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September 30, 1971

Lee-Ann BURDMAN et al., Plaintiffs, Andrew Fitzpatrick et al., Plaintiff-Intervenors,
Ewald B. NYQUIST, Commissioner of Education, State of New York, Defendant

Feinberg, Circuit Judge, Henderson, Chief Judge, and Curtin, District Judge.

The opinion of the court was delivered by: CURTIN

CURTIN, District Judge:

This is an action brought by seven D'Youville College students and by D'Youville College for a judgment declaring that their rights under Article Six, Clause Two, and the First, Ninth, and Fourteenth Amendments of the Constitution of the United States have been abridged by Article XI, Section 3 *fn1" of the New York State Constitution (Blaine Amendment) in the distribution of state aid to private colleges under Section 6401 *fn2" of the New York Education Law, McKinney's Consol. Laws, c. 16 (Bundy Law). Upon the stipulation of all counsel, four St. Francis College students and St. Francis College have been permitted to intervene as plaintiffs.

 The complaints of plaintiffs and plaintiff-intervenors are substantially the same in all respects. Both arise under the Civil Rights Act (42 U.S.C. § 1983; 28 U.S.C. § 1343(3)) and allege that the defendant has implemented the above provisions of New York law in a manner which denies them their rights to liberty, due process, and equal protection under the Fourteenth Amendment. As to the individual complainants who are of the Catholic faith, it is further claimed that the implementation of the above New York provisions results in a denial of the free exercise of their religion guaranteed by the First Amendment.

 Since permanent injunctive relief is sought, a three-judge panel was designated pursuant to Title 28, United States Code, Sections 2281 and 2284. Briefs and stipulations were submitted, and the panel convened in June, 1971.

 The background of this action can be stated briefly. In 1969, D'Youville College and St. Francis College applied to defendant for state aid under the newly enacted Bundy Law. By separate letters, dated December 31, 1969, the defendant informed the Colleges that they were ineligible for state aid under Article XI, Section 3 of the New York State Constitution. In some detail, the letters described the particular conditions of the respective institutions which led to defendant's conclusion.

 Section 2(d) of the Bundy Law provides that eligibility must be determined on the basis of, among other things, compliance with "the constitution of the United States and the constitution of the state of New York." Arguing that the Colleges are eligible for aid under the First Amendment, and citing the defendant's sole reliance on the Blaine Amendment, the plaintiffs and plaintiff-intervenors claim the defendant is applying a standard stricter than that of the First Amendment, and is thereby violating their First and Fourteenth Amendment rights. See Cantwell v. Connecticut, 310 U.S. 296, 60 S. Ct. 900, 84 L. Ed. 1213 (1940), and Abington School District v. Schempp, 374 U.S. 203, 83 S. Ct. 1560, 10 L. Ed. 2d 844 (1963).

 The first question which the parties have briefed, namely, whether this court should abstain pending a state court resolution of the matter, is dispositive. While abstention in cases involving civil rights is appropriate only in "narrowly limited" special circumstances, see Zwickler v. Koota, 389 U.S. 241, 248, 88 S. Ct. 391, 19 L. Ed. 2d 444 (1967), we are convinced this is such a case. The First Amendment problem presented here is essentially an economic one. That plaintiffs' complaint in this action was not filed until more than one year after the defendant's decision to deny aid is indicative of an absence of immediate and irreparable damage to the complainants' exercise of First Amendment freedoms.

 The principal reason we abstain is that we face here an unresolved question of state law, whether plaintiff-colleges are institutions either, in the words of the Blaine Amendment, "wholly or in part under the control or direction of any religious denomination" or "in which any denominational tenet or doctrine is taught," and therefore foreclosed from state aid under the Bundy Law. Clearly, the determination of this issue by the state courts may "avoid or modify" several federal constitutional questions. Zwickler, supra, 389 U.S. at 248-249, 88 S. Ct. 391; see also Askew v. Hargrave, 401 U.S. 476, 91 S. Ct. 856, 28 L. Ed. 2d 196 (1971); Wisconsin v. Constantineau, 400 U.S. 433, 91 S. Ct. 507, 27 L. Ed. 2d 515 (1971); Fornaris v. Ridge Tool Co., 400 U.S. 41, 91 S. Ct. 156, 27 L. Ed. 2d 174 (1971); Reetz v. Bozanich, 397 U.S. 82, 90 S. Ct. 788, 25 L. Ed. 2d 68 (1970); and Coleman v. Ginsberg, 428 F.2d 767 (2d Cir. 1970). Indeed, some four months after the initial complaint in this action was filed, the State Appellate Division, Third Department, decided in Canisius College of Buffalo v. Nyquist, 36 A.D. 2d 340, 320 N.Y.S. 2d 652 (1971), that a college similarly denied aid on the authority of the Blaine Amendment was entitled to state assistance. Although that decision is now on appeal, and in any event the instant plaintiffs may not be successful in the state courts, this does not affect our conclusion that abstention is proper to avoid unnecessary and premature constitutional adjudication.

 Although we abstain from deciding at this time the constitutional questions presented, the complaint shall not be dismissed. Rather, we retain jurisdiction and stay these proceedings pending state court resolution of this action. *fn3"

 So ...

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