Opposition Brief — Newkirk ex rel. Newkirk v. Fink

nN {supreme Court, U.S.

: FILED

No. 95-379 OCT 1 1995

CLERK

In The

Supreme Court of the Anited States

s

October Term, 1995

JASON NEWKIRK, by Next Friends, Daniel Newkirk and

Nancy Newkirk; DANIEL NEWKIRK; NANCY NEWKIRK,

Petitioners,

VS.

MICHAEL FINK, individually and in his official capacity as

Counselor of East Lansing Public Schools,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

RESPONDENT?’S BRIEF IN OPPOSITION

LISA L. SWEM

Counsel of Record

DONALD J. BONATO

THRUN, MAATSCH AND NORDBERG, P.C.

Attorneys for Respondent

501 South Capitol Avenue - Suite 500

Lansing, Michigan 48933

(517) 484-8000

October 11, 1995

i

COUNTER-STATEMENT OF QUESTIONS PRESENTED

I. Whether this Court should exercise its discretion to grant

certiorari where Petitioners have failed to: raise any important

constitutional issue not previously decided by this Court, identify

any conflict among the Circuit Courts regarding an issue germane

to this case, appeal any statutory cause of action, or establish that

the lower courts erred in their decisions; and where Respondent is

entitled to qualified immunity.

II. Whether the constitutional right of privacy extends to the

daily operations of schools to require educators to obtain

informed written consent from the student's parents before

meeting with the student pursuant to a teacher referral.

ii

LIST OF PARTIES

Petitioners Jason Newkirk, Daniel Newkirk and Nancy

Newkirk are individuals.

Respondent Michael Fink is an individual. He is being sued

in both his individual capacity and in his official capacity as a

guidance counselor in the East Lansing Public Schools, East

Lansing, Michigan.

The following were also parties to the proceedings in the

United States District Court for the Western District of Michigan

and in the Ingham County Circuit Court for the State of Michigan:

the East Lansing Public Schools; Dr. William Mitchell,

individually and in his official capacity as the superintencient of

the East Lansing Public Schools; Sally McClintock, individually

and in her official capacity as the principal of the Whitchills

Elementary School; Jackie Killingsworth, individually and in her

official capacity as a classroom teacher at the Whitehili-

Elementary School; Ann Bloomquist, individually and in h«z

official capacity as a music teacher at the Whitehills Elementary

School; Creative Therapeutics, Inc., a New Jersey corporation;

and Dr. Richard Gardner, individually. '

Petitioners incorrectly assert that the East Lansing Public

Schools and its superintendent, principal and teachers were

parties to the proceedings in the United States Court of Appeals for

the Sixth Circuit. Pet. at ii.2 These parties were dismissed

pursuant to stipulation and order during the District Court

1. Dr. Gardner developed “The Talking, Feeling and Doing Game,” which is

produced and sold by Creative Therapeutics, Inc.

2. The following abbreviations designate the following pleadings/records:

Compl. - Complaint; Pet. - Petition; Pet., App.- Appendix to Petition; Resp., App. -

Respondent’s Appendix; R. - Record on Appeal.

Ts

iii

proceedings. Pet., App. D. Mr. Fink was the only defendant-

appellee in the appeal to the United States Court of Appeals for the

Sixth Circuit. See Pet., App. at E-2 (“plaintiffs appeal the

judgment on the right-to-privacy count as to the guidance

counselor only”).

iv

TABLE OF CONTENTS

Page

Counter-Statement of Questions Presented ............ i

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Constitutional and Statutory ProvisionsInvolved ...... 4

Counter-Statement of the Case ................00000. 5

Summary Of the Argument ........ccccccccccccccces 7

Reasons for Denyingthe Writ ..................005: 8

I. Petitioners Have Not Identified Any Legitimate

Basis for this Court to Exercise Its Discretion to

CGE: F058 6 bee Se skade rose ease ces 8

A. This Case Does Not Involve an Important or

Unresolved Constitutional Issue. ......... 9

B. No Conflict with the Circuit Courts Have

ee ue we 11

Vv

Contents

Page

C. No Cause of Action Based on Federal or State

Statutory Provisions Has Been Pled,

Appealed, or Identified as Conflicting with

I ook a cn ckne vd nceecaccs:. 12

D. Respondent Is Entitled to Qualified Immunity.

66 eREE SG bhOR EVAR BLES eddie ks 13

II. The Decisions of the Lower Courts Are Not

GIN 65506040 asck viseee ete 14

A. Tort Allegations Should Not Be

Constitutionalized. .................... 15

B. Federal Courts Should Not Interfere with the

Operations of the Public Schools. ......... 16

C. The Constitution Should Be Interpreted with

Common Sense. ..............0.0005.., 18

RI on 6h ces yas arestaee coe 21

TABLE OF CITATIONS

Cases Cited:

Acton v. Vernonia Sch. Dist. 47J, 796 F. Supp. 1354 (D. Or.

ape EE EE Pee eh Da ei MD ald ctx Nr bey 15

Anderson v. Creighton, 483 U.S.635 (1987) ........... 14

vi

pik Lee pitti Ee eal

Contents

Page

Arnold v. Board of Educ., 880 F.2d 305 (11th Cir. 1989) .. 11,12

Bahr v. Jenkins, 539 F. Supp. 483 (E.D. Ky. 1982) ...... 18

Baker v. McCollan, 443 U.S. 137 (1979) .............. 16

Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675 (1986) .. 9

Collins v. Harker Heights, 503 U.S. 115(1992) ........ 16

Daniels v. Williams, 474 U.S.327 (1986) ............. 16

Davis v. Scherer, 468 U.S. 183 (1984) ................ 14

Epperson v. Arkansas, 393 U.S. 97 (1968) ............. 17

Goss v. Lopez, 419 U.S. 56S (1975S) ..cccccccccccccces 20

Harlow v. Fitzgerald, 457 U.S. 800(1982) ............ 14

Ingraham v. Wright, 430 U.S.651(1977) ............. 16

Meyer v. Nebraska, 262 U.S. 390 (1923) .............. 10

Milliken v. Bradley, 418 U.S. 717 (1974) .............. 16, 17

Mitchell v. Forsyth, 472 U.S.511 (1985) .............. 14

Moore v. City of East Cleveland, 431 U.S.494 (1977) .... 11

New Jersey v. T.L.O., 469 U.S. 325 (1985) ............ 9,10,17

vii

Contents

Page

Parham v. J.R., 442 U.S. 584 (1979) ......... eee e eee: 10

Paul v. Davis, 424 U.S. 693 (1976) ........- eee ee eeee 16

Pierce v. Society of Sisters, 268 U.S.510(1925) ........ 10

Prince v. Massachusetts, 321 U.S. 158 (1994) .......... 11

Santosky v. Kramer, 455 U.S.745 (1982) ...........5.: 10

Stanley v. Illinois, 405 U.S. 645 (1972) ..........0008- 10

Tinker v. Des Moines Indep. Comm. Sch. Dist., 393 U.S.

DEPEND Heeb vb dwescdsnecnadeve dene csesecensc 17

Vernonia Sch. Dist. 47J v. Acton, 115 S. Ct. 2386 (1995)

POP OTe To TET TT TTT TUTTLE ETT ee. 9,10, 15,20

Wood v. Strickland, 420 U.S.308 (1975) ..........+45. 18

Statutes Cited:

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Mich. Comp. Laws Ann. § 330.1750 (West 1992) ....... 19

Mich. Comp. Laws Ann. § 600.2165 (West 1989) ....... 19

Contents

United States Constitution Cited:

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PD <c.cg nd duKWedabecnanecensdudense

PO i456 6 6 k0 es Wide Vendsectcanas

Other Authorities Cited:

Candace Purdom, Road Trip Ahead? Games Bring

Boredom to a Screeching Halt, Chi. Trib., August 3,

eee elke Ad hanes kevcekstuhacnudivscnuewesws

Gregory Stock, The Kids’ Book of Questions ..........

APPENDIX

Appendix A — Referral to Child Guidance Consultant

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Appendix B — Stipulation and Order Filed March 28, 1994

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Appendix C — Final Judgment and Order Dated December

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Page

20

6, 20

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2a

ix

Contents

Page

Appendix D — Constitutional and Statutory Provisions

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l

No. 95-379

In The

Supreme Court of the Anited States

tp

October Term, 1995

JASON NEWKIRK, by Next Friends, Daniel Newkirk and

Nancy Newkirk, DANIEL NEWKIRK; NANCY NEWKIRK,

Petitioners,

vs.

MICHAEL FINK, individually and in his official capacity as

Counselor of East Lansing Public Schools,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

RESPONDENT’S BRIEF IN OPPOSITION

The Respondent, Michael Fink, respectfully requests that

this Court deny the Petition for Writ of Certiorari submitted by

the Petitioners, Jason Newkirk, Nancy Newkirk, and Daniel

Newkirk.

2

OPINIONS BELOW

On July 8, 1991, Petitioners brought suit in the United States

District Court for the Western District of Michigan against the

East Lansing Public Schools, William Mitchell (superintendent),

Sally McClintock (principal), Jackie Killingsworth (classroom

teacher), Ann Bloomquist (music teacher), and Michael Fink

(guidance counselor). Count I of the complaint alleged a

violation of Petitioners’ constitutional right to privacy. Count II

alleged a violation of the Protection of Pupil Rights Amendment

(“P.P.R.A.”), 20 U.S.C. § 1232h. Counts III through VII alleged

various pendant state law claims, which were dismissed by the

District Court three weeks after the complaint was filed. Pet.,

App. F.

Petitioners subsequently refiled the following claims in the

Ingham County (Michigan) Circuit Court: (1) violation of the

right to privacy under the Michigan Constitution, (2) tortious

invasion of privacy, (3) intentional infliction of emotional

distress, (4) medical malpractice, (5) negligence, and (6)

products liability. Ingham County Circuit Court No. 92-72034-

AZ. Extensive discovery took place in the state case, including

the depositions of the parties (seven), lay witnesses (nine), and

expert witnesses (seven). In the midst of discovery, but prior to

the filing of dispositive motions, all defendants except

Respondent were dismissed pursuant to stipulation and order. No

attendant settlement documents were filed. Following discovery,

the state court dismissed Petitioners’ remaining claims and

entered final judgment in Respondent’s behalf. Resp., App. A.

Petitioners did not exercise their appeal of right from final

judgment in the state case, and the deadline for appeal has

expired.

On March 31, 1993, the District Court granted partial

summary judgment for all defendants, dismissing Count I of the

3

complaint (constitutional privacy right). Pet., App. A. Nearly

two years after filing their complaint and almost four months

after summary judgment on the privacy claim, Petitioners sought

leave to amend their complaint to expand the constitutional

privacy claim brought in the original complaint to a “due process

and constitutional right of privacy” claim, and to add a claim for

violation of parental liberty and First Amendment free exercise

rights. R. 649. The District Court denied Petitioners’ motion to

amend. Pet., App. H.

The District Court later dismissed Count II of the complaint

(violation of the P.P.R.A.). Pet., App. B. Petitioners then filed a

motion to alter or amend judgment, which was denied for Count I

(privacy) and granted for Count II (P.P.R.A.). Pet., App. C.

However, by stipulation and order filed on March 28, 1994, the

District Court dismissed Count II (P.P.R.A.) as to all parties.

Petitioners also stipulated to dismiss from the federal litigation

all defendants, except Respondent. Pet., App. D. No attendant

settlement documents were filed.

This litigation was not brought solely “against the school

district and counselor,” but also against the school

superintendent, principal, classroom teacher, music teacher,

Creative Therapeutics, Inc., and Dr. Richard Gardner. Compare

Pet. at 4 with Pet. at ii. Contrary to Petitioners’ assertion, the

District Court did not hold that there was no constitutional

violation of parental rights to “even see the records.” Compare

Pet. at 4 with Pet., App. B. No cause of action was ever pled

relative to Petitioners’ records request.

Petitioners appealed to the United States Court of Appeals

for the Sixth Circuit only as to Respondent. Although the appeal

was untimely, the District Court granted Petitioners’ motion to

extend time for filing notice of appeal. The Sixth Circuit affirmed

4

the District Court’s rulings, without opinion, as to the grant of

summary judgment on the privacy count and the denial of the

motion to amend complaint. Pet., App. E.

STATEMENT OF JURISDICTION

The jurisdiction of this Court for review by Petition for Writ

of Certiorari is invoked under 28 U.S.C. § 1254(1). Petitioners

seek review of a decision made by the Sixth Circuit Court of

Appeals on June 13, 1995, which affirmed the District Court’s

grant of summary judgment in favor of Respondent regarding

Petitioners’ constitutional privacy claim. Because Petitioners

have not asked this Court to review the District Court’s denial of

their motion to amend complaint, this Court does not have

jurisdiction over Petitioners’ “due process” and “parental

liberty” claims which were presented in the proposed amended

complaint. R. 694.

CONSTITUTIONALAND STATUTORY

PROVISIONS INVOLVED

As pled in their complaint, Petitioners’ privacy claim is

based on the constitutional and statutory provisions listed below

and fully set forth in Respondent’s Appendix D.

Constitutional Provisions

U.S. Const. art. I, § 9, cl. 3.

U.S. Const. amends. I, IV, V, IX, and XIV.

Statutory Provisions

42 U.S.C. § 1983.

2

COUNTER-STATEMENT OF THE CASE

In October 1989, Jason Newkirk’s teacher, Mrs.

Killingsworth, contacted Nancy Newkirk to discuss concerns

about Jason. Mrs. Killingsworth recommended that Jason see

Mr. Fink, the school guidance counselor. Compl., 418. Mrs.

Killingsworth was concerned because Jason had been found

playing with matches and was having difficulty socializing with

other children. Compl., 423. During this discussion, Mrs.

Newkirk told Mrs. Killingsworth that Jason could see Mr. Fink to

“play games.” Compl., { 20. Petitioners have neither alleged nor

produced evidentiary support that Mr. Fink heard from either

Mrs. Newkirk or Mrs. Killingsworth about any “conditions” for

seeing Jason. See contra Pet., 3.

Shortly after her discussion with Jason’s mother,

Mrs. Killingsworth completed a “Referral to Child Guidance

Consultant” form. Compl., 21; Resp., App. C. This form is

dated November 3, 1989, and states, in pertinent part:

Jason is an angry child. He needs to talk,

identify his anger and how to talk about his

feelings and concerns. Jason needs a good

friend. Example: If he has a good day. What

made it go well —

Resp., App. C. With Mrs. Newkirk’s knowledge, Mr. Fink met

with Jason pursuant to Mrs. Killingsworth’s referral.

Later that month, Mr. Fink talked with Daniel Newkirk about

Jason’s school difficulties. Petitioners allege that Mr. Newkirk

“expressly forbade Mr. Fink to counsel Jason.” Compl., { 25.’

3. The District Court noted “It is, at best, a debatable issue whether Mr.

& Mrs. Newkirk did not consent to counseling. However, for purposes of this

{summary judgment] motion, I assumed they did not consent.” Pet., App. at A-

13, 0.6.

6

Mr. Fink nonetheless understood Mr. Newkirk’s response to

permit him to meet with Jason. Pursuant to the teacher’s referral,

Mr. Fink met with Jason once a week to play checkers, pick-up

sticks, the “Operation” game, and indoor basketball and soccer.

Mr. Fink twice played “The Talking, Feeling and Doing Game”

for no longer than 15 minutes and once read from The Kids’ Book

of Questions.

Petitioners have no basis to claim that they became aware of

Mr. Fink’s meetings with Jason only “after several months” and

after they had “demanded to know what was happening at

school.” Pet. at 3. Petitioners acknowledge that Mrs. Newkirk

had told Mrs. Killingsworth that Jason could meet with Mr. Fink

“to play games.” Compare Pet. at 3 with Compl.,{ 20. There is

neither an allegation nor evidentiary support that Petitioners “on

several occasions” during the school year made inquiries to

Mr. Fink or “demanded to know what was happening at school.”

Pet. at 3.

Similarly, there is no evidence that Mr. Fink either refused to

cooperate with Petitioners’ “orders” not to continue meeting with

Jason or disregarded their request for Jason’s school records. Pet.

at 4. Petitioners removed Jason from school in the midst of the

following school year because the principal denied their request

to have Jason exempt from the “conflicts resolution” curriculum

utilized in his social studies class. Pet., App. at A-3 and A-17;

Compl., { 41 (Jason “was subsequently removed . . . due to the

school’s refusal to exempt him ...”) (emphasis added).

However, both the principal and the school district were

dismissed from this litigation pursuant to Petitioners’ stipulation.

Petitioners’ characterization of The Talking, Feeling, and

Doing Game as a “treatment tool to be used only by trained

psychiatric professionals” contradicts the game’s statement

indicating that it is to be used by “mental health professionals.”

7

Compare Pet. at 3 with Pet. at 11. Acknowledging that

Respondent is a social worker, as well as a school guidance

counselor, Petitioners erroneously assert that Respondent is not a

“mental health professional” because he is not a psychiatrist. Pet.

at 11.

Petitioners’ Statement of the Case __ includes

misrepresentations for which there is neither support in the

federal court record nor contradictory evidence developed

through discovery in the companion state law case. For example,

the federal court record contains no support for the assertion that

Jason was a “normal, quiet little boy.” Pet. at 3. Testimony of

school officials and expert witnesses in the state court case

supports the opposite conclusion. Petitioners’ complaint also

demonstrates that Jason’s third grade teacher did not worry that

Jason was “too quiet,” but rather expressed concerns about

Jason’s playing with matches and his lack of socialization skills.

Compl.,{ 23; see also Resp., App. C. (Jason is an “angry child.”)

Petitioners place great reliance on the affidavit of their

expert witness, Dr. William A. Decker. Pet. at 15-16. Dr.

Decker’s opinion is far from uncontradicted and remains a legal

conclusion, not “fact.” Dr. Decker’s affidavit was submitted to

the District Court nearly five months after entry of summary

judgment. The District Court noted that Petitioners were “simply

trying to reargue positions that this Court rejected or are

attempting new arguments that should have been raised earlier.”

Pet., App. atC-3. Dr. Decker’s “opinions” were also submitted to

the state court, which nonetheless dismissed Petitioners’ claims

against Respondent. Resp., App. A.

SUMMARY OF THE ARGUMENT

This case presents no issue appropriate for this Court’s

exercise of discretionary jurisdiction because it does not involve

an important or unresolved constitutional issue, nor does it

conflict with rulings of the Circuit Courts. Petitioners’ federal

statutory claim was dismissed pursuant to stipulation and order,

and was never appealed. The asserted conflict with state

statutory provisions has neither been pled nor appealed.

Respondent is also entitled to qualified immunity.

The decisions of the lower courts are not erroneous. The

District Court declined to constitutionalize a tort case. Relying

on this Court’s long-standing reluctance to interfere with the

operations of the public schools, the District Court identified

“common sense” reasons why it should not recognize Petitioners’

claim as a fundamental right protected by the Constitution. The

Sixth Circuit affirmed this decision without opinion.

REASONS FOR DENYING THE WRIT

I.

PETITIONERS HAVE NOT IDENTIFIED ANY

LEGITIMATE BASIS FOR THIS COURT TO EXERCISE

ITS DISCRETION TO GRANT CERTIORARI.

Petitioners fail to satisfy the criteria traditionally applied by

this Court in determining whether to grant certiorari. This case

involves no important or unresolved constitutional issue.

Petitioners have not demonstrated that the unpublished decisions

of the lower courts are inconsistent with decisions of this Court,

nor have Petitioners identified any conflict among the Circuit

Courts regarding the issue involved in this case — Petitioners’

right to privacy. The asserted “conflict” with federal and state

statutes is not before this Court.

The facts in this litigation are sufficiently unique so that the

precedential value in the unpublished decisions of the District

Court and Sixth Circuit is likely to be minimal. The issue

9

presented by Petitioners has arisen only once and has no impact

beyond the immediate parties. Because Respondent is entitled to

qualified immunity, further discovery or a trial on the merits is

precluded.

A. This Case Does Not Involve an Important or Unresolved

Constitutional Issue.

The District Court acknowledged the unusual circumstances

of Petitioners’ cause of action:

Both parties agree that no court has ever

recognized a right to privacy in a factual

situation similar to the case before the Court.

This, of course, does not mean that no such

right exists. Instead, the Court must look to

analogous situations in order to determine if a

righi to privacy exists here.

Pet., App. at A-5. In its effort to “determin[e] the scope of the

constitutionally protected right to privacy,” the District Court

carefully considered the cases cited by Petitioners. Pet.,

App. at A-5 to A-7. However, noting this Court’s posture in

Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 686 (1986) and

New Jersey v. T.L.O., 469 U.S. 325, 342, n.8 (1985), the District

Court observed that “when dealing with the rights of students,

courts have been less willing to find a broad right of privacy.”

Pet., App. at A-7. The District Court then analyzed Petitioners’

claim in light of decisions from this Court and other federal courts

relative to student rights in the school. Pet., at A-7 to A-12.

The District Court’s observations were reinforced last term

by this Court in Vernonia Sch. Dist. 47J v. Acton, 115 S. Ct. 2386

(1995). Examining the constitutional privacy interest of a junior

high school student who declined to submit to random urinalysis

10

testing as a condition of his participation in school sports, this

Court held that the Constitution “does not protect all subjective

expectations of privacy, but only those that society recognizes as

‘legitimate.’” Id. at 2391 (citing New Jersey v. T.L.O., 469 U.S. at

338). Finding that certain privacy expectations vary with context,

this Court recognized the special circumstances innate to our

Nation’s public schools and held that “while children assuredly

do not shed their constitutional rights . . . at the schoolhouse gate,

. .. the nature of those rights is what is appropriate for children in

school.” Vernonia, 115 S. Ct. at 2391-92 (citations omitted).

Moreover, “ ‘students within the school environment have a

lesser expectation of privacy than members of the population

generally.’ ” Vernonia, 115 S. Ct. at 2392 (quoting New Jersey v.

T.L.O., 469 U.S. at 348 (Powell, J., concurring)).

This Court’s decisions regarding a familial right to privacy,

relied on by Petitioners, are restricted to circumstances in which

due process considerations were triggered by state proceedings

which irrevocably severed the relationship between parent and

child: Santosky v. Kramer, 455 U.S. 745 (1982);* statutorily

presumed that unwed fathers are neglectful, Stanley v. Illinois,

405 U.S. 645 (1972); or interfered with a parental decision to

commit a child to state mental health facilities, Parham v. J.R.,

442 U.S. 584 (1979).

Petitioners also rely on cases which address a statute or local

ordinance imposing criminal sanctions: finding unconstitutional

a statute that prohibited teaching any foreign language beyond

the eighth grade, Meyer v. Nebraska, 262 U.S. 390 (1923);

finding unconstitutional a statute which imposed a criminal

penalty on a parent for not sending a school-age child to school,

Pierce v. Society of Sisters, 268 U.S. 510 (1925);° upholding the

4. Petitioners miscite Santosky, supra, as 455 U.S. 743. Pet. at 8.

5. The cited language in Pierce, supra, relied upon by Petitioners is at

534-35. Pet. at 8.

1]

conviction under a state child labor law of a woman who allowed

her young niece to sell religious tracts on public sidewalks,

Prince v. Massachusetts, 321 U.S. 158 (1944); and finding

unconstitutional a housing ordinance which limited occupancy to

members of a single family, Moore v. City of East Cleveland,® 431

U.S. 494 (1977).

Despite the dicta in those cases regarding parental

prerogatives in child rearing, this Court noted that the rights of

parents or the family are not beyond limitation or regulation. See,

e.g., Prince, 321 U.S. at 166; Moore, 431 U.S. at 499. These are

constitutionally significant distinctions, explicitly recognized by

the Courts that authored those opinions. They do not provide a

basis for this Court to require, as a matter of constitutional law,

that a school official first obtain “written, full, and informed

consent” from parents or guardians before meeting with a

student. Pet. at 11.

B. No Conflict with the Circuit Courts Has Been Identified.

Without citation, Petitioners assert that “[djecisions of

courts in all circuits, including the Sixth Circuit, are in conflict

with the decision in the instant case.” Pet. at 5. However, it is

clear that no such intra-circuit or inter-circuit conflicts exist. The

Sixth Circuit affirmed the District Court’s decision in this case

and found no conflict within the Sixth Circuit. Pet., App. E.

Petitioners’ perceived intra-circuit conflict was never raised

through a request for re-hearing or hearing en banc.

The only Circuit Court case cited in the Petition is Arnold v.

Board of Educ., 880 F.2d 305 (11th Cir. 1989), upon which the

District Court relied to support its decision to dismiss Petitioners’

privacy claim. Pet., App. at A-14toA-15. Petitioners attempt to

6. Petitioners erroneously refer to this case as “City of Cleveland.” Pet.

at 6.

12

distinguish Arnold from the present case based on the age

differences of the children involved and on the alleged

“coercion” used so Jason Newkirk would not inform his parents

about the counseling. Jd. at A-15. Legal distinctions relative to

age level are generally set by the legislative branches of

government. As for the alleged “ coercion,” the District Court

found:

Here, there is no such “coercion” claim, nor is

there any evidence that defendants “coerced”

Jason into counseling sessions with Mr. Fink.

Plaintiffs allege, without any evidentiary

support, that Mr. Fink said to Jason, “do not

tell your parents,” presumably about the

counseling sessions. I do not believe that this

unsupported factual statement, if true, rises to

the level of “coercion” under Arnold, supra.

Pet., App. at A-14, n.9. The fact that Petitioners disagree with the

District Court’s conclusion does not create 2 conflict among the

Circuit Courts, particularly when only one Circuit Court case has

been cited. Petitioners have not established the existence of an

inter-Circuit conflict, nor the importance of resolving this

illusory conflict.

C. No Cause of Action Based on Federal or State Statutory

Provisions Has Been Pled, Appealed, or Identified as

Conflicting with the Constitution.

Petitioners urge this Court to grant certiorari to resolve the

“conflict with federal statutory and Constitutional provisions.”

Pet. at 5. Without citation, Petitioners also refer to “federal

legislation” relative to informed consent from parents which is

allegedly necessary for a minor to obtain health care. Pet. at 5, 11,

15, 16-17. Even if such authority had been offered, no cause of

action under this phantom federal legislation was ever pled.

13

Although the complaint initially included a claim for violation of

the Protection of Pupil Rights Amendment, 20 U.S.C. § 1232h,

this claim was voluntarily dismissed pursuant to stipulation and

order. Resp., App. B. Petitioners did not seek appellate review of

this federal statutory claim.

Petitioners similarly assert that the District Court’s decision

conflicts with state law regarding parental consent. Pet. at 11,15,

16-17. Petitioners cite to three Michigan statutory provisions’

regarding hospital treatment of emotionally disturbed minors,

surgery for mental health patients, and the right of parents to

obtain medical records of their minor children. Pet. at 15.

Petitioners have never asserted these statutory provisions as the

basis for a cause of action in this case, perhaps because hospital

care and surgery are far from commensurate with the work of Mr.

Fink, a school guidance counselor.

The constitutional separation of powers requires Congress

and the state legislatures to conform theiz legislation to this

Court’s view of the Constitution. However, Petitioners confuse

this Court’s role with those of Congress and the state legislatures

and, on the issue of consent for health care treatment of minors,

invite this Court to conform its view of the Constitution to federal

and state statutes. Because such action results in the “tail

wagging the dog,” Petitioners’ inappropriate invitation should be

declined.

D. Respondent Is Entitled to Qualified Immunity.

The District Court found that Petitioners did not state a claim

for violation of their constitutional privacy right. This case was

summarily dismissed and the issue of qualified immunity raised

in Respondent’s motion for summary judgment was not

7. Petitioners miscite Section 716 of the Michigan Public Health Code

(Mich. Comp. Laws Ann. 333.1716) as M.C.L. 300.1716. Pet. at 15.

14

addressed. Qualified immunity shields public officials

performing discretionary functions from liability for civil

damages insofar as their conduct does not violate “clearly

established” statutory or constitutional rights of which a

reasonable person would have known. Davis v. Scherer, 468 U.S.

183, 194 n.12 (1984). The test is an objective standard.

Resolution of qualified immunity is a question of law. Mitchell v.

Forsyth, 472 U.S. 511,526 (1985).

In this case, the District Court noted that it had difficulty

“determining Petitioners’ actual privacy claims.” Pet., App. at A-

11,n.4. Yet, it is well established that the constitutional right must

not be stated in general terms, but must be sufficiently

particularized to place potential defendants on notice that their

conduct is probably unlawful. Anderson v. Creighton, 483 U.S.

635, 640 (1987). The fact that the District Court was unable to

ascertain a constitutional claim alone shows that the right

asserted by Petitioners was neither “sufficiently particularized”

nor “clearly established,” such that Respondent would have

known his conduct was unlawful. Even if this Court granted

certiorari and reversed the rulings of the lower courts, the

viability of Respondent’s qualified immunity would preclude

further discovery or even a trial on the merits. Harlow v.

Fitzgerald, 457 U.S. 800, 817-18 (1982).

Il.

THE DECISIONS OF THE LOWER COURTS ARE

NOT ERRONEOUS.

Review on certiorari is also inappropriate in this case

because the reasons articulated by the District Court for

dismissing Petitioners’ claim, as affirmed by the Sixth Circuit,

are noterroneous.* The District Court demonstrated remarkable

8. Denying Petitioners’ motion to amend or alter judgment, the District

(Cont'd)

15

clairvoyance in relying, in part, on Acton v. Vernonia Sch. Dist.

47J, 796 F. Supp. 1354, 1361 (D. Or. 1992) (upholding random

drug testing of student athletes, the court stated, “courts have

acknowledged that the public school is a unique setting in which

the constraints of the Fourth Amendment are ‘relaxed.’”) Pet.

App. at A-8. Last term, this Court upheld that ruling. Vernonia

Sch. Dist. 47J v. Acton, 115 S. Ct. 2386 (1995). See discussion

supra.

The cases cited by Petitioners do not suggest a different

outcome. The courts below reached the correct result through a

careful analysis of case law. The lower courts appropriately

rejected Petitioners’ invitation to constitutionalize a tort case by

creating a new niche in privacy law. Instead, the courts adopted a

common sense interpretation of the Constitution which

recognized the unique circumstances of this case and the long-

standing position of the federal judiciary not to interfere with the

operations of the public schools.

A. Tort Allegations Should Not Be Constitutionalized.

This Court is neither an arbiter of state tort law claims nor a

regulator of professional licensing matters. Petitioners urge this

Court to constitutionalize a tort or licensing matter based on

Respondent’s alleged refusal “to follow the law regarding proper

and informed consent for psychological health care of minors.”

Pet. at 6. Such circumstances do not justify intervention by this

Court and are more appropriate for review by a state court or

administrative agency.’

(Cont'd)

Court found that Petitioners were rearguing positions that the Court rejected or

“attempting new arguments that should have been raised earlier.” Pet.,

App. at C-3. The District Court, however, found “no clear error in its original

Opinion relative to the dismissal of the privacy claim.” /d.

9. The District Court noted that although no constitutional violation was

(Cont'd)

16

This Court has previously rejected constitutional claims

which would “impose federal duties that are analogous to those

traditionally imposed by state tort law.” Collins v. Harker

Heights, 503 U.S. 115, 128 (1992). See also Daniels v. Williams,

474 U.S. 327, 332 (1986) (holding that the Constitution “does not

purport to supplant traditional tort law in laying down rules of

conduct to regulate liability for injuries that attend living together

in society”); Baker v. McCollan, 443 U.S. 137, 146 (1979)

(stating that because Section 1983 imposes liability for violations

of constitutional rights, not for violations of duties of care arising

out of tort law, remedy for the latter type of injury “must be

sought in state court under traditional tort-law principles”);

Ingraham v. Wright, 430 U.S. 651, 672 (1977) (holding that

“traditional common-law remedies are fully adequate to afford

due process” even though a student has a liberty interest from

bodily restraint and punishment); Paul v. Davis, 424 U.S. 693,

701 (1976) (rejecting reasoning that “would make of the

Fourteenth Amendment a font of tort law to be superimposed

upon whatever systems may already be administered by the

States”). This case presents no reason for this Court to depart

from these holdings.

B. Federal Courts Should Not Interfere with the Operations

of the Public Schools.

Petitioners’ case involves an issue which should be

addressed at the state and local level, and not by the federal

courts. Local control over public schools is one of this Nation’s

most deeply rooted and cherished traditions. Milliken v. Bradley,

(Cont'd)

presented, such a finding “does not preclude a holding by a different court that

defendants may have committed a common law tort against plaintiffs.” Pet.,

App. at A-13,n.7 and A-16, n.13. Petitioners’ tort claims (invasion of privacy,

intentional infliction of emotional distress, and medical malpractice) were

subsequently dismissed by the State Court. Resp., App. A.

17

418 U.S. 717, 741-42 (1974). Because the dispute in this case

does not go beyond the constitutional pale, this Court should not

interfere with the operations of the public schools.

This Court has long recognized that local schoo! authorities

have broad discretion in the management of school affairs. In

Epperson v. Arkansas, 393 U.S. 97, 104 (1968), this Court

reaffirmed that “public education in our Nation is committed to

the control of state and local authorities” and that federal courts

“do not and cannot intervene in the resolution of conflicts which

arise in the daily operation of school systems and which do not

directly and sharply implicate basic constitutional values.” In

Tinker v. Des Moines Indep. Comm. Sch. Dist., 393 U.S. 503, 507

(1969),"° this Court noted that it has “repeatedly emphasized. . .

the comprehensive authority of the States and of school officials

... to prescribe and control conduct in the schools.” In New

Jersey v. T.L.O., 469 U.S. 325, 340 (1985), this Court recognized

that the special nature of the school setting “requires some easing

of the restrictions” regarding certain constitutional parameters.

Because “[j)udicial interposition in the operation of the public

school system of the Nation poses problems requiring care and

restraint,” Epperson, 393 U.S. at 104, this Court should similarly

exercise restraint and decline to grant certiorari in a matter which

is more appropriately addressed by state and local authorities.

In the present case, the local school authorities responded to

Petitioners’ concerns. The school superintendent reviewed

Petitioners’ concerns and formed a committee to develop policy

language, for the Board of Education’s consideration, regarding

counseling roles and the use of supplemental materials. R. 162.

The superintendent’s letter to Petitioners, in part, stated:

I have explored the concerns you have levied

10. Petitioners miscite Tinker, supra, as 383 U.S. 503. Pet. at 7.

18

against Mr. Michael Fink in his dealing with

your son, Jason. I have listened to both you

and Mr. Fink relative to what was said and

understood in your meetings. I must assume

that both you and Mr. Fink are sincere and

that communication toward developing an

understanding did not occur. However, I do

not fee] that Mr. Fink had any intent other

than to assist Jason. Had he felt that he was

not supposed to work with Jason, he would

not have scheduled the meeting with you in

June [1990]. You have indicated that you do

not want Mr. Fink to counsel with Jason and

Mr. Fink acknowledged your request in

writing in June. That was reaffirmed during

our meeting in September [1990].

R. 163. Given the responsiveness of local school authorities, it is

not appropriate for the federal courts to intervene. It is “not the

role of the federal courts to set aside decisions of school

administrators [even those] which the court may view as lacking

a basis in wisdom or compassion.” Wood v. Strickland, 420 U.S.

308, 326 (1975).

C. The Constitution Should Be Interpreted with Common

Sense.

Common sense also dictates that this Court deny certiorari.

After all, “[c]ommon sense requires that the Constitution must be

interpreted in the light of certain facts, which are inherent in the

human condition.” Bahr v. Jenkins, 539 F. Supp. 483, 487 (E.D.

Ky. 1982). Here, the District Court interpreted a student’s right to

privacy in light of “common sense” considerations which are

intrinsic to the operation of public schools. The District Court

provided at least three common sense reasons for not requiring

19

school counselors to receive parental consent before working

with students: (1) a child may be having difficulty with his or her

parents (or may be a victim of abuse);'! (2) schools often deal

with a student who is a discipline or behavioral problem by

sending the student to a counselor; and (3) counselors are often

under a statutory obligation not to reveal the confidence of their

relationships with students.'’* Pet., App. at A-15 to A-16. The

District Court concluded that it is not a violation of constitutional

privacy to “counsel a student because s/he is ‘having trouble

socializing’ with other students (or is a discipline problem).” Jd.

at 16.

Imposing a “privacy rights” analytical framework on

disputes regarding consent in the school setting would create a

“Pandora’s box” of legal issues for school officials and the courts

to consider. Petitioners specifically request that this Court

establish a standard “that school officials exercise zealous care

that nothing is done which could adversely affect the future

relationship of the student with his parents, or his capacity to

partake fully of normal developmental stages and learning

processes.” Pet., at 10. Petitioners have not carefully considered

the practical effect or ramifications of the rule that they would

have this Court adopt. Would this Court establish a “zealous care”

standard? Would this standard differ based on a child’s age? If so,

on what basis would this Court establish the age differential?

Finally, would this standard chill the ability of school officials to

11. The District Court acknowledged that the “record reflects no

allegations of child abuse.” Pet., App. at A-15,n.10.

12. The District Court acknowledged that Michigan has not codified a

student-counselor privilege, although it has codified a “psychologist/

psychiatrist-student” privilege. Mich. Comp. Laws Ann. § 330.1750 (West

1992). However, Michigan statutory law does prohibit a guidance counselor

from disclosing confidential student communications in court, except with

consent. Mich. Comp. Laws Ann. § 600.2165 (West 1989).

20.

speak to the children under their care? This case plainly speaks

volumes about the reasons underlying the federal court’s

reluctance to intervene in day-to-day school operations.

Petitioners also claim a violation of their privacy right

because Mr. Fink “initiated treatment” by reading to Jason from

The Kids’ Book of Questions. Compl., | 26; Pet., at 12. This

innocuous book was mentioned in a Chicago Tribune article

about activities for kids while traveling:

Put on your thinking cap with “The Kids’

Book of Questions” by Gregory Stock. Look

for it at the library or a bookstore. (It’s $4.95.)

It has 260 fun, and sometimes serious,

questions — with no right or wrong answers.

Here are some examples: “Would you eat a

worm sandwich if doing so meant that next

week you could appear on your favorite TV

show?” or “If you could be invisible for a day,

what would you do?” Take turns reading and

answering questions.

Candace Purdom, Road Trip Ahead? Games Bring Boredom toa

Screeching Halt, Chi. Trib., August 3, 1993, § C at5. Acommon

sense interpretation of the Constitution wouid not conclude that a

teacher violates the Constitution by reading excerpts from this

book to a student.

Recognizing the “ever-expanding duties of schoolteachers,”

this Court has noted that “[t]here is an ongoing relationship, one

in which the teacher must occupy many roles — educator,

adviser, friend, and, at times, parent-substitute. It is rarely

adversary in nature... .” Vernonia, 115 S. Ct. at 2396 (quoting

Goss v. Lopez, 419 U.S. 565, 594 (1975) (Powell, J., dissenting)

(footnote omitted)). Teachers, counselors, administrators, and

21

coaches meet with students every day to discuss matters which

range from the mundane to matters of life and death. If school

officials were subject to constitutional liability in every

encounter with a student, these important tasks would be

infinitely more complex and so severely defined or regulated as

to be unachievable. Respondent submits that the Constitution

does not require this result.

CONCLUSION

Because this case presents no issue appropriate for this

Court’s review, and because the lower courts’ holdings were not

in error, Petitioners’ Writ of Certiorari is unjustified and,

therefore, should be denied.

Respectfully submitted,

LISA L. SWEM

Counsel of Record

DONALD J. BONATO

THRUN, MAATSCH & NORDBERG, P.C.

Attorneys for Respondent

501 South Capitol Avenue - Suite 500

Lansing, Michigan 48933

(517) 484-8000

October 11, 1995

la

APPENDIX A — REFERRAL TO CHILD GUIDANCE

CONSULTANT DATED NOVEMBER 3, 1989

REFERRAL TO CHILD GUIDANCE CONSULTANT

Student(s) name(s): Jason Newkirk

Person Making Referral: Jackie Killingsworth

Date: 11/3/89

Initial request:

_y_ individual student need ___. class observation

___. small group need ___. individual observation

___. whole class need ___.__ Student request

___. peer relationship need ___. parent consultation

teacher consultation

other, please specify

Would you please describe and explain your concern(s) below:

Jason is an angry child. He needs to talk, identify his anger

and how to talk about his feelings and concerns.

Jason needs a good friend.

Example: If he has a good day. What made it go well -—

If you have a specific request or expectation of me would you also

explain below:

Be his friend and be there for him. I don’t want (for him) ail

his eggs in one basket.

2a

APPENDIX B—STIPULATION AND ORDER

FILED MARCH 28, 1994

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF MICHIGAN

CASE NO. 1:91-CV-563

RICHARD A. ENSLEN

U.S. DISTRICT JUDGE

JASON NEWKIRK, by Next Friends, DANIEL NEWKIRK and

NANCY NEWKIRK and DANIEL NEWKIRK and NANCY

NEWKIRK,

Plaintiffs,

v.

EAST LANSING PUBLIC SCHOOLS, DR. WILLIAM

MITCHELL, SALLY MCCLINTOCK, JACKIE

KILLINGSWORTH, ANN BLOOMQUIST and MICHAEL

FINK,

Defendants.

David R. Melton (P38986)

Attorney for Plaintiffs

THE RUTHERFORD INSTITUTE

OF MICHIGAN

4565 Wilson Ave., Ste. 110

Grandville, MI 49418

(616) 538-9300

3a

Appendix B

Richard E. Holmes (P42114)

SMITH, HAUGHEY, RICE & ROEGGE

Attorney for Defendants

East Lansing Public Schools,

Dr. William Mitchell, Sally

McClintock, Jackie Killingsworth,

and Ann Bloomquist

200 Calder Plaza Building

Grand Rapids, MI 49503

(616) 774-8000

Donald J. Bonato (P23244)

Lisa L. Swem (P4205 1)

THRUN, MAATSCH AND NORDBERG, P.C

Attorneys for Defendant

Michael Fink

501 S. Capitol, Suite 500

P.O. Box 40699

Lansing, MI 48901

(517) 484-8000

STIPULATION AND ORDER FOR DISMISSAL

NOW COME the Plaintiffs Jason Newkirk, by Next Friends

Daniel Newkirk and Nancy Newkirk and Daniel Newkirk and

Nancy Newkirk, by and through their counsel David R. Melton,

and Defendant Michael Fink by and through his counsel Thrun,

Maatsch and Nordberg, P.C. to hereby stipulate and agree that the

remaining count in the above-captioned cause of action be

dismissed as to Defendant Michael Fink, in both his individual

and official capacities, with prejudice and without costs to either

party.

Dated: 3-21-94

Dated: 3-21-94

Dated: 3-21-94

4a

Appendix B

s/ David R. Melton

David R. Melton (P38936)

THE RUTHERFORD INSTITUTE

OF MICHIGAN

Attorney for Plaintiffs

s/ Richard E. Holmes

Richard E. Holmes (P38936)

SMITH, HAUGHEY, RICE & ROEGGE

Attorney for Defendants

East Lansing Public Schools,

Dr. William Mitchell, Sally

McClintock, Jackie Killingsworth,

and Ann Bloomquist

s/ Lisa L. Swem

Lisa L. Swem (P42051)

Donald J. Bonato (P23244)

THRUN, MAATSCHAND NORDBERG, P.C.

Attorneys for Defendant

Michael Fink

Sa

Appendix B

ORDER

At a session of said Court, held in the City of

Kalamazoo, State of Michigan, on this the 28th day

of March, 1994.

PRESENT: HONORABLE RICHARD A. ENSLEN

IT IS SOORDERED.

s/ Richard A. Enslen

Hon. Richard A. Enslen

6a

APPENDIX C — FINAL JUDGMENT AND ORDER

DATED DECEMBER 13, 1994

STATE OF MICHIGAN

INGHAM COUNTY CIRCUIT COURT

CASE NO. 92-72034-AZ

HON. CAROLYN STELL

CIRCUIT COURT JUDGE

JASON NEWKIRK, by Next Friends, DANIEL NEWKIRK and

NANCY NEWKIRK and DANIEL NEWKIRK and NANCY

NEWKIRK

V.

MICHAEL FINK,

David R. Melton (P38986)

Attorney for Plaintiffs

THE RUTHERFORD INSTITUTE

OF MICHIGAN

4565 Wilson Ave., Ste. 110

Grandville, MI 49418

(616) 538-9300

Plaintiffs,

Defendant.

Donald J. Bonato (P23244)

Lisa L. Swem (P42051)

THRUN, MAATSCH AND

NORDBERG, P. C.

Attomeys for Defendant

Michael Fink

501 S. Capitol, Suite 500

P. O. Box 40699

Lansing, MI 48901

(517) 484-8000

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Appendix C

FINAL JUDGMENT AND ORDER GRANTING

DEFENDANT FINK’S MOTION FOR

SUMMARY DISPOSITION

FINAL JUDGMENT AND ORDER

At a session of said Court held in the Circuit

Court for the County of ingham, State of

Michigan, on the 13th day of December,

1994.

PRESENT: HONORABLE CAROLYN STELL, CIRCUIT

COURT JUDGE

At a hearing held November 30, 1994, on Defendant Fink’s

Motion for Summary Disposition, the parties having briefed the

Motion, the Court having been fully advised on the premises, and

the Court having issued its opinion from the bench,

IT IS NOW THEREFORE ORDERED for ihe reasons

stated by the Court on the record, that Defendant Fink’s Motion

for Summary Disposition pursuant to MCR 2.116(C)(10) is

granted as to Count III (intentional infliction of emotiona!

distress) of Plaintiffs’ Amended Complaint.

In that the Court previously granted Defendant Fink’s

Motion for Summary Disposition pursuant to MCR 2.116(C)(8)

as to Counts I (constitutional privacy), II (tortious invasion of

privacy) and IV (medical malpractice), this Order constitutes

final judgment of this action and Plaintiffs’ Amended Complaint

is dismissed in its entirety with prejudice.

IT IS SO ORDERED.

8a

Appendix C

sone s/ Carolyn Stell

CAROLYN STELL, Circuit Judge

Countersigned:

s/ LOLA WILLIAMS

Deputy Clerk

Prepared by:

Lisa L. Swem (P42051)

THRUN, MAATSCH & NORDBERG, P.C.

Attorney for Defendant Fink

Approved as to Form:

s/ David R. Melton

David R. Melton (P8986)

THE RUTHERFORD INSTITUTE

Attorney for Plaintiffs

9a

APPENDIX D — CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Although Petitioners cite only to the Ninth and Fourteenth

Amendments in their Petition, Count I of Petitioners’ complaint

alleges that Respondent, along with others:

[D]eprived [Petitioners] of their rights under

Article I, Section 9, Clause 3 and the First,

Fourth, Fifth, Ninth and Fourteenth

Amendments of the United States

Constitution, in violation of 42 U.S.C.

§§ 1983 and 1988, rendering [him] liable to

the [Petitioners].

Compl. at 47. Those constitutional and statutory provisions are

set forth below.

Constitutional Provisions

U.S. Const. art I, § 9, cl. 3.

No Bill of Attainder or ex post facto Law shall

be passed.

U.S. Const. amend. I.

Congress shall make no law respecting an

establishment of religion, or prohibiting the

free exercise thereof; or abridging the

freedom of speech, or of the press; or the right

of the people peaceably to assemble, and to

petition the Government for a redress of

grievances.

10a

Appendix D

U.S. Const. amend. IV.

The right of the people to be secure in

their persons, houses, papers, and effects,

against unreasonable searches and seizures,

shall not be violated, and no Warrants shail

issue, but upon probable cause, supported by

Oath or affirmation, and particularly

describing the place to be searched, and the

persons or things to be seized.

U.S. Const. amend. V.

No person shall be held to answer for a

capital, or otherwise infamous crime, unless

on a presentment or indictment of a Grand

Jury, except in cases arising in the land or

naval forces, or in the Militia, when in actual

service in time of War or public danger; nor

shall any person be subject for the same

offence to be twice put in jeopardy of life or

limb; nor shall be compelled in any criminal

case to be a witness against himself, nor be

deprived of life, liberty, or property, without

due process of law; nor shall private property

be taken for public use, without just

compensation.

U.S. Const. amend. IX.

The enumeration in the Constitution, of

certain rights, shall not be construed to deny

or disparage others retained by the people.

lla

Appendix D

U.S. Const. amend. XIV, § 1.

All persons born or naturalized in the

United States, and subject to the jurisdiction

thereof, are citizens of the United States and

of the State wherein they reside. No State

shall make or enforce any law which shall

abridge the privileges or immunities of

citizens of the United States; nor shall any

State deprive any person of life, liberty, or

property, without due process of law; nor

deny to any person within its jurisdiction the

equal protection of the laws.

Statutory Provision

42 U.S.C. § 1983.

Every person, who under color of any

Statute, ordinance, regulation, custom, or

usage, of any State or Territory or the District

of Columbia, subjects, or causes to be

subjected, any citizen of the United States or

other person within the jurisdiction thereof to

the deprivation of any rights, privileges, or

immunities secured by the Constitution an

laws, shall be liable to the party injured in an

action at law, suit in equity, or other proper

proceeding for redress. For the purposes of

this section any Act of Congress applicable

exclusively to the District of Columbia shall

be considered to be a statute of the District of

Columbia.