This appeal requires us to determine whether the claims under the equal protection clause of the Fourteenth Amendment asserted in this action under the Civil Rights Act, 42 U.S.C. 1983, and its jurisdictional implementation here relevant, 28 U.S.C. 1343(3), with respect to 4407 of the New York Education Law, McKinney's Consol.Laws, c. 16, are sufficiently substantial that the district judge should have asked for the convening of a court of three judges pursuant to 28 U.S.C. 2281 and 2284.

The procedural history, in the District Court for the Southern District of New York, is rather complex. The action was brought on behalf of three children, Larry McMillan, Steven Fournier and Teddy Sola, all of whom had been diagnosed as having suffered brain injuries. The defendants were the Board of Education of New York City; Bernard Donovan, then the City's Superintendent of Schools; Marcus S. Arnold, the City's Director of Education for the Physically Handicapped; the New York State Department of Education; and Edward Nyquist, the State's Acting Commissioner of Education. The complaint alleged that, as empowered by 4404 of the State's Education Law,1 New York City had instituted some 132 classes serving approximately 745 brain-injured children, but that some 309 such children were on the waiting list and that children remained on this for substantial periods. The complaint then referred to 4407, subd. 1 of the Education Law:

4407. Special provisions relating to instruction of certain handicapped children

1. When it shall appear to the satisfaction of the department that a handicapped child, who, in the judgment of the department can reasonably be expected to benefit from instruction, is not receiving such instruction because there are no adequate public facilities for instruction of such a child within this state because of the unusual type of the handicap or combination of handicaps, the department is authorized to contract with an educational facility located within or without the state, which, in the judgment of the department, can meet the needs of such child, for instruction of such child in such educational facility, and the department is further authorized to expend for such purpose a sum of not to exceed two thousand dollars per annum for each such pupil.

It alleged that Larry McMillan and Teddy Sola had been denied admission to the City's special classes for lack of available space; the complaint was less clear why Steven Fournier was not in a City class. But it did allege that all three plaintiffs had attended private schools; that the tuition was in the neighborhood of $3000 a year; and that their parents lacked the means to provide the $1000 required over and above the maximum state grant of $2000 permitted by 4407.2 The limit was alleged to deprive plaintiffs of their right to an elementary education in contravention of the equal protection clause of the Fourteenth Amendment. Plaintiffs sought to maintain the suit as a class action on behalf of all persons similarly aggrieved by the City's failure to provide classes adequate for educable brain-injured children and all poor persons similarly aggrieved by the $2000 limit. The complaint sought temporary and permanent injunctions to prohibit the State Department of Education and the Acting Commissioner from enforcing the $2000 limit, as well as injunctions requiring the three City defendants to provide an adequate number of special classes and the usual accoutrement of declaratory relief. Since the request for injunctive relief against the State defendants was believed to fall within 28 U.S.C. 2281, the plaintiffs asked that a court of three judges be convened.

The Department of Education and the Commissioner moved to dismiss for lack of personal jurisdiction under F.R.Civ.P. 12(b)(2), and for failure to state a claim on which relief could be granted, F.R.Civ.P. 12(b)(6). While these motions were sub judice, it was indicated to the court that the Board of Education had arranged to screen the three plaintiffs; as a result Steven Fournier was enrolled in a special class for brain-injured children and Teddy Sola in a regular class for the academic year 1969-70. The court's opinion tells us that Larry McMillan was 'found ineligible for placement in a class for the brain-injured because he could not be safely managed in such a class and would cause a safety problem' and that his parents accepted this conclusion, but we find nothing about this in the record and at the argument there was some demur about it.

In any event the loss of two of the three plaintiffs precipitated a motion to intervene on behalf of two others, Ramon Rodriquez and Mitchell Garlick. We need not pause over Ramon since he was promptly placed in a special class for the brain injured, and the propriety of the denial of his motion to intervene is not contested. It was alleged that Mitchell Garlick was brain-injured, that he was excluded from a regular public school, that he had entered a private school where the tuition was $2500 a year, that the maximum state assistance under 4407 was now $1900, and that payment of the differential was a severe burden on his mother who had to support herself and four children out of a salary of $127 per week. The State opposed Mitchell's intervention on the basis of a report of the Board of Education showing that he was not brain injured but suffered from 'mental retardation and from severe emotional disturbance.' While the City maintains classes for Children with Retarded Mental Development (CRMD) and Mitchell had been placed in such a class, his adjustment was said to have been extremely poor, he was described as having engaged at times in dangerous and destructive behavior, and the Bureau of Child Guidance considered him too disturbed for a CRMD class placement. The court nevertheless granted his motion to intervene.

The plaintiffs withdrew their application for temporary injunctive relief against the three City defendants without prejudice. Later the judge concluded that the claim against the State defendants was unsubstantial. Accordingly he declined to ask for a three-judge court and dismissed the complaint as to them. Although recognizing that this was not necessary to the decision, he expressed the view that there was no jurisdiction under the Civil Rights Act over the Department of Education, but that there was over Nyquist, the Acting Commissioner.

McMillan and Garlick have appealed 'from the orders denying their respective motions for convening a three-judge court * * * and from the judgment dismissing the action against defendants Department of Education of the State of New York and Nyquist for failure to state a claim upon which relief may be granted * * *.' In view of the continued pendency of the action against the City defendants and the absence of a determination under F.R.Civ.P. 54(b), we have no jurisdiction to review the judgment in favor of the State defendants as a 'final decision' under 28 U.S.C. 1291. Neither do we have appellate jurisdiction under 28 U.S.C. 1292(a)(1) as we did in Gold v. Lomenzo, 425 F.2d 959 (1970), since that section is limited to interlocutory orders with respect to injunctions. All that is left, therefore, is the order refusing to request the convening of a three-judge court, and that does not sound to us like a 'final decision.' Still the Supreme Court has indicated, Idlewild Bon Voyage Liquor Corp. v. Epstein, 370 U.S. 713, 716, 82 S. Ct. 1294, 8 L. Ed. 2d 794 (1962); Schackman v. Arnebergh, 387 U.S. 427, 87 S. Ct. 1622, 18 L. Ed. 2d 865 (1967), that in such a case, as we have said in Gold, 'if a court of appeals does not exactly have jurisdiction of an appeal such as this, it has something sufficiently similar to enable it to reverse for the convening of a three-judge court,' 425 F.2d at 961.

We deal at the outset with the claim of lack of jurisdiction over the State defendants since if the State is right about this, it would end the matter. Appellants do not seriously assert that the Department of Education is a 'person' within 42 U.S.C. 1983, see Monroe v. Pape, 365 U.S. 167, 187-192, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1961); Clark v. Washington, 366 F.2d 678, 681 (9 Cir. 1966); Williford v. People of California, 352 F.2d 474 (9 Cir. 1965). That is not fatal, however, if Nyquist is. With respect to him the State relies on Judge Hays' statement in Rosado v. Wyman, 414 F.2d 170, 178 (2 Cir. 1969). Appellants counter that Rosado was reversed, 397 U.S. 397, 90 S. Ct. 1207, 25 L. Ed. 2d 442 (1970) and, although Mr. Justice Harlan's opinion does not mention the point, it seems to assume that the action lay against the State Commissioner of Social Services. There is indeed some difficulty in conceiving that a state officer 'subjects' a citizen to the deprivation of constitutional rights within the meaning of the Civil Rights Act when he is not taking action against the citizen but simply is unable to pay him more than a state statute allows, and this seems rather a long way from what the Reconstruction Congress could have had in mind. But the Supreme Court evidently does not regard the point as even meriting discussion. See King v. Smith, 392 U.S. 309, 311-313, 88 S. Ct. 2128, 20 L. Ed. 2d 1118 (1968); Shapiro v. Thompson, 394 U.S. 618, 89 S. Ct. 1322, 22 L. Ed. 2d 600 (1969); Dandridge v. Williams, 397 U.S. 471, 90 S. Ct. 1153, 25 L. Ed. 2d 491 (1970). So we reach the question whether the court was justified in concluding that plaintiffs' claim was unsubstantial 'either because it is obviously without merit or because its unsoundness so clearly results from the previous decisions of this court (the Supreme Court) as to foreclose the subject.' California Water Service Co. v. City of Redding, 304 U.S. 252, 255, 58 S. Ct. 865, 867, 82 L. Ed. 1323 (1938). We do not think so.

We begin by agreeing with the district court that a state does not deny equal protection merely by making the same grant to persons of varying economic need, Carmichael v. Southern Coal & Coke Co., 301 U.S. 495, 518, 57 S. Ct. 868, 81 L. Ed. 1245 (1937). We add that if New York had determined to limit its financing of educational activities at the elementary level to maintaining public schools and to make no grants to further the education of children whose handicaps prevented them from participating in classes there, we would perceive no substantial basis for a claim of denial of equal protection. While at first blush the latter proposition might seem decisive in the State's favor, it is not. Nothing in the Constitution, for example, requires a state to provide any system of welfare payments for the indigent, yet if it does establish one, the equal protection clause prevents its discriminating against new residents, Shapiro v. Thompson, supra, 394 U.S. 618, 89 S. Ct. 1322, 22 L. Ed. 2d 600.

The plaintiffs assert that the $2000 maximum established by 4407 of New York's Education Law on assistance for the private education of a handicapped child not receiving instruction in public schools 'because there are no adequate public facilities for instruction of such a child within this state because of the unusual type of the handicap or combination of handicaps,' has come to work unfairly3 in various ways. The most glaring is in a situation like Larry McMillan's whose parents' means do not permit their making any supplementary payment at all. Since the State grant is available only if the child in fact attends a private class, the limitation thus has come to have the doubtless unintended result that the grant, fully available to those whose economic need is less, is unavailable as a practical matter to those whose economic need is greatest. The case differs in this respect from an equal grant to all handicapped children unable to attend public school classes, which is not conditioned on their attending private school. Mitchell Garlick's mother has managed to eke out sufficient funds to use the grant, and we should not suppose that a substantial equal protection question was presented merely because this is harder on her than on a parent of larger means. But question is raised whether it is consistent with the equal protection clause that she should be required to pay $500 above the $2000 limit when, as appellants claim in their brief, it would cost the State or its municipalities more than $2000 to maintain Mitchell in a special class at a public school.4 Granted that a state which gives financial aid for the private education of handicapped children unable to attend classes in public schools may have to establish some maximum, cf. Dandridge v. Williams, supra, 397 U.S. 471, 90 S. Ct. 1153, 25 L. Ed. 2d 491, since the cost of private education of a child with a particular constellation of handicaps might be astronomical, is there rational basis for a ceiling lower than the cost that would have been incurred in maintaining the child in the most closely related type of public school class?5 Lurking behind all this is the unresolved claim that certain children who are qualified for the special classes, as the State asserts Larry and Mitchell are not, are being kept out for lack of space and thereby forced to seek private education at a substantial expense to their parents not entailed for those who have been admitted,6 and the related issue whether the suit was maintainable as a class action.

In stating these question, we are not suggesting that they will necessarily be resolved in plaintiffs' favor. The State may well be able to develop sufficient reasons to justify what it has done. We hold merely that the claims were sufficiently substantial to deserve exploration, possibly after the taking of evidence, before a court of three judges. This is a developing area of application of the equal protection clause,7 and questions should not be deemed unsubstantial merely because they might have been so considered twenty years ago when the right-privilege distinction was more highly regarded than it is today.

The cause is remanded to the district judge with instructions that he vacate the judgment dismissing the complaint against the Acting Commissioner of Education and request the Chief Judge of the circuit to convene a three-judge court.