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July 20, 1976

SUSAN M. W. NORWICK, Plaintiff, TARJA U. K. DACHINGER, Intervenor Plaintiff,
EWALD NYQUIST, individually and as Commissioner of the New York State Department of Education, VINCENT GAZZETTA, individually and as Director of the Division of Teacher Certification, New York State Department of Education, and THOMAS MILANA, individually and as Acting Director of the Division of Professional Conduct, New York State Department of Education, Defendants

The opinion of the court was delivered by: CONNER


 This action represents yet another chapter in the expanding volume of cases involving constitutional challenges to State statutes and regulations designed to limit certain types of employment to citizens, thereby excluding, among others, permanent resident aliens. *fn1" In the present case, plaintiffs *fn2" contest the validity of Section 3001(3) of the New York Education Law, which provides that no alien may be employed to teach in the public schools of New York State (the public schools), unless and untilthat alien has made application to become a United States citizen and thereafter proceeds, in due course, to become a citizen. *fn3"

 Plaintiffs, aliens who have elected to retain their native citizenship (non-applicant aliens), have both applied for certification to teach in the public schools. However, because they do not fit within the limited exceptions to Section 3001(3), plaintiffs have been denied certification. *fn4" It is undisputed that, in both cases, the denial of certification has borne no relation to plaintiffs' general character or qualifications, but rather, is solely the product of their status as non-applicant aliens.

 On June 27, 1974, plaintiff Norwick commenced this action for injunctive and declaratory relief. She asserts, in addition to other claims, a cause of action under the Civil Rights Act of 1871, 42 U.S.C. § 1983, and its jurisdictional counterpart, 28 U.S.C. § 1343. With the consent of defendants, *fn5" the Court entered orders dated September 9, 1975 and December 18, 1975, convening a three-judge constitutional court pursuant to 28 U.S.C. §§ 2281 and 2284 and granting plaintiff Dachinger's motion to intervene.

 Presently before the Court is plaintiffs' motion, pursuant to Rule 56 F.R.Civ. P., for a summary judgment declaring Section 3001(3) unconstitutional and enjoining its further enforcement.


 It is beyond reasonable dispute that the power of New York, or any other state, to promulgate regulatory legislation such as Section 3001(3) is qualified by various provisions of the United States Constitution. In this case, plaintiffs claim that the ban of Section 3001(3) *fn6" on certification of non-applicant aliens for teaching positions in the public schools offends the Equal Protection and Due Process Clauses of the fourteenth amendment and the Supremacy Clause of Article VI.

 We are not insensible of the Supreme Court's admonition that a three-judge court should consider constitutional challenges to State statutes only if non-constitutional "statutory" Supremacy Clause issues, within the jurisdiction of a single judge, prove not to be dispositive. Hagans v. Lavine, 415 U.S. 528, 94 S. Ct. 1372, 39 L. Ed. 2d 577. Nonetheless, it should be stressed that Hagans has neither expanded nor diminished the basic jurisdictional authority of either single-judge or three-judge district courts. To the contrary, the Hagans ruling is addressed to procedure only. Thus, the Hagans Court, in the interests of judicial economy and in light of "'the constrictive view of * * * three-judge [court] jurisdiction which [the Supreme Court] has traditionally taken'," concluded and directed that the single judge should exhaust all potentially dispositive claims within his jurisdiction before resort to a three-judge court. Hence, where constitutional claims over which a three-judge court would have exclusive jurisdiction coincide with non-constitutional claims reviewable by a single judge, Hagans directs the single judge, before convention of a three-judge court, to do no more than the latter would itself be required to do, i.e., to dispose of the litigation on non-constitutional grounds, if possible, pursuant to the well settled rule that "a federal court should not decide federal constitutional questions where a dispositive nonconstitutional ground is available." Hagans v. Lavine, supra, at 546-47.

 Typically, the Hagans doctrine has been applied to cases in which specific State statutes or regulations are asserted to be in conflict with specific federal statutory or regulatory provisions, e.g., Holley v. Lavine, 529 F.2d 1294, 1296 (2d Cir. 1976); Roe v. Norton, 522 F.2d 928 (2d Cir. 1975); Roe v. Ferguson, 515 F.2d 279 (6th Cir. 1975); Brown v. Beal, 404 F. Supp. 770 (E.D.Pa. 1975). In such cases, it is the single judge's office merely to "interpret[] the [applicable] statute and * * * regulation," Holley v. Lavine, supra at 1296, and to determine whether there is a conflict with federal enactments addressed to the same subject matter. It is axiomatic that, should the reviewing judge identify such a conflict, under the Supremacy Clause the State statute must defer to the federal. It was that type of question, resting upon a statutory comparison, that Hagans denominated a "Supremacy Clause ('statutory')" issue. Hagans v. Lavine, supra, at 545. Although, within such a context, a State statute or regulation may be declared "unconstitutional," i.e., violative of the Supremacy Clause, see, e.g., DeCanas v. Bica, 424 U.S. 351, 96 S. Ct. 933, 47 L. Ed. 2d 43, 44 U.S.L.W. 4235, 4236 (1976), the judge can decide the issue without having to interpret the Constitution.

 This is a very different case. Here, despite plaintiffs' sweeping citation to the bulk of the Immigration and Nationality Act, 8 U.S.C. § 1101 et seq., the purported conflict underlying plaintiffs' Supremacy Clause argument is not between Section 3001(3) and any specific enactment of Congress, but rather, between Section 3001(3) and the exclusive power to regulate immigration and naturalization vested in the federal government by Article I, Section 8, clause 4 of the United States Constitution. Unlike the clearly "statutory" Supremacy Clause argument in Hagans, the Supremacy Clause argument in this case derives exclusively and directly from the Federal Constitution rather than from federal legislation, entails an immediate resort to the Constitution and, if "substantial," see Goosby v. Osser, 409 U.S. 512, 518, 35 L. Ed. 2d 36, 93 S. Ct. 854 (1973), requires the convention of a three-judge court.

 The conclusion that the present Supremacy Clause argument is "constitutional" rather than "statutory" is supported, inferentially, by a number of similar cases. Thus, in Graham v. Richardson, 403 U.S. 365, 29 L. Ed. 2d 534, 91 S. Ct. 1848 (1971), the Supreme Court ruled in favor of the alien plaintiffs on both equal protection and Supremacy Clause grounds. In Sugarman v. Dougall, 413 U.S. 634, 37 L. Ed. 2d 853, 93 S. Ct. 2842 (1973), the Supreme Court elected to affirm the lower court on equal protection grounds, ignoring the Supremacy Clause argument that had been adopted by the court below. Although these decisions are pre-Hagans, they by no means pre-date the doctrine that constitutional rulings are to be avoided whenever possible. More recently, in a post-Hagans decision, Judge Gurfein, writing for a three-judge panel in the Eastern District of New York, ruled New York Labor Law Section 222 unconstitutional on both equal protection and Supremacy Clause grounds, C.D.R. Enterprises, Ltd. v. Board of Education of the City of New York, 412 F. Supp. 1164 (E.D.N.Y. 1976), without any discussion of Hagans.

 We therefore believe that the Supremacy Clause claim herein is more properly viewed as a true "constitutional" argument which was thus beyond the convening court's jurisdiction. In any event, the determination whether it is constitutional or statutory is at least sufficiently troublesome that Hagans' stated objective of judicial efficiency would seem better served not by the extensive digression which such determination would require but by proceeding directly to the clearly constitutional equal protection argument which we find dispositive.

 For reasons outlined in considerable detail below, this Court concludes that Section 3001(3) violates the Equal Protection Clause of the fourteenth amendment. Thus, plaintiffs' motion for summary judgment must be granted and we need not consider plaintiffs' due process and Supremacy Clause arguments.


 At the threshold of any equal protection analysis, a reviewing court must of course identify the standard of judicial scrutiny that is appropriate to the case before it. Under familiar principles, if a regulation impinges upon a "fundamental right," Shapiro v. Thompson, 394 U.S. 618, 22 L. Ed. 2d 600, 89 S. Ct. 1322 (1969), or creates an inherently "suspect classification" such as race, nationality or alienage, the challenged provision will be subjected to "close judicial scrutiny," requiring the State to establish a "compelling" interest in its enactment. See, e.g., Graham v. Richardson, supra, 403 U.S. at 372-75 (1971). As the Supreme Court has recently observed, a State that employs

"a suspect classification 'bears a heavy burden of justification,' * * *, a burden which, though variously formulated requires [a] State to * * * show that its purpose or interest is both constitutionally permissible and substantial, and that its use of the classification is 'necessary * * * to the accomplishment' of its purpose or the safeguarding of its interest." In re ...

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