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October 7, 1970

Ceinwen KING-SMITH, Plaintiff,
Mrs. M. L. AARON et al., Defendants

Gerald J. Weber, District Judge.

The opinion of the court was delivered by: WEBER

Plaintiff is blind. The law of compensation, however, has endowed her with a remarkable facility for learning diverse and unrelated foreign languages. Her academic credentials are certified by degrees from two prestigious universities. Even more to her merit, she does not flaunt the ubiquitous doctorate whose glut on today's market makes it more of a substitute for rather than a recognition of genuine intellectual competence.

 She is fully qualified and certified to teach in the public schools of Pennsylvania. A state certificate is required to teach in any public school in Pennsylvania. [24 P.S. 12-1201]. Plaintiff, to have acquired such state certificate, must have secured a physician's certificate of no major physical disability, unless such person submits a certificate from her university certifying that the applicant can perform the duties notwithstanding the impediment. [24 P.S. 12-1209].

 Plaintiff applied to be placed on the eligibility list to teach in the Pittsburgh public schools. She took the physical examination required by the provisions of the state statute for appointment in the school districts of the first class (i.e. Pittsburgh) [24 P.S. 21-2108], under which it is provided that applicant must present a physician's certificate setting forth that applicant is not physically disqualified by reason of any acute physical defect from successfully performing the duties of a teacher.

 The examining physician noted such physical defect but recommended that it be waived in view of plaintiff's extraordinary qualifications.

 Plaintiff was not placed on the eligible list. She brings this action against a large number of defendants allegedly the membership of the Board of Education of the City of Pittsburgh, in their individual capacity, and three employees of the Board, the Superintendent and two Assistant Superintendents.

 Plaintiff claims jurisdiction in this court under the Civil Rights Act, 42 U.S.C. 1983 and 1985. Plaintiff alleges that the refusal of defendants to place her on the eligibility list solely on the basis of a physical handicap constitutes a denial of substantial due process of law and of the equal protection of the law. Plaintiff adds vaguely pleaded conspiracy counts under 42 U.S.C. 1985. *fn1"

 Defendants have moved to dismiss for failure of the complaint to state a cause of action under the Civil Rights Act and for failure to plead a cause of action in conspiracy.

 While there are probable defects in pleading such as misnomer, possible misjoinder of parties, and a failure to plead the conspiracy count with specificity, these might be cured by amendment. The other matters raised by defendants' motion are more critical, going to the sufficiency of the Civil Rights Act allegations which alone give us jurisdiction.

 This is a clear case for application of the doctrine of abstention. If the state courts should hold the action of defendants as unauthorized under state law it will not be necessary for the federal court to pass upon the Civil Rights or constitutional claim.

 The abstention doctrine has been based, in part, on federal-state comity;

"This now well-established procedure is aimed at the avoidance of unnecessary interference by the federal courts with proper and validly administered state concerns, a course so essential to the balanced working of our federal system. To minimize the possibility of such interference a 'scrupulous regard for the rightful independence of state governments * * * should at all times actuate the federal courts,' Matthews v. Rodgers, 284 U.S. 521, 525, 52 S. Ct. 217, 76 L. Ed. 447, as their 'contribution * * * in furthering the harmonious relation between state and federal authority * * *' Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 501, 61 S. Ct. 643, 85 L. Ed. 971. In the service of this doctrine which this Court has applied in many different contexts, no principle has found more consistent or clear expression than that the federal courts should not adjudicate the constitutionality of state enactments fairly open to interpretation until the state courts have been afforded a reasonable opportunity to pass upon them." (citations omitted). Harrison v. N.A.A.C.P. 360 U.S. 167, 176, 79 S. Ct. 1025, 1030, 3 L. Ed. 2d 1152 [1959].

 We think there is something more than comity involved today. We note that the United States District Courts are flooded with claims allegedly arising under the Civil Rights Act. Every act, every administrative decision of every state and local official is today threatened by federal litigation. This extends to every organization or institution that receives some financial support from state or local government sources. If state and local governments are to remain viable instruments of government and not become administrative agencies of the federal court system, there must remain some avenue by which local concerns are solved locally through the democratic process. Using the federal Civil Rights Act as a vehicle to threaten every exercise of discretion in matters legitimately within the area of a state's competence is not the purpose of this grant of jurisdiction to the federal courts. Plaintiff's complaint does not reveal a deliberate, calculated state assault upon a constitutionally guaranteed freedom. It merely contests the application of a certain standard of ...

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