The opinion of the court was delivered by: WYATT
This is a motion by plaintiffs for a preliminary injunction granting the relief prayed for in the complaint, namely, restraining defendants from "unlawful closings" of public schools in New York City and from "acting in concert with others to unlawfully close" such public schools.
Plaintiffs are parents of children, some of whom normally attend Public School 40 at 320 East 20th Street in School District No. 1, Borough of Manhattan, and others of whom normally attend Public School 28 at 1861 Anthony Avenue in School District No. 9, Borough of the Bronx. Plaintiffs sue for themselves and also on behalf of the infant children.
Defendant Sklar is Principal of Public School 40.
Defendant Landman is Acting District Superintendent of School District No. 1.
Defendant Bonardi is Principal of Public School 28.
Defendant Linville is Acting District Superintendent of School District No. 9.
Defendants Degnan, Romano, Rubenstein and Unger are officers of the Council of Supervisory Associations. This Council is a voluntary association of a number of separate membership associations whose members hold supervisory positions in the school system, for example, the Principals' Association, the Superintendents' Association and the like.
The complaint avers that at the time it was filed (October 18, 1968) some of the public schools (396 in number) were open and some (503 in number) were closed; that Public Schools 40 and 28 were among those closed; that the closing of some of the schools was caused by a strike in violation of law by United Federation of Teachers; that the defendant principals and superintendents have authority from the City and State to close the public schools or to keep them open; that the defendant principals and superintendents have exercised their authority unlawfully to close Public Schools 40 and 28 where there are teachers ready to teach and children to attend; that the reason the schools were closed was to support the strike of teachers; that the defendant Council officers have urged their principal and superintendent members to keep the schools closed in order to support the strike of teachers; that the children are losing valuable days of opportunity to obtain an education and are thereby being damaged irreparably; and that the unlawful acts of defendants violate the constitutional rights of plaintiffs to enjoy the equal protection of the laws and not to be deprived of liberty or property without due process of law.
The action is based on parts of the Civil Rights Laws, including 42 U.S.C. § 1983. The cited section with others provides for relief in a federal court whenever any person is deprived of constitutional rights by acts done "under color of" state law. This Court has jurisdiction under 28 U.S.C. § 1343(3) and (4).
It is clear that the children are suffering grievously from their inability to attend school; their damage is irreparable; money damages would not redress their injury.
It is equally clear that if any of the defendants are acting unlawfully in closing public schools -- as they would be if they are so acting to support a strike in violation of law -- they are denying to plaintiffs their constitutional right (Fourteenth Amendment) to the equal protection of the laws. This is because the exercise of authority under New York law to close Public Schools 40 and 28 results in the children of these plaintiffs being treated differently from children in other parts of the State (indeed, in other parts of the City) where public schools are open. In principle, the situation is the same as when all public schools were closed in Prince Edward County, Virginia. In holding that this denied Prince Edward children the equal protection of the laws, the Supreme Court said: "Prince Edward children must go to a private school or none at all; all other Virginia children can go to public schools". Griffin v. County School Board, 377 U.S. 218, 230, 84 S. Ct. 1226, 1233, 12 L. Ed. 2d 256 (1964).
It is the position of the defendant superintendents that they are opening schools as rapidly as can be done without danger to the ...