Bright v. Isenbarger

• Decision Date: 06 July 1970
• Docket Number: No. 70 F 38.,70 F 38.
• Citation: 314 F. Supp. 1382
• Parties: Darcel L. BRIGHT, by her next friend, Betty L. Royal, Dolly Woods, by her next friend, Arline Woods, individually and on behalf of all other students similarly situated, Plaintiffs, v. Donald ISENBARGER, individually and in his capacity as principal of Central Catholic High School; J. William Lester, individually and in his capacity as Superintendent of the Fort Wayne-South Bend Diocesan Schools, Defendants.
• Court: U.S. District Court — Northern District of Indiana

314 F. Supp. 1382

Darcel L. BRIGHT, by her next friend, Betty L. Royal, Dolly Woods, by her next friend, Arline Woods, individually and on behalf of all other students similarly situated, Plaintiffs, v. Donald ISENBARGER, individually and in his capacity as principal of Central Catholic High School; J. William Lester, individually and in his capacity as Superintendent of the Fort Wayne-South Bend Diocesan Schools, Defendants.

No. 70 F 38.

United States District Court, N. D. Indiana, Fort Wayne Division.

July 6, 1970.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Ivan E. Bodensteiner, Fort Wayne, Ind., for plaintiffs.

Jerome J. O'Dowd, Fort Wayne, Ind., for defendants.

MEMORANDUM OF DECISION AND ORDER

ESCHBACH, District Judge.

This action is before the court upon plaintiffs' motion for a preliminary injunction and upon the defendants' motion to dismiss for failure to state a claim upon which relief may be granted. Plaintiffs, two high school sophomores, seek inter alia to be readmitted into Central Catholic High School, a private parochial secondary school owned by the Roman Catholic Diocese of Fort Wayne-South Bend and operated under the direct supervision of defendant Reverend Donald Isenbarger, its principal, and his superior, defendant Monsignor J. Wm. Lester, the Diocesan Superintendent of Schools. Plaintiffs, who were expelled from Central Catholic High School for violation of a school disciplinary rule, contend that the manner in which they were expelled violated their Fourteenth Amendment right to procedural due process.

The complaint is in two counts: Count I alleges a cause of action under 42 U.S.C. § 1983 and asserts jurisdiction under 28 U.S.C. § 1343, and Count II alleges that defendants deprived plaintiffs of a property right arising out of their payment of tuition without due process of law and asserts jurisdiction under 28 U.S.C. § 1331. The court conducted an evidentiary hearing upon both motions on May 4, 1970. This case in its present posture presents an important constitutional question: Does the Fourteenth Amendment apply to the internal operations of defendants' parochial secondary school.

For the reasons discussed below, plaintiffs' motion for a preliminary injunction will be denied and defendants' motion to dismiss for failure to state a cause of action will be granted. In reaching these results, this court has been mindful of the profound significance of the issues before it. Consequently, this court considered it desirable to state as fully as possible the reasons for its conclusion that Central Catholic High School is not amenable to the due process clause of the Fourteenth Amendment.

I. FACTS

A. Central Catholic High School: Characteristics and Purposes

As noted at the outset, this case involves the expulsion of the two plaintiffs from a private high school owned and operated by the Roman Catholic Church. The Catholic Church encourages Catholic parents to send their children to its schools so that they may be educated in a consciously maintained religious environment. Nearly half of the faculty at Central Catholic High School are members of a Catholic religious order, the principal is a Catholic priest, and the school regularly conducts religious services as part of its program. The local Catholic churches from whose geographical areas students come contribute one-third of the costs of each student's education. Attendance at Central Catholic High School is conditioned upon the payment of tuition of $200 per year for one child. Approximately one-half of the children of Catholic parents in the Fort Wayne-South Bend Diocese attend parochial schools.

Although Central Catholic High School does not bar students who are not adherents to the Roman Catholic faith from attending, over 98 per cent of the 1,000-plus student body are of the Catholic faith. This results from the fact that the school consciously encourages adherence to the Roman Catholic faith. In addition to conducting Catholic religious observances and services and teaching religion, the school has an "executive board" which advises the principal on appropriate discipline when a student shows "public disrespect or ridicule" toward (1) "the Catholic Church or Holy Father," (2) "our country or the office of the President," and (3) "any member of the C.C. faculty or staff."

As Chief Justice Burger has recently stated, parochial elementary and secondary schools

"plainly tend to assure future adherence to a particular faith by having control of children's total education at an early age. No religious body that maintains schools would deny this as an affirmative if not dominant policy of church schools." Walz v. Tax Comm'n of City of New York, 397 U.S. 664, 90 S.Ct. 1409, 1412-1413, 25 L. Ed.2d 697 (1970). See Board of Educ. v. Allen, 392 U.S. 236, 254-269, 88 S.Ct. 1923, 20 L.Ed.2d 1060 (dissenting opinion of Douglas, J.).

B. Central Catholic High School: Relationship with State of Indiana

The parties have stipulated to most of the facts concerning the relationship between Central Catholic High School and the State of Indiana.

By law, every child in Indiana between seven and seventeen years of age must attend a public school "or other school taught in the English language." Ind.Stat.Ann. § 28-505 (Burns' 1968 Cum.Supp.). If a child does not attend the public school, in order to comply with the compulsory attendance law, the school he does attend must be in session for the same period of time as the public school. Id. It is unlawful for parents to refuse to send their child to public school, provided, however, that the parent is excused from this duty if the child "is being provided with instruction equivalent to that given in the public schools." Id. § 28-505o (Burns' 1968 Cum.Supp.).

Indiana imposes two specific requirements as to what must be taught in all schools within the State. All students in grades six through twelve must receive instruction on the federal and State constitutions and the method of such instruction and course materials may be established by the State Board of Education. Id. §§ 28-3406 to 3406c (Burns' 1948 Repl.). Similarly, all schools in the State are required to teach a one semester course in safety education in the eighth grade and the State Board of Education is responsible for the course of study and the study materials. Id. §§ 28-3425 to 3427. More broadly, the State also requires every teacher in the State to present his instruction

"so as to give special emphasis to common honesty, morality, courtesy, obedience to law, respect for the national flag, the constitution of the United States and the constitution of the state of Indiana, respect for parents and the home, the dignity and necessity of honest labor and other lessons of a steadying influence, which tend to promote and develop an upright and desirable citizenry." Id. § 28-3428.

The State provides indirect financial assistance to private schools. Private schools are exempt from property taxes. Id. § 64-201 (Burns' 1969 Supp.). Where children who attend any parochial school reside on a "regular route of a public school bus," transportation "without extra charge" is provided along the regular bus route for such parochial school children. Id. § 28-3903 (Burns' 1968 Cum.Supp.). Central Catholic High School participates in the federal school lunch program, 42 U.S.C. §§ 1751-1761 (1964). The evidence before the court is silent, however, upon the issue of whether Central Catholic High School receives any State funds as a result of its participation in this federal program. The school does, however, receive from the federal government food commodities and ten (10) cents per meal served to its pupils under this program.

The State of Indiana, through the State Board of Education (hereinafter "Board"), does not of its own initiative undertake to accredit, certify or otherwise classify private or parochial schools in the State. However, if a private or parochial school makes a request, the Board will inspect and, if the school meets the specifications required for a certificate or commission, will issue the appropriate certificate or commission. There are four types or classes of certificates or commissions which the Board may issue, and the requirements for each of these four commissions are contained in 2 Adm.Rules & Regs. § 28-3413(2) to (5) (Burns' 1967). In order to qualify for one of the four classes of commissions, the school must meet various requirements concerning length and content of instruction, qualifications and training of principal and teachers, prerequisites for graduation, quality of the school's instructional and physical facilities, etc. There are, however, no regulations or statutes governing or concerning the content of a school's disciplinary rules or the method(s) by which such rules shall or may be enforced or implemented.

There are three considerations which may persuade a private school, although not explicitly required to do so by any State regulation or statute, to request Board certification or commissioning. First, when a student desires to enter any of the public schools of the State of Indiana and has received a part of his previous education at a private school, the public schools are not required to give him credit for scholastic work or achievement done at another school within the State unless that other school was certified or commissioned by the Board. Second, the four State universities will not permit their students in education to receive academic credit for practice teaching unless that teaching is done in a school certified or commissioned by the Board. Third, a prerequisite to membership in the Indiana High School Athletic Association (IHSAA) is that the high school hold a certificate or commission from the Board. No member of the IHSAA may participate in interscholastic athletic activities with a nonmember high school. Central Catholic High School is a member of the IHSAA.

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