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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, and their spouses,

 (b) School district lessees, but not their spouses,

 (c) Parents or guardians of children attending district schools.

 Among the groups not enfranchised by the statute are adults such as plaintiff who reside in family homes. (See also § 2012(3)(a): "the occupation of real property by a person as lodger or boarder shall not entitle such person to vote.") Plaintiff argues that this is a discrimination based on property or wealth and as such is a denial of equal protection of the laws in violation of the Fourteenth Amendment.

 Plaintiff places much emphasis on Harper v. Virginia Board of Education, 383 U.S. 663, 86 S. Ct. 1079, 16 L. Ed. 2d 169 (1966), in which the United States Supreme Court held Virginia's poll tax to be unconstitutional. In broad terms the Court stated that "it is enough to say that once the franchise is granted to the electorate, lines may not be drawn which are inconsistent with the Equal Protection Clause of the Fourteenth Amendment." (383 U.S. at 665, 86 S. Ct. at 1081). The Court also there said: "we conclude that a State violates the Equal Protection Clause of the Fourteenth Amendment whenever it makes the affluence of the voter or payment of any fee an electoral standard. Voter qualifications have no relation to wealth nor to paying or not paying this or any other tax. * * * the interest of the State, when it comes to voting, is limited to the power to fix qualifications. Wealth, like race, creed, or color, is not germane to one's ability to participate intelligently in the electoral process." (383 U.S. at 666, 668, 86 S. Ct. at 1081).

 Thus, the Court, while conceding a State's power to fix voter qualifications, held that wealth was not a proper standard for qualification in general elections. Of a similar character is the recent New York Court of Appeals decision in Landes v. Town of North Hempstead, 20 N.Y.2d 417, 284 N.Y.S.2d 441, 231 N.E.2d 120 (1967). There the plaintiff, a duly designated nominee of the Democratic party for the office of councilman, brought the action to have declared unconstitutional sections of the New York Town Law which required a holder of an elective town office to be an owner of record of real property within the town. The plaintiff did not then own property, having transferred title to his home to his wife. The court held the statute unconstitutional because it found that insofar as over-all town government was concerned, the property qualification was unrealistic and "that it is impossible today to find any rational connection between qualifications for administering town affairs and ownership of real property." The court recognized that a large proportion of the population in many towns, especially in suburban areas, are apartment house dwellers and that such a statute would make ineligible for the position of councilman an otherwise well qualified candidate merely because real property was not registered in his name.

 All parties are in accord that statutes passed by a state legislature carry with them a presumption of validity, and that the classifications made in such enactments will not be struck down unless they make invidious discriminations, are patently arbitrary or are irrelevant to the achievement of the state's objective, Carrington v. Rash, 380 U.S. 89, 85 S. Ct. 775, 13 L. Ed. 2d 675 (1965); McGowan v. State of Maryland, 366 U.S. 420, 425, 81 S. Ct. 1101, 6 L. Ed. 2d 393 (1961); Lassiter v. Northampton County Board of Elections, 360 U.S. 45, 50-51, 79 S. Ct. 985, 3 L. Ed. 2d 1072 (1959); Allied Stores of Ohio, Inc. v. Bowers, 358 U.S. 522, 527, 79 S. Ct. 437, 3 L. Ed. 2d 480 (1959). The defendants argue that it is not unreasonable for the legislature to determine that the local school system should be run by those who have a direct interest in it, namely, those who have to pay for it and those who benefit from its services. We are of the opinion that this argument is well taken when applied to the narrow issue before us - the denial of the franchise to those school district residents whose interest in educational policy and the financing thereof is at best indirect and weak, compared to the concern of those who are franchised.

 The Supreme Court in Harper has held, in effect, that everybody is affected by, and directly interested in, a general election; both the rich and the poor should have an opportunity to vote for those who will govern them. In Landes v. Town of North Hempstead, supra, the New York Court of Appeals has said that property considerations should not control elections for councilman, because the decisions reached by those bodies (despite the "local" nature of the issues) directly affect all the residents of the village. However, it is not inconsistent with this principle to hold that the states may require those seeking to vote on school policy to have a direct interest or stake in the issues to be decided and to exclude those who do not. Plaintiff has not indicated that any decisions reached by those assembled at the district meeting or by the Board of Education for the district will affect him in any way. His argument is that the vote is given to owners and lessees of property; ergo, it must be given to him as well. This argument fails to take into consideration the difference between the situations before the courts in Harper (a general state election) and Landes (a general town election) and the situation before this court (a school district election). The latter is a local election on limited issues as to which certain local residents have a far greater direct interest than others. *fn3" The Supreme Court has recently noted that a school board "performs essentially administrative functions; and while they are important, they are not legislative in the classical sense." Sailors v. Board of Education of the County of Kent, 387 U.S. 105, 110, 87 S. Ct. 1549, 1553, 18 L. Ed. 2d 650 (1967). The difference in the type of election involved makes the voter qualifications of § 2012 "rational" and within the limits of the State's power to fix them.

 The quality of public education is controlled in large part by the personal interest of those members of the community who are most vitally affected thereby. The group most interested should be the parents. The effective participation by their offspring in coping with the problems of the next generation will be influenced by the strength of their educational foundation. Good education, however, is more than a metaphysical concept; it must be implemented, particularly in this age of rapidly expanding technology, in all fields, with modern buildings and faculty. The geographic areas in which the Section 2012 school districts function differ substantially from those of the large cities where there are no Board of Education elections. In the smaller communities, there should be found a greater identity of interest with education on the part of the parent and taxpayer groups, the parents because of their supervision over their children, and the taxpayers because of their responsibility for the school capital and operating budgets. Persons in plaintiff's category obviously do not have the same permanency of attachment or interest in the school district as those in the other categories.

 It is suggested in support of plaintiff's claim, that the court take judicial notice of certain background conditions, social, political and economic, including the impact of the Board's fiscal decisions upon the price of goods and services and certain non-property taxes, all of which it is alleged indirectly affect plaintiff. *fn4" Apart from the questionable propriety of taking judicial notice of some of these vague generalizations, those factors only suggest possible effects which peripheral activities of the school system might have on plaintiff. However, schools are erected and operated primarily for the education of children, and parents and those closely allied to the community by leases or property ownership are obviously the most interested and affected. The right of suffrage may be limited where the rationale of the exclusion is so directly related to the objective to be achieved. See Lassiter v. Northampton County Bd. of Elections, 360 U.S. 45, 79 S. Ct. 985, 3 L. Ed. 2d 1072 (1959); Pope v. Williams, 193 U.S. 621, 24 S. Ct. 573, 48 L. Ed. 817 (1904). Therefore, the Legislature, in acting within its power to fix voter qualifications, did not discriminate in an unreasonable or unrealistic manner. Quite to the contrary, the selection of the parent and taxpayer groups definitely would appear to be within the permissive limits of power still preserved by state legislatures as specified both by the Supreme Court and the New York Court of Appeals.

 Plaintiff's reliance on the Guaranty Clause is without merit as it does not present a justiciable issue. See Baker v. Carr, 369 U.S. 186, 222-229, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962).

 Complaint dismissed.

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