Larson v. Burmaster, 2005AP1433.
| Decision Date | 27 June 2006 |
| Docket Number | No. 2005AP1433.,2005AP1433. |
| Citation | 2006 WI App 142,720 N.W.2d 134 |
| Parties | Bruce LARSON and Peer Larson, his minor son,<SMALL><SUP>†</SUP></SMALL> Plaintiffs-Appellants, v. Elizabeth BURMASTER, Superintendent, Wisconsin Department of Public Instruction, Karen Petric, Superintendent, Whitnall School District, Joel Eul, Principal, Whitnall High School, Nancy Sarnow, Chairman, Math Department, Whitnall High School and Aaron Bieniek, Math Instructor, Whitnall High School, Defendants-Respondents. |
| Court | Wisconsin Court of Appeals |
T. Woehl of Kasdorf, Lewis & Swietlik, S.C., of Milwaukee.
Before FINE, CURLEY and KESSLER, JJ.
Bruce Larson, and his minor son, Peer Larson, appeal pro se from the order dismissing their action against Aaron Bieniek, Mathematics Instructor at Whitnall High School; Joel Eul, Principal of Whitnall High School; Nancy Sarnow, Chair of the Mathematics Department at Whitnall High School; and Karen Petric, Superintendent of the Whitnall School District (collectively, the District). The Larsons brought a suit claiming that Peer could not be required by Bieniek to complete summer homework. The trial court dismissed the case for failure to state a claim upon which relief could be granted, concluding that under WIS. STAT. §§ 118.001, 120.12(14) and 120.13 (2003-04),1 it was within the school district's, and therefore Bieniek's, authority to require summer homework. On appeal, the Larsons contend that: (1) Bieniek was acting beyond his authority in assigning summer homework; (2) WIS. STAT. §§ 118.001 and 120.13 are unconstitutionally overbroad and WIS. STAT. § 120.12(14) is unconstitutionally vague; and (3) summer homework violates parents' constitutional right to direct the education and upbringing of their children. The District argues that the Larsons' appeal is frivolous and move for costs.
¶ 2 We conclude that Bieniek had the authority to assign summer homework, that WIS. STAT. §§ 118.001, 120.12(14) and 120.13 are not unconstitutional, and that summer homework does not infringe on parents' right to direct the education and upbringing of their children, and accordingly affirm the trial court's dismissal of the case. We further conclude that the appeal is frivolous, and remand the matter to the trial court for a determination of reasonable costs and attorney fees.
¶3 In the spring of 2004, Peer, a student at Whitnall High School, included a class in pre-calculus, taught by Bieniek, in his schedule for the following fall.2 The course was part of the honors sequence in mathematics, for which a student receives extra grade points toward his or her grade point average. During the last week of the spring semester, Bieniek came into the mathematics class Peer was enrolled in at the time and handed out to the students signed up for his pre-calculus class three assignments to be completed and submitted for grading during the summer. The assignments were lengthy pre-calculus problems that took a significant amount of time to complete. Late submissions were penalized by a reduction in the grade. The grades for the summer assignments were to be included in the final grade for the course at the end of the fall semester.
¶ 4 During the summer, Peer worked as a counselor at a Cub Scout camp for six weeks. He had arranged this job prior to being informed that he would have summer homework. Peer's job as a camp counselor left him only the Sunday of each week free and made him unable to complete his assignments by their due dates. The assignments caused Peer "a fair degree of distress." He ultimately submitted the assignments late and received a reduced grade.
¶5 After the commencement of the fall semester, Bruce found out about his son's summer homework and complained about it to the school district and the Wisconsin Department of Public Education. The Larsons were informed that summer homework is an ongoing practice in advanced placement mathematics classes taught by Department Chair Sarnow and to a lesser degree in other departments. Associate Superintendent for Curriculum and Instruction, Sally Habanek, explained to the Larsons in a letter dated September 20, 2004, that the decision of whether to assign summer homework is left up to the individual teachers. In a letter dated October 19, 2004, Habanek further explained that the Department of Public Education had offered "to work with any parent and student who feel that for one reason or another the requirements cannot be met within the summer time frame so that no student is penalized." On November 12, 2004, Bruce sent a letter to the District and Superintendent of the Wisconsin Department of Public Education, Elizabeth Burmaster, demanding: that the inclusion of Peer's grade for the summer assignments in the final grade be left to his discretion; that future summer assignments, and their inclusion in the final grade, be voluntary; and that such policies be implemented districtwide and statewide. Burmaster responded via a letter dated December 6, 2004, explaining that these are "local school district issue[s]," and that the Department of Public Instruction does not have the authority to "grant to an individual student decision-making rights as to how performance on individual assignments are factored into a final grade" or "require districts to enact certain policies or practices unless such polices/practices are required by law." The letter also noted that:
State law defines school terms as "the time commencing with the first school day and ending with the last school day that the schools of a school district are in operation for attendance (emphasis added) of pupils in a school year, other than for the operation of summer classes." Hence, the school term defines the start and end points of when students must be at or attend school. The law is silent on matters regarding school-related activities, such as the completion of assignments.
¶ 6 On January 10, 2005, the Larsons filed suit pro se against the District and Burmaster. Their complaint, which was largely a verbatim recitation of Bruce's November 12, 2004 letter, again demanded that: the inclusion of Peer's summer homework grade in the final grade be left to his discretion; summer assignments be voluntary and their inclusion in the grade be left to the student's discretion; and such policies be implemented districtwide and statewide. The complaint did not cite any authority, but seemed to argue that: (1) it was beyond the District's and the State's authority to issue summer homework because, after the end of the spring semester, students are not enrolled in school until they register for fall; (2) during the summer, parents have a constitutional right to reclaim full authority over their children, including being free of homework; and (3) summer homework is poor public policy.
¶ 7 On January 27, 2005, Burmaster filed a motion to dismiss, arguing that the Larsons' complaint failed to state a claim upon which relief could be granted because it sought to compel her to perform a discretionary act she had no authority to perform, and consequently, she is entitled to reasonable attorney fees because the Larsons should have known that their complaint failed to state a claim. On February 16, 2005, the District filed a motion to dismiss, arguing that the Larsons' complaint failed to state a claim upon which relief could be granted because the school board has the discretion to determine the course of study at Whitnall High School and this authority is not limited to the school term. The Larsons filed responses to both motions, and amended their complaint. Their amended complaint argued in essence that: (1) the Whitnall School District is barred from assigning summer homework because, under the Wisconsin Compulsory School Attendance Law, WIS. STAT. § 118.045, the school term begins on September 1, so at the end of the spring term, the Larsons had met that requirement; (2) it was unfair to give Peer a lower grade because he was unaware of the assignments when he agreed to serve as camp counselor; and (3) summer homework is unconstitutional because: no law exists that explicitly authorizes summer homework; it violates the Due Process Clause of the Fourteenth Amendment; and it constitutes an unreasonable search and seizure under the Fourth Amendment.
¶ 8 On March 7, 2005, the trial court conducted a hearing on the motions, granting the District's and Burmaster's motions to dismiss. In a written order, the court first noted that its decision would not reach the heart of the debate—whether mandatory summer homework as part of an advanced class is a good thing—rather, the court defined the issue as: "Was Whitnall School District out of bounds when one of its math teachers interrupted Mr. Larson's summer vacation to require him to perform three honors pre-calculus homework assignments that would count against his fall grade?"
¶ 9 The court first analyzed the Larsons' argument that WIS. STAT. § 118.045, which provides "no public school may commence the school term until September 1," bars public schools from requiring summer homework. The court reasoned:
But the line drawn by section 118.045 says nothing about homework; it mentioned only the date by which the "school term" may commence. The words "school term" have a specific meaning defined by state statute, WIS. STAT. § 115.001(12): "School term" means the time "commencing with the first school day and ending with the last school day that the schools of a school district are in operation for attendance of pupils in a school year, other than for the operation of summer school classes" (emphasis added). Thus, the reference to "school term" in section 118.045 is a limit...
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