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FILLER v. PORT WASHINGTON UNION FREE SCH. DIST.

September 16, 1977;

Stuart J. FILLER and Nassau County Chapter of New York Civil Liberties Union, Plaintiffs,
v.
PORT WASHINGTON UNION FREE SCHOOL DISTRICT, Commissioner of Education of the State of New York, Comptroller of the State of New York and Attorney General of the State of New York, Defendants



The opinion of the court was delivered by: PRATT

MEMORANDUM AND ORDER

 GEORGE C. PRATT, District Judge.

 Section 912 of New York's Education Law requires a public school district, upon request of the authorities of a non-public school, to provide to the district's resident children who attend the non-public school, all of the health and welfare services which are made available to the district's public school children:

 
The voters and/or trustees or board of education of every school district shall, upon request of the authorities of a school other than public, provide resident children who attend such school with any or all of the health and welfare services and facilities which are made available by such voters and/or trustees or board of education to or for children attending the public schools of the district. Such services may include, but are not limited to all services performed by a physician, dentist, dental hygienist, nurse, school psychologist, school social worker or school speech correctionist, and may also include dental prophylaxis, vision and hearing tests, the taking of medical histories and the administration of health screening tests, the maintenance of cumulative health records and the administration of emergency care programs for ill or injured pupils. Any such services or facilities shall be so provided notwithstanding any provision of any charter or other provision of law inconsistent herewith. Where children residing in one school district attend a school other than public located in another school district, the school authorities of the district of residence shall contract with the school authorities of the district where such nonpublic school is located, for the provision of such health and welfare services and facilities to such children by the school district where such nonpublic school is located, for a consideration to be agreed upon between the school authorities of such districts, subject to the approval of the qualified voters of the district of residence when required under the provisions of this chapter. Every such contract shall be in writing and in the form prescribed by the commissioner of education, and before such contract is executed the same shall be submitted for approval to the superintendent of schools having jurisdiction over such district of residence and such contract shall not become effective until approved by such superintendent.

 Plaintiffs attack the statute both on its face and as applied in the Port Washington School District on the ground that it offends the establishment of religion clause of the first amendment of the constitution of the United States.

 Several motions are pending, only one of which merits extended discussion and analysis. All of the "state defendants" (the Commissioner of Education, the Comptroller, and the Attorney General of the State of New York) have moved to strike the complaint for failure to comply with FRCP 11 which requires a pleading to be signed by at least one attorney of record and further requires his address to be stated. The filed complaint here has been signed in compliance with FRCP 11. Although the attorneys' address is not set forth in the typewritten portion of the complaint, it is set forth on the blue back. Unquestionably, the desirable practice is to set forth the attorney's address at the foot of the complaint immediately below the signature of the attorney. Plaintiffs' attorneys' failure to comply with that practice in this instance, however, does not appear to be a wilful disregard or circumvention of FRCP 11. Nor does it appear to have caused counsel for the state defendants any confusion since their motion papers are directed to plaintiff's attorneys at their proper address. Dismissal of the complaint, therefore, is not warranted, and this portion of the state defendants' motion is denied.

 Defendant Comptroller and defendant Attorney General also move to dismiss the complaint as against them on the ground that they are not proper parties to this action. The motion is granted. As to the Comptroller, while state funds are disbursed to school districts in New York, including defendant Port Washington district, the basis for disbursal is not directly related to the subject matter of this action, and plaintiffs have neither alleged facts nor brought to the court's attention any statutes which would warrant the granting of specific relief against the Comptroller in this action.

 The connection of the Attorney General to this action is even more remote. Of course, the Attorney General is entitled to notice of the pendency of any action challenging the constitutionality of a state statute. NYCPLR 1012(b). But that does not make him a party to the action; it merely alerts him to the claim and leaves him with several options. In this case, the Commissioner of Education, a state officer, is a defendant, and a proper one, and the Attorney General has appeared as his counsel. No more direct involvement of the Attorney General in the case than as attorney for defendant Commissioner is appropriate.

 The third and more difficult motion is plaintiff's motion for a preliminary injunction granting essentially the same relief as is sought by the action itself. Upon oral argument, all parties and the court agreed that the action was an appropriate one for advancement and consolidation of the preliminary injunction motion with a trial on the merits pursuant to FRCP 65(a)(2).

 At the time of argument of the preliminary injunction motion in February there was pending in the United States Supreme Court the case of Wolman v. Walter on appeal from the United States District Court for the Southern District of Ohio, 417 F. Supp. 1113. That case presented a challenge to a state statute (Ohio) which authorized public financing of various types of services to non public school children, most of whom attended sectarian schools. Decision of this motion was therefore withheld pending determination of Wolman. On June 24, 1977, the Supreme Court rendered its judgment together with five separate opinions; in addition, two judges noted certain concurrences and dissenting views without separate opinions. 433 U.S. 229, 97 S. Ct. 2593, 53 L. Ed. 2d 714.

 In light of the majority holdings in Wolman it is apparent that most, and perhaps all, of the health and welfare services contemplated by N.Y. Education Law § 912 may constitutionally be supplied to parochial* school pupils at taxpayer expense without violating the establishment clause of the first amendment. Some questions remain, however, as to whether certain of those services may constitutionally be supplied in the parochial schools themselves, and as to the scope and proper place of performance of the services which are in fact being supplied by the Port Washington School District under this statute. Before an appropriate injunction can be fashioned as a final judgment, therefore, additional facts must be supplied to the court either by way of hearing or stipulation.

 The Challenged Statute

 Any discussion of the tension between the establishment clause and the demonstrated desire of New York State to grant some financial assistance to its parochial school pupils might well begin with the following observations by Mr. Justice Powell in his separate opinion in Wolman.

 
Our decisions in this troubling area draw lines that often must seem arbitrary. No doubt we could achieve greater analytical tidiness if we were to accept the broadest implications of the observation in Meek v. Pittenger, 421 U.S. 349, 366, 95 S. Ct. 1753, 44 L. Ed. 2d 217 (1975), that "[substantial] aid to the educational function of [sectarian] schools * * * necessarily results in aid to the sectarian enterprise as a whole." If we took that course, it would become impossible to sustain state aid of any kind -- even if the aid is wholly secular in character and is supplied to the pupils rather than the institutions. Meek itself would have to be overruled, along with Board of Education v. Allen, 392 U.S. 236, 88 S. Ct. 1923, 20 L. Ed. 2d 1060 (1968), and even perhaps Everson v. Board of Education, 330 U.S. 1, 67 S. Ct. 504, 91 L. Ed. 711 (1947). The persistent desire of a number of States to find proper means of helping sectarian education to survive would be doomed. This Court has not yet thought that such a harsh result is required by the Establishment Clause. Certainly few would consider it in the public interest. Parochial schools, quite apart from their sectarian purpose, have provided an educational alternative for millions of young Americans; they often afford wholesome competition with our public schools; and in some States they relieve substantially the tax burden incident to the operation of public schools. The State has, moreover, a legitimate interest in facilitating education of the highest quality for all children within its boundaries, whatever school their parents have chosen for them.
 
It is important to keep these issues in perspective. At this point in the 20th century we are quite far removed from the dangers that prompted the Framers to include the Establishment Clause in the Bill of Rights. See Walz v. Tax Commission, 397 U.S. 664, 668, 90 S. Ct. 1409, 1411, 25 L. Ed. 2d 697 (1970). The risk of significant religious or denominational control over our democratic processes -- or even of deep political division along religious lines -- is remote, and when viewed against the positive contributions of sectarian schools, any such risk seems entirely tolerable in light of the continuing oversight of this Court. Our decisions have sought to establish principles that preserve the cherished safeguard of the Establishment Clause without resort to blind absolutism. If this endeavor means a loss of some analytical tidiness, then that too is entirely tolerable. 433 U.S. at 247-248, 97 S. Ct. at 2613.

 New York State's deep concern that its school children receive health and welfare services is expressed both in its constitution and statutes.

 Article VII, § 8, subd. 2 of the New York State Constitution provides in part:

 
Subject to the limitations on indebtedness and taxation, nothing in this constitution contained shall prevent the legislature from providing * * * for health and welfare services for all children, either directly or through subdivisions of the state, including school districts.

 By chapter 731 of its Laws of 1939 the New York legislature authorized a broad program of health and welfare services for children attending "schools other than public". By simultaneous and parallel amendments to the education law, the public health law, and the public welfare [now social services] law the legislature granted power to school authorities, public health authorities, ...


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