Webster v. Perry, 367 F. Supp. 666 - Dist. Court, MD North Carolina ( 1973 )

MEMORANDUM OF DECISION FOR THREE-JUDGE COURT

CRAVEN, Circuit Judge:

These actions, Webster v. Perry, in the Middle District of North Carolina, and Dunlap v. Charlotte-Mecklenburg Board of Education, in the Western District of North Carolina, were brought by the parents and next friends of the plaintiffs, students in the North Carolina public schools who were expelled, the school authorities insist, for disciplinary reasons. N.C.Gen.Stat. § 115-147 (Supp.1971), which authorizes disciplinary expulsions, is challenged in these actions as unconstitutional. The plaintiffs urge that N.C.Gen.Stat. § 115-147 is vague and overbroad, that it classifies some as ineligible for public education without either a compelling state interest or a rational purpose, and that school officials apply the statute discriminato-rily on the basis of race. Additionally, the, plaintiffs in Webster maintain that Section 115-147 violates due process in failing to provide procedural safeguards. Relief is sought pursuant to 42 U.S.C. § 1983 with jurisdiction founded under 28 U.S.C. § 1343. Pursuant to the requirements of 28 U.S.C. §§ 2281 and 2284, a three-judge district court was convened in each case. The cases have been consolidated to determine the constitutionality of Section 115-147.

We view the challenge to Section 115-147 on the grounds that it is applied discriminatorily and without procedural due process as an attack on lawless exercise of authority in particular cases and not an attack upon the statute conferring the authority. Accordingly, these issues are appropriate for determination by a single district judge, and we decline to adjudicate them. As to the other issues which do require the convening of a three-judge court, we think a decision under state law may obviate the necessity of a federal constitutional determination. The state law is unclear, and federal adjudication under the court’s pendent jurisdiction would thrust us into a sensitive area of state administration and require interpretation of state law, which we cannot authoritatively and finally make. Accordingly, we abstain from determining the constitutional claims. Since the state law claims are wholly separate and distinct from the federal constitutional claims, we retain jurisdiction rather than dismiss.

I.

In Givens v. Poe, 346 F.Supp. 202 (W.D.N.C.1972), the procedures used by school officials in the Charlotte-Mecklenburg system to suspend or dismiss students under the authority of Section 115-147 were challenged as vio-lative of due process. In Givens the single district judge required school officials to comply with certain procedural requirements, but did not deal with the constitutionality of Section 115-147. The Charlotte-Mecklenburg school officials have complied with Givens, and there is thus no procedural due process question presented in Dunlap. The complaint in Webster, however, alleges that expelled students are deprived of procedural due process. As evinced by Givens, it is possible to correct any infirmity in the procedures followed under Section 115-147 by enjoining school officials without holding the statute unconstitutional. Accordingly, the procedural due process issue is an inappropriate one for resolution by a three-judge court. C. Wright, Law of Federal Courts § 50, at 190 (2d ed. 1970).

In both Dunlap and Webster Section 115-147 is attacked as violative of equal protection, allegedly because school officials apply the section discrim-inatorily on the basis of race. We view this as “a petition which seeks an injunction on the ground of the unconstitutionality of the result obtained by the use of a statute . . . .” Ex parte Bransford, 310 U.S. 354, 361, 60 S.Ct. 947, 951, 84 L.Ed. 1249 (1940). “[A]n attack on lawless exercise of authority in a particular case is not an attack upon the constitutionality of a statute conferring the authority .” Phillips v. United States, 312 U.S. 246, 252, 61 S.Ct. 480, 484, 85 L.Ed. 800 (1941). Thus this issue is likewise an inappropriate one for resolution by a three-judge district court.

Our judgment will remand both of these issues to a single district judge within the respective districts. See Board of Public Instruction v. Banks, 401 U.S. 988, 91 S.Ct. 1223, 28 L.Ed.2d 526 (1971), vacating & remanding 314 F.Supp. 285 (S.D.Fla.1970) (three-judge district court).

II.

The allegations in Dunlap and Webster, that Section 115-147 is unconstitutional because of vagueness and overbreadth and because it operates to classify some students as uneducable without either a compelling state interest or a rational basis, are on a different footing. These allegations attack the basic constitutionality of Section 115-147 and raise issues normally appropriate for determination by a three-judge district court.

While only the Dunlap complaint alleges a pendent state cause of action, it appears clearly that the plaintiffs in each case have both a substantial statutory and constitutional claim under North Carolina law. N.C.Gen.Stat. § 115-1 (Supp.1971) provides in part:

A general and uniform system of free public schools shall be provided throughout the State, wherein equal opportunities shall be provided for all students, in accordance with the provisions of Article IX of the Constitution of North Carolina. Tuition shall be free of charge to all children of the State .... [Emphasis added.]

N.C.Const. art. I, § 15 (1971), provides: “The people have a right to the privilege of education, and it is the duty of the State to guard and maintain that right.” N.C.Const. art. IX, § 2(1), provides:

The General Assembly shall provide by taxation and otherwise for a general and uniform system of free public schools, which shall be maintained at least nine months in every year, and wherein equal opportunities shall be provided for all students. [Emphasis added.]

The North Carolina Supreme Court has stated:

This constitutional mandate contemplates that the system of public schools which it is the duty of the General Assembly to provide for all the children of the state shall be a state system, to the end that every child in the state between the ages of six and twenty-one years, shall have an opportunity, at least to attend a school in which standards set up by the state are maintained.

Marshburn v. Brown, 210 N.C. 331, 186 S.E. 265, 269 (1936). (Emphasis added.) See also Bridges v. City of Charlotte, 221 N.C. 472, 20 S.E.2d 825, 832 (1942). In Coggins v. Board of Educ., 223 N.C. 763, 28 S.E.2d 527 (1944), the court upheld rule-making power of school officials to maintain good order and discipline. However, the court was careful to point out that the rules upheld made “no attempt to deny plaintiff any instruction afforded by class work or by the required curriculum of the school.” 28 S.E .2d at 531.

The North Carolina Supreme Court has never been given an opportunity to construe Section 115-147 to limit the allegedly vague and overbroad language or to determine its validity under North Carolina statutory and constitutional law. If the plaintiffs are first required to pursue their state claim in state courts, North Carolina law provides a forum in which the plaintiffs may proceed. Jernigan v. State, 279 N. C. 556, 184 S.E.2d 259, 263 (1971)¹ Under these circumstances, where the plaintiffs have a state law claim and a state forum in which to present that claim, the state law is unclear, a decision under state law might obviate the necessity of a federal constitutional determination, and a federal adjudication would thrust the federal courts into a sensitive area of state administration, the federal courts should abstain. Reid v. Board of Educ., 453 F.2d 238, 240 (2d Cir. 1971) (failure to provide special classes for all eligible children).

Abstention is a “judge-made doctrine . first fashioned in 1941 in Railroad Commission v. Pullman Co., 312 U.S. 496 [61 S.Ct. 643, 85 L.Ed. 971], [that] sanctions ... escape [from immediate decision] only-in narrowly limited ‘special circumstances,’ Propper v. Clark, 337 U.S. 472, 492 [69 S.Ct. 1333, 1344, 93 L.Ed. 1480],” Zwickler v. Koota, 389 U.S. 241, 248 [88 S.Ct. 391, 395, 19 L.Ed.2d 444] (1967), justifying “the delay and expense to which application of the abstention doctrine inevitably gives rise.” England v. Medical Examiners, 375 U.S. 411, 418 [84 S.Ct. 461, 466, 11 L.Ed.2d 440] (1964).

Lake Carriers’ Ass’n v. MacMullan, 406 U.S. 498, 509, 92 S.Ct. 1749, 32 L.Ed.2d 257 (1972). Abstention is inappropriate where it is “ordered simply to give state courts the first opportunity to vindicate the federal claim.” Zwickler v. Koota, 389 U.S. 241, 251, 88 S.Ct. 391, 397, 19 L.Ed.2d 444 (1967). In the present case, abstention would not have such a result. Abstention would merely require the parties to first pursue a state claim in the state courts, resolution of which may obviate the need to determine the fourteenth amendment question.² Askew v. Hargrave, 401 U.S. 476, 478, 91 S.Ct. 856, 28 L.Ed.2d 196 (1971). “The paradigm case for abstention arises when the challenged state statute is susceptible of ‘a construction by the state courts that would avoid or modify the [federal] constitutional question . . . . ’ ” Lake Carriers’ Ass’n v. MacMullan, 406 U.S. 498, 510, 92 S.Ct. 1749, 1757, 32 L.Ed.2d 257 (1972). Vagueness and overbreadth in Section 115-147, if any, is clearly susceptible to a limiting construction that would avoid or modify any constitutional question.

Abstention is also clearly proper as to the contention that Section 115-147 has the effect of classifying some children as unedueable in violation of the fourteenth amendment. Under the North Carolina Constitution and the implementing statute, students expelled pursuant to the authority of Section 115-147 may be entitled to either reinstatement or to equivalent free .educational opportunities in a more suitable environment. N.C.Const. art. IX, § 2(1). Thus Reetz v. Bozanich, 397 U. S. 82, 90 S.Ct. 788, 25 L.Ed.2d 68 (1970), is controlling:

The Pullman doctrine was based on “the avoidance of needless friction” between federal pronouncements and state policies. 312 U.S., at 500, [61 S. Ct. at 645]. The instant case is the classic case in that tradition, for here the nub of the whole controversy may be the state constitution.

397 U.S. at 87, 90 S.Ct. at 790.

Since here the state claims are grounded upon state constitutional rights which are not merely counterparts for the federal rights asserted, we follow the “better practice” and “retain jurisdiction pending the proceedings in the state courts.” American Trial Lawyers Assoc. v. New Jersey Supreme Court, 409 U.S. 467, 469, 93 S.Ct. 627, 629, 34 L.Ed.2d 651 (1973). See Reid v. Board of Educ., 453 F.2d 238, 244 (2d Cir. 1971).

Accordingly, as to the issues involved in Part I, the three-judge court will be dissolved, and as to the issues presented in Part II, we abstain, but will retain jurisdiction.

1 . N.C.G.S. § 143-309 provides:

Failure to file [a petition for judicial review of an administrative decision] . . . within the time stated [30 days] shall operate as a waiver of the right ... to review under this chapter, except that for good cause shown, the judge of the superior court [of Wake County] may issue an order permitting a review of the administrative, decision under this chapter notwithstanding such waiver.

Even if plaintiffs are held to have waived their right to review under § 143-309, they are certainly not foreclosed from seeking a declaratory judgment under N.C.G.S. § 1-253 through § 1-267. N.C.G.S. § 1-254 states that “[a]ny person . . . whose rights, status or other legal relations are affected by a statute . . . may have determined any question of construction or validity arising under the . . . statute . . . and obtain a declaration of rights, status, and other legal relations thereunder.” As is clear from Jernigan, a statute can be declared unconstitutional and its enforcement enjoined “in a properly constituted action under the Declaratory Judgment Act when a specific provision of a statute is challenged by a person directly and adversely affected thereby.” 279 N.C. at 562,184 S.E.2d at 264.

2 . Under the procedure outlined in England v. Louisiana State Board of Medical Examiners, 375 U.S. 411, 84 S.Ct. 461, 11 L.Ed.2d 440 (1964), plaintiffs may assure that their federal contentions are heard by a federal court by exposing them only as a matter of information and noting on the state court record that they intend to return to the federal district court for disposition of their federal questions. 375 U.S. at 421-422, 84 S.Ct. 461. See O. Wright, Law of Federal Courts § 52, at 199 (2d ed. 1970). Although the England procedure may in some cases place state courts in the situation of issuing a mere advisory opinion, we do not perceive that to be the case here because of the substantial and distinct nature of plaintiffs’ statutory and constitutional claims under state law. See discussion supra at p. 668.