Crowley, Daniel v. McKinney, Donald ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-3741
DANIEL CROWLEY,
Plaintiff-Appellant,
v.
DONALD MCKINNEY and BERWYN SOUTH
SCHOOL DISTRICT #100,
Defendants-Appellees.
____________
Appeal from the United States District Court for
the Northern District of Illinois, Eastern Division.
No. 02 C 2091—Charles P. Kocoras, Chief Judge.
____________
ARGUED NOVEMBER 10, 2004—DECIDED MARCH 11, 2005
____________
Before POSNER, WOOD, and EVANS, Circuit Judges.
POSNER, Circuit Judge. The district court dismissed, for
failure to state a claim, Daniel Crowley’s civil rights suit (42
U.S.C. § 1983) against the principal of his children’s school,
and the school district itself. His appeal presents questions
mainly about the right of a noncustodial divorced parent to
participate in his children’s education. Our only source of
facts is the complaint itself plus the divorce decree, of which
we take judicial notice. The summary that follows assumes
the truth of the plaintiff’s allegations, but of course without
vouching for them.
2 No. 02-3741
The children, a boy and a girl, were 8 and 7 when the
complaint was filed in 2002. The parents had been divorced
four years earlier. A marital settlement agreement incorpo-
rated in the divorce decree provides that Mrs. Crowley
“shall have the sole care, custody, control and education of
the minor children.” But this is qualified by a later provision
that the parties “shall have joint and equal rights of access
to records that are maintained by third parties, including . . .
their education . . . records. Each of them shall direct the
school . . . to send them each duplicate notices of all records,
events, and issues concerning the children, and neither of
them shall be responsible to inform the other of any such rec-
ords, events or issues if such direct notice has been or can be
provided for. They shall cooperate to ensure that the
children and other authorities do provide the requested no-
tices and information to both parents regarding their pro-
gress and activities . . . . Each party shall direct the chil-
dren’s school authorities to promptly advise each of them of
the children’s grades and progress in school and of all school
meetings, functions and activities that are open to atten-
dance by parents. They shall cooperate to ensure that such
dual notice is in place.”
The children attend the Hiawatha Elementary School, a
public school in a Chicago suburb. Defendant McKinney is
the school’s principal and is directly responsible for all the
acts of which the plaintiff complains. The superintendent of
the school district (William Jordan, not named as a defen-
dant), the policymaker for the district, knew about
McKinney’s acts but did nothing to stop them.
Crowley had long been critical of the “leadership and di-
rection” of the school by McKinney and Jordan, and had
expressed these criticisms at public meetings. He had also
complained directly to them about his son’s being bullied
by other children and about the school’s “failure to ade-
No. 02-3741 3
quately provide Plaintiff with notices, records, correspon-
dence and other documents” that custodial parents receive.
As a result of that failure, Crowley “must rely on his chil-
dren telling him about matters such as upcoming school
events or injuries suffered at school, and only hears about
incidents such as a gun being brought to Hiawatha School
through third parties.” In letters to McKinney, Crowley
“asked for increased supervision and response to bullying
of his children, and asked that he receive all of the documents
received by custodial parents with children attending
Hiawatha School.” He even “provided the teachers and
McKinney each with 100 self-addressed envelopes, to
facilitate his receipt of all correspondence.” All to no avail:
“Plaintiff’s requests have never been granted, and Plaintiff
still does not receive all of the items to which he is entitled.”
After his son was again beaten up on the school play-
ground, Crowley went to observe his son during recess and
was told that he (that is, Crowley) was not allowed on the
playground. He volunteered to be a playground monitor,
but McKinney turned him down. Once, because his son had
been feeling ill, Crowley called the school to ask whether his
son was at school that day, and the person who answered
the phone refused to tell him. The school also forbade him
to attend a book fair held at the school on Hiawatha School
Day.
These incidents and others narrated in the complaint
caused Crowley emotional distress for which he seeks dam-
ages. No injunctive relief is sought, which is surprising and
casts some doubt on the bona fides of the suit, since we were
told at argument without contradiction that Crowley’s
relations with McKinney and Jordan have not improved.
There is nothing in the complaint about the reaction, if any,
of Mrs. Crowley to her husband’s efforts to obtain school
records of their children or otherwise participate in school
activities.
4 No. 02-3741
Crowley contends that the defendants’ conduct deprives
him of a federal constitutional right to participate in his
children’s education, denies him equal protection of the
laws by arbitrarily distinguishing between custodial and
noncustodial parents, also denies him equal protection by
treating him worse than similarly situated parents because
of McKinney’s personal hostility to him, infringes his free-
dom of speech, and violates Illinois’ school-records act and
the state’s common law of tortious infliction of emotional
distress. The two state law claims are “supplemental” be-
cause they have no independent basis of federal jurisdiction
(i.e., diversity of citizenship), and, as is usual, the district
court relinquished jurisdiction over them when it dismissed
Crowley’s federal claims before trial. 28 U.S.C. § 1367(c)(3).
The claim he presses hardest is that he has a constitutional
right, which the defendants violated, to participate in his
children’s education. Such participation, he argues, is an
aspect of his liberty, and so a state may not deprive him of
it on arbitrary grounds, that is, without according him due
process of law. He thus is claiming a denial of “substantive”
due process. He also claims that he was denied procedural
due process, which is to say notice and an opportunity for
a hearing before his (substantive) right was taken away
from him. We won’t have to consider this claim separately.
Both claims founder on the scope of the federal constitu-
tional right over the education of one’s children.
Crowley relies primarily on a trio of famous Supreme
Court decisions that discuss the constitutional rights of
parents with respect to the education of their children. Meyer
v. Nebraska, 262 U.S. 390 (1923), invalidated a Nebraska law
that forbade the teaching of foreign languages in private (or
public, but that was not in issue) schools. Pierce v. Society of
Sisters, 268 U.S. 510 (1925), invalidated an Oregon law re-
quiring children to attend public school. And Wisconsin v.
No. 02-3741 5
Yoder, 406 U.S. 205 (1972), invalidated a Wisconsin law that
required children to attend high school (public or private)
despite the religious objections of the parents, who were
Amish and didn’t want their children to have a high-school
education. Yoder isn’t pertinent to our case because the
parents based their claim on the free-exercise clause of the
First Amendment rather than on the due process clause.
Meyer and Pierce, however, establish the principle that the
“liberty” that the due process clauses protect includes a
degree of parental control over children’s education.
But those cases are remote from the present case in two
pertinent respects. They are about a state’s right to deny, in
effect, the option of private education, a denial that is a
greater intrusion on parental control of their children than
limiting parents’ involvement in the activities of the public
school that their children attend. And they concern the rights
of parents acting together rather than about the rights re-
tained by a divorced parent whose ex-spouse has sole cus-
tody of the children and has not joined in the noncustodial
parent’s claim. In both respects the parental claim in this
case is weaker. It is weaker because the challenge is to only
one parent’s control, the other’s remaining unimpaired. It is
also weaker because the state interest is stronger. Ne-
braska’s interest in forbidding private schools to teach
foreign languages was tenuous to the point of weirdness,
while Oregon’s project of forcing all children to attend pub-
lic schools implied a hostility to private education that had
no footing in American traditions or educational policy.
Quite apart from parental interests, the statist character and
conformist consequences of giving the state a monopoly of
education sapped Oregon’s policy of constitutional weight.
The defendants in the present case are not denying par-
ents the right to send their children to private schools that
6 No. 02-3741
will not be arbitrarily forbidden to teach subjects of which
the state disapproves. They are not prohibiting home school-
ing. They are not even denying the parents the opportunities
that parents commonly enjoy to participate in the education
of their children; they are denying these opportunities only
to one parent, and that the one who has no custodial rights.
It is difficult for a school to accommodate the demands of
parents when they are divorced. The school does not know
what rights each of the parents has. It knows which parent
has custody, because that parent’s address is the student’s
address, but unless it consults the divorce decree it won’t
know what rights the other parent has. And since physical
and legal custody are different, In re Custody of Peterson, 491
N.E.2d 1150, 1152 (Ill. 1986); In re Howard ex rel. Bailey, 799
N.E.2d 1004, 1005 (Ill. App. 2003), the school will not even
know whether the parent with whom the child lives has
joint or, as here, sole custody.
These difficulties are compounded by the scope of the
federal constitutional right that Crowley is claiming. It is
one thing to say that parents have a right to enroll their
children in a private school that will retain a degree of auto-
nomy and thus be free to teach a foreign language, or
evolution, or human sexual biology, without prohibition by
the state. It is another thing to say that they have a consti-
tutional right to school records, or to be playground moni-
tors, or to attend school functions. Schools have valid
interests in limiting the parental presence—as, indeed, do
children, who in our society are not supposed to be the
slaves of their parents. Imagine if a parent insisted on sitting
in on each of her child’s classes in order to monitor the
teacher’s performance or on vetoing curricular choices,
texts, and assignments.
Federal judges are ill equipped by training or experience
to draw the line in the right place, and litigation over where
No. 02-3741 7
to draw it would be bound to interfere with the educational
mission. It would do so not only by increasing schools’ legal
fees but also and more ominously by making school admin-
istrators and teachers timid because fearful of being entan-
gled in suits by wrathful parents rebuffed in their efforts to
superintend their children’s education. Interests of constitu-
tional weight and dignity are on both sides of the ledger
because academic freedom, which is an aspect of freedom of
speech, includes the interest of educational institutions,
public as well as private, in controlling their own destiny
and thus in freedom from intrusive judicial regulation.
Grutter v. Bollinger, 539 U.S. 306, 324 (2003); Keyishian v.
Board of Regents, 385 U.S. 589, 603 (1967); Chicago Board of
Education v. Substance, Inc., 354 F.3d 624, 630-31 (7th Cir.
2003); Osteen v. Henley, 13 F.3d 221, 225-26 (7th Cir. 1993);
Bickerstaff v. Vassar College, 196 F.3d 435, 455-56 (2d Cir.
1999); EEOC v. Amego, Inc., 110 F.3d 135, 145 (1st Cir. 1997).
Paradoxically, in Meyer and Pierce the state was trying to
weaken or encumber private education while here the
plaintiff is trying to fasten a constitutional albatross to the
neck of a public school.
The intrusion on public education to which Crowley is
inviting the federal judiciary is magnified when the right of
participation in a child’s public-school education is claimed
by a noncustodial parent. Of course divorce does not sever
the parental relation and by doing so extinguish the funda-
mental rights that go with it; the state could not “divorce”
Crowley from his children unless he were a menace to them.
705 ILCS 405/2-21; 750 ILCS 50/8; In re D.C., 807 N.E.2d
472, 476 (Ill. 2004); In re Cheyenne S., 815 N.E.2d 1186, 1190-
91 (Ill. App. 2004); Quinn v. Neal, 998 F.2d 526, 532 n. 6 (7th
Cir. 1993) (Illinois law). Divorce has become so common
that it appears that today as many as 10 percent of all
schoolchildren are the children of divorced parents. See
8 No. 02-3741
http://www.census.gov/population/socdemo/hh-fam/
cps2003/tabC3-all.pdf. It does not follow that a public
school is to be charged with knowledge of the contents of
the divorce decrees of its students’ divorced parents or that
it must allow itself to be dragged into fights between such
parents over their children. On the contrary, the more chil-
dren of divorced parents there are, the greater the burden
on schools of arbitrating the quarrels of divorced parents.
Granted, there is no allegation that Crowley and his ex-
wife are actually at loggerheads over the education of their
children. If they were, Crowley would be denied standing
to sue by Elk Grove Unified School District v. Newdow, 124 S.
Ct. 2301 (2004), the recent “under God” pledge of allegiance
case. The Court described it as a case in which the plaintiff
“wishes to forestall his daughter’s exposure to religious
ideas that her mother, who wields a form of veto power,
endorses, and to use his parental status to challenge the
influences to which his daughter may be exposed in school
when he and [the mother] disagree . . . . [I]t is improper for
the federal courts to entertain a claim by a plaintiff whose
standing to sue is founded on family law rights that are in
dispute when prosecution of the lawsuit may have an
adverse effect on the person who is the source of the
plaintiff’s claimed standing.” Id. at 2311-12. Newdow should
not be overread to extinguish the constitutional rights of
noncustodial parents. Mr. Newdow’s right to try to argue
his daughter out of believing in God was not in issue. It was
her right to religious freedom that was in issue and that he
was suing to enforce, and all the Court held was that he
lacked standing to do so, at least in the face of the custodial
parent’s objection.
In the procedural posture of the present case we cannot
assume that the divorced parents are fighting over their
children’s education; and anyway the issue is not Crowley’s
No. 02-3741 9
standing to sue on behalf of his children. But common sense
tells us that he and his ex-wife are not cooperating, since she
has not joined in his demands on the school.
It is also apparent—indeed it is a part of the complaint
with its state law claims and its appended divorce decree—
that Crowley has rights under state law that weaken the
need to recognize a federal constitutional right. Illinois law
entitles him to copies of the children’s school records, and
the divorce decree makes clear that he has not waived that
right and also that he is entitled to enlist his wife’s coopera-
tion in furthering any legitimate concerns that he has about
his children’s education. No doubt most divorced parents
want to have as little to do with each other as possible. But
that interest is no greater than the state’s interest in keeping
its schools free as far as possible from becoming mired in
the sequelae of divorce.
An example will flag another flaw in Crowley’s case.
Were Mrs. Crowley to move out of School District No. 100,
then, since she has sole custody of the children, they would
move with her. Suppose her new locale lacked a decent
public school and so she enrolled the children in a private
school. Because a private school is not a public agency, Mr.
Crowley would have no constitutional right to participate
in his children’s education at their new school. What this
example highlights is that in the divorce decree Mr. Crowley
surrendered the only federal constitutional right vis-à-vis
the education of one’s children that the cases as yet recog-
nize, and that is the right to choose the school and if it is a
private school to have a choice among different types of
school with different curricula, educational philosophies,
and sponsorship (e.g., secular versus sectarian). It is not a
right to participate in the school’s management—a right
inconsistent with preserving the autonomy of educational
institutions, which is itself, as we have noted, an interest of
constitutional dignity.
10 No. 02-3741
The distinction is illuminated by cases that discuss other
aspects of parents’ constitutional rights. Troxel v. Granville,
530 U.S. 57, 65-73 (2000), invalidated a state law that con-
ferred broad discretion on the state’s courts to override a
custodial parent’s wish to limit (not eliminate) visits by her
children’s grandparents. The case has a dual significance for
the present case. First, it recognizes that one aspect of the
parental right is a right against other relatives—a right to
prevent a tug of war over the children—in this case Mrs.
Crowley’s right to decide what school the children shall
attend. Second, it suggests the strength that the parental in-
terest must attain to achieve constitutional status. At stake
in Troxel was Mrs. Granville’s control of her children, con-
tested by the grandparents and the court that sided with
them. At stake in Santosky v. Kramer, 455 U.S. 745 (1982),
another case in which a state law was invalidated as an in-
fringement of parental liberty, was the parental right itself.
See also Stanley v. Illinois, 405 U.S. 645, 646-52 (1972). At
stake in the present case is the slighter interest of Mr.
Crowley in micromanaging his children’s education at the
school properly chosen for them.
So we greatly doubt that a noncustodial divorced parent
has a federal constitutional right to participate in his chil-
dren’s education at the level of detail claimed by the plaintiff.
But if we are wrong it cannot change the outcome of this
case. As should be apparent from our discussion, the
existence of the right that Crowley asserts is not established
law, and McKinney is therefore immune from having to pay
damages for violating that right. The school district is not
entitled to immunity. But the complaint makes clear that
Jordan’s (and hence the school district’s) participation in
McKinney’s acts was limited to not doing anything about
them. Inaction by a public agency is insufficient participa-
tion in a subordinate’s misconduct to make the agency liable
No. 02-3741 11
in a suit under 42 U.S.C. § 1983 unless the policymaking
level at the agency has deliberately decided to take no action
against, and thus in effect to condone, to ratify, the miscon-
duct and so adopt it as the agency’s (unofficial) policy. City
of Canton v. Harris, 489 U.S. 378, 388-89 (1989); Lenard v.
Argento, 699 F.2d 874, 886 (7th Cir. 1983); Berry v. Baca, 379
F.3d 764, 767 (9th Cir. 2004); Daskalea v. District of Columbia,
227 F.3d 433, 441 (D.C. Cir. 2000). And that is not alleged.
We turn to Crowley’s double-barreled equal protection
claims. He argues first that McKinney discriminates against
noncustodial parents. The complaint strongly suggests that
McKinney’s refusal to allow Crowley access to school rec-
ords, school premises, and so forth was motivated not by
Crowley’s status as a noncustodial parent but by animosity
toward Crowley arising from the latter’s criticisms of the
Hiawatha school and its management—that is, McKinney.
Insofar as the claim does allege discrimination against non-
custodial parents as such, it merely recharacterizes the due
process claim as an equal protection claim and encounters
the same objections and the same defense of immunity.
That animosity we just mentioned is, however, the pivot
on which Crowley’s other equal protection claim turns— the
claim that he has been singled out by a public official for
adverse treatment because of the official’s personal hostility
toward him. In so claiming Crowley invokes the “class of
one” equal protection cases, most recently Tuffendsam v.
Dearborn County Board of Health, 385 F.3d 1124, 1127 (7th Cir.
2004), where we noted that our cases have articulated two
standards for determining whether a “class of one” viola-
tion has been shown. The first, set forth in Hilton v. City of
Wheeling, 209 F.3d 1005, 1008 (7th Cir. 2000), requires
“evidence that the defendant deliberately sought to deprive
[the plaintiff] of the equal protection of the laws for reasons
of a personal nature unrelated to the duties of the defen-
12 No. 02-3741
dant’s position.” The second allows a class-of-one case to be
proved simply by showing that the defendant had without
a rational basis intentionally treated the plaintiff differently
from others similarly situated. But as we went on to explain
in Tuffendsam, “these divergent strands . . . can . . . be woven
together by noting that intentionality is an ambiguous
concept, shading at one end into mere knowledge of likely
consequences and at the other into a desire for those conse-
quences. The [defendant] ‘intentionally’ treated the plaintiff
worse than it treated her predecessors and neighbors in the
sense that it knew—it had to know—that its pattern of
enforcement was uneven. But it did not ‘intentionally’ treat
the plaintiff worse in the sense of wanting her to be made
worse off than those others. And it is the latter sense in
which a ‘class of one’ case requires a showing that govern-
ment ‘intentionally’ treated the plaintiff worse than others.”
385 F.3d at 1187.
If McKinney would not have treated Crowley as he did
had it not been for his strong personal dislike of the latter,
he denied him the equal protection of the laws under either
formulation. Denied it prima facie, that is to say; for animus
is not a sufficient condition for a class-of-one claim to
succeed. If McKinney, however much he disliked Crowley,
would have acted the same way toward him had he not
disliked him, perhaps because Crowley’s behavior was
disrupting school discipline, then the concurrence of an
improper motive would not condemn the act. Palmer v.
Thompson, 403 U.S. 217, 224-26 (1971); Grossbaum v.
Indianapolis-Marion County Building Authority, 100 F.3d 1287,
1293 (7th Cir. 1996); Nottelson v. Smith Steel Workers D.A.L.U.
19806, AFL-CIO, 643 F.2d 445, 454 n. 11 (7th Cir. 1981). And
that may well be the case. But we have only the complaint
to go on. As this claim was adequately pleaded, the dis-
missal of it on the pleadings was premature.
No. 02-3741 13
And likewise the dismissal of the First Amendment claim.
The district judge thought that Crowley was alleging only
a personal dispute with McKinney and Jordan. The Consti-
tution does not protect a public employee from workplace
retaliation for statements that were intended not to alter
public opinion or beliefs but merely to resolve a personal
grievance on favorable terms. Connick v. Myers, 461 U.S. 138,
146-47 (1983); Kokkinis v. Ivkovich, 185 F.3d 840, 843-44 (7th
Cir. 1999); Cobb v. Pozzi, 363 F.3d 89, 101-02 (2d Cir. 2004).
And there is no doubt that most of the criticisms that
Crowley made of the defendants are correctly described as
“personal.” But we cannot overlook the allegation in the
complaint that “in the years leading up to the acts com-
plained of in this Complaint, Plaintiff had been, at times,
openly critical of Hiawatha School, District #100 and, by
implication, the leadership and direction of Superintendent
Jordan and Defendant McKinney, at public meetings.” So
the criticisms preceded the specific dispute and were
expressed not merely openly but at public meetings. The
next paragraph of the complaint, moreover, states that “the
Plaintiff has also questioned and criticized McKinney and
Jordan directly” about the school’s “inadequate responses
to incidents of Plaintiff’s son being bullied,” etc., and the
word we’ve italicized indicates a transition to the criticisms
that were incidental to Crowley’s specific grievance over the
school’s failure as he saw it to do right by his son. The latter
criticisms may not be protected by the First Amendment, but
the former are.
Because we are reversing the dismissal of two of the federal
claims, the district court should reinstate the supplemental
state claims. If on remand the federal claims are again
dismissed before trial, the court will of course be free to
again relinquish jurisdiction over the state claims.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
14 No. 02-3741
WOOD, Circuit Judge, dissenting in part, concurring in part.
This case is about a father’s constitutional right to partici-
pate meaningfully in the upbringing of his children. The
question, as I see it, is whether the state (in this case through
the agency of a local school district and its principal) may
effectively terminate a noncustodial father’s parental rights,
through measures that deprive him altogether from the
most important activity in which children under the age of
eighteen engage: their education. The majority sees no
federal constitutional dimension in the deprivations that the
school district has imposed upon Daniel Crowley, not-
withstanding the existence of Supreme Court cases directly
recognizing these kinds of parental rights and notwith-
standing the fact that its assumptions about the degree to
which his parental rights have been circumscribed by virtue
of his divorce decree are exaggerated at best, mistaken at
worst. Unless we are to create a new exception to cases
brought under 42 U.S.C. § 1983 for actions like this that
conceivably could be addressed by state family law courts—
an action that I believe to be beyond this court’s authority,
even if the Supreme Court might choose to take this step
some day—Crowley is entitled to proceed on his liberty
claims. To the extent that the majority opinion holds other-
wise, I dissent. I concur in the majority’s conclusion that
Crowley has stated an equal protection claim and a First
Amendment claim that must be reinstated, along with his
supplemental state claims.
The difference between the majority and myself goes to
the heart of one’s understanding of the Due Process Clause’s
protection of certain fundamental liberties. The majority
acknowledges the “trio” of Supreme Court decisions that
recognize constitutional rights of parents with respect in
particular to the education of their children: Meyer v. Nebraska,
262 U.S. 390 (1923); Pierce v. Society of Sisters, 268 U.S. 510No. 02-3741 15
(1925); and Wisconsin v. Yoder, 406 U.S. 205 (1972). (If these
cases have something to say about other “privacy” rights,
such as the right to choose whether to have an abortion, see
Roe v. Wade, 410 U.S. 113, 152-53 (1973), surely they have
even more to say about the topic directly at issue—namely,
parental rights in education.)
Contrary to the majority’s suggestion, this line of cases is
not remote from the present case in any respect. First, even
if they were about the state’s right to deny parents the right
to choose one form of education for their children—private
education—the present case is about the state’s ability to
deny a parent’s right to participate at all in the free public
education to which every child in the State of Illinois is en-
titled. See Ill. Const. Art. 10 § 1. I would be hard pressed to
characterize the latter as somehow “less important” than
deprivation of the choice to use private schools. Second, the
majority gleans from the earlier cases the proposition that
they concern only the rights of parents acting together. But
there is nothing at all in those decisions that hints at such a
distinction. As I discuss in a moment, the Supreme Court’s
cases over the course of the last hundred years have all
looked in the opposite direction, by recognizing and sup-
porting the rights of less traditional parents.
In fact, as a sheer matter of realpolitik, the majority’s rule
courts disaster for an enormous number of children in this
country whose parents have become divorced. For example,
in the provisional data presented on a state-by-state basis
for 2003 published by the National Vital Statistics Reports,
we learn that in Illinois that year there were 82,076 mar-
riages and 34,553 divorces (that is, 42% of the number of
marriages). Illinois, however, has a divorce rate on the low
end of the spectrum. In Texas, the numbers are 167,341
marriages and 80,092 divorces (48%); in New York there were
120,754 marriages and 62,294 divorces (52%); in Colorado
16 No. 02-3741
there were 36,387 marriages and 19,280 divorces (53%); and
in Florida there were 155,240 marriages and 84,496 divorces
(54%). National Vital Statistics Reports, vol. 52, no. 22, June
10, 2004, Table 3, available at http://www.cdc.gov/nchs/
data/nvsr/nvsr52/nvsr52_22.pdf. (Unfortunately the table
does not present aggregate national figures, because some
states do not furnish divorce statistics.) To take a common
phrase out of context, the majority’s rule would result in
quite a few children “left behind,” in the sense that the
states could with impunity deprive one of the two parents
of the right to participate in the child’s education.
In fact, as I have already noted, the principle that the
“liberty” protected by the Due Process clauses includes a
parent’s right to control the upbringing and education of his
children is well-established. Moreover, as the majority
acknowledges, “divorce does not sever the parental relation
and by doing so extinguish the fundamental rights that go
along with it; the state could not ‘divorce’ Crowley from his
children unless he were a menace to them.” Ante at 7-8. And
lest there remain any question whether a noncustodial
parent’s rights evaporate after relinquishing custody, the
majority opinion correctly notes that the Supreme Court’s
recent decision in Elk Grove Unified Sch. Dist. v. Newdow, 124
S. Ct. 2301 (2004), “should not be overread to extinguish the
constitutional rights of noncustodial parents.” Ante at 8.
Notwithstanding its nod toward these principles, the
majority implies that a noncustodial parent’s fundamental
rights are not entitled to the same degree of protection as
those of the custodial parent. Nothing in the Constitution,
however, supports such a proposition. While a state may
limit any parent’s access to and responsibility for his chil-
dren, the Court has emphasized that parental rights may not
be extinguished arbitrarily. Santosky v. Kramer, 455 U.S. 745,
753 (1982) (“The fundamental liberty interest of natural
No. 02-3741 17
parents in the care, custody, and management of their child
does not evaporate simply because they have not been
model parents or have lost temporary custody of their child
to the State.”). Getting somewhat closer to our case, the
Court has also rejected the claim that the relationship
between natural parents and children born out of wedlock
is not worthy of equal constitutional protection. See Stanley
v. Ill., 405 U.S. 645, 651 (1972) (holding that an unwed father
retains the fundamental interest and right to raise his
children and the law cannot refuse to recognize those family
relationships not “legitimized” by a marriage ceremony);
Caban v. Mohammed, 441 U.S. 380, 394 (1979) (striking down
a New York law permitting an unwed mother, but not an
unwed father, to block the adoption of their child on equal
protection grounds). Even where the Court has rejected an
unwed father’s challenge to an adoption, it did so not on the
basis of his status, but rather on the basis of whether a
relationship exists at all between the father and his children.
See Quilloin v. Walcott, 434 U.S. 246, 256 (1978) (holding that
the protected interests of a father not fully committed to par-
enthood and thus possessing only a potential relationship
with his child are less significant than those of a parent who
has assumed that responsibility); Lehr v. Robertson, 463 U.S.
248, 261-62 (1983) (same).
These cases tell us that a noncustodial parent’s interests
are no less significant than those of other parents. There is
no question that Crowley is fully committed to parenthood—
he seeks to continue to develop the relationships he has had
with his children since their birth. Nor are there any allega-
tions that he is unfit to continue in his role as a parent. Per-
haps the majority is concerned by the entirely hypothetical
prospect of having to “arbitrat[e] the quarrels of divorced
parents,” but as it readily acknowledges, the right Crowley
seeks to assert is not incompatible with the custodial parent’s
exercise of her rights. Ante at 8.
18 No. 02-3741
Even if there were some tension between the rights of the
two parents, it does not follow that the Constitution affords
lesser protection to a noncustodial parent. As is the case
with the property component of the Due Process clause, the
Constitution does not create liberty interests; it merely pro-
tects interests created elsewhere, usually under state law.
See, e.g., Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538
(1985); Paul v. Davis, 424 U.S. 693, 710 (1976). We must
therefore look to state law to see what parental rights
Crowley retained after his divorce. See Newdow, supra, 124
S. Ct. at 2311 (looking to state law to determine whether a
noncustodial father’s right to inculcate his daughter with his
religious beliefs and bring a claim on her behalf was
extinguished under a divorce decree).
Under Illinois law, divorce does not automatically extin-
guish all parental rights. See 750 ILCS § 5/602.1(a) (“[T]he
dissolution of marriage . . . or the parents living separate
and apart shall not diminish parental powers, rights, and
responsibilities except as the court for good reason may
determine” under the best interest of the child standard).
Nor does it limit a noncustodial parent’s right to participate
in his or her children’s education. To the contrary: section 5
of the Illinois School Student Records Act (ISSRA) provides
that “a parent shall have the right to inspect and copy all
school student permanent and temporary records of that
parent’s child,” and only restricts this right in the case of a
parent “who is prohibited by an order of protection from
inspecting or obtaining school records of a student pursuant
to the Illinois Domestic Violence Act of 1986.” 105 ILCS
10/5(a); see also 105 ILCS 10/2(g) (“ ‘Parent’ means a per-
son who is the natural parent of the student or other person
who has the primary responsibility for the care and up-
bringing of the student.”).
The statute addresses both sides of the coin: after confer-
ring on the parent the right to inspect and copy his child’s
No. 02-3741 19
school records, it imposes on the school the obligation to
comply with a noncustodial parent’s request to exercise this
right. See 105 ILCS 5/10-21.8 (“In the absence of any court
order to the contrary to require that, upon the request of
either parent of a pupil whose parents are divorced, copies
of the following: reports or records which reflect the pupil’s
academic progress, reports of the pupil’s emotional and
physical health, notices of school-initiated parent-teacher
conference, notices of major-school sponsored events, such
as open houses, which involve pupil-parent interaction, and
copies of school calendar regarding the child which are
furnished by the school district to one parent be furnished
by mail to the other parent.”).
The default rule in Illinois is thus one that recognizes a
noncustodial parent’s right to participate in his children’s
education. Crowley’s parental rights thus extend at least
that far, unless there is something in his divorce decree to
the contrary. There is not. The Crowleys’ martial settlement
agreement, incorporated in their divorce decree, provides
that both parents “shall have joint and equal rights of access
to [their children’s] records that are maintained by third
parties, including . . . their education . . . records.” Crowley
expressly retains the right to receive information concerning
school activities, as the agreement provides that “[e]ach
party shall direct the children’s school authorities to
promptly advise each of them of their children’s grades and
progress in school and of all school meetings, functions and
activities that are open to attendance by parents.” Thus,
under both state law and the divorce decree, Crowley has
the right to participate in his children’s education. Nothing
suggests that his status as the noncustodial parent dilutes
that right at all.
Crowley’s complaint, which we must accept as true for
present purposes, alleges that the defendants engaged in a
20 No. 02-3741
pattern of conduct that amounted to a complete deprivation
of this right. Not only is he barred from school grounds
during the day and excluded from class and school func-
tions open to attendance by all parents, but his requests for
his children’s school records and calendars, to which he is
entitled by law, were also denied. Furthermore, the school
also refuses to respond to his concerns about the safety of
his children or to his inquiries regarding whether his chil-
dren were in attendance on a particular day. These actions
amount to an absolute barrier to Crowley’s right to partici-
pate in his children’s education. How can he exercise this
right when he does not know what his children are being
taught or even whether his children are in school?
The majority justifies its holding in part by a concern for
the school’s interest in academic freedom, but nothing that
Crowley is seeking would interfere at all with the educa-
tional mission of the school. He has no quarrel with the
school’s curriculum. Nor does he seek any extraordinary
privileges, such as the right to sit in his children’s classes to
monitor the teacher’s performance, or the right to dictate
what or how his children will be taught. Rather, he chal-
lenges only his exclusion from activities and information
that are available to all other parents, under whatever neu-
tral criteria the school has chosen to adopt.
The majority’s fears about disruption brought about by a
parent’s request for his children’s school records—an
intrusion it finds magnified when the request comes from a
noncustodial parent—are wholly unsupported by Illinois
law. A school has little discretion in this matter, because the
rules are set by state law. It need not consult a divorce
decree or inquire into the relationship between the parents
to determine whether the noncustodial parent retains the
right to this information. Instead, under the statute, it is re-
quired to proceed on the assumption that this right has not
No. 02-3741 21
been extinguished in the absence of a court order stating the
contrary. See 105 ILCS 5/10-21.8 (“[A] school board shall
not . . . refuse to mail copies of reports, records, notices or
other documents regarding a pupil to the parent of the
pupil . . . unless the school board first has been furnished
with a certified copy of the court order prohibiting the
release of such reports, records, notices or other documents
to that parent.”). Unless or until the school receives such a
certified copy of a court order, it knows what it must do:
furnish the information to both parents, custodial and non-
custodial alike.
The existence of these Illinois laws might make one ask
why Crowley turned to the federal court to redress this
grievance, instead of going to either the Illinois court that
granted his divorce or to any competent Illinois court
empowered to enforce the obligations created by state law.
The short answer is that there is no general exhaustion re-
quirement that governs cases under § 1983—a proposition
the Supreme Court has recognized for many years. See, e.g.,
Zinermon v. Burch, 494 U.S. 113, 125 (1990) (once a wrong
has properly been characterized as a constitutional tort, the
fact that it may also be redressable under state law does not
bar the victim from bringing an action under § 1983); Patsy
v. Bd. of Regents of State of Fla., 457 U.S. 496, 516 (1982) (no
administrative exhaustion requirement for § 1983 claims).
The question is therefore whether there is something about
Crowley’s case that would justify an exception to that
general rule.
In the area of takings law, the Supreme Court has crafted
a ripeness rule that has an effect similar to that of an ex-
haustion requirement: it has held that a claim of an uncon-
stitutional taking is not ripe until the governmental entity
charged with implementing the regulatory scheme has
reached a final decision. Williamson County Reg’l Planning
22 No. 02-3741
Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172, 186
(1985). Given the primary responsibility that states have for
the field of family law, cf. 13B Wright, Miller & Cooper § 3609
(2d ed. 1984) (discussing the judicially created limitation on
diversity jurisdiction for domestic relations cases), perhaps
the Supreme Court might hold some day that a parental
rights claim of the type Crowley is pressing is not ripe until
state remedies have been exhausted.
There is no doubt that Illinois provides a wide range of
remedies that might produce the result he wants. Under the
ISSRA, Crowley has the right to seek injunctive relief in
state court for the violation of the Act allegedly committed
by the school district when it denied him access to his
children’s school record. ISSRA § 9(a), 105 ILCS 10/9(a)
(“Any person aggrieved by any violation of this Act may
institute an action for injunctive relief in the Circuit Court of
the County in which the violation has occurred or the
Circuit Court of the County in which the school is located.”);
see John K. v. Bd. of Educ. for Sch. Dist. No. 65, 504 N.E.2d 797,
802 (Ill. App. Ct.), appeal denied, 511 N.E.2d 429 (Ill. 1987).
Crowley can also bring a claim against school district
officers for their failure to discharge their duties. See 105
ILCS 5/22-8 (“If any county superintendent, trustee, director,
or other officer negligently or wilfully fails or refuses to
make, furnish or communicate statistics and information, or
fails to discharge any other duties enjoined upon him, at the
time and in the manner required by this Act, he shall be
guilty of a petty offense and shall be liable to a fine of not
less than $25, to be recovered before any circuit court at the
suit of any person on complaint in the name of the People of
the State of Illinois, and when collected the fine shall be
paid to the county superintendent of schools.”). Finally, if
the source of the problem is in the divorce decree itself,
Crowley has the right to return to that court and seek a
modification of the decree.
No. 02-3741 23
The only problem with this theory is the not-so-small flaw
that it flies in the face of well-established rules governing a
person’s right to invoke § 1983 in federal court to redress
violations of federal constitutional or statutory law. I merely
note the possibility because, when all is said and done, the
thrust of the majority’s opinion seems to be that such a
solution would be preferable. But it is not for us to reject an
otherwise sound claim under § 1983 just because it overlaps
to a greater or lesser degree with state remedies.
When the Supreme Court invalidated an Oregon law re-
quiring parents to send their children to public school, it
explained that “[t]he child is not the mere creature of the
State; those who nurture him and direct his destiny have the
right, coupled with the high duty, to recognize and prepare
him for additional obligations.” Pierce, 268 U.S. at 535.
Depriving a parent of all information concerning his chil-
dren’s education such that he is effectively shut out of this
aspect of parenting conflicts with that long-established right.
I would therefore find that Crowley has stated a claim, and
that Principal McKinney is not entitled to qualified immu-
nity. I respectfully dissent from this portion of the opinion,
and I concur in the majority’s decision to remand the equal
protection and First Amendment claims and to reinstate the
supplemental state claims.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—3-11-05