*1 allowed, should be but that the first count complaint amended should dismissed; and, therefore, it is accordingly, Ordered and this action
shall stand continued trial on the complaint.
second and third counts of the America,
UNITED STATES of Plaintiff,
v.
COUNTY BOARD OF ELECTIONS OF COUNTY, YORK, MONROE NEW Rob Northrop ert W. and Kenneth T. Pow er, Election, Commissioners of Monroe County, York, Defendants.
Civ. No. 11590.
United States District Court
W. D. New York.
Dec. *2 Judge, KAUFMAN,
Before Circuit HENDERSON, Dis- and BURKE and Judges, trict Judge. KAUFMAN, Circuit rights problems of civil Born out currently plaguing the south Voting flowing them, the violence from (Public 89-110; Rights Law Act of 444) represented a re-com 79 Stat. country to the funda mitment this upon principles it was mental But, despite principle founded. mo Act, passage, this as our tivation for its indicate, discussion shall was not de signed remedy deprivations to of the in one section of franchise the coun try. Rather, it devised to was eliminate citizenship pres second-class wherever ent.
We are here confronted with a challenge to the constitutional segment enact one to of that 4(e).1 4(e) (2) Act: Section Section provides, part, in those who have completed primary grade the sixth in a public school in the Commonwealth of Doar, Atty. John Asst. Gen. of United predominant Puerto Rico in which the Curtin, Atty. John T. U. S. for language Eng classroom other was than York, Western District of New St. John (cid:127) lish, right shall not denied the to Barrett, Kauder, Lucas, Louis and Louis inability read, vote because of their Attorneys, Department Justice, for interpret any English. write or matter plaintiff. government’s application On the for a Stevens, Rochester, Y., William J. N. temporary restraining order,2 Chief for defendants. Judge Burke of the United States Dis Lefkowitz, Atty. Louis J. Gen. of New trict Court for the Western District of intervenor; York, Toch, Ruth Kessler New York ordered the Board Elections Asst. York, Sol. Gen. of New Jean M. County register persons of Monroe all Coon, Atty. York, Asst. who, by Gen. New 4(e), virtue of Section could the State as amicus curiae. qualify Subsequently, as voters. 4(e) Voting Bights primary grade Act in a school provides, part, that: the Commonwealth of Puerto “(1) Congress hereby predominant declares Bico in which the class- language secure the under the English, fourteenth room other than persons right amendment any educated in shall be denied the to vote in American-flag pre- Federal, State, schools which the or local election because inability dominant read, write, classroom other of his stand, under- English, necessary prohibit interpret any than it is or matter * (cid:127) conditioning States persons ability read, of such vote write, on any understand, interpret government or mat- 2. The instituted the instant ac- English language. injunctive ter tion for relief to Sec- “ (2) 12(d) Voting Bights No who demonstrates of the Act of successfully completed he has the sixth argu- Election, named as three-judge sioners of who are heard District Court3 despite defendants, parties ment, agreement stated that upon Rights Act, Voting 4(e) was the to a as to the and their consent facts policy of of Elections Mon the Board final determination on the merits with- register County trial, agreed roe to refuse out a full we to render our completed sixth judgment. who had citizen find that We *3 grade American-flag public Rights in schools in Voting of is Act 1965 a valid predominant lan granted classroom powers exercise of the to Con- guage provided by Spanish, gress as by unless the federal Constitution and 4 ap New grant government’s York Constitution therefore motion plicable York permanent injunction. Election Law5 New for a seeking pass citizen to vote also could an challenge The factual basis this of to English reading writing language and validity undisputed. of Section is defendants, fully test. These conscious September 30, 1965, Lopez, On Maria a placed jeopardy them that their stand in of citizen the United States and resident violating Voting Rights of the Federal York, approached of of the State Act, expressed their wish to have the inspectors polling election in a Rochester clear federal conflict between and state attempted booth her near and home law resolved. register forthcoming to vote in the state- general Lopez, wide election. Miss who I. just twenty-one, turned had established IV, 3 Article of the United successfully completed that she had empowers Congress States Constitution grade American-flag public ninth in “dispose of and make all needful Rules in schools the Commonwealth of Puerto Regulations respecting Territory and Spanish Rico. pre- Since had been the Property belonging or other to the Unit dominant classroom in those Congressional legislation ed States.” re schools, Lopez Miss could neither read lating to Puerto Rico and its inhabitants nor write the Congress is based on the vested in satisfaction election officials. by this Article of Constitution Despite the clear mandate of 4 provisions Treaty well as the (e), expressly provides per- that a Spain pos Paris of 1899 in which ceded having son equivalent an education session of this island the United Lopez that which Miss in obtained Puerto Thus, pursuant States.6 IV, to Article may Rico not be “denied the 3, Congress has been authorized vote” election, in she was refused government to determine the mode registration. island, pas as it first did with the Lopez protested sage Miss this infraction of of the Foraker ofAct 1900 and as right which, policy gov it continued believed, to do a until its she had been se- autonomy ernment for Puerto Rico cured be recent enactment of the came Voting Similarly, in Rights effective 1952. Upon being this Act. inter- empowered Article of the by Agents Constitution viewed of the Federal Bureau Congress Investigation to make the inhabitants the individual Commis- “ * * * person 2281, of a who In the case 2284. See §§ 3. 28 U.S.O. See state 15, became this vote entitled infra. note * * * * * * person such must Constitution, Art, II, § York The New * * * Eng- to read and write able provides, part, that: lish.” “ * * * enti- shall become no * * * per- unless such to vote tled treaty provides “[t]ke civil * * * to read able son political native status English.” writo Rico] be de- [Puerto shall inhabitants Congress.” 30 Stat. Election termined York the New 5. Section 17, pro- McKinney’s Consol.Laws, Law, at 1759. c. vides, part, that: linguistic training in their native Puerto Rico citizens language,8 of Educa- questioned here, the Commissioner not Spanish hence- system would tion directed that establish a also to medium of instruction forth be the Puerto Ricans schools needed educate grades 1-4, would be responsibilities and that as citizens in their language in Act, country. (See used as the classroom Foraker Stat. this higher grades. years 951.) of less Act, After In- and Jones Stat. experience satisfactory all-pervasive with this than deed, Ar- means of this practice, of Education the Commissioner power, controlled the ticle IV pro- upon another revision and very decided structure and existence Spanish and, half-century, that henceforth would be ef- vided life Rican over fectively shaped used as a medium of instruction its institutions in ac- eighth through grades. Finally, Congress’ first territorial cordance with own But, throughout policies. new Commissioner Educa- most of. *4 by appointed popularly Congress, cognizant evolving period, the first of law, recog- principles Governor of Puerto Rico elected estab- of international Spanish people lished as the medium of instruc- nized the inherent of a and English foreign grades, policy tion in all with be the wisdom of to taught sought language territory’s preserve as a course in the cur- cul- Thus, pub- integrity riculum. children educated in and of its mother ture tongue. lic schools of Puerto Rico since 1930 have taught Spanish been in from the first Congressional years pol- For almost 50 through eighth grades, gen- icy relating public education in Puerto eration of Puerto Rican students now at- expressed by Rico was successive Com- taining age taught of 21 has been in appointed by missioners of Education grades. Spanish in all While, of President the United States.7 deliberately policy, years in the This educational earliest territorial by determined the United administration the Commissioners de- gives problem cided that the would the core that rise to Specifically, the medium instruction instant action. we are these schools, apparent it was with citizens soon that confronted American attempt Puerto Rican birth or residence who have to “Americanize” the inhabit- encouraged government’s newly acquired our territory ants of been foreign foreign the' Puerto Rican educational and artificial introduction language Spanish processes policy into its to use as the means of educational public private impracticable, was not communication in and both but disad- vantageous country’s Moreover, life. since Act to this the Jones relations with American citizens of Rican other Latin Puerto American nations. Consequently, govern- permitted birth and have been free un- after a migration sponsored study ment to the mainland of concluded restricted that “attempt result, they English was unwise States. As a are to teach to. any state, enabled to Rican become residents Puerto children if as enjoy every right any tongue, “there it were their mother other without re- gard States, civil, they citizen of the to the United fact that social live in a non- political.” People environment”, and Balzac v. and to Porto lose the advantages Rico, 298, 308, 343, 347, S.Ct. accrued to the children plicable provision (48 as follows: Just out superintend courses of “The prior Puerto Rico commissioner of education shall study shall be its repeal instruction (cid:127) * U.S.O. prepared § * 783) through- and read ap- all U.S.). Rico, Teaching English Juan, 1916) Gov’t, him, subject ernor Bulletin No. of Puerto * [*] (as quoted disapproval by Rico, 1916, pp. on People The Problem of p. 20, 25-26 brief for (San gov- by any easily policy, significant (1922). truth, 66 L.Ed. and This verified “ * * * century City
peculiarly
resident,
in-
York
mid-twentieth
stronger
gave
already
fluences,
phenomenon
Spanish
of-
rise
has a much
to a
history
position in
either
theretofore
ficial
New York than
unknown
immigration. During
had”,
or Yiddish
with the
the dec-
Italian
American
ever
through
“people
politics and
ade from 1951
when
result
active
migration
commu-
Puerto Rican
continental
the leaders
the Puerto Rican
height
expect
nity
Spanish
be the
United States was at
there
will
developed
major
English]
in use
a considerable
[after
circular move-
people
City,
community
long
ment
York
ahead as
between New
as
the heart of the
can see.”
mainland Puerto Rican
one
population,
Juan,
Puerto
San
Rico.
Congressional policies of encour-
The reason for this unusual movement of
aging
Spanish
use of
native
immigrants back and
between
forth
tongue of Puerto Rican-Americans and
“mother land” and their
home stem-
new
unrestricted
mainland
travel between
med
fact that:
Rico,
United States
have
Puerto
very
Spanish-speak-
“The links between
York
caused a
substantial
the New
ing population (numbering
Puerto Ricans and the
than
island Puerto
more
complex,
people)
are
Ricans
close and
one-half million
resi-
become
quite
body
relationship
different
New York
from the
dents of
is this
State.
It
migrant
citizens,
plight
groups
of earlier
to their
American
whose
re-
who,
part
policy,
homeland. Puerto
sults from American
Rico is
an
*5
integrate
attempt
community
to
and there is no
their
in-
control over
to the main
movement between the
stream of American life and
improve
posi-
island and the
to
mainland.
Puerto
their economic and social
relatively
making
by air,
is
presence
Rico
close
their
and
felt
passage
government
expensive.
councils,
air
is not
too
are faced with the
government
requirement
imposed by
island
The
takes
the State of
* *
strong
people.
interest
New York that
in its
one
and
must read
write
[Thus,] going
not,
register
is
the
in order to
as it was in
regard
migrations,
earlier
to
In
be,
vote.
this
either the return
it must
care-
fully
applicable
of someone
noted that
who is
the
defeated and in-
state laws
capable
merely require
adjustment,
do not
or
some-
that a
be
“literate,”
one who
but
has made
literate in
a small com-
the
petence
language,
big
literacy requirement
which,
that will
look
* * * although
context,
many
homeland
no
this
doubt excludes
there
accomplished
is more and more of
students of
this
the Puerto
movement.
Going
system.
easy
back
Rican
school
is too
it to
for
have
great significance.”
such
4(e)
is little doubt that
There
consequence
the Puerto
obvious
of this move-
out of concern for
One
was enacted
integrating
strengthen
problem
has
the hold of
ment
been
Rican-American's
tongue
community
political
Spanish
life-
as the
into the
native
his
citizen,
nation, and,
particular,
Puerto
a tend-
stream of the
Rican-American
gov-
ency
political
life of
York
reinforced
that the
the
New
State.
fact
represent-
Kennedy,
City
ernment
York has
Senators Javits
New
encouraged
ing
employees
Span-
host to
state which has
to learn
become
many
speaking
pronouncements
Spanish
Puerto Rican-
and has issued
ish
more
general public
Spanish
than all of the other
states
to the
both the
Americans
English languages.
combined, proposed
4(e) precise-
At
least
one
because,
important
ly
stated the
the Puerto Rican-American’s
commentator has
Melting
Moynihan, Beyond
Id.,
&
101.
Glazer
tlie
(M.I.T.
1963)
Press
Pot
and Harv. Univ.
pp. 99-100.
restricting
voting Congress
power
has no such
plight,
as this State’s
insofar
maxim that
of his
because of
established
is not
self-
are concerned
laws
prescription
qualifications
for
doing
easily
overcome. Sena
is not
re-
commenting
in state or federal elections is
Puerto
voters
Kennedy,
on the
tor
exclusively
prov-
for
state’s
citizen,
served
his school
stated: “That
Rican
general
Conceding
ing
place
Spanish
up
reservation
not
ince.
takes
under Article
him,
to the states
that the U.
but is
to the fact
S.
due
I,
encourage
4 and the Tenth Amendment
has chosen to
Government
Constitution, however,
autonomy
not
does
of the Commonwealth
cultural
Congress’ authority
provide
Rico,
diminish
make
Rico a
of Puerto
Puerto
polls
America,” (111
for
access to the
American citizens
showcase for all of Latin
background
Cong.Ree.
Ed.)).
(Daily
of Puerto Rican
which would
Similar
primarily
ly, Representative
York,
otherwise
denied to them
be
Gilbert
Congress’ long history
su-
sponsors
because
one
same measure
pervision
Representatives pointed
over
affairs
of Puerto
in the House of
anomaly
Ricans.
out that
“an
[Con
gress]
encourage
perpetuation
II.
Spanish
Puerto Rico’s
culture
foreign
long-standing
Because of these
nothing
pro
and at the same
do
time
shown,
policies,
and other
as we have
citizenship
tect
respecting the education of Puerto Rican
Ricans
move to
who
other sections of
Spanish,
citizens in
country.”
(111 Cong.Rec.
to the Fourteenth Amendment11 was
(Daily Ed.)).
adoption
empowered
reasonably
to correct what it
Javits-Kennedy
amendment
to the bill
arbitrary
believed
be an
state-created
and the enactment of Section
into
Discussing Congressional
distinction.12
purpose
the law of the land after the
Amendment,
under the Fourteenth
accomplished by
legislation
Supreme
Court stated in Ex Parte
clearly stated,
congressional
evinced a
Virginia,
339, 345-346,
State of
fully
sentiment
in accord with these
(1879):
views. “ * * * judicial It is not the said however, contend, that The defendants power general government generis despite circumstances sui the enforcing pro- shall extend to the Congress’ actions resulted from protecting hibitions and to the body century, that a half over almost guaranteed. and immunities anomaly power the lacked the to correct gov- It is said not that branch of the Rican, spawned by pol- its Puerto had it ernment shall be authorized to de- Congress acted icies. believe that We clare void action of a state in limits its constitutional when well within prohibitions. violation of the It is legislated prevent New York from power Congress the which has or, very least, prohibiting the sub- enlarged. Congress been is author- integration stantially impeding prohibitions by ized to enforce emigrants political into its Puerto Rican appropriate legislation. legis- Some through imposition of an life contemplated lation is to make the registra- language requirement for voter fully (Em- amendments effective.” tion. phasis Court’s.) State, recognize defendants, The and the that courts We curiae, urged against past further that Fourteenth as amicus have have sustained 5 of the Fourteenth Amend are fortified in this view We Congress constitutionality pursuant presumption enacted ment to which accorded expressly Congress. provides every that act of Congress power to shall have the “[t]he enforce, by appropriate legislation, provisions of this article.” 322 literacy including challenges, importance
Amendment
tests as
prerequisite
aggrieved
activity
a
to vote.
In
which he
engage.
Northhampton
g.,
Lassiter
v.
Election
seeks to
e.
See
Skinner v.
Board,
45,
985,
535, 541,
Oklahoma,
360
79 S.Ct.
U.S.
State of
316 U.S.
62
(1959),
1110,
Reyn
(1942);
power
Court reversed its
under the
earlier
Fourteenth Amendment
holdings
parte
Corp.,
in Ex
judiciary
is limited
Bakelite
279
areas which the
already
U.S.
49
has
S.Ct.
found
L.Ed. 789
violation
(1929),
Equal
Protection,
Williams v. United
Due
or
Process
Priv
ileges
U.S.
S.Ct.
L.Ed.
137
Immunities Clauses. But such
(1933),
Congressional
interprets
view
States Court
Appeals
Customs and
under
Patent
the Fourteenth Amendment too
narrowly.
United States Court of Claims were not
5 of
the Fourteenth
“constitutional”
gives Congress
courts created
Amendment, III,
Congress subsequent
to
ly provided
Article
enforcement,
when
super
would be
hereby
Congress’
that “Such court is
de
merely
fluous if
role was
*7
clared to be a
passively
court established
by
under ar
await the determination
a
* *
13
Congressional
ticle III
The
legislation
court that there is a need for
pronouncement
given
weight
special
protect
was
rights.
Fourteenth Amendment
Congress
the Court because
had based
power
Inherent
en
its
upon
its determination
historial
refer-
Amendment,
force the Fourteenth
gress
Con
ence,
general
pecul-
area
one
having
must
considered as
some
iarly
Congressional cognizance.
within
pat
latitude to
for itself
determine
what
Supreme
The
Court noted "that
it
when
activity
terns of
contravene Fourteenth
previously
question,
had considered the
rights.
any partic
Amendment
Whether
“did not have the
of
benefit
this con-
prohibited
ular form of state action ”
* * *
gressional understanding.
370
depends upon
the Amendment
an as
542,
at
82
U.S.
S.Ct. at 1468.
many factors,
sessment
cf. Burton v.
Wilmington Parking Authority,
say, therefore,
365
cannot
U.S. We
that
view
715,
legisla-
856,
backdrop
81
(1961);
S.Ct.