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April 10, 1967

Victor MADERA, Ramiro Madera and Manuela Madera, Plaintiffs,

The opinion of the court was delivered by: MOTLEY

Findings of Fact and Conclusions of Law

 MOTLEY, District Judge.

 The minor plaintiff, Victor Madera, is a 14 year old pupil enrolled in Public School 22, a junior high school in the New York City public school system. On February 2, 1967, Victor was suspended from school by the principal. He has been out of school since that date.

 After Victor was suspended, the principal of his school notified the District Superintendent of District No. 1, Miss Theresa Rakow, a defendant in this suit. *fn1" Miss Rakow notified Victor's parents, the adult plaintiffs, that a conference would be held in her office on February 17, 1967 with regard to Victor's suspension. The notice advised: 1) there would be a Spanish translator to translate "for all of us," and 2) a friend could be brought to assist the parents in this translation. The notice stated: "You are hereby advised that you are to be present at this conference. Please bring (Victor) with you * * *." The letter was in both English and Spanish. Victor's mother speaks Spanish; she does not speak or understand English. The principal's actions and Miss Rakow's actions were taken pursuant to General Circular No. 16, (1965-1966). *fn2" This circular embodies the rules and regulations promulgated by the other defendants, the Board of Education of the City of New York and the Superintendent of Schools, with regard to pupil suspensions.

 After Victor's parents received the notice, they secured an attorney who contacted Miss Rakow's office to notify her that the attorney would appear at the February 17 hearing. *fn3" The attorney was advised that he could not attend the hearing. Circular No. 16 provides as follows:

"Inasmuch as this is a guidance conference for the purpose of providing an opportunity for parents, teachers, counselors, supervisors, et al., to plan educationally for the benefit of the child, attorneys seeking to represent the parent or child may not participate." (Circular No. 16, p. 5)

 On February 16, 1967, at 8:15 P.M., after notice to defendants and oral argument, this court issued a temporary restraining order restraining defendants as follows:

"From holding any proceedings at which the rights of any of the plaintiffs may be affected and, particularly, from conducting the 'Assistant Superintendent's Hearing' scheduled for February 17, 1967, without permitting plaintiffs' legal counsel to be present and to perform his tasks as an attorney."

 The incident which precipitated Victor's suspension on February 2 resulted in the filing of a charge of juvenile delinquency against him on February 8 by a teacher, an employee of defendant Board of Education, in the Family Court. New York Family Court Act, §§ 712, 733. *fn4" The same attorneys representing plaintiffs here also were retained to represent Victor in the Family Court. The New York Family Court Act, § 728, gives Victor the right to counsel in a juvenile delinquency proceeding. On February 28, the claim that Victor was a juvenile delinquent was dismissed by the Family Court. There "was a substitution and a finding that has not been completed, a fact-finding that (Victor) is a young person in need of supervision." *fn5"

 Defendants did not proceed with the February 17 hearing under the conditions permitted by the temporary restraining order. The order also required counsel for both sides to appear in court on February 21, at which time reargument would be heard on the temporary restraining order and plaintiffs' application for a three-judge court.

 On February 21, defendants requested and were granted a continuance on the ground that all defendants had not been served. Defendants agreed to a continuance of the temporary restraining order until March 1 at which time, if a three-judge court was not required, the court would proceed to hear plaintiffs' motion for preliminary injunction.

 On February 24, plaintiffs filed an amended complaint and motion for preliminary injunction. The original complaint predicated jurisdiction wholly upon Title 28, United States Code, § 1331. Declaratory relief, *fn6" interlocutory and permanent injunctive relief were sought. The original complaint prayed for the convening of a special three-judge district court to hear and determine this action. Title 28, U.S.C., §§ 2281, 2284. The amended complaint also prayed for the convening of a three-judge court but invoked an additional jurisdictional base for this cause, i.e., Title 28, U.S.C., § 1343. The amended complaint relied upon the provisions of Title 42, U.S.C. §§ 1981 and 1983 as the federal statutes giving rise to this cause of action.

 On March 1, 1966, this court ruled that this cause is not properly a cause of action requiring a statutory three-judge court. Under constitutional attack here is a provision of a circular issued by a local school board, not the constitutionality of any state statute. *fn7" The "no attorneys provision" is not mandated by any state law. However, the circular is promulgated pursuant to authority granted by a state statute. New York Education Law, McKinney's Consol. Laws, c. 16, § 2554(13)(b). Nevertheless, the attack upon the circular does not present the type of constitutional challenge to state action that would require the convening of a three-judge court. The guiding principle for three-judge court cases was laid down by the Supreme Court in Phillips v. United States, 312 U.S. 246, 61 S. Ct. 480, 85 L. Ed. 800 (1941) as follows:

"To bring this procedural device into play - to dislocate the normal operations of the system of lower federal courts and thereafter to come directly to this Court - requires a suit which seeks to interpose the Constitution against enforcement of a state policy, whether such policy is defined in a state constitution or in an ordinary statute or through the delegated legislation of an 'administrative board or commission'. The crux of the business is procedural protection against an improvident state-wide doom by a federal court of a state's legislative policy." (at 251, 61 S. Ct. at 483).

 Consequently, where that which is under attack is not mandated by state law but is only a regulation of a local school board, adopted on its own volition, and is not of state-wide application, although authorized by state law, the controversy may be properly adjudicated by a single judge court. Griffin v. County School Board of Prince Edward County, Va., 377 U.S. 218, 84 S. Ct. 1226, 12 L. Ed. 2d 256 (1964); Sweeney, et al., v. State Board of Public Assistance, 36 F. Supp. 171 (M.D.Pa.1940), aff'd 3 Cir., 119 F.2d 1023.

 When the hearing on plaintiffs' motion for preliminary injunction commenced on March 1, defendants moved to dismiss the case as moot on the ground that the Family Court proceeding had already taken place. One of plaintiffs' claims on their application for a temporary restraining order was that counsel should be permitted at the February 17 Guidance Conference because the facts adduced from Victor there could be used against him in the subsequently scheduled Family Court hearing on the juvenile delinquency charge where Victor's personal liberty would be in jeopardy. Family Court Act, § 744. *fn8" Plaintiffs also claimed that the February 17 Guidance Conference might result in forcing adult plaintiffs to choose between signing a "consent", required by law, which would enable the school authorities to make whatever school or other institutional placement they deemed desirable for Victor, or face neglect charges in Family Court for failure to sign the "consent". New York Education Law, §§ 3205, *fn9" 3212, subds. 1, 2, par. b, *fn10" 3214; *fn11" New York Family Court Act, §§ 312, *fn12" 332, *fn13" 335, *fn14" 337. *fn15"

 Plaintiffs' constitutional contentions with respect to the foregoing claims are: 1) the "no attorneys provision" of Circular No. 16 deprives them of protection for their right against self incrimination, right to counsel and right to due process guaranteed by the Fifth, Sixth and Fourteenth Amendments to the Constitution of the United States, since any statements made by them in, or as a part of, the Guidance Conference may be used against them in subsequent Family Court proceedings, where Victor's personal liberty will be in jeopardy, and 2) the minor plaintiff's right not to testify against himself must be preserved because one of the consequences of a Guidance Conference may also be loss of personal liberty. Circular No. 16, p. 5.

 As indicated above, the Family Court proceeding against Victor had not been completed on March 1. Moreover, it was clear to this court that plaintiffs' claims in this action were not limited to the foregoing described claims. In addition, plaintiffs claim that as a result of a Guidance Conference, Victor may be suspended from school for an indefinite period of time, placed in a school for socially maladjusted children (formerly known as "600" schools), involuntarily incarcerated in an institution, or referred to the Family Court for appropriate action. (Amended Complaint, para. 15).

 Plaintiffs' constitutional contention with respect to these claims is that since the above enumerated irreparable consequences can flow from a Guidance Conference, the "no attorneys provision" of Circular No. 16 may result in Victor being denied his right to attend the public schools granted him by the Constitution and Education Law of the State of New York, without due process of law guaranteed by the Fourteenth Amendment. *fn16"

 After considering the gravity of plaintiffs' constitutional claims, and the fact that the Family Court proceeding had not been concluded, this court ruled on the March 1 hearing that plaintiffs' case was not moot.

 Defendants' counsel then moved to dismiss on the ground that plaintiffs had abandoned their attack on the constitutionality of certain provisions of the New York Education Law and were now proceeding under the Civil Rights Law which plaintiffs had not previously invoked. Defendants' counsel was mistaken in this belief. Plaintiffs in amending their complaint rely on a Federal Civil Rights Statute, i.e., Title 42, U.S.C., § 1983. *fn17"

 This statute gives plaintiffs the right to bring this action for injunction to enjoin defendants who, plaintiffs claim, acting under color of state law, are unconstitutionally enforcing the "no attorneys provision" of Circular No. 16 against plaintiffs. Such state action, plaintiffs maintain, violates their rights guaranteed by the Fifth, Sixth and Fourteenth Amendments to the Constitution of the United States. This court has jurisdiction of such an action. Monroe v. Pape, 365 U.S. 167, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1961); Taylor v. Board of Education of City School Dist. of City of New Rochelle, 294 F.2d 36 (2d Cir. 1961), cert. denied, 368 U.S. 940, 82 S. Ct. 382, 7 L. Ed. 2d 339. Title 28, U.S.C. § 1343(3). *fn18"

 Defendants have questioned the propriety of a federal court determining the issues raised in this case on the ground that this is a matter preferably handled by the state. However appropriate such considerations of state as opposed to federal relief may be in some cases, it does not appear that this is a proper case for the court to refrain from acting. It is now a well settled principle that relief under the Federal Civil Rights Acts may not be defeated because relief was not first sought under state law which provided a remedy. Monroe v. Pape, supra. The whole purpose of the Federal Civil Rights Acts would be seriously undermined if a federal claim in a federal court must await an attempt to vindicate the very same claim in a state court. McNeese v. Board of Education, 373 U.S. 668, 83 S. Ct. 1433, 10 L. Ed. 2d 622 (1963). Where the terms of the state (local school board) provision under attack are clear, there is no basis for abstention to require plaintiffs to exhaust either state administrative or judicial remedies. Rivers v. Royster, 360 F.2d 592 (4th Cir. 1966). As another federal court said in a school case involving suspensions and expulsions, Woods v. Wright, 334 F.2d 369, 374-375 (5th Cir. 1964):

"We are fully aware of the reluctance with which the Federal Courts should contemplate the use of the injunctive power to interfere with the conduct of state officers. But when there is a deprivation of a constitutionally guaranteed right the duty to exercise the power cannot be avoided."

 Upon the hearing of plaintiffs' motion for preliminary injunction and upon the trial, which were consolidated, the following facts were established in addition to those set forth above: *fn19"

 There are 1,084,818 pupils in the New York City public school system, 20.9% of whom are Puerto Rican, 29.3% are Negro, and 49.8% are white.

 School District No. 1 is located in Manhattan, one of the five boroughs (counties) which comprise the City of New York. The District boundaries, generally speaking, are from Grand Street north to 21st and 23rd Streets and from the Bowery and Fourth Avenue to the East River. The area thus described is commonly referred to as the Lower East Side. It is a racially mixed area but predominantly Puerto Rican. It is a community of low income families in the main. There are 28,000 pupils in the District in a total of twenty-three schools. There are 14 elementary schools, 4 junior high schools, 2 special schools for socially maladjusted children, and 3 high schools in District No. 1.

 District Superintendent Rakow, in addition to having responsibility for the supervision of the educational program of the District, conducts hearings relating to the suspension of students, as required by New York Education Law, § 3214. Miss Rakow and the other school authorities choose to refer to these hearings as "Guidance Conferences". These conferences are conducted in cases where a student has been suspended by the principal. Once a principal has suspended a child and so notified the parents and Miss Rakow, it is Miss Rakow's duty to hold a "Guidance Conference", "to determine", to use her words, "what next educational step may be taken to help the child." There are two kinds of principal's suspensions. There is what is called a "principal suspense which means that the principal merely suspends the child from school service until such a time as he personally can confer with the parent and try to make the adjustment directly in the school." In such a case, the principal is limited to keeping the child from school for no more than five days. The principal generally meets with a parent before a suspension to try to adjust the problem. However, if there is some emergency where there is not time to meet with the parent, a principal might suspend immediately. After a principal's conference with the parent, the child is returned to school. A child does not normally go to the District Superintendent's office immediately after the principal's suspension as was the case with Victor. If after the pupil has returned to school there continues to be a problem which the principal feels he cannot handle, then the principal can suspend the pupil and refer that suspension to the District Superintendent. There is no evidence that Victor had been thus previously suspended by the principal.

 When a suspended pupil is referred to the District Superintendent this is known as an "administrative suspense." There is no hearing held by the principal before an "administrative suspense" takes place. When the District Superintendent receives a copy of a letter from the principal to the parents stating that the child has been suspended, the District Superintendent notifies the parent of the date of hearing. The principal's letter advises the parents that they will be so notified.

 When a conference is held in the District Superintendent's office, she invites the principal of the suspended child's school and the guidance counselor of that school. The members of the District Superintendent's staff who attend are: her assistant, the guidance counselor assigned to her office, and the school-court coordinator assigned to the district. The Bureau of Attendance, an arm of the Board of Education, which enforces the state's compulsory school attendance law is also notified of the conference.

 The function of the school-court coordinator is to provide liaison between the Family Court and the schools. The school-court coordinator interprets to the court "the program and facilities" of the school; "he conversely interprets to the school the decisions of the court and the recommendations of the court;" the school-court coordinator "acts as a sort of clearing house, so that all agencies may work together * * *;" the school-court coordinator also, at the request of the court, gives to it the decision made by the District Superintendent at the Guidance Conference. The court may make use of the District Superintendent's decision at the dispositional hearing. New York Family Court Act, §§ 345, 346. The school-court coordinator also takes notes at the conference.

 The guidance counselor on the District Superintendent's staff has the responsibility for "following up on children who have been suspended, to make sure that they are adjusting properly, to make sure that recommendations are carried out." The guidance counselor works with the Bureau of Child Guidance (BCG), "so that if [the District Superintendent] has asked for a study and a recommendation for a child", she can work with the BCG "to expedite the receiving of that study as soon as possible." The guidance counselor also takes notes at the Guidance Conferences and keeps all records. When children return from suspension, the guidance counselor helps to place them in the best possible school situation.

 The suspended child may have a representative from any social agency, to whom the family may be known, to attend a suspension hearing in ...

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