The opinion of the court was delivered by: HERLANDS
HERLANDS, District Judge:
Seeking redress for certain alleged violations of their constitutional rights, Arthur R. Rosenberg and others have commenced this class action naming as defendants fourteen specified individuals. The defendants include the President of the University of the State of New York, the superintendent of the Rye Neck, New York school district, designated trustees of the board of education of that school district, and the membership of a group known as the "Committee for the Advancement of the Bill of Rights."
Mr. Rosenberg was employed as a probationary teacher in a Rye Neck elementary school. By a letter dated April 7, 1966, Mr. Rosenberg was informed by the superintendent of his school district that, pursuant to Section 3012(1) of the New York Education Law, McKinney's Consol.Laws, c. 16, the board of education was exercising its prerogative and discontinuing his services at the close of the 1965-66 school year. The pertinent part of that statute reads as follows:
"The service of a person appointed to any of such positions [probationary teachers, etc.] may be discontinued at any time during such probationary period, on the recommendation of the superintendent of schools, by a majority vote of the board of education."
The gravamen of the complaint is that Mr. Rosenberg's employment was not terminated for any legally sufficient reason. It is alleged that he was the victim of a conspiracy, the purpose of which was to effect the discontinuance of his employment as a school teacher in the Rye Neck school district because of certain views he holds and has seen fit in the past to express publicly about United States participation in the war in Viet Nam. It is further alleged that the termination of his employment for such reasons deprived Rosenberg of certain rights afforded him by the United States Constitution and varius federal statutes.
A number of motions are presently before the court for adjudication. The court will treat each of them separately.
The plaintiffs have moved, pursuant to 28 U.S.C. § 2281 and § 2284, for an order convening a three-judge district court to hear and determine this proceeding. (Motion No. 78). That motion is denied for the reasons hereinafter set forth.
It is the plaintiffs' position (see memorandum of law annexed to plaintiffs' motion) that this court is obliged to convene a three-judge court because the complaint seeks, among other relief, "a declaration of the Constitutional invalidity on its face of the section of the Education Law in the State of New York set forth in the complaint which provides for summary dismissal of certain teachers, principals, supervisors and members of the teaching and supervisory staff of certain schools without notice, hearing, or statement of reasons for any such dismissal"; and "an injunction permanently restraining the defendants from enforcing the said provisions on the ground that they violate the provisions of the United States Constitution and Laws, particularly the First and Fourteenth Amendments to the Constitution of the United States"; and because Rosenberg allegedly "was dismissed from a school district, pursuant to the said provision, even though he is admittedly a fine and qualified teacher because he expressed outside the classroom, but publicly, thoughts of an unpopular nature with respect to the carrying on of the Viet Nam war by the United States of America."
The fatal defect in the plaintiffs' position is that if, on the one hand, they are indeed attacking the constitutional validity of Section 3012(1) of the New York Education Law, their attack plainly lacks substantiality and must be labeled frivolous and insufficient to require the convening of a three-judge court. If, on the other hand, they are not attacking the constitutionality of the statute itself but rather the wrongful invocation of a constitutional statute to give color of authority to an unconstitutional act on the part of those charged with the statute's administration, then it is equally well settled that no three-judge court need be convened.
There is nothing on the face of the statute in question to suggest even remotely that the enacting legislature intended to confer upon the several boards of education of New York State the power to discharge probationary teachers for reasons which violate the United States Constitution. There is no basis, either in logic nor in the statute's language, to ascribe such a purpose to the New York Legislature. Moreover, the plaintiffs have not brought to this court's attention a single case wherein the courts of the State of New York have given such a construction to the statute. If Rosenberg's employment was, in fact, terminated because of his exercise of rights guaranteed to him under the federal Constitution, then such termination was clearly not authorized by Section 3012(1), both as written and as interpreted by the courts of New York State.
A passage from page 27 of the memorandum plaintiffs filed on July 29, 1966 in support of this motion is illuminating:
"The Attorney-General, in his brief opposing the convening of a three-judge court, completely misunderstands the gravamen of plaintiff Rosenberg's cause of action. In particular, plaintiff is not claiming that he has a vested right to government employment or that probationary teachers are entitled to formal charges or a hearing as a condition precedent to the failure to renew their contracts. What he is advancing is the proposition that a teacher without tenure may not be punished by the failure to renew his contract because of his exercise of a fundamental constitutional right, and, that § 3012, subdivision 1, should, at the very least, provide that he be furnished with the reason or reasons for such failure if he so desires."
The court finds the underlined portion of the quotation indisputable. However, if a teacher is so punished by his school board, it does not follow that the statute authorizes such ...