(dissenting) :
I dissent and would hold that plaintiffs have established at the very least a substantial claim that as applied in the Union Free School District No. 20, Town of West Hempstead, where their children are enrolled in the public schools, New York Education Law § 703 deprives indigent children of the equal protection of the laws.1
Despite the tone and intimations in the lead opinion’s discussion of the appropriate standard for convening a three-judge court, I understand Judge Moore *881ultimately to agree that we are indeed bound on this appeal to inquire no further should we find a “substantial” claim made out, Idlewild Bon Voyage Liquor Corp. v. Epstein, 370 U.S. 713, 715, 82 S.Ct. 1294, 8 L.Ed.2d 794 (1962), viz. one not virtually “foreclosed” by controlling precedent, California Water Service Co. v. City of Redding, 304 U.S. 252, 255, 58 S.Ct. 865, 82 L.Ed.2d 1323 (1938). Nor do I interpret my own opinion in Astro Cinema Corp., Inc. v. Mackell, 422 F.2d 293, 298 (2d Cir. 1970), declining to convene a three-judge court to evaluate plaintiffs’ “futile” request that an impending criminal prosecution be enjoined, which the panel found “completely unwarranted,” as in any sense suggesting that we are empowered to decide more at this juncture than whether plaintiffs’ claim is “substantial.”
Nevertheless, it is appropriate to analyze further the interesting question raised by the majority as to the relation between the three-judge court statute applicable here, 28 U.S.C. § 2283, and considerations of judicial economy. While I do not question the majority’s arithmetic, I do suggest that the implication that over the long term, applying a stricter standard on review of a decision refusing to convene a three-judge court will consume fewer judges’ energies amounts at best to a self-fulfilling prophecy. The lead opinion overlooks that convening a three-judge court in the first instance, because it bypasses the normal appellate level, can be expected for that reason to involve fewer judges in the ultimate disposition of a case than does a refusal to convene such a court. Not only will two fewer appellate judges then pass on the merits than otherwise (there will be only one additional district judge) — assuming an appeal would have been taken from a district court judgment refusing to convene a three-judge court — but the possibility of full in banc consideration at the appellate level is avoided. Nor is this the end of the matter, for the majority’s own analysis of the large number of judges necessarily drawn in when an application for a three-judge court is improperly denied, far from supporting a stricter standard than that established by precedent, leads to the conclusion that the “substantial claim” test may lead to the most efficient operation of the three-judge court scheme as presently constituted. I agree with Judge Moore, as I said in Astro-Cinema, that the primary purpose of this three-judge court statute is to prevent a single judge from interfering with a state’s governmental operations. But the implication of this is not, as one might at first impression suppose, that it is futile to convene a three-judge court other than to ratify a single district judge’s own conclusion that a state statute is indeed unconstitutional. If district courts did apply that harsher standard, there would inevitably be a higher percentage of reversals on appeal, and thus a greater waste of judicial resources.
This is not to say that the three-judge district court procedure remains the desirable and efficient procedure envisioned when Congress provided for it. At least for administrative reasons and perhaps because of more basic flaws in its structure as well, it-is-s-ften in practice costly, cumbersome and time-consuming, particularly in the face of the great increase in the volume of cases in appellate courts and the corresponding influx of demands for three-judge courts. But until Congress overhauls the system, I believe judges should not in their frustration yield to the temptation to legislate their own solutions [a principle rigorously adhered to by the author of the lead opinion in the past, see Caplin v. Marine Midland Grace Trust Co., 439 F.2d 118, (2 Cir., 1971)], especially, as here, when the judicial statutory amendment is as likely to increase burdens and delays as to alleviate pressures. The test is and should remain — is there a substantial claim?
On the merits, it is difficult to square the majority’s conclusion that the claim presented in this case is not substantial with its admission that “education [is] an area of fundamental importance” and *882its recognition of binding precedent requiring the state to demonstrate a “compelling state interest” to justify conditioning the exercise of fundamental rights or the enjoyment of fundamental “privileges” upon the payment of money. The majority also concludes that the plaintiffs “realistically” describe the situation of their sons and daughters when they portray “[ijndigent children sitting bookless, side by side in the same classroom with other more wealthy children learning with purchase[d] textbooks,” a situation that inevitably “engenders a widespread feeling of inferiority and unfitness in poor children and is psychologically, emotionally and educationally disastrous to their well being.” No authority supports the melancholy conclusion that plaintiffs have failed to describe even a substantial claim that their children, severely handicapped relative to their more affluent classmates solely by the operation of the statute complained of, are deprived of equal protection.
The ideal of education in our society is to free men and women to pursue their own lives more fully. Economic and social mobility, cultural richness and diversity, the inheritance of arts, skills, thoughts and values, the strong and flexible operation of democratic political processes, the growth and function of private institutions and associations, the habits, structures, virtues and idiosyncrasies that make our society unique and coherent take root in formal and informal education. In New York State, as elsewhere in the United States and in most other developed countries, the government has arrogated to itself responsibility for administering and enforcing a formal and public system of education. It has done so both by the requirement of law that all children receive schooling until they reach a specified age and by providing schools, free to their users, supported by tax revenues. Courts have been alert to the potential for unwarranted incursions by the states into constitutionally protected spheres of individual liberty— which are nothing less than rights to sel/-education and self-direction — inherent in compulsory and public education. They have also rightly viewed with skepticism and suspicion state action that has resulted in systematic inequality between the quality of public education offered different classes of children.
The capstone of cases recognizing and protecting children’s rights against overzealous state attempts to regulate their lives beyond constitutional bounds is the recent decision of the Supreme Court in Tinker v. Des Moines School Dist., 393 U.S. 503, 514, 89 S.Ct. 733, 21 L.Ed.2d 731 (1970) counting freedom from unjustified prior restraints of speech and expression among the “fundamental rights which the State must respect” in administering their public schools. Id. at 511, 89 S.Ct. at 739. The majority opinion in this case is inconsistent with the philosophy of Tinker and its predecessors, see Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923); Pierce v. Society of the Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925), as expressed in West Virginia, State Bd. of Ed. v. Barnette, 319 U.S. 624 at 637, 63 S.Ct. 1178, at 87 L.Ed. 1628, quoted in Tinker, 393 U.S. at 507, 89 S.Ct. at 737:
The Fourteenth Amendment, as now applied to the States, protects the citizen against the State itself and all of its creatures — Board of Education not excepted. These have, of course, important, delicate, and highly discretionary functions, but none that they may not perform within the limits of the Bill of Rights. That they are educating the young for citizenship is reason for scrupulous protection of Constitutional freedoms of the individual, if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes.
Unless inequality based on wealth is a principle of our government, I am unable to reconcile these words with today’s opinion.
Nor are the words of the fountainhead of parallel and complementary precedent guaranteeing equal educational opportu*883nity without the vestige of invidious discrimination, Brown v. Board of Education, 347 U.S. 483, 493, 74 S.Ct. 686, 98 L.Ed. 873 any less incompatible with the majority's resolution of this case:
Today, education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on ■ equal terms.
Despite this, the defendants have admitted in their formal answer in this litigation that plaintiffs’ children are not offered an education on terms equal to those of other children attending the same schools whose parents happen to be wealthier than are theirs. In evaluating the adequacy of the present complaint to support impaneling a three-judge court, we must accept as true its averment that because the voters in plaintiffs’ school district refused to provide, as they were empowered to do, free school books to children in grades one through six of their public schools, or at least to those whose parents cannot afford to rent them, plaintiffs’ children must attend school without the aid of textbooks provided to other children in the same schools and same grades whose parents can afford the rental fee charged by the state for their use. See Boddie v. Connecticut, 401 U.S. 371, 373, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971). Defendants have admitted that “textbooks * * * are essential to a quality educational program and a necessary and basic tool in the education of youngsters.”
Curricula not keyed to textbooks are advocated by some educators and have been put into practice in some private and public schools. But defendants do not dispute that New York’s own public education system continues to rely extensively on the traditional method of teaching from texts. Children without the benefit of these texts one must imagine and as affidavits before us aver, are afforded a markedly inferior education during their early years of schooling than are their non-indigent peers. The psychological and social impact of the badge of inferiority implied by their disfavored treatment must extend far beyond the classrooms and aggravate to an incalculable degree other disadvantages these indigent students must in our society inevitably struggle against as a result of the financial straits of their parents. The enduring lesson they are thus taught in the public schools they attend without books is that wealth breeds favored treatment while disadvantage leads on to still greater handicaps.
In short, the legislative scheme here creates two classes of children, not physically separate yet unequal — the poor suffer while the rich receive the full benefits of the state’s educational program. But “[l]ines drawn on the basis of wealth or property, like those of race * * *, are traditionally disfavored.” Harper v. Virginia State Bd. of Elections, 383 U.S. 663, 668, 86 S.Ct. 1079, 1082, 16 L.Ed.2d 169 (1966).
In Boddie v. Wyman, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971), decided this term, the Court struck down a Connecticut statute that required the payment of an average $60 in court fees and costs as a prerequisite to obtaining a divorce on the ground that the fees effectively barred some indigents from dissolving their marriage contracts. The fees required by New York here as a prerequisite to the distribution of textbooks, *884according to evidence presently in the record, range from $6.00 to $58.50 per household, and effectively bar plaintiffs’ children from receiving an adequate public education.
The majority attempts to dismiss Bod-die in a footnote by labelling it a “due process” rather than an “equal protection” case. But Boddie is grounded on the “basic position of the marriage relationship in this society’s hierarchy of values.” Only “through the looking glass” might one rank a child’s interest in education lower on the scale of this nation’s traditional values than an adult’s interest in a divorce.
The majority’s similar disposal of Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956) in the same footnote with Boddie as only another “due process” case is even more unavailing, for that decision rested by its own language squarely on the equal protection guarantee, as well as on due process, holding that a state may not deny a free transcript to an indigent where necessary to take a direct appeal from a criminal conviction. The court’s observation in Griffin that “[i]n criminal trials a State can no more discriminate on account of poverty than on account of religion, race, or color,” id. at 17, 76 S.Ct. at 590, applies with equal force to the fundamentally important institution of public education. See also Douglas v. California, 372 U.S. 353, 355, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963). Failure to appoint free counsel for an indigent’s first appeal as of right from state criminal conviction is unconstitutional “discrimination against the indigent.”
Entirely apart from Supreme Court precedent, today’s decision is strikingly inconsistent with a recent decision of this court, McMillan v. Board of Education, 430 F.2d 1145 (2d Cir. 1970), requiring that a three-judge court be convened to consider plaintiffs’ claim that their poverty would not permit them to take advantage of the state’s offer to pay $2,000 toward the tuition of special private schools for handicapped children. Plaintiffs in McMillan alleged they were ineligible for the stipend bcause they could not afford the difference between the grant and full tuition. McMillan was a less compelling case than is this one for convening a three-judge court, since the state’s usual public education facilities were open to plaintiffs’ children on an equal basis with other children. In McMillan, the students were unable to make full use of these facilities because of their own physical handicaps. Here the state itself has artificially handicapped indigent children by denying them school books provided to others who can afford them.
It will not do to say, as does the majority, that in this case “public funds are distributed equally.” The same argument would apply if schools charged a toll to defray the cost of operating public school buses. Were indigent children denied entry to the bus that passed their doors each morning because they could not bear their share of the cost — and thus were barred from public schools attended by their richer neighbors— would the answer also be “equal expenditures and an offer on equal terms to each child is sufficient”?
Here, as in McMillan, the essence of the claim is unequal educational opportunity based on wealth. The state has not justified the inequity sufficiently to warrant the refusal to convene a three-judge court.
. In Boddie, the argument found decisive by the district court and by the majority here — that the state has primary responsibility for deciding how to spend limited resources — was explicitly considered and rejected. I agree that McInnis v. Shapiro, 293 F.Supp. 327, 336 (N.D.Ill.1968) (decided by a three-judge court), aff’d 394 U.S. 322, 89 S.Ct. 1197, 22 L.Ed.2d 308 (1969) (per curiam) and Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970), among the cases cited by the majority render insubstantial plaintiffs’ subsidiary theories that New York discriminates between elementary school students and those in higher grades by providing only the latter with free books, or by conditioning free books for the former only on a vote of the electorate. Unfortunately, discussion of these insubstantial arguments consumed the entire opinion of the district court below and also claims the preponderance of the discussion of the majority here. But the essence of plaintiffs’ case is discrimination between poor children in elementary schools without books and their more affluent classmates who can afford texts. The limited resources argument is no more availing to answer that claim than it was in Boddie — or Griffin, Douglas, and JIarper, infra.