
    In the Matter of Walter Van Blerkom et al., Suing on Behalf of Themselves and All Persons Similarly Situated, Appellants, v. James B. Donovan et al., Constituting the Board of Education of the City of New York, Respondents.
    Argued March 15, 1965;
    decided April 22, 1965.
    
      
      J. Dudley Devine for appellants.
    I. To achieve a fixed racial quota at Public School No. 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. (Matter of Balaban v. Rubin, 20 A D 2d 438, 14 N Y 2d 193; Matter of Strippoli v. Bickal, 21 A D 2d 365; Matter of Vetere v. Mitchell, 21 A D 2d 561; Matter of Addabbo v. Donovan, 43 Misc 2d 621; Matter of Schnepp v. Donovan, 43 Misc 2d 917; Matter of Katalinic v. City of Syracuse, 44 Misc 2d 734; Hirabayashi v. United States, 320 U. S. 81; Buchanan v. Warley, 245 U. S. 60; Bell v. School City of Gary, Ind., 213 F. Supp. 819, 324 F. 2d 209; Brown v. Board of Educ., 347 U. S. 483; Plessy v. Ferguson, 163 U. S. 537; Bolling v. Sharpe, 347 U. S. 497; Goss v. Board of Educ., 373 U. S. 683; Cooper v. Aaron, 358 U. S. 1; Jones v. School Bd. of City of Alexandria, Va., 278 F. 2d 72; Boson v. Rippy, 285 F. 2d 43; Dodson v. School Bd. of City of Charlottesville, 289 F. 2d 439; Calhoun v. Latimer, 321 F. 2d 302; Downs v. Board of Educ. of Kansas City, 336 F. 2d 988.) II. The action of respondents in rezoning Public School No. 6 district was unreasonable and arbitrary and, as such, exceeded the discretion permitted to respondents. (People ex rel. Peixotto v. Board of Educ. of City of N. Y., 212 N. Y. 463; Matter of Lesser v. Board of Educ. of City of N. Y., 18 A D 2d 388; Matter of Kropf v. Board of Educ. of City of N. Y., 34 Misc 2d 8, 18 A D 2d 919.)
    
      Leo A. Larkin, Corporation Counsel (Isidore Heyman, Seymour B. Quel and Joseph M. Callahan, Jr., of counsel), for respondents.
    I. Special Term properly held, as affirmed by the Appellate Division, that the rezoning of Public School No. 6 violated no constitutional or statutory right of petitioners. (Brown v. Board of Educ., 347 U. S. 483; Matter of Vetere v. Mitchell, 41 Misc 2d 200, 21 A D 2d 561; Matter of Addabbo v. Donovan, 43 Misc 2d 621, 22 A D 2d 383; Matter of Strippoli v. Bickal, 42 Misc 2d 475, 21 A D 2d 365; Morean v. Board of Educ. of Montclair, 42 N. J. 237; Matter of Di Sano v. Storandt, 22 A D 2d 6; Matter of Schnepp v. Donovan, 43 Misc 2d 917; Blocker v. Board of Educ. of Manhasset, N. Y., 226 F. Supp. 208; Taylor v. Board of Educ. of New Rochelle, 191 F. Supp. 181, 294 F. 2d 36, 368 U. S. 940; Matter of Balaban v. Rubin, 20 A D 2d 438, 14 N Y 2d 193.) II. The rezoning and reorganization of Public School No. 6 under respondents’ local district plan is a reasonable and valid exercise of the power and discretion vested in the Board of Education, as properly found by Special Term and affirmed by the Appellate Division. (Clemons v. Board of Educ., 228 F. 2d 853, 350 U. S. 1006; Matter of Barnett v. Fields, 196 Misc. 339, 276 App. Div. 903, 301 N. Y. 543; Matter of Lesser v. Board of Educ. of City of N. Y., 18 A D 2d 388; People ex rel. Peixotto v. Board of Educ. of City of N. Y., 212 N. Y. 463; Matter of Parrish v. Moss, 200 Misc. 375, 279 App. Div. 608; Matter of Kropf v. Board of Educ. of City of N. Y., 34 Misc 2d 8, 18 A D 2d 919; Matter of Epstein v. Board of Examiners of Bd. of Educ. of City of N. Y., 162 Misc. 718, 255 App. Div. 745, 279 N. Y. 784; Matter of Jaffe v. Board of Educ. of City of N. Y., 265 N. Y. 160; People ex rel. Rand v. Craig, 231 N. Y. 216; Matter of Sehulster v. Carney, 276 App. Div. 592.)
   Chief Judge Desmond.

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, cert. den. 379 U. S. 881) and Matter of Vetere v. Allen (21 A D 2d 561, affd. 15 N Y 2d 259). The Per Curiam noted that there exists neither a constitutional nor statutory mandate directing the board to promote integration nor any prohibition against such an attempt, that in this sphere the board’s freedom to act is untrammeled by the courts, and that, in the area of educational value judgments, the courts do not substitute their views for those of the board if there be some reasonable basis for the board’s conclusion.

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 120 square blocks with its northern boundary running along 94th Street to Park Avenue, then along 92nd Street to Third Avenue, then down to 63rd Street, and including much high-class residential property and a “ desirable ” elementary school. The new zoning adopted in 1964 by the board reduced the size of the zone to 71 square blocks. The new district is of the same contour as the old but the northern boundary streets are now 91st Street and 88th Street. The eastern boundary between 88th Street and between 79th and 68th Streets is changed from Third Avenue to Lexington Avenue. The western boundary is still Fifth Avenue. One result of the rezoning is that some 200 pupils who live in the school district as formerly bounded are now in other districts and must attend other schools. According to the petition the real purpose of changing the zoning was to create vacancies in School No. 6 so that pupils who do not now live, and have never lived, in School District No. 6 — that is, pupils now attending schools north of 96th Street, may be assigned to School No. 6. It is apparently the fact that practically none of the pupils formerly attending School No. 6 but living outside the newly bounded zone are Negroes or of Puerto Rican descent and that those brought in from schools north of 96th Street are almost all Negroes or Puerto Ricans.

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-utilization was ended and space provided in Public School No. 6 for voluntary transfers from several overutilized schools outside the zone, not only to Public School No. 6 but to five other schools. It is estimated that this will reduce the average size of classes to about 31 pupils a class. All pupils at Public School No. 6 will now have regular full-time five-hour sessions. The percentage of Negroes and Puerto Ricans in Public School No. 6 will rise from about 6% to about 20%. The children on whose behalf this proceeding was brought were, under the new plan, transferred out of Public School No. 6 to other public schools slightly nearer to their homes by measurement than is Public School No. 6. Petitioners claim to be suing on behalf of about 200 children who will no longer be allowed to attend Public School No. 6, but it is alleged by the board, and apparently not denied, that all these children have been transferred out of Public School No. 6 to schools no farther from their homes than is Public School No. 6. The children from East Harlem schools transferred into Public School No. 6 under the new plan live considerable distances from Public School No. 6 and at least some of them are transported to Public School No. 6 by bus. Apparently the school authorities, to get the consent of these new children to transfer into Public School No. 6, promised them that they will be allowed to remain at Public School No. 6 until they complete the highest grade. All the children who formerly attended Public School No. 6 and who have been rezoned out of that school are white.

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.

Scileppi, J. (dissenting).

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 create vacancies in P. g. 6 so that pupils from outside the district, specifically those from schools located in the East Harlem District north of 96th gtreet, might be assigned to P. g. 6. It is also alleged that those pupils who were transferred out of P. S. 6 are almost exclusively white, while those who will be brought in are almost exclusively Negro or Puerto Rican. The distance which petitioners’ children must travel to their newly assigned schools is comparable to that which had to be traversed if they were to have remained in the P. g. 6 district. The petitioners urge that the zoning plan be annulled, and that the respondents be enjoined from rezoning the district or directing the involuntary transfers of pupils from P. g. 6 to other schools solely because of the race, creed, color or national origin of such pupils. The answer denies most of the allegations of the petition, admits the act of rezoning, admits the transfers, and admits that the vacancies occasioned by the rezoning were to be filled with pupils from the East Harlem schools. In sum, the distillation of petitioners’ argument is that their children and the children of those similarly situated are being refused admission to P. g. 6 solely because of race or color, i.e., because they are white. Respondents’ argument is that the area was rezoned in order to combat overutilization of P. g. 6 and that in so doing a better ethnic distribution was achieved. This is a direct contradiction of the statement in the petition that, in fact, there was no overutilization of P. S. 6.

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 Matter of Vetere v. Allen (15 N Y 2d 259, 271, 274, decided by this court March 18, 1965), I do not consider Matter of Balaban v. Rubin (14 N Y 2d 193) authority in cases of this nature because (1) that case concerned the selection of a site for a neiv school; (2) race was not the sole factor which actuated the choice of location, and (3) there were neither transfers nor “ oppressive results ” involved. In Vetere the court necessarily held by implication that section 3201 of the Education Law was not violated when schools were paired under the “ Princeton Plan.”

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. I do not think that such an act can be rendered legal by the mere rezoning of a school district when said rezoning is motivated by the desire to exclude certain pupils because of their race or color, Negro or Caucasian, colored or white. Surely our law is not composed of concepts so impotent as to permit such an evasion of the thrust of section 3201. This section repeals a law which authorized separate schools for children of African descent (L. 1900, ch. 492), and was obviously intended to eliminate official sanction of segregated schools. In my opinion, the protection of section 3201 extends to shield all of our citizens from racial discrimination, a deplorable act when practiced by private individuals, an invidious act when practiced or sanctioned by government. In Balaban v. Rubin (14 N Y 2d 193, 199), we said:

‘ * 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).

This language certainly implies that section 3201 would be violated if, in fact, a pupil were excluded from a school merely for racial reasons.

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.”
     