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Show FRIDAY, DECEMBER 8, 1972 THE DAILY RECORD PAGE SEVEN Trust Deeds 8UPBKME COURT OF THE UNITED STATES No. figure, does this make the problem a insofar as the continuing viability of 71-5- 085 INovcniber 20. 1972 Mr. Justice Marshall, concurring. While I join the Court's decision, I feel obliged to state somewhat more fully what 1 view to be the reasons for and meaning of this remand. The New York statutory scheme here under attack effectively denies textbooks to indigent elementary public school children unless the voters of their district approve a tax especially for the purpose of providing the books.1 Petitioners who are indigent recipients of public assistance allege, inter alia, that the statute, as applied to their children, creates a wealth classification violative of the Equal Protection Clause. When this action was initiated in September 1970, respondent. Board of Education of Union Free School District No. 27 was not providing free textbooks to petitioners children, although textbooks were available unable upon the payment of a fee, which petitioners were Richard W. Paxton, 1825 Lane. Y. for J. Gordon Holmes, 66 Avenue. ST-fl- Jurris, ss ... In applying these standards to this case, the District textbook probJudge should ascertain the nature of the lem for the elementary grades in respondent school district. Respondents have not suggested that the prob- in lliis These prior Niatcinrnt provide only rough guidance with an electoral process which here deal wr since raw, particularly books are needed. is employed only on an irregular basis tut new 1 think they are enlightening ns to the appropriate Nevertheless, make on remand. inquiries for tlie District Court, to resolved once and for all by the recent purchases. To be sure, they do contend that the new textbooks have a useful life of five ycHm. But docs this adequately account for destruction by extraordinary events, for loss dun to theft, and for obsolescence due to five-ye- ar Boyd E. Mower etux to Home Bene. Sav. $Ll,950. 327 Robert A. Miller, 3918 View Crest. Dan 167 Bpyd E. Day etux to Bank $2181.96. 1121 Ebony Avenue. Engler, 2239 Roosevelt J. 2715 Tima Halverson, 181 Street. Thomas Commonwealth 187 West. Fast Chalet Gary Sparks, 2535 Road. R. C. Hansen, Butler Hllli 7U6U 199 Stratling, 115 South Herman's, 1127 Indiana Ave. 1111 South Allen Steel, Company, 201 California Joseph K. Buhler etux Walker B ank $7065. 781 359 Lake 202 203 366 Louis Edwin Sim s etux 371 380 211 California 231 218 386 219 392 Earl Butterfield, 2181- - Sixth 222 396 W. Timothy Hill Drive. Jerin, Jr. 229 3I1O 236 Lonnie Kilpatrick, 811 Clennand Street. Michael D. Bass, 7l2 Spring-vie- w 2l1 Drive. Kenneth R. Kitt, 1365 South Eighth East . Curtis, 2ll East Treeview Drive. Walter 1175 J. East. Thomas H. Wagner, 1122 South Chase, 1023 East 1025 South. John P. Hunter, 3021 South 23rd East. 250 Milton D. Alexander etux Stephen Bruno etux 267 Kenneth M. Regency Homes Linda Carlick t 10550 South. to 7665 115 118 Kenneth Elgin B. Williams etux to 125 Bruce R. Anderson etux to First Sec. St. Bank $23, 500. 1905 Camelot Way. 129 E. B. Covey etux to First Fed. Sav. $2l,750. 1511 South Stratton Drive. 137 Jinmie E. Ranine etux to First Fed. Sav. $32,000. 3791 South I860 East. 110 Roy H. Lake 150 151 East Wlnard Drive. WUdon 150 156 Salt City. Adrian P. H. Slok etux to Western Mtge. $16,000. 1538 Roger A. Harris etux to Am. Sav. $19,500. 312 Street. Bird etux to First Fed. Sav. $30,900. Pratt etux to Triangle Const, to Nat. Mtge. $29,500. 1551 East Colony Drive. Peters etux to Avenue. Common. William Paul Hoffman etux to Western Mtge. $16,500. 6022 South Main. James R. 1619 Zions 1st Nat. Bank $6736.80. 1896 Talecrest 2935 Square. Brasier etux to Lockhart Co. $11,672.10. 3590 Sunmerhlll Drive. Inc. to to ill Benef. Fin. $7080. Valley View Drive. Helen L. SToddard Prud. Fed. Sav. $19,350. 2121 Melbourne South. South. John Medina etux to Nat. Mtge. $L7,l50. Home B Neivel F. Josephman, 2770 East 3185 First Thr. First Sec. Bank $21,200. 1318 South 1300 West. 256 to F. duff etux Utah Mtge. $16,350. T hernias W. Me GeorgeTown 2l7 1612 Hart etux 111 Mtge. $18,650. Hudson Circle. Stephen Green, 1175 Leo Way. B . Kent G. Schmidt etux to Bank $2l,900. 2806 South 8600 West. Western Mtge. $26,600. 1738 East 8080 South. Me Christopher 837 Eas South 10th East. East Wllcock etux K. Calvin Spencer etux to Lockhart Co. $2520. 389 Belview Avenue. Murray Robert S. Rumel, 17th South. Richard Way. 110 Walker B ank $2650. 5710 North Second East. 8557 Kings etux to etux to First Sec. B ank $19,875. 1082 Carrie Drive. to Avenue. East Trqy 1126 Wsst 2280 Lake First Sec. Street. Washington Jr. Fed. Sav. $28,800. to First Fed. Sav. $1850. 972 Jasper Circle. Avenue. Allen Steel Company, 1317 Ivan L, Lines First Valley John Weslqy Grande 122. to Western Mtge. $18,000. Salt Lake City. Palmers B ldg. to Valley Bank $13,500. SLC. Salt J. Larry McCain etux to 'Prud. Fed. Sav. $33,300. 3790 East Three Fountain Drive 383 Palmers B ldg. to Valley Baik $ll,200. Salt Lake to to Mtge. Ins. $l6,950. 151 6 West 2280 South. City. Palmers Bldg, Bank $13,000. South. Earl K. Kirkham etux to Miller & Viele $16,850. 15 Exchange Place. Mtge. $L7, John lanthos etux to Vally B ank $10,000. William James Smith etux to Walker Bank $1260. 361 Home Charles Ray Hansen etux to Hat. Mtge. $L6,500. to Salle Drive. La 5661 West 3965 City. Avenue. Albert Housen, 358 Barry Ames etux to Un. Sav. $28,200. Bountiful. Salt East Castle George Tates, 2126 Hill Avenue. Gary Road. 197 to Ronald D. B ullock etux to Prud. Fed. Sav. $22, 950. 8121 West 3100 So. 1053 East 10600 South. Drive. Ronald N. 191 Cairo etux G. 356 HI East Second So. 215 Ernest RakLin E. O'Leary etux to Murray St. Bank $Ll20.08. 2665 Robedoux Road. B. Varney etux to 150. Taylor Burton, 1126 South 12th etux to W. Tame Bank 355 Cont. Bene. Sav. $17,550 East South Temple. Avenue. L. East Princeton. Craig to Valley Murray St. tlank $7937.53. 1136 South State Street. Donald E. Higley etux to First Sec. Bank $15,900. 1891 South 1180 lifest. 170 etux to etux $13,600. 1298 Wsst 5100 South. 165 Jensen, 39l2 East View Crest Drive. Dwayne W. Benson 2193 310 Gordon R. Campbell etux to United Sav. $3l,000. 1122 Fortuna. R.' L. East South Temple. Nat. Mtge.. $13, 800. 1729 South 110 Wsst. Cary D. Larsen Crest Drive. View D. R. 814, 816 (tOGO).' And. even accepting the Donald, 3908 East Me etux to 30l Ill City. controversies, and because I duty to decide only believe that the District Judge can 'best resolve the factual issues upon which proper resolution of the moot-ncof requestion depends: Certainly, our mere act view as manding in no way suggests any particular is decision moot. That fact to whether this case is in instance. for the District Judge in the first In reaching Ins decision, the District Judge will, of standards which course, have to take into account the mootness for articulated resolving we have previously moot be case a may On the one hand, problems. the clear that if sulisequent events make it absolutely be allegedly wrongful behavior could not reasonably United Staten v. Concentrated expected to recur." 203 (1068). Phosphate Export wi., Inc., 393 U. S. 199, Human Committee for Rights, See also SEC v. Mcd'ual 40t U. S. 403 (1972). But on the other, mere voluntary cessation of illegal conduct docs not moot a case; the if it did. the courts would be compelled to leave United old his to return to ways. defendant . . . free States v. Concentrated Phosphate Export Amu., Inc., of constitutional quessupra, at 203. In the context these principles have electoral processes, tions involving the in found proposition that a case expression generally is capable of repetitjhc problem is not moot if Moore v. Ogilvie, 394 U. S. tion, yet evading review. curriculum changes? Hillside West Temple. livfc ken 920 Hou William Grant Bangerter etux to United Sav. $21,000. Salt Lake City. Mtge. $16,150. Betttilyon I. 297 J. Frohlich etux to Hans 102 East. 1600 Richard R. Brown, The foe inquired was per rliild. 419 F. 21 871, 873 (CA2 1971) (quoting with npprov.il petitioners allegations). Affidavit of Carl Jay Xathanson, at 2. 403 U. 8.919(1972). lem lias 2188 Robert S. Gipson, 7239 South T I Field-cre- st 126 The practical consequence of this situation was that indigent children were forced to sit bookless, side by side in the same classroom with other more textwealthy children learning with purchase d . . . books, thus engendering a feeling of inferiority and unfitness in poor children which is psychologically, emotionally, and educationally disastrous to their well Indeed, an affidavit submitted to the District being. Court indicated that in at least one case, an indigent for each child was told that he will receive an day because he is without the required When the other pupils in the class read from the teacher doesn't let him share a book with another pupil, instead she gives him paper and tells him to draw. Despite this evidence, the Court of Appeals, with one Judge dissenting, affirmed the District Courts dismissal of the complaint. We granted certiorari. This case obviously raises questions of large constitutional and practical iiniwrtance. For two full school access years children in elementary grades were denied of their of the indigency to textbooks solely because families while these questions were considered by the lower courts. After we had granted certiorari, however. a majority of the voters in resimndcnt school district finally agreed to levy a tax for the purchase of textbooks for liio elementary grades, and we are told that free textbooks have now been provided. I join in the Courts decision to remand the case so that the District Court can assess the consequences of this new development. I do so because I believe that the .Court acts out of a proper sense of our constitutional s, Thomas Trust Deeds Water Service Agreements to afford. text-book- 295 35U I $703 (1971). s. Richard A. Christenson etux to Louise Bybee. $15,000. Salt Lake City. Fed. Sav. $16,850. 1821 Berkely Street. should the District Court overlook the fact that this is a class action brought by petitioners on their own behalf and on behalf of their children and all otlier persons similarly aggrieved. Even if the case is now moot as to these particular petitioners, there may be other members of the class who remain aggrieved and thus the action may remain a viable one, see, e. g., Cypress v. Newport News General A NoHsectarian Hospital Assn., 375 F. 2d 648, 657-6- 58 (CA4 19G7); Gatling v. Butler, 52 F. R. D. 380, 394-3- 95 (Conn. 1971). Cf. Hrockingto v. Rhodes, 396 U. 8. 41, 43 (1969). children in Brides one through six; free textbooks are to be made available to children in those grades only upon the vote of the to provide majority of the district's eligilde voters to levy a tax funds for the purrhnM! of the textbooks, X. Y. Education Law text-book- 292 First 'Nor school districts arc required to loan textbooks free to students in grades seven through 12. X. 701 (1971). Xo sueh provision is made Education Ijiw this litigation is concerned? The District Judge should also investigate the posture in which the legal issues presented by this case might again arise when the books begin to wear out. Will the respondent school district delay holding a new election until the new books are actually needed? Is it possible that litigation would again have to proceed for an entire school year, or more, while indigent children are deprived of books before the constitutionality, of that deprivation is finally determined? These seem to me essential questions for the District Court to consider on remand in disposing of the issue of mootness. Daisy Johnson et al.. Petitioners, On Writ of Certiorari v. to the United States Court of Appeals for New York State Education the Second Circuit. Department et al. t Under New York law, local one non-recurri- ng J. Clegg etux to enefit. $21,550. Harrison Avenue.- - B. Bryan Brennan etux to Deseret Fed. Sav. $81, 000 Rasmussen, 722 So. Sixth East. 288 Patrick E. Sanders etux to First Fed. Sav. $30, 800. 8722 38 (C) Street. ttt. Majestic Road. V I t |