The opinion of the court was delivered by: WEINSTEIN
MEMORANDUM, ORDER, FINDINGS OF FACT AND CONCLUSIONS OF LAW FOR PURPOSES OF PRELIMINARY INJUNCTION
WEINSTEIN, District Judge.
In this class action for an injunction against local school board elections in New York City, plaintiffs attack the constitutionality of the State statute under which the defendants, the Boards of Education and Elections, propose to act. The complaint alleges that the system of proportional representation adopted by the State will result in deprivation of equal protection of the laws and denial of due process. Since the constitutionality of a state statute has been drawn into question, notice of this action has been given by order of the Court to the Attorney General of the State of New York. Upon its motion, the State was allowed to intervene as a defendant.
Plaintiffs' claim - a novel one in the federal courts, as they concede - is that the voting plan is illegal because ballots are counted using a system that may, through the operation of chance, aid some candidates at the expense of others or enable some votes to have a greater effect than others. Defendants have moved to dismiss for failure to state a cause of action. Since the challenged statute applies only locally, it is not necessary to convene a three-judge court. 28 U.S.C. § 2281; Moody v. Flowers, 387 U.S. 97, 87 S. Ct. 1544, 18 L. Ed. 2d 643 (1967). For the reasons below, and because the plaintiffs have failed to make "a clear showing of probable success" (Clairol Inc. v. Gillette Co., 389 F.2d 264, 265 (2d Cir. 1968)), the motion for a preliminary injunction must be denied.
There are still a number of unresolved questions of fact; the statistical and other data underlying this dispute were not developed at the hearing on the motion for a preliminary injunction with clarity sufficient to warrant a final judgment. Decision on motions to dismiss and for summary judgment should be held in abeyance to permit the parties to gather and present further evidence should they choose to do so.
Because of the imminence of elections, we assume that plaintiffs will wish to take an immediate interlocutory appeal pursuant to section 1292(a)(1) of Title 28 of the United States Code from this order refusing the preliminary injunction. The posture of the case has been set out below in some detail in order to render as much assistance as possible to the Court of Appeals and to the parties. The conclusions are tentative, made only for the purpose of deciding the motions before us.
the New York State Legislature, unlike Congress, often provides scanty legislative history. Because of this, in determining the factual basis for its actions in any litigation challenging the constitutionality of one of its laws, extensive resort to judicial notice is required to appraise the factual basis for its action. See, e.g., Turner v. United States, 396 U.S. 398, 90 S. Ct. 642, 24 L. Ed. 2d 610 (1969); Leary v. United States, 395 U.S. 6, 38, 89 S. Ct. 1532, 23 L. Ed. 2d 57 (1969); Kramer v. Union Free School District No. 15, 282 F. Supp. 70, 76 (1968) (dissent), reversed 395 U.S. 621, 89 S. Ct. 1886, 23 L. Ed. 2d 583 (1969); Karst, Legislative Facts in Constitutional Litigation, 1960 Sup. Ct. Rev. 75, 77, 84; Alfange, The Relevance of Legislative Facts in Constitutional Law, 114 U. of Pa. L. Rev. 637 (1966). Accordingly, we turn to the facts as the New ork Legislature might have viewed them.
A. Educational Problems in New York City.
This Court is no stranger to the controversies that, in recent years, have swirled about public education in the City of New York. Knight v. Board of Education, 48 F.R.D. 108, 115 (E.D.N.Y. 1969); Oliver v. Donovan, 293 F. Supp. 958 (E.D.N.Y. 1968). The history of public education in New York for the past few years has been one of crisis and confrontations, legal actions, threats, claims and denials. See, e.g., M. Berube & M. Gittell, Confrontation at Ocean Hill-Brownsville (1969); P. Sexton, Spanish Harlem (1965). Within this period, extensive studies have been made of the school system, and numerous solutions have been proposed to settle the continuing controversies. See, e.g., Mayor's Advisory Panel on Decentralization of the New York City Schools, Reconnection for Learning (1967); Board of Education, City of New York, Decentralization - Statement of Policy (1967), reprinted in part in M. Berube & M. Gittell, Confrontation at Ocean Hill-Brownsville 17 (1969). In response to demands for reform - largely centered about proposals for more local control of schools, see, e.g., Oliver v. Donovan, 293 F. Supp. 958 (E.D.N.Y. 1968); Oliver v. Board of Education, 306 F. Supp. 1286 (S.D.N.Y. 1969) - the State of New York adopted a decentralization program for New York City's schools. L. 1969, c. 330, as amended, L. 1969, c. 422 (1969), as amended, L. 1970, c. 3 (1970). Under this plan local school boards - with much greater autonomy than heretofore existed - were to be created. It is in the context of this history and of the pervasive educational, social and political problems that it reflects that the action of the State must be viewed.
B. Urban Educational Crisis.
New York City - like metropolitan areas throughout the United States - is faced with problems that cut across the entire fabric of urban life. Growth and large population movements have added to increasing frustration and alienation on the part of residents. Lost and isolated among the multitudes of the city, some individuals have come to believe that they have no influence or control over the actions of government most intimately affecting their day-to-day lives. J. Bollens and H. Schmandt, The Metropolis 218-20 (1965); Herson, The Lost World of Municipal Government, in Urban Government 3, 18 (E. Banfield ed. 1961); Warren, Politics in the Ghetto § ystem, in Politics and the Ghettos 11, 28 (R. Warren ed. 1969).
Nowhere in urban life is this feeling of impotence and lack of identity in the face of the huge metropolitan governmental machine more likely to be felt than in the area of public education. Effective control of large educational systems has, some assert, been entrusted to a professional educational elite, effectively responsible to no one outside the confines of the profession. See, e.g., M. Gittell, Participants and Participation 23-31 (1967); Rosenthal, Pedagogues and Power, in Educating an Urban Population 185 (M. Gittell ed. 1967); Eliot, Public School Politics, in Urban Government 515 (E. Banfield ed. 1961). The result of this tendency, some argue, has been the development of what they have termed the "fortress school," one relatively isolated from the community's problems and insuf6iciently responsive to its needs. See P. Schrag, Village School Downtown 163-64 (1967); P. Sexton, Spanish Harlem 149-50 (1965).
It has been claimed by some that centralized, city-wide administration permits schools to ignore local needs. Centralized agencies, so the argument goes, have been among the causes of the failure of the schools to produce graduates sufficiently trained to function effectively as citizens and participants in urban political and social life. But cf. Cunningham, Models for Model City Management, in Education and Urban enaissance 95, 97 (R. Campbell, L. Marx & R. Nystrand eds. 1969); Recommendations, in Id. at 133, 136-43 (schools are more efficiently administered than other local agencies but substantial changes are needed). Whatever the cause, studies conducted throughout the nation have underlined the fact that students in central-city schools fail to match the achievements of those attending schools of outlying urban and suburban areas.
"The most comprehensive review of the [New York City school] system in the last ten years was a 1962 report of the State Education Department. Its major conclusions were:
1. Pupil achievement is generally below the rest of the state. A large proportion of high school students fail to meet minimum standards.
2. Major improvements in curriculum are needed, particularly at the elementary and junior high school levels.
3. The caliber and preparation of th5 teaching staff are very uneven.
4. Classes are too large, with concomitant results that the staff has heavier teaching loads and more housekeeping chores than are educationally desirable.
5. The areas of greatest need often have the poorest and least experienced teachers.
6. Supplementary social and psychological services are inadequate.
7. Many old, unsound school buildings are still in use.
8. The procedures of the Board of Examiners need to be replaced by less time-consuming methods of teacher selection." (Footnote omitted.) Mayor's Advisory Panel on Decentralization of the New York City Schools, Reconnection for Learning 89 (1967). See also, e.g., P. Sexton, Education and Income 27-28, 30, 139-40 (1961) (Detroit); Toward Creating a Model Urban School System 96-99 (A.H. Passow ed. 1967) (Washington, D.C.); Campbell & Shalala, Problems Unsolved, Solutions Untried: The Urban Crisis, in The American Assembly, The States and the Urban Crisis 11-13 Campbell ed. 1970).
C. Decentralization As A Possible Solution.
A remedy that has been frequently suggested for urban school deficiencies is decentralization. See generally Note, Urban School Decentralization: The Problem of the One and the Many, 5 Colum. J.L. & Social Problems 137 (1969). Proponents assert that local community control of schools will result in greater participation as well as greater responsiveness. See Mayor's Panel on Decentralization of the New York City Schools, Reconnection for Learning 15-16 (1967); Toward Creating a Model Urban School System 9-13, 156-60 (A.H. Passow ed. 1967); Brager, Effecting Organizational Change Through a Demonstration Project: The Case of the Schools, in Community Action Against Poverty 185 (G. Brager & F. Purcell eds. 1967); M. Gittell & T.E. Hollander, Six Urban School Districts 51 (1968) ("Of the three functions the most direct and clear cut cause and effect relationship with innovation appears to be public participation."); C. Westby, Local Autonomy for School Communities in Cities (1947). Cf. M. Thomas, Community Governance and the School Board: A Case Study 31 (U. of Texas, Inst. of Pub. Affairs, 1966) (school board members tie schools to all segments of community). But cf. P. Schrag, Village School Downtown 179-82 (1967) (suggesting urban-suburban centralization); J. Gallagher, School District Reorganization: History, Theory and Law 9 (U. of Calif., Davis, Institute of Gov. Affairs, 1966) (same); Committee for Economic Development, Reshaping Government in Metropolitan Areas 17 (1970) ("what is needed is a system of government that adequately recognizes both forces, centralization and decentralization.") (Emphasis in original)
It has been urged that participation and responsiveness are self-reinforcing. That, when parents can control to a significant extent the policies and directions of the local schools, the schools will become more responsive. And, in turn, faced with a more responsive and concerned school system, parents and students may more effectively and easily participate in the educational process. With more community control and more responsiveness, it is said, those less articulate and more self-conscious individuals who have been unable or unwilling to influence the educational process may be drawn within its ambit. See, e.g., P. Sexton, Education and Income 227-29 (1961); P. Sexton, Spanish Harlem 63 (1965); Toward Creating a Model Urban School System 65-72, 156 (A.H. Passow ed. 1967); Dodson, Education and the Powerless, in Education of the Disadvantaged 61, 71-72 (A.H. Passow, M. Goldberg & P. Tannenbaum eds. 1967). Cf. M. Kotler, Neighborhood Government (1969).
In proposing decentralization, experts have suggested many different plans dealing with organization, powers and selection of local units. New York City, for example, has had a form of decentralization for several years although the powers of local boards have been limited. Proposals for advisory boards-appointed or elected - totally autonomous boards, and boards with powers ranging between these extremes have all been made or are in use throughout the United States. See Toward Creating a Model Urban School System 159, 375 (A.H. Passow ed. 1967); M. Gittell & T.E. Hollander, Six Urban School Districts 16-18, 64-76 (1968); Mayor's Advisory Panel on Decentralization of the New York City Schools, Reconnection for Learning (1967). Though substantial agreement exists among many students of the subject that some form of decentralization is desirable, it is true that:
"Decentralization * * * is still basically a grey area with very few dependable guidelines as large city systems find when they grapple with the problem. For the moment, decentralization is a label for a complex set of concepts for policy and administrative decision making * * *. There are hard questions concerning the units of a decentralized system; the boundary lines; the extent to which a unit should be a real community rather than just a geographical area * * *. Compounding the problem * * * is the need, in the process of decentralization, to build a sense of polity in subcommunities where there 8as been little experience in participating as the normal citizen would do in any other community in the nation." Toward Creating a Model Urban School System 167-70 (A.H. Passow ed. 1967).
Whatever the merits of the arguments, it is apparent that New York State's Legislature credited those which support decentralization when it devised the plan now being challenged by plaintiffs.
in addition to increasing the authority of local school boards in New York City, New York State has chosen proportional representation as the procedure for electing members of these boards. The procedure is outlined in section 2590-c of the Education Law, as amended, L. 1970, c. 3, set out in the appendix to this opinion. This statute provides for nonpartisan elections. Voters are instructed to mark next to the name of each candidate their comparative preference. Thus, assuming a field of twenty candidates, each voter may mark next to the name of a candidate any number from 1 to 20. The number 1 represents the elector's first choice, the number 2 his second, and so forth. Elections are to be conducted at a number of polling places, generally corresponding to the City's regular election districts. After the election is completed, the ballots which have been cast in each polling place are to be transported to a central counting office within the school district. Upon arrival, ballots are sorted by polling places in an order to be determined by lot. The first choices marked on the ballots are then counted, beginning with the ballots from the polling place selected by lot to be first.
After all of the first preferences are counted, and the total number of valid ballots cast in the school district becomes known, a formula is applied to determine whether any candidates have been elected. To win, a candidate's votes must surpass a quota determined by dividing the total number of valid ballots cast in the school district by one more than the number of offices to be filled (in this case, the number is 10, since 9 board members are to be elected in each school district), and then adding one to this total.
If any candidate reaches this quota figure, all ballots cast for him in excess of that number are to be awarded to the second choice marked on them. The excess ballots to be transferred are those which were last credited to the candidate. Thus, ballots cast for a widely supported first choice candidate are divided into two groups upon the election of that first choice: 1) those in the polling places chosen by lot to be counted first, and 2) those in the polling places chosen by lot to be counted last. The grouping - i.e., the identity of the specific polling places to be included in each group - depends upon the number of votes needed to elect compared to the total votes counted for the candidate. Those in the first group will not be utilized in further counting; those in the second group will be counted by having second preference votes credited to a candidate, since their first choice will have already received his quota.
A similar procedure is utilized to remove candidates. First, after the transfer of surplus votes described above, all first preference votes credited to candidates receiving the fewest votes are to be transferred to the second choices indicated on the ballots. Upon completion of this transfer, the candidate remaining who has the lowest number of votes is declared defeated, and his second preference votes are transferred to the remaining undefeated candidates. Once transfers are sufficient to enable a candidate to pass the quota, he is declared elected, and all subsequent preferences attributed to him are transferred to the candidate with the next highest preference. This process is continued until all but the desired number of elected officials have been eliminated. Here, again, votes from the last polling place are transferred first. Thus, ballots are also divided into two classes by this process: 1) those cast in polling places chosen by lot to be among those counted last; and 2) those cast in polling ...