old on March 27, 1971. They live in Philadelphia, Pennsylvania, are homeowners and pay taxes that, among other things, supports the public school system in Philadelphia. They sue on behalf of themselves and the minor child. Named as defendants are The School District of Philadelphia, the President of the Board of Public Education and the Superintendent of that district in their official and in their individual capacity. The matter is before us on defendants' motion to dismiss the action because (1) this Court lacks jurisdiction over the subject matter, (2) the complaint fails to state a claim upon which relief can be granted, and (3) this Court should abstain from deciding this case.
Defendants' claim this Court lacks jurisdiction over the subject matter of this action because the complaint fails to aver that they have violated any specific statutory or constitutional obligation.
The complaint alleges that the Commonwealth of Pennsylvania has undertaken the responsibility of providing for "the maintenance and support of a thorough and efficient system of public education
to serve the needs of the Commonwealth" through the Pennsylvania Public School Code of 1949, as amended.
Therefore, the Commonwealth is constitutionally obligated to make available the opportunity of an education on equal terms to all persons. The individual defendants at various times have been given the responsibility under the Public School Code for providing an education to persons between the ages of six (6) and twenty-one (21) years.
The defendants, acting under State law, are denying B. Jay Bichrest, the equal protection of the laws under the Fourteenth Amendment to the Federal Constitution by depriving him of an opportunity to get a free education in the Philadelphia public schools.
Subsections (3) and (4) of 28 U.S.C. § 1343 grant original jurisdiction on the Federal District Courts in cases involving alleged denial of equal protection clause of the Constitution. McNeese v. Board of Education, 373 U.S. 668, 83 S. Ct. 1433, 10 L. Ed. 2d 622 (1963). Also see Johnson v. Robinson, 296 F. Supp. 1165 (D.C. Ill. 1967), aff'd 394 U.S. 847, 89 S. Ct. 1622, 23 L. Ed. 2d 30. The claim here is not plainly insubstantial or frivolous. This Court has jurisdiction over the subject matter of this action.
There is more substance to defendants' contention that the complaint fails to allege a claim against them upon which relief can be granted, but not for the grounds asserted by them.
The School District of Philadelphia, one of the named defendants, is not a "person" within the meaning of 42 U.S.C. § 1983 in an action for damages.
Harkless v. Sweeny Independent School District, 427 F.2d 319 (C.A. 5, 1970) cert. den. 400 U.S. 991, 91 S. Ct. 451, 27 L. Ed. 2d 439; Harvey v. Sadler, 331 F.2d 387, 390 (C.A. 9, 1964); Blount v. Ladue School District, 321 F. Supp. 1245, 1250 (D.C. Mo. 1970). Compare: Porcelli v. Titus, 302 F. Supp. 726, 730 (D.C.N.J. 1969), aff'd 431 F.2d 1254 (C.A. 3, 1970), where injunctive relief was also sought. As to the School District, the motion to dismiss will be allowed.
This brings us to the individually named defendants.
A school district of Pennsylvania is an agent of the State legislature to administer its duty to maintain a thorough and efficient system of public schools. Slippery Rock Area Joint School System v. Franklin Township School District, 389 Pa. 435, 133 A. 2d 848 (1957). Responsibility for carrying out the function of the school district in Philadelphia has been placed upon the Board of Public Education,
consisting of fifteen (15) members. The Board appoints a Superintendent of Schools, who is responsible to it for the conduct of his departments, and he is required to make an annual report to it and from time to time submit such plans and suggestions for the improvement of the school system as he deems expedient or as the Board shall require. He is to act as Chairman of the Board of Examiners, who examine all applicants for places upon any eligible list for employment.
To the extent that this action is directed against a member of the Board and its appointee in their official capacities, it is a suit against the School District of Philadelphia. Therefore, the complaint against the two individual defendants, in their respective official capacity, will be dismissed. See Bennett v. Gravelle, 323 F. Supp. 203, 210-211 (D.C. Md. 1971). This ruling leaves the individually named defendants in their individual capacity as party defendants, and brings us to the question of whether the complaint states a claim upon which relief can be granted as to them.
The complaint charges the defendants with failing to provide an educational opportunity to B. Jay Bichrest on equal terms with others because the Philadelphia public schools are both inadequate and unsafe. For these reasons, the parent-plaintiffs assert that they have enrolled their son, B. Jay Bichrest, in a private non-sectarian school in Philadelphia at a cost of Eight Hundred Thirty Dollars ($830.00) for the semester which began in September of 1971 and ended in June of 1972. The plaintiffs' complaint states the public schools are inadequate as follows:
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