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ROSS v. DISARE

June 8, 1977

Paulette ROSS, Individually and on behalf of her minor daughter, Charise Ross, Lenton Warren, Individually and on behalf of his minor sons, Marvin Warren and Bobby Warren, Angelia Clarke, John Ponder and Margo Cooper, each on his own behalf and on behalf of all others similarly situated, Plaintiffs,
v.
Charles DISARE, Individually and in his capacity as Superintendent of City School District of the City of Newburgh, Murray L. Cohen, Individually and in his capacity as Chairman of the School Board of the City School District of the City of Newburgh, The School Board of the City School District of the City of Newburgh, John Suydam, Individually and in his capacity as Principal of North Junior High School of the City School District of the City of Newburgh, and Peter Dubaldi, Individually and in his capacity as Vice-Principal of North Junior High School of the City School District of the City of Newburgh, Defendants



The opinion of the court was delivered by: CANNELLA

OPINION AND ORDER

Plaintiffs' motion, for a preliminary injunction, is granted in accordance with the opinion below. Before proceeding to a discussion of the preliminary injunction motion, however, there are a number of other matters pending before the Court which must be resolved.

Defendants' motion, to dismiss the complaint as to plaintiffs Harvey J. Burger and the Newburgh Chapter of the N.A.A.C.P., is granted, on the latters' consent.

 The motion to dismiss, interposed by defendant School Board of the City School District of the City of Newburgh ("School Board" or simply, "the Board"), is denied. The complaint adequately states a claim against the Board under Section 204(d) of the Equal Educational Opportunities Act of 1974, 20 U.S.C. § 1703(d). As far as the jurisdictional amount requirement of 28 U.S.C. § 1331 is concerned, it does not appear "to a legal certainty," St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 289, 58 S. Ct. 586, 590, 82 L. Ed. 845 (1938), that the right to be protected, here the right to an equal educational opportunity, is of a value no greater than $ 10,000. See Huntsville City Board of Education v. Brown, 379 F. Supp. 1092, 1094 n. 3 & cases cited therein (M.D.Ala.1974) (three-judge court). Of course, no claims may be asserted against the School Board under 42 U.S.C. § 1983, as the Board is not a person within the meaning of that statute. Kornit v. Board of Education, 542 F.2d 593 (2d Cir. 1976) (per curiam); Monell v. Department of Social Services, 532 F.2d 259, 263-64 (2d Cir. 1976).

 Plaintiffs' motion, to add as defendants the present members of the School Board, is granted as is their motion to substitute Murray L. Cohen for Floyd W. Penney, as Chairman of the School Board, and Charles Disare for Edwin F. Klotz, as Superintendent of the City School District of the City of Newburgh ("School District"). See Fed.R.Civ.P. 25(d)(1). Insofar as the claimed lack of a continuing controversy with respect to these defendants is concerned, see Spomer v. Littleton, 414 U.S. 514, 94 S. Ct. 685, 38 L. Ed. 2d 694 (1974), the Court finds otherwise, as is discussed below.

 THE INJUNCTION

 After the instant litigation had been pending for more than two years, plaintiffs brought this motion for preliminary injunctive relief based upon a small portion of their amended class action complaint. *fn1"

 The thrust of the allegations in the complaint taken in its entirety is that plaintiffs, non-white students attending schools in the Newburgh City School District, (1) have been threatened with and/or subjected to disciplinary action because of their criticism of school policies and (2) have been threatened with and/or subjected to harsher and more frequent disciplinary action than have white students. One of the four causes of action, however, includes the claim that plaintiffs' due process rights, as well as those created by § 3214 of the New York Education Law, have been violated as a result of defendants' failure to provide adequate notice and an adequate opportunity to be heard in connection with certain suspensions from school. Plaintiffs seek to enjoin these violations but rest, for the purposes of this motion, on their pendent state law claims, eschewing for the moment any constitutional claim they may have. *fn2"

 New York Education Law § 3214(3) provides, in pertinent part:

 
b. The board of education, board of trustees, or sole trustee may adopt by-laws delegating to the principal of the district, or the principal of the school where the pupil attends, the power to suspend a pupil for a period not to exceed five school days.
 
c. No pupil may be suspended for a period in excess of five school days unless such pupil and the person in parental relation to such pupil shall have had an opportunity for a fair hearing, upon reasonable notice, at which such pupil shall have the right of representation by counsel, with the right to question witnesses against such pupil and to present witnesses and other evidence on his behalf.... A record of the hearing shall be maintained, but no stenographic transcript shall be required and a tape recording shall be deemed a satisfactory record.

 Plaintiffs allege seven separate violations of the above statute, based upon defendants' failure to:

 1) afford plaintiffs the opportunity for a hearing before the superintendent of schools and a decision based on the evidence adduced at the hearing within five school days after the start of the suspension;

 2) afford plaintiffs the right to question the witnesses against them;

 3) maintain adequate records of these hearings;

 4) provide plaintiffs and their parents with adequate notice of (a) their right to a hearing and a decision within five school days of the suspension, (b) their right to present witnesses and other evidence on their behalf, (c) their right to question witnesses against them, and (d) their ...


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