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March 12, 1992

SANFORD GRIMES and JANELLE GRIMES, MINORS, by through LYNDA GRIMES and SANFORD GRIMES, their best friends, et al., Plaintiffs, against LAURO CAVAZOS, Secretary of Education, UNITED STATES DEPARTMENT OF EDUCATION, et al., Defendants.

The opinion of the court was delivered by: KIMBA M. WOOD


 Plaintiffs, members of a putative class of all African-American public school students in New York City, bring this action pursuant to 42 U.S.C. §§ 1981 and 1983, and Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d. They name as defendants the Secretary of Education and the U.S. Department of Education ("the federal defendants"); Thomas Sobol, the New York State Commissioner of Education, and the New York State Education Department ("the State defendants"); and Joseph Fernandez, Chancellor of the New York City Public Schools, and the New York City Board of Education ("the City defendants"). Plaintiffs' complaint seeks declaratory and injunctive relief as a means of remedying an allegedly systematic bias in the curriculum of New York City schools favoring European culture and disfavoring non-European cultures. Complaint P8. Plaintiffs allege that through its implied message of African-American inferiority, this curriculum, imposed by the state and the city, causes emotional injury to African-American students attending public schools in New York. The effects of the harm caused by the allegedly biased curriculum allegedly manifest themselves in a variety of social problems such as high crime and dropout rates among African-American youth. Id. PP9-11. Plaintiffs seek an order enjoining defendants from "employing any curriculum or course of study created or selected in a racially discriminatory manner, or which will have the effect of continuing, or implementing a discriminatory curriculum in the city of New York." Id. p. 6, P2. Plaintiffs also seek an order from this court directing defendants to develop a multicultural curriculum that would recognize the "true participations and contributions of African-Americans and other non-whites." Id. P3. Plaintiffs also request the court to "end the employment of Federal financial assistance in connection with and in support of the racially discriminatory aspects" of the curriculum. Id. p.9, P1.

 Defendants move to dismiss the complaint for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1), and for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6). For the reasons set forth below, the court grants defendants' motions. The court also grants plaintiffs permission to replead their complaint against defendants Thomas Sobol, Commissioner of Education of the State of New York; the New York State Education Department; Joseph A. Fernandez, Chancellor, New York City Public Schools; and the New York City Board of Education.


 The Court will first address the standing issue as it relates to all three defendants, then turn to the other issues raised by the federal defendants' motion, and then consider the other issues raised by the State and the City defendants.

 I. Standing

 The "threshold question" in any suit in federal court is whether the court has the authority to adjudicate the dispute. New York State Nat'l Org. for Women v. Terry, 886 F.2d 1339, 1346 (2d Cir. 1989), cert. denied, 495 U.S. 947, 110 S. Ct. 2206, 109 L. Ed. 2d 532 (1990). This question, which reflects the limited nature of federal judicial authority, has both constitutional and prudential dimensions; the former flows from the Article III requirement that federal courts hear only actual "cases" or "controversies," while the latter flows from notions of the limited role of the judiciary in our society. Id.; see Warth v. Seldin, 422 U.S. 490, 498, 45 L. Ed. 2d 343, 95 S. Ct. 2197 (1975). In Allen v. Wright, 468 U.S. 737, 82 L. Ed. 2d 556, 104 S. Ct. 3315 (1984), like the instant case an action against a government agency for allegedly unlawful conduct, the Supreme Court articulated the requirements that a plaintiff seeking to invoke the jurisdiction of the federal court must meet. The plaintiff must allege (1) a distinct and palpable personal injury suffered as a result of the defendant's allegedly illegal conduct, (2) that is fairly traceable to the defendant's challenged conduct, and (3) that is likely to be redressed by grant of the requested relief. Id. at 751; Terry, 886 F.2d at 1346-47; Southside Fair Housing Comm. v. City of New York, 928 F.2d 1336, 1341-43 (2d Cir. 1991).

 A. Injury

 The core of plaintiffs' alleged injury is that because of the nature of the curriculum that they or their children must study, they have suffered "severe mental and emotional harm." Complaint, P9. The State defendants argue that while the alleged conduct may have resulted in plaintiffs' experiencing a "deep feeling of dislike," such a feeling does not amount to a judicially cognizable injury. State Def. Reply Mem. at 4. Fairly read, however, the complaint and the affidavits submitted to the court *fn1" allege that plaintiffs have suffered psychological harm and thus a diminished ability to receive an education, as a result of an allegedly biased curriculum. In essence, they allege that the current curriculum singles out and stigmatizes plaintiffs on account of their race. Whether they can prove this injury is not the issue on a motion to dismiss. The United States Supreme Court has repeatedly held that such an injury is "not only judicially cognizable but, as shown by cases from Brown v. Board of Education, 347 U.S. 483, 98 L. Ed. 873, 74 S. Ct. 686 (1954), to Bob Jones University v. United States, 461 U.S. 574, 76 L. Ed. 2d 157, 103 S. Ct. 2017 (1983), one of the most serious injuries recognized in our legal system." Allen v. Wright, 468 U.S. at 756. The court has no doubt that plaintiffs have alleged a sufficiently distinct, palpable, and concrete injury.

 The requirement that plaintiffs allege a "distinct and palpable" injury is only one part of the injury prong of the standing requirement. Plaintiffs must also allege a personal injury, that is, that they themselves suffer or have suffered the harm alleged. This requirement is not met merely by plaintiffs' decision to bring this suit as a class action. See Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 40 (1976) ("That a suit may be a class action . . . adds nothing to the question of standing, for even named plaintiffs" who represent a class 'must allege and show that they personally have been injured, not that injury has been suffered by other, unidentified members of the class to which they belong'" (quoting Warth, 422 U.S. at 502)). Plaintiffs have, for purposes of a motion to dismiss, satisfied this requirement. For example, in an affidavit submitted with plaintiffs' motion papers, named plaintiff Lynda Grimes, who sues on behalf of her minor children, maintains that:

 my children have, all of their school lives, been subjected to a school system that has negatively impacted upon their self-esteem, pride and sense of self-worth by failing to allow my children to learn that African Americans have contributed in any way to the development of the United States and the world and by teaching my children that only Europeans or those of European descent have accomplished anything or contributed anything to the world order.

 Aff. of Lynda Grimes, P5. Ms. Grimes does not describe an injury suffered by a third party, or one that her children might someday suffer; it is not the kind of "conjectural" or "hypothetical" claim that the personal injury requirement aims to discourage. See Allen, 468 U.S. at 751; Los Angeles v. Lyons, 461 U.S. 95, 101-02, 75 L. Ed. 2d 675, 103 S. Ct. 1660 (1983). Instead, she describes a judicially cognizable injury that she and her children allegedly suffered as a result of defendants' allegedly discriminatory conduct. As such, it suffices to satisfy the injury prong of the test for standing.

 B. Is the Injury "Fairly Traceable" to ...

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