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ALEXANDER v. SWANK

March 28, 1969

LOVERTA ALEXANDER, INDIVIDUALLY AND ON BEHALF OF HER MINOR SON JEROME ALEXANDER, ALL INDIVIDUALLY AND ON BEHALF OF ALL OTHER PERSONS SIMILARLY SITUATED, PLAINTIFFS, GEORGIA TOWNSEND, INDIVIDUALLY AND ON BEHALF OF HER DEPENDANT DAUGHTER OMEGA MINOR, AND OMEGA MINOR, INDIVIDUALLY, AND AS MEMBERS OF THE CLASS, INTERVENORS,
v.
HAROLD O. SWANK, DIRECTOR, ILLINOIS DEPARTMENT OF PUBLIC AID, WILLIAM H. ROBINSON, DIRECTOR, COOK COUNTY DEPARTMENT OF PUBLIC AID, MAE WITHERS, SUPERVISOR, WOODLAWN DISTRICT OFFICE, COOK COUNTY DEPARTMENT OF PUBLIC AID, WILLIAM G. CLARK, ATTORNEY GENERAL OF THE STATE OF ILLINOIS, DEFENDANTS.



The opinion of the court was delivered by: Marovitz, District Judge.

MEMORANDUM OPINION

Motion to Intervene as Plaintiffs

Plaintiffs' Motion to Convene a Three-Judge Court

Defendants' Motion to Dismiss

This is a class action suit brought by Loverta Alexander, until November 1, 1968, a recipient of Aid to Families with Dependant Children, (hereafter A.F.D.C.), a federally assisted welfare program administered by the Illinois Department of Public Aid, individually and on behalf of her son Jerome Alexander, who is eighteen years old and a full time student at Wilson Junior College, an accredited Junior College in Chicago, Illinois. On their own behalf and for all those similarly situated, plaintiffs are seeking declaratory and injunctive relief. Alleging a deprivation of their rights, 42 U.S.C. § 1983, plaintiffs request the convening of a three-judge federal court pursuant to 28 U.S.C. § 2282, 2284 in order to declare unconstitutional Ill.Rev.Stat. Ch. 23, § 4-1.1 and Illinois Department of Public Aid Regulation 150. Plaintiffs also seek injunctive relief restraining defendants from enforcing the challenged statute and regulation. Defendants have moved to strike and dismiss this complaint.

In an action of this kind, it is the duty of a single-judge court to make an initial determination as to the substantiality of the constitutional question raised by the plaintiffs, as well as to see whether the complaint formally alleges a basis for equitable relief and is otherwise appropriate for hearing by a three-judge court. Idlewild Bon Voyage Liquor Corp. v. Epstein, 370 U.S. 713, 82 S.Ct. 1294, 8 L.Ed.2d 794 (1962); Landry v. Daley, 280 F. Supp. 929, 935 (N.D.Ill. 1967). A constitutional question will be considered an insubstantial one if it is "obviously without merit or because its unsoundness is so clearly demonstrated by previous decisions of the Supreme Court as to foreclose the subject." Id. at 935.

Plaintiffs contend that the state statute and regulation in question unconstitutionally discriminate against college or university students. The challenged state statute states the eligibility requirements which a child must meet in order to be a recipient of A.F.D.C. payments. It provides:

  "The child or children must be under age 18, or age
  18 or over but under age 21 if in regular attendance
  in high school or in a vocational or technical
  training school." Ill.Rev.Stat.Ch. 23, § 4-1.1.

Regarding age requirements, Illinois Department of Public Aid Regulation 150 provides, in pertinent part:

  "Dependant children under 18 years of age, unless 18
  through 20 years of age and in regular attendance in
  high school or vocational training school. (This does
  not include 18 through 20 year old children in
  college)."

Plaintiffs submit that these laws violate their right to equal protection as stated in the 14th Amendment to the United States Constitution. Under the current legal framework, one person, age 18 through 20, attending a vocational or technical training school may be eligible for A.F.D.C. payments in Illinois, while another person in the same age bracket and financial condition and with the same family background but who attends a college or university, would not be eligible. Whether the different treatment afforded these two similarly situated persons is rational and constitutional or arbitrary and unconstitutional need not, indeed, must not be settled here. Suffice it to say, the constitutional question presented is a substantial one and not foreclosed by previous judicial decision.

  "Within the age limit set by the state, there should
  be a choice of attending a school, college or
  university or taking a course of vocational or
  technical training for gainful employment."
  (Complaint, Appendix 1, at p. 2.)

Plaintiffs' second basic contention is that Illinois' law is not in conformity with the federal requirements and, therefore, in violation of the supremacy clause of the United States Constitution, Article VI, Clause 2. For this reason as well, plaintiffs present a ...


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