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June 22, 1970

Emma GRIER, Daniel Vasquez, and Betty Whitson, on behalf of themselves and all others similarly situated, Plaintiffs,
Albert H. BOWKER, individually and as Chancellor of the City University of New York and the New York City Board of Higher Education, Defendants

Cooper, District Judge.

The opinion of the court was delivered by: COOPER

COOPER, District Judge.

This is a purported class action brought by plaintiffs on behalf of themselves and all other community college students who desire to attend summer sessions at either a senior college of the City University of New York or a community college of the State University against defendants, the Chancellor of the City University and the New York City Board of Higher Education, pursuant to 42 U.S.C. § 1983. Plaintiffs allege that the charging of a summer session tuition of $10 per credit hour to matriculated community college students while charging no tuition to matriculated senior college students is discriminatory and violates the equal protection clause of the Fourteenth Amendment. By way of relief, plaintiffs seek a declaratory judgment that this summer tuition system is unconstitutional and a permanent injunction against its continued use, as well as certain damages.

 Plaintiffs now move pursuant to Rule 65, F.R. Civ. P., for a preliminary injunction barring the defendants from charging tuition to those members of the class who would be unable to attend summer school if these fees were assessed.

 The following opinion constitutes our findings of fact and conclusions of law pursuant to Rule 52, F.R. Civ. P.

 Regular registration for the summer sessions ended June 9, 1970. Late registration upon the payment of a penalty fee was permitted up to the commencement of summer session classes on June 15, 1970.

 This motion was brought on by an order to show cause served on defendants Friday, June 5, 1970 at 4:30 P.M. On the return day, June 9, 1970, this motion was referred to us. On June 11, 1970, the parties appearing before us in open court we thereupon granted defendants' application for an adjournment to serve and file answering papers; we set June 17, 1970 for submission of all papers.

 This abbreviated time schedule was compelled by the fact that plaintiffs did not commence suit and bring on this motion until the very eve of the summer session. Upon our request defendants readily agreed on June 11, 1970 to admit to the summer session the thirty-one class members named herein and defer until the resolution of this motion the payment of tuition fees by these students, with the distinct understanding however that should a preliminary injunction be denied they would either pay the required fee or discontinue their enrollment in the summer session.

 * * *

 A preliminary injunction is an extraordinary remedy, issuable reluctantly, whose purpose is to preserve the status quo and prevent irreparable injury until the case can be ultimately resolved. See Unicon Management Corp. v. Koppers Co., 366 F.2d 199, 204 (2d Cir. 1966); Checker Motors Corp. v. Chrysler Corp., 405 F.2d 319, 323 (2d Cir. 1969). "A clear showing of probable success and possible irreparable injury" is necessary. Checker Motors Corp. v. Chrysler Corp., supra ; Clairol Inc. v. Gillette Co., 389 F.2d 264, 265 (2d Cir. 1968).

 Probability Of Success

 a. Fundamental Liberty

 Traditionally, judicial examination of governmentally created classifications has been restricted to a determination whether the unequal treatment is bottomed upon a reasonable distinction having some rational relationship to a legitimate public policy. See e.g. Morey v. Doud, 354 U.S. 457, 463-464, 77 S. Ct. 1344, 1 L. Ed. 2d 1485 (1957); Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78, 31 S. Ct. 337, 55 L. Ed. 369 (1911). However, certain interests of the individual have been deemed so fundamental, that any state imposed discrimination on the exercise of these rights is justified only by a compelling state interest. See e.g. Shapiro v. Thompson, 394 U.S. 618, 634, 89 S. Ct. 1322, 22 L. Ed. 2d 600 (1969); Harper v. Virginia State Board of Elections, 383 U.S. 663, 86 S. Ct. 1079, 16 L. Ed. 2d 169 (1966); Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541, 62 S. Ct. 1110, 86 L. Ed. 1655 (1942). Included in this category are voting rights, e.g. Reynolds v. Sims, 377 U.S. 533, 84 S. Ct. 1362, 12 L. Ed. 2d 506 (1964), all racial classifications, e.g. Loving v. Virginia, 388 U.S. 1, 87 S. Ct. 1817, 18 L. Ed. 2d 1010 (1967), Korematsu v. United States, 323 U.S. 214, 65 S. Ct. 193, 89 L. Ed. 194 (1944), and certain rights with respect to criminal procedure, e.g. Griffin v. Illinois, 351 U.S. 12, 76 S. Ct. 585, 100 L. Ed. 891 (1956) (right to appellate review).

 Plaintiffs assert that equality of educational opportunity falls within this more closely scrutinized area of fundamental rights, and therefore it is incumbent upon the state to establish a compelling interest warranting the continuation of the $10 per credit course charge to the community college student. Firmly entrenched judicially is that "education is perhaps the most important function of state and local governments," Brown v. Board of Education, 347 U.S. 483, 493, 74 S. Ct. 686, 691, 98 L. Ed. 873 (1954), and that as "* * * society grows increasingly complex, and our need for trained leaders increases * * * the epitome of that need * * * [is] to obtain an advanced degree in education, to become, by definition, a leader and trainer of others," McLaurin v. Oklahoma State Regents, 339 U.S. 637, 641, 70 S. Ct. 851, 853, 94 L. Ed. 1149 (1950). We cannot conclude however that the interest plaintiffs seek to assert in this litigation has been defined as fundamental. Plaintiffs' principal reliance on Brown, supra, and McLaurin, supra is misplaced. The educational classifications there found to deny equal protection inextricably involved racial considerations as well. This latter element -- discrimination based upon race, lineage and alienage -- has long placed such statutory regulation into that "suspect" category, and subject "to the most rigid scrutiny." Korematsu, supra, 323 U.S. at 216, 65 S. Ct. 193; Plessy v. Ferguson, 163 U.S. 537, 559, 16 S. Ct. 1138, 41 L. Ed. 256 (1896) (Harlan, J., dissenting).

 Further, the issue now before this Court is not a scheme excluding any one group from regular educational opportunity, but attendance at a summer session without a minimal per credit charge. Involved in this litigation is not the opportunity to pursue elementary education but the taking of courses at college level during the summer to enable a student to complete a college career at a faster pace. This limited interest, as we see it, has not been fastened within the ambit of the concept of fundamental right. *fn1"

 Plaintiffs also press the argument that defendants must establish a compelling explanation for the disparity in treatment because this financial arrangement, as presently constituted, adversely affects the indigent in violation of the Equal Protection ...

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