Vandiver v. Hardin County Bd. of Educ.

• Citation: 925 F.2d 927
• Decision Date: 12 February 1991
• Docket Number: No. 89-5776,89-5776
• Parties: , 65 Ed. Law Rep. 1045 Brian VANDIVER; Ronald Vandiver and Kathy Vandiver, Plaintiffs-Appellants, v. HARDIN COUNTY BOARD OF EDUCATION; Stephen W. Towler, as Superintendent of Schools for Hardin County Public Schools, and Individually; William E. Kelley, as Principal of West Hardin High School, and Individually; Kenneth Hayden, James A. Mayer, Harold Miller, James R. Aldridge, and J.R. Cardin, as Members of the Hardin County School Board, and Individually; and Commonwealth of Kentucky, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 927

925 F.2d 927

59 USLW 2522, 65 Ed. Law Rep. 1045

Brian VANDIVER; Ronald Vandiver and Kathy Vandiver Plaintiffs-Appellants, v. HARDIN COUNTY BOARD OF EDUCATION; Stephen W. Towler, as Superintendent of Schools for Hardin County Public Schools and Individually; William E. Kelley, as Principal of West Hardin High School, and Individually; Kenneth Hayden, James A. Mayer, Harold Miller, James R. Aldridge, and J.R. Cardin as Members of the Hardin County School Board, and Individually; and Commonwealth of Kentucky, Defendants-Appellees.

No. 89-5776.

United States Court of Appeals Sixth Circuit.

Argued May 1, 1990.

Decided Feb. 12, 1991.

Theodore H. Amshoff, Jr. (argued), Guy Anthony Bayes, Amshoff, Amshoff & Searcy, James M. Henderson, Sr., Christian Advocates Serving Evangelism, Washington, D.C., for plaintiffs-appellants.

Robert L. Chenoweth (argued), Bryan, Fogle & Chenoweth, Frankfort, Ky., Donald E. Skeeters, Kimberly, Winkenhofer, Shumate, Skeeters & Bennett, Radcliff, Ky., for defendants-appellees.

Frederic J. Cowan, Atty. Gen., David Vandeventer, Asst. Atty. Gen., Frankfort, Ky., for Com. of Ky.

Before KENNEDY, Circuit Judge, and ENGEL and WELLFORD, ^* Senior Circuit Judges.

ENGEL, Senior Circuit Judge.

At issue here is the extent to which a student can compel a public school to award him academic credit for course work completed in a religious home study program, when state law allows the public school to require students to pass examinations before receiving credit for courses studied at home. Brian Vandiver and his parents, Ronald and Kathy Vandiver, allege that the Hardin County Board of Education and various public school officials improperly required Brian to pass equivalency exams in order to gain credit for his religious home study program, thereby allegedly violating the Vandivers' constitutional rights under the free exercise, due process and equal protection clauses of the U.S. Constitution. The Vandivers brought suit under 42 U.S.C. sections 1983 and 1985 for declaratory, injunctive and monetary relief. Their complaint also included pendent state law claims under the religious liberty clause of the Kentucky Constitution, section 5. Following hearings on the preliminary injunction and on the merits, the district court ruled against the plaintiffs on each of their federal claims and granted the defendants' motion to dismiss the action.

We agree with the judgment of the district court on each of the issues presented and affirm the dismissal of the federal claims with prejudice. We remand the case only for issuance of an order indicating that the plaintiffs' state law claims were dismissed without prejudice.

I. FACTS

Ronald and Kathy Vandiver describe themselves as devout "spirit-filled, born-again" Christians. Their son Brian, born July 1, 1970, encountered disciplinary and academic problems in the eighth grade, and was forced to repeat that year of classes. Brian's behavioral and academic troubles continued during his freshman (ninth grade) year at West Hardin (Kentucky) High School, and his parents decided that Kathy Vandiver would teach Brian his tenth grade courses at home during the 1986-87 school year using a Christian course of instruction called Alpha Omega. In addition to Bible study, the program provided a Christian perspective to courses in the core curriculum of the state Board of Education.

During the year of home study, Brian's attitude and achievement levels improved significantly, and he and his parents agreed that he could return to the public high school for the coming 1987-88 school year. Brian successfully completed the 1987-88 school year at the public high school, pursuing primarily an eleventh grade course of study. However at the beginning of the 1988-89 school year, he was not classified by school officials as a senior (twelfth grade student). School administrators contended that Brian had failed to comply with the following state administrative regulation:

The local school district shall be responsible for the appropriate assignment of a student transferring from a nonaccredited secondary school to the class or grade best suited for the student. Previous credit earned by a student in a nonaccredited secondary school shall be awarded by the local school district by one (1) of the two (2) following methods:

(a) Pass an examination of similar nature and content to the examination used for other students receiving credit for a particular course within the school district and graded on a comparable basis; or

(b) Successful performance of the student in a higher level of the course when the courses are sequential in nature such as English, mathematics, history, and science. Successful performance shall be defined as achieving an average grade in the course by the twelfth week of school.

704 Ky.Admin.Reg. 3:307, Sec. 2. Options (a) and (b) will be referred to as "equivalency testing" and "probationary placement" respectively.

In the fall of 1987, after Brian's year of home instruction, Kathy Vandiver had agreed with defendant Kelley, the principal of West Hardin High School, that Brian would take equivalency tests in certain areas to qualify for credit. Since the equivalency tests were to be based on the specific content of the public high school courses rather than the Alpha Omega course that Brian had actually studied, Brian would have been required to study unfamiliar textbooks to prepare for the exams. To lessen Brian's load, Kathy Vandiver agreed with Kelley that Brian would be tested in only two subjects, then would take correspondence courses offered by another county for credit in the remaining courses.

Several weeks later, upon seeing how much studying would be necessary to handle this combined load, Kathy and Ronald Vandiver decided that the burden of testing and extra courses would prove too onerous for Brian. For his part, Brian decided on the basis of his religious belief that the load was unfair and more than what God would want him to bear. The Vandivers then asked the West Hardin High principal if he would drop the equivalency testing requirement since Brian had by that point been back in the public school for twelve weeks and had met the requirements for the probationary placement option under the regulations. In November 1987, the principal took the request to the county school board, which decided to maintain the equivalency testing requirement. The school board's decision was reached at a meeting open to the public, but the Vandivers were not specifically informed that they could or should attend. Brian declined to take the required equivalency tests, and school officials refused to classify him as a senior for the 1988-89 school year.

In December 1988, the Vandivers asked to appear before the Board of Education to discuss their concerns about Brian's academic standing in the public school. Although the Board initially told the Vandivers they would have two hours to speak, the Board later reduced the allotted time to thirty minutes. After the Vandivers learned that none of Brian's teachers would speak on his behalf, allegedly because of pressure from their superiors, the Vandivers decided not to attend the school board meeting. On April 5, 1989, the Vandivers commenced this lawsuit, seeking to compel the school board to award Brian academic credit for his year of tenth grade study at home.

II. STATUTE OF LIMITATIONS

The district court held that under Owens v. Okure, 488 U.S. 235, 109 S.Ct. 573, 102 L.Ed.2d 594 (1989), the plaintiffs' section 1983 action was not timely filed under Kentucky law, correctly anticipating this circuit's decision in Collard v. Kentucky Bd. of Nursing, 896 F.2d 179, 181-83 (6th Cir.1990). The Supreme Court in Owens stated:

We accordingly hold that where state law provides multiple statutes of limitations for personal injury actions, courts considering Sec. 1983 claims should borrow the general or residual statute for personal injury actions.

488 U.S. at 249-50, 109 S.Ct. at 582 (footnote omitted).

Relying on Owens, the court in Collard concluded that "section 1983 actions in Kentucky are limited by the one year statute of limitations found in [Ky.Rev.Stat.] section 413.140(1)(a)." Since the Vandivers' suit was filed on April 5, 1989, the district court properly concluded that their due process attack on the defendants' decision in the fall of 1987 not to grant Brian eleventh grade status through the probationary placement option was time-barred.

At oral argument, the Vandivers argued that even under a one year statute of limitations, their complaint was still timely as it alleged a continuing denial of Brian's proper placement in public school. The school officials' mere adherence to a discrete decision regarding Brian's academic standing in the fall of 1987, however, does not suffice to state a claim for a continuing violation when he was denied twelfth grade status in the fall of 1988. Compare Smith v. Kaldor, 869 F.2d 999, 1007-08 (6th Cir.1989) (no continuing violation existed linking plaintiff's second termination from employment with his earlier discharge and reinstatement); with Held v. Gulf Oil Co., 684 F.2d 427, 430 (6th Cir.1982) (where discriminatory acts continued to occur throughout plaintiff's employment she could bring an action alleging a continuing pattern of discrimination even though an action for the initial discriminatory acts would have been time-barred). Since there was no continuing violation here, the Vandivers, by commencing legal action in April 1989, could attack only the defendants' denial of twelfth grade status to Brian in the 1988-89 school year.

III. THE PARENTS' STANDING TO SUE

Barred by the statute of limitations from pursuing any claim with respect to Brian's academic status in the fall of 1987, Ronald and Kathy Vandiver are likewise barred as to similar claims arising after July 1, 1988 by the unchallenged fact that on that date Brian turned eighteen and...