Scoma v. Chicago Board of Education

• Decision Date: 13 November 1974
• Docket Number: No. 74 C 1377.,74 C 1377.
• Citation: 391 F. Supp. 452
• Parties: Julie SCOMA and Richard Scoma, Plaintiffs, v. The CHICAGO BOARD OF EDUCATION et al., Defendants.
• Court: U.S. District Court — Northern District of Illinois

391 F. Supp. 452

Julie SCOMA and Richard Scoma, Plaintiffs, v. The CHICAGO BOARD OF EDUCATION et al., Defendants.

No. 74 C 1377.

United States District Court, N. D. Illinois, E. D.

November 13, 1974.

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Lawrence Schlam, Clark & Schlam, Chicago, Ill., for plaintiffs.

Michael J. Murray, John J. Dillon and Stanley A. Strzelecki, Chicago, Ill., for defendants.

MEMORANDUM OPINION

DECKER, District Judge.

Plaintiffs, parents residing in the City of Chicago, have filed a civil rights action under 42 U.S.C. § 1983, seeking a preliminary and permanent injunction and declaratory judgment against defendants from interfering with plaintiffs' decision to educate their two school-age children¹ at home, by the enforcement of the state compulsory attendance statute.² Defendants are the Chicago Board of Education, the Superintendent of Schools for the Chicago Board of Education, the Administrator of the Division of School Attendance for the Chicago Board of Education, the Director of Pupil Attendance for the Chicago Board of Education, the Acting District Superintendent for School District Three of the Chicago Board of Education, the Principal of the Ravenswood Elementary School, and the Truant Officer of the Ravenswood School.

In their five-count complaint, plaintiffs assert that they have withdrawn their children from the Ravenswood Elementary School in order to educate them privately at home under a plan which they believe is adequate to ensure that the children receive the minimum requisite educational skills and values, and which they believe qualifies their home instruction as a "private school" under the Illinois Compulsory Attendance Act, Ill.Rev.Stat. ch. 122, § 26-1. That statute exempts from compulsory attendance at a public school:

"(1) Any child attending a private or a parochial school where children are taught the branches of education taught to children of corresponding age and grade in the public schools, and where the instruction of the child in the branches of education is in the English language;"

As interpreted by the Illinois Supreme Court in People v. Levisen, 404 Ill. 574, 578, 90 N.E.2d 213, 215 (1950), the term "private school" can include private home instruction if the child receives "a type of instruction and discipline having the required quality and character." This home instruction, said the court, must be "at least commensurate with the standards prescribed for the public schools."

In preparation for the withdrawal of their children from the public school, the plaintiffs began contacting defendants in an attempt to secure approval for their proposed plan as early as December, 1973. At that time, they were told by the Administrator of School Attendance and the School Board's attorney that there were no established procedures for prior approval of a home instruction plan, and that parents who withdraw their children from public school will be prosecuted under the Illinois statute. Three months later, plaintiffs, through their attorney, wrote to the Administrator of School Attendance seeking a form of "declaratory judgment" that their proposed plan "meets minimal permissable sic educational standards", and that "criminal prosecution will not be forthcoming". They also sought a statement outlining the nature and criteria of the standards to be used in evaluating their plan, and the current procedures for ensuring compliance with the statute. The Administrator responded that he had no authority to render such a "declaratory judgment", that only the school Principal and the District Superintendent had the authority to initiate criminal prosecution, and the plaintiffs would hear from them "forthwith".

On April 19, 1974, plaintiffs transferred their children from the public school to home instruction and informed defendant Principal of their plan. On May 3, 1974, and again on May 17, 1974, plaintiffs received a telephone call from defendant Truant Officer who, on the latter occasion, "threatened to officially seize and remove the children from their home, and demanded that the children return to Ravenswood School on or before May 20, 1974. On May 21, 1974, plaintiffs filed this complaint.

Count I alleges that as a result of their actions, defendants deprived plaintiffs of their rights, privileges and immunities guaranteed by the First, Fourth, Fifth, Ninth and Fourteenth Amendments of the United States Constitution, and Article I, § 12 of the Illinois Constitution, S.H.A.

In Count II, plaintiffs allege that the Illinois Compulsory Attendance Act, Ill. Rev.Stat. ch. 122, §§ 26-1 to 26-11, is unconstitutional as applied to plaintiffs by defendants in that it deprives them of substantive due process and equal protection of the laws in violation of the Fourteenth Amendment, and in that it is vague and uncertain as applied to them. In Count III, plaintiffs claim that the Illinois Compulsory Attendance Act is unconstitutional on its face in violation of the Fifth and Fourteenth Amendments, by its use of "public schools" as the statutory standard for an adequate private school.

Count IV invokes 42 U.S.C. § 1985(3) in alleging that defendants conspired to deny plaintiffs their constitutional rights. In Count V, plaintiffs allege that defendants, knowing that the wrongs conspired to be done were about to be committed, neglected or refused to prevent such wrong, in violation of 42 U.S.C. § 1986.

Plaintiffs have moved this court to convene a three-judge court, pursuant to 28 U.S.C. § 2281 and § 2284. Plaintiffs seek a preliminary and permanent injunction restraining defendants from enforcing the Illinois Compulsory School Attendance Act; the Illinois Truancy Statute, Ill.Rev.Stat. ch. 37, § 702-3(b); and the Illinois statute prohibiting adults from contributing to the delinquency of minors, Ill.Rev.Stat. ch. 23, §§ 2360, 2361 and 2361a; in such a way as to prevent plaintiffs from conducting a private school for their children in their home, and from requiring plaintiffs' children to attend a state approved and licensed school. The plaintiffs also seek a declaratory judgment that the Illinois Compulsory Attendance Act is unconstitutional, both on its face and as applied. Defendants have moved this court to dismiss the complaint, deny the motion for a three-judge court, and deny the motion for a preliminary injunction.

I. Motion to Dismiss

A. Lack of Jurisdiction

Defendants assert that this court lacks jurisdiction over the subject matter of the complaint, and move to dismiss pursuant to F.R.Civ.P. 12(b)(1). Plaintiffs have invoked federal jurisdiction under the provisions of 28 U.S.C. §§ 1331, 1343(3), 2201, 2202; and 42 U.S. C. §§ 1983, 1985(3) and 1986.

1. Jurisdiction under 28 U.S.C. § 1343(3)

Plaintiffs have alleged violations of 42 U.S.C. §§ 1983, 1985(3) and 1986, and thereby assert jurisdiction under 28 U. S.C. § 1343(3) which confers jurisdiction upon a federal district court for an action to redress the deprivation of civil rights "secured by . . . any Act of Congress." Defendants assert that neither the Board of Education nor any of its employees or agents is a "person" within the meaning of 42 U.S.C. § 1983, and therefore not subject to the jurisdiction of 28 U.S.C. § 1343.

The Board of Education of the City of Chicago is a "municipal corporation". Norfolk and Western Ry. Co. v. Board of Education, of the City of Chicago, 114 F.2d 859 (7th Cir. 1940); Ill. Rev.Stat. ch. 122, § 34-2. Such municipal corporations have been held to be outside the ambit of § 1983 both in actions for damages as well as those seeking equitable relief. Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961); City of Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973). Plaintiffs' reliance on Aurora Education Association v. Board of Education of Aurora Public School District No. 131, 490 F.2d 431 (7th Cir. 1973), cert. denied, 416 U.S. 985, 94 S.Ct. 2388, 40 L.Ed.2d 762 (1974); Lee v. Board of Regents, 441 F.2d 1257 (7th Cir. 1971); and Harkless v. Sweeney Independent School District, 427 F.2d 319 (5th Cir. 1970) cert. denied, 400 U.S. 991, 91 S.Ct. 451, 27 L.Ed.2d 439 (1971); is misplaced. In Lee, the court had relied on two earlier Seventh Circuit cases³ in holding that a municipal corporation, board of education, although not liable for damages, is liable for declaratory and injunctive relief under § 1983. In Harkless, the Fifth Circuit limited the Supreme Court's holding in Monroe v. Pape, supra, to exempting municipal corporations from liability only for money damages under § 1983, and held a school district subject to equitable relief. The precise line of reasoning running through both Lee and Harkless was specifically rejected by the Supreme Court in City of Kenosha, supra, 412 U.S. at 512-13, 93 S.Ct. 2222. As for Aurora, supra, 490 F.2d at 434, the court made a specific finding that the Board of Education of Aurora Public School District No. 131 of Kane County was not a municipal corporation; such is not the case for the Board of Education of the City of Chicago. See also, Bravo v. Board of Education of the City of Chicago, No. 72 C 970 (N.D.Ill., July 31, 1974). Accordingly, this court finds that the Board of Education is not a "person" within the meaning of § 1983, and is therefore not subject to federal jurisdiction under 28 U.S.C. § 1343.

Defendant employees of the Board of Education,⁴ however, can claim no such exemption. In every case cited by defendants to support the proposition that the doctrine of respondeat superior is not allowable under § 1983,⁵ the plaintiffs had sought to recover money damages; in no case did a court hold that such individuals were not subject to equitable relief. As plaintiffs indicate, there have been many cases since City of Kenosha in which defendant municipal officers or employees were held subject to injunctive or declaratory relief.⁶ Defendants additionally argue that defendant...