The opinion of the court was delivered by: KEENAN
JOHN F. KEENAN, United States District Judge:
Michael Cardo, the plaintiff in this action, was employed by the Lakeland Central School District of Shrub Oak (the "School District") located in Westchester County as a per diem substitute teacher, between the academic years of 1968-69 through 1981-82, except for the academic years 1970-71 and 1971-72. The Lakeland Federation of Teachers 1760 (the "Union") is and was during the time of plaintiff's employment by the School District the duly qualified exclusive representative for purposes of collective negotiations of regular teachers and permanent substitute teachers employed by the School District.
Plaintiff brought this action against the School District and the Union on June 20, 1983 alleging that he was denied contractual coverage for his collective bargaining rights by the collective bargaining agreement between the defendants which did not cover per diem substitute teachers, that this denial violated the equal protection clause of the United States Constitution and that, as a result of this denial, payment for his services was substantially less than the payment received by any other class of teacher with similar attainments. The complaint also alleges that defendants, in denying plaintiff contractual coverage for his collective bargaining rights and other rights in employment agreements, were acting under color of state law and, therefore, violated section 1983 of title 42 of the United States Code.
The School District has moved, pursuant to rule 56 of the Federal Rules of Civil Procedure, for summary judgment in its favor on the grounds that there is no merit in any of the causes of action against it asserted in the complaint and for costs, disbursements and attorneys' fees. The Union has moved, pursuant to rule 12(c), for an order and judgment dismissing the complaint on the grounds that it fails to state a cause of action against the Union, that the cause of action accrued beyond the statute of limitations, that the plaintiff failed to exhaust his administrative remedies and that the claims raised are not compensable under section 1983, and for its reasonable attorney's fees. Plaintiff opposes these motions and has moved, pursuant to rule 56, for summary judgment in his favor dismissing the answers filed on behalf of the defendants and a declaration that plaintiff's rights under the equal protection clause of the United States Constitution were violated by the fact that the plaintiff, as a per diem substitute teacher, was not covered by the collective bargaining agreement between the defendants.
Throughout his fourteen years of teaching in the School District, plaintiff never taught in any capacity other than that of a per diem substitute. He never attained the status of regular teacher or permanent substitute teacher. During those fourteen years, he taught an aggregate of 147.5 days, an average of 10.5 days per year. For 67.5 of those days plaintiff taught subjects in which he was not certified.*
As a per diem substitute teacher, the plaintiff was not paid the same rate of salary as regular and permanent substitute teachers, but was paid at the rate established for per diem substitute teachers by the School District. The plaintiff also was not represented by the Union. In fact, during most of plaintiff's employment, the Union was not only not certified to represent per diem substitute teachers, but had no legal basis for doing so. Not until July 27, 1981 were per diem substitute teachers granted the right to organize, N.Y.Civ.Serv. L. § 201(7)(d) (McKinney's 1981), and then only if they receive a reasonable assurance of continuing employment sufficient to disqualify them from receiving unemployment insurance benefits.
Plaintiff never protested these facts until October 19, 1982 when he presented a written notice of claim to the School District, some months after he had finished his last academic year of teaching. This action was filed on July 28, 1983.
The essence of plaintiff's claim is that as a per diem substitute school teacher his training, qualifications and responsibilities were similar to those of regular teachers and permanent substitute teachers and, thus, that he should not have been treated differently than those teachers by being excluded from the collective bargaining agreement. The defendant has submitted evidence and affidavits indicating that the qualifications for and responsibilities of a per diem substitute are substantially different from those of a regular teacher or permanent substitute. Plaintiff argues that the qualifications and responsibilities are the same because the regulations of the Commissioner of Education define a per diem substitute teacher as one who is employed in place of a regular teacher who is absent but is expected to return. 8 N.Y. Code Rules & Regulations, pt. 80.36. The Court need not resolve this issue of whether the positions are the same or different for the purposes of ruling on this motion.
Courts should not overturn legislated distinctions between different groups on the grounds that they deny equal protection of the laws unless the varying treatment that results is so unrelated to the achievement of any legitimate purposes that the distinction is irrational. Exxon Corporation v. Eagerton, 462 U.S. 176, 103 S. Ct. 2296, 2308, 76 L. Ed. 2d 497 (1983); United States Railroad Retirement Board v. Fritz, 449 U.S. 166, 175, 66 L. Ed. 2d 368, 101 S. Ct. 453 (1980); Vance v. Bradley, 440 U.S. 93, 97-98, 99 S. Ct. 939, 59 L. Ed. 2d 171 (1979). Thus exclusion of per diem substitute teachers from collective bargaining violates equal protection only if the exclusion is not rationally related to furthering a legitimate state interest. See Western & Southern Life Insurance Company v. State Board of Equalization, 451 U.S. 648, 668, 68 L. Ed. 2d 514, 101 S. Ct. 2070 (1981); Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 312, 49 L. Ed. 2d 520, 96 S. Ct. 2562 (1976).
At the time of plaintiff's employment by the School District the Public Employment Relations Board of the State of New York*a had determined that per diem substitute teachers lacked the continuing employment relationship with their school districts required for classification as a public employee under the Taylor Act. Board of Education of the City of Buffalo, 14 Pub. Empl. Rel. Bd. P4005 (1981); In the Matter of Donoghue, Esq., to review a determination relating to the city school district, 6 Pub. Empl. Rel. Bd. P3083 (1973). Prior to the enactment of the Taylor Act, the state and its subdivisions were considered sovereign powers, not obligated to bargain collectively with their employees. The Taylor Act granted public employees the right to negotiate collectively with their employers concerning the terms and conditions of their employment. N.Y.Civ.Serv.L. § 203 (McKinney's 1983).
It is not the role of this Court to evaluate the determination of the Public Employees Relations Board that per diem substitute teachers were not protected by the provisions of the Taylor Act because they lacked a regular and substantial employment nexus with their school boards. Cf. Mathews v. Diaz, 426 U.S. 67, 83-88, 48 L. Ed. 2d 478, 96 S. Ct. 1883 (1976) (court declined to substitute its judgment for that of Congress). As the Supreme Court stated, in Dandridge v. Williams, 397 U.S. 471, 486, 25 L. Ed. 2d 491, 90 S. Ct. 1153 (1970), "the Fourteenth Amendment gives the federal courts no power to impose upon the states their views of what constitutes wise or economic social policy." The only question for this Court to determine is whether the distinction is patently arbitrary or irrational. See United States Retirement Board, supra, 449 U.S. at 178.
The differing treatment of per diem substitute teachers and regular and permanent substitute teachers was not arbitrary. The certification requirements for these positions are different, see Op. Comm'r Educ. Dept., 18 Educ. Dept. Rep. 155 (1979), as is the continuity of the relationship with the school board. In the Matter of East Ramapo Central School District, 6 Pub. Empl. Rel. Bd. P4033, at 4062 (1973). Distinctions based on these differences are rational. Even under the recent amendments to the Taylor Law, per diem substitute teachers have the right to organize only if they have received reasonable assurances of continued employment from their school ...