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JOHNSON v. NEW YORK STATE EDUC. DEPT.

October 28, 1970

Daisy JOHNSON, Dorothy Miller, Forestine Pressy, individually and on behalf of their minor children and on behalf of all others similarly situated, Plaintiffs,
v.
NEW YORK STATE EDUCATION DEPARTMENT, Ewald B. Nyquist, as Commissioner of the New York State Education Department, and the Board of Education of Union Free School District No. 27, Town of Hempstead, and Edward Moyer, as Superintendent of the Schools of Union Free School District No. 27, Town of Hempstead, Defendants


Travia, District Judge.


The opinion of the court was delivered by: TRAVIA

TRAVIA, District Judge.

The three plaintiffs are recipients of public assistance and are the parents of six elementary school children who are currently attending schools operated by the Board of Education of Union Free School District No. 27, Town of Hempstead, hereinafter called the "Board." The defendants are the Board, its Superintendent of Schools, Edward Moyer, the New York State Education Department and the Commissioner of Education, Ewald B. Nyquist.

 Plaintiffs allege this to be a class action and, therefore, sue individually and on behalf of their minor children and on behalf of all others similarly situated. They challenge the constitutionality of Section 701 of the New York Education Law, McKinney's Consol. Laws, c. 16, and claim that said section is violative of the Fourteenth Amendment of the Constitution of the United States in that it has the effect of denying plaintiffs equal protection of the laws.

 Section 701 provides, in part:

 
"3. In the several cities and school districts of the state, boards of education, trustees or such body or officers as perform the function of such boards shall have the power and duty to purchase and to loan upon individual request, to all children residing in such district who are enrolled in grades seven to twelve of a public or private school which complies with the compulsory education law, text-books. Text-books loaned to children enrolled in grades seven to twelve of said private schools shall be text-books which are designated for use in any public, elementary or secondary schools of the state or are approved by any boards of education, trustees or other school authorities. Such text-books are to be loaned free to such children subject to such rules and regulations as are or may be prescribed by the board of regents and such boards of education, trustees or other school authorities.
 
4. No school district shall, during the school year nineteen hundred sixty-six-sixty-seven, the school year nineteen hundred sixty-seven-sixty-eight or the school year nineteen hundred sixty-eight-sixty-nine be required to purchase or otherwise acquire text-books, pursuant to this section, the cost of which shall exceed an amount equal to fifteen dollars multiplied by the number of children residing in such district who on the first day of October of such school year are enrolled in grades seven through twelve of a public or private school which complies with the compulsory education law, or in any subsequent school year be required to purchase or otherwise acquire textbooks, the cost of which shall exceed an amount equal to ten dollars multiplied by the number of children residing in such district and so enrolled on the first day of October of such subsequent school year; and no school district shall be required to loan textbooks in excess of the textbooks owned or acquired by such district; provided, however that all textbooks owned or acquired by such district shall be loaned to children residing in the district and so enrolled in grades seven through twelve in public and private schools on an equitable basis.
 
5. In the several cities and school districts of the state, boards of education, trustees or other school authorities may purchase supplies and either rent, sell or loan the same to the pupils attending the public schools in such cities and school districts upon such terms and under such rules and regulations as may be prescribed by such boards of education, trustees or other school authorities.
 
6. The commissioner of education, in addition to the annual apportionment of public monies pursuant to article seventy-three of this chapter, shall apportion to each school district an amount equal to the cost of the text-books purchased and loaned by the district pursuant to this section, but in no case shall the aid apportioned to the district be in excess of the following amounts: a. on account of expenditures made during the school year nineteen hundred sixty-six-sixty-seven, the school year nineteen hundred sixty-seven-sixty-eight or the school year nineteen hundred sixty-eight-sixty-nine an average of fifteen dollars per pupil residing in the district and enrolled in grades seven through twelve, and
 
b. on account of expenditures made in any subsequent school year an average of ten dollars per pupil residing in the district and enrolled in grades seven through twelve." (Emphasis added).

 Plaintiffs seek the convening of a three-judge District Court pursuant to 28 U.S.C. §§ 2281 and 2284, a preliminary and permanent injunction enjoining the defendants from enforcing Section 701 *fn1" and a declaratory judgment declaring said section unconstitutional.

 It is alleged that on or about August 31, 1970, plaintiffs were advised by letter from the Board that all children in grades one to six would be required to pay a $7.50 rental charge on the first day of school for the loan of textbooks; that last year the plaintiffs' children, along with all the other children in those grades, received their textbooks without charge; and that on the first day of school this year, textbooks were distributed to all children who paid the rental charge. Plaintiffs also allege that they are recipients of public assistance from the Nassau County Department of Social Services under the Aid to Families with Dependent Children program, and are unable to pay the rental charge, *fn2" and as a result their children have not received any textbooks.

 The imposition of a rental charge for textbooks in grades one to six for the current school year resulted from the action of the local voters in rejecting budgets submitted by the Board in accordance with Section 1716 of the Education Law. On three occasions, the local voters refused to approve a budget. *fn3" In rejecting the budgets the voters also rejected a tax for the purchase and loan of textbooks free to the children in grades one to six. Authorization for such tax is provided in Section 703 of New York's Education Law.

 Section 703 provides:

 
"1. The qualified voters of any school district present at any annual school meeting or at any special school meeting duly and legally called for that purpose, shall have power, by a majority vote, to be ascertained by taking and recording the ayes and noes, to vote a tax for the purchase of all text-books used, or to be used, by pupils enrolled in grades one to six, inclusive, in the schools of the district.
 
2. If such tax shall be voted, it shall be the duty of the board of education or trustees of such district, within ninety days thereafter, to purchase and furnish free, text-books to all the pupils in grades one through six inclusive attending the schools in such district. Such board of education or trustees shall have power to establish such rules and regulations concerning the use by the pupils of such textbooks, and the care, preservation and custody thereof as it shall deem necessary." (Emphasis added).

 As a result, the Board proceeded in accordance with Section 2023 of the New York Education Law which authorizes the Board to levy a tax in the absence of voter approval for the amount estimated to be necessary for teachers' salaries and for ordinary contingent expenses. The Board claimed that it could not consider textbooks for grades one to six to be acceptable ordinary contingent expenses. It based such decision on Opinion 213 of Counsel to the Education Department, dated July 6, 1967. Hence, no tax was levied to cover the cost of the textbooks for grades one to six.

 The plaintiffs' claim, in essence, is that Section 701 violates the equal protection clause of the Fourteenth Amendment since it "has arbitrarily and unreasonably created two classes of pupils, those in grades seven to twelve, who will receive free textbooks, and those in grades one through six, who must pay for textbooks" in the absence of § 703 voter approval of a tax to pay for such textbooks.

 It must be borne in mind that Section 701 grants free textbooks to children in grades seven to twelve only to the extent of Ten Dollars ($10) per pupil after the school year 1969-1970. Section 701(6b).

 Jurisdiction

 At the outset we are faced with the question of this Court's jurisdiction. Although the defendants have not raised the question of jurisdiction, this Court may raise that question on its own motion. Thompson v. New York Cent. R. Co., 361 F.2d 137 (2d Cir. 1966). In fact, it is this Court's duty to determine, sua sponte, whether it has jurisdiction. Forgione v. United States, 202 F.2d 249 (3d Cir. 1953), cert. denied, 345 U.S. 966, 73 S. Ct. 950, 97 L. Ed. 1384 (1953); Fullana Corp. v. Puerto Rico Planning Bd., 257 F.2d 355 (1st Cir. 1958). The signing of a show cause order does not prevent a subsequent determination that there is no jurisdiction. Laughlin v. Cummings, 70 App. D.C. 192, 105 F.2d 71 (1939).

 In their complaint the plaintiffs base the jurisdiction of this Court on (a) 28 U.S.C. §§ 1331, 1337 and 1343; (b) 28 U.S.C. §§ 2201 and 2202 and (c) 42 U.S.C. §§ 1983 and 1988 and (d) the United States Constitution and the Fourteenth Amendment thereof.

 The Fourteenth Amendment and Section 1331

 Since the plaintiffs complain of a denial of equal protection, their action is one that "arises under the Constitution * * * of the United States." 28 U.S.C. § 1331(a). Section 1331(a) also requires that "the matter in controversy exceeds the sum or value of $10,000, * * *." Plaintiffs allege that the amount in controversy exceeds the jurisdictional amount. Obviously, the $7.50 rental charge each plaintiff is required to pay for each child in grades one to six does not approach the jurisdictional minimum.

 The fact that the action is brought on behalf of a class does not help plaintiffs on this point either. If this action can be brought as a class action, which question need not now be decided, it is settled that the claims of the members of the class may not be aggregated to meet the jurisdictional amount. Snyder v. Harris, 394 U.S. 332, 89 S. Ct. 1053, 22 L. Ed. 2d 319 (1969); Rosado v. Wyman, 414 F.2d 170 (2d Cir. 1969), rev'd on other grounds, 397 U.S. 397, 90 S. Ct. 1207, 25 L. Ed. 2d 442 (1970). Hence, the plaintiffs cannot cumulate ...


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