Mount Vernon City School District Board of Education v. Allen Brief of Respondent-Intervenors

    To be argued by 
Franklin E. White

SUPREME COURT 
OF THE STATE OF NEW YORK Appellate Division-Third Department

In the Matter of the Application 
of

THE BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT 
OF THE CITY OF MOUNT VERNON,

Appellant,
against

JAMES E. ALLEN, JR., Commissioner of Education 
of the State of New York,

Respondent,
and

JEFFREY LLOYD KING, minor, through his next friend, 
LLOYD KING, JR., SETH MICHAEL ROSEN, minor, 
through his next friend, SIDNEY ROSEN, DANIEL GROSSER, minor, through his next friend, CHARLES 
GROSSER, GORDON MAGAT and CIAUDIA MAGAT, minors, 
through their next friend, GLORIA MAGAT, ELIZABETH 
DAY, minor, through her next friend, LLOYD V. DAY, 
BARRY D. MARKS, minor, through his next friend, 
MORTON A. MARKS, PARTHENIA STATON, minor, through 
her next friend, PARTHENIA STATON,

Respondent-intervenorB•

BRIEF FOR RESPONDENT-INTERVENORS

LEWIS M. STEEL, ESQUIRE 
LEONARD J. ROSENFEI.O, ESQUIRE 
THOMAS J. CAHILL, ESQUIRE 
FREDERICK GREEK*:, ESQUIRE

Jack Greenberg James M. Nabrit, III 
Franklin E. White 
Norman J. Chachkin 

10 Columbus Circle 
New York, New York 
Attorneys for Respondent-lntervenors

Of Counsel



TART.K OF CONTENTS

STATEMENT..............................
COUNTER STATEMENT OF QUESTION PRESENTED

ARGUMENT
I. The Commissioner of Education

may require action to alleviate 
racial imbalance on the basis of its educationally beneficial 
effects......................

II. The Record Conclusively Shows
That Appellant Is Financially 
Able to Implement The Commissioner's Order.....

III. The May 2, 1969 Amendment IsUnconstitutional On its Face..

CONCLUSION

PAGE
1
1

1

10

18

21

CERTIFICATE OF SERVICE 22



Statement
Respondent-Intervenors are satisfied with the state­

ment of the case and of the facts already related by the 
Commissioner in his brief.

Counter Statement of Question Presented
Whether the absence of alleged facts which could be 

resolved in petitioner-appellants' favor, or which, if 
proven, would demonstrate that the Commissioner's order 
was "purely arbitrary," warranted dismissal of the petition.

The Court below answered in the affirmative.

Argument
1. The Commissioner of Education may require 

action to alleviate racial imbalance on 
the basis of its educationally beneficial 
effects.

Respondent-Intervenors Negro and white minors have, 
since 1963, sought to enjoy their statutory and 
constitutional rights to equal educational opportunities 
in the Mount Vernon Public Schools. Five years later, 
these rights have been and continue to be denied because 
of the deep-seated intransigence of the appellants.

The Commissioner's order of June 13, 1968, is now 
attacked by appellant as one dealing solely with race and 
having "no comitant educational benefit" (Appellant's



F

Brief, p.21). It argues:
the consideration of race as a factor in establishing or altering educational 
practices and procedures is permissible 
only where such actions are combined with 
legitimate educational purposes, i.e., 
where they are educational rather than 
purely racial. (Id. at 22)

But appellant has missed the point. The Board of Regents
has directed that racial imbalance in schools be eliminated
NOT for race itself, but because of the educational
advantages to be gained thereby:

Schools enrolling students largely on 
homogenous ethnic origins may damage 
the personality of minority group 
children. Such schools decrease their 
motivation and thus impair the ability 
to learn (Policy Statement, January 
28, 1960).

The foreword to the most recent policies, "Integration
and the Schools, issued January 1968," states:

Equality of educational opportunity 
is being denied to large numbers of 
boys and girls —  white as well as 
Negro and other minority group 
children —  because of racially 
segregated schools.

In that report the Regents state:
Educational considerations are primary 
in eliminating school segregation.
The elimination of racial imbalance is 
not to be sought as an end in itself but because it stands as a deterrent 
and handicap to the improvement of 
education for all. ^Emphasis added—/
(Id. at p.12).

2



Appellant is mistaken, therefore, in characterizing the 
reason for the Commissioner's order as race and race alone.

Nor do the cases support appellant's argument, in
some,other benefits unrelated to race accrued from programs
eliminating racial imbalance. But those benefits were
merely incidental. The overriding and compelling purpose
of the challenged plans was to eliminate racial imbalance.
See e.g., Matter of Vetere v. Mitchell, 21 A.D. 2d 561,
251 N.Y.S. 2d 480, 483 (3rd Dpt. 1964), aff'd sub nom.
Vetere v. Allen, 15 N.Y. 2d 259, 258 N.Y.S. 2d 77, cert.
denied, 382 U.S. 825 (1965), supra, Steinberg v. Donovan,
45 Misc. 2d 432, 257 N.Y.S. 2d 306 (1965); Van Blerkom
v. Donovan. 15 N.Y. 2d 399 N.Y.S. 2d 825 (1965); Schrepp v.
Donovan, 45 Misc. 2d 917, 252 N.Y.S. 2d 543 (1964). As
the Court stated in Katalinic v. City of Syracuse, 44 Misc.
2d 734, 254 N.Y.S. 2d 970 (Sup. Ct. 1964):

even if the court were convinced, that 
the sole purpose /. of the plan_J was 
for the correction of a situation of 
racial imbalance . . . the court would 
be of the opinion that at this time it 
has no power to hold that said action 
would be arbitrary and capricious or a 
constitutional violation.

While appellant has not openly stated it, we believe 
it seeks really to contest the findings of the Board of 
Regents that racial^ segregation in schools impedes the 
furnishing of equal educational opportunities to all students

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As this Court well knows this judgment had its genesis in
the landmark case of Brown v. Board of Education, 347 U.S.
483, 494 (1954) which established the basic principle that
racial segregation in public schools denies Negro children
the opportunity to achieve the full benefits of the

1/
educational process.

Nor does it matter whether the segregation is state- 
imposed or a consequence of residential patterns. Thus 
California, Connecticut, Massachusetts, New Jersey, Wisconsin, 
as New York, have taken the position in executive or judicial 
statements, that racial isolation in the schools has a 
damaging effect on the educational opportunities of Negro 
pupils. See <5.£., Jackson v. Pasedena City School District, 
59 Cal. 2d 876, 31 Cal. Rep. 606, 382 P 2d 878, 888 (1963); 
Kiernan Report, Mass. State Board of Education, April 1965;
Pa. Human Relations Comm., "Guidelines for Fuller 
Integration of Elementary and Secondary Schools, July 17, 
1964; Policy Statement of Conn. State Board of Education, 
Concerning Quality Education for Minority Groups, Dec.
7, 1966; Statement by Wisconsin State Superintendent of 
Public Instruction," Department Policy Statement on 
De Facto Segregation and Disadvantaged conditions# March

1/ Said the Court:
"Segregation of white and colored children 
in public schools has a detrimental effect 
on colored children (347 U.S.494)

4



1966; See also U.S. Civil Rights Commission Report,
Racial Isolation in the Public Schools, 1967, 228-236.

It is settled that state Educational authorities are 
free to take affirmative action to eliminate de. facto 
segregation because of its educationally harmful effects.
See, e.g,. # Matter of Vetere v. Mitchell, supra,; Strippoli 
v. Bickal, 21 A.D. 2d 365, 250 N.Y.S. 2d 969 (1964);
Matter of Balaban v. Rubin, 20 A.D. 2d 438, 248 N.Y.S. 2d 
574, aff'd. 14 N.Y. 2d 193, 250 N.Y.S. 2d 281 (1964);
Addabbo v. Donovan, 22 App.Div. 2d 383, 256 N.Y.S. 2d 178 
(2nd Dpt. 1965), aff'd 16 N.Y.2d 619, 261 N.Y.S. 2d 68, 
cert, denied 382 U.S. 905 (1965); Morean v. Board of Education 
of Montclair, 42 N.J. 237, 200 A.2d 97 (1964); Fuller v. Volk 
230 F. Supp. 25 (1964).

integrated public education, as one of many educational 
goals, necessitates a balancing of interests. Appellant 
herein is concerned with modification of the neighborhood 
school concept. As the Court stated in Jackson v. Pasadenja
City School District;

The interest of Negro child in an 
integrated education might outweigh 
the district's interest in maintaining 
neighborhood schools. 382 P.2d at 881.

The result of tenacious adherence to the concept of
neighborhood schools was clearly perceived by Judge Skelly
Wright in Hobson v. Hansen:

5



It would be wrong to ignore or belittle 
the real social values which neighborhood 
schools doubtlessly promote. But due 
appreciation of these values must not 
obscure the fact that the price society 
pays for neighborhood schools in Washington 
and other urban centers is in racially 
segregated public education. 269 F.Supp at 504.

Numerous New York decisions have held that implementation 
of plans to eliminate racial imbalance constituted no 
violation of the neighborhood school concept. See, e,.£. # 
Balaban v. Rubin, 20 A.D. 2d 438, 248 N.Y.S. 2d 574, aff'd 
14 N.Y. 2d 193, 250 N.Y.S. 2d 281 (1964), Addabbo v. Donovan, 
22 App. Div. 2d 383, 256 N.Y.S. 2d 178, aff'd 16 N.Y. 2d 619, 
261 N.Y.S. 2d 68 (1965), Van Blerkom v. Donovan, 15 N.Y. 2d 
399, 259 N.Y.S. 2d 825 (1965).

Appellant urges further that the Commissioner's order 
is arbitrary and capricious because its implementation will 
require the busing of large numbers of children across the 
district. But despite the Board's impassioned language 
("a waste of valuable hours intransit" (p.13) ) the city 
is so small (four miles square R.33) that bus trips will be 
a matter of minutes. In any event, busing plans have been 
upheld as a valid method of eliminating racial imbalance in a 
number of cases both in New York and elsewhere. See, e.g., 
Addabbo v. Donovan, 22 App. Div. 2d 383, 256 N.Y.S. 2d 178 
(2nd Dpt. 1965) aff'd, 16 N.Y. 2d 619, 261 N.Y.S. 2d 68, 
cert, denied 382 U.S. 905; Strippoli v. Bickal, 21 App. Div. 
2d 365, 250, N.Y.S. 2d 969 (4th Dpt. 1964), aff'd without

6 —



opinion 16 N.Y. 2d 652 261 N.Y.S. 2d 84 (1965), Vetere v.
Allen, 41 Misc. 2d 200 rev’d 21 A.D. 2d 561, aff'd 15 N.Y.
2d 259 cert, den., 382 U.S. 825 (1965); Guida v. Board of
Education of New Haven 26 Conn. Supp. 121, 213 A 2d 843 (1965); 
School Committee of Boston v. Board of Education,(Mass)
227 N.E. 2d 729 (1967); Hobson v. Hanson, 269 F.Supp. 401 
(D.C. D.C. 1967); Penn. Human Relations Comm, v. Chester 
School District, 427 Pa. 157, 233 A. 2d 290 (1967); United
States v. School District 151 of Cook County,___ F 2d ____
(7th Cir. 1968). The important consideration in evaluating 
the Commissioner's order is not that busing is required, but 
that some new method of eliminating racial imbalance was
necessary since the board's plan (open enrollment) has failed

2/to reach the desired result. As the Court in Hobson v. Hansel
supra, faced with the same situation, stated:

"The Board's open transfer policy 
. . .  is unacceptably meagre. The 
transfer right which places the 
burden of arranging and financing 
transportation on the elementary 
school children is, particularly 
for the poor, a sterile right, one 
in form only." 269 F.Supp. at 499

Appellant urges that the Commissioner's order is 
arbitrary because it substitutes his judgment for that of a

2/ Such integration as there is in white schools on the 
North side is due to open enrollment. A vote to continue 
the program for the 1969-70 school year has failed to pass, 
and as of this moment, there is no assurance that any 
Negro children will be in those schools this fall.

7



local board. But nothing in the cases or statutes suggests
that the power of the Board of Regents to determine the 
educational policies of the state, or of the Commissioner to 
implement those policies, are diminished when particular 
policies are opposed by a local board. Indeed in Board of 
Education of the City of New York v. Allen, 6 N.Y. 2d 127,
188 N.Y.S. 515 (1959) the Court of Appeals sustained the 
Commissioner's decision in the face of an attack by the local 
board. And in Vetere v. Allen, supra, the court stated that 
the Commissioner "could substitute his judgment for that of 
the local board, even where the action of the local board 
was not arbitrary." 15 N.Y. 2d at 267. Cf. Board of Education 
of the City of New York v. Allen, supra, at 6 N.Y. 2d 140, 141 
("The Commissioner was free to overrule the use of the . . . 
method /_ selected by the local board__/ without having to 
find that it was totally unreasonable.").

In any event the local board —  elected by a majority of 
the community —  feels under an obligation to represent what 
it deems to be the desires of its constitutents. But policies 
and practice in conflict with the public policy of the state 
may not be maintained simply because they are preferred by a 
locality or by its school board. Thus, southern school boards 
are not permitted to maintain dual public school systems, see 
Brown v. Board of Education, 347 U.S. 483, 349 U.S. 294, or 
to use plans not promising effectively to dismantle such

8



systems, because they believe them to be the most 
suited for their particular community. See Green v.
County School Board of New Kent Ccvnty _Va«j. 391 u*s- 
430 (1968), invalidating free choice plans of desegration 
utilized by the overwhelming majority of southern 
boards.

Unless the Commissioner ultimately has the power 
to direct that a particular assignment plan be used, 
he might in a particular case be unable to carry out 
his statutory duty to "execute the policies" of the 
Board of Regents. Recalcitrant boards, such as petitioner, 
would forever be able to shirk their constitutional 
duty of providing to all their children equal educational 
opportunities in a system free of racial imbalance. The 
Legislature was well aware of the problem of enforcement. 
For in section 311(4) of the Education Law it granted 
to the Commissioner the power "to make all orders which 
may, in his judgment, be proper or necessary to give 
effect to his decision. (Emphasis added)." This section 
in our view is ample justification for the Commissioner s 
formulation of a particular plan wherever he feels such 
action is warranted by the circumstances.

- 9 -



II.
The Record Conclusively Shows 
That Appellant Is Financially 
Able To implement The Commissioner1s 
Order

Just as if we had not responded to this argument below, 
appellant just as vigorously pursues it here. And, incredibly 
it does so without even acknowledging or attempting to deal with 
the serious shortcomings in their argument to which we previously 
adverted. The plain fact is that appellant insists on using the 
entire cost of the BEST Plan when the Commissioner ordered merely 
one feature pairing.

Appellant alleges that the June 13th order of the Commissioner 
was arbitrary and capricious because "implementation of the plan 
(presumably Allen's plan) was financially impossible"; attached 
to the petition is an affidavit of John F. Blank, Clerk of the 
Board of Education in which he states that implementation is 
financially impossible (R. 44-45). More recently, appellant has 
submitted a letter dated November 18, 1968, from Lipsitz and Nadler, 
Certified Public Accountants, in support of that contention.

At the outset this Court must assume that the Commissioner 
would not have directed implementation of the plan without ample 
basis for believing that the district could implement it. His 
decision indicates his awareness of its financial implications:

10



I am of course mindful that the steps contemplated 
by this decision, both with respect to the elimination 
of racial imbalance and with respect to improvement 
and innovation in the educational programs of the 
school system, will require the expenditure of funds 
not presently budgeted by the school district. It 
should be noted in this connection that in addition 
to other provisions for State aid available to the 
district, including transportation aid, the recently 
enacted program of special aid for urban school districts having a heavy concentration of pupils with 
special educational needs associated with poverty will provide an allocation to the Mount Vernon district 
of substantial funds for locally administered program 
for such pupils, in accordance with regulations 
promulgated by the Commissioner of Education.

It should also be noted that special financial 
assistance is available to school districts, such as 
Mount Vernon for programs designed to correct racial 
imbalance. Careful consideration will of course be 
given to any proposal which may be submitted by the 
respondent district for the allocation of such assistance in connection with programs developed m  
accordance with this decision (R. 4).
Beyond that, however, the allegation is insufficient for two 

reasons:
a. it is conclusory and the supporting affidavits and 

attachments grossly overstate the cost of implemen­
tation ; and

b. proof of financial inability, not having been 
presented to the Commissioner, may not be considered 
by this Court. The Commissioner, moreover, is still 
free to vacate his own order on a finding of 
impossibility.

11



a. Appellant's Estimate Is Overstated Since It 
includes Costs For Items Not Ordered By The 
Commissioner

Appellant argues in its brief that it is "totally unable"
to undertake implementation of the Commissioner's order and that

implementation of the proposed plan of the 
Black Community planning Board, which the 
Commissioner, in effect, has done, will 
speed immediate and irrevocable social, 
financial and educational disaster for the 
City of Mount Vernon [Brief, p. 13].

But the underscored language points up appellant's error. The
Commissioner never ordered that the BEST Plan be implemented.
He ordered merely that the elementary schools be paired. That
was coincidentally one of the features of both the BEST Plan and
the Dodson Report. As we show later there were other features
of the BEST Plan not ordered by the Commissioner.

Appellant also states that:
Respondents own task force came to the same conclusions as the Lipsitz and Nadler analysis 
. . .  Nevertheless, respondent apparently 
chose to disregard the findings of his own task 
force (id at 15) ;

and that

In his opinion the Commissioner stated: (R. 70-71):
I therefore direct that as early as possible in 
the school year commencing in September 1968, 
but in any event not later than November 4, 1968, 
the Board of Education provides for full integration in grades one through six by assigning 
all pupils in grades one through three to 
existing elementary schools in either the north 
or south half of the district, and all pupils in 
grades four through six to schools in the other 
half of the district.

The only other order was that quarterly reports be filed 
commencing September 1, 1968.

- 12



Again, nothing could be further from the truth.
In the first place —  and as appellant well knows —  the

task force made no single recommendation since its members were
2/  .unable to agree. Some members favored the Board's plan with

modifications, others favored the BEST Plan with modifications.
It was decided instead to make both proposals to the Commissioner
leaving to him the decision of which alternative to choose (R. 78).

To be sure all members of the task force agreed that the
entire BEST Plan was financially impossible (R. 76). Besides
pairing the schools, the BEST Plan would have required the hiring of
additional teachers, teacher aids, social workers and the addition
of more classrooms (R. 75, 77-78). But it was the cost of
implementing this entire plan that was deemed to be beyond the
financial means of the district. Contrary to appellant's
assertion the task force never reported that the pairing feature
was financially impossible.

Lipsitz and Nadler estimate the cost of implementing the 
Commissioner's order to be $2,888,543 and $3,344,913 for the 
first and second years respectively (R. 97-103). But, as is 
evident from their computations and from the erroneous assumption
in appellant's brief, these estimates are for implementing the3/
entire BEST Plan. They, therefore, may be disregarded.

2/
3/

The entire Task Force Report is included in the record 
as Exhibit B annexed to the affidavit of Louis H. J. Welch, 
at pp. 73-95.

It should not go unnoticed that neither in its brief or 
at the oral argument did appellant attempt an explanation 
of why it purposely priced a plan not ordered by the 
Commissioner.

13



Indeed Lipsitz and Nadler's letter and the report of the 
task force show unequivocally that the district ^s financially 
capable of implementing the pairing order. The only^additional 
cost that the pairing would entail was transportation and 
conceivably the cost of providing hot lunches at each school.
(See cost estimate included in Report of Task Force.) Appellant's 
own accountants state that "there is available to the City School 
District additional funds amounting to $439,136 for the current 
school year over and above the amount which it has budgeted."
(R. 98). They estimate, at p. 4, that $636,299 of the district's 
own money will be available during the second year (R. 100). Yet 
transportation, the only mandated additional cost, is only 
$193,00 the first year (R. 85) and, using appellant's own figures, 
$105,140 the second year (R. 85, 99). Thus, the district clearly 
has enough funds to achieve the pairing ordered. Moreover, even 
if hot lunches would now have to be available at each school that 
could still be done out of the $439,136 and $636,299 available 
since the annual expenditure for lunch would be only $155,000 and 
$148,800 during the first and second years (R. 86). (Report of 
Task Force).

We are aware that transportation would not be required 
by State law. Nonetheless appellees-intervenors desire 
transportation and apparently the Board is willing to 
provide it if forced to comply. The Commissioner adverted 
to it in his order and it was one of the factors considered by the task force. We will, therefore, treat the furnishing 
of transportation as a necessary result of the pairing 
ordered.

- 14



The following table 
anticipated expenses for

summarizes the funds available and 
the first two years:

First Year Second Year
Available $439,136 $636,299
Expenses: 6/

Transportation 193,000 105,150
Amortization-Lunchrooms 155,000 148,800

Total Expenses $348,000 $253,950
This analysis reveals the wisdom rather than arbitrariness 

of the Commissioner's action for which he should be praised 
rather than criticized. While he recognized the value of the 
other recommendations contained in the BEST Plan, he knew also, 
as he was told by the task force, that implementation of the plan 
in its entirety was not possible. A part of his task force 
recommended the BEST Plan with modifications. They concluded 
that while full integration by pairing was presently financially 
feasible most of its features were not (Memorandum of Johnson to

5/ These figures suggest merely what is possible: that the
district by taxing at its constitutional limit can raise 
enough funds to meet the modest expenses caused by the 
order. But there is little likelihood that it will have 
to do so. The Commissioner plainly informed the district 
of the several sources of State aid available to it that 
it is not now receiving (p. 6, supra). in addition there 
are numerous other federal programs under which appellant 
may receive funds. While we could catalogue such programs 
we think it hardly necessary to do so since the amount 
needed is small and the district can probably raise a 
substantial portion from the State.

6/ Although the task force estimated only $61,000 for the
second year (R. 85), Lipsitz and Nadler concludes that the 
true figure was understated by $45,150 (R. 99).

15



Nyquist, R. 74 et seq.). Heeding their advice he decided to
order pairing only and to suggest to the Board that it continue
its efforts in other areas.

In sum, the short answer to appellant1s allegation of
financial inability is that the allegation is unsupported by the
record or by the affidavits filed in this court, and, indeed, that
the record conclusively shows that appellant is financially able
to implement the Commissioner's order.

Not content with having misrepresented the cost of what the
Commissioner ordered, appellant now argues that the lower court
conceded that there was a "dispute," was obliged to deny the
motions to dismiss. To be sure there was a "dispute," but it was

8/plainly resolvable on the record, that being the case the Court 
was entitled to ignore the allegation and grant the motion.

7/ The memorandum pointed to precisely what the Commission
ultimately did (R. 76):

Everyone realized that the BEST Plan is not 
feasible financially even if there were agreement 
on its desirability. . . .  Some members, however, 
favored implementing the pairing feature even 
though the augmented staff and other instructional 
improvements cannot be adopted because of financial reasons (Emphasis added).

8/ Appellant mistakenly assumed they were entitled to a de
novo review of the Commissioner's order in the lower court. 
But the proceeding before the Commissioner was quasi­
judicial Vetere v. Allen, 15 NY 2d 259, 258 NYS 2d 77; City 
of Albany v. McMorron, 34 Misc. 2d 316, 230 N.Y.S. 2d 434 
(1962)',' Hecht v. Monaghan, 307 NY 461 (1954). Thus, review 
is in the nature of certiorari and the reviewing court is 
limited, on the merits of the action taken, to the record 
before the Commissioner. Miller, etc, v. Kling, 291 NY 
65, 69 (1943); Newbrand v. Yonkers, £85 NY 164, 177-8 (1941); 
Schiletti v. Sheridan, 12 App. Div. 2d 801, 210 NYS 2d 20 
(ind Depart. 1961); Brody's Auto Wrecking Inc. v. O'Connell, 
311 Misc. 2d 466, 220 N.Y.S.2d 936 (1961).

16



b. The Lipsitz and Nadler Letter Should Be 
Disregarded

Even if appellant had not grossly overstated the cost of 
implementing the Commissioner's order, appellee-intervenors believe 
the petition should still be dismissed. The letter of Lipsitz 
and Nadler is not a part of the record and was never submitted to 
the Commissioner, indeed, although appellant sought rehearing 
after the commencement of this action the letter was not submitted 
at that time. This court may not rely on financial analyses and 
conclusions not furnished the Commissioner, cf. Application of 
Kuhn. 145 N.Y.S. 2d 879, "The court may [in an Article 78 
Proceeding] consider only such evidence as was presented to the 
Commissioner." This is not unimportant for the Commissioner has 
traditionally concerned himself with the ability of a district 
to implement his orders. Thus, in this very case, when appellant's 
Children's Academy plan proved financially unworkable, the 
Commissioner by letter dated November 6, 1967 (appellant's Exhibit 
H) granted permission to develop another plan. Here, appellant 
would have this Court overturn the Commissioner's order for 
arbitrariness on data, analyses, and conclusions not presented 
to him.

17



Ill
The May 2, 1969 Amendment Is 
Unconstitutional On Its Face

Appellee-intervenors respectfully direct this Court's 
attention to Chapter 342, Laws of 1969, passed by the New York 
State Legislature May 2, 1969 and subsequently signed by the 
Governor of New York, (A fascimile reproduction of the Act is 
appended hereto as Exhibit "A",) The Act by its terms purports to 
divest the Commissioner after August 31, 1969 of any authority to 
require compliance by the Mount Vernon Board of Education with the 
outstanding order of June 13, 1968,

As a technical matter the Act need not affect this appeal 
since it does not become effective until September 1, 1969. Beyond 
that, however, we submit that it is so clearly unconstitutional 
that this court can so find and accordingly affirm the judgment 
below. Should the court be reluctant to pass upon its 
constitutionality now it can ignore the statute because of its 
effective date and rule on the merits. In the alternative, it 
could remad the case to Special Term for a determination of its 
constitutionality before ruling on ther merits.

In Matter of Vetere v. Mitchell, 21 A.D. 2d 561, 251 N.Y.S. 2d 
480, 483 (3d Dpt. 1964), aff*d sub nom. Vetere v. Allen, 15 N.Y.
2d 259, 258 N.Y.S. 2d 77, 206 N.E. 2d 174, cert, denied. 382 U.S.
825 (1965), this Court stated that if the guarantee of nondiscrimi-

9/nation contained in §3201 of the Education Law were construed to

9/ Retained in very slightly modified form in the 1969 Act
which amends §3201. See Exhibit "A."

- 18



prevent implementation of an order issued by the Commissioner of 
Education requiring school pairings to overcome racial imbalance, 
the statute would be unconstitutional for the reason that it would 
actively preserve racial imbalance by force of law. The statute, 
said the Court, would thereby convert de facto segregation into de 
jure segregation.

The new law stands on no firmer a constitutional footing. The 
fact that it may, in some instances, at the option of local elective 
school boards, not perpetuate segregation does not save its 
constitutionality. Cf. Griffin v. County School Bd. of prince 
Edward County, 377 U.S. 218 (1964) (striking down a Virginia law 
which permitted a local county school district to close down its 
schools to avoid integration). Constitutional rights "may not be 
submitted to vote; they depend upon the outcome of no elections." 
West Virginia State Bd, of Educ, v. Barnette, 319 U.S. 624, 638 
(1943).

A separate and equally egregious defect of the measure is that
it accomplishes a significant involvement of the State of New York
in private discrimination. The new law grafts onto the prohibition
of racial attendance policies in New York public schools an
exception providing that a child may be racially assigned if such

10/is the wish of his parent or guardian. Compare Reitman v. Mulkey, 
387 U.S. 369 (1967), striking down a constitutional amendment 
guaranteeing the right to refuse to sell property to any person 
(even on grounds of racial discrimination) enacted by referendum 
against a background of statutotry prohibitions of racial

10/ The "right" of the child, parent or guardian to select the
school he shall attend rather than remaining subject to assign­
ment is entirely new to New York law. Education Law §§2556, 
2503(4)(d).

19



discrimination.
Similarly, examination of the law "in terms of its 'immediate 

objective,' its 'ultimate effect' and its 'historical context and 
the conditions existing prior to its enactment,'" Reitman v.
Mulkey, 387 U.S. at 373, reveals the discriminatory purpose of the 
legislation. The history of local resistance to orders of the 
Commissioner which require the elimination of segregated public 
schools is well documented. E.£., Vetere v. Allen, 41 Misc. 2d 200, 
245 N.Y.S. 2d 682 (Sup. Ct. Albany Co. 1963), rev'd sub nom,
Vetere v. Mitchell, 21 A.D. 2d 561, 251 N.Y.S. 2d 480 (3d Dept 1964), 
aff'd sub nom. Vetere v. Allen, 15 N.Y. 2d 259, 258 N.Y.S. 2d 77,
206 N.E. 2d 174, cert, denied, 382 U.S. 825 (1965); Addabo v.
Donovan. 22 A.D. 2d 383, 256, N.Y.S. 2d 178 (2d Dept.), aff^d 16
N.Y. 2d 619, 261 N.Y.S. 2d 68, 209 N.E. 2d 112, cert., denied, 382
U.S. 905 (1965): Balaban v. Rubin, 20 A.D. 2d 438, 248 N.Y.S. 2d
574 (2d Dept.), aff'd 14 N.Y. 2d 193, 250 N.Y.S. 2d 281, 199 N.E. 2d 
375, cert, denied, 379 U.S. 881 (1964). The very tortured history 
of this case —  five years' time during which the Mount Vernon 
Board of Education failed to develop a plan which would adequately 
redress the segregation of its school system —  demonstrates such 
resistance to be present here. There can be little doubt that the 
design, intent and effect of the new law is to reverse the 
Commissioner's rulings and to provide encouragement and solace to 
parents who desire to maintain segregated attendance patterns.

Finally, we would reemphasize, that respondents are entitled 
to an adjudication of the constitutionality of this statute before 
it affects their case. Such a course is entirely consistent with

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» sound judicial practice. This court may not, therefore, reverse 
the judgment below relying upon the statute. As we have 
demonstrated the statute is defective on its face and should be 
ignored. In the alternative the case should be remanded for 
Special Term so that its constitutionality may thereupon be 
adjudicated.

I

CONCLUSION
For all the above reasons the judgment below should be

affirmed.
Respectfully submitted.

\ JACK GREENBERG
JAMES M. NABRIT, III 
FRANKLIN E. WHITE 
NORMAN J. CHACHKIN 10 Columbus Circle New York, New York 10019
Attorneys for Respondents- 

Intervenors

LEWIS M. STEEL, ESQUIRE 
LEONARD J. ROSENFELD, ESQUIRE 
THOMAS J. CAHILL, ESQUIRE 
FREDERICK GREENE, ESQUIRE

Of Counsel

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