that the same denial is an indication that the Supreme Court approved the judgment of the New York Court of Appeals and hence the plaintiff is collaterally estopped from raising the same issues in this proceeding.

 Under 42 U.S.C.A. §§ 1981, 1983, and 28 U.S.C.A. § 1343, this Court is expressly vested with jurisdiction to protect against any infringement of the Federal civil rights by any State law or regulation and this jurisdiction is not defeated by the possibility that the complaint might fail to state a cause of action. That question must be decided after, and not before, the Court assumes jurisdiction. Bell v. Hood, 1946, 327 U.S. 678, 66 S. Ct. 773, 90 L. Ed. 939.

 The troublesome question here is whether the decision of the New York Court of Appeals in Vetere is res judicata. Both the constitutional requirement of full faith and credit and the doctrine of res judicata would bar a subsequent suit in a Federal court instituted by members of a class whose claims both State and Federal, were fully adjudicated in a prior State court action. *fn8" Upon analysis the Court is of the opinion that the instant case does not fall within the proscription of these principles.

 First, the Vetere suit and the present action are not between the same parties. The suit brought by the plaintiffs in Vetere did not purport to be a class action under Section 195 of the New York Civil Practice Act (now C.P.L.R. § 1005) and accordingly would not be so considered by the New York courts; *fn9" it is now too late for Vetere to be converted into a class action, which would be res judicata against the plaintiffs in this action. *fn10" This is not a case where an action was brought by "members of a class whose interests are 'indistinguishable' from those of persons involved in a prior suit" since the "circumstances differ" *fn11" ; nor has there been any proof that the plaintiffs were in privity or associated with the petitioners in Vetere. Although a prior decision of the Court of Appeals on the same issues would have great weight under the doctrine of stare decisis, it could not be described as a bar to a subsequent action in either the State or the Federal courts. *fn12"

 Second, despite the assertion by the petitioners and the mention by the dissenting judges in Vetere of the constitutional issue, *fn13" the fact remains that the majority opinion neither discussed nor purported to decide this issue but, instead, determined that the powers of the Commissioner were all but absolute, that his administrative action under the New York State Education Law was not arbitrary or illegal and that any disagreement with his conduct could "only be heard in the Legislature". *fn14" In view of these grounds, it can reasonably be said that the court in Vetere had not "directly reached the federal constitutional question of an alleged denial of petitioner's rights under the Equal Protection Clause of the Fourteenth Amendment" and accordingly that decision has "no relation to our decision here". *fn15"

 Since the parties are not the same as in Vetere and since there is uncertainty as to whether the Court of Appeals reached the constitutional question, the bar of res judicata is here surrounded by a substantial doubt. *fn16" It is pertinent to add in this connection that the plaintiff here also seeks relief under the Civil Rights Act of 1964, 42 U.S.C.A. § 2000c et seq., which had not been enacted *fn17" at the time of the trial court's decision in Vetere. The Court must, therefore, face the responsibility of considering the substantive merits of the present controversy. *fn18"

 This conclusion is not altered by the Supreme Court's denial of certiorari in Vetere inasmuch as that court has often warned the Bench and the Bar that such action cannot be considered as an expression of opinion upon the merits of any of the issues ...

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