15 N.Y.2d 399 | NY | 1965
Lead Opinion
This is an article 78 proceeding brought by parents against the New York City Board of Education for a judgment annulling a determination of the board which, effective as of September, 1964, rezoned Public School No. 6 in Manhattan. The position of the petitioners — that the rezoning of this school was unreasonable, arbitrary and in excess of the discretionary powers of the Board of Education—is set forth in petitioners’ brief thus: “ To achieve a fixed racial quota at Public School 6 the respondents have prevented the children of the appellants from attending their neighborhood school and have refused to guarantee the continuity of their education, because of their race and color and therefore respondents have acted illegally in violating the constitutional and statutory rights of these children and of the appellants ’ ’. Special Term held that there were various sound reasons for the board’s action and that the conceded fact that such action was at least partially motivated by a desire to correct racial imbalance violated no rights of petitioners or any statutory or constitutional provision. The petition was, therefore, dismissed on the merits. The dismissal was affirmed by Appellate Division, First Department, in a Per Curiam opinion in which four Justices joined in saying: ‘' It is within the province of the board to conclude that racial' imbalance is harmful to education, and to draw school zones in order to effectuate a better racial balance in the school system ”, citing Matter of Balaban v. Rubin (14 N Y 2d 193,
The dissenting Justice at the Appellate Division expressed the view that a trial is necessary to determine the factual question arising from the assertion of petitioners that what the school board actually did was to redistrict so that the school would be underutilized and so that there would be an excuse then to fill up the school by bringing children thereto from other districts. The rationale of the dissent is found in these statements: “ That integration is desirable is not subject to dispute, but in all other respects the board is completely mistaken in its view. It has no right to bring in children from another district, whether they are of the same race as predominantly inhabits the area to which they are transported or not. Race has nothing to do with the question. Schools serve contiguous areas. School zones may not be changed to make the school available to children from noncontiguous areas.” The dissenting Justice concluded that all this violated section 3201 of the Education Law (also the public policy of Executive Law, § 296) which he read as setting up a right of a child “to be allowed to attend the school of his district and not to be excluded from a public school because of race, creed, color or national origin.” He stated, without citation of authority, that “ artificially bounded school districts are forbidden ” and that “ gerrymandering ” of districts to accomplish integration is illegal. The majority’s Per Curiam opinion, referring back to the dissent, stated that there was no pertinent factual issue to be tried.
The relevant facts as gleaned from the pleadings and from the other material presented to the Special Term are not disputed. Public School No. 6, with classes from kindergarten through the sixth grade, is in Manhattan on Madison Avenue between 81st and 82nd Streets. Until the new zoning was effected by the Board of Education the zone of Public School No. 6 included
As we know from other cases, the New York City Board of Education in May, 1964 adopted a policy of “Action Toward Quality Integrated Education ”, set forth in a pamphlet handed up to us on this appeal. Originally the board planned to pair this School No. 6 with School No. 198 but after discussions and controversy involving various groups a new plan was adopted, and put into effect, to make a new zone for Public School No. 6. The Board of Education determined that Public School No. 6 before rezoning was “overutilized” by 11%, that is, that it had an enrollment of 1,194 and a capacity of 1,073, that its average class size was between 33 and 34 pupils, and that the overcrowding produced a result that some of the first and third grade classes had to be given in “ overlap sessions ” resulting in a four-hour class day instead of a five-hour class day for these children. At that time the school enrollment was about 6% Negro and Puerto Rican. The new plan was completed and ordered on June 26, 1964, effective at the beginning of classes in September, 1964. By reducing the size of the zone the ~’¡er-
We agree with the courts below that here, as in Matter of Balaban v. Rubin (14 N Y 2d 193, supra) and Matter of Vetere v. Allen (21 A D 2d 561, affd. 15 N Y 2d 259, supra), the courts are without power to invalidate the plan on such grounds. The arguments of appellants and the position taken in the Appellate Division dissent have been rejected by us in those previous cases.
The order should be aErmed, without costs.
Dissenting Opinion
In this article 78 proceeding, it is alleged that the Board of Education of the City of New York altered the boundary lines of Public School (P. S.) No. 6 so as to constrict the area of the district. As a result of the change, pupils who previously had resided within the district have been “ zoned-out ” and placed in other school districts. The petition specifically states that the sole purpose of the rezoning was to
In cases involving the dismissal of a petition after an answer has been filed and after affidavits have been considered, the court’s function is to determine whether the issues raised by the papers, if resolved in favor of the petitioners, would entitle them to relief, (See Matter of O’Brien v. Commissioner of Educ., 3 A D 2d 321, 325, app. dsmd. 4 N Y 2d 140, cert. den. sub nom. Murphy v. Commissioner of Educ., 361 U. S. 117.) Thus we are faced squarely with the question whether the Board of Education may rezone a school district for the sole purpose of removing white children from the-attendance area, and replacing them with pupils of other racial origins. If, at a hearing, this issue is resolved in favor of the petitioners, they should be entitled to relief.
At the outset I note that decisions of this court in this general area are clearly distinguishable. As I stated in my dissent in
If, in the case before us, the respondents did not rezone the attendance area of P. S. 6 but merely selected certain pupils, using their race or color as the sole criterion, and transferred them to another school an equal distance from their homes, I believe that such children would have been illegally refused admission to or excluded from the public school because of their race or color. This type of action would constitute a violation of section 3201 of the Education Law.
‘ * The simple fact as to the plan adopted and here under attack is that it excludes no one from any school and has no tendency to foster or produce racial segregation.
“ Therefore, we hold section 3201 of the Education Law is in no way violated by this plan ” (emphasis supplied).
In the case before us, we are called upon to judge the legality, not the wisdom or prudence of the action taken by the respondents. Although no one disputes the laudable and desirable goals of integrated education, a violation of law, even when done to effectuate a commendable goal, should not be overlooked. In striving for the desired color-blind society, we should avoid creating an increasingly color-conscious one. I would hold: the motion to dismiss the petition should be denied and the petitioner should have the opportunity to prove that the zone change was motivated by racial considerations with the effect of excluding petitioner’s children from P. 8. 6 on account of their race or color.
I would reverse the order of the Appellate Division and grant the petitioners their day in court.
Judges Dye, Fold, Burke and Bergan concur with Chief Judge Desmond, Judge Van Voorhis concurring to affirm as constrained by Matter of Balaban v. Rubin (14 N Y 2d 193, cert. den. 379 U. S. 881) and Matter of Vetere v. Allen (21 A D 2d 561, affd. 15 N Y 2d 259); Judge Scileppi dissents in a separate opinion.
Order affirmed.
. Under the view which I took of Vetere, I did not reach this question.
. “No person shall be refused admission into or be excluded from any public school in the state of New York on account of race, creed, color or national origin.”