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September 14, 1993

SANFORD GRIMES and JANELLE GRIMES, MINORS, by and through LYNDA GRIMES and SANFORD GRIMES, their next friends, et al., Plaintiffs,
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, NEW YORK CITY BOARD OF EDUCATION, Defendants.

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


 Plaintiffs filed this action as part of their attempt to require New York City public schools to teach a curriculum that gives greater weight to the contributions of Africans and African Americans. Their desire for curricular reform has brought them to this court, they explain, because it is their forum of last resort: "[plaintiffs] come to this Court because they have no place else to go where they can find relief. . . . Nearly everyone else who can bring about change in the education system is worried about a job or a vote." Pls. Mem. Opp. at 4. Defendants, in contrast, argue that none of statutes relied upon by plaintiffs provides a basis for recovery. It is true that the independence of the federal courts permits them to resolve controversial and emotional disputes in an atmosphere free of the political pressures of the day. That independence, however, does not empower courts to decide all disputes that are seen as so emotionally or politically charged that they defy resolution elsewhere. Because neither the United States Constitution nor federal statutes -- the sources from which this court derives its authority -- provide a basis for relief, I must grant defendants' motion to dismiss the amended complaint.


 Plaintiffs' amended complaint represents their second attempt to state a cause of action upon which relief can be granted. *fn1" Plaintiffs purport to bring this action on behalf of a class of all African-American public school students in New York City. They allege that the curriculum of the New York City public schools injures African Americans because it is systematically biased against them; they allege that the curriculum:

distorts and demeans the role of African Americans and excludes the existence, contributions, and participation of African Americans in the various aspects of world and American culture, sciences, history, arts and other areas of human endeavor, resulting in emotional and psychological harm denying Plaintiffs the full and equal benefits of public education and subjecting Plaintiffs to discrimination under a program receiving federal financial assistance.

 Plaintiffs seek a declaration that the curriculum is discriminatory and an injunction barring defendants from perpetuating the allegedly racially discriminatory aspects of the curriculum. They also seek an order directing defendants to submit a revised curriculum "which includes the existence, true participation and contributions of African Americans and other non-whites. . . and which would eliminate the discriminatory aspects of the existing public school curriculum. . . ." Id. P 3 ("prayer for Relief").

 Defendants now move to dismiss the amended complaint on the ground that it, like its predecessor, fails to state a claim upon which relief can be granted. Defendant New York State Education Department ("NYSED") also moves to dismiss on the ground that it is immune from suit in the federal courts. The court first addresses the immunity of defendant New York State Education Department ("NYSED") to suit. The court then addresses the adequacy of plaintiffs' claim under § 1983, and the adequacy of their claims under the regulations implementing Title VI.


 1. Immunity from Suit

 NYSED argues that the Eleventh Amendment bars plaintiffs' suit in its entirety against NYSED. State Defs. Mem. Opp. at 9-11. NYSED correctly states that a State and its agencies are immune from suit in federal court unless the State consents or Congress enacts legislation abrogating the State's Eleventh Amendment immunity. Id. at 10. NYSED ignores, however, the fact that Congress explicitly abrogated the states' immunity from suits in federal court alleging violations of Title VI of the Civil Rights Act of 1964. See 42 U.S.C. § 2000d-7(a) (West's Supp. 1993). *fn3" Moreover, NYSED made this same, baseless argument for immunity four years ago in Sharif v. New York State Education Dept., 709 F. Supp. 345, 358 (S.D.N.Y. 1989), where then-District Judge Walker held that Congress had eliminated NYSED's immunity. NYSED's citation to, and discussion of, Sharif in its supplemental brief makes its failure to retract its position on the immunity issue even more inexplicable. Contrary to NYSED's erroneous assertion, it is not immune from suit where, as here, plaintiffs allege violations of Title VI and its regulations. *fn4"

 In its earlier opinion, the court explained the rule of law that determines whether plaintiffs state a claim under § 1983. Mem. Op. at 17-20. To state a claim for discrimination that is actionable as a constitutional violation, plaintiffs must assert that "the decision maker. . . selected or reaffirmed a particular course of action at least in part because of not merely in spite of its adverse effects upon an identifiable group." Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 279, 60 L. Ed. 2d 870, 99 S. Ct. 2282 (1979) (emphasis added).

 Plaintiffs make three arguments in support of their allegation that discriminatory purpose was a motivating factor in defendants' actions. *fn5" First, plaintiffs argue that defendants' "failure and refusal to quickly and fully embrace a curriculum inclusive of Africans and African Americans is a failure and refusal based on race, and that such failure and refusal is conscious, and therefore, intentional." Id. Second, plaintiffs imply that purposeful discrimination can be inferred from the fact that the New York City Board of Education implemented a Holocaust Curriculum and an Italian Heritage Curriculum, but did not adopt a special curriculum to focus on issues of particular importance to African Americans. Id. at 7. Third, plaintiffs argue that the lack of progress in changing the curriculum since this action was commenced three years ago supports an inference of racially discriminatory intent. Id. at 3.

 In response to the first two arguments, to the extent that plaintiffs argue that constitutionally impermissible intentional discrimination may be inferred from (1) the conscious failure to adopt a curriculum that includes more material regarding Africans and African Americans, or (2) defendants' responsiveness to other groups' special needs, their allegations are inadequate to sustain this inference. Plaintiffs have failed to come forward with the specific allegations of fact necessary to sustain the claim that a discriminatory purpose was a motivating factor in any actions taken by defendants -- that is, that the curriculum was adopted because of, not merely in spite of, its allegedly detrimental effects on African American students. In alleging a claim under § 1983 based on a constitutional violation, the "discriminatory purpose" with which a defendant must have acted "implies more than intent as volition or intent as awareness of the consequences." Feeney, 442 U.S. at 279. Although I recognize the thinness of this distinction and the difficulty one could expect to encounter in proving that a school intended such detrimental effects (as opposed to intending to adopt a curriculum, the by-products of which are allegedly detrimental effects), there is no doubt that appellate decisions require plaintiffs to demonstrate that the curriculum was adopted because of its allegedly detrimental effects on African-American students, and not merely with awareness of such effects. See Soberal-Perez v. Heckler, 717 F.2d 36, 42 (2d Cir. 1983) (dismissing constitutional challenge to defendant's failure to provide Spanish language services where plaintiffs alleged that such failure had detrimental effect on Hispanics, but plaintiffs could not "allege in good faith, much less prove, any other evidence of discriminatory intent" other than a legitimate preference for English over all other languages); Lora v. Bd. of Educ., 623 F.2d 248, 250 (2d Cir. 1980) (standing alone, evidence of a foreseeable, detrimental result from an action is not sufficient to establish the requisite discriminatory intent on the part of the school board); Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 265-66, 50 L. Ed. 2d 450, 97 S. Ct. 555 (1977) (absent a clear pattern of state action unexplainable on grounds other than an intent to discriminate on the basis of race, disproportionate impact alone does not establish invidious racial discrimination).

 Plaintiffs' third argument is that defendants' alleged inaction since the commencement of this lawsuit establishes discrimination. Notice of a lawsuit may bring the alleged detrimental effects to defendants' attention; however the court may not infer an intent to discriminate from awareness of allegedly detrimental effects alone, for the reasons stated above.

 The court must, therefore, again dismiss plaintiffs' claims under § 1983 for failure to adequately allege intentional discrimination. *fn6"

 3. Regulations Implementing Title VI

 As noted above, plaintiffs' original complaint alleged a causal relationship between the present New York City public school curriculum and harm to the members of the putative plaintiff class, but did not allege the intent required to state a cause of action pursuant to the Constitution or Title VI. *fn7" The court granted plaintiffs leave to plead a claim under the regulations implementing Title VI (the "Regulations") because the Regulations do not require an allegation of discriminatory intent. Mem. Op. at 21. Plaintiffs amended their complaint to allege just such a violation, but, for the following reasons, their claim is not actionable under the Regulations.

 As this court explained in its earlier opinion, the Supreme Court acknowledged the existence of a cause of action under the Regulations for claims based on disparate impact, as well as disparate treatment. See Alexander v. Choate, 469 U.S. 287, 293 nn. 8,9, 83 L. Ed. 2d 661, 105 S. Ct. 712 (1985). A recipient of federal financial assistance, such as the New York City Board of Education, may not "provide any service, financial aid, or other benefit to an individual which is different, or is provided in a different manner, from that provided to others under the program" on the basis of race, color, or national origin. 34 C.F.R. § 100.3(b)(1)(ii) (1992). *fn8" The complementary, disparate impact provision states that:

 A recipient, in determining the types of services,

financial aid or other benefits . . . which will be provided under any such program . . . may not . . . utilize criteria or methods of administration which have the effect of subjecting individuals to discrimination because of their race, color, or national origin, or have the effect of defeating or substantially impairing accomplishment of the ...

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