The opinion of the court was delivered by: BONSAL
Plaintiffs move (1) for summary judgment, pursuant to Rule 56, F.R. Civ. P.; (2) for a determination that this action may be maintained as a class action, pursuant to Rule 23, F.R. Civ. P.; and (3) for an order permitting intervention of two intervenor-plaintiffs, pursuant to Rules 23 and 24, F.R. Civ. P. Defendants move for an order dismissing plaintiffs' amended complaint, pursuant to Rule 12(b), F.R. Civ. P.
This is an action for declaratory and injunctive relief (28 U.S.C. §§ 2201, 2202 and 42 U.S.C. § 1983) brought by plaintiffs, students at Manhattan Community College, 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 of New York. It was instituted in June 1970 against defendants Chancellor of the City University of New York and the New York City Board of Higher Education (hereinafter "the City defendants"), the plaintiffs alleging that course credit tuition fees are charged to community college students attending summer sessions at community college or senior college, whereas no course credit tuition fees are charged senior college students attending summer sessions at senior college, and that this practice discriminates against community college students who desire to attend summer sessions and violates their rights under the Equal Protection Clause of the Fourteenth Amendment. Plaintiffs move for a preliminary injunction, which was denied by Judge Cooper on June 22, 1970. (Grier v. Bowker, 314 F. Supp. 624 (S.D.N.Y. 1970).) In denying plaintiffs' motion, Judge Cooper stated:
"The community colleges of the State University and the senior colleges of the City University are financed under separate statutory schemes, which statutes are not here challenged. The differing financial structures of the two systems provide a rational basis for the different treatment accorded summer session students in the matter of tuition." (Id. at 628)
Thereafter, plaintiffs amended their complaint and named as defendants the Board of Trustees of the State University of New York and the Comptroller of the State of New York (hereinafter "the State defendants"). The amended complaint attacks the constitutionality of the state aid formulae for senior and community colleges (New York Education Law §§ 6215, 6216 and 6304) as applied to New York City. Plaintiffs seek a declaratory judgment that the manner in which the City defendants now charge course credit tuition fees for summer sessions is unconstitutional and a permanent injunction restraining the City defendants from charging course credit tuition fees according to the adopted practice. In the alternative, plaintiffs seek a declaratory judgment that the enforcement by the State defendants of the state aid formulae for senior and community colleges (New York Education Law §§ 6215, 6216 and 6304) so as to cause the creation of discriminatory tuition practices for summer sessions administered by the City defendants is unconstitutional, and a permanent injunction restraining the State defendants from enforcing the state aid formulae.
Plaintiffs invoke this court's jurisdiction under 28 U.S.C. §§ 1343(3) and 1343 (4).
Plaintiffs move for summary judgment pursuant to Rule 56, F.R. Civ. P., on the grounds that there exist no material issues of fact and that as a matter of law (1) the discrimination in the tuition fees charged by the City defendants and (2) the state aid formulae for community and senior colleges as applied to New York City by the State defendants violate the Equal Protection Clause of the Fourteenth Amendment.
The City defendants and the State defendants move to dismiss plaintiffs' amended complaint, pursuant to Rules 12(b)(1) and 12(b)(6), F.R. Civ. P., on the grounds that it fails to raise a substantial federal question and that it fails to state a claim upon which relief can be granted.
The community colleges are part of the State University of New York and are financed pursuant to New York Education Law § 6304, which provides in essence that the state financial aid shall be two-fifths of operating costs regardless of fees collected. The balance, less fees collected, is supplied by the City of New York. The senior colleges of the City University of New York are financed pursuant to New York Education Law §§ 6215, 6216, which provide in essence that, after deducting any fees collected, the State and the City of New York shall share equally the net costs of running the senior colleges. The City University of New York, the local sponsor of the community colleges in New York City, is not part of the State University of New York. The New York City Board of Higher Education administers the senior colleges of the City University of New York and the community colleges of the State University of New York in New York City.
Students enrolled in community colleges and senior colleges are not charged course tuition fees during the normal college year. Community college students attending summer sessions at either community or senior colleges are charged course credit tuition fees of $10 per credit hour, while no tuition fees are charged to senior college students who attend summer sessions at senior colleges. Senior college students who attend summer sessions at community colleges are charged course credit tuition fees of $15 per credit hour. Therefore, only senior college students who attend summer sessions at senior colleges pay no tuition fees, and community college students who attend summer sessions are charged tuition fees regardless of whether they attend community colleges or senior colleges. Plaintiff Grier, a community college student, alleges that she had to withdraw from the summer session at Manhattan Community College last summer because she could not afford the tuition fees, and that she will be unable to attend this summer if tuition fees are not waived or sharply reduced.
In support of their charge that the existing practice of charging tuition fees violates the Equal Protection Clause, plaintiffs contend: (1) that discrimination in the availability of public education can be justified only by a compelling state interest; (2) that the discrepancy in tuition fees charged by the City defendants cannot be justified even under the traditional test of whether the unequal treatment is based upon a reasonable distinction having some rational relationship to a legitimate public policy; and (3) that the tuition fees discriminate against the plaintiffs on the basis of their indigent economic status. Each of these arguments was carefully considered by Judge Cooper in his decision denying a preliminary injunction. With respect to plaintiffs' first argument, Judge Cooper held that the compelling interest test was not applicable in this case, for the reason that:
"[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 ...