Fleischfresser v. Directors of School Dist. 200, 92-3674

• Citation: 15 F.3d 680
• Decision Date: 02 February 1994
• Docket Number: No. 92-3674,92-3674
• Parties: , 28 Fed.R.Serv.3d 217, 89 Ed. Law Rep. 429 Gerald H. FLEISCHFRESSER, et al., Plaintiffs-Appellants, v. DIRECTORS OF SCHOOL DISTRICT 200, a Body Politic and Corporate, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 680

15 F.3d 680

62 USLW 2492, 28 Fed.R.Serv.3d 217,

89 Ed. Law Rep. 429

Gerald H. FLEISCHFRESSER, et al., Plaintiffs-Appellants, v. DIRECTORS OF SCHOOL DISTRICT 200, a Body Politic and Corporate, Defendant-Appellee.

No. 92-3674.

United States Court of Appeals Seventh Circuit.

Argued Sept. 10, 1993.

Decided Feb. 2, 1994.

Robert V. Gildo, Wheaton, IL, for plaintiff-appellant.

Lawrence J. Weiner, Anthony G. Scariano, Justino D. Petrarca, John D. Dalton, Lisa A. Rapacz, Scariano, Kula, Ellch & Himes, Chicago, IL, John M. Izzo (argued), Scariano, Kula, Ellch & Himes, Chicago Heights, IL, for defendant-appellee.

Before BAUER, EASTERBROOK, and RIPPLE, Circuit Judges.

BAUER, Circuit Judge.

Parents of students enrolled in grades Kindergarten through Five in Lowell Elementary School of School District 200 in Wheaton, Illinois, brought this action to enjoin the directors of the school district from continuing to use the Impressions Reading Series as the main supplemental reading program for these grades. The parents claim the use of this series violates the Establishment and Free Exercise Clauses of the First Amendment. The directors filed a motion to dismiss the complaint, which the district court treated as a motion for summary judgment, and the district court dismissed the action. We affirm.

I. Facts and Procedural History

The school district has included the Impressions Reading Series in its curriculum since February 1988. The parents claim that the Lowell Elementary School has used this series as a "supplemental reading program" and will continue to "teach, instruct and otherwise educate the students" with this series. The parents allege that the series "fosters a religious belief in the existence of superior beings exercising power over human beings by imposing rules of conduct, with the promise and threat of future rewards and punishments," and focuses on supernatural beings including "wizards, sorcerers, giants and unspecified creatures with supernatural powers." ¹ The parents also claim that use of the series "indoctrinates children in values directly opposed to their Christian beliefs by teaching tricks, despair, deceit, parental disrespect and by denigrating Christian symbols and holidays." They cast these allegations in the form of violations of the Establishment and Free Exercise Clauses of the First Amendment.

The parents filed this action in the Circuit Court of DuPage County, Illinois, and the directors removed it to the district court. The district court granted the directors' first motion to dismiss and granted the parents leave to file an amended complaint. Then, the directors moved the district court to dismiss the amended complaint pursuant to Fed.R.Civ.P. 12(b)(6). Because the parents had only appended excerpts of the series to their amended complaint, the district court asked them to provide the complete series, which they did. Finally, after reviewing the series, the district court dismissed the parents' action.

II. Standing

The parents, not the students by their parents, have brought this suit. Therefore, as a threshold matter, we must determine whether the parents have standing to raise these claims; if the parents lack standing to bring this suit, we do not have jurisdiction to consider it. Allen v. Wright, 468 U.S. 737, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984); Harris v. City of Zion, 927 F.2d 1401 (7th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 3025, 120 L.Ed.2d 897 (1992). To satisfy constitutional standing requirements, the parents must allege "personal injury fairly traceable to the [directors'] challenged conduct and likely to be redressed by the requested relief." Allen, 468 U.S. at 751, 104 S.Ct. at 3324. In this case, we must be sure that the parents are raising rights personal to them and not the rights of their children.

The parents have standing to challenge alleged violations of the Establishment Clause of the First Amendment if they are directly affected by the government action, here, the use of the series. Courts have recognized that parents have standing as a result of their right to direct the religious training of their children. See Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972); Abington Sch. Dist. v. Schempp, 374 U.S. 203, 224 n. 9, 83 S.Ct. 1560, 1572 n. 9, 10 L.Ed.2d 844 (1963); McCollum v. Board of Educ., 333 U.S. 203, 68 S.Ct. 461, 92 L.Ed. 649 (1948); Mozert v. Hawkins County Bd., 827 F.2d 1058 (6th Cir.1987), cert. denied, 484 U.S. 1066, 108 S.Ct. 1029, 98 L.Ed.2d 993 (1988); Grove v. Mead Sch. Dist. No. 354, 753 F.2d 1528, 1532 (9th Cir.), cert. denied, 474 U.S. 826, 106 S.Ct. 85, 88 L.Ed.2d 70 (1985). Consistent with these other cases, we hold that the parents have standing to raise their claim alleging a violation of the Establishment Clause because the impermissible establishment of religion might inhibit their right to direct the religious training of their children.

With respect to the alleged violation of the Free Exercise Clause, the parents have standing only if they claim infringement of their personal religious freedom. McGowan v. Maryland, 366 U.S. 420, 429, 81 S.Ct. 1101, 1107, 6 L.Ed.2d 393 (1961). One aspect of the religious freedom of parents is the right to control the religious upbringing and training of their minor children. See Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972); Grove, 753 F.2d at 1531. In this case, the parents have a direct, personal right to direct their children's religious training. See Grove, 753 F.2d at 1531; Collins v. Chandler Unified Sch. Dist., 644 F.2d 759, 764 n. 1 (9th Cir.), cert. denied, 454 U.S. 863, 102 S.Ct. 322, 70 L.Ed.2d 163 (1981). Therefore, the parents have standing to bring this claim as well.

III. Rules 12(b)(6) and 56

We now turn to the parents' claim that the district court improperly converted the directors' motion to dismiss to a motion for summary judgment. As we have discussed, the district court's order responded to the directors' motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). The district court did not explicitly notify the parties that it was treating the directors' motion to dismiss as one for summary judgment. Further, the district court, in its abbreviated opinion, did not label its decision as one for summary judgment. The district court did consider, however, material extraneous to the pleadings--the entire reading series. From our vantage point, we can see that the district court did, in fact, treat the motion as one for summary judgment, and our task is to determine whether the parents have been prejudiced by this treatment.

Rule 12(b) commands that if a district court considers material that is not included in the pleadings, the district court must treat the motion to dismiss as one for summary judgment. ² The parents do not claim that the series was a part of their amended complaint. Moreover, both parties agreed, in arguments to both the district court and to this court, that the evaluation of the entire series was critical to the resolution to the parents' claims. So, while the district court did not explicitly inform the parties of its obligation to treat the motion to dismiss as one for summary judgment, both parties had every reason to know that extraneous material was being considered and are held to know that Rule 12(b)(6) compelled the district court to consider the motion to dismiss as one for summary judgment. The parents, then, cannot claim surprise.

In addition, the district court's failure to provide explicit notice is not fatal to its decision in this case. See Farries v. Stanadyne/Chicago Div., 832 F.2d 374, 377 (7th Cir.1987); Malak v. Associated Physicians, Inc., 784 F.2d 277, 280-81 (7th Cir.1986); Milwaukee Typographical Union No. 23 v Newspapers, Inc., 639 F.2d 386, 391 (7th Cir.), cert. denied, 454 U.S. 838, 102 S.Ct. 144, 70 L.Ed.2d 119 (1981); Chicago-Midwest Meat Assoc. v. City of Evanston, 589 F.2d 278, 281-82 (7th Cir.1978), cert. denied, 442 U.S. 946, 99 S.Ct. 2895, 61 L.Ed.2d 318 (1979). "Although a district court certainly should give notice to the parties when the court converts a 12(b)(6) motion into a motion for summary judgment, the failure to do so does not necessarily mandate reversal where nothing else could have been raised to alter the entry of summary judgment." Malak, 784 F.2d at 281. Further, "a potentially disputed material issue of fact must exist to justify reversal of a trial judge's decision to convert a motion to dismiss into a summary judgment where he fails to give the parties notice of his intention to convert the motion." Farries, 832 F.2d at 377 (citing Milwaukee Typographical ). Therefore, if the district court's decision to grant summary judgment for the directors is correct, its decision to treat the Rule 12(b)(6) motion as one for summary judgment without giving the parties explicit notice was not improper.

We review de novo a district court's grant of summary judgment. Doe v. Allied-Signal Inc., 925 F.2d 1007, 1008 (7th Cir.1991). Our task is to determine whether the record reveals that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c); see Adickes v. S.H. Kress & Co., 398 U.S. 144, 159, 90 S.Ct. 1598, 1609, 26 L.Ed.2d 142 (1970). Further, we "must view the record and all inferences drawn from it in the light most favorable to the party opposing the motion." Griffin v. Thomas, 929 F.2d 1210, 1212 (7th Cir.1991) (citations omitted).

In their filings in the district court, the parents claim that the series is used as a "supplemental reading program" and that the series will continue to be used to "teach, instruct and otherwise educate the students." In their brief, however, the parents also allege that the students are required "to prepare and cast chants and spells and to practice being witches." ³ The directors contend that the parents fail to allege at all...