APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW YORK
Hays and Oakes, Circuit Judges and Christensen, Senior District Judge.*fn*
CHRISTENSEN, Senior District Judge:
Plaintiff, a resident and voter in Merrick, Long Island, New York, brought a civil rights action in the district court seeking the convention of a three-judge court for the purpose of granting declaratory and injunctive relief on his allegations that the method of selection provided by the New York Education Law for members of the defendant Central High School District Board was violative of the "one man, one vote" principle and thus unconstitutional. A single judge of the district court denied plaintiff's motions for a three-judge court and for summary judgment and granted the motion of the defendants and the intervenor to dismiss the complaint for failure to state an actionable claim. The determinative issue presented here is whether the complaint stated a substantial constitutional claim requiring the convening of a three-judge court.*fn1
Plaintiff-appellee, Joseph S. Rosenthal, is a resident of, and eligible to vote in, Merrick, Town of Hempstead, County of Nassau, State of New York. The defendant-appellee, Central High School District, has jurisdiction over the pupils residing within the district who have completed the work of the sixth grade, and possesses the same powers with respect to the high school therein as boards of education of union free school districts have with respect to the elementary schools in their districts.*fn2
Within the area of the Central High School District are four separate union free school districts -- North Bellmore, Bellmore, Merrick and North Merrick, which also are defendants-appellees herein. The members of the boards of each of these union free school districts are elected by the qualified voters in the respective districts.*fn3
The board of education of such component union free school district selects two of its members to serve as representatives on the board of education of the Central High School District. The persons so selected remain members of the central board during their respective terms of office as members of the union free school district boards. Whenever a vacancy occurs in the office of a member of the central board, the local board which had been represented in that office selects one of its members as a replacement to serve on the central board.*fn4
The respective populations of the union free school districts vary widely.*fn5 Aside from the importance or materiality of disparate weights, it is obvious that to the extent voters in the respective union free school districts determine the identity of members of the board of the Central High School District they exert varying degrees of influence by their votes. That their respective votes do tend to control the selection of central high school board members is evident from the fact that only members of the local board as determined by such votes are eligible for membership on the central board.
The central board with respect to the high school under its jurisdiction exercises all of the powers which are possessed by boards of the component free school districts with reference to the elementary schools supervised by them. The central board may issue bonds, adopt budgets, hire professional and non-professional employees, establish curricula and generally determine the educational policies and procedures to be implemented at the high school level. It may select sites and plans and propose taxes for school buildings, subject to the approval of the qualified electors of the district.*fn6 Its action has a practical effect also upon the levy of general school taxes since a proportionate share of its budget is transmitted to each component union free school district for incorporation in the local district's overall school tax.*fn7 There seems no doubt, as recognized by the district court, that the powers of a central high school district include substantial governmental functions.
Confronted with plaintiff's motion for the convening of a three-judge court, his alternative motion for summary judgment and the defendants' motion for dismissal of plaintiff's complaint, the judge below granted the latter motion in the view that the complaint did not state a substantial constitutional claim.*fn8
Hadley v. Junior College District of Metropolitan Kansas City, 397 U.S. 50, 25 L. Ed. 2d 45, 90 S. Ct. 791 (1970), the district court noted, was "clearly not intended to apply to an appointive board". It dismissed plaintiff's argument that the central board should be treated as an elected one because its members were chosen from members of the constituent board, who themselves were elected, with the statement that "restricting the class of people who may be appointed does not change appointment to election", and added:
"Moreover, the statute (Education Law § 1901), requires that a central high school board member be a member of a local board only in the case of common school districts and not in the case of union free school districts, which are the only constituents of Central High School District Number 3."
If the latter premise were correct, the controlling effect of Sailors v. Board of Education of the County of Kent, supra, against appellant's position would be indicated. But as has already been noted, election to a local board is a prerequisite to "appointment" by that local board as a member of a central high school board.*fn9
We are mindful of Sailors' teaching that the "one man, one vote" principle does not apply to an appointive board. But the question remains whether within its rationale the members of the central high school board are "appointed" or "elected" officers, and if strictly neither whether the manner of ...