Madera v. Board of Education of the City of New York Petition for a Writ of Certiorari

    I n  th e

(Emtrt ni tfyp States
October Term, 1967 

No.............

V ictor Madera, R amiro Madera, Manuela Madera, and all 
other persons similarly situated,

Petitioners,
—v.—

B oard op E ducation op the City op New Y ork, B ernard

E. D onovan as Superintendent of Schools of the City 
o f New York, T heresa R akow as District Superinten­
dent of Public Schools for District One in the City 
of New York.

PETITION FOR A WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE SECOND CIRCUIT

H arold R othwax 
R obert Sugerman 
Sue A nn Shay

65 East 7th Street 
New York, New York

J ack Greenberg 
James N. Nabrit, III 
Michael Meltsner 
L eroy D. Clark

10 Columbus Circle 
New York, New York

Attorneys for Petitioners



I N D E X

Opinions Below .......................   2

Jurisdiction ..........................................................................  2

Question Presented ............................................................  2

Constitutional Provisions, Statutory Provisions, and 
Regulations Involved ....................................................  3

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

How the Federal Question Was Raised and Decided 
Below ................................................................................  9

PAGE

R easons for Granting the W rit

The restriction on the role of the lawyer in this 
case raises an issue of national importance in that 
it severely impairs effective protection of the legal 
rights of the poor ...... _............................................... 10

Certiorari should be granted to decide whether 
due process of law is denied by a school suspension 
hearing from which the parents and child in­
volved are denied the assistance of a person of
their own choosing ......................................................  15

Conclusion ..........................................................................  24

Appendix A la



Appendix B ....... ................ ....................... ........... ...............  25a

Appendix C ..........................................................................  68a

T able of Cases

Anonymous v. Baker, 360 U. S. 287 (1959) ..............—-  22

Brotherhood of Railroad Trainmen v. Virginia ex rel.
Virginia State Bar, 377 U. S. 1 (1964) ....................... 11

Brown v. Board of Education, 347 U. S. 483 (1954) .... 11

Dixon v. Alabama State Board of Education, 294 F. 2d 
150 (5th Cir. 1961), cert, denied, 368 U. S. 930 .......22, 23

Oarrity v. New Jersey, 385 U. S. 493 (1967) .................  8
Gideon v. Wainwright, 372 U. S. 335 (1963) ...............  11
Griffin v. Illinois, 351 U. S. 12 (1956) ............................... 11

Hannah v. Larche, 363 IT. S. 420 (1960) ..........................- 22

In Re Gault, 387 U. S. 1 (1967) ............ ..........................  15
In Re Groban, 352 U. S. 330! (1957) ....... ...... ..................  22

Johnson v. Zerbst, 304 U. S. 458 (1938) ....................... 17

Kent v. United States, 383 U. S. 541 (1966) ...............21-22

Malloy v. Hogan, 378 U. S. 1 (1964) ............................... 22

NAACP v. Button, 371 U. S. 415 (1963) ....................... 11
Niznih v. United States, 173 F. 2d 328 (6th Cir. 1949) 22

Opp Cotton Mills v. Administrator, 312 U. S. 126 (1941) 18

XI

PAGE



Ill

PAGE

Powell v. Alabama, 287 IT. S. 45 (1932) ........................... 19

United Mine Workers of America, Dist. 12 v. Illinois
State Bar Association, 389 U. S. 217 (1967) ............... 11

United States v. Pitt, 144 F. 2d 169 (3rd Cir. 1944) .... 22 
United States v. Sturgis, 342 F. 2d 328 (3rd Cir. 1965) 22

Wasson v. Trowbridge, 382 F. 2d 807 (2d Cir. 1967) .... 23

Constitutional P rovisions, Statutory P rovisions, 
and R egulations Involved

U. S. Const., Amend. X IV  ......................... 2, 3, 8, 9,10,18, 23

New York Const., Art. I § 6 ............ ..................................  19

28 U. S. C. $1254 (1) ....................... ..................................... 2

Criminal Justice Act of 1964, 78 Stat. 552, 18 U. S. C. 
$3006 A ..............................................................................  11

Economic Opportunity Act of 1964, 78 Stat. 508 ...........  11
Economic Opportunity Act amendments of 1967, §222,

81 Stat. 672 ......................................................................  12

New York City Board of Education, General Circular
No. 16 .................................................................... 3 ,5,7,9 ,17

New York Education Law §3212 ......................................... 3
New York Education Law §3214...............................3, 7, 8,17
New York Family Court Act §312 ..................................  3
New York Family Court Act §332 ..................................  3
New York Family Court Act §334 ..................................  8
New York Family Court Act §343 .................................. 8,18
New York Penal Law §280 .................    3

Selective Service Regulation 1604.71 (d) 22



IV

Other A uthorities

PAGE

Cahn and Calm, The War on Poverty: A Civilian Per­
spective, 73 Yale L. J. 1317, 1336-1337 (1964) .........12,13

Carlin and Howard, Legal Representation and Class
Justice, 12 U. C. L. A. L. Rev. 381 (1965) ...................  13

Conference Proceedings, The Extension of Legal Ser­
vices to the Poor (1964) ...............................................H> 12

Handler, Controlling Official Behavior in Welfare Ad­
ministration, 54 Calif. L. Rev. 479 (1966) ...............

Hentoff, Our Children Are Dying ....... ....... ...................

Kohl, 36 Children ......................................-.......................
Kozol, Death at an Early A g e ...........................................

Madder, A Report on the “ 600” Schools: Dilemmas, 
Problems and Solutions ................................................ 1

National Conference on Law and Poverty, Bibliography 
of Selected Readings in Law and Poverty, in Con­
ference Proceedings (1965) ........................................... 11

Neighborhood Law Offices: The New Wave in Legal 
Services for the Poor, 80 Harv. L. Rev. 805 (1967) 12

Office of Economic Opportunity, First Annual Report 
of the Legal Services Program to the American Bar
Association (1966) ........................................................ H> 12

Office of Economic Opportunity, The Poor Seek Jus­
tice (1967) ........................................................................

Office of Juvenile Delinquency and Youth Develop­
ment, U. S. Department of Health, Education and 
Welfare, Neighborhood Legal Services—New Dimen­
sions in the Law (1966) .................................................. 4



V

Reich, Individual Rights and Social Welfare: The 
Emerging Legal Issues, 74 Yale L. J. 1245 (1965) .... 13 

Reich, The New Property, 73 Yale L. J. 733 (1964) .... 13

Sparer, The Welfare Client’s Attorney, 12 U. C. L. A.
L, Rev. 361 (1965) ................ .......................................... 13

Symposium: Law of the Poor, 54 Calif. L. Rev. 319- 
1014 (1966) ......................................................................  11

Time, January 20, 1967, p. 18 ........................................ 14

PAGE



I n  t h e

§>npx?m? Glaurt a! tip? Intttfi States
October T erm, 1967

No.............

V ictor Madera, R amiro Madera, Manuela Madera, and all 
other persons similarly situated,

Petitioners,
—v.-

B oard of E ducation of the City of New Y ork, Bernard 
E. Donovan as Superintendent of Schools of the City 
of New York, T heresa Rakow as District Superinten­
dent of Public Schools for District One in the City 
of New York.

PETITION FOR A WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE SECOND CIRCUIT

Petitioners pray that a writ of certiorari issue to review 
the judgment of the United States Court of Appeals for 
the Second Circuit, entered in the above entitled case on 
December 6, 1967.



2

Opinions Below

The opinion of the United States Court of Appeals for 
the Second Circuit is reported at 386 F. 2d 778 (1967) 
and is set forth in Appendix A, infra, pp. la-24a. The 
opinion of the District Court is reported at 267 F. Supp. 
356 (1967) and is set forth in Appendix B, infra, pp. 
25a-67a.

Jurisdiction

The judgment of the United States Court of Appeals 
for the Second Circuit was entered December 6, 1967. The 
jurisdiction of this Court is invoked pursuant to 28 U. S. C. 
§1254 (1).

Question Presented

At a hearing to be held at district headquarters before 
a District Superintendent of the New York City public 
schools a decision was to be made whether to continue 
the suspension of a pupil indefinitely, return him to school, 
transfer him to an educationally inferior school for dis­
orderly students, or take action leading to institutionaliza­
tion. Petitioners’ retained attorney from Mobilization for 
Youth, Inc., a government funded anti-poverty program, 
was excluded from this proceeding pursuant to a regula­
tion of the board of education which permits a student 
and his family to appear with an assistant of their choice 
as long as the assistant is not an attorney.

Have petitioners been denied due process of law in vio­
lation of the Fourteenth Amendment?



3

Constitutional Provisions, Statutory Provisions, and 
Regulations Involved

This petition involves the Fourteenth Amendment to the 
Constitution of the United States.

This petition also involves New York Education Law 
§§ 3212, 3214, and New York Family Court Act §§ 312, 332, 
which are printed in the Appendix, infra, pp. 55a-58a.

This case also involves New York City Board of Edu­
cation General Circular No. 16 which is printed in Appen­
dix C, mfra, pp. 68a-77a.

Statement

For the main thrust of the attack on poverty on the 
lower East Side, New York City relies on Mobilization 
for Youth, Inc. (M FY). MFY is a government funded 
anti-poverty organization that attempts to provide com­
prehensive social services on a neighborhood basis. It em­
ploys lawyers, social workers, as well as other technical 
personnel, in a variety of educational and training pro­
grams to cope with the dilemmas of the community. M FY’s 
Legal Services Unit is an integral part of the attempt to 
deal with the social ills the neighborhood faces.

To represent indigent clients, the Legal Services Unit 
has obtained the approval of the Legal Aid Committee of 
the Association of the Bar of the City of New York and 
the permission of the Appellate Division of the Supreme 
Court of New York, as required by Section 280 of the 
New York Penal Law. The unit has received funds from 
the Federal Government and the Ford Foundation. MFY



4

received its first grant to set up the Legal Services Unit 
from the federal Office of Juvenile Delinquency and Youth 
Development in November of 1963. The unit was in opera­
tion by January 1964. It is generally recognized that 
“ [T]he Legal Services Unit was the first successful proj­
ect of its kind in the country” and the precursor of, and 
the model for, the neighborhood legal services programs 
that were later to spring up under the auspices of the 
Office of Economic Opportunity.1 The unit was a pioneer 
in the development of precedent-setting cases which affect 
large numbers of the indigent and its contributions have 
been significant in both criminal and civil areas. It has 
long been known for its concern for the rights of juveniles. 
For example, it put into operation the nation’s first pro­
gram providing representation for juveniles at the police 
precinct at the time of arrest.2 As an important facet of 
its program, lawyers in the unit work with social workers 
in a co-ordinated effort to assist community people in 
resolving their problems.3

Manuela Madera, a Puerto Rican mother of four, lives 
in the MFY area. She does not speak or understand Eng­
lish. In early February, 1967 she and her husband Ramiro 
were notified by Miss Theresa Rakow, the District Super­
intendent of New York School District No. 1 that their 14 
year old son, Victor, had been suspended from Public 
School 22, the junior high school in which he was enrolled. 
Victor was accused of striking a teacher, and was directed

1 Office of Juvenile Delinquency and Youth Development, U. S. 
Department of Health, Education and Welfare, “Neighborhood 
Legal Services—New Dimensions in the Law” (1966), p. 39.

2 Id. at 38.
3 Ibid.



5

to appear in Family Court on February 23, 1967 to answer 
a charge of juvenile delinquency and also to attend a dis­
trict superintendent’s “ suspense” hearing or “ guidance 
conference” on February 17, 1967.4

The Maderas retained attorneys from the Legal Services 
Unit of MFY to represent them at both the District Super­
intendent’s hearing and the juvenile delinquency proceed­
ings.5 When an MFY attorney notified Miss Rakow’s office 
that he would appear at the February 17th suspension 
hearing, on behalf of the Maderas, he was informed that 
he would not be permitted to do so pursuant to regulations 
of the board of education and the superintendent of 
schools— specifically, General Circular No. 16 (1965-1966) 
which provides that:

Inasmuch as this is a guidance conference for the 
purpose of providing an opportunity for parents, 
teachers, counselors, supervisors, et al., to plan edu­
cationally for the benefit of the child, attorneys seek­
ing to represent the parent or child may not partici­
pate (Circular No. 16, infra, p. 74a).

Circular No. 16 discusses two kinds of suspensions, the 
“principal suspense” (meaning by the principal of the 
school) and the “ administrative suspense.” Under the prin­
cipal suspense the school principal can suspend a student 
from school for no more than five days. The administra­
tive suspense involves more serious school problems and

4 A previous board of education Circular on school suspensions 
(Circular No. 11) had designated this a “ suspense hearing” . Cir­
cular No. 16 modified the name to “ Guidance and Conference” but 
the change is “ not substantive in nature” . Exhibit A, Annexed to 
Amended Complaint.

5 On February 28, 1967, the claim that Victor was a juvenile 
delinquent was dismissed by the Family Court, 267 F. Supp. at 359.



6

threatens long term interruption of a child’s education. 
Deliberations and decisions involving administrative sus­
pensions are carried on at a District Superintendent’s of­
fice after referral hy the school principal, and it was from 
a hearing to consider this latter form of suspension that 
the MFY attorney was barred. Petitioners have at no 
time challenged any aspect of the principal suspense as a 
normal incident of intraschool discipline. Such short term 
suspensions are no part of this case.

When it became clear that counsel would be barred from 
the hearing, petitioners’ attorneys obtained a temporary 
restraining order in the district court prohibiting the 
school officials from proceeding with the hearing unless 
plaintiffs’ counsel could be present and participate. Sub­
sequently, the parties proceeded in the district court with 
a hearing on petitioners’ motion for a preliminary injunc­
tion which was consolidated with the trial on the merits. 
The district court made extensive findings of fact as to 
the nature of the hearing and what was at stake for the 
pupil and parents involved, and permanently enjoined 
school officials from holding “ administrative suspense” 
hearings from which attorneys were excluded.

The district court found that at the conclusion of the 
District Superintendent’s hearing, the school authorities 
made decisions of very serious consequence for the child. 
The District Superintendent decides whether to return the 
student to the school in which he is enrolled, transfer him 
to another school, or require him to continue under sus­
pension. Some students under suspension were deprived 
of schooling for as much as ten months. The court found 
that in many cases the indefinite prolonged suspensions 
resulting from the District Superintendent’s hearing were 
the equivalent of expulsions, 267 F. Supp. at 369. School



7

records indicated that following a District Superintendent’s 
hearing some students who were beyond the school leaving 
age were “ discharged” or released by school authorities, 
Court’s Exhibits 1-17.

In addition, the court found that the District Superinten­
dent could have the pupil transferred to one of New York’s 
special day schools for “ socially maladjusted” children— 
popularly known as “ 600” schools because of their former 
numerical designations. The district court, on the basis of 
expert testimony, found that the “ 600” schools were an 
inferior, ethnically segregated class of schools and that a 
social stigma attached from placement in one of them. 
While under the New York statutory scheme a child cannot 
be placed in one of these special schools without parental 
“ consent,” the district court dismissed such consent as 
wholly illusory since the same New York statute also re­
quires that should the parents refuse to give their consent 
in writing they “ shall” be proceeded against for violating 
their statutory duty to see to the pupil’s attendance at 
school, N. Y. Educ. Law §§ 3214-5(a), 3214-5(c).

In addition to these immediate dispositions at the con­
clusion of the hearing, the District Superintendent can 
make referrals of the pupil which have significant educa­
tional consequence. The Bureau of Child Guidance (BCG) 
may determine that a student requires medical suspension, 
home instruction or exemption from school attendance. 
The Bureau of Attendance to which a referral may also 
be made, may proceed with court action. “ In the latter 
instance, school personnel will make themselves available 
for testimony in court” (Circular No. 16, infra, p. 75a).6

6 Both the district court and court of appeals were dubious of the 
admissibility of any statements made at the hearing in a subsequent



8

Such, referrals may result in institutional placement. 
The New York City Board of Education runs schools in a 
large number of residential institutions and hospitals and 
school officials have the authority to order a student found 
to be habitually truant, irregular in attendance, “ insub­
ordinate” or “ disorderly” to be instructed “under confine­
ment” for a period of up to two years, N. Y. Edue. Law 
§■§ 3214-1; 3214-5a. As in the case of the “ 600” school, par­
ents who refuse to accept the “ recommendation” of institu­
tional placement are faced with the threat of court action.7 
The district court found that these “ serious consequences” , 
made the exclusion of attorneys from a school suspension 
hearing a violation of the Due Process Clause of the Four­
teenth Amendment. The court permanently enjoined school 
officials from enforcing the “no attorneys” provision in their 
regulation relating to the suspension of children attending 
public school.

On appeal, the court of appeals for the Second Circuit 
reversed, vacated the injunction, and dismissed the corn-

court proceeding. However, neither court doubted that the dis­
position of the guidance conference is admissible in a subsequent 
court action. Section 334 of the Family Court Act, cited by the 
court of appeals as barring statements made in a “ preliminary con­
ference” from an adjudicatory Family Court hearing or criminal 
action seems only to apply to a preliminary conference in the 
Family Court action, and has no reference to conferences of other 
agencies for other purposes—such as a school guidance conference. 
The district court based its doubt on admissibility upon Garrity v. 
New Jersey, 385 U. S. 493 (1967). What a Bureau of Attendance 
officer could validly report in a subsequent court action concerning 
the proceedings in a guidance conference is not clear.

7 Adamant parents who refuse to consent and find themselves in 
Family Court defending a neglect charge do have the benefit of 
counsel and the airing of the issues in a judicial tribunal (Family 
Court Act, § 343). However, those parents who are intimidated by 
the threat of a neglect proceeding unwillingly “ consent” to their 
child’s institutional placement.



9

plaint. The appellate court did not share the view of the 
district court as to the seriousness of the consequences of 
the District Superintendent’s hearing. It expressed the 
view that “ the rules, regulations, procedures and practices 
disclosed on this record evince a high regard for the best 
interest and welfare of the child.”  The court was of the 
opinion that “ law and order in the classroom should be the 
responsibility of our respective educational systems” ; that 
due process of law does not require the presence of coun­
sel; and that a social worker who is allowed to attend the 
hearing “ would provide more adequate counsel to the child 
or parents than a lawyer.” 386 F. 2d at 788.

How the Federal Question Was Raised 
and Decided Below

The question of whether in a school suspension hearing 
which threatened loss of liberty and the right to public edu­
cation the parents and child involved were entitled to an 
assistant of their choice was raised throughout proceed­
ings in the district court. 267 F. Supp. at 362. The district 
court decided that the “ no attorneys” provision of board 
of education Circular No. 16 violated the Due Process 
Clause of the Fourteenth Amendment to the United States 
Constitution.

On December 6, 1967, the United States Court of Ap­
peals for the Second Circuit reversed the district court 
holding that the regulation of the board of education exclud­
ing attorneys did not violate the Due Process Clause of 
the Fourteenth Amendment. 386 F. 2d at 789.



10

REASONS FOR GRANTING THE W RIT

I.

The restriction on the role o f  the lawyer in this case 
raises an issue o f  national importance in that it severely 
impairs effective protection o f  the legal rights o f  the 
poor.

This case involves Victor Madera, a 14 year old Puerto 
Rican youth who was suspended from school for allegedly 
striking a teacher. He and his parents were summoned to 
appear before district school officials for a hearing to de­
termine Victor’s educational future. The family secured 
the assistance of an attorney with Mobilization for Youth, 
Inc., a neighborhood anti-poverty organization, but when 
the attorney sought to participate at the hearing he was 
informed that attorneys are excluded by board of education 
policy.

The question here is whether consistent with the Four­
teenth Amendment Due Process Clause a board of educa­
tion may bar an attorney from a proceeding at the school 
district level which will have profound consequences for 
the future of a public school student, although any non­
attorney advisor may be present. The court of appeals 
upheld the exclusion of counsel because of what, petitioners 
submit, is a dangerous misconception of the lawyer’s role 
and the nature of the proceeding at which his assistance 
was sought. Its decision is at odds with national efforts to 
provide the poor with legal resources necessary to protect 
their rights to procedural due process and their ability to 
obtain fair treatment from government officials.



11

Recent years have witnessed increased concern for the 
legal rights of the poor and a growing awareness of the 
need to provide legal services to enable them to protect 
themselves. This interest has been stimulated by and re­
flected in decisions of this court,8 federal legislation,9 na­
tional conferences,10 and a burgeoning legal literature.11 
One of the most significant contributions to providing legal 
services for the iwor has been the creation of local legal 
services juojects under the federal Office of Economic 
Opportunity (OEO). The growth and proliferation of these 
neighborhood legal services projects evinces a strong na­
tional commitment to providing the j>oor with the resources 
necessary to eoxoe with modern bureaucratic society.

This commitment reaches far beyond representation of 
the criminally accused. Indeed, federally funded legal ser­

8 Brown v. Board of Education, 347 U. S. 483 (1954); Griffin v. 
Illinois, 351 U. S. 12 (1956) ; and Gideon v. Wainwright, 372 U. S. 
335 (1963). Brotherhood of Railroad Trainmen v. Virginia ex rel. 
Virginia State Bar, 377 U. S. 1 (1964); NAACP v. Button, 371 
II. S. 415 (1963) ; United Mine Workers of America, Dist. 12 v. 
Illinois State Bar Association, 389 U. S. 217 (1967).

9 E.g., the Economic Opportunity Act of 1964, 78 Stat. 508, and 
the Criminal Justice Act of 1964, 78 Stat. 552, 18 U. S. C. § 3006 A.

ln E.g., National Conference on Law and Poverty, Washington, 
D. C., June 23-25, 1965, under the Co-Sponsorship of the Attorney 
General and the Director of the Office of Economic Opportunity; 
The Extension of Legal Services to the Poor, Washington, D. C., 
November 12, 13, 14, 1964, under the Sponsorship of the U. S. 
Department of Health, Education and Welfare; National Confer­
ence on Bail and Criminal Justice, Washington, D. C., May 27-29, 
1964 under the Co-Sponsorship of the U. S. Department of Justice 
and the Vera Foundation.

1J See e.g., Symposium: Law of the Poor, 54 Calif. L. Rev. 319- 
1014 (1966) ; Bibliography of Selected Readings in Law and Pov­
erty, in Conference Proceedings, National Conference on Law and 
Poverty (1965).



12

vice to the poor offices may not now handle criminal cases.12 
And, in fact, lack of legal protection in the criminal area 
constitutes only a small part of the vulnerability of the 
poor.13

Neighborhood lawyers serving the poor are taking on 
more than the traditional tasks of courtroom representa­
tion.. They are instrumental in educating their clients to 
the fact that the machinery of government is intended for 
their use—that the law can work for the poor as well as 
against them.14 They serve as negotiators for the commu­

12 §222 of Economic Opportunity amendments of 1967, 81 Stat. 
672.

13 As the Attorney General of the United States observed in 
1964:

In the final analysis, poverty is a condition of helplessness— 
of inability to cope with the conditions of existence in our 
complex society. We know something about that helplessness. 
The inability of a poor and uneducated person to defend him­
self unaided by counsel in a court of criminal justice is both 
symbolic and symptomatic of his larger helplessness.

But we, as a profession, have backed away from dealing with 
that larger helplessness. We have secured the acquittal of an 
indigent person—but only to abandon him to eviction notices, 
wage attachments, repossession of goods and termination of 
welfare benefits . . .  it is time to recognize that lawyers have a 
very special role to play in dealing with this helplessness. And 
it is time we filled it.

Some of the necessary jobs are not very different from what 
lawyers have been doing all along for government, for business, 
for those who can pay and pay well.

Attorney General Robert P. Kennedy, Law Day Address, May 1, 
1964, University of Chicago Law School, quoted in Calm and Cairn 
“ The War on Poverty: A Civilian Perspective,”  73 Yale L. J. 
1317, 1336-1337 (1964).

14 See generally Comment, “Neighborhood Law Offices: The New 
Wave in Legal Services for the Poor,” 80 Harv. L. Rev. 805 (1967); 
Office of Economic Opportunity, The Poor Seek Justice (1967) ; 
Office of Economic Opportunity, First Annual Report of the Legal 
Services Program to the American Bar Association (1966) ; United 
States Department of Health, Education and Welfare. Conference 
Proceedings: The Extension of Legal Services to the Poor (1964); 
Office of Economic Opportunity, National Conference on Law and 
Poverty (1965).



13

nity with governmental agencies not merely in litigation, 
but on the administrative level with respect to welfare 
assistance, public housing, and myriad other public bene­
fits.13 The neighborhood lawyer performs functions which 
would not necessarily require a lawyer in educated middle 
class communities.16

The court of appeals rejected petitioners’ demand to 
be represented in a serious matter by a neighborhood Legal 
Service attorney at an administrative hearing on the ground 
that the petitioners’ best interests were not served by repre­
sentation by an attorney. This ruling unjustifiably deni­
grates the role of all attorneys in providing the requisites 
of due process whether they represent rich or poor.

If a poor, non-English speaking person’s right to be 
heard is to be at all effective it must include the right to 
be heard through an assistant of his own choosing. Peti­
tioners do not claim that in every instance where a public 
benefit is put in jeopardy, the individual concerned is en­
titled to representation by counsel as a matter of con­
stitutional right. This would be too rigid a response to a 
problem that must be approached by a variety of means 
serving a number of ends. But petitioners do claim that 15 16

15 See, Sparer, “ The Welfare Client’s Attorney,” 12 U. C. L. A. 
L. Rev. 361 (1965) ; Carlin and Howard, “Legal Representation 
and Class Justice,” 12 U. C. L. A. L. Rev. 381 (1965); Reich, “ The 
New Property,” 73 Yale L. J. 733 (1964) ; Reich, “ Individual 
Rights and Social Welfare: The Emerging Legal Issues,” 74 Yale 
L. J. 1245 (1965); Handler, “ Controlling Official Behavior in 
Welfare Administration,” 54 Calif. L. Rev. 479 (1966).

16 Often we are blinded to the efficacy of legal representation as 
a potential route to a desired result because other modes of commu­
nication, organization, pressure, and protest suffice— at least for the 
middle class. Cahn and Cahn, “ The War on Poverty: A Civilian 
Perspective,” 73 Yale L. J. 1317, 1344 (1964). (Emphasis sup­
plied.)



14

when a citizen has someone available to assist him in deal­
ing with public authorities, concerning matters of vital 
personal interest, that person should not be barred, as the 
board of education’s regulation requires, solely because he 
happens to be a lawyer. It is an arbitrary and irrational 
distinction, which if given widespread application will seri­
ously undermine the attempts now being made to enable 
the law to serve the poor as well as it serves the rich.

Some of the students indefinitely suspended as a result 
of the District Superintendent’s hearing become dropouts, 
adding to the flood of unemployed indigent youth in our 
eities—and to the social problems attendant to such a flood. 
As former Secretary for Health, Education and Welfare 
Gardner has stated: “ the schools have been all too willing 
to unload their behavior and scholastic problems on the 
community in the foi’m of dropouts or expelled students.” 17 18 
In all these cases the child was faced with a system, which 
denied him the assistance of counsel when faced with ac­
cusations by the established authorities.

Few rights could be of more importance to a maturing 
youth than his right to an education and thus the procedures 
which put this valuable right in jeopardy must comport 
with our fundamental notions of fairness.1' Thus, although 
this petition raises only a narrow question of law, that 
question is of substantial public importance.

17 Time, January 20, 1967, p. 18.
18 Increasingly, the city schools are becoming institutions for our 

poor and ethnic minorities, run by staffs that are middle class and 
white. On matters of group values and argot there are tremendous 
chasms of understanding. See, e.g., Kozol, Death at an Early Age; 
Kohl, 36 Children; Hentoff, Our Children Are Dying. The 
neighborhood lawyer, lately arrived as the tribune of the poor, 
can be of great value' in bridging some of these chasms and estab­
lishing genuine communication. In some neighborhoods he may be 
the only one capable of doing so.



15

II.

Certiorari should be granted to decide whether due 
process o f  law is denied by a school suspension hearing 
from  which the parents and child involved are denied 
the assistance o f  a person o f  their own choosing.

The district court and the court of appeals differed as to 
what due process requires. The divergence flows from dis­
parate views as to the nature of the hearing held by school 
authorities and the seriousness of its consequences. To 
the court of appeals the hearings are innocuous “ con­
ferences”—preliminary investigations in which “ [T]he 
most that is involved is a change of school assignment.” 
386 F. 2d at 783. Its view of the nature of the hearing 
is based in large part on an affidavit of the superintendent 
of schools.19 The language of the affidavit is reminiscent 
of that of a pre-In Re Gault, 387 U. S. 1 (1967) descrip­
tion of the purposes and procedures of a juvenile court 
attempting to justify why due process should not apply.

In the Gault case this Court found that there was a 
definite “ gap between rhetoric and reality” in the juve­
nile court system, 387 U. S. at 30. After observing and lis­
tening to extensive testimony from parents, social workers, 
and educational experts who had actually been involved in 
suspension hearings, the district court came to a similar

19 386 F. 2d at 782. “ The conference is conducted in an atmos­
phere of understanding and cooperation, in a joint effort involving 
the parent, the school, guidance personnel and community and re­
ligious agencies. There is never any element of the punitive, but 
rather an emphasis on finding a solution to the problem.” Though 
he recites the theory of the “ Guidance Conference” in detail, there 
is no indication in the record that the Superintendent of Schools 
has even ever attended a suspense hearing or “ Guidance Confer­
ence.”



16

conclusion about the harsh reality of New York City sus­
pension hearings. Not only did the district court refuse 
to accept the benign description of the ambience and pro­
cedures put forward by school officials, but it differed with 
them as to the seriousness of the consequences of such 
hearings. As a direct result of the District Superinten­
dent’s conference a child may be returned to a regular 
public school setting or he may be suspended indefinitely. 
The district court found that some children are kept out 
of school the equivalent of an entire school year— or longer, 
267 F. Supp. at 371. Despite the child’s right to an edu­
cation under New York law, in most cases of prolonged, 
indefinite suspension, there is no home instruction or alter­
native form of education offered by the school authorities. 
The youth who attains the school leaving age while on sus­
pension and who was sceptical about the value of an edu­
cation has little incentive to return to the classroom. 
Others who have passed the school leaving age are simply 
released or “ discharged,” by school officials. Under these 
circumstances, the district court properly viewed these pro­
longed indefinite suspensions as the “ functional equivalent” 
of expulsion, 267 F. Supp. at 369.

Another direct consequence of the hearing is possible 
placement in a “ 600” school or “ school for socially malad­
justed children.” To characterize this disposition as a mere 
“ change of school assignment,” as did the court of appeals, 
is unjustifiable in the face of both oral testimony and the 
written report of an educational expert, hired by the board 
itself to make a study of the “ 600” schools, to the effect 
that these schools are “ ethnically segregated, inconven­
iently located, undersupported, organizationally unstable 
and unable to meet the needs of its student body.” Dr. 
Bernard Mackler, “ A Report on the ‘600’ Schools: Di­



17

lemmas, Problems and Solutions,” pp. 4-5. In short, as a 
consequence of a District Superintendent’s hearing a child 
risks the educational disadvantage (as well as social 
stigma) that comes from placement in inferior schools 
operated for misfits. School officials must obtain parental 
consent before placing a child in such a special day school, 
N. Y. Education Law §3214-5(a), but the statute also pro­
vides that should the parents fail to consent in writing, 
they “ shall” be proceeded against for neglect, § 3214-5 (c) 
(1). Such consent, as the district court found, is wholly illu­
sory and lacks those elements of voluntariness recognized as 
“ consent” in law. Cf., Johnson v. Zerbst, 304 U. S. 458 
(1938).

Both the district court and the court of appeals agreed 
that these consequences result from the District Superin­
tendent’s hearing—they differed as to their seriousness. 
It is clear, therefore, that the hearing is not merely a pre­
liminary investigatory procedure but rather an accusa­
tory-adjudicatory proceeding in which, as required by 
Circular No. 16, “ findings” and a “ decision concerning the 
disposition of the case” are made. General Circular No. 16, 
mfra, p. 75a.

As a result of the hearing or “ guidance conference” the 
District Superintendent may also refer the student’s case 
to the Bureau of Child Guidance or other agencies for study 
and recommendation, or to the Bureau of Attendance for 
court action. Such referrals to the BCG or related agen­
cies may result in institutional placement. As in the case 
of the “ 600”  school, parents who refuse to accept the 
“ recommendation” of institutional placement are faced 
with the threat of court action, N. Y. Education Law 
§§3214-5(a); 3214-5(c). Parents who are coerced by this



18

threat find their children institutionalized without further 
opportunity for a hearing. There may be further investi­
gations and decisions after a referral by the District Super­
intendent to the BCG, see 386 F. 2d at 785, but there is
no subsequent opportunity for a hearing?0 Opp Cotton 
Mills v. Administrator, 312 U. S. 126, 152-53 (1941).

While the court of appeals concluded that the conse­
quences of the hearing would be “ limited” it conceded 
that “ any action that would effectively deny an education 
must meet the minimal standards of due process” within 
the meaning of the Fourteenth Amendment. 386 F. 2d at 
784. The court considered the question of whether due 
process permits exclusion of retained counsel on this basis 
and rejected petitioners’ contention on the grounds that 
the right to representation is not an essential ingredient of 
a fair hearing.

If the Maderas’ right to be heard is, however, to be 
more than a hollow formality, they must he permitted to 
be heard by and through an assistant of their own choos­
ing—including the neighborhood lawyer. More than three 
decades ago, this Court observed, concerning both civil and 
criminal matters that

“ The right to be heard would be, in many cases, of 
little avail if it did not comprehend the right to be 
heard by counsel. Even the intelligent and educated 20

20 The only exception, of course, would be where the parent and 
child are proceeded against in Family Court for refusal to comply 
with board of education school requirements, in which case they 
would be assured of proper procedural safeguards including coun­
sel, Family Court Act § 343.

Thus, contrary to the court of appeals’ disclaimer (386 F. 2d at 
788) the question of what due process requires before a child is 
expelled from sehool or sent to a special day or residential school 
was before the court.



19

layman has small and sometimes no skill in the science 
of law . . . He lacks both the skill and knowledge ade­
quately to prepare his defense, even though he have 
a perfect one. He requires the guiding hand of counsel 
at every step in the proceedings against him. With­
out it, though he be not guilty, he faces the danger of 
conviction because he does not know how to establish 
Ms innocence. I f that be true of men of intelligence, 
how much more true is it of the ignorant and illiter­
ate, or those of feeble intellect.” Powell v. Alabama, 
287 U. S. 45, 68-69 (1932).

It is erroneous to conclude that the language of Powell 
is irrelevant, as did the court of appeals, because school 
suspension hearings do not involve “ cases”  or “ courts.” 
I f a tribunal—no matter what it is called—is able to make 
factual findings, adjudicate issues, and impose serious dis­
abilities then for purposes of aid to the uneducated lay­
man, we have both a “ case” and a “ court.” It is ironic that 
if the City of New York, or any other party, sued the 
Maderas for the smallest sum of money, no one would 
question their right to the assistance of retained counsel. 
New York Const. Art. I § 6.

The poor parents and child who leave the school setting 
and come to the bureaucratic headquarters downtown for 
a hearing are faced with a formidable array of authorities 
and experts, who know each other, speak well, are at ease 
in the hearing room, and who proceed to determine what 
is in their view best for the child’s future on the basis 
of what is alleged to have been his conduct in the past, 
A rule excluding lawyers, while allowing all others, is not 
only arbitrary, capricious, and irrational in its classifica­



20

tion, but prevents parents and children from having the 
assistance of members of a profession especially well suited 
for dealing with this type of hearing. Lawyers have a 
special skill in being able to devise satisfactory resolu­
tions when many competing values and interests are at 
stake—a skill which school officials concerned with the best 
welfare of a child should welcome.

The concern of the court of appeals that the mere presence 
of a lawyer in their midst would be destructive of the pur­
poses of the hearing is ill-founded. Due process does not 
require a full scale judicial hearing. A lawyer at such 
hearings would be limited by reasonable rules established 
by the school authorities. But within this framework, the 
lawyer has a valuable contribution to make—certainly as 
much as the parents’ social worker, priest, or other adviser, 
all of whom could have been present at the Madera hearing, 
while their lawyer would be barred. Should an attorney 
stray outside this framework, he would be subject to the 
same reasonable controls that the board could exercise over 
other types of advisers.

The opinion of the court of appeals denigrates the role 
of the lawyer. Not only does it unjustifiably elevate the 
effectiveness of the social worker over that of an attorney, 
but it suggests that a lawyer in this situation would be 
little more than a “ destructive”  pettifogger—quick with 
quibbles and legal niceties to clog the machinery of the 
hearing, but with little positive contribution to make. On 
the contrary, an attorney has the best interest of the child, 
his client, at heart— as much as do school officials. He is 
trained to seek creative ways to resolve the problems at 
hand, maximizing alternatives and offering suggestions that 
might not have occurred to the school authorities, but which



21

would be acceptable to all involved. This lias been the ex­
perience of attorneys in other parts of New York State 
where there is no bar to attorney participation in school 
hearings, as was reported by an amicus curiae brief filed 
in the court of appeals by the Nassau County Legal Ser­
vices Corporation, another O.E.O. Legal Services office 
which regularly represented children before school boards.

The mere presence of a lawyer would at the same time 
provide an assurance of regularity and fairness in the pro­
ceedings. The superintendent of schools in his affidavit filed 
with the answer to the complaint in this action expressed 
his opposition to the presence of an attorney as follows:

“ The attorney might assert that the improper acts of the 
pupil did not occur, or that the nature of the act has 
been exaggerated, or he might seek to establish ex­
tenuating circumstances.” 21

I f  appropriate and valid, all of these things an attorney 
might and should do. Objections to an attorney’s presence 
cannot fairly be bottomed upon such considerations for 
the hearing officials are under an obligation to hear the 
child’s version of the events and anything he has to say 
by way of explanation. The board’s practice of assuming 
the correctness of the accumulation of reported incidents 
on the child’s anecdotal record, see, 386 F. 2d at 788, does 
not “ evince a high regard for the best interest and welfare 
of the child” 386 F. 2d at 789. If this evidence is impor­
tant for the decision in the child’s case, it should be sub­
jected, within reasonable limits, to examination, criticism, 
and refutation. There is no irrebuttable presumption of 
accuracy attached to staff reports. Cf., Kent v. United

21 Affidavit of Bernard E. Donovan, Superintendent of Schools.



22

States, 383 U. S. 541, 563 (1966); Hannah v. Larche, 363 
U. S. 420, 489 (1960).

The authorities relied upon by the court of appeals do 
not support denial of counsel to petitioners. In re Groban, 
352 U. S. 330 (1957) and Anonymous v. Baker, 360 U. S. 
287 (1959) are inapposite. Groban, a 5-4 decision, held that 
a state could constitutionally deny a witness a right to 
counsel at an investigatory hearing. Application of this 
holding to the instant case is highly dubious since (1) the 
Maderas are not witnesses, but principals and (2) this is 
an adjudicatory, not an investigative hearing. Further­
more, the pillars which supported Groban have been re­
moved for the objection to exclusion of counsel was that it 
impaired the privilege against self-incrimination. At the 
time the privilege was not protected against state action 
by the due process clause, Malloy v. Hogan, 378 U. S. 1 
(1964).22

The court of appeals mistakenly read Dixon, v. Alabama 
Hoard of Education, 294 F. 2d 150 (5th Cir. 1961), cert, 
denied, 368 U. S. 930 (1961), as supporting the exclusion of 
attorneys at a school expulsion hearing. Dixon discussed 
the procedural rights deemed necessary in such hearings

22 Nor should the draft board cases, United States v. Sturgis, 342 
F. 2d 328 (3rd Cir. 1965) ; Niznik v. United States, 173 F. 2d 328 
(6th Cir. 1949); United States v. Pitt, 144 F. 2d 169 (3rd Cir. 
1944), cited by the court of appeals, 386 F'. 2d at 787, be in any­
way dispositive of the issues in this ease. This Court has never 
passed upon the constitutionality of the Selective Service rule 
excluding counsel at draft board hearings. What is more, these 
hearings do not involve conduct that is cognizable in the criminal 
or juvenile courts or determinations that result in any immediate 
deprivation. Significantly, the Selective Service System provides 
registrants with legal advisors who, although they deal principally 
with appeals, are generally charged with assisting the registrant 
in the protection of his rights. Selective Service Regulation 1604.71 
(d). There is no such analogue in the New York City school sys­
tem.



23

but was silent on the question of the presence of counsel. 
It was concerned mainly with the issues of notice and the 
right to be heard. There is nothing in Dixon standards to 
indicate that a student exercising his right to be heard, 
would be barred from the assistance of an attorney of his 
own choosing at the hearing.23

We emphasize that to permit a lawyer under a rule that 
permits all other manner of advisors to be present and 
participate at the hearing at the District level is not to re­
quire one in all instances. The burden on the board of 
education of allowing a person to appear by counsel when 
one is available is nil. I f denied the assistance of a neigh­
borhood lawyer, however, the Maderas of our cities are at 
a serious disadvantage before administrative bodies. The 
New York City board of education regulation barring only 
attorneys from District school suspension hearings where 
valuable rights are in jeopardy is an arbitrary rule which 
prejudices the right to be heard guaranteed by the Due 
Process Clause of the Fourteenth Amendment.

23 The Second Circuit Court of Appeals has itself recognized that 
the presence of counsel “as an ingredient of fairness is a function 
of all other aspects of the hearing”—including the maturity and 
education of the individual involved. Wasson v. Trowbridge, 382 
F. 2d 807, 812 (2d Cir. 1967).



24

CONCLUSION

For the above reasons, the petition for writ of cer­
tiorari should be granted.

Respectfully submitted,

H arold R othwax 
R obert Sugerman 
Sue A nn Shay

65 East 7th Street 
New York, New York

J ack Greenberg 
James N. Nabrit, III 
Michael Meltsner 
Leroy D. Clark

10 Columbus Circle 
New York, New York

Attorneys for Petitioners



A P P E N D I C E S



la

APPENDIX A

UNITED STATES COURT OF APPEALS 

F or the Second Circuit

No. 502— September Term, 1966.

(Argued June 8, 1967 Decided December 6, 1967.)

Docket No. 31346

V ictor Madera, R amiro Madera and 
Manuela Madera,

Plaintiff s-Appellees,
— against—

B oard of E ducation of the City of New Y ork, B ernard 
E. D onovan, as Superintendent of Schools of the City 
of New York, T heresa S. R akow, as District Superin­
tendent for District One in the City of New York,

Defendants-Appellants. 
----------*----------

B e f o r e  :
Moore, F riendly and A nderson,

Circuit Judges.
______ fy____ __

Appeal from an order entered on April 11, 1967, in the 
United States District Court for the Southern District of 
New York, Constance Baker Motley, Judge, enjoining ap­
pellants from conducting a District Superintendent’s Guid­
ance Conference to consider the situation of a child sus­
pended for disciplinary reasons without affording the child 
and his parents the right to be represented by legal counsel.



2a

Opinion reported, 267 F. Supp. 356 (S. D. N. Y. 1967). 
Judgment reversed; injunction vacated and complaint dis­
missed.

J ohn J. L oflin, Office of the Corporation Coun­
sel, City of New York (J. Lee Rankin, Cor­
poration Counsel, and Luis M. Neco, of 
counsel), for defendants-appellants.

R obert Sugarman, New York, N. Y. (Harold 
J. Rothwax and Sue Ann Shay, New York, 
N. Y., on the brief), for plaintiffs-appellees.

David I. A she, R obert Carter, W illiam Chis­
holm, K enneth W . Greenawalt, David 
Haber, Herbert A. H eerwagen, R hoda H. 
K arpatkin, W hitman K napp, R ichard L. 
Levinson, L eah Marks, Stephen M. Nag- 
ler, B urt Neuborne, Gregory J. P errin, 
Carl R achlin, George Schiffer, W illiam 
A. W hite, and R ay H. W illiams, New York, 
N. Y. (Rhoda Karpatkin, Leah Marks, Carl 
Rachlin, Stephen M. Nagler, of counsel), 
for American Jewish Congress, New York 
Metropolitan Council, et al., as amici curiae.

John DeW itt Gregory, Mineola, N. Y. (Allen 
Redlich, Syosset, N. Y., of counsel), for
Nassau County Law Services Committee, 
Inc., as amicus curiae.

Lubell and Lubell, New York, N. Y. (Jonathan 
W. Lubell and Stephen L. Fine, New York, 
N. Y., of counsel), for New York City Chap­
ter of the National Lawyers Guild as amicus
curiae.



3a

R obert P rojansky, New York, N. Y., for Harlem 
Social Workers’ Action Committee as ami­
cus curiae.

V ladeck, E lias, F rastkle, V ladeck & L ewis, 
New York, N. Y. (Max H. Frankie, Everett 
E. Lewis, and Zachary Wellman, Newr York, 
N. Y., of counsel), for Council of Super­
visory Associations as amicus curiae.

----------* ----------

Moore, Circuit Judge:

On February 2, 1967, plaintiff, Victor Madera, was a 
14-year-old student in the seventh grade in Junior High 
School No. 22, District No. 1 of the New York City public 
school system. On that date, after a period of more than 
a year of behavioral difficulties, Victor was suspended from 
school by the principal. Victor’s principal notified the 
District Superintendent of District No. 1, Miss Theresa 
Rakow, of the suspension. Miss Rakow notified Victor’s 
parents, requesting their presence at a Guidance Confer­
ence to be held in her office on February 17, 1967, with 
regard to Victor’s suspension.

After Victor’s parents received the notice, they sought 
the aid of legal counsel who wrote to Miss Rakow asking 
to appear on behalf of Mr. and Mrs. Madera and their son 
at the conference. Miss Rakow’s office advised the attorney 
that he could not attend the conference. General Circular 
No. 16 (1965-1966), promulgated by the Board of Educa­
tion of the City of New York and the Superintendent of 
Schools, provides:

“ Inasmuch as this is a guidance conference for the pur­
pose of providing an opportunity for parents, teachers, 
counselors, supervisors, et al., to plan educationally



4a
for the benefit of the child, attorneys seeking to rep­
resent the parent or child may not participate”  (page 
5).

On February 16, 1967, the Maderas sought and obtained 
a temporary restraining order from the district court, re­
straining appellants:

“ From holding any proceeding at which the plaintiffs 
may be affected and, particularly, from conducting 
the ‘Assistant Superintendent’s Hearing’ scheduled 
for February 17, 1967, without permitting plaintiffs’ 
legal counsel to be present and to perform his tasks 
as an attorney.”

After a trial, the district court issued a permanent in­
junction and held that “ the right to a hearing as a due 
process requirement [is] of such constitutional signifi­
cance as to void application of defendants’ ‘no attorneys 
provision’ to the District Superintendent’s Guidance Con­
ferences.” 267 F. Supp. at 373. Defendants, the Board of 
Education, have appealed the issuance of that injunction. 
Pending the decision of the appeal, this Court on May 1, 
1967, granted a stay.

At the very outset it should be made clear what this 
case does not involve. First, the Guidance Conference is 
not a criminal proceeding; thus, the counsel provision of 
the Sixth Amendment and the cases thereunder are in­
applicable. Second, there is no showing that any attempt 
is ever made to use any statement at the Conference in 
any subsequent criminal proceeding. The record is to the 
contrary (186-87),1 and the district court so found, 267

The numbers refer to pages of the stenographer’s minutes of the 
trial.



5a

F. Supp. at 372. Therefore, there is no need for counsel 
to protect the child in his Fifth Amendment privilege 
against self-incrimination.

The issue is one of procedural “ due process” in its 
general sense, free from the “ specifics” of the Fifth and 
Sixth Amendments. What constitutes due process under 
any given set of circumstances must depend upon the na­
ture of the proceeding involved and the rights that may 
possibly be affected by that proceeding. Cafeteria and 
Restaurant Workers Union v. McElroy, 367 U. S. 886, 895 
(1961). Thus, it will be necessary to describe the nature 
and purpose of the District Superintendent’s Guidance 
Conference in some detail.

Article XI, Section 1 of the New York Constitution 
states that “ the legislature shall provide for the mainte­
nance and support of a system of free common schools, 
wherein all the children of this state may be educated.” 
In New York, a person over five and under twenty-one is 
“ entitled” to attend the free public schools in the school 
district or city in which he resides. §3202(1), New York 
Education Law. Attendance at school is a statutory re­
quirement for minors between the ages of seven and six­
teen. §3205(1), Education Law.

The suspension of a pupil who is insubordinate or dis­
orderly or who endangers the safety or morals of himself 
or other minors, is authorized by section 3214(6) of the 
Education Law.2 There are two kinds of suspensions, the * 1 2

2 Section 3214-6 provides:
6. Suspension of a minor, a. The school authorities, the super­

intendent of schools, or district superintendent of schools may suspend 
the following minors from required attendance upon instruction:

(1) A minor who is insubordinate or disorderly;
(2) A minor whose physical or mental condition endangers the 

health, safety, or morals of himself or of other minors;
( continued on follow in g  page )



6a

“ principal suspense” (meaning by the “ principal” of a 
school) and the “ administrative suspense.” Under the 
principal suspense the school principal has the authority 
to suspend the child from classes for a period of no more 
than five days. Generally, the principal tries to meet with 
the parents of the child to try to solve the problem before 
the suspension, but sometimes the situation requires an 
immediate suspension with a later conference before the 
child is returned to school. Normally, a principal sus­
pense does not require any consideration by the District 
Superintendent (168-170).

If the principal feels that a simple suspension will not 
solve the problem., he may suspend the child and refer 
the suspension to the District Superintendent. This is 
what is referred to as an “ administrative suspense,” a 
suspense which remains in effect pending an adminis­
trative decision. Section 3214(6) (b) vests the responsi­
bility for dealing with the suspended child with the Dis­
trict Superintendent. There is no statutory requirement 
that a parent be granted a hearing prior to invoking this 
power. Cosme v. Board of Education, 50 Misc. 2d 344, 
270 N. T. S. 2d 231 (1966), affirmed without opinion, 
27 App. Div. 2d 905 (1st Dept. 1967). Section 3214-5(a) 
requires only that a hearing be held prior to sending a 
child to a special day school or to confinement. However, 3

(3) A minor who, as determined in accordance with the provisions 
of part one of this article, is feebleminded to the extent that he 
cannot benefit from instruction.

b. Procedure after suspension. In the case of a minor who is 
suspended as insubordinate or disorderly, immediate steps shall be 
taken for his commitment as provided in this section, or for his 
attendance upon instruction elsewhere; in the case of a minor 
suspended for other cause, the suspension may be revoked whenever 
it appears to be for the best interest of the school and the minor 
to do so.



7a

pursuant to procedure promulgated by the Board of Edu­
cation of the City of New York and the Superintendent 
of Schools and distributed in General Circular No. 16, 
hearings, or “ Guidance Conferences,” relating to the sus­
pension are held in all cases. The principal, after suspend­
ing the student, notifies the parents that a conference will 
be held and the District Superintendent’s office notifies 
them of the date of the conference.

In attendance at the Guidance Conference are the child 
and his parents, the principal, the guidance counselor of 
the suspended child’s school, the District Superintendent, 
her assistant, the guidance counselor assigned to her office, 
and the school-court coordinator assigned to the district. 
If the parents do not speak English, they may bring an 
interpreter with them or one will be provided. In addi­
tion to his parents, the suspended child may have a rep­
resentative from any social agency to whom the family 
may be known, attend the Guidance Conference. Students 
and their parents have never been represented at any of 
these Conferences by counsel (184-85).

The function of the school-court coordinator is to pro­
vide a liaison between the Family Court and the schools. 
He interprets to the court “ the program and facilities” 
of the school and he “ interprets to the school the deci­
sions of the court and the recommendations of the courts” 
(171). In some cases the Family Court may make use of 
the District Superintendent’s decision at the Guidance Con­
ference, and when requested to do so by the court, it is 
the school-court coordinator who takes this information 
to the court. In such a case, the court would receive only 
the school record of the child containing the fact that the 
child had been suspended and some notation as to where 
he had been transferred or where he had been placed



8a

after the suspense (355-56). Apparently as a matter of 
convenience, the school-court coordinator will also take 
notes at the Guidance Conference (180). However, it is 
clear that no statements made during such a preliminary 
conference could be admitted into evidence at any adju­
dicatory hearing before the Family Court. Section 334 
of the Family Court Act provides that “ No statement 
made during a preliminary conference may be admitted 
into evidence at an adjudicatory hearing under this act 
or in a criminal court at any time prior to conviction.” 3 

The District Superintendent’s guidance counselor co­
ordinates the activities of the District Superintendent’s 
office with the Bureau of Child Guidance. The guidance 
counselor takes notes and keeps records of the Guidance 
Conference. When the ehild returns from suspension, the 
guidance counselor helps to place him in the proper school 
situation (172).

At the Guidance Conference it is made clear to the 
parents and the child that it is not intended to be puni­
tive, but it is, rather, an effort to solve his school prob­
lems. Each one present, including the child if he is old 
enough, is asked what he thinks should be done and con­
tributes to the discussion. Sometimes either the parents 
or the child will be asked to step outside for a moment so 
that one might discuss problems that would be difficult 
to discuss in front of the other (173-74).

“ The sole purpose of the conference is to study the 
facts and circumstances surrounding the temporary 
suspension of this student by his school principal, and 
to place the child in a more productive educational

3 Parenthetically, it may be noted that in the Family Court where a 
charge of juvenile delinquency was made by a teacher, Victor was 
represented by counsel, a right given by section 728 of the New York 
Family Court Act.



situation. At these conferences the assistant super­
intendent interviews the child, his parents and school 
personnel to learn the cause of the child’s behavior. 
The conference is conducted in an atmosphere of 
understanding and cooperation, in a joint effort in­
volving the parent, the school, guidance personnel and 
community and religious agencies. There is never 
any element of the punitive, but rather an emphasis 
on finding a solution to the problem.

“ After full and careful study and discussion a plan 
is formulated to deal more adequately with the prob­
lems presented by the child. Every effort is bent 
towards the maintenance of a guidance approach. The 
emphasis is on returning the child as rapidly as pos­
sible to an educational setting calculated to be most 
useful to him.” 4

At the very beginning of the conference, the District Su­
perintendent’s staff may gather to go over the school rec­
ords and background of the case before the parents and 
child arrive, but the parents are asked what they think 
should be done with the child and “ no decision is made 
until the parent and child have participated” (303).

It is important to note that there are only three things 
that can happen to a student as a direct result of the 
District Superintendent’s conference:

1. The suspended child might be reinstated in the same 
school, in the same or a different class, or

2. The suspended child might be transferred to another 
school of the same level, or

4 Affidavit of Bernard E. Donovan, Superintendent of Schools.



10a

3. The suspended child—but only with the parents’ con­
sent—might be transferred to a special school for socially 
maladjusted children (Gen. Circular No. 16).

Schools for socially maladjusted pupils (formerly known 
as “ 600” schools) were established about eighteen years 
ago. They are schools which are provided with special 
services for rehabilitation of children who are socially 
maladjusted or are problem children. These schools have 
smaller classes, specially trained teachers and special pro­
grams. More money is allocated to them so that they are 
able to provide more equipment and field trips for the 
children (100-101). There is evidence that these schools 
are presently inadequate to meet the needs of the New 
York public school system,5 but no practical alternative 
has been offered for educating the disruptive child (445- 
51). It is undoubtedly true that a certain social stigma 
attaches to being placed in a school for socially malad­
justed children. But this is true of many decisions of 
educational placement, such as, deciding not to promote 
a child or to remove him from a rapid advancement class 
or even the decision to give him a low or failing mark. 
Furthermore, the only schools for socially maladjusted 
children to which the District Superintendent could refer 
a child after a Guidance Conference are those which pro­
vide for attendance during regular school hours as in any 
other school (236). In deciding as to which school to refer 
the child, an effort is made to reduce any stigma by send­
ing him to a school out of the neighborhood if possible 
(246).

Thus, aside from a decision that the child should be 
returned to the school he has been attending, the District

5 Dr. Bernard Mackler, A Report on the “600” Schools: Dilemmas, 
Problems, and Solutions (Plaintiff’s Exhibit 3).



11a

Superintendent is only authorized finally to decide that 
the child he transferred to another school. The most that 
is involved is a change of school assignment. However, 
after the Guidance Conference, the District Superintend­
ent may also:

4. Refer the student’s case to the Bureau of Child 
Guidance or other social agency for study and recommen­
dation, or

5. Refer the case to the Bureau of Attendance for court 
action (Gen. Circular No. 16).

I f the compulsory school attendance law, §3205, Educa­
tion Law, is being violated, it is the responsibility of the 
Bureau of Attendance to take the matter to the Family 
Court. If, after the guidance conference, the District Super­
intendent determines that the child should be enrolled in a 
special school for socially maladjusted children, his par­
ents are told to report to that school with the child. The 
written consent of the parent or person in parental rela­
tion to the child, is necessary before he may be required to 
attend a school for socially maladjusted children. §3214-5 
(a), Education Law. However, if the parents refuse to 
give such consent they may be prosecuted for violation of 
the compulsory education laws. §§3214-5(c)(1), 3212-2(b). 
If the child does not report for admission, the Bureau of 
Attendance is notified and appropriate action is commenced 
in the Family Court.

The Bureau of Child Guidance (BCG) is the “clinical 
arm of the Board of Education. Its employees are social 
workers, psychologists, and psychiatrists” (175). When the 
District Superintendent refers a child to the BCG, it makes 
a study of the child “ as seems indicated to help” the Dis­
trict Superintendent or to advise her “ of what may be



12a

[the] best educational placement” (17G). The BCG has no 
authority to order a particular placement for a child, but 
can only recommend various alternatives to the District 
Superintendent (307-08). What these alternatives are would 
depend on the individual child but, in general, they are the 
following:

1. The child is able to attend school but should be sent 
to a school with a particular kind of program.

2. The child should be sent to a special day school for 
socially maladjusted pupils or a residential institution 
where the Board of Education operates such a school.

3. The child should be instructed at home.

4. The child should be temporarily exempted from school 
while his parents seek institutional help.

5. The child should receive a medical suspension or ex­
emption.

G. The child should be exempt from school (176).

I.

The Fourteenth Amendment prohibits a state from de­
priving “ any person of life, liberty, or property, without 
due process of law.” Thus it has long been clear that 
where a government affects the private interest of an indi­
vidual, it may not proceed arbitrarily, but must observe 
due process of law. Wynehamer v. People, 13 N. Y. 378 
(1856).

“ . . . The liberty mentioned in that amendment 
means not only the right of the citizen to be free from 
the mere physical restraint of his person, as by incar­
ceration, but the term is deemed to embrace the right 
of the citizen to be free in the enjoyment of all his



13a

faculties; to be free to use them in all lawful ways; to 
live and work where he w ill; to earn his livelihood or 
avocation and for that purpose to enter into all con­
tracts which may be proper, necessary and essential to 
his carrying out to a successful conclusion the pur­
poses above mentioned.” Allgeyer v. Louisiana, 165 
U. S. 578, 5 (1897).

It has been held that any action that would effectively 
deny an education must meet with the minimal standards 
of due process.

“ . . .  It requires no argument to demonstrate that 
education is vital and, indeed, basic to civilized society. 
Without sufficient education the plaintiffs would not be 
able to earn an adequate livelihood, to enjoy life to the 
fullest, or to fulfill as completely as possible the duties 
and responsibilities of good citizens.” Dixon v. Ala­
bama State Board of Education, 249 F. 2d 150 (5th 
Cir.), cert, denied, 368 U. S. 930 (1961).

See also Wasson v. Trowbridge, 382 F. 2d 807 (2d Cir. 
1967); Knight v. State Board of Education, 200 F. Supp. 
174 (M. D. Tenn. 1961). These cases, however, involved an 
expulsion from school. The result of the action by the 
educators in an expulsion case would have been the drastic 
and complete termination of the educational experience in 
that particular institution.5 But no case has yet to go so 
far as to hold that various trial type hearing requirements 
apply to such proceedings as in the present case. The 
trial court cites Woods v. Wright, 334 F. 2d 369 (5th Cir. 
1964), for the proposition that “ Arbitrary expulsions and 
suspensions from the public schools are also constitution­

6 The K n igh t case involved an indefinite suspension which was deemed 
the equivalent of an expulsion.



14a

ally repugnant on due process grounds.” 267 F. Supp. at 
373 (emphasis supplied). Although Woods did deal with 
a short suspension, it was an appeal from the refusal of a 
district court to grant a temporary restraining order. The 
court specifically stated that the due process question was 
“ not properly before us for decision.” 334 F. 2d at 374. 
Furthermore the point of Woods was not procedural due 
process but a violation of First Amendment rights. In the 
present case, the child has already been suspended and the 
determination for the District Superintendent’s Guidance 
is how that child may best be returned to the educational 
system. Quite the opposite of the problem in Wasson, 
Dixon, Knight, and Woods, supra.

As noted above, it is the school principal that initially 
issues the administrative suspense. After this preliminary 
suspension, aside from a decision that the child should re­
turn to the school he has been attending, the District Super­
intendent’s Guidance Conference is only authorized finally 
to decide whether or not he should be transferred to an­
other school. At most what is involved would be a change 
of school assignment.

The court below found that “ a ‘Guidance Conference’ 
can ultimately result in loss of personal liberty to a child 
or in a suspension which is the functional equivalent of 
his expulsion from the public schools or in a withdrawal 
of his right to attend the public schools.” 267 F. Supp. at 
369 (emphasis supplied). The difficulty with this holding 
is, of course, the word “ ultimately.” The trial court by a 
series of hypothetical assumptions, in effect, turned a mere 
Guidance Conference relating to Victor’s future educa­
tional welfare into a quasi-criminal adversary proceeding. 
The possibilities of Youth House, the Psychiatrist Division 
of Kings County Hospital or Bellevue Hospital, institution­
alization, or attendance enforcement proceedings were men­



15a

tioned. 267 F. Supp. at 371-72. When, as and if, in the 
future, Victor or his parents find themselves faced with 
charges in the Family Court, there would seem to be ade­
quate safeguards in the law for preservation of their con­
stitutional rights, including the right to counsel. Family 
Court Act §741. At the most, the Guidance Conference is a 
very preliminary investigation, if it can be considered an 
investigation at all. After the conference, aside from a 
school reassignment, if any, a whole series of further 
investigations, hearings and decisions must occur before 
the child is subjected to any of the “ serious consequences” 
which the district court suggested “ flow for the juvenile 
involved in a District Superintendent’s Guidance Confer­
ence.” 267 F. Supp. at 370. The real question is at what 
point along this chain is the full panoply of due process 
safeguards to apply.

“ The demands of due process do not require a hearing, 
at the initial stage or at any particular point or at more 
than one point in an administrative proceeding so 
long as the requisite hearing is held before the final 
order becomes effective. . . . ” Opp Cotton Mills v. 
Administrator, 312 U. S. 126, 152-53 (1941).

While it is arguable that in view of the limited character 
of the action that may be taken, a Guidance Conference 
cannot result in a deprivation of “ liberty” within the 
meaning of the Fourteenth Amendment, the contrary will 
be assumed for present purposes and the question whether 
the due process clause requires the presence of counsel 
at such a conference will be considered forthwith.

II.

If due process is applicable to such a conference, it would 
not follow that the school must permit the presence of



16a

counsel. The “ differing rules of fair play” encompassed 
by the concept of due process “vary according to specific 
factual contexts . . . and differing types of proceedings.” 
Hannah v. Larche, 363 U. S. 420, 442 (1960).

“ The very nature of due process negates any con­
cept of inflexible procedures universally applicable to 
every imaginable situation. . . . ‘ “ [D]ue process,” 
unlike some legal rules, is not a technical conception 
with a fixed content unrelated to time, place and cir­
cumstances.’ It is ‘compounded of history, reason, the 
past course of decisions. . . . ’ Joint Anti-Fascist 
Comm. v. McGrath, 341 U. S. 123, 162-63 (concurring 
opinion).” Cafeteria and Restaurant Workers Union 
v. McElroy, supra at 895.

In Dixon v. Alabama Board of Education, supra, which 
was relied upon heavily by the court below, the Fifth Cir­
cuit Court of Appeals recognized that “ The minimum 
procedural requirements necessary to satisfy due process 
depend upon the circumstances and the interests of the 
parties involved.” 294 F. 2d at 155. The court set forth 
in some detail the due process safeguards it deemed 
necessary in an expulsion proceeding and, significantly, 
those due process requirements did not include the right 
to counsel.

“ For the guidance of the parties in the event of 
further proceedings, we state our views on the nature 
of the notice and hearing required by due process 
prior to expulsion from a state college or university. 
They should, we think, comply with the following 
standards. The notice should contain a statement of 
the specific charges and grounds which, if proven,



17a

would justify expulsion under the regulations of the 
Board of Education. The nature of the hearing should 
vary depending upon the circumstances o f  the par­
ticular case. The case before us requires something 
more than an informal interview with an administra­
tive authority of the college. By its nature, a charge 
of misconduct, as opposed to a failure to meet the 
scholastic standards of the college, depends upon a 
collection of the facts concerning the charged mis­
conduct, easily colored by the point of view of the 
witnesses. In such circumstances, a hearing which 
gives the Board or the administrative authorities of 
the college an opportunity to hear both sides in con­
siderable detail is best suited to protect the rights 
of all involved. This is not to imply that a full-dress 
judicial hearing, with the right to cross-examine wit­
nesses, is required. Such a hearing, with the attending 
publicity and disturbance of college activities, might 
be detrimental to the college’s educational atmosphere 
and impractical to carry out. Nevertheless, the rudi­
ments of an adversary proceeding may be preserved 
without encroaching upon the interests of the col­
lege. In the instant ease, the student should be given 
the names of the witnesses against him and an oral 
or written report on the facts to which each witness 
testifies. He should also be given the opportunity to 
present to the Board, or at least to an administrative 
official of the college, his own defense against the 
charges and to produce either oral testimony or writ­
ten affidavits of witnesses in his behalf. If the hearing 
is not before the Board directly, the results and find­
ings o f the hearing should be presented in a report 
open to the student’s inspection. If these rudimentary 
elements of fair play are followed in a case of mis-



18a

conduct of this particular type, we feel that the require­
ments of due process of law will have been fulfilled.” 
249 F. 2d at 158-59.

Similarly, the court in Knight v. State Board of Educa­
tion, supra, stated that, “ the conclusion appears ines­
capable upon the present record that the rudiments of fair 
play and the requirements of due process vested in the 
plaintiffs the right to be forewarned or advised of the 
charges to be made against them and to be afforded an 
opportunity to present their side of the case before such 
drastic disciplinary action was invoked by the university 
authorities.” 200 F. Supp. at 178. Again there was no 
mention of representation by retained counsel.

The trial court seemed to think that once due process 
requires a hearing, the right to representation by counsel 
follows automatically. In support of this conclusion, it 
cites Powell v. State of Alabama, 287 U. S. 45 (1932).

“ What, then, does a hearing include? Historically and 
in practice, in our own country at least, it has always 
included the right to the aid of counsel when desired 
and provided by the party asserting the right. . . . ” 
at 68.

But Powell was a criminal case heard before a court of 
law. Later in the same paragraph quoted above, Justice 
Sutherland went on to note:

“ . . .  I f in any case, civil or criminal, a state or federal 
court were arbitrarily to refuse to hear a party by 
counsel, employed by and appearing for him, it rea­
sonably may not be doubted that such a refusal would 
be a denial of a hearing, and, therefore, of due proc­
ess in the constitutional sense.” At 69 (emphasis sup­
plied).



19a

The present situation is the polar opposite from the 
criminal trial as depicted, for example, in Gideon v. Wain- 
wright, 372 U. S. 335, 344-45 (1963). There the Court 
stressed the unfairness of a lawyerless defendant being 
opposed by a government lawyer-prosecutor in an adversary 
proceeding where liberty is at stake. Here the District 
Superintendent has no lawyer present, does not regard 
the proceeding as adversary, and the child’s liberty is not 
in peril.

The right to representation by counsel is not an essential 
ingredient to a fair hearing in all types of proceedings.

“ . . . The utmost devotion to one’s profession and the 
fullest recognition of the great role of lawyers in the 
evolution of a free society cannot lead one to erect as 
a constitutional principle that no administrative in­
quiry can be had in camera unless a lawyer be allowed 
to attend.”  In re Groban, 352 U. S. 330, 336 (Frank­
furter, J concurring).

For example, due process is not denied because a person is 
refused the right to be represented by counsel in a hearing 
before a draft board. United States v. Sturgis, 342 F. 2d 
328 (3d Cir. 1965); Niznik v. United States, 173 F. 2d 328 
(6th Cir. 1949); United States v. Pitt, 144 F. 2d 169 (3d 
Cir. 1944).

In In re Groban, 352 U. S. 330 (1957), the Supreme Court 
held that a person had no constitutional right to be assisted 
by retained counsel in giving testimony at an investigatory 
proceeding conducted by a Fire Marshal. There the Court 
stated:

“ It is clear that a defendant in a state criminal trial 
has an unqualified right, under the Due Process Clause, 
to be heard through his own counsel. Chandler v.



20a

Fretag, 284 U. S. 3. Prosecution of an individual 
differs widely from administrative investigation of 
incidents damaging to the economy or dangerous to the 
public. The proceeding before the Fire Marshal was 
not a criminal trial, nor was it an administrative pro­
ceeding that would in any way adjudicate appellants’ 
responsibilities for the fire. It was a proceeding solely 
to elicit facts relating to the causes and circumstances 
of the fire. . . . ” at 332.

“ The fact that appellants were under a legal duty 
to speak and that their testimony might provide a 
basis for criminal charges against them does not mean 
that they had a constitutional right to the assistance 
of their counsel. Appellants here are witnesses from 
whom information was sought as to the cause of the 
fire. A witness before a grand jury cannot insist, as a 
matter of constitutional right, on being represented 
by his counsel, nor can a witness before other investi­
gatory bodies. There is no more reason to allow the 
presence of counsel before a Fire Marshal trying in 
the public interest to determine the cause of a fire. 
Obviously in these situations evidence obtained may 
possibly lay a witness open to criminal charges. When 
such charges are made in a criminal proceeding, he 
then may demand the presence of his counsel for his 
defense. Until then his protection is the privilege 
against self-incrimination. . . . ” at 332-33 (footnotes 
omitted).

Because, after the hearing the Fire Marshal can arrest 
the witness if he believes that there is evidence sufficient 
to charge him with arson or a similar crime (at 338, dis­
senting opinion), Groban would seem to have presented 
even a stronger case for allowing the presence of counsel



21a

than the present ease which does not at all purport to 
investigate possible criminal activity or to prosecute. The 
holding in In re Groban was followed in Anonymous v. 
Baker, 360 U. S. 287 (1959). See also Nason v. Immigration 
and Naturalization Service, 370 F. 2d 865 (2d Cir. 1967), 
where this Court held that a witness was not entitled to 
have a lawyer present at a preliminary interrogation by 
the Immigration and Naturalization Service even where the 
witness might become the object of a deportation proceed­
ing.

Recent Supreme Court decisions concerning procedures 
of the juvenile courts are not to the contrary. Kent v. 
United States, 383 U. S. 541 (1966), involved the referral 
of a youthful offender from the juvenile court to the adult 
criminal court. The Court there stressed the “ tremendous 
consequences” of such a decision and held that before it 
was made, the juvenile was entitled to a hearing and to the 
assistance of counsel. But the “ tremendous consequences” 
to which the Court was referring in that case were “ that 
the child will be taken from the Receiving Home for Chil­
dren and transferred to jail along with adults, and that he 
will be exposed to the possibility of a death sentence in­
stead of treatment for a maximum, . . . until he is 21.” 
383 U. S. at 553-54.

In In re Gault, 387 U. S. 1 (1967), the Supreme Court 
held that due process required that in a proceeding to 
determine delinquency which may result in commitment 
to an institution in which the juvenile’s freedom is cur­
tailed, the child and his parents must be notified of the 
child’s right to be represented by retained counsel, or if 
they are unable to afford counsel, that counsel will be 
appointed to represent the child. However, in writing for 
the majority, Justice Fortas clearly implied that the right



22a

to counsel does not exist at early stages of procedures 
involving juveniles:

“ The Nat’l Crime Comm’n Report recommends that 
‘Juvenile courts should make fullest feasible use of 
preliminary conferences to dispose of cases short of 
adjudication.’ . . . Since this ‘consent decree’ procedure 
would involve neither adjudication of delinquency nor 
institutionalization, nothing we say in this opinion 
should be construed as expressing any views with 
respect to such procedure. The problems of pre- 
adjudication treatment of juveniles, and of post-adjudi­
cation disposition, are unique to the juvenile process; 
hence what we hold in this opinion with regard to the 
procedural requirements at the adjudicatory stage has 
no necessaiy applicability to other steps of the juvenile 
process.” At 31, note 48 (citations omitted).

The Guidance Conference clearly is a preliminary con­
ference, not an adjudication. As said in Cosine v. Board of 
Education, supra, at 232:

“ . . . These hearings are simply interviews or confer­
ences which include school officials and the child’s par­
ents. Further, they are purely administrative in nature, 
and are never punitive. The parents are fully apprised 
of all of the facts and are furnished with copies of all 
information in respondent’s possession.” Cosine v. 
Board of Education, supra, at 232.

What due process may require before a child is expelled 
from public school or is remanded to a custodial school or 
other institution which restricts his freedom to come and 
go as he pleases is not before us.

Appellees here argue that the presence of a lawyer is 
necessary because it is he “ who has the communicative



23a

skill to express the position of the student’s parents when 
—because of lack of education, inarticulateness, or simply 
awe at the array of highly educated and articulate profes­
sionals in whose presence they find themselves—-they may 
themselves be unable to do so, . . . ” (Appellees’ Brief, 
p. 15). However, it does not appear that a lawyer could 
solve this communication problem. Actually the trial rec­
ord supports the view, despite some testimony to the con­
trary (141-49), that the social worker, who is allowed to 
attend the Guidance Conference, would provide more ade­
quate counsel to the child or the parents than would a 
lawyer.

Appellees also argue that the presence of counsel is neces­
sary because the decision of the Guidance Conference de­
pends to a certain degree on the school’s statement of the 
child’s misbehavior and that this statement may be incor­
rect. In the present case there were eleven incidents of 
misbehavior reported by seven different teachers. The mere 
attendance of counsel at the conference would do little to 
aid this problem without also granting the other rights ac­
corded in adversary proceedings—calling of witnesses, 
cross-examinations, etc. To do so would be destructive of 
the original purpose of the Guidance Conference— to pro­
vide for the future education of the child. The conference 
is not a judicial or even a quasi-judicial hearing. Neither 
the child nor his parents are being accused. In saying that 
the provision against the presence of an attorney for the 
pupil in a District Superintendent’s Guidance Conference 
“ results in depriving plaintiffs of their constitutionally 
protected right to a hearing” (267 F. Supp. at 373), the 
trial court misconceives the function of the conference and 
the role which the participants therein play with respect 
to the education and the welfare of the child. Law and 
order in the classroom should be the responsibility of our



24a

respective educational systems. The courts should not 
usurp this function and turn disciplinary problems, involv­
ing suspension, into criminal adversary proceedings— 
which they definitely are not. The rules, regulations, pro­
cedures and practices disclosed on this record evince a high 
regard for the best interest and welfare of the child. The 
courts would do well to recognize this.

III.

While it is most doubtful that there is any basis in law 
or fact for considering Victor Madera and his parents to 
be representatives of, and champions for, a class, a ruling 
on this point becomes unnecessary in view of the decision 
that the complaint must be dismissed for failure to state a 
claim on which relief can be granted.

Judgment reversed; injunction vacated and complaint 
dismissed.



25a

APPENDIX B

Opinion No. 33404

(543-600)

UNITED STATES DISTRICT COURT

Southern D istrict of New Y ork 

67 Civ. 635
Appearances:

H arold J. R othwax, Esq. By: R obert Sugarman, 
Esq., and Sue A nn Shay, Esq., 65 East 7th Street, 
New York, New York. Attorneys for Plaintiffs.

J. T R anki n, Esq., Corporation Counsel of the City 
of New York. By: P eter J. F lanagan, Esq., Munici­
pal Building, New York, New York 10007. Attorneys 
for Defendants.

Constance Baker Motley, D. J.

F indings of F act and Conclusions of L aw

The minor plaintiff, Victor Madera, is a 14 year old 
pupil enrolled in Public School 22, a junior high school 
in the New York City public school system. On February 
2, 1967, Victor was suspended from school by the prin­
cipal. He has been out of school since that date.

After Victor was suspended, the principal of his school 
notified the District Superintendent of District No. 1, Miss 
Theresa Rakow, a defendant in this suit.1 Miss Rakow 
notified Victor’s parents, the adult plaintiffs, that a con­
ference would be held in her office on February 17, 1967 
with regard to Victor’s suspension. The notice advised: 
1) there would be a Spanish speaking person at this con­
ference to translate “ for all of us,”  and 2) a friend could 
be brought to assist the parents in this translation. The 
notice stated: “ You are hereby advised that you are to 
be present at this conference. Please bring (Victor) with



26a

you . . . ”  The letter was in both English and Spanish. 
Victor’s mother speaks Spanish; she does not speak or 
understand English. The principal’s actions and Miss 
Rakow’s actions were taken pursuant to General Circular 
No. 16 (1965-1966).2 This circular embodies the rules and 
regulations promulgated by the other defendants, the Board 
of Education of the City of New York and the Superin­
tendent of Schools, with regard to pupil suspensions.

After Victor’s parents received the notice, they secured 
an attorney who contacted Miss Rakow’s office to notify 
her that the attorney would appear at the February 17 
hearing.3 The attorney was advised that he could not 
attend the hearing. Circular No. 16 provides as follows:

“ Inasmuch as this is a guidance conference for 
the purpose of providing an opportunity for parents, 
teachers, counselors, supervisors, et al., to plan 
educationally for the benefit of the child, attorneys 
seeking to represent the parent or child may not 
participate.”  (Circular No. 16, p. 5.)

On February 16, 1967, at 8:15 P.M., after notice to 
defendants and oral argument, this court issued a tem­
porary restraining order restraining defendants as fol­
lows :

“ From holding any proceedings at which the 
rights of any of the plaintiffs may be affected and, 
particularly, from conducting the ‘ Assistant Su­
perintendent’s Hearing’ scheduled for February 17, 
1967, without permitting plaintiffs’ legal counsel to 
be present and to perform his tasks as an attor­
ney. ’ ’

The incident which precipitated Victor’s suspension on 
February 2 resulted in the filing of a charge of juvenile 
delinquency against him on February 8 by a teacher, an



27a

employee of defendant Board of Education, in the Family 
Court. New York Family Court Act, §§ 712, 733.'*

The same attorneys representing plaintiffs here also 
were retained to represent Victor in the Family Court. 
The New York Family Court Act, § 728, gives Victor the 
right to counsel in a juvenile delinquency proceeding. On 
February 28, the claim that Victor was a juvenile de­
linquent was dismissed by the Family Court. There “ was 
a substitution and a finding that has not been completed, 
a fact-finding that (Victor) is a young person in need of 
supervision. ’ ’ 5

Defendants did not proceed with the February 17 
hearing under the conditions permitted by the temporary 
restraining order. The order also required counsel for 
both sides to appear in court on February 21, at which 
time reargument would he heard on the temporary restrain­
ing order and plaintiff’s application for a three-judge 
court.

On February 21, defendants requested and were granted 
a continuance on the ground that all defendants had not 
been served. Defendants agreed to a continuance of the 
temporary restraining order until March 1 at which time, 
if a three-judge court was not required, the court would 
proceed to hear plaintiffs’ motion for preliminary injunc­
tion.

On February 24, plaintiffs filed an amended complaint 
and motion for preliminary injunction. The original com­
plaint predicated jurisdiction wholly upon Title 28, United 
States Code, § 1331. Declaratory relief,6 interlocutory and 
permanent injunctive relief was sought. The original com­
plaint prayed for the convening of a special three-judge 
district court to hear and determine this action. Title 
28, U. S. C., §§ 2281, 2284. The amended complaint also 
prayed for the convening of a three-judge court but in­
voked an additional jurisdictional base for this cause, i.e.,



28a

Title 28, U. S. C., § 1343. The amended complaint relied 
upon the provisions of Title 42, U. S. C., §§ 1981 and 1983 
as the federal statutes giving rise to this cause of ac­
tion.

On March 1, 1966, this court ruled that this cause is 
not properly a cause of action requiring a statutory three- 
judge court. Under constitutional attack here is a pro­
vision of a circular issued by a local school board, not 
the constitutionality of any state statute.7 The “ no at­
torneys provision”  is not mandated by any state law. How­
ever, the circular is promulgated pursuant to authority 
granted by a state statute. New York Education Law, 
§ 2554 (13) (b). Nevertheless, the attack upon the circular 
does not present the type of constitutional challenge to 
state action that would require the convening of a three- 
judge court. The guiding principle for three-judge court 
cases was laid down by the Supreme Court in Phillips 
v. United States, 312 U. S. 246 (1941) as follows:

“ To bring this procedural device into play—to 
dislocate the normal operations of the system of 
lower federal courts and thereafter to come directly 
to this court—requires a suit which seeks to inter­
pose the Constitution against enforcement of a state 
policy, whether such policy is defined in a state 
constitution or in an ordinary statute or through 
the delegated legislation of an ‘ administrative board 
or commission’. The crux of the business is pro­
cedural protection against an improvident state-wide 
doom by a federal court of a state’s legislative pol­
icy”  (at 251).

Consequently, where that which is under attack is not 
mandated by state law but is only a regulation of a local 
school board, adopted on its own volition, and is not of state­
wide application, although authorized by state law, the con­



29a

troversy may be properly adjudicated by a single judge 
court. Griffin v. County School of Prince Edward County, 
Va., 377 U.S. 218 (1964); Sweeney, et al., v. State Board 
of Public Assistance, 26 F. Supp. 171 (M.D. Pa. 1940), a ff’d 
119 F.2d 1023.

When the hearing on plaintiffs’ motion for preliminary 
injunction commenced on March 1, defendants moved to 
dismiss the case as moot on the ground that the Family 
Court proceeding had already taken place. One of plain­
tiffs ’ claims on their application for a temporary restrain­
ing order was that counsel should be permitted at the 
February 17 Guidance Conference because the facts ad­
duced from Victor there could be used against him in 
the subsequently scheduled Family Court hearing on the 
juvenile delinquency charge where Victor’s personal lib­
erty would be in jeopardy. Family Court Act,  ̂744.8 
Plaintiffs also claimed that the February 17 Guidance Con­
ference might result in forcing adult plaintiffs to choose 
between signing a ‘ ‘ consent ’ ’, required by law, which would 
enable the school authorities to make whatever school or 
other institutional placement they deemed desirable for 
Victor, or face neglect charges in Family Court for failure 
to sign the “ consent” . New York Education Law, §■§ 3205,® 
3212-1, 2b,10 3214,11 New York Family Court Act, §§ 312,12 
332,13 335,14 337.15

Plaintiffs’ constitutional contentions with respect to the 
foregoing claims are: 1) the “ no attorneys provision”  
of Circular No. 16 deprives them of protection for their 
right against self incrimination, right to counsel and right 
to due process guaranteed by the Fifth, Sixth and Four­
teenth Amendments to the Constitution of the United 
States, since any statements made by them in, or as a part 
of, the Guidance Conference may be used against them 
in subsequent Family Court proceedings, where Victor’s 
personal liberty will be in jeopardy and 2) the minor



30a

plaintiff’s right not to testify against himself must be pre­
served because one of the consequences of a Guidance 
Conference may also be loss of personal liberty. Cir­
cular No. 16, p. 5.

As indicated above, the Family Court proceeding against 
Victor had not been completed on March 1. Moreover, 
it was clear to this court that plaintiffs’ claims in this 
action were not limited to the foregoing described claims. 
In addition, plaintiffs claim that as a result of a Guidance 
Conference, Victor may be suspended from school for an 
indefinite period of time, placed in a school for socially 
maladjusted chidlren (formerly known as “ 600”  schools), 
involuntarily incarcerated in an institution, or referred to 
the Family Court for appropriate action. (Amended Com­
plaint, para. 15).

Plaintiffs’ constitutional contention with respect to these 
claims are that since the above enumerated irreparable 
consequences can flow from a Guidance Conference, the “ no 
attorneys provision”  of Circular No. 16 may result in 
Victor being denied his right to attend the public schools 
granted him by the Constitution and Education Law of 
the State of New York, without due process of law guar­
anteed by the Fourteenth Amendment.16

After considering the gravity of plaintiffs’ constitu­
tional claims, and the fact that the Family Court proceed­
ing had not been concluded, this court ruled on the March 
1 hearing that plaintiffs’ case is not moot.

Defendants ’ counsel then moved to dismiss on the ground 
that plaintiffs had abandoned their attack on the constitu­
tionality of certain provisions of the New York Education 
Law and were now proceeding under the Civil Rights Law 
which plaintiffs had not previously invoked. Defendants’ 
counsel was mistaken in this belief. Plaintiffs in amending 
their complaint rely on a Federal Civil Rights Statute, i.e., 
Title 42, U. S. C., § 1983.17 This statute gives plaintiffs



31a

the right to bring this action for injunction to enjoin 
defendants who, plaintiffs claim, acting under color of state 
law, are unconstitutionally enforcing the “ no attorneys pro­
vision”  of Circular No. 16 against plaintiffs. Such state 
action, plaintiffs maintain, violates their rights guaranteed 
by the Fifth, Sixth and Fourteenth Amendments to the 
Constitution of the United States. This court has juris­
diction of such an action. Monroe v. Pape, 365 U. S. 167 
(1961); Taylor v. Board of Education of City of New 
Rochelle, 294 F.2d 36 (2d Cir. 1961) cert, denied  ̂ 368 U. S. 
940; Title 28, U. S. C., §1343(3).18

Defendants have questioned the propriety of a federal 
court determining the issues raised in this case on the 
ground that this is a matter preferably handled by the 
state. However appropriate such considerations of state 
as opposed to federal relief may be in some cases, it does 
not appear that this is a proper case for the court to refrain 
from acting. It is now a well settled principle that relief 
under the Federal Civil Rights Acts may not be defeated 
because relief was not first sought under state law which 
provided a remedy. Monroe v. Pape, supra. The whole 
purpose of the Federal Civil Rights Acts would he seri­
ously undermined if a federal claim in a federal court 
must await an attempt to vindicate the very same claim 
in a state court. McNeese v. Board of Education, 373 U. S. 
668 (1963). Where the terms of the state (local school 
board) provision under attack are clear, there is no basis 
for abstention to require plaintiffs to exhaust either state 
administrative or judicial remedies. Rivers v. Royster, 
360 F.2d 592 (4th Cir. 1966). As another federal court 
said in a school case involving suspensions and expul­
sions, Woods v. Wright, 334 F.2d 369 (5th Cir. 1964) at 
374-375:

“ We are fully aware of the reluctance with which 
the Federal Courts should contemplate the use of the



32a

injunctive power to interfere with the conduct of 
state officers. But when there is a deprivation of a 
constitutionally guaranteed right the duty to exercise 
the power cannot be avoided.’ '

Upon the hearing of plaintiffs’ motion for preliminary 
injunction and upon the trial, which were consolidated, 
the following facts were established in addition to those 
set forth above: 19

There are 1,084,818 pupils in the New York City public 
school system, 20.9% of whom are Puerto Rican, 29.3% 
are Negro, and 49.8% are white.

School District No. 1 is located in Manhattan, one of 
the five boroughs (counties) which comprise the City of New 
York. The District boundaries, generally speaking, are 
from Grand Street north to 21st and 23rd Streets and from 
the Bowery and Fourth Avenue to the East River. The 
area thus described is commonly referred to as the Lower 
East Side. It is a racially mixed area but predominantly 
Puerto Rican. It is a community of low income families 
in the main. There are 28,000 pupils in the District in a 
total of twenty-three schools. There are 14 elementary 
schools, 4 junior high schools, 2 special schools for socially 
maladjusted children, and 3 high schools in District No. 1.

District Superintendent Rakow, in addition to having 
responsibility for the supervision of the educational pro­
gram of the District, conducts hearings relating to the 
suspension of students, as required by New York Education 
Law,  ̂3214. Miss Rakow and the other school authorities 
choose to refer to these hearings as “ Guidance Confer­
ences.”  These conferences are conducted in cases where 
a student has been suspended by the principal. Once a 
principal has suspended a child and so notified the parents 
and Miss Rakow, it is Miss Rakow’s duty to hold a “ Guid­
ance Conference,”  “ to determine,”  to use her words,



33a

“ what next educational step may be taken to help the child. ’ ’ 
There are two kinds of principal’s suspensions. There is 
what is called a “ principal suspense which means that the 
principal merely suspends the child from school service 
until such a time as he personally can confer with the parent 
and try to make the adjustment directly in the school.”  
In such a case, the principal is limited to keeping the child 
from school and for no more than five days. The principal 
generally meets with a parent before a suspension to try to 
adjust the problem. However, if there is some emergency 
where there is not time to meet with the parent, a principal 
might suspend immediately. After a principal’s confer­
ence with the parent, the child is returned to school. A 
child does not normally go to the District Superintendent’s 
office immediately after the principal’s suspension as was 
the case with Victor. I f  after the pupil has returned to 
school there continues to be a problem which the principal 
feels he cannot handle, then the principal can suspend the 
pupil and refer that suspension to the District Superinten­
dent. There is no evidence that Victor had been thus 
previously suspended by the principal.

When a suspended pupil is referred to the District 
Superintendent this is known as an “ administrative sus­
pense.”  There is no hearing held by the principal before 
an “ administrative suspense”  takes place. When the Dis­
trict Superintendent receives a copy of a letter from the 
principal to the parents stating that the child has been 
suspended, the District Superintendent notifies the parent 
of the date of hearing. The principal’s letter advises the 
parents that they will be so notified.

When a conference is held in the District Superintend­
ent’s office, she invites the principal of the suspended 
child’s school and the guidance counselor of that school. 
The members of the District Superintendent’s staff who 
attend are: her assistant, the guidance counselor assigned 
to her office, and the school-court coordinator assigned 
to the district. The Bureau of Attendance, an arm of the



34a

Board of Education, which, enforces the state’s compulsory- 
school attendance law is also notified of the conference.

The function of the school-court coordinator is to pro­
vide liaison between the Family Court and the schools. The 
school-court coordinator interprets to the court “ the pro­
gram and facilities”  of the school; “ he conversely inter­
prets to the school the decisions of the court and the 
recommendations of the court;”  the school-court coordin­
ator “ acts as a sort of clearing house, so that all agencies 
may work together . . . ; ”  the school-court coordinator 
also, at the request of the court, gives to it the decision 
made by the District Superintendent at the Guidance Con­
ference. The court may make use of the District Super­
intendent’s decision at the dispositional hearing. New 
York Family Court Act, §§ 345, 346. The school-court 
coordinator also takes notes at the conference.

The guidance counselor on the District Superintendent’s 
staff has the responsibility for “ following up on children 
who have been suspended, to make sure that they are 
adjusting properly, to make sure that recommendations are 
carried out.”  (Emphasis added.) The guidance counselor 
works with the Bureau of Child Guidance, (BCG) “ so that 
if [the District Superintendent] has asked for a study and 
a recommendation for a child,”  she can work with the 
BCG “ to expedite the receiving of that study as soon as 
possible.”  The guidance counselor also takes notes at 
the Guidance Conferences and keeps all records. When 
children return from suspension, the guidance counselor 
helps to place them in the best possible school situation.

The suspended child may have a representative from 
any social agency, to whom the family may be known, to 
attend a suspension hearing in the District Superintend­
ent’s office.

At the conference, all school personnel present sit 
around a table in Miss Rakow’s office and discuss the 
child’s anecdotal record, supplied by the principal, and



35a

the child’s problems. Usually the parents and the child 
wait outside until a decision is reached. The parents and 
child are then brought in and asked if  they have anything 
to say as to what should be done with the child. I f  the 
child is old enough, he is asked to express an opinion. If 
a representative of a social agency is present, he or she 
contributes to the discussion. The decision is then given 
to the child and his parents.

The decisions which the District Superintendent may 
reach are the following:

1. The suspended child might be reinstated in the same 
school.

2. The suspended child might be transfered to another 
school of the same level, e.g., a junior high school child to 
another junior high school.

3. The suspended child might be transferred to a spe­
cial school for socially maladjusted children; there are two 
in District No. 1.

4. The District Superintendent may refer the stu­
dent’s case to the Bureau of Child Guidance (BCG) or 
other social agency for study and recommendations, in­
cluding medical suspension, home instruction, or exemption;

5. The District Superintendent may refer the case to 
the Bureau of Attendance for court action.

The BCG is the clinical arm of the Board of Education. 
Its employees are social workers, psychologists and psy­
chiatrists. When the District Superintendent refers a child 
to the BCG, it makes a study of the child “ as seems indi­
cated to help”  the District Superintendent or to advise 
her ‘ ‘ of what may be best educational placement. ’ ’

The BCG may make one of the following recommenda­
tions :

1. The child is able to attend school but should be 
sent to a school with a particular kind of program.



36a

2. The child should be sent to a special day school 
for socially maladjusted pupils or a residential institution 
where defendant Board of Education operates such a school.

3. The child should be instructed at home.
4. The child should be temporarily exempted from 

school while his parents seek institutional help.

5. The child should receive a medical suspension or 
exemption.

6. The child should be exempt from school.
I f  the child has not been attending school or has been 

attending irregularly, the child may be referred by the 
District Superintendent to the Bureau of Attendance. If 
the compulsory school attendance law is not being obeyed, 
it is the responsibility of the Bureau of Attendance to 
take the matter to the Family Court where the pupil may 
then be sent to an institution.

In administrative suspense matters it is the general 
practice of the District Superintendent’s office to notify 
the Bureau of Attendance of a Guidance Conference. The 
Bureau sends an attendance teacher to the home of the 
child to notify the parents of the suspense conference and 
request their appearance at the arranged time.

When, after a Guidance Conference, the District Su­
perintendent decides that a child should be in a special 
day school for socially maladjusted children, the parents 
are notified by letter to report to the school with the 
child. In other words, the cooperation and consent of 
the parents is thus sought in placing a child in a special 
day school for socially maladjusted pupils. I f  the child 
and his parents do not report for admission and at­
tendance, the principal of the special school notifies the 
Bureau of Attendance. The Bureau of Attendance then 
petitions the Family Court to take appropriate action. The



37a

defendant Board of Education maintains and operates 17 
such special day schools throughout New York City.20

When there is a decision by the BCG and the District 
Superintendent that a student should receive his schooling 
in a residential institution where the defendant Board of 
Education operates a special school for socially malad­
justed children, again parental consent is first sought. The 
guidance counselor in the District Superintendent’s office 
contacts the parents and advises them that in the opinion 
of the BCG, the school authorities and in the opinion of 
any other interested social agency that happens to be in­
volved, this child should be institutionalized for an ex­
tended period of time.

I f  the parents “ voluntarily”  accept the recommenda­
tion, steps are then taken for the placement of the child. 
I f the parents do not consent, then the Bureau of At-, 
tendance petitions the Family Court to place the child 
in an institution. The defendant Board of Education does 
not operate the residential institutions, per se, but the 
Board does operate schools in more than 30 such resi­
dential institutions, remand centers, psychiatric hospitals 
and treatment centers.21

Consequences of D istrict Superintendent’s Conference

Schools for socially maladjusted pupils (formerly known 
as “ 600”  schools because of their numerical designation) 
were established about eighteen years ago. In 1964, there 
were 27 of these schools with 14 annexes serving a pupil 
population of about 5,200. Fourteen of the 27 schools in 
1964 were day schools serving about 2,000 pupils from 
10 to 18 years of age. The remaining schools were located 
in hospitals, treatment and remand centers, and residential 
institutions. Of the 14 days schools, only one served girls. 
The other 13 served boys “ whose alleged common char­
acteristics included repeated disrupted and aggressive be­
havior.”  The “ 600”  schools located in hospitals, treat­
ment and remand centers and residential institutions are



38a

staffed by defendant Board of Education personnel. These 
institutions are not owned or operated by the defendant 
Board. The “ 600”  schools are not schools for children 
with retarded mental development; these children are as­
signed to special classes known as classes for children 
with retarded mental development (CRMD). Children with 
high I.Q. may be assigned to “ 600”  schools. The fore­
going facts are contained in plaintiffs’ exhibit 3, entitled, 
“ A  Report on the ‘ 600’ Schools: Dilemmas, Problems, and 
Solutions”  prepared by Dr. Bernard Mackler from a study 
made by him for the defendant Board. Dr. Mackler’s re­
port will soon be published. He testified for plaintiffs 
on the trial of this case. His testimony was substantially 
the same as the material contained in his report. Dr. 
Mackler’s chief recommendation is that the “ 600”  schools 
be abolished. His indictment of this relatively new sys­
tem of school within the New York public school system 
reads as follows:

“ The present ‘ 600’ school program attempts to 
protect regular teachers and students from undue 
or damaging disruption, and to provide a therapeutic 
milieu for the disturbed child. But this program is, 
however worthwhile, ethnically segregated,22 incon­
veniently located, undersupported, organizationally 
unstable, and unable to meet the needs of its student 
body”  23 (pp. 4-5).

If the BCG should recommend that the child be placed 
in an institution, every possible assistance is given a co­
operative parent by the District Superintendent to help 
the parent secure a place in an institution. However, 
there is a serious problem with respect to a recommendation 
for institutional placement. The available facilities are 
severely limited. This means that such placements take 
time. While the child is awaiting placement in an insti­



39a

tution, the BCG may make one of the following recom­
mendations: 1) That the child be given home instruction 
“ if possible” ; 2) That the child be suspended pending 
institutional placement; 3) That the child be exempted 
from school while he awaits institutional placement. Finally, 
the District Superintendent testified: “ if it isn’t taking too 
long, the child remains on suspense”  pending institutional 
placement. (Emphasis added.)

I f  a parent is reluctant or uncooperative or refuses 
to follow the recommendation of the BCG that the child 
be placed in an institution, the District Superintendent 
refers the matter to the Bureau of Attendance which then 
petitions the Family Court. New York Education Law, 
§ 3214.

The statute relevant to suspensions of pupils and their 
placement in institutions is New York Education Law, 
§ 3214.24 By the terms of § 3214, defendant school authori­
ties have the power to suspend a pupil after notice and 
a hearing, and power to order him to attend a special 
school (“ 600”  school) or “ to attend upon instruction under 
confinement at a parental school or elsewhere.”  The de­
fendant Board does not maintain parental schools. De­
fendants, under the statute, may make an agreement for 
the confinement, maintenance and instruction of a pupil 
“ with any private school, orphans’ home, or similar insti­
tution controlled by persons of the same religious faith as 
that o f ”  Victor “ or with the school authorities of another 
city or district, or with other public agencies.’ ’ (Emphasis 
added.) Such confinement may be for a period up to two 
years. §3214-5. The defendants cannot, by the statute’s 
decree, order a pupil to attend a special school or to attend 
school upon confinement without the “ consent”  of his 
parents. However, the statute says, if his parents refuse 
to “ consent”  in writing, they “ shall”  be proceeded against 
for violating their statutory duty to see to the pupil’s



40a

attendance at school. I f  the parents are proceeded against, 
a summons or warrant may issue for their appearance in 
the Family Court.25 Such proceeding may result in the 
minor plaintiff being sent to an institution for an indefinite 
period of time.26 If it is found that a pupil’s parents have 
not violated their duty, then, under the statute, the pupil 
may be proceeded against for violating his duty to at­
tend.

Statistical records produced by Miss Rakow (for her 
district only) for attendance periods covering the years 
1965 and 1966 and the first month of 1967, show the fol­
lowing :27

1. During 1965, some pupils awaited placement in a 
school for socially maladjusted pupils after being suspended 
for as long as 4-6 months.

2. During 1966, some pupils awaited placement in a 
school for socially maladjusted pupils after being suspended 
for as long as 3 months.

3. At the end of January 1967, 3 pupils were awaiting 
placement in a school for socially maladjusted pupils. One 
was in his third month of suspension.

4. During 1965, some students awaited placement in an 
institution and were on suspension from 4-6 months.

5. During 1966, some students awaited placement in 
an institution on suspension from 7-10 months.

6. On January 4, 1967, the records show, one student 
on suspension from 7-8 months was awaiting institutional 
placement.

7. On January 4, 1967, the records show, one student 
was returned to his original school upon being in his 
second month of suspension and one student was trans­
ferred to another school (not a school for socially malad­



41a

justed students) upon being on suspension for a period 
of 7-8 months.

8. In 1965, one student was returned to his original 
school after an elapse of 9-10 months on suspension.

Exemption is defined by Circular No. 16 “ as the with­
drawal of a child’s right to attend a public school.”  The 
Circular does not describe the circumstances under which 
the withdrawal of this right may take effect. The Cir­
cular merely says that, “ Authority to exempt from re­
quired school attendance is reserved to the Superintendent 
of Schools”  (p. 6, ftn 2). However, as stated above, the 
BCG can recommend exemption. These recommendations 
are invariably accepted. One clear instance in which an 
exemption may be recommended is for medical reasons 
(physical or mental) as determined by BCG. An instance 
revealed by the records of suspended students is the case 
of a 15 year old student with a history of behavior prob­
lems and emotional difficulty who was exempted from re­
quired attendance at public school. There is no definite 
indication as to what extent this exemption was “ medi­
cally”  based. How frequently this device is used with 
juveniles who have behavior problems and are approaching 
the voluntary school leaving age of 16 is not ascertainable 
since the court reviewed only the records of recent sus­
pensions in School District No. 1 and not of the entire 
New York City school system.

As a result of a review of the testimony, exhibits and 
records produced by the District Superintendent, this court 
finds that a “ Guidance Conference”  can ultimately result 
in loss of personal liberty to a child or in a suspension 
which is the functional equivalent of his expulsion from 
the public schools or in a withdrawal of his right to attend 
the public schools.

This court also finds that as a result of a “ Guidance 
Conference” , adult plaintiffs may be in jeopardy of being



42a

proceeded against in a child neglect proceeding in the 
Family Court.

For the foregoing reasons, this court concludes that 
the due process clause of the Fourteenth Amendment to 
the Federal Constitution is applicable to a District Su­
perintendent’s Guidance Conference. More specifically, this 
court concludes that enforcement by defendants of the “ no 
attorneys provision”  of Circular No. 16 deprives plain­
tiffs of their right to a hearing in a state initiated pro­
ceeding which puts in jeopardy the minor plaintiff’s lib­
erty and right to attend the public schools.

D ue P rocess and the R ight to a H earing

One of the basic constitutional components of a hearing 
was described more than three decades ago by the United 
States Supreme Court:

“ What, then, does a hearing include? Histori­
cally and in practice, in our own country at least, 
it has always included the right to the aid of counsel 
when desired and provided by the party asserting 
the right. The right to be heard would be, in many 
cases, of little avail if it did not comprehend the 
right to be heard by counsel. Even the intelligent 
and educated layman has small and sometimes no 
skill in the science of law. I f  charged with crime, 
he is incapable, generally, of determining for himself 
whether the indictment is good or bad. He is un­
familiar with the rules of evidence. Left without 
the aid of counsel he may be put on trial without 
a proper charge, and convicted upon incompetent 
evidence, or evidence irrelevant to the issue or other­
wise inadmissible. He lacks both the skill and knowl­
edge adequately to prepare his defense, even though 
he have a perfect one. He requires the guiding hand



43a

of counsel at every step in the proceeding against 
him. Without it, though he be not guilty, he faces 
the danger of conviction because he does not know 
how to establish his innocence. I f  that be true of 
men of intelligence, how much more true is it of 
the ignorant and illiterate, or those of feeble in­
tellect. I f  in any case, civil or criminal, a state 
or federal court were arbitrarily to refuse to hear 
a party by counsel, employed by and appearing for 
him, it reasonably may not be doubted that such a 
refusal would be a denial of a hearihg, and, therefore, 
of due process in the constitutional sense. (Emphasis 
added.) ” Powell v. Alabama, 287 U.S. 45, 68-69 (1932).

And when does due process require a hearing?

“ Whenever a governmental body so as to injure 
an individual, the Constitution requires that the act 
be consonant with due process of law. The minimum 
procedural requirements necessary to satisfy due 
process depends upon the circumstances and the in­
terests of the parties involved.”  Dixon v. Alabama 
State Board of Education, 294 F.2d 150 (5th Cir. 
1961) at 155, cert, denied, 368 U.S. 930.

As Mr. Justice Frankfurter’s concurring opinion in 
Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 
123 (1951) at 163 indicated, the question of whether the 
procedure to which plaintiffs here will be subjected duly 
observes

“  ‘ the rudiments of fair play’ . . . cannot . . .  be 
tested by mere generalities or sentiments abstractly 
appealing. The precise nature of the interest that 
has been adversely affected, the manner in which this 
was done, the reasons for doing it, the available al­
ternatives to the procedure that was followed, the



44a

protection implicit in the office of the functionary 
whose conduct is challenged, the balance of hurt 
complained of and good accomplished—these are 
some of the considerations that must enter into ju­
dicial judgment.”

Serious consequences flow for the juvenile involved 
in a District Superintendent’s Guidance Conference—in 
many cases without opportunity for subsequent court hear­
ing in which the right to counsel would be present. Pro­
ceedings which involve the loss o f liberty and the loss of 
education are of ‘ ‘ critical importance”  both to the persons 
involved and to our system of justice. Any such proceed­
ing must meet federal constitutional standards of fairness. 
In the recent case of Kent v. United States, 383 U.S. 541 
(1966), which involved procedures for referral of a youthful 
offender from the juvenile court to the adult criminal court, 
the Supreme Court etched in language not to be misunder­
stood what fairness entails in areas of critical importance 
when dealing with juveniles:

“ We do not consider whether, on the merits, 
Kent should have been transferred; but there is no 
place in our system of law for reaching a result of 
such tremendous consequences without ceremony - 
without hearing, without effective assistance of 
counsel, without a statement of reasons. It is in­
conceivable that a court of justice dealing with adults, 
with respect to a similar issue, would proceed in 
this manner. It would be extraordinary if society’s 
special concern for children . . . permitted this pro­
cedure. We hold that it does not.”  Id. at 554.

“ The right to representation by counsel is not a 
formality. It is not a grudging gesture to a ritualistic 
requirement. It is of the essence of justice . . . ”  
Id. at 561.



45a

It was not clear whether the holding in Kent, supra, was 
on statutory or constitutional grounds, but a recent de­
cision, following Kent has held that the standard laid 
down in that case is of constitutional dimensions, Brown v. 
New Jersey, 35 U. S. L. Week 2553 (Mar. 9, 1967) which 
is also the view of this court.

The Constitution of the State of New York mandates that 
the legislature provide free public schools for the education 
of all the children of the state. Art. XI, § 1. In New 
York, a person over five and under twenty-one is “ entitled”  
to attend the free public schools in the district or city in 
which such person resides. New York Education Law, 
§ 3202-1.

To a minor child in New York, the right to a public 
school education is of monumental value; it will produce 
great benefits for him in both tangible and intangible terms 
in later life. In addition, the education of each child is of 
paramount importance to us as a nation. A democracy can 
have no more precious resource than its citizenry. As the 
United States Supreme Court has observed:

‘ ‘ Today, education is perhaps the most important 
function of state and local governments. Com­
pulsory school attendance laws and the great ex­
penditures for education both demonstrate our 
recognition of the importance of education to our 
democratic society. It is required in the perform­
ance of our most basic public responsibilities, even 
service in the armed forces. It is the very founda­
tion of good citizenship. Today it is a principal 
instrument in awakening the child to cultured values, 
in preparing him for later professional training, 
and in helping him to adjust normally to his en­
vironment. In these days, it is doubtful that any 
child may reasonably be expected to succeed in life



46a

if he is denied the opportunity of an education.”  
Brown v. Board of Education, 347 U. S. 483, 493 
(1954).

The valuable right to a public school education which 
New York has made available to all children of the state 
should not be invaded or denied an individual child with­
out the proper safeguards of procedural fairness. New 
York has recognized a similar obligation in disciplinary 
proceedings for state employees, Fusco v. Moses, 304 N.Y. 
424 (1952) and in revocation of state licenses proceedings, 
Hecht v. Monaghan, 307 N.Y. 461 (1954). How can obliga­
tions of procedural fairness be any the less applicable when 
a child’s education is at stake? See, Reich, “ The New 
Property” , 73 Yale L. J. 733 (1964).

Neither here nor in our discussion below will we con­
cern ourselves with the principal’s suspension discussed in 
Circular No. 16. Those suspensions involve a maximum 
of five days and their consequences are not nearly as far 
reaching as those of the District Superintendent’s Guid­
ance Conference.

Legal E ffect of Consequences of D istrict 
Superintendent’s Conference

A s the evidence and the applicable statutes disclose, 
the consequences of a Guidance Conference can be very 
serious for both the minor child involved and his parents. 
According to Circular No. 16 and the testimony, not only 
can the District Superintendent decide to reinstate a pupil 
in his original school or transfer him to a different school 
but can also place the pupil in a special school for “ socially 
maladjusted children” . It cannot be doubted that a certain 
stigma attaches to the designation “ socially maladjusted 
child”  and to placement in such a special school. Circular



47a

No. 16 says: “ A  suspended pupil who is subsequently
remanded to Youth House or to the Psychiatrist Division 
of Kings County Hospital or Bellevue Hospital is auto­
matically placed on the register of the school for socially 
maladjusted children . . . ”  (p. 6, ftn 3). However, bene- 
ficient the motives of the school authorities in protecting 
the interest of the child, the fact remains, as Dr. Mackler 
testified, that the decision is stigmatizing and one of great 
psychological consequence to the child. This state created 
stigma is imposed by the decisions coming out of the Guid­
ance Conference—decisions which the evidence discloses 
are essentially ex parte determinations.

In addition to commitment to a special school for so­
cially maladjusted pupils, the District Superintendent may 
refer the pupil to the BCG for study and recommendations. 
These recommendations may include: attendance at a school 
for socially maladjusted pupils, medical suspension, home 
instruction, exemption from school attendance or tempor­
ary exemption from school while the parents seek institu­
tional help.

Pending the BCG’s recommendations, the District 
Superintendent may continue a pupil on suspension. The 
evidence reveals that some pupils may be out of school a 
whole year, or its equivalent, i.e., 7-10 months, awaiting in­
stitutional placement. Even in the case of pupils trans­
ferred to another school, (other than a school for the socially 
maladjusted) the suspension can be as long as 7-8 months. 
Such prolonged suspension, as opposed to the minor dis­
ciplinary 5-day principal’s suspension, must have very 
serious educational consequences for the child involved. 
Not only may extended suspension greatly damage a child 
in his opportunity for education, but in some cases it may 
be the functional equivalent of an expulsion from the public 
schools. For a child who has been forced to be out of 
school eight months and who while so suspended passes



48a

the school leaving age, the incentive to return to school 
under the heavy educational handicap which such a long 
suspension obviously inflicts, must he very small indeed.

Moreover, the BCG can recommend that the child be 
exempted from school. I f  such a recommendation is ap­
proved by the defendant Superintendent of Schools, en­
forcement of such a recommendation may operate as a 
sophisticated expulsion.

I f  the BCG recommends that a suspended child be 
placed in a school for socially maladjusted children or an 
institution either for mental health or other reasons, that 
recommendation is carried out by the guidance counselor 
assigned to the District Superintendent’s office and the 
Bureau of Attendance. The parents are contacted by the 
guidance counselor or the Bureau of Attendance and the 
parents consent to such institutional placement is secured. 
There is the requirement of parental “ consent”  before 
such confinement, but this consent is wholly illusory. Such 
consent can be withheld only on pain of prosecution under 
another state statute for neglect of parental duties. The 
statute on its face calls for such action. New York Edu­
cation Law, §3214-5c(l) and §3212. “ Consent”  given in 
such circumstances cannot be said to carry with it that 
element of voluntariness recognized as “ consent”  in law. 
Cf., Johnson v. Zerbst, 304 IT.S. 458 (1938). The parents 
are presented with “ a choice between the rock and the
whirlpool.”  Cf., Garrity v. New Jersey, ------  IT.S. ------ ,
87 S. Ct. 616 (1967) at 618. The jeopardy that lack of 
consent to their child’s confinement poses for a parent 
after a Guidance Conference further points up the serious­
ness of what is at stake. We are well outside the realm of 
minor ministerial or disciplinary school matters.

The Guidance Conference may result in a referral of 
the suspended child to the Bureau of Attendance for court 
action. Such court action may also result in confinement 
to a state institution for an indefinite period of time.28



49a

Finally, one consequence of a Guidance Conference may 
be that any decision made by the District Superintendent 
may be furnished the Family Court in a subsequent juvenile 
delinquency proceeding when the court considers what dis­
position may be made of the child. Plaintiffs claimed that 
any statements made by them during the Guidance Confer­
ence might be admitted into evidence against them in sub­
sequent Family Court proceedings. However, the admis­
sibility of any statement made during the Guidance Con­
ference as presently conducted is now the subject of con­
siderable doubt. Garrity v. New Jersey, supra; Spevack v.
Klein, ------  U.S. ------  87 S. Ct. 625 (1967); Miranda v.
Arizona, 384 U.S. 436 (1966). In the matter of Gregory W., 
18 N.Y. 2d 55 (1966) the highest court of the State of New 
York held the due process clause of the Fourteenth Amend­
ment applicable to juvenile delinquency proceedings. In 
so holding the New York Court of Appeals said:

“ While the Family Court Act specifically states 
that the proceedings held thereunder are not criminal 
in nature the various provisions made for the pro­
tection of the rights of children who are charged 
with juvenile delinquency are indicative of a legis­
lative recognition of the fact that such proceedings, 
resulting as they do in a loss of personal freedom, 
are at the very least quasi-criminal in nature. As the 
legislative committee report states: ‘ Any commit­
ment—whether ‘ ‘ civil’ ’ or “ criminal” , whether as­
serted^ for “ punitive”  or “ rehabilitative”  pur­
poses—involves a grave interference with personal 
liberty. ’ ”  In the matter of Gregory Ws upr a,  at 62.

Consequently, enforcement of the “ no attorneys pro­
vision”  of Circular No. 16 may deprive plaintiffs of their 
right against self incrimination but this court finds it 
unnecessary to so 'held.



50 a

What is certain however, and what this court now holds 
is that enforcement of the “ no attorneys provision”  at a 
District Superintendent’s Guidance Conference results in 
depriving plaintiffs of their constitutionally protected 
right to a hearing. A  hearing is required by state law be­
fore a child can be committed to “ a special day school, or 
to attend upon instruction under confinement at a parental 
school or elsewhere, . . . for a period not exceeding two 
years . . . ”  New York Education Law, § 3214-5a. How­
ever, the “ no attorneys provision”  of Circular No. 16 
operates to deprive the statutorily decreed hearing of an 
element so essential thereto as to nullify the right to a hear­
ing.

Fundamental fairness dictates that a student cannot 
be expelled from a public educational institution without 
notice and hearing. Dixon v. Alabama State Board of 
Education, 294 F. 2d 150 (5th Cir. 1961) cert, denied 368 
U.S. 930 (College expulsion). This principle has been 
applied to suspension from a state university. Knight v. 
State Board of Education, 200 F. Supp. 174 (M. D. Tenn. 
1961). Arbitrary expulsions and suspensions from the 
public schools are also constitutionally repugnant on due 
process grounds. Woods v. Wright, 334 F. 2d 369 (5th 
Cir. 1964). The need for procedural fairness in the state’s 
dealing with college students’ rights to public education, 
where in many instances students are adults and have 
already attained at least a high school diploma, should be 
no greater than the need for such fairness when one is 
dealing with the expulsion or suspension of juveniles from 
the public schools. Such fairness seems especially required 
when the child involved has yet to acquire even the funda­
mental educational prerequisites that would allow him to go 
on to college. Cf., Woods v. Wright, supra.

When this court considers the totality of the facts and 
circumstances here, the right to a hearing is a due process 
requirement of such constitutional significance as to void 
application of defendants’ “ no attorneys provision”  to 
the District Superintendent’s Guidance Conferences.



51a

Defendants have objected that the presence of an at­
torney would change a “ therapeutic”  conference into an 
adversary proceeding, to the great detriment of any chil­
dren involved. This court does not agree that this is the 
necessary consequence of having an attorney present. This 
court does not by this decision say that a full, judicial 
style hearing with cross-examination of child witnesses 
and strict application of the rules of evidence is required. 
There should he latitude for the Board in conducting such 
a hearing. But this latitude should not be so wide as 
to preclude the child and parents from exercising their 
constitutionally protected right to be represented at such 
a hearing by counsel.

In Miranda v. Arizona, supra, at pp. 479-480, the Su­
preme Court quotes appropriately from Mr. Justice Bran- 
deis:

“ Decency, security and liberty alike demand that 
government officials shall be subjected to the same 
rules of conduct that are commands to the citizen. 
In a government of laws, existence of the govern­
ment will be imperiled if it fails to observe the 
law scrupulously. Our Government is the potent, the 
omnipresent teacher. For good or for ill, it teaches 
the whole people by its example.

Crime is contagious. I f  the Government becomes 
a lawbreaker, it breeds contempt for law; it invites 
every man to become a law unto himself; it invites 
anarchy. To declare that in the administration of the 
criminal law the end justifies the means . . . would 
bring terrible retribution. Against that pernicious 
doctrine this Court should resolutely set its face.”  
Olmstead v. United States, 277 U.S. 438, 485 (1928) 
(dissenting opinion).



52a

Class R elief

The class on behalf of which plaintiffs sue are all 
other children and their parents who are similarly situ­
ated, i.e., pupils who have been or will be suspended 
from school and who have been or will be notified by the 
District Superintendent to attend a Guidance Conference. 
The facts common to each pupil member of the class are: 
1) the fact of suspension pursuant to the rules and regu­
lations of Circular No. 16, and 2) the fact that each faces 
an administrative suspense hearing in the District Super­
intendent’s office. The question of law common to each 
member of the class, both parents and pupils, is whether 
the “ no attorneys provision’ ’ of Circular No. 16 can be 
enforced against them. As the Director of the Bureau 
of Child Guidance testified, most of the pupils involved 
in the administrative suspense are members of “ multi­
problem families” . The expression “ multi-problem fam­
ilies”  appears to be a euphemism for the new aliens in our 
midst—the urban poor.29 An examination of the files of the 
pupils who have been suspended in District No. 1 over 
the past two years illuminates the problems presented to 
the defendant school authorities by the behavior problem 
child and the emotionally disturbed child. These children 
emerge, in the main, from the quagmire of urban poverty 
and the vast social distortions which now infect the inner 
city.80 In the case of the children whose parents are 
recently arrived Puerto Ricans, there is sometimes the 
added problem of lack of “ acculturation” , to use the ex­
pression of the Director of the Bureau of Child Guidance. 
Difficult as the problems thus presented might be, they 
are not a reason for setting aside constitutional guaran­
tees. Cooper v. Aaron, 358 U.S. 1 (1958), Buchanan v. 
Warley, 245 U.S. 60 (1917). For most of these children, 
perhaps, the one state conferred benefit which they have 
of greatest monetary value is the right which has been 
given them by state law to attend the public schools with­



53a

out charge. See, Reich, The Neiv Property, 73 Yale Law 
Journal 733 (1964). This right, of course, is subject to the 
reasonable rules of school discipline, but when those rules 
operate to effectively deny or withdraw the right or to 
deprive a child of his liberty, the due process clause of 
the Fourteenth Amendment requires a hearing, as defined 
above, before such state action can take effect. Dixon v. 
Alabama State Board of Education, supra; Knight v. State 
Board of Education, supra; see Woods v. Wright, supra.

“ It is, of course, quite true that the responsi­
bility for public education is primarily the concern 
of the States, but it is equally true that such re­
sponsibilities, like all other state activity, must be 
exercised consistently with federal constitutional re­
quirements as they apply to state action. ”  Cooper 
v. Aaron, supra, at p. 19.

This court, therefore, holds that enforcement of the 
“ no attorneys provision”  of Circular No. 16 at a District 
Superintendent’s Guidance Conference violates the due 
process clause of the Fourteenth Amendment to the Fed­
eral Constitution in that such enforcement denies plain­
tiffs their right to a hearing by depriving plaintiffs of 
their right to be represented by counsel at such a con­
ference if plaintiffs so desire.

An injunction will, therefore, issue restraining defend­
ants from refusing to proceed immediately with the pre­
viously scheduled District Superintendent’s Guidance Con­
ference and restraining them from enforcing the “ no at­
torneys provision”  of Circular No. 16 (1965-1966) or any 
similar provisions barring the attendance of attorneys at 
such conferences if the attorney is selected by the child 
or his parents as their spokesman.

Dated: New York, New York,
April 10, 1967.

Constance B akek Motley 
United States District Judge



54a

FOOTNOTES
1. The New York City public school system is divided into 30 

districts.
2. This circular is a revision of an earlier circular, Circular No. 

11 (1964-1965) issued February 4, 1965, and attached to the original 
complaint. Circular No. 16 was issued April 18, 1966 and is attached 
to the amended complaint.

3. Plaintiffs secured attorneys from the Legal Services Unit of 
Mobilization for Youth, Inc. Mobilization for Youth (M FY ) is a 
New York membership corporation which has been granted permis­
sion by the Appellate Division of the Supreme Court of New York 
to practice law. MFY receives public and private funds. Some 
of these funds come from the Federal Government (apparently 
anti-poverty funds) via the City of New York. MFY also has a 
Social Service Unit. The evidence upon the hearing of plaintiffs’ 
motion for preliminary injunction disclosed that MFY had an 
“arrangement” in the past with District No. 1 whereby social 
workers employed by the Social Services Unit of MFY were per­
mitted to attend District Superintendents’ hearing regarding sus­
pension of pupils known to the agency and make a report.

4. McKinney’s, Consolidated Laws of New York, Annotated, 
Book 29a-Judiciary-Court Acts, Part I.

5. Statement of plaintiffs’ counsel on hearing of motion for pre­
liminary injunction on March 1, 1967. The court  ̂ in a juvenile 
delinquency proceeding may on its own motion substitute a petition 
to determine whether Victor is a person in need of supervision. New 
York Family Court Act, §§ 716, 731.

6. Title 28, United States Code, §§ 2201 and 2202.
7. See prayer of amended complaint.
8. This section provides :

(a) Only evidence that is competent, material and relevant 
may be admitted in a fact-finding hearing.

(b) Any determination at the conclusion of a fact-finding 
hearing that a respondent did an act or acts must be based 
on a preponderance of the evidence. For this purpose, an 
uncorroborated confession made out of court by a respondent 
is not sufficient.

9. This section provides :
1. a. In each school district of the state each minor from 

seven to sixteen years of age shall attend upon full time day 
instruction.



55a

b. Each minor from seven to sixteen years of age on an 
Indian reservation, other than an Indian child, shall attend 
upon full time day instruction.

2. Exceptions, a. A  minor who has completed a four- 
year high school course of study shall not be subject to the 
provisions of part one of this article in respect to required 
attendance upon instruction.

b. A minor for whom application for a full-time employ­
ment certificate has been made and who is eligible therefor 
may, though unemployed, be permitted to attend part time 
school not less than twenty hours per week instead of full 
time school.

3. In each city of the state and in union free school dis­
tricts having a population of more than forty-five hundred 
inhabitants and employing a superintendent of schools, the 
board of education shall have power to require minors from 
sixteen to seventeen years of age who are not employed to 
attend upon full time day instruction.

10. This section provides:
1. Definition. As used in this article, a person in parental 

relation to a minor shall include his father or mother, by birth 
or adoption, his step-father or step-mother, his legally ap­
pointed guardian, or his custodian. A person shall be re­
garded as the custodian of a minor if he has assumed the 
charge and care of the minor because the parents or legally 
appointed guardian of the minor have died, are imprisoned, are 
insane, or have been committed to an institution, or because, 
they have abandoned or deserted the minor or are living out­
side the state or their whereabouts are unknown.

2. Duties of persons in parental relation. Every person 
in parental relation to a minor included by the provisions of 
part one of this article:

*  *  *

b. Shall cause such minor to attend upon instruction as 
hereinbefore required, and to comply with the provisions of 
part one of this article with respect to the employment or 
occupation of minors in any business or service whatever.

11. This section provides:
1. School delinquent. A  minor under seventeen years of 

age, required by any of the provisions of part one of this 
article to attend upon instruction, who is an habitual truant



56a

from such instruction or is irregular in such attendance or 
insubordinate or disorderly during such attendance, is a school 
delinquent.

2. Special day schools. The school authorities of any 
city or school district may establish schools or set apart rooms 
in public school buildings for the instruction of school delin­
quents, and fix the number of days per week and the hours 
per day of required attendance, which shall not be less than 
is required of minors attending the full time day schools.

3. Parental schools. Such authorities may also establish 
parental schools for the confinement, maintenance and instruc­
tion of school delinquents.

4. Agreements for instruction, confinement and mainten­
ance of school delinquents elsewhere. Such school authorities 
may also make agreements for the confinement, maintenance 
and instruction of school delinquents, with any private school, 
orphans’ home, or similar institution controlled by persons of 
the same religious faith as that of the school delinquent or with 
the school authorities of another city or district, or with other 
public agencies.

5. Commitment and parole of a school delinquent.
a. Hearing. After reasonable notice to a school delinquent 

and to the person in parental relation to him and an oppor­
tunity for them to be heard, a public school official, as herein­
after provided, may, with the consent in writing of the person 
in parental relation to the school delinquent, order him to 
attend a special day school, or to attend upon instruction 
under confinement at a parental school or elsewhere, as herein­
before provided, for a period not exceeding two years but in 
no case after the minor reaches the maximum age of required 
attendance upon instruction.

b. Official authorized to commit a school delinquent. The 
following public school officials shall have power to commit 
a school delinquent as hereinbefore provided:

(1) In a school district having a director of the bureau 
of compulsory education, school census and child welfare, such 
director or person authorized by the school authorities to act 
in his absence or disability; or the superintendent of schools.

(2) Elsewhere, school authorities, superintendents of 
schools, or district superintendents of schools.

c. Procedure in courts.



57a

(1) If the person in parental relation to a school delin­
quent refuses to consent in writing to an order that he attend 
a special day school or a parental school, or upon instruction 
under confinement elsewhere, such person shall be proceeded 
against for violating the provisions of section thirty-two 
hundred twelve of this article.

(2) If the court shall find that the person in parental 
relation has not violated the provisions of section thirty-two 
hundred twelve, a proceeding shall be brought against the 
minor for violation of part one of this article.

d. Parole of a school delinquent. The public school 
official authorized to commit a school delinquent by the pro­
visions of this section shall have power to parole any school 
delinquent committed under its provisions.

6. Suspension of a minor, a. The school authorities, 
the superintendent of schools, or district superintendent of 
schools may suspend the following minors from required 
attendance upon instruction:

(1) A minor who is insubordinate or disorderly;
(2) A  minor whose physical or mental condition en­

dangers the health, safety, or morals of himself or of other 
minors;

(3) A minor who, as determined in accordance with the 
provisions of part one of this article, is feeble-minded to the 
extent that he cannot benefit from instruction.

b. Procedure after suspension. In the case of a minor 
who is suspended as insubordinate or disorderly, immediate 
steps shall be taken for his commitment as provided in this 
section, or for his attendance upon instruction elsewhere; in 
the case of a minor suspended for other cause, the suspension 
may be revoked whenever it appears to be for the best interest 
of the school and the minor to do so.

7. Expense, a. The expense attending the commitment 
and costs of maintenance of any school delinquent shall be a 
charge against the city or district where he resides, if such city 
or district employs a superintendent of schools; otherwise it 
shall be a county charge.

b. The school authorities may institute proceedings before 
a court having jurisdiction to determine the liability of a 
person in parental relation to contribute towards the mainten­
ance of a school delinquent under sixteen years of age ordered 
to attend upon instruction under confinement. If the court



58a

shall find the person in parental relation able to contribute 
towards the maintenance of such a minor, it may issue an 
order fixing the amount to be paid weekly.

12. This section provides:
A  “ neglected child’ ' means a male less than sixteen years 

of age or a female less than eighteen years of age.

(a) whose parent or other person legally responsible for 
his care does not adequately supply the child with food, 
clothing, shelter, education, or medical or surgical care, though 
financially able or offered financial means to do so ; or

(b) who suffers or is likely to suffer serious harm from 
the improper guardianship, including lack of moral super­
vision or guidance, of his parents or other person legally 
responsible for his care and requires the aid of the court; or

(c) who has been abandoned or deserted by his parents 
or other person legally responsible for his care.

13. This section provides :
The following persons may originate a proceeding under 

this article:
(a) a parent or other person interested in the child;
(b) a duly authorized agency, association, society or 

institution;
(c) a peace officer;
(d) any person having knowledge or information of a 

nature which convinces him that a child is neglected;
(e) a person on the court’s direction.

14. This section provides :
On the filing of a petition under this article, the court 

may cause a copy of the petition and a summons to be issued, 
requiring the parent or other person legally responsible for 
the child’s care or with whom it is domiciled to appear at the 
court at a time and place to answer the petition. The court 
may also require the person thus summoned to produce the 
child at the time and place named.

15. This section provides:
(a) The court may issue a warrant directing that the 

parent, or other person legally responsible for the child’s care



59a

or with whom he is domiciled to be brought before the 
court, when a petition is filed with the court under this 
article and it appears that

(i) the summons cannot be served; or
(ii) the summoned person has refused to obey the 

summons; or
(iii) the parent or other person legally responsible for the 

child’s care is likely to leave the jurisdiction; or
(iv) a summons, in the court’s opinion, would be in­

effectual.
(b ) When issuing a warrant under this section, the court 

may also direct that the child be brought before the court.
16. New York Constitution. Article XI, § 1, provides:

The legislature shall provide for the maintenance and 
support of a system of free common schools, wherein all the 
children of the state may be educated.

New York Education Law, §3202 (1) provides:
A  person over five and under twenty-one years of age 

is entitled to attend the public schools maintained in the 
district or city in which such person resides without the 
payment of tuition . . .

17. This statute provides :
Every person who, under color of any statute, ordinance, 

regulation, custom, or usage, of any State or Territory, 
subjects, or causes to be subjected, any citizen of the United 
States or other person within the jurisdiction thereof to the 
deprivation of any rights, privileges, or immunities secured 
by the Constitution and laws, shall be liable to the party 
injured in an action at law, suit in equity, or other proper 
proceeding for redress.

18. That jurisdictional statute provides:
The district courts shall have original jurisdiction of any 

civil action authorized by law to be commenced by any 
person:

*  *  *



60a

(3) To redress the deprivation, under color of any State 
law, statute, ordinance, regulation, custom or usage, of any 
right, privilege or immunity secured by the Constitution of 
the United States or by any Act of Congress providing for 
equal rights of citizens or of all persons within the jurisdiction 
of the United States.

19. The complaint was amended to make this a class action.
20. As of April 5, 1967 there were 2,436 students in these 

special day schools. See appendix for a listing of special day 
schools.

21. As of April 5, 1967 there were 643 students receiving New 
York City Board of Education instruction in remand centers, 1,598 
in institutional schools, 774 in psychiatric hospitals and treatment 
centers.

22. According to Dr. Mackler’s definition, a school would be 
ethnically segregated, in 1963, if it had less than 6 per cent or more 
than 30 per cent of Negro students, and/or if it had less than 5 
per cent or more than 17 per cent of Puerto Rican students. Mackler, 
p. 4.

23. This is an account of the situation that obtained in 1963-64. 
However, Dr. Mackler states that what was true then “was true 
for the years immediately in the past and probably true today.” 
Mackler, p. 4.

24. Ftn. 11, supra.
25. New York Family Court Act, §§ 331, 332, 335, 337.
26. Id. §§ 352, 355.
27. According to the records produced by Miss Rakow, court’s 

exhibits 1-19, there were 182 new suspensions during this period.
28. New York Family Court Act, §§ 352, 355.
29. Mackler, A Report on the “600" Schools: Dilemmas, Prob­

lems, and Solutions.
30. Ibid.



61a

A ppendix to Opinion 

Listing of Special Schools *

The abbrevations used in the following listing includes:

P —  Public School;
M — Manhattan;
X  — Bronx;
Q — Queens;
K  — Kings;
R — Richmond.

When there are two numerical designations, the first is 
the one currently in use, the second the number that school 
had under the former system of numbering special schools.



B o a r d  o f  E d u c a t i o n  o f  t h e  C i t y  o f  N e w  Y o r k

L isting of Special Schools

A. Type “ 600”  Day Schools Operated by the Board of Education

School Name or Number Address
School
Years

Livingston P-8-M: iP-621-M
Manhattan P-58-M: P-622-M
Cyrus W. Field P-82-M: P-614-M
Francis Parkman P-91-M: P-624-M
Peter Cooper P-148-M
John Barry P-169-M : P-612-M
Lewis and Clark P-12-X: P-615-X
John Paul Jones P-185-X : P-611-X
Nathaniel Greene P-36-K: P-617-K
Sterling School P-85-K: P-614-K
James Lawrence P-369-K : P-613-K
Jim Thorp P-370-K : P-616-K
Lillian L. Rashids P-371-K : P-615-K
Orville Wright P-4-Q: I ‘-613-Q
Walter Reed P-9-Q : I '-612-Q
Lincoln School P-23-Q: P-634-Q
Robert E. Peary P-75-Q: P-611-Q

29 King Street, ¥. Y. 10014 7-12
490 Hudson St., N. Y. 10014 9-12
113 E. 4th St., N. Y. 10003 5-8
198 Forsyth St., N. Y. 10002 9-11
466 West End Ave., N. Y. 10024 5-9
113 East 87th St., N. Y. 10028 K-9
2555 Tratman Ave., N. Y. 10461 5-9
170 Brown Place, N. Y. 10454 Ungraded
251 Stagg St., Brooklyn 11206 5-9
227 Sterling PL, Brooklyn 11238 9-11
387 State St., Brooklyn 11217 5-9
3001 West 1st St., Brooklyn 11224 5-8
36th St. & 4th Ave., Brooklyn 11232 5-8
39-25 Crescent St., L. I. City 11101 N.Y. 5-9 
58-74 57th St., Maspeth 11378 N. Y. K-9 
138-11 35th Ave., Flushing 11354 N. Y. 5-9 
511 Seneca Ave., Ridgewood 11237 N. Y. 5-9



B. Remand Centers and Annexes

Name or Number of Center 
or Annex

Youth House— Girls 
P-187-X: P-613-X

Annex— Metropolitan Staff Home
Annex— Spofford Ave.
Youth House—Boys 

P-188-X: P-614-X
Annex: Zerega Ave. Camp
Annex: Forest Nbrd. House

Address
Owner, Operator 

or Sponsor

765 Manida St., N. Y. 10459 
Welfare Island, N. Y. 10017 
1221 Spofford Ave., N. Y. 10459

Youth House, Inc. 

Youth House, Inc. 
Youth House, Inc.

1221 Spofford Ave., N. Y. 10459 Youth House, Inc. 
1188 Zerega Ave., N. Y. 10462 Youth House, Inc. 

955 Tinton Ave., N. Y. 10456 Youth House, Inc.



C. In stitu tion a l S ch ools

Name or Number of School 
Children’s Center P-35-M: P-405-M 

Annex Callagy Hall P-408-M 
Villa Loretto P-94-M: P-617-M 
Hillcrest Center P-176-M: P-623-M

Little Flower P-181-M: P-625-M 

Pleasantville Cot. P-182-M: P-620-M 
Mother Cabrini P-202-M: P-406-M 

Edenwald P-186-X: P-612-X 

Rikers Island P-189-X: P-616-X

St. Elizabeth’s P-10-R: P-611-R

St. Joseph’s P-25-R: P-612-R

Address
Owner, Operator 
or Sponsor

1 East 104 St., N.T. 10029 Dept, of Welfare

331 E. 12th St., N.Y. 10003 Dept, of Welfare

Crompond Rd., Peekskill, N.Y. Catholic

165 Haines Rd., Bedford 
Hills, N.Y.

Protestant

P.O. Box 547 Wading River, N.Y. Catholic

Pleasantville, N.Y. Jewish

West Park, N.Y. Catholic

1250 E. 229th St. N.Y. 10466 Jewish

1212 Hazen St. E. Elmhurst 
11370

Dept, of Corrections

Mount Loretto, Staten 
Island 10309

Catholic

Pleasant Plains, Staten 
Island 10309

Catholic



D. Psychiatric Hospitals, Treatment Center 
Annexes and Clusters

Name or Number Address
Bellevue Psy. Hosp. P-106-M: P-618-M 30th St. & 1st Ave., N.Y.

10016

P-203-M (Cluster)

Astor Home
Manhattan School for Emotionally 

Dist. Children

Phoenix School
Beachbrook Nursery

Rhinebeck, N.Y.

12 W. 12th St., N.Y. 10003 

74 St. Marks PI. N.Y. 10003 

2953 Av. X, Brooklyn 11235

Daytop Village 450 Bayview Ave., Prince’s
Bay, S.I.

St. Mary’s-in-the Field Valhalla, N.Y.

P-205-M (Cluster)

Owner, Operator 
or Sponsor

Dept, of Hospitals

Catholic

(Same as name) 

Jewish

(Same, Day Care 
Center)

Same

Protestant

65a



Name or Number Address
Owner, Operator 
or Sponsor

Henry Ittleson Research Cen. 5050 Iselin Ave., Riverdale 
10470

Jewish

Children’s Day Treat. Cen. & School 255 W. 71st St., N.Y. 10023 (Same as name)
Hillside Hospital 75-59 263 St. Glen Oaks 

11004
Jewish and Dept, of 

Hospitals
Jacobi Hospital (Annex) Eastchester Rd., N.Y. 10461 Dept, of Hospitals
N.Y. Psych. Hospital (Annex) 722 W. 168th St., N.Y. 

10032
(Same as name)

Kings County Psch. Hosp. P-368-K: 
P-612-K

606 Wintlirop St., Brooklyn 
11203

Dept, of Hospitals

Childville, Inc. (Annex) 130 Boerum St. Brooklyn 
11206

(Same as name)

Mt. Sinai Hosp. (Annex) 1450 Madison Ave., N.Y. 
10029

Jewish

Pride of Jndea (Annex) 1000 Dumont Ave., Brook­
lyn 11208

Jewish

Lifeline Cen. Child Devlpt. (Annex) 84-74 169th St., Jamaica, 
N.Y. 11432

(Same as name)

66a



Name or Number
League School & Res. Cen. (Annex)

P-224-Q (Cluster)

City Hosp, at Elmhurst

Harlem School for Child Study

Blueberry, Inc.

Ottilie Home for Children

Wayside Home for Girls
Bethlehem Luth. Chldn’s Home 

(Annex)
Temple Israel (Annex)

Address
196 New York Ave., Brook­

lyn 11216

30-45 42nd St., L.I.C. 11103
79-01 Broadway, Elmhurst 

11373
181 W. 135th St., N.Y. 

10030
228 York St. Brooklyn 

11201

85-70 148th St. Jamaica 
11435

Valley Stream, N.Y.

375 Fingerboard Boad, S.I. 
10305

315 Forest Ave., S.I. 10301

Owner, Operator 
or Sponsor

(Same as nam e-day 
care center)

Dept, of Hospital

Dept, of Hospital (day 
care center)

(Same as name)

Protestant

Protestant

Protestant

(Day care center) 
Staten Island Mental 

Health Society



68a

APPENDIX C

BOARD OF EDUCATION OF THE CITY OF 
NEW YORK

Office of the Superintendent of Schools 

General Circular No. 16, 1965-1966

April 18, 1966
To A ll Superintendents, P rincipals,

D irectors and H eads of B ureaus

Ladies and Gentlemen:

P upil Suspension
I. Introduction

This circular revises pupil suspension procedures and 
supersedes all previous circulars and references on the 
subject, such as Chapter 8, Manual of Attendance Proce­
dures for Principals issued by the Bureau of Attendance 
and Chapter 4, Manual of Procedures issued by the Bureau 
of Child Guidance.

The suspension 1 of a pupil required to attend school 
is a serious step. The New York State Education Law 
gives the pupil the right to attend school. The parent 
by State Law has the responsibility for the pupil’s regular 
attendance and orderly behavior while attending school. 
It is also the responsibility of the parent to maintain the 
pupil in proper mental and physical condition. The law 
assumes that the school will accept and instruct all educable 
pupils. For a variety of reasons some pupils cannot 
maintain themselves or be maintained in a classroom setting. 
The school will assume the responsibility to take all neces­
sary steps in the educative process to provide the best 
education for all children limited only by available budget 
and staff.



II. Prevention

The objective is to help children resolve their adjust­
ment problems by all means available. In pursuit of this 
objective the school will assume the responsibility to refer 
pupils and their parents for specialized help.

In matters pertaining to suspension, it is recognized 
that authoritative steps may be necessary but in general 
the approach should be therapeutic rather than punitive.

I f  after all available remedial procedures have been 
applied a pupil remains disruptive or maladjusted to the 
extent that he does not profit from instruction or that 
he prevents other pupils from learning, he must be con­
sidered for removal from the school setting.

Each principal and teacher has a responsibility to 
identify pupils in need of help and to enlist the aid of the 
Board of Education’s pupil personnel services as well as 
the resources available in the community. In addition, the 
principal should have available an adequate record in­
dicating that the pupil was recognized to be in need of extra 
support and that attempts were made with parents to help 
the child. The success or failure of these attempts and other 
pertinent data should be an essential part of the record. 
However, there may be instances when the severity of a 
pupil’s action will necessitate his suspension even though 
there be no previous history of disruptive behavior.

While suspension will remove the pupil from the class­
room, the school will continue to seek help for him during 
the suspension period.

III. Procedures
Since the needs of children and parents differ, several 

procedures have been outlined. Within each procedure a 
stipulated sequence will be followed, but the procedures 
need not be sequential.



70a

A. Principal’s Pre-Suspension Guidance Conference

1. It is the principal’s responsibility to hold a pre­
suspension conference at an early stage to try to resolve the 
problem. Pre-suspension conferences attended by the ap­
propriate personnel should be utilized as a helpful proce­
dure. It is expected that the parent will be included in 
efforts to help the pupil in school adjustment. Under these 
conditions suspension is a step in an educational continuum.

2. The following format of notification to the parent 
to attend the pre-suspension conference should be used: 
(N.B. It is inadvisable to use a mimeographed or other 
duplicated form.)

“ I regret to inform you that it may become necessary 
to suspend your son (daughter) from attending school. You 
are therefore requested to be at a conference in this office at 
the school on (time and date) for the purpose of deciding 
how your child can be helped without a loss in school time. 
Your attendance is needed so that we may all get together 
to help.”

3. This conference should stress the seriousness of 
the problem. Inasmuch as this is a guidance conference 
for the purpose of providing an opportunity for parents, 
teachers, counselors, supervisors, et al, to plan educationally 
for the benefit of the child, attorneys seeking to represent 
the parent or the chid may not participate.

B. Suspension—Principal’s Guidance Conference
As part of the plan to help the pupil adjust to the 

school program, the principal is authorized to take these 
measures:

1. He may suspend a pupil for a period not to exceed 
five (5) School days with immediate telephone notification 
to the District Superintendent.



71a

2. Whenever a pupil under the care of Bureau of Child 
Guidance, or another agency or therapist is to be suspended, 
the principal shall consult with the Bureau of Child 
Guidance, or agency or therapist prior to the suspension. 
Final decision remains with the principal.

3. The principal will remove the pupil from his class 
and keep him under supervision until the close of the 
school day or the arrival of the parent or guardian.

4. The principal will notify the parent of the pupil by 
certified mail, return receipt requested, of the suspension 
of the pupil and will require that the parent confer with 
him in his office within the five school day period. He will 
send a copy of the letter to his District Superintendent.

The following format of notification should be used: 
(N.B. It is inadvisable to use a mimeographed or other 
duplicated form.)

“ I regret that it has become necessary to suspend your 
son (daughter). Please be in my office (time and date) for 
a conference to determine the future steps we may take to­
gether to make possible his return to school. Until further 
notice your child should be kept at home during school 
hours.”

5. The conference will be conducted by the principal 
and it should be as formal as the situation requires. The 
parent or legal guardian should be apprised of the reason 
for suspension, the prior efforts of the school and the need 
for improvement. Parental responsibility should be em­
phasized. The principal may invite such Board of Educa­
tion school personnel as will assist in helping the pupil and 
the parent. Every effort should be made to secure the par­
ent’s attendance. However, if the parent or legal guardian



72a

fails to appear, the guidance conference will be held with­
out him. Inasmuch as this is a guidance conference for the 
purpose of providing an opportunity for parents, teachers, 
counselors, and supervisors, etc. to plan educationally for 
the benefit of the child, attorneys seeking to represent the 
parent or the child may not participate. A permanent rec­
ord of the guidance conference will he maintained by the 
principal.

6. A pupil suspended under these provisions must be 
returned to the school by the principal no later than five 
school days atfer the day of the principal’s suspension 
unless the principal proceeds in accordance with subdivi­
sion C below by instituting a suspension requiring a Dis­
trict Superintendent conference.

7. A pupil suspended by the principal under this section
(B) may not be suspended on m.ore than than two occa­

sions during the school year. These may not he consecu­
tive periods of suspension.

8. At the end of every attendance reporting period of 
the school year, each principal will send to the District 
Superintendent:

(1) The name of each pupil suspended
(2) The reason for the suspension

(3) Date suspended
(4) Date of principal’s hearing

(5) Date of pupil’s return to his class
(6) Number of school days suspended

9. The suspended pupil will remain on the register of 
his school and will be marked absent in the roll book during 
the period of suspension.



73a

C. Suspension—District Superintendent’s Guidance 
Conference

Under this procedure, the principal may suspend a pupil 
for appropriate reasons at any time and must notify the 
district superintendent immediately. If possible consulta­
tion as indicated in B-2 should be held. These steps will be 
followed:

1. The principal will telephone the district superintend­
ent stating the immediate cause for suspension. The prin­
cipal will remove the pupil from his class and keep him 
under supervision until the close of the school day or the 
arrival of a parent or guardian. He will give such parent 
or guardian a copy of the letter of suspension and obtain 
a receipt therefor.

2. If a parent or guardian does not call at the school, the 
principal will notify such parent by certified mail or return 
receipt requested, on the same day. The following format 
of notification should be used:

“ I regret that it has become necessary to sus­
pend your son (daughter) from attending classes in 
a public school until further notice. You will be 
informed by the district superintendent of the time 
and place of the conference which will provide an 
opportunity for a discussion of this matter. During 
the period of suspension your son (daughter) should 
be kept at home during school hours.”

A copy of this letter is to be forwarded to the district 
superintendent.

3. Within five school days after the notice of suspen­
sion, the principal will send to the district superintendent, 
as required by him, copies of a report on the pupil’s acts



74a

of misbehavior in chronological order. This statement will 
also include the time, place and nature of the precipitating 
cause of suspension, the steps taken by the school to help 
the pupil and any information indicating the interest and/ 
or assistance of any Bureau of the Board of Education or 
community agency. The statement will include identifying 
data and the standardized test scores of the pupil. The 
principal or his representative will bring with him to the 
district superintendent’s guidance conference the pupil’s 
official records (cumulative record, health record, test rec­
ord and any other record) after which they will be returned 
to the school files.

4. The district superintendent will arrange for a 
guidance conference to be conducted within 10 school days 
of the date of his receipt of the principal’s notice to the 
parent. The District Superintendent over his name will 
send a notice of the time and place of such conference to 
the parent, school principal and any other appropriate 
personnel he may wish present. In addition, the Bureau 
of Attendance will be responsible for notifying the parent 
to attend the conference. The Bureau will be given at least 
five school days for this notification. Inasmuch as this is 
a guidance conference for the purpose of providing an 
opportunity for parents, teachers, counselors, supervisors, 
et al. to plan educationally for the benefit of the child, 
attorneys seeking to represent the parent or the child may 
not participate.

The guidance conference when conducted by the District 
Superintendent will afford him an opportunity to help in 
the adjustment of the pupil. The parent and the child 
should be helped to understand the seriousness of the 
problem and be encouraged to contribute to the solutions. 
It may be desirable to excuse the child or other persons



75a

from the conference room during parts of the conference. 
Every effort should be made to secure the parent’s attend­
ance. However, if the parent fails to appear, the guidance 
conference may be conducted without him. A  summary of 
the findings and recommendations will be kept by the 
district superintendent.

5. A  decision concerning the disposition of the case 
will be made by the district superintendent at the con­
ference or within five school days following. Notice of this 
decision will be given in writing over the name of the 
District Superintendent to the principal, parent, district 
supervising attendance officer of the attendance district 
concerned and any person or agency the district superin­
tendent wishes to notify.

The district superintendent’s decision may include the 
pupil’s reinstatement, transfer to another school, referral 
for placement in a school for socially maladjusted children, 
referral to the Bureau of Child Guidance or other suitable 
agency for study and recommendations, including medical 
suspension, home instruction, exemption2 or a referral 
to the Bureau of Attendance for court action. In the latter 
instance, school personnel will make themselves available 
for testimony in court.

6. The cases of children who are not placed in school 
following the conference will be reviewed continually by 
the district superintendent in an effort to explore every 
possible resource for the child. I f school placement or 
other appropriate disposition is not possible, the district 
superintendent is empowered to continue the suspension 
until there is available a resource which will allow for the 
adequate and required instruction of the suspended pupil.

7. When a district superintendent decides to return 
a suspended high school pupil to a high school in another 
district, he should either consult with the district superin­



76a

tendent of the other district in order to arrive at a mutually 
acceptable decision or he should refer the case to the High 
School Placement Bureau.

8. The suspended pupil will remain on the register of 
his school and will be marked absent in the roll book begin­
ning with the date of suspension and continuing until he 
is returned to school, transferred or discharged.3 Appro­
priate notation of the suspension will be recorded in the 
roll book and on the pupil’s cumulative record card.

9. A suspended pupil who moves to another school 
district within the City shall be placed immediately upon 
the register of the school serving the new residence and 
suspension shall be continued. All pertinent information 
will be forwarded to the district superintendent of the new 
district. Final disposition of the case will be made by 
the district superintendent of the new district.

10. At the end of each attendance reporting period of 
the school year, the district superintendent will forward 
to the Superintendent of Schools a report on pupil sus­
pensions. (For your information a sample copy is at­
tached.) This report will include:

a. A summary of the district superintendent’s 
suspensions and descriptive data regarding disposi­
tion and status as well as time elapsed since the date 
of suspension. The attached form will be used.

b. The number of principal suspensions and the 
number of days the pupils were out of schools.

11. A  referral to the Bureau of Child Guidance as a 
result of the suspension conference, should be made on the



77a

appropriate Bureau of Child Guidance form to facilitate 
follow-up and record keeping.

Very truly yours,

J ohn B. K ing
Executive Deputy Superintendent of Schools

Enc.

Footnotes

1 Suspension is defined as a temporary cessation of a pupil’s 
school attendance as described herein. New York State Education 
Law authorizes the Superintendent of Schools or the District Superin­
tendent to suspend a pupil. Such authority to suspend is hereby 
delegated by the Superintendent of Schools to the principal.

2 Exemption is defined as the withdrawal of a child’s right to 
attend a public school. Authority to exempt from required school 
attendance is reserved to the Superintendent of Schools.

3 A suspended pupil who is subsequently remanded to Youth 
House or to the Psychiatric Division of Kings County Hospital or 
Bellevue Hospital is automatically placed on the register of the school 
for socially maladjusted children. The original school will indicate 
in its roll book that the pupil is remanded and will mark him present 
for this period. State Aid requires this recording However, the 
school status of the suspended pupil is unchanged. He may no 
return to his original or any other public school without the authoriza­
tion of the district superintendent in whose district the pupil was 
originally suspended.



RECORD PRESS —  N. Y. C. 38