
    In the Matter of Michael Vetere, Individually and as Parent and Natural Guardian of Anita Vetere, an Infant, Appellant, v. James E. Allen, Jr., as Commissioner of Education of the State of New York, et al., Respondents. In the Matter of Lewis Hummel et al., Individually and as Parents and Natural Guardians of Sally A. Hummel and Another, Infants, Appellants, v. James E. Allen, Jr., as Commissioner of Education of the State of New York, Respondent, and Board of Education of Union Free School District No. 12 of the Town of Hempstead, New York, Appellant.
    Argued November 16, 1964;
    reargued February 11, 1965;
    decided March 18, 1965.
    
      
      Mason L. Hampton, Jr., C. William Gaylor and H. Paul King for petitioners-appellants.
    I. The Commissioner exceeded his judicial powers in overruling the board’s pupil assignment plan, which he conceded was ‘ ‘ not arbitrary ’ ’ and an ‘‘ excellent example of administrative planning.” (Matter of Board of Educ. of Cent. School Dist. No. 1, Town of Ramapo, 65 N. Y. St. Dept. Rep. 106; Matter of Board of Educ. of School Dist. No. 1, Vil. of Hempstead, 70 N. Y. St. Dept. Rep. 108; Matter of Bell, 77 N. Y. St. Dept. Rep. 37; Matter of Dileo, 74 N. Y. St. Dept. Rep. 83; Blocker v. Board of Educ. of Manhasset, N. Y., 226 F. Supp. 208.) II. The Commissioner was wholly arbitrary in acting upon the assumption, not supported by facts in the record before him, that racial “ imbalance ”, for whatever reason existing, must be eliminated. (Matter of Rosenbluth v. Finkelstein, 300 N. Y. 402; Matter of Stammer v. Board of Regents of Univ. of State of N. Y., 287 N. Y. 359; Matter of Kilgus v. Board of Estimate of City of N. Y., 308 N. Y. 620; Matter of Macy & Co. v. New York State Labor Relations Bd., 192 Misc. 697, 275 App. Div. 665; Taylor v. Board of Educ. of New Rochelle, 191 F. Supp. 181, 294 F. 2d 36, 368 U. S. 940; Gomillion v. Lightfoot, 364 U. S. 339.) III. The Commissioner’s determination, which requires children in a certain neighborhood to leave their neighborhood school and transfer to a more distant school in order to achieve racial ‘ ‘ balance ’ ’, violates section 3201 of the Education Law. (Matter of Balaban v. Rubin, 20 A D 2d 438, 14 N Y 2d 193; Matter of Strippoli v. Bickal, 42 Misc 2d 475, 21 A D 2d 365.) IV. The petitions state causes of action. (Latham v. Father Divine, 299 N. Y. 22; Matter of Fabricius v. Graves, 254 App. Div. 19, 913; Matter of Ross v. Wilson, 284 App. Div. 522, 308 N. Y. 605; Matter of Hiscox v. Levine, 31 Misc 2d 151; Bareham v. Rochester, 221 App. Div. 36, 246 N. Y. 140.) V. The Commissioner’s requirement that pupils be transferred away from their neighborhood because of racial considerations violates constitutional guarantees of equal protection and due process. (Brown v. Board of Educ., 347 U. S. 483; Bolling v. Sharpe, 347 U. S. 497; Goss v. Board of Educ., 373 U. S. 683; Cooper v. Aaron, 358 U. S. 1; Taylor v. Board of Educ. of New Rochelle, 191 F. Supp. 181, 294 F. 2d 36; Webb v. Board of Educ. of City of Chicago, 223 F. Supp. 466.) VI. Administrative power to define attendance area lines inheres in the local boards of education and has not been granted to the Commissioner. (People v. Dethloff, 283 N. Y. 309; Matter of De Angelis v. Laino, 235 App. Div. 390, 260 N. Y. 661; Lawrence Constr. Corp. v. State of New York, 293 N. Y. 634; Lantry v. Mede, 127 App. Div. 557, 194 N. Y. 544.) VII. Lacking administrative power to determine attendance area zones, the Commissioner may not usurp such power under the guise of quasi-judicial “ review ”. (Matter of Board of Educ. of City of N. Y. v. Allen, 6 N Y 2d 127; People ex rel. Board of Educ. v. Graves, 243 N. Y. 204; Matter of La Fontaine Props. v. McGoldrick, 200 Misc. 518; Matter of Burstyn, Inc., v. Wilson, 278 App. Div. 253, 303 N. Y. 242, 343 U. S. 495; Matter of Lewisboro-Vista Civic Assn., 73 N. Y. St. Dept. Rep. 178; Matter of New York State Comm. Against Discrimination v. Pelham Hall Apts., 10 Misc 2d 346; Bell v. School City of Gary, Ind., 213 F. Supp. 819, 324 F. 2d 209.) VIII. The power sought to be asserted by the Commissioner would necessitate the destruction of the private and religious school systems in the State of New York. IX. In the present case, the Commissioner failed to make factual inquiries or findings as to whether, in the present case, the so-called imbalance ” is the cause of any impairment of educational opportunity. Such conduct violates the fundamental rule that administrative determinations must be founded upon findings of fact. Otherwise they are capricious and arbitrary. (Matter of New York State Guernsey Breeders Co-op. v. Noyes, 284 N. Y. 197; Matter of Land Purch. Corp. of America v. Grunewald, 20 Misc 2d 175.)
    
      Thomas L. Driscoll for Board of Education of Union Free School District No. 12, Town of Hempstead, New York, appellant.
    I. The Commissioner’s decision and order is illegal and therefore arbitrary, capricious, and in defiance of the constitutional rights of petitioners in this proceeding and their nh.ildren. (Matter of Balaban v. Rubin, 20 A D 2d 438, 14 N Y 2d 193.) II. The law of all of the cited cases and of all of the cases which have dealt with the question of imbalance is completely in accord with this appellant’s contention. (Bell v. School City of Gary, Ind., 324 F. 2d 209; Brown v. Board of Educ., 347 U. S. 483, 349 U. S. 294; Brown v. Board of Educ. of Topeka, 139 F. Supp. 468; Briggs v. Elliott, 132 F. Supp. 776; School Bd. of City of Charlottesville, Va., v. Allen, 240 F. 2d 59; 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; Henry v. Godsell, 165 F. Supp. 87; Matter of Bell, 77 N. Y. St. Dept. Rep. 37; Matter of Board of Educ. of School Dist. No. 1, Vil. of Hempstead, 70 N. Y. St. Dept. Rep. 108.) III. The Commissioner’s fact-finding committee’s findings adopted by the Commissioner sustain the action and contention of this appellant. IV. The report and findings of the committee and the Commissioner clearly show that appellant Board of Education has acted reasonably and not in an arbitrary manner. V. The case of Matter of Balaban v. Rubin (20 A D 2d 438, 14 N Y 2d 193), cited by respondents, does not sustain the contentions of respondent Commissioner and others. VI. The Negro children attending the Woodfield Road School achieve just as well as those attending the other two grade schools in the district. VII. The recent Civil Rights Law provisions compel an annulment of the Commissioner’s decision and order. VIII. The power to control the assignment of pupils to the schools in the district and determine area zones lies wholly within the local board of education. IX. The amendment of 1956 to section 1709 of the Education Law by the addition of subdivision 33 puts the absolute power in the local board of education to have the management of the schools in the district. X. Section 310 of the Education Law would have no effect in the case at bar. (Matter of Bottenfield, 77 N. Y. St. Dept. Rep. 25.) XI. The right of appeal to the Commissioner of Education provided in section 310 of the Education Law is not exclusive and does not oust the courts of jurisdiction in cases calling for the interpretation of a statute affecting a valuable right. (Matter of McMaster v. Owens, 192 Misc. 687; Finley v. Spaulding, 192 Misc. 860; Matter of O’Connor v. Emerson, 196 App. Div. 807.)
    
      
      Charles A. Brind, John P. Jehu, Elizabeth M. Eastman, George B. Farrington and Louis H. J. Welch for Commissioner of Education, respondent.
    I. The decision of the Commissioner is not “purely arbitrary”. (Brown v. Board of Educ., 347 U. S. 483; Matter of Balaban v. Rubin, 14 N Y 2d 193; Matter of Strippoli v. Bickal, 42 Misc 2d 475, 21 A D 2d 365; Matter of Addabbo v. Donovan, 43 Misc 2d 621; Matter of Schnepp v. Donovan, 43 Misc 2d 917; Blocker v. Board of Educ. of Manhasset, N. Y., 226 F. Supp. 208.) II. The decision of the Commissioner rendered under section 310 of the Education Law is final and conclusive and not subject to review in any court or place whatever. (Matter of Board of Educ. of City of N. Y. v. Allen, 6 N Y 2d 127; Matter of Board of Educ. of Cent. School Dist. No. 12 of Town of Virgil v. Allen, 14 A D 2d 429; Matter of Cochran v. Levy, 175 Misc. 666, 263 App. Div. 921; Matter of Board of Educ. of Bethlehem Union Free School Dist. v. Wilson, 196 Misc. 239, 277 App. Div. 809, 303 N. Y. 107; Matter of Board of Educ. of Union Free School Dist. No. 1 of Town of Neversink v. Wilson, 282 App. Div. 821, 847; Matter of Soergel v. Allen, 10 A D 2d 767, 9 N Y 2d 633; Matter of Board of Educ. of Union Free School Dist. No. 3 v. Allen, 6 A D 2d 316, 6 N Y 2d 871, 6 N Y 2d 983, 361 U. S. 535; Matter of Clark v. Allen, 7 A D 2d 144, 8 A D 2d 665; Gardner v. Ginther, 232 App. Div. 296; Lair v. Grant, 137 Misc. 470; Adriaansen v. Board of Educ. of Union Free School Dist. No. 1, Town of Marion, 222 App. Div. 320; Matter of District No. 2 of Town of Marion, 31 N. Y. St. Dept. Rep. 426; Matter of Common School Dist. No. 2 of Town of Waverly, 33 N. Y. St. Dept. Rep. 53; Matter of District No. 9 of Town of Kent, 38 N. Y. St. Dept. Rep. 625; Matter of District No. 15, Town of Esopus, 71 N. Y. St. Dept. Rep. 139.) III. The statute itself authorizes and requires the Commissioner of Education to make such an order in a proper case. (Matter of Szkolnik v. Allen, 19 A D 2d 765; Matter of Bowen v. Allen, 1 Ed. Dept. Rep. 534, 29 Misc 2d 35, 14 A D 2d 716, 17 A D 2d 12, 13 N Y 2d 663; Bullock v. Cooley, 225 N. Y. 566; Barringer v. Powell, 230 N. Y. 37; People ex rel. Hylan v. Finegan, 227 N. Y. 219; People ex rel. Board of Educ. of City of N. Y. v. Finley, 211 N. Y. 51; Matter of Hirshfield v. Cook, 227 N. Y. 297; People ex rel. Board of 
      
      Educ. v. Graves, 243 N. Y. 204; Hutchinson v. Skinner, 21 Misc. 729.) IV. The history and purpose of the statute support the power of respondent to make the order. (Bullock v. Cooley, 225 N. Y. 566; Matter of Hirshfield v. Cook, 227 N. Y. 297; Matter of Board of Educ. of Cent. School Dist. No. 1, Town of Ramapo, 65 N. Y. St. Dept. Rep. 106; Matter of Board of Educ. of School Dist. No. 1, Vil. of Hempstead, 70 N. Y. St. Dept. Rep. 108; Matter of Board of Educ. of Union Free School Dist. No. 9, Town of Hempstead, 71 N. Y. St. Dept. Rep. 166; Matter of Davis, 75 N. Y. St. Dept. Rep. 57; Matter of Bell, 77 N. Y. St. Dept. Rep. 37; Matter of Taylor, 1 Ed. Dept. Rep. 501; Matter of Danker, 2 Ed. Dept. Rep. 513.) V. The power here involved derives not from constitutional rights or duties of the parties, but purely and solely from the need to solve an essentially educational problem. (Bell v. School City of Gary, Ind., 213 F. Supp. 819, 324 F. 2d 209, 377 U. S. 924; People ex rel. Yale v. Eckler, 19 Hun 609.)
    
      Robert L. Carter, Joan Franklin and Louis Steel for remaining respondents.
    I. Boards of education have a constitutional duty to eliminate racial imbalance. (Blocker v. Board of Educ. of Manhasset, N. Y., 226 F. Supp. 208; Branche v. Board of Educ. of Town of Hempstead, 204 F. Supp. 150; Morean v. Board of Educ., 42 N. J. 237; Brown v. Board of Educ., 347 U. S. 483; Taylor v. Board of Educ. of New Rochelle, 191 F. Supp. 181, 294 F. 2d 36, 368 U. S. 940; Goss v. Board of Educ., 373 U. S. 683; Holland v. Board of Public Instruction of Palm Beach County, Fla., 258 F. 2d 730; 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 Addabbo v. Donovan, 43 Misc 2d 621; Matter of Schnepp v. Donovan, 43 Misc 2d 917; Ex Parte Virginia, 100 U. S. 339.) II. Independently of the constitutional obligation to eliminate racial imbalance, the 'Commissioner’s decision is reasonable and, therefore, final and conclusive. (Matter of Chapin v. Board of Educ. of City of Buffalo, 291 N. Y. 241; Matter of Board of Educ. of City of N. Y. v. Allen, 6 N Y 2d 127.) III. The Commissioner’s plan to correct racial imbalance is legal and constitutional. (Fuller v. Volk, 230 F. Supp. 25; Board of Educ. of Waverly Community Unit School Dist. No. 6 v. Nickell, 410 Ill. 98.) IV. The Commissioner has power to direct a board of education to modify its pupil assignment policy to correct racial imbalance. V. The Commissioner is empowered to hear petitions of persons conceiving themselves aggrieved by the refusal of a local board to act consistently with State educational policy. (Bullock v. Cooley, 225 N. Y. 566; Barringer v. Powell, 230 N. Y. 37; People ex rel. Board of Educ. of City of N. Y. v. Finley, 211 N. Y. 51; Matter of Board of Educ. of City of N. Y. v. Allen, 6 N Y 2d 127; Matter of Nestler v. Board of Examiners of Bd. of Educ. of City of N. Y., 192 Misc. 663; Matter of Bomar v. Cole, 177 Misc. 740; Matter of Bowen v. Allen, 17 A D 2d 12, 13 N Y 2d 663; People ex rel. Hylan v. Finegan, 227 N. Y. 219; Matter of Delamater, 60 N. Y. St. Dept. Rep. 17; Matter of Beam v. Wilson, 200 Misc. 183, 279 App. Div. 277; Matter of Craig v. Board of Educ. of City of N. Y., 173 Misc. 969, 262 App. Div. 706; Matter of Ross v. Wilson, 284 App. Div. 522; Matter of Board of Educ. of City of Oneida v. Tuttle, 125 Misc. 230; People ex rel. Yale v. Eckler, 19 Hun 609; Matter of Gable v. Gilbert, 126 Misc. 185; Matter of Belman, 78 N. Y. St. Dept. Rep. 10; Matter of Conlin, 75 N. Y. St. Dept. Rep. 60.) VI. Section 311 (subd. 4) explicitly authorizes the Commissioner to compel compliance with his determinations by adopting all necessary measures. VII. Assuming the power of the board of education to determine attendance areas, this in no way negates the Commissioner’s administrative control over boards in exercising such power or his authority to review and compel a variation in zoning practices.
   Per Curiam.

The issue posed by the petition in terms of racial balance, which balance the Commissioner now avers is essential to a sound education, is not reviewable by this court as the following quotations from opinions show. The purpose of the grant of quasi-judicial powers under section 310 of the Education Law is “to make all matters pertaining to the general school system of the state within the authority and control of the department of education and to remove the same as far as practicable and possible from controversies in the courts ” (Bullock v. Cooley, 225 N. Y. 566, 576-577 [1919]). “By our state system of education protected by the Constitution and developed by much study and experience, the commissioner of education is made the practical administrative head of the system, and in Ms exercise of sound wisdom, as we believe, the legislature deemed it best to make him the final authority in passing on many questions bound to arise in the admiMstration of the school system, and has provided an expeditious and simple method by which a disposition of such questions could be reached through appeal to him ” (People ex rel. Board of Educ. of City of N. Y. v. Finley, 211 N. Y. 51, 57 [1914]). “In appraising the judicial nature of the act of the Commissioner of Education, it must be remembered that he combines both judicial and administrative functions. When he decides appeals where he has occasion to construe statutes, he undoubtedly acts in a judicial capacity. But in passing upon the propriety of educational policy by a particular school board or school district, he acts in a broader capacity than the courts, by reviewing at times administrative acts of discretion of which a court would refuse to take cognizance.” (Matter of Craig v. Board of Educ. of City of N. Y., 173 Misc. 969, 977, affd. 262 App. Div. 706 [1941]. See, also, Matter of Ross v. Wilson, 308 N. Y. 605, 617; State Commissioner’s opinion of Feb. 15, 1965 in Matter of Dixon v. Board of Educ. of City School Dist. of City of Buffalo; L. 1812, ch. 242; L. 1854, ch. 97; L. 1864, ch. 555.)

This is merely a reaffirmation of a principle contained in New York law for over 130 years.

In Easton v. Calendar (11 Wend. 91, 93-94 [1833]) the court stated:"The plaintiff below was not without his remedy, 1 R S. 487, § 110, 11; and the amendment of the law, 20th April, 1830, provides that any person conceiving Mm self aggrieved in consequence of any decision made by the trustees of any district in paying any teacher, or concerning any other matter under the present title, (which includes the whole of the school act,) may appeal to the superintendent of common schools, whose decision shall be final. This provision was intended for what it practically is, a cheap and expeditious mode of settling most, if not all of the difficulties and disputes arising in the course of the execution of the law. A common law certiorari would no doubt lie from this court to the trustees, to bring up and correct any erronéous proceeding not concluded by an adjudication of; the superintendent, or in a case where his powers were inadequate to give the relief to which the party was entitled.”

A recent case illustrating the Commissioner’s unusual authority to overturn a local hoard’s orders solely from the standpoint of alleged sound education policy is Matter of Board of Educ. of City of N. Y. v. Allen, 6 N Y 2d 127 [1959]. In that case a decision by the Commissioner that the local board’s policy of requiring teachers who were former communists to identify , colleagues as party members was educationally unsound was not disturbed by this court on the ground that his decision was final. In arriving at this result, the court was fully cognizant of the fact that both the Feinberg Law (Education Law, § 3022) and section 20.1 of the Board of Regents Regulations (8 NYCRR 20.1) directed boards of education to take steps to eliminate subversive elements in their school system. Here the Board of Regents under authority of section 207 of the Education Law has declared racially imbalanced schools to be educationally inadequate. The Commissioner under sections 301 and 305 of the Education Law has implemented this policy by directing local boards to take steps to eliminate racial imbalance. These decisions are final absent a showing of pure arbitrariness.

The Commissioner’s decision in this case rests squarely on his finding of the inadequacy of such schools from the viewpoint of educational soundness. Since this court had decided that the Commissioner, when a similar policy judgment was made, may substitute his judgment for that of the local board even where the action of the local board was not arbitrary (Matter of Board of Educ. of City of N. Y. v. Allen, 6 N Y 2d 127 [1959], supra), the decision of the Commissioner in regard .to racial balance is conclusive.

Disagreement with the sociological, psychological and educational assumptions relied on by the Commissioner cannot be evaluated by this court. Such arguments can only be heard in the Legislature which has endowed the Commissioner with an all but absolute power, or by the Board of Regents, who are elected by the Legislature and make public policy in the field of education.

Since we find that the determination of the Commissioner of Education is not arbitrary or illegal, the order of the Appellate Division must be affirmed.

The order of the Appellate Division should be affirmed, without costs.

Van Voorhis, J. (dissenting and voting to reverse and reinstate the order of Special Term).

If, as I think, the action by the Commissioner of Education violates the Constitution of the United States and the Constitution and statutes of New York State, it is reviewable in the courts as included in the class of conduct which is legally defined as purely arbitrary (Matter of Ross v. Wilson, 308 N. Y. 605).

By directing that all pupils from kindergarten through grade 3 attend the Davison Avenue or Lindner Place Elementary School, and that all pupils in grades 4 and 5 attend the Wood-field Road School, after adopting the finding of his Advisory Committee that the attendance areas of these schools as defined by the Board of Education could be cited as an excellent example of administrative planning except for racial difference, the Commissioner of Education has made clear that he reversed the ruling of the Board of Education entirely in order to correct or reduce imbalance between the black and white races. The court is confronted directly with whether racial imbalance in the public schools, however it may be defined, can be overcome by admitting or excluding children from schools on account of their color. The purpose in the Commissioner’s ruling is to blend the 75% Negro children in the Woodfield School with the white children in the other two elementary schools. The concentration of nonwhite children in the Woodfield School attendance area was not designed to promote racial segregation in the public schools but occurred on account of the geographical grouping of the races.

Section 3201 of the Education Law prevents a person from being excluded from any public school “ on account of race, creed, color or national origin.” Other statutes and constitutional provisions call for the same result (cf. U. S. Const., 14th Amdt. § 1; N. Y. Const., art. I, § 11; Education Law, § 313; Civil Rights Law, § 40; Executive Law, § 290).

The Supreme Court of the United States has held that Negroes cannot be “ denied admission to schools attended by white children under laws requiring or permitting segregation according to race ” without denying the equal protection of the law (Brown v. Board of Educ., 347 U. S. 483, 488; 349 U. S. 294). That principle is contradicted by the holding of the Appellate Division in this case. Where is the line to be drawn between allocating persons by law to schools or other institutions or facilities according to color to promote integration, and doing the same thing in order to promote segregation? Is the underlying principle not the same in either instance? Both depend on racism. If one is legally justifiable, then so is the other. There is no law which says that school children or others may be allocated according to race until there are 50% of each. If that be the guiding principle, it is honored more in the breach than in the observance.

There is an important difference between obliterating the color line by admitting a boy or girl or man or woman to a school, to employment, to a residential location or to a place of public accommodation without regard to color, and allocating people to locations, employments or facilities because of their color. The latter is what the Commissioner of Education has done in this instance. It is one thing to insist that a person should not be excluded by law from a vocation, school, theatre, hotel, restaurant or public conveyance because of color; it is quite another matter and, as it seems to me, doing the reverse, to allocate these advantages according to racial quotas or on some other proportional racial basis.

Racial questions are acute today. They occupy a great deal of public attention. At other times religious issues or questions of national origin have bulked large. Considered as a question of constitutional or statutory law, is there any more justification to billet Negroes and Caucasians here and there by law, so as to assemble them or keep them apart, than would be the case, for example, if the Commissioner of Education were to decide to do the same thing with Catholics, Protestants, Jews or any other ethnological or religious group? Could he legally determine, for instance, that there were too many Catholics and not enough Jews in a particular school, or that some Presbyterians, Episcopalians or Swedenborgians should be added to bring their particular cultural leavens? Or, on the effect of inferiority complexes induced by the appearance of status or the lack of it, can similar measures be taken by law to avert de facto imbalance between the successive waves of immigrants who have come to these shores during the last century or less, each of whom has been inclined to look deprecatirigly at the next most recent arrival? Could the Commissioner legally compel the alteration of school populations on the ground that there were too many of southern European extraction and not enough Celtic in a particular school, and that psychological damage was being done because the latter looked down on their fellow citizens who came more recently from southern Europe and therefore had not achieved the same distinction in America as though they had immigrated earlier in time? National origin and religion are bracketed with racial discrimination in all of these statutes and decisions. The Commissioner of Education seems to have realized this in 1956 (after the United States Supreme Court decided the Brown case) in a determination by him reported in 77 State Department Reports at page 37, and referred to in the opinion of Special Term (41 Misc 2d 200, 204). There, although it was asserted that pupil attendance in one of the schools in an attendance area would be 80% Negro, the Commissioner, denying relief, said (p. 38): “ Because of the incidence of location, the mere fact that the preponderance of the children who would normally attend the neighborhood school happened to be white or negro, of Polish, Irish, Scotch, Swedish, Italian or English descent or otherwise or who espouse one religion or another, does not require a board to attempt to gerrymander the lines, to assign but a certain percentage to a particular school. This would constitute as much discrimination as a gerrymandered line to accomplish the opposite effect.”

This is as true now, it seems to me, as it was when the Commissioner said it in 1956. Nor does it legalize the utilization of race, religion or national origin, as a basis for allocation of students that, instead of gerrymandering the district, pupils are transferred from one school to another on the basis of race. It is true that the racial question in this' country is today of outstanding importance, and that a great deal of attention and ability is being focused upon its solution. Old and deeply embedded but artificial lines of distinction are being removed; employment, housing and public accommodations as well as schools are being opened to many for whom they were long overdue. But because it is becoming recognized that for many years the Negro has been unfairly discriminated against, it does not follow that the balance can legally be redressed by quota systems, or their equivalent, which operate on the basis of distinctions based on race, religion or national origin instead of their negation.

The Supreme 'Court of the United States held in the Brown case that de jure segregation denies the equal protection of the law in violation of the Fourteenth Amendment to the United States Constitution. It did not relate to de facto segregation, nor hold that educational authorities were obliged or empowered to eliminate racial imbalance by resorting to the racial distinctions which the Brown decision inhibited.

I vote to reverse the order of the Appellate Division and to reinstate the order of the Special Term on the opinion at Special Term and on the dissenting opinion in Matter of Balaban v. Rubin (14 N Y 2d 193, 199).

Scileppi, J. (dissenting).

Union Free School District No. 12 of the Town of Hempstead, commonly known as the Malverne-Lakeview School District, lies partially within the villages of Málveme and Lynbrook, and includes some incorporated areas of the Town of Hempstead. The public school facilities are comprised of a senior high school, a junior high school and three elementary schools. At the present time, the junior and senior high schools accommodate all children in grades 6-12 in racially balanced classes. Thus, only the three elementary schools serving grades 1-5 are here in question.

These three elementary schools are so-called neighborhood schools, each serving a small compact residential area and each reflecting the composition of the surrounding residential neighborhood in its pupil enrollment. The attendance zones or areas for each school were laid out many years ago and all parties to the present action agree that considerations of race, color or creed played no part in their formation. Bather, the lines were drawn with such factors in mind as safety, traffic conditions, proximity to the home and various other interests which were in keeping with prevailing attitudes recognizing the advantages of making the school an integral part of a given neighborhood. It was thought that great benefits were derived from such an arrangement in the form of greater parental interest in the activities of the school and greater exchange of ideas between home and school.

The three elementary schools in the district are called the Woodfield Road School, Davison Avenue School apd the Lindner Place School. It seems that while the attendance areas served by these three schools were comparable for some time, the attendance area served by the Woodfield Road School has had a substantial increase in Negro residents and this, naturally, has become reflected in the pupils attending the Woodfield School. So far, the school board has attempted to rectify the resulting imbalance by transferring pupils from Woodfield to one of the other two elementary schools, but the imbalance at Woodfield continues.

In an attempt to correct the racial imbalance in grades 1-5, Negro children, through their parents, appealed to the Commissioner from the refusal of the Board of Education to alter the zoning areas for school attendance, pursuant to section 310 of the Education Law providing for such appeals. The Commissioner appointed a 3-member committee, containing 2 members of the National Association for the Advancement of Colored People, to investigate the situation. This committee found that the attendance areas were of suitable size, as compact as possible, and placed the children within convenient walking distance of their schools. The Woodfield Road pupils were afforded programs of remedial work and enrichment at all grade levels. Relying upon its personal inspection of the three schools, the committee stated that the educational standards, as well as the quality of the teaching, were similar. In addition, the committee noted that the action of the local board was not arbitrary and was not actuated by an attempt to contain the Negro population by means of artificial school zones. A finding was made that the Woodfield Road School was racially imbalanced, and ipso facto social, psychological and educational problems exist in this school district. In short, the committee found that the school district under consideration was “ an excellent example of administrative planning”, not created to separate the races, and that all the tangible aspects of education were equal. The Commissioner, concluding that a racial imbalance deprived the Negro children in Woodfield Road School of equal educational opportunities, ordered that the attendance areas of the district be drawn so that all children from kindergarten through the third grade attend either the Davison Avenue or Lindner Place Elementary School, and that all children in fourth and fifth grades attend the Woodfield Road School.

Although the Legislature has bestowed a vast grant of power upon the Commissioner of Education, the courts do have a limited scope of review. We have held that the courts possess the power to review his acts only when they are “ purely arbitrary ” (Matter of Board of Educ. of City of N. Y. v. Allen, 6 N Y 2d 127, 136). As courts approach the pivotal issue of arbitrariness, proper performance of their function requires that the administrative agency show the actual grounds for its decision (Matter of Scudder v. O’Connell, 272 App. Div. 251). This exposition of the reasons for a decision has a twofold purpose. First, it enables the court to determine whether the findings themselves are properly supported by the evidence, and, second, it is necessary to determine whether the facts found support the decision itself (Matter of Scudder v. O’Connell, 272 App. Div. 251, supra). In New York Water Serv. Corp. v. Water Power & Control Comm. (283 N. Y. 23) we stated: ‘ ‘ Findings of fact in support of decisions by courts and administrative boards alike serve to give assurance to parties concerned that the decisions are based upon evidence of record and were not reached arbitrarily or influenced by extra-legal considerations * * * findings of fact in some form are essential to enable the parties and any appellate court intelligently to determine whether the decision follows as a matter of law from the facts stated as its basis and whether the findings of fact have any substantial support in the evidence ” (p. 30). Throughout our reports, cases reiterate the substance of the above extract (see, e.g., Matter of Barry v. O’Connell, 303 N. Y. 46; Matter of Perpente v. Moss, 293 N. Y. 325; Matter of Elite Dairy Prods. v. Ten Eyck, 271 N. Y. 488). The Commissioner reasons as follows:

Major premise: Racially imbalanced schools always afford unequal educational opportunities.

Minor premise: This school is racially imbalanced.

Conclusion: Therefore, this school affords unequal educational opportunities.

Since the record before this court is utterly barren of any evidence which supports the Commissioner’s conclusion that racial imbalance (an uncertain and indefinable phrase) necessarily results in unequal educational opportunities, I am constrained to hold that he has acted in a “purely arbitrary” manner. If it is not purely arbitrary to conclude and give no reasons therefor, I cannot conceive of any situation which may be so characterized.

Although I recognize the vast amount of power which is deposited in the Commissioner, I am unwilling to join the majority in placing him in an insulated position from which he is permitted to pronounce unreviewable conclusions devoid of any evidentiary support. Undoubtedly such is the reasoning of the prevailing opinion which, for all practical purposes, closes the courthouse doors to those who seek to review acts of the Commissioner in this area. If they are correct in the conclusion reached, the majority must be prepared to hold that assignment of pupils to create an ethnic or religious balance, or even the transportation of pupils (e.g., bussing) to implement a balancing plan, is beyond the review of the courts and may not be questioned therein. When the Commissioner states that he is acting in furtherance of sound educational policies, albeit there is no evidence in the record to support him, the majority holds that the courts will not be available for review.

I am unimpressed by the argument that the Commissioner might produce evidence and make findings to support his conclusions. Our function is to judge a case on the record before the court, not on assumption, speculation or conjecture.

Viewing the ease in this posture, I need reach neither the impact of section 3201 of the Education Law nor the constitutional question to which Judge Van Voobhis has addressed himself, both of which the majority necessarily passes upon. However, I do state that 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 new school; (2) race was not the sole factor which actuated the choice of location, and (3) there were neither transfers nor “ oppressive results ” involved.

For the reasons stated above, I vote to reverse the order of the Appellate Division.

Chief Judge Desmond and Judges Dye, Ftjld, Burke and Bergan concur in Per Curiam opinion; Judges Van Voorhis and Scileppi dissent in separate opinions.

Order affirmed. 
      
       Of course, the reasons underlying the determination are necessary to enable an aggrieved petitioner to ascertain which avenue of attack should be selected.
     