Plaintiffs brought a substantive due process/1983 claim against a city for failing to lower the speed limit in a residential neighborhood from 25 to 15 mph. Schroder v. City of Fort Thomas, No. 04-5216 (6th Cir. June 29, 2005). They lost. As they should have, since the claim was frivolous. Still, Schroder's worth reading for its discussion of the two DeShaney exceptions to the "no duty" rule. Slip op. at 3-5.
One of the joys of reading and working on section 1983 cases is the high creativity factor. The smartest lawyers I've ever met either had a broad anti-trust or 1983 practice. (A lot of bozos take 1983 cases, screw them up, and make bad law, but that's a topic for another day). Anyhow, here's the latest example of a creative effort to hold a city liable. It was a sure loser from the outset (in my opinion), but it was a damned good try. Affirming dismissal, Judge Heaney wrote for a unanimous three-judge panel:
Delroy C. and Rhonda L. Scheeler (the Scheelers) brought a claim pursuant to 42 U.S.C. § 1983 against the City of St. Cloud, Stearns County, and various city and county officials (the defendants) after the death of their son, Craig Scheeler. Craig Scheeler died after suffering a gunshot wound to his head. The police investigation concluded that the wound was accidentally self-inflicted when Craig Scheeler was playing Russian Roulette. The Scheelers maintain that someone else shot Craig, and that the defendants’ failure to properly investigate the circumstances of Craig’s death impeded their ability to bring a wrongful death claim against the assailant, denying them their constitutional right to access the courts.
Scheeler v. City of St. Cloud, No. 04-2800 (8th Cir. Mar. 31, 2005). Pages 5-10 have an excellent discussion of what standards will govern 1983 actions brought under a denial of access to the courts theory.
What liberty interest, if any, do non-custodial parents have in the care, upbringing, and education of their children? Today a 2-1 panel handed down an interesting decision interpreting - and perhaps narrowing - the due process rights of non-custodial parents. Crowley v. McKinney, No. 02-3741 (7th Cir. Mar. 11, 2005).
In Crowley, a non-custodial parent sued school officials for, among other things, not providing him access to his childrens' educational records. He sued under the parents' rights line of cases (Meyer, Pierce, Yoder), arguing that the schools' denying him access to his childrens' school records and refusing to allow parent-teacher conferences violated his substantive due process right to raise his children. In dismissing the father's claim, the panel distinguished the parents' rights line of cases:
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 retained by a divorced parent whose ex-spouse has sole custody 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. Nebraska’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 public 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.
Id. at *5. Moreover, the panel suggested that the rights, if any, of non-custodial parents are more analagous to to those of grandparents:
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 conferred 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 interest must attain to achieve constitutional status. At stake in Troxel was Mrs. Granville’s control of her children, contested 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 infringement 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.
Id. at *10. Although the case was rather intersting, it had the strangest holding (?) I've seen:
So we greatly doubt that a noncustodial divorced parent has a federal constitutional right to participate in his children’s education at the level of detail claimed by the plaintiff.
Id. What's to doubt? It's the fricking panel, and thus what it says what the law is. So, does Crowley have the rights claimed, or not? Under Saucier v. Katz, it's not appropriate for the panel to determine whether the right was clearly established at the time of its violation without first telling us if a right was violated. Writing, "we greatly doubt" is not only confusing, it's doctrinally unsound.
Judge Wood dissented:
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.
Id. at *14.
Crowley would make an excellent student note. It raises a lot of issues, including standing after Newdow. Let's say mom had said that ex-husband/dad must butt out. What effect, if any, would that have on dad's ability to sue for violations of his liberty interest in raising his children? Remember, here, dad was not suing because he disagreed with the school's curriculum rather, he was suing because the school was not providing him information he needed to care for and raise his child. Also, do the parental rights trio (Meyer, Pierce, Yoder) protect a non-custodial parent's liberty interest? Is a non-custodial parent similar to a grandparent, and thus, under Troxel, can be told - absent a divorce agreement to the contrary - to leave the children's upbrining to the custodial parent?
Flaskamp v. Dearborn Pub. Schools, No. 02-2435, (6th Cir., Oct. 5, 2004).
Laura Flaskamp taught physical education in the Dearborn Public Schools. In April 2001, the board of education for the school system denied her tenure after learning that Flaskamp had a sexual or otherwise-intimate relationship with a former student within nine months of the student’s high school graduation. In acting upon the school principal’s recommendation that her tenure application be denied, the board relied in part on the view that the relationship had begun before graduation and in part on the view that Flaskamp had failed to be candid in addressing the school system’s concerns about the relationship.
Flaskamp sued the school system and the individual board members, claiming that they had violated her right to intimate association, her right to privacy and her right to be free of arbitrary state action—all in violation of the Due Process Clause of the Fourteenth Amendment. The district court granted summary judgment to the defendants on each claim. Because the board in our view did not violate the Due Process Clause in any of these respects in denying Flaskamp’s tenure application, we affirm the district court’s judgment in favor of the board, its members and the school system.