Crowley, Daniel v. McKinney, Donald

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 02-3741

DANIEL CROWLEY,

Plaintiff-Appellant,

v.

DONALD MCKINNEY and BERWYN SOUTH

SCHOOL DISTRICT #100,

Defendants-Appellees.

____________

Appeal from the United States District Court for

the Northern District of Illinois, Eastern Division.

No. 02 C 2091—Charles P. Kocoras, Chief Judge.

____________

ARGUED NOVEMBER 10, 2004—DECIDED MARCH 11, 2005

____________

Before POSNER, WOOD, and EVANS, Circuit Judges.

POSNER, Circuit Judge. The district court dismissed, for

failure to state a claim, Daniel Crowley’s civil rights suit (42

U.S.C. § 1983) against the principal of his children’s school,

and the school district itself. His appeal presents questions

mainly about the right of a noncustodial divorced parent to

participate in his children’s education. Our only source of

facts is the complaint itself plus the divorce decree, of which

we take judicial notice. The summary that follows assumes

the truth of the plaintiff’s allegations, but of course without

vouching for them.

2 No. 02-3741

The children, a boy and a girl, were 8 and 7 when the

complaint was filed in 2002. The parents had been divorced

four years earlier. A marital settlement agreement incorpo-

rated in the divorce decree provides that Mrs. Crowley

“shall have the sole care, custody, control and education of

the minor children.” But this is qualified by a later provision

that the parties “shall have joint and equal rights of access

to records that are maintained by third parties, including . . .

their education . . . records. Each of them shall direct the

school . . . to send them each duplicate notices of all records,

events, and issues concerning the children, and neither of

them shall be responsible to inform the other of any such rec-

ords, events or issues if such direct notice has been or can be

provided for. They shall cooperate to ensure that the

children and other authorities do provide the requested no-

tices and information to both parents regarding their pro-

gress and activities . . . . Each party shall direct the chil-

dren’s school authorities to promptly advise each of them of

the children’s grades and progress in school and of all school

meetings, functions and activities that are open to atten-

dance by parents. They shall cooperate to ensure that such

dual notice is in place.”

The children attend the Hiawatha Elementary School, a

public school in a Chicago suburb. Defendant McKinney is

the school’s principal and is directly responsible for all the

acts of which the plaintiff complains. The superintendent of

the school district (William Jordan, not named as a defen-

dant), the policymaker for the district, knew about

McKinney’s acts but did nothing to stop them.

Crowley had long been critical of the “leadership and di-

rection” of the school by McKinney and Jordan, and had

expressed these criticisms at public meetings. He had also

complained directly to them about his son’s being bullied

by other children and about the school’s “failure to ade-

No. 02-3741 3

quately provide Plaintiff with notices, records, correspon-

dence and other documents” that custodial parents receive.

As a result of that failure, Crowley “must rely on his chil-

dren telling him about matters such as upcoming school

events or injuries suffered at school, and only hears about

incidents such as a gun being brought to Hiawatha School

through third parties.” In letters to McKinney, Crowley

“asked for increased supervision and response to bullying

of his children, and asked that he receive all of the documents

received by custodial parents with children attending

Hiawatha School.” He even “provided the teachers and

McKinney each with 100 self-addressed envelopes, to

facilitate his receipt of all correspondence.” All to no avail:

“Plaintiff’s requests have never been granted, and Plaintiff

still does not receive all of the items to which he is entitled.”

After his son was again beaten up on the school play-

ground, Crowley went to observe his son during recess and

was told that he (that is, Crowley) was not allowed on the

playground. He volunteered to be a playground monitor,

but McKinney turned him down. Once, because his son had

been feeling ill, Crowley called the school to ask whether his

son was at school that day, and the person who answered

the phone refused to tell him. The school also forbade him

to attend a book fair held at the school on Hiawatha School

Day.

These incidents and others narrated in the complaint

caused Crowley emotional distress for which he seeks dam-

ages. No injunctive relief is sought, which is surprising and

casts some doubt on the bona fides of the suit, since we were

told at argument without contradiction that Crowley’s

relations with McKinney and Jordan have not improved.

There is nothing in the complaint about the reaction, if any,

of Mrs. Crowley to her husband’s efforts to obtain school

records of their children or otherwise participate in school

activities.

4 No. 02-3741

Crowley contends that the defendants’ conduct deprives

him of a federal constitutional right to participate in his

children’s education, denies him equal protection of the

laws by arbitrarily distinguishing between custodial and

noncustodial parents, also denies him equal protection by

treating him worse than similarly situated parents because

of McKinney’s personal hostility to him, infringes his free-

dom of speech, and violates Illinois’ school-records act and

the state’s common law of tortious infliction of emotional

distress. The two state law claims are “supplemental” be-

cause they have no independent basis of federal jurisdiction

(i.e., diversity of citizenship), and, as is usual, the district

court relinquished jurisdiction over them when it dismissed

Crowley’s federal claims before trial. 28 U.S.C. § 1367(c)(3).

The claim he presses hardest is that he has a constitutional

right, which the defendants violated, to participate in his

children’s education. Such participation, he argues, is an

aspect of his liberty, and so a state may not deprive him of

it on arbitrary grounds, that is, without according him due

process of law. He thus is claiming a denial of “substantive”

due process. He also claims that he was denied procedural

due process, which is to say notice and an opportunity for

a hearing before his (substantive) right was taken away

from him. We won’t have to consider this claim separately.

Both claims founder on the scope of the federal constitu-

tional right over the education of one’s children.

Crowley relies primarily on a trio of famous Supreme

Court decisions that discuss the constitutional rights of

parents with respect to the education of their children. Meyer

v. Nebraska, 262 U.S. 390 (1923), invalidated a Nebraska law

that forbade the teaching of foreign languages in private (or

public, but that was not in issue) schools. Pierce v. Society of

Sisters, 268 U.S. 510 (1925), invalidated an Oregon law re-

quiring children to attend public school. And Wisconsin v.

No. 02-3741 5

Yoder, 406 U.S. 205 (1972), invalidated a Wisconsin law that

required children to attend high school (public or private)

despite the religious objections of the parents, who were

Amish and didn’t want their children to have a high-school

education. Yoder isn’t pertinent to our case because the

parents based their claim on the free-exercise clause of the

First Amendment rather than on the due process clause.

Meyer and Pierce, however, establish the principle that the

“liberty” that the due process clauses protect includes a

degree of parental control over children’s education.

But those cases are remote from the present case in two

pertinent respects. They are about a state’s right to deny, in

effect, the option of private education, a denial that is a

greater intrusion on parental control of their children than

limiting parents’ involvement in the activities of the public

school that their children attend. And they concern the rights

of parents acting together rather than about the rights re-

tained by a divorced parent whose ex-spouse has sole cus-

tody of the children and has not joined in the noncustodial

parent’s claim. In both respects the parental claim in this

case is weaker. It is weaker because the challenge is to only

one parent’s control, the other’s remaining unimpaired. It is

also weaker because the state interest is stronger. Ne-

braska’s interest in forbidding private schools to teach

foreign languages was tenuous to the point of weirdness,

while Oregon’s project of forcing all children to attend pub-

lic schools implied a hostility to private education that had

no footing in American traditions or educational policy.

Quite apart from parental interests, the statist character and

conformist consequences of giving the state a monopoly of

education sapped Oregon’s policy of constitutional weight.

The defendants in the present case are not denying par-

ents the right to send their children to private schools that

6 No. 02-3741

will not be arbitrarily forbidden to teach subjects of which

the state disapproves. They are not prohibiting home school-

ing. They are not even denying the parents the opportunities

that parents commonly enjoy to participate in the education

of their children; they are denying these opportunities only

to one parent, and that the one who has no custodial rights.

It is difficult for a school to accommodate the demands of

parents when they are divorced. The school does not know

what rights each of the parents has. It knows which parent

has custody, because that parent’s address is the student’s

address, but unless it consults the divorce decree it won’t

know what rights the other parent has. And since physical

and legal custody are different, In re Custody of Peterson, 491

N.E.2d 1150, 1152 (Ill. 1986); In re Howard ex rel. Bailey, 799

N.E.2d 1004, 1005 (Ill. App. 2003), the school will not even

know whether the parent with whom the child lives has

joint or, as here, sole custody.

These difficulties are compounded by the scope of the

federal constitutional right that Crowley is claiming. It is

one thing to say that parents have a right to enroll their

children in a private school that will retain a degree of auto-

nomy and thus be free to teach a foreign language, or

evolution, or human sexual biology, without prohibition by

the state. It is another thing to say that they have a consti-

tutional right to school records, or to be playground moni-

tors, or to attend school functions. Schools have valid

interests in limiting the parental presence—as, indeed, do

children, who in our society are not supposed to be the

slaves of their parents. Imagine if a parent insisted on sitting

in on each of her child’s classes in order to monitor the

teacher’s performance or on vetoing curricular choices,

texts, and assignments.

Federal judges are ill equipped by training or experience

to draw the line in the right place, and litigation over where

No. 02-3741 7

to draw it would be bound to interfere with the educational

mission. It would do so not only by increasing schools’ legal

fees but also and more ominously by making school admin-

istrators and teachers timid because fearful of being entan-

gled in suits by wrathful parents rebuffed in their efforts to

superintend their children’s education. Interests of constitu-

tional weight and dignity are on both sides of the ledger

because academic freedom, which is an aspect of freedom of

speech, includes the interest of educational institutions,

public as well as private, in controlling their own destiny

and thus in freedom from intrusive judicial regulation.

Grutter v. Bollinger, 539 U.S. 306, 324 (2003); Keyishian v.

Board of Regents, 385 U.S. 589, 603 (1967); Chicago Board of

Education v. Substance, Inc., 354 F.3d 624, 630-31 (7th Cir.

2003); Osteen v. Henley, 13 F.3d 221, 225-26 (7th Cir. 1993);

Bickerstaff v. Vassar College, 196 F.3d 435, 455-56 (2d Cir.

1999); EEOC v. Amego, Inc., 110 F.3d 135, 145 (1st Cir. 1997).

Paradoxically, in Meyer and Pierce the state was trying to

weaken or encumber private education while here the

plaintiff is trying to fasten a constitutional albatross to the

neck of a public school.

The intrusion on public education to which Crowley is

inviting the federal judiciary is magnified when the right of

participation in a child’s public-school education is claimed

by a noncustodial parent. Of course divorce does not sever

the parental relation and by doing so extinguish the funda-

mental rights that go with it; the state could not “divorce”

Crowley from his children unless he were a menace to them.

705 ILCS 405/2-21; 750 ILCS 50/8; In re D.C., 807 N.E.2d

472, 476 (Ill. 2004); In re Cheyenne S., 815 N.E.2d 1186, 1190-

91 (Ill. App. 2004); Quinn v. Neal, 998 F.2d 526, 532 n. 6 (7th

Cir. 1993) (Illinois law). Divorce has become so common

that it appears that today as many as 10 percent of all

schoolchildren are the children of divorced parents. See

8 No. 02-3741

http://www.census.gov/population/socdemo/hh-fam/

cps2003/tabC3-all.pdf. It does not follow that a public

school is to be charged with knowledge of the contents of

the divorce decrees of its students’ divorced parents or that

it must allow itself to be dragged into fights between such

parents over their children. On the contrary, the more chil-

dren of divorced parents there are, the greater the burden

on schools of arbitrating the quarrels of divorced parents.

Granted, there is no allegation that Crowley and his ex-

wife are actually at loggerheads over the education of their

children. If they were, Crowley would be denied standing

to sue by Elk Grove Unified School District v. Newdow, 124 S.

Ct. 2301 (2004), the recent “under God” pledge of allegiance

case. The Court described it as a case in which the plaintiff

“wishes to forestall his daughter’s exposure to religious

ideas that her mother, who wields a form of veto power,

endorses, and to use his parental status to challenge the

influences to which his daughter may be exposed in school

when he and [the mother] disagree . . . . [I]t is improper for

the federal courts to entertain a claim by a plaintiff whose

standing to sue is founded on family law rights that are in

dispute when prosecution of the lawsuit may have an

adverse effect on the person who is the source of the

plaintiff’s claimed standing.” Id. at 2311-12. Newdow should

not be overread to extinguish the constitutional rights of

noncustodial parents. Mr. Newdow’s right to try to argue

his daughter out of believing in God was not in issue. It was

her right to religious freedom that was in issue and that he

was suing to enforce, and all the Court held was that he

lacked standing to do so, at least in the face of the custodial

parent’s objection.

In the procedural posture of the present case we cannot

assume that the divorced parents are fighting over their

children’s education; and anyway the issue is not Crowley’s

No. 02-3741 9

standing to sue on behalf of his children. But common sense

tells us that he and his ex-wife are not cooperating, since she

has not joined in his demands on the school.

It is also apparent—indeed it is a part of the complaint

with its state law claims and its appended divorce decree—

that Crowley has rights under state law that weaken the

need to recognize a federal constitutional right. Illinois law

entitles him to copies of the children’s school records, and

the divorce decree makes clear that he has not waived that

right and also that he is entitled to enlist his wife’s coopera-

tion in furthering any legitimate concerns that he has about

his children’s education. No doubt most divorced parents

want to have as little to do with each other as possible. But

that interest is no greater than the state’s interest in keeping

its schools free as far as possible from becoming mired in

the sequelae of divorce.

An example will flag another flaw in Crowley’s case.

Were Mrs. Crowley to move out of School District No. 100,

then, since she has sole custody of the children, they would

move with her. Suppose her new locale lacked a decent

public school and so she enrolled the children in a private

school. Because a private school is not a public agency, Mr.

Crowley would have no constitutional right to participate

in his children’s education at their new school. What this

example highlights is that in the divorce decree Mr. Crowley

surrendered the only federal constitutional right vis-à-vis

the education of one’s children that the cases as yet recog-

nize, and that is the right to choose the school and if it is a

private school to have a choice among different types of

school with different curricula, educational philosophies,

and sponsorship (e.g., secular versus sectarian). It is not a

right to participate in the school’s management—a right

inconsistent with preserving the autonomy of educational

institutions, which is itself, as we have noted, an interest of

constitutional dignity.

10 No. 02-3741

The distinction is illuminated by cases that discuss other

aspects of parents’ constitutional rights. Troxel v. Granville,

530 U.S. 57, 65-73 (2000), invalidated a state law that con-

ferred broad discretion on the state’s courts to override a

custodial parent’s wish to limit (not eliminate) visits by her

children’s grandparents. The case has a dual significance for

the present case. First, it recognizes that one aspect of the

parental right is a right against other relatives—a right to

prevent a tug of war over the children—in this case Mrs.

Crowley’s right to decide what school the children shall

attend. Second, it suggests the strength that the parental in-

terest must attain to achieve constitutional status. At stake

in Troxel was Mrs. Granville’s control of her children, con-

tested by the grandparents and the court that sided with

them. At stake in Santosky v. Kramer, 455 U.S. 745 (1982),

another case in which a state law was invalidated as an in-

fringement of parental liberty, was the parental right itself.

See also Stanley v. Illinois, 405 U.S. 645, 646-52 (1972). At

stake in the present case is the slighter interest of Mr.

Crowley in micromanaging his children’s education at the

school properly chosen for them.

So we greatly doubt that a noncustodial divorced parent

has a federal constitutional right to participate in his chil-

dren’s education at the level of detail claimed by the plaintiff.

But if we are wrong it cannot change the outcome of this

case. As should be apparent from our discussion, the

existence of the right that Crowley asserts is not established

law, and McKinney is therefore immune from having to pay

damages for violating that right. The school district is not

entitled to immunity. But the complaint makes clear that

Jordan’s (and hence the school district’s) participation in

McKinney’s acts was limited to not doing anything about

them. Inaction by a public agency is insufficient participa-

tion in a subordinate’s misconduct to make the agency liable

No. 02-3741 11

in a suit under 42 U.S.C. § 1983 unless the policymaking

level at the agency has deliberately decided to take no action

against, and thus in effect to condone, to ratify, the miscon-

duct and so adopt it as the agency’s (unofficial) policy. City

of Canton v. Harris, 489 U.S. 378, 388-89 (1989); Lenard v.

Argento, 699 F.2d 874, 886 (7th Cir. 1983); Berry v. Baca, 379

F.3d 764, 767 (9th Cir. 2004); Daskalea v. District of Columbia,

227 F.3d 433, 441 (D.C. Cir. 2000). And that is not alleged.

We turn to Crowley’s double-barreled equal protection

claims. He argues first that McKinney discriminates against

noncustodial parents. The complaint strongly suggests that

McKinney’s refusal to allow Crowley access to school rec-

ords, school premises, and so forth was motivated not by

Crowley’s status as a noncustodial parent but by animosity

toward Crowley arising from the latter’s criticisms of the

Hiawatha school and its management—that is, McKinney.

Insofar as the claim does allege discrimination against non-

custodial parents as such, it merely recharacterizes the due

process claim as an equal protection claim and encounters

the same objections and the same defense of immunity.

That animosity we just mentioned is, however, the pivot

on which Crowley’s other equal protection claim turns— the

claim that he has been singled out by a public official for

adverse treatment because of the official’s personal hostility

toward him. In so claiming Crowley invokes the “class of

one” equal protection cases, most recently Tuffendsam v.

Dearborn County Board of Health, 385 F.3d 1124, 1127 (7th Cir.

2004), where we noted that our cases have articulated two

standards for determining whether a “class of one” viola-

tion has been shown. The first, set forth in Hilton v. City of

Wheeling, 209 F.3d 1005, 1008 (7th Cir. 2000), requires

“evidence that the defendant deliberately sought to deprive

[the plaintiff] of the equal protection of the laws for reasons

of a personal nature unrelated to the duties of the defen-

12 No. 02-3741

dant’s position.” The second allows a class-of-one case to be

proved simply by showing that the defendant had without

a rational basis intentionally treated the plaintiff differently

from others similarly situated. But as we went on to explain

in Tuffendsam, “these divergent strands . . . can . . . be woven

together by noting that intentionality is an ambiguous

concept, shading at one end into mere knowledge of likely

consequences and at the other into a desire for those conse-

quences. The [defendant] ‘intentionally’ treated the plaintiff

worse than it treated her predecessors and neighbors in the

sense that it knew—it had to know—that its pattern of

enforcement was uneven. But it did not ‘intentionally’ treat

the plaintiff worse in the sense of wanting her to be made

worse off than those others. And it is the latter sense in

which a ‘class of one’ case requires a showing that govern-

ment ‘intentionally’ treated the plaintiff worse than others.”

385 F.3d at 1187.

If McKinney would not have treated Crowley as he did

had it not been for his strong personal dislike of the latter,

he denied him the equal protection of the laws under either

formulation. Denied it prima facie, that is to say; for animus

is not a sufficient condition for a class-of-one claim to

succeed. If McKinney, however much he disliked Crowley,

would have acted the same way toward him had he not

disliked him, perhaps because Crowley’s behavior was

disrupting school discipline, then the concurrence of an

improper motive would not condemn the act. Palmer v.

Thompson, 403 U.S. 217, 224-26 (1971); Grossbaum v.

Indianapolis-Marion County Building Authority, 100 F.3d 1287,

1293 (7th Cir. 1996); Nottelson v. Smith Steel Workers D.A.L.U.

19806, AFL-CIO, 643 F.2d 445, 454 n. 11 (7th Cir. 1981). And

that may well be the case. But we have only the complaint

to go on. As this claim was adequately pleaded, the dis-

missal of it on the pleadings was premature.

No. 02-3741 13

And likewise the dismissal of the First Amendment claim.

The district judge thought that Crowley was alleging only

a personal dispute with McKinney and Jordan. The Consti-

tution does not protect a public employee from workplace

retaliation for statements that were intended not to alter

public opinion or beliefs but merely to resolve a personal

grievance on favorable terms. Connick v. Myers, 461 U.S. 138,

146-47 (1983); Kokkinis v. Ivkovich, 185 F.3d 840, 843-44 (7th

Cir. 1999); Cobb v. Pozzi, 363 F.3d 89, 101-02 (2d Cir. 2004).

And there is no doubt that most of the criticisms that

Crowley made of the defendants are correctly described as

“personal.” But we cannot overlook the allegation in the

complaint that “in the years leading up to the acts com-

plained of in this Complaint, Plaintiff had been, at times,

openly critical of Hiawatha School, District #100 and, by

implication, the leadership and direction of Superintendent

Jordan and Defendant McKinney, at public meetings.” So

the criticisms preceded the specific dispute and were

expressed not merely openly but at public meetings. The

next paragraph of the complaint, moreover, states that “the

Plaintiff has also questioned and criticized McKinney and

Jordan directly” about the school’s “inadequate responses

to incidents of Plaintiff’s son being bullied,” etc., and the

word we’ve italicized indicates a transition to the criticisms

that were incidental to Crowley’s specific grievance over the

school’s failure as he saw it to do right by his son. The latter

criticisms may not be protected by the First Amendment, but

the former are.

Because we are reversing the dismissal of two of the federal

claims, the district court should reinstate the supplemental

state claims. If on remand the federal claims are again

dismissed before trial, the court will of course be free to

again relinquish jurisdiction over the state claims.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

14 No. 02-3741

WOOD, Circuit Judge, dissenting in part, concurring in part.

This case is about a father’s constitutional right to partici-

pate meaningfully in the upbringing of his children. The

question, as I see it, is whether the state (in this case through

the agency of a local school district and its principal) may

effectively terminate a noncustodial father’s parental rights,

through measures that deprive him altogether from the

most important activity in which children under the age of

eighteen engage: their education. The majority sees no

federal constitutional dimension in the deprivations that the

school district has imposed upon Daniel Crowley, not-

withstanding the existence of Supreme Court cases directly

recognizing these kinds of parental rights and notwith-

standing the fact that its assumptions about the degree to

which his parental rights have been circumscribed by virtue

of his divorce decree are exaggerated at best, mistaken at

worst. Unless we are to create a new exception to cases

brought under 42 U.S.C. § 1983 for actions like this that

conceivably could be addressed by state family law courts—

an action that I believe to be beyond this court’s authority,

even if the Supreme Court might choose to take this step

some day—Crowley is entitled to proceed on his liberty

claims. To the extent that the majority opinion holds other-

wise, I dissent. I concur in the majority’s conclusion that

Crowley has stated an equal protection claim and a First

Amendment claim that must be reinstated, along with his

supplemental state claims.

The difference between the majority and myself goes to

the heart of one’s understanding of the Due Process Clause’s

protection of certain fundamental liberties. The majority

acknowledges the “trio” of Supreme Court decisions that

recognize constitutional rights of parents with respect in

particular to the education of their children: Meyer v. Nebraska,

262 U.S. 390 (1923); Pierce v. Society of Sisters, 268 U.S. 510

No. 02-3741 15

(1925); and Wisconsin v. Yoder, 406 U.S. 205 (1972). (If these

cases have something to say about other “privacy” rights,

such as the right to choose whether to have an abortion, see

Roe v. Wade, 410 U.S. 113, 152-53 (1973), surely they have

even more to say about the topic directly at issue—namely,

parental rights in education.)

Contrary to the majority’s suggestion, this line of cases is

not remote from the present case in any respect. First, even

if they were about the state’s right to deny parents the right

to choose one form of education for their children—private

education—the present case is about the state’s ability to

deny a parent’s right to participate at all in the free public

education to which every child in the State of Illinois is en-

titled. See Ill. Const. Art. 10 § 1. I would be hard pressed to

characterize the latter as somehow “less important” than

deprivation of the choice to use private schools. Second, the

majority gleans from the earlier cases the proposition that

they concern only the rights of parents acting together. But

there is nothing at all in those decisions that hints at such a

distinction. As I discuss in a moment, the Supreme Court’s

cases over the course of the last hundred years have all

looked in the opposite direction, by recognizing and sup-

porting the rights of less traditional parents.

In fact, as a sheer matter of realpolitik, the majority’s rule

courts disaster for an enormous number of children in this

country whose parents have become divorced. For example,

in the provisional data presented on a state-by-state basis

for 2003 published by the National Vital Statistics Reports,

we learn that in Illinois that year there were 82,076 mar-

riages and 34,553 divorces (that is, 42% of the number of

marriages). Illinois, however, has a divorce rate on the low

end of the spectrum. In Texas, the numbers are 167,341

marriages and 80,092 divorces (48%); in New York there were

120,754 marriages and 62,294 divorces (52%); in Colorado

16 No. 02-3741

there were 36,387 marriages and 19,280 divorces (53%); and

in Florida there were 155,240 marriages and 84,496 divorces

(54%). National Vital Statistics Reports, vol. 52, no. 22, June

10, 2004, Table 3, available at http://www.cdc.gov/nchs/

data/nvsr/nvsr52/nvsr52_22.pdf. (Unfortunately the table

does not present aggregate national figures, because some

states do not furnish divorce statistics.) To take a common

phrase out of context, the majority’s rule would result in

quite a few children “left behind,” in the sense that the

states could with impunity deprive one of the two parents

of the right to participate in the child’s education.

In fact, as I have already noted, the principle that the

“liberty” protected by the Due Process clauses includes a

parent’s right to control the upbringing and education of his

children is well-established. Moreover, as the majority

acknowledges, “divorce does not sever the parental relation

and by doing so extinguish the fundamental rights that go

along with it; the state could not ‘divorce’ Crowley from his

children unless he were a menace to them.” Ante at 7-8. And

lest there remain any question whether a noncustodial

parent’s rights evaporate after relinquishing custody, the

majority opinion correctly notes that the Supreme Court’s

recent decision in Elk Grove Unified Sch. Dist. v. Newdow, 124

S. Ct. 2301 (2004), “should not be overread to extinguish the

constitutional rights of noncustodial parents.” Ante at 8.

Notwithstanding its nod toward these principles, the

majority implies that a noncustodial parent’s fundamental

rights are not entitled to the same degree of protection as

those of the custodial parent. Nothing in the Constitution,

however, supports such a proposition. While a state may

limit any parent’s access to and responsibility for his chil-

dren, the Court has emphasized that parental rights may not

be extinguished arbitrarily. Santosky v. Kramer, 455 U.S. 745,

753 (1982) (“The fundamental liberty interest of natural

No. 02-3741 17

parents in the care, custody, and management of their child

does not evaporate simply because they have not been

model parents or have lost temporary custody of their child

to the State.”). Getting somewhat closer to our case, the

Court has also rejected the claim that the relationship

between natural parents and children born out of wedlock

is not worthy of equal constitutional protection. See Stanley

v. Ill., 405 U.S. 645, 651 (1972) (holding that an unwed father

retains the fundamental interest and right to raise his

children and the law cannot refuse to recognize those family

relationships not “legitimized” by a marriage ceremony);

Caban v. Mohammed, 441 U.S. 380, 394 (1979) (striking down

a New York law permitting an unwed mother, but not an

unwed father, to block the adoption of their child on equal

protection grounds). Even where the Court has rejected an

unwed father’s challenge to an adoption, it did so not on the

basis of his status, but rather on the basis of whether a

relationship exists at all between the father and his children.

See Quilloin v. Walcott, 434 U.S. 246, 256 (1978) (holding that

the protected interests of a father not fully committed to par-

enthood and thus possessing only a potential relationship

with his child are less significant than those of a parent who

has assumed that responsibility); Lehr v. Robertson, 463 U.S.

248, 261-62 (1983) (same).

These cases tell us that a noncustodial parent’s interests

are no less significant than those of other parents. There is

no question that Crowley is fully committed to parenthood—

he seeks to continue to develop the relationships he has had

with his children since their birth. Nor are there any allega-

tions that he is unfit to continue in his role as a parent. Per-

haps the majority is concerned by the entirely hypothetical

prospect of having to “arbitrat[e] the quarrels of divorced

parents,” but as it readily acknowledges, the right Crowley

seeks to assert is not incompatible with the custodial parent’s

exercise of her rights. Ante at 8.

18 No. 02-3741

Even if there were some tension between the rights of the

two parents, it does not follow that the Constitution affords

lesser protection to a noncustodial parent. As is the case

with the property component of the Due Process clause, the

Constitution does not create liberty interests; it merely pro-

tects interests created elsewhere, usually under state law.

See, e.g., Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538

(1985); Paul v. Davis, 424 U.S. 693, 710 (1976). We must

therefore look to state law to see what parental rights

Crowley retained after his divorce. See Newdow, supra, 124

S. Ct. at 2311 (looking to state law to determine whether a

noncustodial father’s right to inculcate his daughter with his

religious beliefs and bring a claim on her behalf was

extinguished under a divorce decree).

Under Illinois law, divorce does not automatically extin-

guish all parental rights. See 750 ILCS § 5/602.1(a) (“[T]he

dissolution of marriage . . . or the parents living separate

and apart shall not diminish parental powers, rights, and

responsibilities except as the court for good reason may

determine” under the best interest of the child standard).

Nor does it limit a noncustodial parent’s right to participate

in his or her children’s education. To the contrary: section 5

of the Illinois School Student Records Act (ISSRA) provides

that “a parent shall have the right to inspect and copy all

school student permanent and temporary records of that

parent’s child,” and only restricts this right in the case of a

parent “who is prohibited by an order of protection from

inspecting or obtaining school records of a student pursuant

to the Illinois Domestic Violence Act of 1986.” 105 ILCS

10/5(a); see also 105 ILCS 10/2(g) (“ ‘Parent’ means a per-

son who is the natural parent of the student or other person

who has the primary responsibility for the care and up-

bringing of the student.”).

The statute addresses both sides of the coin: after confer-

ring on the parent the right to inspect and copy his child’s

No. 02-3741 19

school records, it imposes on the school the obligation to

comply with a noncustodial parent’s request to exercise this

right. See 105 ILCS 5/10-21.8 (“In the absence of any court

order to the contrary to require that, upon the request of

either parent of a pupil whose parents are divorced, copies

of the following: reports or records which reflect the pupil’s

academic progress, reports of the pupil’s emotional and

physical health, notices of school-initiated parent-teacher

conference, notices of major-school sponsored events, such

as open houses, which involve pupil-parent interaction, and

copies of school calendar regarding the child which are

furnished by the school district to one parent be furnished

by mail to the other parent.”).

The default rule in Illinois is thus one that recognizes a

noncustodial parent’s right to participate in his children’s

education. Crowley’s parental rights thus extend at least

that far, unless there is something in his divorce decree to

the contrary. There is not. The Crowleys’ martial settlement

agreement, incorporated in their divorce decree, provides

that both parents “shall have joint and equal rights of access

to [their children’s] records that are maintained by third

parties, including . . . their education . . . records.” Crowley

expressly retains the right to receive information concerning

school activities, as the agreement provides that “[e]ach

party shall direct the children’s school authorities to

promptly advise each of them of their children’s grades and

progress in school and of all school meetings, functions and

activities that are open to attendance by parents.” Thus,

under both state law and the divorce decree, Crowley has

the right to participate in his children’s education. Nothing

suggests that his status as the noncustodial parent dilutes

that right at all.

Crowley’s complaint, which we must accept as true for

present purposes, alleges that the defendants engaged in a

20 No. 02-3741

pattern of conduct that amounted to a complete deprivation

of this right. Not only is he barred from school grounds

during the day and excluded from class and school func-

tions open to attendance by all parents, but his requests for

his children’s school records and calendars, to which he is

entitled by law, were also denied. Furthermore, the school

also refuses to respond to his concerns about the safety of

his children or to his inquiries regarding whether his chil-

dren were in attendance on a particular day. These actions

amount to an absolute barrier to Crowley’s right to partici-

pate in his children’s education. How can he exercise this

right when he does not know what his children are being

taught or even whether his children are in school?

The majority justifies its holding in part by a concern for

the school’s interest in academic freedom, but nothing that

Crowley is seeking would interfere at all with the educa-

tional mission of the school. He has no quarrel with the

school’s curriculum. Nor does he seek any extraordinary

privileges, such as the right to sit in his children’s classes to

monitor the teacher’s performance, or the right to dictate

what or how his children will be taught. Rather, he chal-

lenges only his exclusion from activities and information

that are available to all other parents, under whatever neu-

tral criteria the school has chosen to adopt.

The majority’s fears about disruption brought about by a

parent’s request for his children’s school records—an

intrusion it finds magnified when the request comes from a

noncustodial parent—are wholly unsupported by Illinois

law. A school has little discretion in this matter, because the

rules are set by state law. It need not consult a divorce

decree or inquire into the relationship between the parents

to determine whether the noncustodial parent retains the

right to this information. Instead, under the statute, it is re-

quired to proceed on the assumption that this right has not

No. 02-3741 21

been extinguished in the absence of a court order stating the

contrary. See 105 ILCS 5/10-21.8 (“[A] school board shall

not . . . refuse to mail copies of reports, records, notices or

other documents regarding a pupil to the parent of the

pupil . . . unless the school board first has been furnished

with a certified copy of the court order prohibiting the

release of such reports, records, notices or other documents

to that parent.”). Unless or until the school receives such a

certified copy of a court order, it knows what it must do:

furnish the information to both parents, custodial and non-

custodial alike.

The existence of these Illinois laws might make one ask

why Crowley turned to the federal court to redress this

grievance, instead of going to either the Illinois court that

granted his divorce or to any competent Illinois court

empowered to enforce the obligations created by state law.

The short answer is that there is no general exhaustion re-

quirement that governs cases under § 1983—a proposition

the Supreme Court has recognized for many years. See, e.g.,

Zinermon v. Burch, 494 U.S. 113, 125 (1990) (once a wrong

has properly been characterized as a constitutional tort, the

fact that it may also be redressable under state law does not

bar the victim from bringing an action under § 1983); Patsy

v. Bd. of Regents of State of Fla., 457 U.S. 496, 516 (1982) (no

administrative exhaustion requirement for § 1983 claims).

The question is therefore whether there is something about

Crowley’s case that would justify an exception to that

general rule.

In the area of takings law, the Supreme Court has crafted

a ripeness rule that has an effect similar to that of an ex-

haustion requirement: it has held that a claim of an uncon-

stitutional taking is not ripe until the governmental entity

charged with implementing the regulatory scheme has

reached a final decision. Williamson County Reg’l Planning

22 No. 02-3741

Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172, 186

(1985). Given the primary responsibility that states have for

the field of family law, cf. 13B Wright, Miller & Cooper § 3609

(2d ed. 1984) (discussing the judicially created limitation on

diversity jurisdiction for domestic relations cases), perhaps

the Supreme Court might hold some day that a parental

rights claim of the type Crowley is pressing is not ripe until

state remedies have been exhausted.

There is no doubt that Illinois provides a wide range of

remedies that might produce the result he wants. Under the

ISSRA, Crowley has the right to seek injunctive relief in

state court for the violation of the Act allegedly committed

by the school district when it denied him access to his

children’s school record. ISSRA § 9(a), 105 ILCS 10/9(a)

(“Any person aggrieved by any violation of this Act may

institute an action for injunctive relief in the Circuit Court of

the County in which the violation has occurred or the

Circuit Court of the County in which the school is located.”);

see John K. v. Bd. of Educ. for Sch. Dist. No. 65, 504 N.E.2d 797,

802 (Ill. App. Ct.), appeal denied, 511 N.E.2d 429 (Ill. 1987).

Crowley can also bring a claim against school district

officers for their failure to discharge their duties. See 105

ILCS 5/22-8 (“If any county superintendent, trustee, director,

or other officer negligently or wilfully fails or refuses to

make, furnish or communicate statistics and information, or

fails to discharge any other duties enjoined upon him, at the

time and in the manner required by this Act, he shall be

guilty of a petty offense and shall be liable to a fine of not

less than $25, to be recovered before any circuit court at the

suit of any person on complaint in the name of the People of

the State of Illinois, and when collected the fine shall be

paid to the county superintendent of schools.”). Finally, if

the source of the problem is in the divorce decree itself,

Crowley has the right to return to that court and seek a

modification of the decree.

No. 02-3741 23

The only problem with this theory is the not-so-small flaw

that it flies in the face of well-established rules governing a

person’s right to invoke § 1983 in federal court to redress

violations of federal constitutional or statutory law. I merely

note the possibility because, when all is said and done, the

thrust of the majority’s opinion seems to be that such a

solution would be preferable. But it is not for us to reject an

otherwise sound claim under § 1983 just because it overlaps

to a greater or lesser degree with state remedies.

When the Supreme Court invalidated an Oregon law re-

quiring parents to send their children to public school, it

explained that “[t]he child is not the mere creature of the

State; those who nurture him and direct his destiny have the

right, coupled with the high duty, to recognize and prepare

him for additional obligations.” Pierce, 268 U.S. at 535.

Depriving a parent of all information concerning his chil-

dren’s education such that he is effectively shut out of this

aspect of parenting conflicts with that long-established right.

I would therefore find that Crowley has stated a claim, and

that Principal McKinney is not entitled to qualified immu-

nity. I respectfully dissent from this portion of the opinion,

and I concur in the majority’s decision to remand the equal

protection and First Amendment claims and to reinstate the

supplemental state claims.

A true Copy:

Teste:

_____________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—3-11-05