Nyquist v. Lee Motion to Affirm

    I n  th e

(Emtrt of %  States
O ctober T ee m , 1970 

No. 1354

E w ald  B. N yquist , Commissioner of Education 
of the State of New York, et al.,

Appellants,
-v.—

D onald R. L ee , et al.

O N  A P P E A L  FR O M  T H E  U N IT E D  STATES DISTRICT COURT 
FOR T H E  W E ST E R N  D ISTR IC T OF N E W  Y O R K

MOTION TO AFFIRM

H erm an  S ch w artz
77 West Eagle Street 
Buffalo, New York 14202

D avid J. M a h o n e y , Jr.
1776 Statler Hilton 
Buffalo, New York 14202

J ack  G reenberg 
J ames M . N abrit , I I I  
N orman  J. C h a c h k in  
S ylvia  D rew

10 Columbus Circle 
New York, New York 10019

Attorneys for Appellees 
Donald R. Lee, et al.



I N D E X

PAGE

Opinion Below .........—,......................................... ,........... 1

Jurisdiction ......................—....... ,.......................... ......  2

Statute Involved........——.... ............... ,............................ 2

Question Presented ...................................   3

Statement .............................................   3

A r g u m e n t ........ ,.............. ..... — „............................................7

CONCLUSION ....................................................................... 11

T able of A u thorities

Cases:

Alabama v. United States, 314 F. Supp. 1319 (S.D.
Ala. 1970), appeal dismissed, 400 U.S. 954 (1970)..- 10

Board of Education v. Allen, 32 A.D.2d 985, 301
N.Y.S.2d 764 (3rd Dept. 1969) ..........  9

Bradley v. Milliken, 433 F.2d 897 (6th Cir. 1970)....... 10

Hunter v. Erickson, 393 U.S. 385 (1969) ....................3, 7, 9

Johnson v. Florida, 391 U.S. 596 (1968) .................. . 2

Keyes v. School District No. 1, Denver, Colo., 313 
F. Supp. 61 (D. Colo. 1970) ....................................... 10

Pittsburgh Towing Co. v. Mississippi Valley Barge 
Line Co., 385 U.S. 32 (1966) .......................................... 2



n

PAGE

Reitman v. Mulkey, 387 U.S. 369 (1967) .................. . 7, 9

Swann v. Charlotte-Mecklenburg Board of Education,
312 F. Supp. 503 (W.D. N.C. 1970), appeal pending 
sub nom. North Carolina State Board of Education 
v. Swann, No. 498, O.T. 1970, and Moore v. Charlotte- 
Mecklenburg Board of Education, No. 444, O.T.
1970 ................................................................................  10

Statutes:

New York Education Law (McKinney 1970), Section 
3201(2), enacted as Chapter 342, Laws of New York 
of 1969 ........................................ ..........................2, 3, 4, 6,8

28 U.S.C. §1253 ...............     2
28 U.S.C. §§2281, 2284 .................................................... 2, 3
Rule 13(1), Rules of the Supreme Court of the United 

States .............................................................................  2, 6
Rule 16, Rules of the Supreme Court of the United 

States ...........................................  1



In th e

£5>upr?m£ (Hmtrt at tljT Init^ States
O ctober T erm , 1970 

No. 1354

E wald  B. N yquist , Commissioner of Education 
of the State of New York, et al.,

Appellants,

D onald R . L ee , et al.

ON A P PE A L  FRO M  T H E  U N IT E D  STATES D ISTR IC T COURT 
FOR T H E  W E ST E R N  D ISTR IC T OF N E W  Y O R K

MOTION TO AFFIRM

Appellees, Donald R. Lee, et al., plaintiffs below, pursu­
ant to Rule 16 of the Rules of the Supreme Court of the 
United States, move that the final judgment of the district 
court be affirmed on the ground that there is no substantial 
issue as to the correctness thereof under this Court’s prior 
decisions, and thus the question is so insubstantial as not 
to warrant further argument.

Opinion Below

The opinion of the district court is reported at 318 F. 
Supp. 710.



2

Jurisdiction

The jurisdiction of this Court is invoked pursuant to 28 
U.S.C. §1253, in that the case is a civil action which was 
required by Act of Congress to be heard by a district court 
of three judges. 28 U.S.C. §§2281, 2284. The court below 
granted an injunction against the enforcement of a state 
statute by state officials on the ground of the unconstitu- 
tionality of the statute. Ibid. The final judgment of the 
district court was entered November 23, 1970. A notice of 
appeal was filed December 16, 1970. The Jurisdictional 
Statement was filed February 16, 1971. As the appeal was 
docketed in this Court 62 days from the filing of the notice 
of appeal, it was not docketed within the time limit pre­
scribed by Rule 13(1) of the Rules of the Supreme Court 
of the United States. Pittsburgh Towing Go. v. Mississippi 
Valley Barge Line Co., 385 U.S. 32 (1966); but see Johnson 
v. Florida, 391 U.S. 596 (1968).

Statute Involved

Section 3201(2) of the New York Education Law (Mc­
Kinney 1970), enacted as Chapter 342, Laws of New York 
of 1969, provides as follows:

2. Except with the express approval of a board of 
education having jurisdiction, a majority of the mem­
bers of such board having been elected, no student shall 
be assigned or compelled to attend any school on ac­
count of race, creed, color or national origin, or for 
the purpose of achieving equality in attendance or 
increased attendance or reduced attendance, at any 
school, of persons of one or more particular races, 
creeds, colors, or national origins; and no school dis­
trict, school zone or attendance unit, by whatever name



3

known, shall be established, reorganized or maintained 
for any such purpose, provided that nothing contained 
in this section shall prevent the assignment of a pupil 
in the manner requested or authorized by his parents 
or guardian, and further provided that nothing in this 
section shal be deemed to affect, in any way, the right 
of a religious or denominational educational institution 
to select its pupils exclusively or primarily from mem­
bers of such religion or denomination or from giving 
preference to such selection to such members or to 
make such selection to its pupils as is calculated to 
promote the religious principle for which it is estab­
lished.

Question Presented

Whether the district court was correct in determining 
that Section 3201(2) of the New York Education Law vio­
lates the Equal Protection Clause of the Fourteenth Amend­
ment to the Constitution of the United States under the 
principles decided in Hunter v. Erickson, 393 U.S. 385 
(1969), in that it effects an explicitly racial classification 
which makes it more difficult for black citizens to achieve 
school integration, and in that its purpose and effect as 
revealed by its context is to encourage the maintenance of 
racial segregation in public schools.

Statement

This is a direct appeal from the final judgment and order 
entered on November 23, 1970, by a district court of three 
judges convened pursuant to 28 U.S.C. §§2281, 2284, which 
held that section 3201(2) of the New York Education Law 
was unconstitutional and enjoined its enforcement on the 
ground that it denied plaintiffs equal protection of the 
laws.



4

On January 21, 1970, plaintiffs-appellees Lee, et at. who 
are parents of children attending the Buffalo, New York 
public schools filed their complaint in the United States 
District Court for the Western District of New York. They 
named as defendants the Board of Regents of the Uni­
versity of the State of New York, the Commissioner of 
Education of the State of New York, the Superintendent 
of the Board of Education of the City of Buffalo, and the 
Board of Education of the City of Buffalo. Defendants’ 
motion to dismiss was denied April 30, 1970, by order of 
the district judge who in the same order requested the 
convening of a three-judge court. Subsequently, another 
group of parents, Chropowicki, et al., were permitted to 
intervene as defendants. The defendants answered the 
complaint, and the parties submitted arguments and evi­
dence (primarily depositions, answers to interrogatories, 
etc.) at a hearing on June 26, 1970.

On September 30, 1970, the district court in a unanimous 
opinion by Circuit Judge Hays, ruled that §3201(2) “con­
stitutes an explicit and invidious racial classification and 
denies equal protection of the laws.” (318 F. Supp. 710, at 
720; Jurisdictional Statement p. 29.) The order entered 
November 23, 1970, contained a declaratory judgment that 
section 3201(2) is unconstitutional and an injunction re­
straining the defendants “from executing, implementing or 
enforcing those provisions of Section 3201(2) declared un­
constitutional . . .  or in any way operating pursuant to 
or in accordance with said provisions.”

The Jurisdictional Statement, pp. 5-8, reiterates a num­
ber of arguments and assertions by appellants with respect 
to plaintiffs’ standing to sue which were rejected by the 
district court’s findings. The district court found, inter 
alia, that plaintiffs:



5

. . . are parents of children attending Buffalo public 
schools, suing on behalf of themselves, their children 
and all others similarly situated. Some of their chil­
dren are in schools where there is a high degree of 
racial concentration. (Footnotes omitted.) (318 F. 
Supp. 710, at 712.)

The court found that “plaintiffs are harmed by Section 
3201(2), in that the educational policies to which their 
children are subjected are directly affected by the opera­
tion of the statute.” (318 F. Supp. 710, at 713-714.)

The court rejected the defendants’ argument that there 
was no showing that the statute affected Buffalo’s school 
desegregation plans, stating:

It is clear, however, as Superintendent Manch’s depo­
sition indicates, that Section 3201(2) severely inhibits 
the creation and siting of new middle schools and the 
adjustment of zone lines so as to achieve racial bal­
ance, as well as the use of other devices aimed at re­
ducing racial segregation in the Buffalo public schools. 
The statute denies appointed officials the power to 
implement non-voluntary programs for the improve­
ment of racial balance. Voluntary plans for achieving 
racial balance however, have not had a significant im­
pact on the problems of racial segregation in the Buf­
falo public schools; indeed it would appear that racial 
isolation is actually increasing.

Under the circumstances, we need not await action 
by a state official in direct violation of the statute be­
fore considering the claim plaintiffs raise. The con­
troversy is sufficiently crystallized. (Citations omit­
ted.) (318 F. Supp. 710, at 714-715; footnotes omitted.)



6

The court concluded that “ The Buffalo schools, governed 
by an appointed board, are directly affected by the opera­
tion of Section 3201(2), and plaintiffs have standing to 
complain of its unconstitutionality.”

Finally, contrary to assertions in the Jurisdictional 
Statement, pp. 4, 7, 8-9, the court below made no finding 
or holding with respect to the constitutionality of so-called 
de facto segregation. That issue, i.e., whether racial segre­
gation which existed in the Buffalo schools violated the 
Fourteenth Amendment, was not decided in the opinion 
below. Consequently, there are no findings of fact or con­
clusions of law in the opinion below with respect to whether 
*the existing pattern of segregation was or was not caused 
by “state action” within the embrace of the Fourteenth 
Amendment. The decision that section 3201(2) is uncon­
stitutional rests on other grounds as we explain more fully 
in the Argument below.

A notice of appeal was filed on December 16, 1970, by 
the Commissioner of Education and the Board of Regents, 
and their Jurisdictional Statement was filed February 16, 
1971. The Board of Education of the City of Buffalo and 
Superintendent Manch did not file an appeal. The inter­
vening defendants Chropowicki, et al. filed a notice of ap­
peal December 28, 1970, but have not filed a jurisdictional 
statement within the allotted time. See Rule 13(1), Rules 
of the Supreme Court of the United States.



7

ARGUMENT

Plaintiffs-appellees urge this Court to summarily affirm 
the decision below on the ground that it is so clearly cor­
rect on its face that oral argument and plenary hearing of 
the appeal is unnecessary. The lucid opinion by Circuit 
Judge Hays fully supports, the judgment, and nothing in 
the Jurisdictional Statement raises any substantial issue 
as to the correctness of that decision.

Judge Hays’ opinion describes the provision involved in 
these words:

Section 3201(2) prohibits state education officials 
and appointed school boards from assigning students, 
or establishing, reorganizing or maintaining school dis­
tricts, school zones or attendance units for the purpose 
of achieving racial equality in attendance. By the 
terms of the statute, elected boards continue to have 
power to engage in such activities. (318 F. Supp. at 
712.)

The court below concluded that the statute violated the 
Fourteenth Amendment on two grounds urged by plaintiffs. 
First, the court held that “plaintiffs have made a good 
case for the applicability of the principle of Reitman v. 
Mulkey, 387 U.S. 369 (1967),” in that the statute served 
to continue segregation and significantly encourages and 
involves the state in racial discrimination. This holding 
was based on an analysis of the history of school integra­
tion efforts in New York and the legislative history of the 
statute, as well as the Commissioner of Education’s own 
statement of the impact of the law on school integration 
efforts in the State. (318 F. Supp. at 716-717). Second, the 
court held that it need not rest its decision on the Reit­
man principle, since this Court’s decision in Hunter v.



8

Erickson, 393 U.S. 385 (1969), also applied to section 
3201(2). The opinion points out that the statute creates a 
clear racial classification, by prohibiting the Commissioner 
of Education and local appointed officials from, acting in 
school assignment matters only where racial criteria are 
involved. “The statute thus creates a clearly racial classi­
fication, treating educational matters involving racial cri­
teria differently from other educational matters and mak­
ing it more difficult to deal with racial imbalance in the 
public schools.” (318 F. Supp. at 719.) The court held that 
this change in the internal governmental process made “it 
more difficult for racial minorities to achieve goals that 
are in their interest,” and “thus operates to disadvantage 
a minority, a racial minority, in the political process.” 
(318 F. Supp. at 720.) The court found no justification for 
the racial classification imposed by the statute and held 
that it thus denied equal protection.

We reiterate that the court below did not rule that state 
school systems had an obligation to end de facto segrega­
tion. There were no findings with respect to whether the 
segregation in Buffalo was de facto or de jure or whether 
the Fourteenth Amendment required any specific steps to 
affect the existing racial imbalance in the Buffalo schools. 
The court below noted the defendants’ arguments that the 
State had no obligation to take affirmative action to reduce 
de facto segregation, and responded in these words:

But the argument that the state has not discriminated 
because it has no constitutional obligation to end de 
facto racial imbalance fails to meet the issue under 
Hunter v. Erickson. The statute places burdens on the 
implementation of educational policies designed to deal 
with race on the local level. Indeed, it completely pro­
hibits the implementation of such policies where the 
local board is not elected. The discrimination is clearly



9

based on race alone, and the distinction created in the 
political process, based on racial considerations, oper­
ates in practice as a racial classification. See Note, 
Developments in the Law—Equal Protection, 82 Harv. 
L. Eev. 1065, 1080 (1969). (318 F. Supp. at 719.)

All of this is so clearly correct that appellants deny none 
of it. Rather, they assert that:

(1) The State has the right to consider and bow to 
local hostility to integration efforts, and the re­
sulting dissension;

(2) The financial problems involved in achieving inte­
gration are relevant to the constitutionality of the 
statute.1

In response to those two points, appellees point out:
(1) It is well established by Hunter v. Erickson, supra, 

and Reitman v. Mulkey, supra, that majoritarian prejudices 
cannot be allowed to impose extraordinary burdens on 
racial or other minorities. The court below dealt directly 
with this issue, see Jurisdictional Statement, p. 28, and its 
resolution of the issue is indisputably correct.

(2) The financial problems are quite irrelevant since the 
Commissioner has not sought to force racial integration 
where it is not financially feasible. The New York courts 
have held that a school board cannot be forced to adopt 
programs it cannot afford, see Board of Education v. Allen, 
32 A.D.2d 985, 301 N.Y.S.2d 764 (3rd Dept. 1969), and the 
Commissioner has never argued otherwise. Indeed, the 
city school districts of Mount Vernon and Newburgh have

1 The state claims that the statute also prohibits assignment on 
the basis of religion or national or ethnic origin. As to this, latter 
point, it is clear that the statute was aimed at racial problems, and 
that is its greatest impact.



10

withdrawn their applications for funds that are in fact 
available for the elimination of racial balance. Jurisdic­
tional Statement, p. 24. All that the court below held is 
that if the appointive school administrators find that the 
elimination of the burdens on black people of racial segre­
gation by pupil assignment or school districting is educa­
tionally wise and economically feasible, the legislature can­
not prevent them from taking such steps by preventing- 
such assignment and districting only where racial balance 
is concerned.

Finally, it is clear that there are no decisional conflicts 
on this issue. Similar state statutes have been held un­
constitutional on various grounds. See, e.g., Alabama v. 
United States, 314 F. Supp. 1319 (S.D. Ala. 1970), appeal 
dismissed, 400 U.S. 954 (1970); Swann v. Charlotte-Meck- 
lenburg Board of Education, 312 F. Supp. 503 (W.D. N.C. 
1970), appeal pending sub nom. North Carolina State 
Board of Education v. Swann, No. 498, this Term, and 
Moore v. Charlotte-MecJclenburg Board of Education, No. 
444, this Term. Cf. Keyes v. School District No. 1, Denver, 
Colo., 313 F. Supp. 61 (D. Colo. 1970). See also, Bradley 
v. Millihen, 433 F.2d 897 (6th Cir. 1970), citing the opinion 
below.



11

CONCLUSION

For the foregoing reasons, it is respectfully submitted 
that the judgment below should be affirmed.

Respectfully submitted,

H ebm an  S ch w abtz
77 West Eagle Street 
Buffalo, New York 14202

D avid J. M a h o n e y , Jb.
1776 Statler Hilton 
Buffalo, New York 14202

J ack  G beenbebg 
J ames M. N abbit , III 
N obman  J . C h a c h k in  
S ylvia  D bew

10 Columbus Circle 
New York, New York 10019 

Attorneys for Appellees 
Donald R. Lee, et al.



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