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January 30, 1968

Morris H. KRAMER, Plaintiff,
UNION FREE SCHOOL DISTRICT NO. 15, Raymond S. Baron, Jesse Cestari, Ralph J. Edsel, J. Gibson Fruin, Hardon Deixel, Elliot A. Norwalk, and Harold S. Rosenfeld, Defendants

The opinion of the court was delivered by: MOORE

MOORE, Circuit Judge.

This is a class action in which plaintiff seeks to have a state statute declared unconstitutional and its enforcement enjoined. The complaint, asserting federal jurisdiction under 42 U.S.C. §§ 1981 and 1983 and 28 U.S.C., is brought on behalf of plaintiff and others similarly situated to have this court declare § 2012 of the New York Education Law, McKinney's Consol.Laws, c. *fn1" unconstitutional because it denies them equal protection of the laws and a republican form of government in violation of the Fourteenth Amendment and Article 4, Section 4 of the Federal Constitution. More specifically, he requests that a judgment be entered declaring § 2012 to be unconstitutional, that a permanent injunction be issued against defendants from enforcing said Section; and that defendants submit a plan whereby plaintiff and others similarly situated be allowed to register in future school board elections.

 The defendants are the Union Free School District No. 15, Cedarhurst, New York, and members of the Board of Education thereof.

 The facts alleged in substance are:

 Plaintiff, Morris H. Kramer, a college graduate, is a twenty-eight-year-old bachelor who resides in the private home of his parents located in Atlantic Beach, New York, within the confines of District No. 15. He has lived with his parents for many years, and he has voted in federal and state elections since 1959. He is not a property owner, a lessee or a parent with school-age children. On April 25, 1965, he attempted to register in the forthcoming school district election, but his application was rejected by defendants on the ground that he failed to meet the special voter qualifications set forth in Section 2012.

 On March 4, 1966, defendants moved to dismiss the complaint (1) for lack of subject matter jurisdiction, and (2) for failure to state a claim. On March 17, 1966, plaintiff moved to convene a three-judge court to hear and determine the alleged constitutional issue.

 The district court denied the motion to convene a three-judge court and granted defendants' motion, dismissing the complaint on the merits, 259 F. Supp. 164, E.D.N.Y. A petition for a writ of mandamus to direct the convocation of a three-judge court was denied by the Supreme Court sub nom. Davis v. Union Free School District No. 7, 385 U.S. 807, 87 S. Ct. 172, 17 L. Ed. 2d 121 (1966).

 On appeal to the Court of Appeals, the Court in three separate opinions, one a dissenting opinion, reversed and remanded, 379 F.2d 491 (1967). Judge Hays in his opinion held that there was "a constitutional claim of sufficient substance to require that a three-judge court be convoked." Judge Kaufman concurred because he could not "conclude that appellant's challenge to § 2012 of the New York State Education Law is 'insubstantial'" but warned against any inference therefrom that he viewed "appellant's claim as being meritorious." (p. 495). Chief Judge Lumbard dissented on the ground that the claim was "so patently without any merit" and that the constitutional issues were "insubstantial".

 As a result of the remand by the Court of Appeals, the responsibility of this three-judge court is to hear and determine whether Section 2012 is unconstitutional. Such hearing has been held, and the parties have submitted by reference the briefs in the case before the Court of Appeals as well as supplementary briefs.

 Less than one-third of the local school systems in the State of New York are organized as Union Free School Districts under the statute which nevertheless represents a statewide policy. *fn2" The voters in such districts who have qualified under § 2012 may attend the district meetings which are held at least once a year. (N.Y. Education Law § 2002). At such a meeting they approve the school budget and vote to levy the taxes on taxable real property in the school district necessary to meet the expenses for the coming year. See N.Y. Education Law §§ 2021, 2022. The voters in each school district also elect from their number three to nine Trustees who act as the Board of Education. See N.Y. Education Law §§ 1701, 2101(2), 1702. The Board of Education is the body which prescribes the course of study to be followed in the district schools, decides on the text-books, purchases or builds schools (when authorized at a meeting), hires teachers, and makes other educational policy decisions. See N.Y. Education Law § 1709. While the Board of Education generally cannot spend more money than is appropriated at the district meeting (§ 1718), it has the sole power to set teachers' salaries (§ 2022) and it can pay teacher salaries and "ordinary contingent expenses" even if the voters neglect or refuse to appropriate money to cover the same. (§ 2023). Additional funds to cover the cost of operating the district school systems may be received from the federal and state governments.

 In making this attack the plaintiff in addition seeks to invalidate the statute upon the ground that it also denies voting rights to others not in his class. Although such expanded representation would not strengthen his claim, it is appropriate to point out that plaintiff is not in a position, either individually or by his class action, to represent members of other classes not similarly situated. "Ordinarily, one may not claim standing in this Court to vindicate the constitutional rights of some third party. Reference to this rule is made in varied situations" (Barrows v. Jackson, 346 U.S. 249, 255, 73 S. Ct. 1031, 1034, 97 L. Ed. 1586 (1953)); Mapp v. Board of Education of City of Chattanooga, Tenn., 319 F.2d 571 (6 Cir. 1963); Thaxton v. Vaughan, 321 F.2d 474 (4 Cir. 1963); 3A Moore's Federal Practice § 23.07(2) at 3427 (2d Ed. 1967); see also, Hamer v. Campbell, 358 F.2d 215 (5 Cir. 1966); Nesbit v. Statesville City Board of Education, 232 F. Supp. 288 (W.D.N.C.1964), decision vacated, 345 F.2d 333 (4 Cir. 1965); Carroll v. Associated Musicians of Greater New York, 316 F.2d 574 (2 Cir. 1963).

 The Legislature of the State of New York, in the statute here under attack, has limited the franchise in Union Free School District elections to those district residents who, it believes, have a direct interest in the administration of the school system because they are either real estate taxpayers (or renters of taxable real estate) and thus carry the burden of paying for a major share of the services provided by the school districts, or because they are directly involved as parents of pupils attending the schools in question. Specifically, three groups are enfranchised by § 2012:

 (a) School district residents who own taxable real property, ...

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