# Daniel Crowley v. Donald McKinney and Berwyn South School District 100

> Court of Appeals for the Seventh Circuit · March 11, 2005 · 400 F.3d 965

URL: https://www.frixlaw.com/law-library/cases/9497831

## Case

- **Full name:** Daniel CROWLEY, Plaintiff-Appellant, v. Donald McKINNEY and Berwyn South School District # 100, Defendants-Appellees
- **Court:** Court of Appeals for the Seventh Circuit
- **Decided:** March 11, 2005
- **Citations:** 400 F.3d 965; 2005 U.S. App. LEXIS 4105; 2005 WL 566728
- **Precedential status:** Published
- **Opinion:** Concurring in part by Wood
- **Judges:** Posner, Wood, Evans
- **Cited by:** 29 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9497831

## How later opinions describe it (automated extraction)

- noting that litigation over the correctness of a school's decisions "would be bound to interfere with the educational mission .... not only by increasing schools' legal fees but also and more ominously by making school administrators and teachers timid because [they are] fearf…
- noting "the only federal constitutional right vis-à-vis the education of one's children that the [Supreme Court's] cases as yet recognize . . . is the right to choose . . . among different types of school with different curricula, educational philosophies, and sponsorship (e.g…
- noting that the constitutional parenting right “is not a right to participate in the school’s management—a right inconsistent with preserving the autonomy of educational institutions, which is itself . . . an interest of constitutional dignity”
- finding Meyer and Pierce are about a state’s denial of a private education, and do not convey a right for parental management

## Opinion text

WOOD, Circuit Judge,
dissenting in part, concurring in part.
This case is about a father’s constitutional right to participate 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, notwithstanding the existence of Supreme Court cases directly recognizing these kinds of parental rights and notwithstanding 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 otherwise, 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 b.etween 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 *974 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 , 43 S.Ct. 625 , 67 L.Ed. 1042 (1923); Pierce v. Society of Sisters, 268 U.S. 510 , 45 S.Ct. 571 , 69 L.Ed. 1070 (1925); and Wisconsin v. Yoder, 406 U.S. 205 , 92 S.Ct. 1526 , 32 L.Ed.2d 15 (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 , 93 S.Ct. 705 , 35 L.Ed.2d 147 (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 eases 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 entitled. 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 théy 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 th'e' last hundred years have all looked in the opposite direction, by recognizing and supporting 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 marriages 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 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 970. 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, 542 U.S. 1 , 124 S.Ct. 2301 , 159 L.Ed.2d 98 (2004), “should not be overread to extinguish the constitutional *975 rights of noncustodial parents.” Ante at 970.
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 children, the Court has emphasized that parental rights may not be extinguished arbitrarily. Santosky v. Kramer, 455 U.S. 745, 753 , 102 S.Ct. 1388 , 71 L.Ed.2d 599 (1982) (“The fundamental liberty interest of natural 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 , 92 S.Ct. 1208 , 31 L.Ed.2d 551 (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 , 99 S.Ct. 1760 , 60 L.Ed.2d 297 (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 , 98 S.Ct. 549 , 54 L.Ed.2d 511 (1978) (holding that the protected interests of a father not fully committed to parenthood 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 , 103 S.Ct. 2985 , 77 L.Ed.2d 614 (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 allegations that he is unfit to continue in his role as a parent. Perhaps the majority is concerned by the entirely hypothetical prospect of having to “arbitrate 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 970.
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 protects interests created elsewhere,. usually under state law. See, e.g., Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538 , 105 S.Ct. 1487 , 84 L.Ed.2d 494 (1985); Paul v. Davis, 424 U.S. 693, 710 , 96 S.Ct. 1155 , 47 L.Ed.2d 405 (1976). We must therefore look to state law to see what parental rights Crowley retained after his divorce. See Newdow, supra, 542 U.S. at — , 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 extinguish all parental rights. See 750 ILCS § 5/602.1(a) (“[T]he dissolu *976 tion 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 person who is the natural parent of the student or other person who has the primary responsibility for the care and upbringing of the student.”).
The statute addresses both sides of the coin: after conferring on the parent the right to inspect and copy his child’s 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 then-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 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 functions 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 children were in attendance on a particular day. These actions amount to an absolute barrier to Crowley’s right to participate 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?
*977 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 educational 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 challenges only his exclusion from activities and information that are available to all other parents, under whatever neutral 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 required to proceed on the assumption that this right has not 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 noncustodial 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 requirement 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 , 110 S.Ct. 975 , 108 L.Ed.2d 100 (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 , 102 S.Ct. 2557 , 73 L.Ed.2d 172 (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 exhaustion requirement: it has held that a claim of an unconstitutional taking is not ripe until the governmental entity charged with implementing the regulatory scheme has reached a final decision. Williamson County Reg’l Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172, 186 , 105 S.Ct. 3108 , 87 L.Ed.2d 126 (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 *978 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, 152 Ill.App.3d 543 , 105 Ill.Dec. 512 , 504 N.E.2d 797, 802 (1987), appeal denied, 115 Ill.2d 542 , 110 Ill.Dec. 457 , 511 N.E.2d 429 (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 fíne 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.
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 requiring parents to send their children to public school, it explained that “[tjhe 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 , 45 S.Ct. 571 . Depriving a parent of all information concerning his children’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 immunity. 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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9497831. Public record. Not legal advice.