Austin v. Board of Higher Education

Desmond, J. (dissenting).

Every consideration of justice and fair play suggests that we should join the Appellate Division in vindicating plaintiffs ’ rights as already declared by the United States Supreme Court. No statute or controlling precedent stands in the way. Yet this court rejects their suit on the most narrow of procedural grounds.

In March, 1953 the Board of Higher Education illegally discharged these plaintiffs and others from their employment as teachers. Some of the others (including persons named Slochower and Shlakman) promptly brought article 78 mandamus-type proceedings for…