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McMILLAN v. BOARD OF EDUCATION OF STATE OF NEW YORK

No. 901, Docket 34709.

430 F.2d 1145 (1970)

Larry McMILLAN et al., Plaintiff-Appellant, Mitchell Garlick et al., Intervenor-Plaintiff-Appellant, v. The BOARD OF EDUCATION OF the STATE OF NEW YORK et al., Defendants, and The Department of Education of the State of New York and Edward Nyquist as Acting Commissioner of Education of the State of New York, Defendants-Appellees.

United States Court of Appeals, Second Circuit.

Decided August 3, 1970.

Attorney(s) appearing for the Case

John C. Gray, Jr., New York City (Betty Elder, New York City, and William B. Haley, Long Island City, of counsel), for appellants.

John DeWitt Gregory, New York, City, Community Action for Legal Services, Inc.

Reginald S. Matthews, Jamaica, N. Y., for appellants.

Marttie L. Thompson, New York City, MFY Legal Services, Inc., for appellant Garlick.

Phillip Weinberg, Asst. Atty. Gen. (Louis J. Lefkowitz, Atty. Gen. of New York, New York City, and Samuel A. Hirshowitz, First Asst. Atty. Gen. and Mortimer Sattler, Asst. Atty. Gen., of counsel), for appellees.

Before FRIENDLY, SMITH and HAYS, Circuit Judges.

FRIENDLY, Circuit Judge:

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...

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