The plaintiff John A. Campbell brought this action for injunctive and declaratory relief, as well as for compensatory damages by his father and next friend Anthony Campbell. The plaintiff, a senior at New Milford High School, claims that an attendance policy promulgated by the defendant, the New Milford board of education, violates various provisions of the United States and Connecticut constitutions and is preempted by General Statutes §§ 10-184, 10-185, 10-199 through10-202, 10-233c and 10-233d, relating to truancy and expulsion of students. The attendance policy provides (1) that a student's grade is reduced by five points for every unauthorized absence in a particular course, and (2) that any student who misses more than twenty-four classes in a year-long course is denied credit for that course regardless of whether or not the absences are authorized.
The plaintiff has filed a motion for class certification, seeking certification of the class of all past, present and future students who have been, are or will be subject to the New Milford board of education. For the reasons stated below the court grants the plaintiff's motion. *Page 359
The plaintiff bears the burden of establishing that all of the requirements of the rule are satisfied.Rex v. Owens ex rel. State, 585 F.2d 432, 435 (10th Cir.); Smith v. Merchants Farmers Bank,574 F.2d 982, 983 (8th Cir.); Long v. ThorntonTownship High School District, 82 F.R.D. 186, 189 (N.D. Ill.). Although the determination of whether a class action is appropriate is a matter for the trial court's discretion; King v. Kansas City SouthernIndustries, Inc., 519 F.2d 20, 24-25 (7th Cir.); the requirements of the rule are to be given a liberal construction. Donaldson v. Pillsbury Co., 554 F.2d 825,831 (8th Cir.), cert. denied, 434 U.S. 856; King v. Kansas City Southern Industries, Inc., supra, 25;Eisen v. Carlisle Jacquelin, 391 F.2d 555, 563 (2d Cir.). In making this determination, most courts have held that the probability of success on the merits is irrelevant and should not be considered. 7 Wright Miller, Federal Practice Procedure, § 1759, pp. 577-78 (cases cited at n. 81);2 see also Eisen v. Carlisle Jacquelin, 417 U.S. 156,178. But see Wright Miller, op. cit., § 1759, p. 577 n. 77.
In this case the plaintiff has shown through discovery that from 450 to 800 students have been affected by the attendance policy since it became effective in 1977. The impracticality of joining such a large number of plaintiffs is obvious. Management of such a large action would be quite burdensome and could lead to unnecessary delays. More importantly, the size of the individual monetary claims of the class members is likely to be small, making it less likely that they would bother to join as plaintiffs. See Swanson v. American ConsumerIndustries, Inc., 415 F.2d 1326, 1333 n. 9 (7th Cir.); see generally In re Master Key Antitrust Litigation,528 F.2d 5, 10-11 (2d Cir.); Eisen v. Carlisle Jacquelin, 370 F.2d 119, 121 (2d Cir.), cert. denied,386 U.S. 1035. These factors lead the court to conclude that the size of the class is so numerous that joinder is impracticable.3 *Page 362
This case presents a classic example of the existence of common issues. The plaintiff is challenging the policy on three major grounds: (1) that it was *Page 363 adopted ultra vires and is inconsistent with certain statutory provisions; (2) that the arbitrary reduction of grades and denial of credit violate substantive due process rights; and (3) that the exemption provisions are so discretionary as to violate due process. The major thrust of these claims attacks the policy on its face and the only concern with its application in an individual case is whether it was applied, not how it was applied. Where a representative party challenges a particular policy or regulation of an administrative body on constitutional or statutory grounds the courts have generally held that the requirement of commonality is satisfied. See, e.g., Johnson v. American Credit Co.of Georgia, 581 F.2d 526 (2d Cir.); White v.Mathews, 559 F.2d 852 (2d Cir.), cert. denied sub nom., Califano v. White, 435 U.S. 908; Like v.Carter, supra; Long v. Thornton Township HighSchool District, supra; Anderson v. Rizzo,80 F.R.D. 72 (E.D. Pa.); Aiello v. City of Wilmington,426 F. Sup. 1272 (D. Del.); but see Banks v. Boardof Public Instruction of Dade County, 314 F. Sup. 285,288 (S.D. Fla.), vacated, 401 U.S. 988. Similarly, the fact that individual damages recoverable by each class member might differ does not justify denial of certification. The primary relief sought in this action is injunctive and declaratory in nature.
The defendant also contends that it may have to raise different defenses against different class members, noting especially that the statute of limitations may have run against former students. It is true that no class action may proceed on behalf of class members whose claims are barred by the applicable statute of limitations. Schmidt v. InterstateFederal Savings Loan Assn., 74 F.R.D. 423,428 (D. D.C.). The present case, however, does not present this problem. Although there is no specific statute of limitations governing actions based on *Page 364 the deprivation of constitutional rights, courts have generally applied the general tort statute of limitations to such actions where a more specific statute does not exist.5 See Williams v. Walsh, 558 F.2d 667,670 (2d Cir.) (applying Connecticut's three-year tort statute of limitations in suit alleging deprivation of constitutional rights under 42 U.S.C. § 1983). General Statutes § 52-577 provides that "[n]o action founded upon a tort shall be brought but within three years from the date of the act or omission complained of." In this case the earliest application of the attendance policy would be the beginning of the 1977-78 school year, the first year the policy went into effect. The complaint was filed on February 20, 1980, which is within the three-year period. Where all of the members of the putative class fall within the limitations period, class certification for those members is proper.6 See Governor'sGrove Condominium Assn., Inc. v. HillDevelopment Corporation, 35 Conn. Sup. 199,201-202. In any event, even if questions of individual compliance with the statute of limitations are found to exist, such a finding is insufficient to justify a denial of class certification where the case also presents numerous common issues. See Cameron v. E. M. Adams Co., 547 F.2d 473, 478 (9th Cir.); Williams v. Sinclair, 529 F.2d 1383, 1388 (9th Cir.), cert. denied, 426 U.S. 936, and cases there cited. *Page 365
Here there is nothing unique about the named plaintiff's legal claims or factual situation. All members challenge the statutory and constitutional validity of the policy without regard to the way in which it was applied in a particular case. The key factor is only whether it was applied not how it was applied. The plaintiff and the putative class members are, have been or will be students at the same *Page 366 high school with the same administration. The effect on them will be basically the same — a reduction of their grades or a denial of credit. The fact that the plaintiff's injury may be more or less extensive than that of some of the class members is not sufficient to make his claims "markedly different" from those of the class. Thus, this case is distinguishable from those cases alleging that a defendant maintains unconstitutional or discriminatory practices in a number of different facilities; see, e.g., Hill v.Western Electric Co., 596 F.2d 99, 101-102 (4th Cir.), cert. denied, 100 S.Ct. 271; Taylor v. SafewayStores, Inc., supra, 270; or where the putative class is so broad and so unrelated to the plaintiff's factual posture that the number of factual variations is endless. See, e.g., Paton v. LaPrade, 524 F.2d 862, 875 (3d Cir.) (high school student who wrote to socialist group for information for a term paper challenges FBI interception of letter on behalf of all persons who have been or will become engaged in correspondence with dissident political groups). On the basis of these principles, the court concludes that the plaintiff's claims are typical of the class.
There is no contention that the plaintiff's representation is anything but adequate. The fact that counsel for the class is experienced in this type of litigation and the quality of the pleadings and briefs lead the court to conclude that counsel is competent and diligent.7 There is no evidence that this is a collusive suit or that the plaintiff's claims are in conflict with those of the class.8 The possibility of antagonistic claims is most apparent in cases involving a significant monetary recovery from private industry where the defendant is likely to go out of business (thereby depriving class members of a service they desire) or pass the increased costs of operation on to the class members, or where the relief sought is not the type desired by all class members. See note, "Class Actions: Rule 23(a)(3) and (4)," 53 Bost. U. L. Rev. 406, 418-27 (1973). The relief sought, if granted, will benefit all members of the *Page 368 class of students adversely affected by the policy.9 In addition this is not the type of case where any monetary award will be passed on to the class, or cause the public school system to collapse. Finally, the plaintiff has been directly and adversely affected by the application of the challenged policy. This gives him a substantial stake in the outcome of the action thereby ensuring vigorous prosecution.10 The mere fact that the plaintiff is a student at present does not disqualify him from acting as a representative of former students. See Governor's Grove CondominiumAssn., Inc. v. Hill Development Corporation,35 Conn. Sup. 199, 203. The court concludes that the plaintiff will fairly and adequately represent the interests of the class.
As stated earlier, the major thrust of this action is a challenge to the defendant's attendance policy on its face, and the only concern with its application in an individual case is whether it was applied, not how it was applied. The case will turn on the common legal questions of whether the promulgation of the policy, in the first instance, was ultra vires, whether the application of the policy to a student violates due process rights, and whether the waiver provision is arbitrary and unconstitutional because of the lack of standards to guide the decision maker. The application of the policy, if unreasonable, harms a student whether that harm be loss of job opportunity or loss of the opportunity to attend the college of his or her choice. As mentioned earlier, when so many common issues exist, it is immaterial that there may be individual questions relating to damages; see Governor's Grove Condominium Assn. v. Hill Development Corporation, 35 Conn. Sup. 199,204; or to compliance with the statute of limitations. See Cameron v. E.M. Adams Co.,547 F.2d 473, 478 (9th Cir.); Williams v. Sinclair,529 F.2d 1383, 1388 (9th Cir.), cert. denied, 426 U.S. 936. The court concludes, therefore, that the common issues of the statutory and constitutional validity of the policy predominate over any individual issues that may exist.
Where, as here, common issues predominate and parties are numerous, the superiority of a class action over individual lawsuits is obvious and has been recognized by the courts. See, e.g., Roper v.Consurve, Inc., 578 F.2d 1106, 1112-13 (5th Cir.), aff'd sub nom., Deposit Guaranty National Bank v.Roper, 100 S.Ct. 1166; Bryan v. Amrep Corporation,429 F. Sup. 313, 318 (S.D. N.Y.); In re SugarIndustry Antitrust Litigation, 73 F.R.D. 322, 358 (E.D. Pa.); Governor's Grove Condominium Assn.,Inc. v. Hill Development Corporation, supra, 204. The reasons for the superiority of class actions over individual suits were set forth by the court in SugarIndustry (p. 358): "(1) the alleged economic injuries to many proposed class members are too minuscule to justify their independent commencement of actions; (2) the proliferation of lawsuits that otherwise would result from the alleged pervasive conspiracy absent class actions will be minimized; (3) duplicative efforts by the judiciary and the litigants will be eliminated; (4) duplicative litigation expenses and attorneys' fees will be prevented; (5) defendants will be relieved from the burden of defending numerous lawsuits geographically scattered throughout the nation; and (6) inconsistent judicial decisions will be avoided." These reasons are applicable in the present case.
The superiority of a class action over individual joinder pursuant to Practice Book, 1978, § 83 has already been demonstrated; the parties are so numerous that joinder is impracticable. Similarly, although some courts and commentators have suggested the desirability of deferring to an administrative agency, where appropriate, rather than proceeding *Page 371 as a class action; see, e.g., Kamm v. CaliforniaCity Development Corporation, 509 F.2d 205,211 (9th Cir.); Schaffner v. Chemical Bank,339 F. Sup. 329, 336 (S.D. N.Y.); Wright Miller, op. cit., § 1779, p. 64; that alternative is foreclosed in this case by this court's ruling on the defendant's motion to dismiss. That ruling held that as between the state board of education and the court, the latter is the preferable forum to litigate these claims.
Finally, in Katz v. Carte Blanche Corporation,496 F.2d 747 (3d Cir.), cert. denied, 419 U.S. 885, the court applied the so-called "test case" procedure, whereby the case proceeds to trial on the merits with the named plaintiff as the only party, and only if liability is found against the defendant is there a determination on the class certification issue. Accord, Carpenter v. Suffolk Franklin SavingsBank, 370 Mass. 314, 346; see generally note, 88 Harv. L. Rev. 825 (1974). The court advanced two major reasons for employing this procedure: (1) by staying the determination of a class the plaintiff is saved the burdensome expense of mailing notice to class members who may not even be necessary to a determination of the issues; and (2) the defendant is saved the burden of having its business harmed or interrupted by the mailing of early notice. Katz v. Carte Blanche Corporation,496 F.2d 747, 760-61. Neither of these considerations is applicable here. In Katz, the putative class included all Carte Blanche credit card holders. The size and geographic diversity of this class would clearly make notice an expensive proposition.11 In this case, the number of possible class members is much smaller and they are all located in the immediate geographical area, making the cost of notice (whether by individual mailing or publication) *Page 372 much less expensive. Secondly, the defendant has failed to demonstrate how early notice would prejudice it, unlike the defendant in Katz who would suffer substantial loss of business if its customers knew it was allegedly engaged in improper conduct prior to a determination of liability. Thus, the court finds the test case procedure inappropriate in this case.12
The above discussion indicates the superiority of a class action over other available methods. Judicial economy is best served by proceeding as a class action. Fairness requires such a procedure since it is likely that class members would be hesitant to proceed individually for fear of retaliation or because of the small economic stake of individual members in the outcome. Manageability also does not appear to be a problem because of the limited size and geographic concentration of the class members. If any problems arise as to manageability of the class, the court is empowered under Practice Book, 1978, § 90 to order an amendment to the pleadings eliminating all reference to absent parties. On the basis of those reasons, the court finds the class action to be the superior method.