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MCMILLAN v. BOARD OF EDUC. OF NEW YORK

September 1, 1971

Larry MCMILLAN, a minor under the age of 21 years, by his parents John and Virginia McMillan, et al., on behalf of each and on behalf of all others similarly situated, Plaintiffs, Mitchell Garlick, a monor under the age of 21 years, by his mother, Patricia Garlick, Intervenor-Plaintiff,
v.
The BOARD OF EDUCATION OF the CITY OF NEW YORK et al., Defendants


Kaufman, Circuit Judge, Mansfield, Circuit Judge (until June 8, 1971 a District Judge), and Wyatt, District Judge.


The opinion of the court was delivered by: WYATT

WYATT, District Judge,

After a history of some length and complexity, this action comes down to an attack on the constitutionality of the $2000 limitation in Section 4407 of the New York Education Law, McKinney's Consol. Laws, c. 16. That section, enacted in 1957, is benevolent and progressive legislation. It authorizes the State Department of Education, under certain circumstances, to contract with private schools for the instruction of handicapped children. The Department is limited, however, to $2000 per year per pupil for such instruction.

 There are a number of motions before this Court by a plaintiff, by an intervenor-plaintiff, and by an applicant for intervention. This Court was constituted following reversal by the Court of Appeals (430 F.2d 1145) of a judgment of a single district judge dismissing the action as to the State defendants after declining to request a three-judge court.

 We do not reach the merits of the claim that Section 4407 is unconstitutional because we believe that this claim should be first presented in the courts of New York. As hereafter explained, it is possible -- if not indeed likely -- that as a matter of State law Section 4407 will be interpreted by the New York courts so as to eliminate the constitutional question here raised. This Court, however, retains jurisdiction pending a final determination in the New York courts.

 I

 The action was commenced on July 23, 1969. There were three infant plaintiffs: Larry McMillan, Steven Fournier, and Teddy Sola. They sued by one or both parents who seem properly authorized as "next friend" (Fed. R. Civ. P. 17(c); see New York CPLR § 1201).

 Three of the named defendants may be called "City defendants": The Board of Education of the City of New York; Donovan, then Superintendent of City Schools; and Arnold, Director of Education for the Physically Handicapped in the City Board of Education. The two remaining named defendants may be called "State defendants": The Department of Education of the State of New York and Nyquist, State Commissioner of Education (then Acting Commissioner).

 The three plaintiffs are handicapped children; specifically, they have been diagnosed as "brain injured". The action was brought because of their difficulty or inability to obtain an education at public expense.

 While the complaint does not to any great extent distinguish between the City and State defendants, it is evident that the controversy with the City defendants is different from that with the State defendants.

 Some brain injured children cannot be taught in regular classes and special classes have been set up by the City Board for them. When this action was commenced, the essential controversy with the City defendants was that they had not set up enough special classes and on that account plaintiffs could not be placed in such a class.

 The controversy with the State defendants, on the other hand, involved Section 4407 of the New York Education Law, part of an Article relating, among others, to "handicapped children" as there defined (Section 4401(1)). Section 4407 authorizes the State Department of Education "to contract with an educational facility" for instruction of a handicapped child when such child "is not receiving * * * instruction because there are no adequate public facilities for instruction of such a child within this state because of the unusual type of the handicap or combination of handicaps"; the department may expend for such purpose "not to exceed two thousand dollars per annum for each such pupil". While its interpretation of Section 4407 is highly doubtful, as hereafter shown, the department has treated that section as permitting funds to be made available up to the maximum sum specified even though the cost of instruction exceeded that sum; in such cases, the parents paid the excess or obtained the excess sum from other sources. For example, if the cost of instruction at a private school were $2500, the department under Section 4407 would pay $1900 (the maximum fixed by the department's own regulations), and the parents would make up the $600 difference.

 The complaint contained four claims; there were averments that it was a class action (Fed. R. Civ. P. 23)

 
(a) for all persons aggrieved by failure to provide adequate special classes for brain injured children, and
 
(b) for all poor persons aggrieved by the $2000 limit in Section 4407.

 The first three claims appear to have been directed against the City defendants for failure to provide adequate special classes for brain injured children, said to be a denial of the equal protection of the laws and a deprivation of due process.

 The fourth claim appears to have been directed against the State defendants, specifically against the $2000 limit in Section 4407. It is said that this denies to the poor the equal protection of the laws in that they cannot find a private school at a cost within the $2000 limit (or lower maximum fixed by the department) and are financially unable to pay the excess, whereas financially able parents can receive the benefits of Section 4407 because they can pay the excess required to meet the cost of instruction. Plaintiffs aver that they are not financially able to pay the excess required.

 The relief sought in the complaint was:

 (1) preliminary and permanent injunctions "enjoining" the City defendants "to provide free public education for infant plaintiffs * * * during the school year 1969-1970, including the provision of an adequate number of special classes and adequate staff and resources to properly screen and group with reasonable speed infant plaintiffs * * * in appropriate classes";

 (2) a declaratory judgment that failure of "defendants" to provide classes for plaintiffs is a violation of their constitutional rights;

 (3) the convening of a three-judge court to enter preliminary and permanent injunctions "enjoining" the State defendants "from enforcing Section 4407 of the New York Education Law insofar as it limits payments to $2000 per child per year and ordering such defendants to provide, upon request, for infant plaintiffs * * * all funds necessary to obtain an appropriate education in an approved private school during the school year 1969-1970"; and

 (4) a declaratory judgment that failure of the State defendants to provide funds under Section 4407 adequate to enable plaintiffs to attend private schools denies them the equal protection of the laws.

 The action was averred to be brought under 42 U.S.C. § 1983; jurisdiction was based on 28 U.S.C. § 1343(3) and (4).

 Plaintiffs then moved the Court (a) for a preliminary injunction "enjoining" the City defendants "from failing to provide named infant plaintiffs * * * with a free public education in appropriate special classes for brain-injured children" and (b) for an order convening a three-judge court to consider preliminary and permanent injunctions "enjoining" the State defendants "from enforcing Section 4407 * * * in so far as it limits tuition payments for brain-injured children to $2000 * * *".

 The State defendants moved "pursuant to rule 12(b) of the Federal Rules of Civil Procedure" to dismiss the complaint for failure to state a claim and for lack of jurisdiction "over the defendants Department of Education and Nyquist".

 The two motions were heard by a single judge on August 19, 1969.

 While the two motions were under advisement, a motion was made by Mitchell Garlick and Ramon Rodriguez for leave to intervene; they also moved to convene a three-judge court. These movants, Mitchell and Ramon, are children. Mitchell is not "brain injured" but is a "handicapped child" within the definition in Section 4401(1) of the Education Law; he is classified by the City ...


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