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April 16, 1980

Jeanne BRANDON, a minor, by her parents Mr. D. Brandon and Mrs. Anne Brandon; Erin Marie Conway; Jill George, a minor by her parents Mr. John George and Mrs. Joan George; Lisa A. Macaione: Lauren M. Rogers and William Smith, a minor by his legal guardians Mr. Charles LaPlante and Mrs. Sally LaPlante, Individually and on behalf of those similarly situated, Plaintiffs,
The BOARD OF EDUCATION OF the GUILDERLAND CENTRAL SCHOOL DISTRICT; Peter E. Knauss; Grace Serviss; William P. Chamberlin; Joseph L. Cohen; Beverly LeBlanc; Gordon S. Purrington; Patricia Renshaw; Alan L. Ross; Richard M. Smith; Peter W. Alland and Charles Ciaccio, Defendants.

The opinion of the court was delivered by: MCCURN


Plaintiffs, a group of students at Guilderland High School, have commenced this action for declaratory and injunctive relief and for damages, as a result of the defendants' refusal to allow them, as members of a group called "Students for Voluntary Prayer", to use a room in the school to conduct a communal prayer meeting immediately prior to the beginning of school each day. *fn1" The action has been brought pursuant to 42 U.S.C. § 1983 with jurisdiction properly alleged under 28 U.S.C. § 1343(3).

 The defendants named in this lawsuit are the Board of Education of the Guilderland Central School District, the individual members of the Board, Peter W. Alland, Superintendent of the School District, and Charles Ciaccio, Principal at Guilderland High School. This case is presently before the Court on plaintiffs' motion for summary judgment pursuant to Rule 56 of the Fed.R.Civ.P. on their request for declaratory and injunctive relief. *fn2" Defendants seek denial of the motion, and while making no formal cross-motion for summary judgment, request that the Court search the record and dismiss the complaint on the ground that plaintiffs are not entitled to the relief sought as a matter of law.


 Plaintiffs are the organizers of a group called "Students for Voluntary Prayer". In September of 1978, plaintiffs Lauren Rogers and William Smith, acting on behalf of the other plaintiffs and "Students for Voluntary Prayer" sought permission from defendant Charles Ciaccio to use a room in the Guilderland High School for the purpose of conducting a communal prayer meeting each day before classes. *fn3" According to plaintiffs, the request was made entirely on their own initiative. The proposed meetings were to be held without any official school assistance, supervision, aid or participation and with volunteer adult supervision. Plaintiffs contend that attendance at the meetings would be voluntary and that the sessions would be completely separate, distinct and independent from all other school functions.

 Defendant Ciaccio denied the request by letter dated September 23, 1978. Defendant Alland, Superintendent of the School District, responding to the same request, informed plaintiff Smith, by letter dated November 15, 1978, that the school attorney had advised him that it would be impermissible for the school to grant the request. The Board of Education, at a meeting held on December 19, 1978, voted to deny permission as well.

 Plaintiffs Conway, Rogers and Smith renewed the request at meetings of the defendant Board of Education held on February 27, 1979 and March 6, 1979. At the March 6th meeting, the Board collectively approved a resolution reaffirming its December 18, 1978 action denying plaintiffs the use of a school room for prayer meetings. *fn4" The present action was commenced as a result of defendants' refusal to grant plaintiffs' request.


 In seeking summary judgment, plaintiffs ask the Court for a declaration that defendants' refusal to allow student prayer groups to meet voluntarily on public school property before the commencement of classes, constitutes a violation of the students' constitutional rights under the First and Fourteenth Amendments, to free exercise of religion, freedom of speech, freedom of association and equal protection under the law. In addition, plaintiffs seek the issuance of an injunction, enjoining the defendants from continuing to abridge the constitutional rights of plaintiffs and those similarly situated by denying them the use of a school room for prayer meetings.

 Opposing plaintiffs' motion, defendants first argue that the complaint in this action must be dismissed as a result of plaintiffs' failure to present a written verified complaint to school officials within three months after the accrual of their claim as required by New York State Education Law § 3813(1). Defendants further claim that the action must be dismissed as to plaintiffs Conway, Macaione and Rogers on mootness grounds; that the action should not proceed without naming the New York State Commissioner of Education as a party defendant in order to avoid risk to the named defendants of incurring double or otherwise inconsistent obligations in light of the authority of the Commissioner; and that plaintiffs have failed to satisfy the requirements for a class action under Rule 23 of the Fed.R.Civ.P. *fn5" Finally, defendants contend that allowing plaintiffs the use of a school room for prayer meetings would be in violation of the Establishment Clause of the First Amendment to the Constitution as well as in violation of the laws and policies of the State of New York and Commissioner of Education.


 Since a finding by this Court that failure by the plaintiffs to satisfy the requirements of Education Law § 3813(1) would require dismissal of the action and render determination of the other issues raised in this lawsuit unnecessary, discussion of the applicability of that section in the present case is warranted at this point.

 Section 3813(1) provides in pertinent part that:

No action or special proceedings, for any cause whatever, except as hereafter provided, relating to district property or property of schools provided for in article eighty-five of this chapter or chapter ten hundred sixty of the laws of nineteen hundred seventy-four or claim against the district or any such school, or involving the rights or interests of any district or any such school shall be prosecuted . . . . Unless it shall appear by and as an allegation in the complaint or necessary moving papers that a written verified claim upon which such action or special proceeding is founded was presented to the governing body of said district or school within three months after the accrual of such claim and that the officer or body having the power to adjust or pay said claim has neglected or refused to make an adjustment or payment thereof for thirty days after such presentment.

 Plaintiffs admittedly did not satisfy the notice requirement contained in the section prior to commencing this action. Defendants contend that the statutory provision establishes a condition precedent to the commencement of the lawsuit and assert that plaintiffs' failure necessitates dismissal of the complaint.

 Plaintiffs, on the other hand, argue that compliance with the notice requirement is not mandatory in civil rights actions brought pursuant to 42 U.S.C. § 1983. While defendants are correct in their assertion that Section 3813(1) generally serves as a condition precedent to the commencement of non-tort claims against the school district, the law is fairly well settled, at least with regard to notice requirements in claims against municipalities, that such requirements are inapplicable to § 1983 actions. See Glover v. City of New York, 401 F. Supp. 632, 635 (E.D.N.Y.1975); Carrasco v. Klein, 381 F. Supp. 782, 787, n.12 (E.D.N.Y.1974); Laverne v. Corning, 316 F. Supp. 629, 637 (S.D.N.Y.1970).

 Although the cases relied upon by the Court involved the application of the New York State General Municipal Law § 50-e notice of claim procedure, *fn6" this Court can find no reason why the same rule would not be applicable with regard to the requirements under Education Law § 3813(1). This is especially true since the rationale behind the exemption is at least in part, that to require the notice as a condition precedent to the commencement of this action, would result in an unlawful limitation by state law on rights granted under a federal statute. See Laverne v. Corning, supra, at 637. The result would be the same in cases falling under § 3813(1). Therefore, the Court finds that plaintiffs are not precluded from pursuing this action under 42 U.S.C. § 1983 as a result of their failure to satisfy § 3813(1).


 Although defendants in their second amended answer to the complaint, assert a claim of mootness with regard to the three plaintiffs who have now graduated from Guilderland High School, they have failed to address the issue in opposition to plaintiffs' motion for summary judgment. Nonetheless, the Court must decide the mootness question since proper exercise of its jurisdiction is dependent upon satisfaction of the constitutional requirement of a live "case or controversy". Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 98 S. Ct. 1554, 56 L. Ed. 2d 30 (1978); Powell v. McCormack, 395 U.S. 486, 89 S. Ct. 1944, 23 L. Ed. 2d 491 (1969).

 Upon reviewing the situation presented in this lawsuit, the Court, for several reasons, is convinced that dismissal of the action on mootness grounds is both unnecessary and inappropriate. In that regard, it should be pointed out at the outset that there are plaintiffs to this action who are presently students at Guilderland High School, albeit only for a few more months. These remaining students clearly have a legally cognizable interest in the outcome of the action.

 Aside from that, the pleadings indicate that this action was commenced by the plaintiffs, not only on their own behalf but as representatives of the organization "Students for Voluntary Prayer" and on behalf of all students similarly situated. See Trachtman v. Anker, 563 F.2d 512, 514 n.1 (2d Cir. 1977), cert. denied 435 U.S. 925, 98 S. Ct. 1491, 55 L. Ed. 2d 519 (1978). *fn7" Since the Court has received no information to the contrary, the situation complained of has apparently not been resolved to plaintiffs' satisfaction, and the Court must, therefore, assume that a proper adversarial relationship assuring presentation of the issues still exists. *fn8"

 In addition, the Court notes that plaintiffs' claim for relief is not limited to declaratory and injunctive relief but also includes a sizable demand for damages which remains extant as to the graduated plaintiffs. So long as the damages claim is based upon the denial of a personal liberty rather than a property right (Eisen v. Eastman, 421 F.2d 560 (2d Cir. 1969) (1970) cert. denied 400 U.S. 841, 91 S. Ct. 82, 27 L. Ed. 2d 75 (1970)), and is not "so insubstantial or so clearly foreclosed by prior decisions that (the) case may not proceed," (Memphis Light, Gas & Water v. Craft, supra, 436 U.S. at 9, 98 S. Ct. at 1560), the action need not be dismissed as moot. See also Powell v. McCormack, supra; McCabe v. Nassau County Medical Center, 453 F.2d 698 (2d Cir. 1971).

 Finally, while the Court need not decide on this basis, it should be mentioned that the present case arguably falls within the mootness exception for those "capable of repetition, yet evading review". So. Pac. Terminal Co. v. Int. Comm. Comm., 219 U.S. 498, 515, 31 S. Ct. 279, 283, 55 L. Ed. 310 (1911).


 Having disposed of the jurisdictional and procedural issues raised by the defendants, the Court must now address itself to the onerous task of determining whether plaintiffs are entitled to the relief sought. *fn9"

 As aptly stated by Justice White in the recent Supreme Court decision in Committee for Public Education v. Regan, 444 U.S. 646, 100 S. ...

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