Johnson v. New York State Education Department

PETITIONER:Johnson
RESPONDENT:New York State Education Department
LOCATION:Allegheny County District Court

DOCKET NO.: 71-5685
DECIDED BY: Burger Court (1972-1975)
LOWER COURT: United States Court of Appeals for the Second Circuit

CITATION: 409 US 75 (1972)
ARGUED: Nov 08, 1972
DECIDED: Nov 20, 1972

ADVOCATES:
Carl Jay Nathanson – for petitioners
Joel Lewittes – for respondents

Facts of the case

Question

Audio Transcription for Oral Argument – November 08, 1972 in Johnson v. New York State Education Department

Warren E. Burger:

We’ll hear arguments first in 71-5685, Daisy Johnson against New York State Education Department.

Mr. Nathanson you may proceed.

Carl Jay Nathanson:

Mr. Chief Justice, may it please the Court.

Education has long been a regarded as perhaps the most important function about state and local government.

It’s recognized as fundamental and preservative of the democratic societies.

Education truly prepares the individual for meaning — meaningful participation in society, economically, socially, politically, and intellectually.

New York State like most states in the United States conceived education of such fundamental importance about the individual and society that it compels minors to attend upon compulsory instruction for a period of 10 years.

It’s against this background that the issue presented in this Court must be considered.

New York’s public school system continues to rely extensively upon textbooks as the basic core for their curriculum.

It remains that fundamental tool in the education of all young students of public schools.

The question presented in this Court is whether the Equal Protection Clause of the Fourteenth Amendment forbids New York State from denying indigent school children, textbook essential for the required instruction solely because of the inability of their parents to pay textbook rental fees.

In all but six of New York 756 school districts, the statutory scheme for providing textbooks is twofold.

With respect to students in grades seven to 12, the Education law requires that textbooks be provided free of charge to all students in both the public and the private schools.

With respect to students in grades one to six in the public schools, the legislative scheme provides that the authorized voters of a school district may vote a tax for the purchase and loan of textbooks free of charge to all students in grades one to six.

However, in the absence of such budget approval and such approval of a tax for that purpose, the local school districts are required to either rent or sell textbooks to all children in grade one to six.

In June and July of 1970, the voters of the West Hempstead Public School District defeated a budget and a tax for the purchase of textbooks and the distribution of textbooks free to children in grades one to six.

Consequently, the local school district notified all parents of children in grades one to six that they would have to pay a textbook rental fee as a condition to their children obtaining textbooks.

Warren E. Burger:

Now, what’s the situation today?

Carl Jay Nathanson:

Well, Mr. Chief Justice, in subsequent to the granting of the certiorari in this case, the school district did in fact approve a school budget and a tax for the purchase of textbooks.

Warren E. Burger:

So that all these students’ grades one to six are now receiving books, are they?

Carl Jay Nathanson:

All students in the elementary school are now receiving books.

However, the local school district is under an obligation under New York State law to hold annual budget referendum.

The preceding history of the pattern of voting in this district where six out of seven school budgets have been defeated — the fact that they are — these local school board admits that absent approval of this tax, they are mandated to rent or sell textbook to local — to the students in the district.

I think based upon whether or not this case is moot or presents a justiciable controversy and I will cover that further subsequently in the argument.

Warren E. Burger:

Very well.

Carl Jay Nathanson:

The petitioners in this case are parents of children in the elementary school grades.

They were notified, received letters; the record bears it out prior to the commencement of the school term that no textbook would be provided to children unless their parents pay the textbook rental fee.

Petitioners are also recipients of public assistance in New York State and were unable to pay — were unable to pay the textbook rental fee.

That factor is uncontroverted by the record and there’s no question of indigency.

Harry A. Blackmun:

Isn’t there something in the record however that part of their payments are for educational purposes?

Carl Jay Nathanson:

Yes, the — with respect to that question, New York State in 1971 reduced the level of benefits for public assistance from 100% of need to 90% of need.

At the present time, recipients only receive 90% to what the state has determined to be the minimum need for sustenance.

So there’s no question that even assuming there was a minimal allowance in the budget for education, the very fact that they reduced the budget by that 10% deprives the recipients of any opportunity to purchase the textbooks.

Harry A. Blackmun:

Well then what you’re saying is that the educational increment is used for general support?

Carl Jay Nathanson:

Yes sir, the education increment is used for other items aside from textbooks will be used for purchase of sneakers for gymnasium classes, will be used for purchase of gym suits.

It would cover all items related to educational needs.

Harry A. Blackmun:

What I hear in your argument that is the fact, that this isn’t an educational increment at all despites its being so-called?

Carl Jay Nathanson:

That’s correct.

William H. Rehnquist:

Does the record indicate the type of use that you have just spoken on Mr. Nathanson?

Carl Jay Nathanson:

With respect to how the funds are used?

William H. Rehnquist:

Yes.

Carl Jay Nathanson:

No, there isn’t, but this question was raised before the Court in the Rosado case with respect to the adequacy of the grant.

I have contacted the attorney who argued the case before the court and held the Rosado case.

I was informed by that attorney that the school — the allowance is intended to cover all these other items and not intended to cover textbooks.

William H. Rehnquist:

But that’s not in the record here?

Carl Jay Nathanson:

No, sir.

Prior to the commencement of this action, the petitioners through their attorney contacted the Superintendent Local School District and inquired as to whether or not some alternative method could be utilize to obtain textbooks for these indigent children.

The superintendent of the school district although compassionate with the plight of the children indicated that he was obliged under state law to exact the textbook rental fee as a condition to furnishing textbooks.

The recipients also contacted to the state and local welfare agency and requested an allowance to cover the textbook rental fees.

They were informed that New York State when it went on to the flat grant system, eliminate all special grants and any opportunity to provide for this type of expenditure.

That is born out in the record in the affidavits of the petitioners.

Harry A. Blackmun:

Let me ask you one question.

What in fact happened to the children of your petitioners for this past year, do they ever receive textbooks in someway?

Carl Jay Nathanson:

Yes Justice Blackmun, subsequent in the term five weeks after the commencement of the school term and after the district court dismissed the complaint for legal insufficiency.

The named plaintiff’s children did receive textbooks for the balance of the school term.

They went through five weeks of a school term without textbooks.

Harry A. Blackmun:

May I ask the source of their receipt.

Carl Jay Nathanson:

There was an arrangement entered into between counsel for the local school board and myself whereby the sum of $30 was deposited by me to be held in escrow pending the resolution of the controversy, and the local school board agreed to provide textbook to only the named plaintiff’s children without prejudice to maintaining the class action.

I might point out that the local school board in the matter as it appeared in the lower court conceded that there were in fact other recipients in the school district who were similarly affected by this legislative scheme.

I’ve also attached as an affidavit to the reply brief an affidavit from another recipient who is a member of the class and in the second school term, well again, went without textbooks for substantial period of the school year.

Harry A. Blackmun:

Those years ago, nobody got free textbooks?

Carl Jay Nathanson:

That’s true, in New York State, textbooks — I come from the city, the New York City, textbooks have always been provided free, have always been thought of as a fundamental basic part of the learning process.

Harry A. Blackmun:

This may be in your day, but for an old-timer, not in my day.

Warren E. Burger:

How long since the Constitution of New York provided that all children must be given a free education as a state constitutional plan?

Carl Jay Nathanson:

I’m sorry Mr. Justice.

Warren E. Burger:

How long has the provision for a compulsory state education been in the New York Constitution?

Carl Jay Nathanson:

It goes after more than a hundred years sir.

With respect to the — this action was started as a class action in the District Court on September 16, 1970.

The petition has asserted three basic claims in the District Court, all alleging a denial of equal protection.

The petitioner has only press one claim in this Court and that’s the poverty claim.

Petitioners alleged that textbooks are essential for the education of their children that the failure to provide textbooks by the State has denied an equal education opportunity and it’s further stigmatized then.

With respect to the stigma, the affidavit of one of the petitioners as far as to impress bears upon that.

In her affidavit submitted in the District Court she said, on the first day of school, my daughter asked the teacher for textbooks and was told that she would have to bring money from her mother to obtain textbooks.

My daughter asked me upon her return from school, why some children at her class were given books?

And I told her that the parents of those children were able to pay for the books.

Petitioners also alleged that children being forced to attend school under compulsory education law and then sit in classrooms along beside other classmates whose parents were able to afford textbooks are subjected to further stigmatizing by having a feeling of inferiority and unworthiness engendered upon that that the — that what came clear to this whole thing was an official state view of their worthiness or I should say, unworthiness.

Here, the classification creates two classes of children in grades one to six.

The poor and the non-poor, the non-poor received the full benefits of the States educational program and the poor are barred from receiving those benefits.

William H. Rehnquist:

Well, the statute doesn’t create that classification.

Those classes exist quite apart from the statute, don’t they?

Carl Jay Nathanson:

Yes, but the impact of this textbook rental fee is in fact to deprive those children of equal education opportunity.

The statute may be neutral on its face, but in operation it’s discriminatory.

William H. Rehnquist:

How do you distinguish your case from the general doctrine laid down in Dandridge against Williams?

Carl Jay Nathanson:

I think that this case satisfies the traditional test of Dandridge for the following reasons.

Dandridge said that minimally for a classification of the cut master on the equal protection clause, it’s got to be rationally based and free from invidious discrimination.

I think this classification fails to satisfy those requirements for the following reasons.

First, when considering the overall and considering the rational basis for this legislation, I think we’ve got to look at the overall purpose of education in New York State, which is to provide a system of common schools wherein all the children of the State may be educated. Secondly, I think we have to consider the fact that children are attending school under the compulsion.

When measured against this overriding general purpose of the State, it can hardly be said to be rational to deny poor children — the very basic tools they need to require their learning skills.

William H. Rehnquist:

You’re talking about the classification.

You’re not talking about the distinction between elementary school children and children further along in school than they require?

Carl Jay Nathanson:

No, no.

William H. Rehnquist:

That’s — so, just what is the classification that you’re talking about?

The fact that New York doesn’t give anybody free books from grades one to six?

Carl Jay Nathanson:

The fact that New York State gives — denies and it gives books to those parents who are able to — to children of parents who were able to afford textbooks.

William H. Rehnquist:

Well, it sells them.

Carl Jay Nathanson:

It rents them.

William H. Rehnquist:

Rents them, it doesn’t give them.

Carl Jay Nathanson:

But the impact upon those who don’t have a rental fee is to be denied equal education opportunity.

William H. Rehnquist:

Well, the classification though really is almost non-existent as I would see it.

New York State says to children in the elementary school grade, we will rent you books and that that isn’t a classification in any orthodox of equal protection sense.

Carl Jay Nathanson:

I think the classification falls within those line of cases marked by Griffin.

And I think there is really an old force with the Griffin case.

New York State tells — the courts are right of their education to all students of the State.

Griffin, the court arrived at appellate review.

There’s no constitutional basis for either right, federal constitution basis may be argued.

In Griffin, the statute was neutral on its face, those who could afford the transcript fee attained adequate appellate review.

Those who couldn’t were denied adequate appellate review.

I think it’s parallel to this case.

William H. Rehnquist:

Then you say basically that the rational of Griffin should be carried over from the field of criminal law and to this situation?

Carl Jay Nathanson:

Yes, I don’t think the Griffin rational has been limited by this Court to only criminal law.

I think the rational of the Griffin case carry through in the Hopper case.

I think the underlying rational of that case with extended further in the Boddie case.

I think it’s a continuous application of that principle.

I don’t think this Court has to leave, abandon that rational to find any other basis for deciding this case.

William O. Douglas:

Mr. Nathanson, may I ask if this a case in which the three-judge court should properly have been convened and the Court of Appeals said, it was not, but if it was then, are the merits before us at all?

Carl Jay Nathanson:

Your Honor, the third cause of action did seek declaratory relief.

I think that it’s rest — it kept the resolution in that framework that the court can declare the rights of those —

William O. Douglas:

But I thought these cases were litigated before Judge Travia?

Carl Jay Nathanson:

That’s correct.

William O. Douglas:

And before the Court of Appeals on the issue whether or not a three-judge court should’ve been convened, was it not?

Carl Jay Nathanson:

Yes, sir.

William O. Douglas:

And Judge Travia said, there was not a substantial federal question and the majority — the Court of Appeals agree, isn’t that so?

Carl Jay Nathanson:

That’s correct.

William O. Douglas:

Well, if Judge Travia and the majority of the Court of Appeals were wrong then, shouldn’t the disposition here be that they were wrong and send this back for the convening of the three-judge court to determine the merits?

I don’t see how the merits are here before us at all.

Carl Jay Nathanson:

Well, this Court could properly send the matter back for the three-judge court —

William O. Douglas:

But don’t we have to if it shouldn’t been a three-judge court case in the first instance, we have no jurisdiction to it.

Carl Jay Nathanson:

Except that the Court of Appeals, I think noted that because of the third cause of action which sought declaratory relief that it wasn’t essential to convene a three-judge court if this Court should determine that jurisdiction lied and the belief was appropriate.

The relief could be granted under the declaratory judgment cause of action.

And that view of —

William O. Douglas:

That would have been for a single judge?

Carl Jay Nathanson:

That would have been for single judge.

Warren E. Burger:

But we only reach the merits if we find that it’s — it was properly decided on the three-judge court issue, isn’t that correct?

Carl Jay Nathanson:

That’s correct.

The local school board in the State Department of Education filed neither answer nor affidavit in the District Court.

The local school board filed the answering papers and affidavits and admitted for some very key matters.

First, they admitted that the fees were demanded.

Secondly, they admitted that — admitted that those unable to pay the textbook rental fees were denied textbooks.

Third, they admitted that the fee policy placed a burden upon the educational opportunity of those denied textbooks and that those children were denied equal educational opportunity.

The board further admitted that textbooks in grades one to six are essential for the equality of education of all children.

The District Court dismissed the case finding illegal insufficiency without holding any evidentiary hearing.

There was no opportunity of District Court to either explore the class further or present any further information.

The Court of Appeals again, affirmed the District Court’s dismissal, but nevertheless conceded that education was no doubt an area of fundamental importance that those children who could afford textbooks no doubt received a better education than those who could not, but concluded that the statute was neutral on its face and free from any invidious discrimination.

Warren E. Burger:

What’s the figure on the total cost for one year’s textbooks again?

It’s in the record here somewhere.

Carl Jay Nathanson:

Actually there are two parts of the cost.

We are only pressing the textbook fee.

Warren E. Burger:

Yes.

Carl Jay Nathanson:

Textbook fees were $7.50 per child and addition to the textbook fee there was book — a material fee, a fee for supplies and other related items and that was — that total some $15.

And so, in all of the fee with textbooks and that other item ranged from $15 to $17 per child, but we’re pressing only the claim of the textbooks has being essential to education and that being the item that they would — that being basically protection challenge.

Lewis F. Powell, Jr.:

You ask them and said that some of the school districts in the State of New York do provide free textbooks?

Carl Jay Nathanson:

Yes, Mr. Justice Powell —

Lewis F. Powell, Jr.:

Do they do that as a matter of state law or [Voice Overlap]?

Carl Jay Nathanson:

Yes, the state law distinguishes between some school districts on the basis it applies.

I’m from the New York City, New York City get that from maintaining textbooks. Children always get textbooks free in the City.

Some of the other school districts — it says district which encompass cities are required under the state law to provide textbooks in respect of budget considerations.

Lewis F. Powell, Jr.:

(Inaudible) case, do you claim that that is a classification that violates the Equal Protection Clause namely a classification based on the size of cities within the State of New York?

Carl Jay Nathanson:

We’re not pressing such claims in this case.

This case has confined itself to whether or not the local school district can provide textbooks to those affluent — children with affluent parents who can pay and deny that essential tool of learning to those who are too poor to pay the required fee.

That’s the premise of this case and we confine it to that issue.

Lewis F. Powell, Jr.:

All right.

Well, I have interrupted you, may I ask you this question.

Assuming you are right with respect to school books and I think you’ve make a very strong argument as you are on that point, how far would carry the logic of the your opposition?

Would you carry it to free transportation, to free lunches, to providing adequate clothing?

How far down the road would you suggest that equal protection doctrine can [Voice Overlap]?

Carl Jay Nathanson:

Again, we’re not making that claim here, but I would say that with respect to transportation the same argument can be made.

Getting to school is essential to any education and if some children are passed by their door because they don’t have the fee to get into the bus, I would say that they should have an equal protection claim.

We passed into the gray area and we talked about clothing, I think that’s where we’ve left the rational of the Griffin case.

Lewis F. Powell, Jr.:

Free lunches?

Carl Jay Nathanson:

Free lunches are basically handled under federal legislation, I don’t think I anticipate that that as a problem.

Harry A. Blackmun:

Mr. Nathanson, free glasses for the myopic child who is nearsighted and can’t see without.

Carl Jay Nathanson:

Well, the problem with the handicap child are real problem and I would say that if the glasses are essential for the child to participate in the educational program and if glasses are in fact provided to other children by the school district than the same rational would apply.

We’re talking, I think about something that being provided to some children not being provide to others.

It’s the obligation of the State to treat children equally.

Harry A. Blackmun:

Well, but the wealthy — the child of wealthy parents would have glasses supplied.

Just as here, the child of the more affluent parent would have these textbooks rental paid.

I’m asking in your case whether your logic doesn’t take you to the — and result that the district would have to provide glasses for the indigent child.

Carl Jay Nathanson:

Well, that problem is being addressed too by the social services law.

Harry A. Blackmun:

Well, suppose it isn’t?

Carl Jay Nathanson:

I don’t think that that would necessarily carry forth.

William H. Rehnquist:

You’re arguing about the term (Inaudible) it’s the school board itself which rents the textbook, wouldn’t your position be the same if the school board said, here’s a list of books you have to have.

Now, you can go down to Joe’s Bookstore and rent them if you got the money.

Carl Jay Nathanson:

If the textbooks were required and New York states the textbooks – the textbooks that these children used are part of required course of study.

If the school requires these textbooks be used, I think there’s an — and children who can’t pay the rental fee get them, I think there’s an obligation to provide for those who can’t pay the rental fee.

William H. Rehnquist:

It doesn’t turn on the fact that the running agency happen to be the State here or the school board.

Carl Jay Nathanson:

I think, well, we have state action because it is the school board involved —

William H. Rehnquist:

But the state action is the requirement, isn’t it that books be used for the court?

Carl Jay Nathanson:

If the State were required that these books be used and the children had no way to obtain these books because they lack the fee, I think the same rational would apply.

Again in 1971, the school district on three occasions reject to the school budget.

Before I discuss our — the legal contention any further, I think it’s important to consider two aspects of this case.

What’s happened to these poor children has happened to them in schools they are compelled to attend.

Secondly, the injury they have suffered is due not to any conduct or demeanor on their part, but solely because of the fact that of their status as members of poor families.

I think the State has, well, while we submit that and we’ve argued in our brief that education could qualify under the — the more exacting standard of the Equal Protection Clause.

We submit that the purposes of determining this case — the Dandridge basis are sufficient.

Again, that this classification is neither rationally based nor free from invidious discrimination.

I discussed the rational like a rational basis before just deal with the — what I consider the invidious discrimination here.

First, the State has stigmatized poor children.

I think that it’s significant that in the Court of Appeals, the majority although they affirmed the lower court conceded that the plaintiff had realistically described the potential plight of these children when they described the psychological and emotional harm being engendered by being compelled to sit in class with other students who are learning from textbooks while they don’t have textbooks.

Thurgood Marshall:

But do I have to get to the psychological thing which I just did and get an equal education?

Doesn’t it and that’s your point?

Carl Jay Nathanson:

That’s correct Justice Marshall.

Thurgood Marshall:

Why do worry about psychological and he doesn’t mind that two times to two is four because he don’t have a book.

Carl Jay Nathanson:

That’s correct he also learns that wealth creates favorite treatments in the public school which a poor lesson to both rich and poor child in the classroom.

Again, the further invidious discrimination in this case is the fact that children are being penalized for something of which they have no control just as the child in the Levee case, and in the Weber case was penalized the illegitimacy of the condition of which he had no control hereto, the impact of this and he admitted impact of this classification is to deny equal education to poor children.

I think it’s significant that the Brown case which said that, once the State offers the opportunity for education, it must offer upon equal terms.

It’s a right that must be offered by equal terms to all.

I don’t think it’s being offered on equal terms in this case.

I think the Griffin case is parallel to this case and again the Griffin case didn’t depend upon the Court finding any federal constitutional right for appellate review.

Instead the case was hinged upon the fact that the State had in fact provide appellate review and the fee prevented those people who couldn’t afford the transcript from receiving an adequate appellate review.

I think that very same rational applies to this case.

Carl Jay Nathanson:

I think there are also the method which the State is going about achieving their purpose is ill-talented and poorly talented for the objective.

I fail to see how they maximize impact of the textbooks by denying textbooks to those who perhaps need it most.

It would seem that a less onerous alternative would be to deny textbooks to children in grades one to 12 who are able to pay the textbook rental fees.

In that case, all children will be able to obtain textbooks in the State.

I think this case is also parallels the Hopper case.

In Hopper too, there was no federal constitutional right to vote in the state election.

Nevertheless, the Court conceives the fundamental interest involved — the right to vote being preservative of all the rights.

I think education is also shares that place in American society.

It’s preserved of every other basic civil and political right.

William O. Douglas:

Mr. Nathanson, I just re-read these opinions Judge Travia on the Court of Appeals.

And I don’t find anything in them to suggest as you have that under declaratory judgment either both courts thought that this was proper for a single judge and then on appeal at page 63 of the record at least Court of Appeals quotes this, “as at the outset there must be a determination as to whether Judge Travia properly denied plaintiff’s motion for the convening of the three-judge court.”

The three-judge court is ultimately to decide upon rationale of the New York State legislature’s enactment of 701 and 703.

Thus, it will be gained by having this court of three judges subject its own rationality to further scrutiny and everything else in the opinion is addressed to the question whether this is properly a case for a three-judge court.

Now, I suggest to you that if we would disagree with the Court of Appeals in Judge Travia, we are paying no attention to your argument on the merits; we’ll send it back to a three-judge court to address the merits.

Carl Jay Nathanson:

I had based my statement of footnote 5 in the Court of Appeals’ opinion and which the Court indicated under the circumstances of [Voice Overlap].

William O. Douglas:

Well, it is clear that declaratory relief would be sufficient in the event that complaint have been meritorious?

Carl Jay Nathanson:

I interpreted that to mean that declaratory could’ve been appropriate even if the Court found that there was a substantial claim would not have to convene it.

William O. Douglas:

Well, I gather you do agree that the special question for us is whether or not the motion for three-judge court should’ve been granted?

Carl Jay Nathanson:

Yes, sir.

Potter Stewart:

Well, but in order to decide that, we have to consider the merits of your constitutional claim, don’t we?

Consider but not decide if it should have been for three-judge court, if we say that —

[Voice Overlap] three-judge court class why this is a substantial federal question and the same we have to give some thought to the merits.

We don’t decide the merits.

We decide whether it should be a three-judge court, just whether there is substantial federal claim which as far as the convening of the three-judge court.

I thought that’s what this case was all about that’s why we take it.

William H. Rehnquist:

Mr. Nathanson, can you enlighten me.

Supposing that you would simply sought declaratory relief in the District Court for what was the Eastern District and not sought an injunction regardless of Judge Travia’s opinion as to the substantiality of the constitutional claim, would that have required the convening of a three-judge court?

Carl Jay Nathanson:

No.

William H. Rehnquist:

I didn’t think so.

Carl Jay Nathanson:

Thank you.

Warren E. Burger:

Thank you Mr. Nathanson.

Mr. Lewittes.

Joel Lewittes:

Mr. Chief Justice —

William O. Douglas:

Are you going to address that question, are you Mr. Lewittes?

Joel Lewittes:

Yes, I would.

Mr. Chief Justice and may it please the Court.

I would initially very like analyze these two statutes.

I’m trying to place this case if I may in its proper perspective.

The two statutes are Section 701 of the New York Education Law and that deals with the provision the furnishing textbooks from grade seven through 12 and which allows the local school board to pay up to $10 per book, per child for the school year.

That’s $10, that the outside limit they may spend in grade seven through 12.

Section 703 dealing with the primary grades one through six speaks some terms of qualified voters of any school district may vote of tax for textbooks.

If they do not, if they are under the austerity program, then they may charge a rental fee per year of $7.50 per child.

Now, this provision under 703 does not implicate the heavy areas — the urban areas in New York State because of provisions there do allow the local school boards to provide textbooks without a referendum and authorize them and so to do.

It’s note worthy as well that in these large urban areas, New York City and we have set them forth which they are Buffalo and Rochester, Syracuse and Yonkers.

Its note worthy that these are concentrated areas of welfares.

So that’s it’s not quite justified on the part of the petitioners here to claim that State of New York is discriminating against indigent welfare recipients.

As a matter of fact, large percentage of the welfare recipients do reside in these urban areas and all beneficiaries of the state’s statutes that do permit school textbooks to be distributed without any charge of rental fee.

Thurgood Marshall:

But you do agree that constitutional rights are personal to the individual, don’t you?

Joel Lewittes:

Yes, they are.

I’m just — If I may Justice Marshall, I’m simply trying to place this case in its perspective.

I think it’s getting a little out of hand.

Now, the $7.50 rental fee per year in grades one through six can actually be deemed a reasonable rate in light of the $10 limit that supplied in grade seven through 12 under Section 701.

And because of declaration of policy in State of New York with regard to grade seven through 12 is that because of the added cost of the textbooks and the technical nature of the textbooks.

This heavy burden should not be passed on to any of the children and the State has formulated that declaration of policy in that statute itself.

Now, the $7.50 figure is a reasonable rate when we look at the $10 rate in Section 701.

Now, in New York State prior to this Court’s decision of Rosado against Wyman, there were special need grants for AFDC or Aid for Dependent Children recipients included.

There was included an item for textbooks in these special need grants.

This Court in Rosado determined that the State of New York may not sole proceed with specialty grants.

There must a flat general grant and following this Court’s dictates, New York Social Services Law was amended to reach so that Section 131-a does eliminate all special grants excluding rent in fuel, but includes textbooks and related education expenses under the general grant and the record shows and it is just been conceded by the petitioners in this case that when the Rosado case was remanded to the District Court.

The District Court determined that approximately $3 is included in the monthly grant for all educational expenses for the family of four.

Joel Lewittes:

So that amounts to $36 a year per family of four.

Assuming that the 10% reduction goes — is involved here then that would be $32.40 per year for educational expenses.

Now, we’ve just noted that the rental fee is $7.50.

So that it is note worthy that it is not unjustifiable rental fee and that these plaintiffs — these petitioners can afford this assuming that they budget the welfare grants properly.

Thurgood Marshall:

How about those who are not poor people who are not on welfare?

Joel Lewittes:

Those poor people are not in the class.

I understand that this alleged class —

Thurgood Marshall:

I’m just asking you.

What happens to them?

Joel Lewittes:

I assume they obviously they are not recipients of welfare and therefore would not be getting this $7.50 and this $36.

Thurgood Marshall:

They would not be getting both.

Joel Lewittes:

Yes, technically yes.

Thurgood Marshall:

But you are not tying into welfare along with this statute when was passed, are you?

Joel Lewittes:

Well, I think that we could conclude, could we not that the State Legislature when it passed this law which was passed in 1965 may have very well taken into light the Welfare of the Social Service Law and in so doing felt that it, it would cover the educational cause, but then it would not the welfare statute would not cover the educational cause when you got to the higher grades because of the heavier cost of textbooks, therefore the difference between 701 and 703.

Thurgood Marshall:

Because it could have been done by just giving them the book.

Joel Lewittes:

Well, you see it’s quite clear is it not —

Thurgood Marshall:

Am I correct?

Joel Lewittes:

Yes, yes, but it’s quite clear, is it not that the State of New York really never has been in business of loaning textbook or selling textbook.

May I also note by the way that the educational —

Thurgood Marshall:

How many States have this statute?

Joel Lewittes:

Now, we have a companion and there are at least 15 to 20 States that have this if I’m not mistaken.

The educational expenses —

Thurgood Marshall:

Do you think the child can be educated without books?

Joel Lewittes:

Well, Justice Marshall there are theories and education today as they tell me that children maybe educated without books as a matter of facts some of theories claim that these textbooks are not at all helpful that they are doing a way with —

Thurgood Marshall:

What study was that?

Joel Lewittes:

I believe it is mentioned —

Thurgood Marshall:

Are there also studies that say if a child doesn’t know how to read by junior college, forget about it?

Joel Lewittes:

Well, I think this —

Thurgood Marshall:

Am I right on that?

Joel Lewittes:

Well, yes, but they do not say that it is because of textbooks that he knows how to read.

Thurgood Marshall:

Well, why do you give — why do you allow for other people to buy them?

Joel Lewittes:

Well, I’m saying —

Thurgood Marshall:

Well, why do you require them?

Aren’t they required?

Joel Lewittes:

I think that the State of New York, statutes does not require the textbooks.

Thurgood Marshall:

That no state board of education requires certain textbooks?

Joel Lewittes:

They have an approved list of textbooks, yes, Your Honor.

Thurgood Marshall:

Well, what’s that for?

Joel Lewittes:

Well, I am not saying, I think the question was asked to me is whether or not its essential — the textbooks be use in educational my answer was that I don’t think it’s necessarily true that I concede that because there are theories in education circles today.

The question is to whether or not the State of New York —

Thurgood Marshall:

What do you use in place of textbook?

Joel Lewittes:

Well, I’m not that familiar with these theories.

It was noted by the way in the Circuit Court dissenting opinion.

There are theories —

Thurgood Marshall:

Are they relying on them?

Joel Lewittes:

Pardon?

Thurgood Marshall:

Are you relying on them?

Joel Lewittes:

No, I’m just trying to answer your question when you asked me I believe whether or not one can be educated without textbooks and I’m answering that there are theories that yes.

The answer is yes, if you are asking me whether in this particular case, the State of New York textbooks are involved in the educational process, the answer is yes.

Thurgood Marshall:

Well, you know you go way back that before you had school like President Lincoln, at least he had books.

Joel Lewittes:

Well, I think at this modern age today —

Thurgood Marshall:

Well, I just know — I want to show me somebody that educated and passed the examination without books.

Joel Lewittes:

Well, I can say there were the visual aids and the new developments and education that make possible.

Thurgood Marshall:

Well, do you have visual aids in these schools in this county?

Joel Lewittes:

I think they probably do have visual aid in this county, but I don’t think that —

Thurgood Marshall:

Probably.

Well, it’s probable that they have visual aid and probable they have this but one thing is certain, these kids don’t have books.

That is certain.

Joel Lewittes:

Well, the thing that is certain is that the kids do have books.

Kids do have books — the school budget was voted and they have books —

Thurgood Marshall:

And could that be change next year?

Joel Lewittes:

Well, it may be change next year, but let me say this Justice Marshall, if I may, that it has been determined that books are useable for five years.

Books are usable for five years.

Thurgood Marshall:

Could you change five years?

Joel Lewittes:

Yes, it could, but I think that history of school district is a matter of fact.

It’s been alleged throughout that there were three votes that voted down the budgets.

As a matter of fact, there’s a one school year that they voted down the budget prior to that they’ve always voted before the budget.

I think that the fact of the matter is that because of the welfare and because these are welfare children that are bringing this.

I think the welfare grants still cover this.

In the alternative, I think we could argue and I’m saying the alternative because Dandridge talks in terms of allocation of financial resources.

I think we’ve been more than allocated, we covered them, but in our own we do have.

New York State does have finite budget and this is a welfare case.

As much as they would like to construct this to be one of fundamental liberty, it’s not fundamental liberty.

They are not arguing that’s really fundamental liberty because fundamental liberty would mean that these textbooks would be available to all the students whether they are rich or poor.

They don’t say that here, they say that we should provide textbooks for indigents.

If it’s a fundamental liberty they should be arguing should (Inaudible) at all.

The fact of the matter it’s not a fundamental liberty.

It’s not a question of fundamental liberty involved here because I don’t think we have to reach the issue.

I think it’s a one of the welfare case and the socially economic cases under Dandridge and that we have reasonably handled this problem with our statute at 701 with the grades seven through 12 and 703 one through six, which is the most important accouchement of an education.

I don’t think the State of New York can thus, it has decided this and should be held to decide of the school lunch program is a very important fact and no doubt in Briggs against Kerrigan in the First Circuit they held that they could restrict school lunch programs is secondary schools even though that fell heavily upon indigent students that could not afford the lunches.

Thurgood Marshall:

How long have you had school books in New York textbook?

Joel Lewittes:

Well, I frankly Justice Marshall cannot answer that.

I would say for at least 50 years.

Now, I would like to get to one before I close.

I would like to get to the question with Justice Brennan’s question.

Yes, the only issue before this Court is whether or not a three-judge court was improperly was denied and that is the sole issue here.

Of course, the merits have to be considered, but have they raised a substantial federal constitutional question?

And this Court in the California Water Service case against Redding has set forth to test whether or not if the case is obviously without merit or whether it has been foreclosed by prior decisions of this Court.

I think that it’s possible that it has been foreclosed by prior decisions of this Court.

I think in Dandridge is the case that we can stand on.

Joel Lewittes:

I think the language in Jefferson against Hackney as well.

I think that if they seek to attack the fact that there is a voter referendum here, I think James against Valtierra covers that.

So, I think that it’s clear that using either the test of the unsoundness or whether it has been foreclosed by previous decisions of this Court, I think that three-judge court was properly denied below.

William H. Rehnquist:

Mr. Lewittes, I understood Mr. Nathanson in response to a question from Justice Brennan to say that the Second Circuit here at least relied on an alternative theory for not convening a three-judge court.

That is that what ever the — even conceding that the constitutional question might have been substantial, the probability of an injunctive relief was virtually non-existent and therefore even if the plaintiffs have prevailed in their constitutional claim.

The most they would have gotten is a declaratory judgment and under those circumstances that it was unnecessary to convene a three-judge court.

Do you agree or disagree with my —

Joel Lewittes:

That’s correct, Your Honor.

Warren E. Burger:

In other words the probability of granting or not granting in an injunction is part of the evaluation that the single judge must make in the first instance, is it not?

Joel Lewittes:

Yes, it is.

William O. Douglas:

Well, that’s no different I gather than the assessment that you have been suggesting had to be made to determine whether should’ve been a three-judge court?

Joel Lewittes:

Exactly.

William O. Douglas:

So, we don’t escape it by that footnote?

Joel Lewittes:

No, no, no.

William H. Rehnquist:

Mr. Lewittes, as I read the Second Circuit’s footnote.

Footnote 5 on page 65 of the record.

Their analysis of the probability of an injunction doesn’t turn on the merits of the constitutional claim, but on whether injunctive relief under the traditional equitable standards would be right.

I read that to suggest a test not based on the constitutional merits, but on whether injunctive relief in this or any other type equitable action would have been granted.

Joel Lewittes:

I think that’s what they said in the footnote with regard to that Astro Cinema Corporation, but I think the reading of the decision here in the Second Circuit shows clearly that they use the traditional test as to whether or not a substantial federal [Voice Overlap].

William O. Douglas:

Certainly, that’s the way Judge Kaufman dissented it was —

Joel Lewittes:

Exactly.

William O. Douglas:

Now, this we granted a cert. last February.

Joel Lewittes:

I believe sir.

William O. Douglas:

According to your brief on May the 3rd of this year the school district reversed its policy and is now furnishing free school books to everyone, is that right?

Joel Lewittes:

That is correct.

William O. Douglas:

And do you urge that on that ground this is really moot?

Joel Lewittes:

We have, but we do urge that and I’ve also added the significant fact of that because these books are useable for five years that even it’s not in the realm of clear probability that we’re going to have this problem —

William O. Douglas:

Is that the answer to Mr. Nathanson’s suggestion that these budget elections are annual affairs?

Joel Lewittes:

Yes.

William O. Douglas:

What you’re saying is a book should have been provided have a five-year life?

Joel Lewittes:

Yes, certainly that it won’t become obsolete within one year.

William O. Douglas:

So that at least for the next five years, children grades one to six are going to have textbooks in the school district?

Joel Lewittes:

That’s correct.

Lewis F. Powell, Jr.:

The one on page 103 is —

Joel Lewittes:

Pay —

Lewis F. Powell, Jr.:

— five years?

Joel Lewittes:

They pay one rental for fee per year, but the rental fee is only paid in case an austerity budget is voted.

William O. Douglas:

Well, I see and here that was not voted, it was later election, isn’t that it?

Warren E. Burger:

So that violates technically capable of repetition.

You’re suggesting are you that it’s highly improbable that it will recur at least for five years?

Joel Lewittes:

Exactly, Your Honor.

Thank you.

Warren E. Burger:

Thank you.

Your time is up Mr. Nathanson.

The case is submitted.