The opinion of the court was delivered by: Allyne R. Ross, United States District Judge
Plaintiff Modjgan Cohamm is a Queens voter and parent of children in
the New York City public schools in Queens County who seeks to enjoin the
method of choosing the members of the New York City Board of Education
(the "Board") as violative of the Equal Protection Clause. She has moved
for a preliminary injunction and the Board has filed a cross-motion to
dismiss. For the reasons explained below, the Board's motion is granted
and plaintiff's complaint is dismissed.
The New York City school system is composed of community school
districts, each governed by an elected board. See N.Y. Educ. Law §
2590-h. When the state legislature created the community school districts
in 1969, it provided for a citywide school board, the defendant Board. to
oversee the system. See McKinney's 1969 Session Laws of N.Y., Vol. 1.
ch. 330 [hereinafter Chapter 330], § 4 at 428, cited in Warden v.
Pataki, 12 F. Supp.2d 325, 326 (S.D.N.Y. 1998) [hereinafter Warden I].
The original statute provided for two Board members appointed
mayor and one elected by each of the five boroughs, effective in February
of 1970. See Chapter 330, § 4 at 428, 13 at 457-58, cited in Warden
I, 12 F. Supp.2d at 326. It also established an interim board with one
member to be appointed by each borough president. See Chapter 330, §
11 at 457, cited in Warden I, 12 F. Supp.2d at 326-27. In Oliver v. Board
of Educ., 306 F. Supp. 1286 (1969), the method of selecting the permanent
Board was declared unconstitutional as a violation of the "one person,
one vote" principle, but the interim board was upheld. See id. at 1289,
1291. In response, the state legislature initially extended the tenure of
the interim board. See McKinney's 1970 Session Laws of N.Y., Vol. 1,
ch.3, § 2 at 3-4, cited in Warden 1, 12 F. Supp.2d at 327; McKinney's
1971 Session Laws of N.Y., Vol. 1, ch. 6, § 1 at 9, cited in Warden
I, 12 F. Supp.2d at 327. In 1973, the legislature provided that the Board
would include seven members, two selected by the mayor and one selected
by each of the borough presidents. See McKinney's 1973 Session Laws of
N.Y., Vol. 2, ch. 915, § 1 at 1714, cited in Warden I, 12 F. Supp.2d
at 327. That provision remains in effect and is the method of selection
challenged in this action.
Ms. Cohamm asserts that this arrangement violates the principle of "one
person, one vote," recognized in Baker v. Carr, 369 U.S. 186, 82 S.Ct.
691, 7 L.Ed.2d 663 (1962), and Reynolds v. Sims, 377 U.S. 533, 84 S.Ct.
1362, 12 L.Ed.2d 506 (1964), because the populations of the boroughs are
unequal, yet each is represented by a single Board member.*fn1 The Equal
Protection Clause of the 14th Amendment requires that whenever popular
elections to state and local bodies performing governmental functions
involve multiple electoral districts, each district must elect a number
of officials proportionate to its number of voters. See Hadley v. Junior
College District, 397 U.S. 50, 56, 90 S.Ct. 791, 795, 25 L.Ed.2d 45
(1970). A number of courts have held, however, relying on Sailors v.
Board of Educ., 387 U.S. 105, 87 S.Ct. 1549, 18 L.Ed.2d 650 (1967), that
the "one person, one vote" standard does not apply to appointed bodies,
such as the Board. See e.g., Burton v. Whittier Vocational Regional
School District, 587 F.2d 66 (1st Cir. 1978); Rosenthal v. Board of
Educ., 497 F.2d 726, 729 (2d Cir. 1974); Warden v. Pataki,
35 F. Supp.2d 354, 360 (S.D.N.Y.) [hereinafter Warden II], aff'd sub nom
Chan v. Pataki, 201 F.3d 430 (2d Cir. 1999) (table); Oliver, 306 F.
Supp. at 1289. Ms. Cohamm contends that Sailors, in fact, did not hold
that "one person, one vote" is inapplicable to appointed boards and that
the question is as yet undecided. She argues that the subsequent cases,
including the Supreme Court's own decision in Hadley, misinterpreted
Sailors and consequently have no precedential value.
Sailors involved the county school board in Kent County, Michigan.
Under Michigan law, voters elected local school boards in elections that
were not challenged as constitutionally infirm. See Sailors, 387 U.S. at
106, 87 S.Ct. at 1551. Each local school board chose one delegate to a
biennial county meeting, and those delegates then elected a five-member
county school board. See id. at 106-07, 87 S.Ct. at 1551. The plaintiffs
challenged that procedure because the local school districts had varying
numbers of voters, and the Supreme
Court rejected their challenge.
According to Ms. Cohamm's reading of Sailors, the Supreme Court drew a
distinction between governmental bodies of a legislative and
administrative character and decided that because the school board
performed administrative functions, the "one person, one vote" principle
did not apply. See Plaintiffs Mem. in Support 8. She argues that the
Court passed on the question of whether legislative bodies may be
appointed without regard to "one person, one vote." See id. Since Sailors
expressly withheld its decision on the issue, and since every case that
has faced the question since has relied on Sailors, Ms. Cohamm reasons,
no court has really decided it.
This interpretation of Sailors is untenable. The distinction that the
Supreme Court drew between administrative and legislative functions
pertained to whether a state was permitted to fill the positions by
appointment rather than by election. In framing the issue to be decided,
the court said that assuming the universal application of "one person,
one vote" to local elections, "we are still short of an answer to the
present problem and that is whether Michigan may allow its county school
boards to be appointed." Id. at 109, 87 S.Ct. at 1552.*fn2 The Court
concluded that administrative bodies, such as the county school board in
question, may be appointed or elected. See id. at 111, 87 S.Ct. at 1553
("At least as respects nonlegislative officers, a State can appoint local
officials or elect them or combine the elective and appointive systems as
was done here."). Having decided that the board could be appointed, the
Court expressly stated that "one person, one vote" consequently was
inapposite. See id. An accurate reading of the case reveals that it held
that "one person, one vote" was inapplicable not because the board was
administrative, but because the board was appointed: "Since the choice of
members of the county school board did not involve an election and since
none was required for these nonlegislative offices, the principle of `one
man, one vote' has no relevancy." Sailors, 387 U.S. at 111, 87 S.Ct. at
It is only by changing the language of the opinion that Ms. Cohamm can
suggest thaf Sailors left open the possibility that appointed boards
might be held to the "one person, one vote" standard. The question the
Court reserved was whether a board performing legislative functions may
be appointed: "We need not decide at the present time whether a State may
constitute a local legislative body through the appointive rather than
the elective process. . . . We do not have that question here, as the
County Board of Education performs essentially administrative
functions[.]" Id. at 109-110, 87 S.Ct. at 1553. In both her initial brief
and her reply brief, Ms. Cohamm edits this language to support her
strained reading of the case by adding a reference to the "one person,
one vote" principle: "`We need not decide at the present time whether a
state [sic] may constitute a local legislative body through the
appointive rather than the elective process [in disregard of one person.
one vote].'" See Plaintiffs Mem. in Support 7; Plaintiffs Reply Mem. 2
(both quoting Sailors, 387 U.S. at 109-110, 87 S.Ct. at 1553 (second
brackets in originals)). As explained above, the question that the
Supreme Court declined to address in Sailor did not involve whether
`one person, one vote' applied to appointed bodies performing legislative
functions, but whether such bodies were permissible in the first
instance. Having decided that the school board could. as a nonlegislative
body, be appointed, it explicitly held that the "one person, one vote"
principle did not apply. See Sailors, 387 U.S. at 111, 87 S.Ct. at 1553.
It reiterated this holding, albeit in dicta, in Hadley: "We have also
held that where a State chooses to select members of an official body by
appointment rather than election, and that choice does not itself offend
the Constitution, the fact that each official does not `represent' the
same number of people does not deny those people equal protection of the
laws." Hadley, 397 U.S. at 58, 87 S.Ct. at 796.
The consistent interpretation of Sailors and Hadley over the last three
decades reinforces this court's conclusion that the Supreme Court long
ago established that "one person, one vote" does not come into play when
officials are appointed rather than elected. A few years after Hadley, a
plaintiff challenged a scheme whereby voters elected local school boards,
each of which then selected two of its members as representatives to a
central school board. See Rosenthal, 497 F.2d at 727. The Second Circuit
recognized that the central question determining the applicability of the
"one person, one vote" principle was whether the board members were
appointed or elected. See id. at 729 ("But the question remains whether
within its rationale, the members of the central high school board are
`appointed' or `elected' officers[.]"). Concluding that the method of
selection was something of a hybrid, the court remanded the case to a
three-judge district court panel to make the critical determination. See
id. On remand, the district court also explained that the important
question was the nature of the position's selection: "The emphasis we put
on popular election as the test echoes the Supreme Court's recognition
that the crucial factor in the application of Fourteenth Amendment
considerations to any apportionment scheme is that the officials whose
election is challenged must have been elected by popular vote." Rosenthal
v. Board of Educ., 385 F. Supp. 223, 226 (E.D.N.Y. 1974) (citing Hadley,
397 U.S. at 54, 90 S.Ct. at 794), aff'd 420 U.S. 985, 95 S.Ct. 1418, 43
L.Ed.2d 667 (1975). Only last year, Judge Mukasey wrote that "[t]he Zone
person, one vote' principle, however, has no applicability when the
governmental body at issue is appointive rather than elective." Warden
II, 35 F. Supp.2d at 360 (citing Sailors and Hadley). This court reaches
the same conclusion.
The plaintiffs challenge to thirty years of precedent is unsuccessful;
notwithstanding plaintiffs protestations to the contrary and alterations
of Sailors's language in support thereof, Sailors clearly and
definitively decided the issue on which her case purports to rest.
Because the complaint states a claim relying solely on an argument
rejected by the Supreme Court, it fails to state a claim. The Board's
motion is therefore ...