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JUSTICE v. BOARD OF EDUC.

November 9, 1972

Jacqueline JUSTICE et al., Plaintiffs,
v.
The BOARD OF EDUCATION, City School District of the City of Mount Vernon, New York, et al., Defendants


Frankel, District Judge.


The opinion of the court was delivered by: FRANKEL

FRANKEL, District Judge.

Over a quarter-century ago Congress passed the National School Lunch Act *fn1" "to safeguard the health and well-being of the Nation's children" *fn2" or, as more broadly stated in the course of fashioning later amendments, to assure that "every child from an impoverished family shall be served meals either free or at reduced cost." *fn3" Despite those stated goals of the world's richest country, millions of our children continue to go without adequate lunches. Some of those children bring this action -- styled, probably advertently and perhaps symbolically, Justice, et al. v. Board of Education, et al. -- to claim that the National School Lunch Act and the Constitution forbid that deprivation.

 For brief background purposes at this point, the School Lunch Act may be described as providing federal money (to be matched by state-generated funds) and agricultural commodities to give free or reduced-price lunches to needy school children. State and local participation is voluntary -- or may at least be deemed to be for present purposes. There is a primary issue in this case, however, as there has been in prior litigation under the Act, as to whether, and to what extent, a school district or other local unit may provide lunches for less than all the needy children (or schools) under its jurisdiction. Other questions concern (1) the order in which children are to be brought within lunch programs, assuming that some are to be postponed or excluded, (2) alleged deprivations of lunches to children entitled thereto despite their families' "ineligibility" because of their level of income, and (3) the claim that because of local procedural arrangements children are identified to everyone as recipients of public largesse, contrary to the command of the federal statute forbidding such stigmatization.

 According to the undisputed allegations of the verified complaint, together with other facts stipulated or uncontested, the City of Mount Vernon, New York, has 14 public schools operated by defendant Board of Education. *fn4" The total student population is approximately 11,900. 4,820 of these come from lowincome families (i.e., families with yearly incomes of $4,000 or less), and thus meet federal eligibility standards for free lunches. Exercising leeway given by the federal law, defendant Board has adopted the more generous criteria of eligibility suggested by the New York State Department of Education, so that the number of eligible students is probably higher than 4,820. *fn5" In any event, it is stipulated that only 440 of the eligible children actually receive meals under the school lunch program.

 The explanation for this -- and the source of the main question in the case -- is that, while defendant Board participates in the program, lunches under the program are served in only four of Mount Vernon's 14 schools. *fn6" The four schools (the high school, middle school, and two elementary schools) have been selected because they have cafeterias or other facilities useful for serving lunches. *fn7" The selection basis has not included the rate of need in each school's population. Seven of Mount Vernon's elementary schools have sufficient concentrations of children from low-income families to receive assistance under Title I of the Federal Elementary and Secondary Education Act of 1965. *fn8" Nevertheless, only two elementary schools operate a lunch program, and one of this number does so with special federal funds. *fn9"

 Among the results of defendants' confining the lunch program to four schools are (a) children in great need receive no lunches while less needy children are fed; (b) schools with relatively few needy children have lunches while schools with as many as 90% poor children do not; and (c) siblings in "eligible" families are treated differently, depending upon which school they happen to attend.

 In the four schools under the lunch program parents receive an information letter and application form. The letter reports the eligibility standards in terms of family size and gross income. *fn10" However, neither the letter nor the application discloses that children whose families have more than the stated gross incomes may obtain free or reduced-price lunches upon a showing that they cannot afford to pay.

 The four schools operating lunch programs serve some 2,200 lunches daily. Thus, almost 1,800 students pay "full prices" for their lunches though they are, of course, benefited by (a) federal grants averaging $.06 as "general assistance" for each paid lunch, *fn11" (b) the convenient supplying of wholesome food and, probably, (c) the incidental economy accomplished through the federal grant of surplus agricultural commodities and a non-profit restaurateur. *fn12" In purported compliance with the federal prohibition against "segregation * * or other discrimination" or "overt identification * * * by special tokens or tickets, * * * or other means" *fn13" the Board has provided that (a) needy beneficiaries will be given special tickets with which to obtain their lunches and (b) children who pay may either purchase (monthly) and use similar tickets or pay directly in cash. The ring-up on the cash register is the same for all students, whether payment is made by ticket or cash. However, among the 1,775 or so who pay for their lunches, only 20 purchase tickets in advance, the others presenting currency at the register.

 The plaintiff children (all from families who receive public assistance), suing through their mothers and next friends, are in (and undertake to represent) various classes of needy students excluded from the school lunch program or deprived of its benefits because of allegedly unlawful practices. The largest class is that of children attending schools other than the four to which the program has been confined. A second class is those who attend one of the four schools where a lunch program is operative and whose families (though dependent upon public assistance) are above the gross income levels for eligibility but allegedly cannot afford to pay for lunches because of the high cost of other necessities. A third complains of the ticket procedure, alleging that the resultant humiliation has caused otherwise eligible children in the four participating schools to forego available free lunches.

 Seeking declaratory and injunctive relief, plaintiffs assert rights under 42 U.S.C. § 1983 as well as the National School Lunch Act, regulations thereunder, and related legislation. They invoke the court's jurisdiction under 28 U.S.C. §§ 1331, 1337, and 1343(3). They seek to maintain the suit as a class action under Fed.R.Civ.P. 23(b)(2). Plaintiffs have moved upon a broad stipulation and uncontroverted affidavits for summary judgment. There are no material issues of fact. *fn14" Accordingly, the court proceeds now to the further findings and conclusions that compel judgment for the plaintiffs.

 1. The court's jurisdiction is not seriously contested. It plainly exists, at any rate, under 28 U.S.C. § 1343(3), so there is no need to explore the alternative bases plaintiffs assert. E.g., Davis v. Robinson, 346 F. Supp. 847 (D.R.I., 1972); Christian v. New York State Department of Labor, Division of Employment, et al. 347 F. Supp. 1158 (S.D.N.Y. 1972); Ayala v. District 60 School Board, 327 F. Supp. 980 (D.Col.1971); Stogner v. Page, Civ.No. 69-1338 (N.D.Ill.February 5, 1970).

 2. The question of class treatment is manageable with comparable brevity. Again, there is no genuine dispute, and the correctness of plaintiffs' position seems clear. This is a case eminently appropriate for handling as a class action within Fed.R.Civ.P. 23(b)(2). The court so determines in accordance with subsection (c)(1) of that Rule.

 3. We approach the more interesting and difficult problems. Foremost is the contention that limiting the lunch program to four schools, selected on the basis of physical facilities rather than concentration of poor children, violates the National School Lunch Act, federal administrative regulations issued pursuant to the Act, and the Equal Protection Clause of the Fourteenth Amendment. The court rules for plaintiffs under the statute and regulations. There is no need in this view to reach the constitutional problem.

 Plaintiffs' thesis is not a novelty. It was advanced in a number of cases brought before the 1970 amendments to the National School Lunch Act. It had a mixed, mostly negative, reception. The best known decision was that of Briggs v. Kerrigan, 307 F. Supp. 295 (D.Mass.1969), aff'd per curiam, 431 F.2d 967 (1st Cir. 1970), which rejected both the statutory and the constitutional arguments. While the Briggs decision was perhaps debatable in its setting, we may accept it without cavil for present purposes. Proceeding upon that basis, we are led to rule now for the plaintiffs because of significant 1970 amendments to the School Lunch Act and attendant changes in the administrative regulations.

 The problem in Briggs reflected a complex of dissatisfactions among potential beneficiaries of the school lunch program and their spokesmen. The specific complaint in that case, like the one here -- that lunch programs were confined to schools within the unit where physical facilities were "adequate," and thus, commonly, to the more rather than less affluent communities *fn15" -- was heard from many quarters. Similarly, there were grievances against other manifestations of local frugality -- in setting eligibility standards, in seeking major support from prices charged for paid lunches, and in otherwise preferring less strained budgets to better nourished children. *fn16"

 The grievances touched tender nerves. Two distinguished scholar-scientists, submitting unquestioned affidavits for the plaintiffs before us, make vivid what we all know when they report that the miseries of hunger lead to listlessness, irritability, other emotional ills, and a generally diminished ability to profit from either education or the world's other opportunities. As might have been expected, the Congress was not indifferent to such concerns. The dissatisfactions led in 1970 to substantial amendments of the School Lunch Act directly pertinent to the instant case.

 Senator McGovern, a principal proponent of these amendments, observed that the phrase every child "shall be served meals"

 
"is perhaps the most important phrase in all the legislation dealing with child nutrition. It creates, * * * 'a right to a school lunch.' This is a right bestowed on the children of America * * *.
 
"Without this vital language, and the right it creates, all our efforts at reform would be meaningless and empty. Our children would have only a promise, a hope rather than a right." 116 Cong.Rec. 13606 (91st Cong., 2d Sess., 1970). ...

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