United States District Court,
N.D. Illinois, Eastern Division
DECKER, District Judge.
|Julie Scoma and Richard Scoma,
The Chicago Board of Education
) 391 F.Supp. 452
) (N.D.Ill. 1974)
) No. 74-C-1377.
) Nov. 13, 1974.
Plaintiffs, parents residing in the City of Chicago, have filed a civil
rights action under 42 U.S.C. sec. 1983, seeking a preliminary and permanent
injunction and declaratory judgment against defendants from interfering
with plaintiffs' decision to educate their two school-age children footnote1at
home, by the enforcement of the state compulsory attendance statute. footnote2
Defendants are the Chicago Board of Education, the Superintendent of Schools
for the Chicago Board of Education, the Administrator of the Division of
School Attendance for the Chicago Board of Education, the Director of Pupil
Attendance for the Chicago Board of Education, the Acting District Superintendent
for School District Three of the Chicago Board of Education, the Principal
of the Ravenswood Elementary School, and the Truant Officer of the Ravenswood
In their five-count complaint, plaintiffs assert that they have withdrawn
their children from the Ravenswood Elementary School in order to educate
them privately at home under a plan which they believe is adequate to ensure
that the children receive the minimum requisite educational skills and
values, and which they believe qualifies their home instruction as a 'private
school' under the Illinois Compulsory Attendance Act, Ill.Rev.Stat. ch.
122, sec. 26-1. That statute exempts from compulsory attendance at a public
'(1) Any child attending a private or a parochial school where
children are taught the branches of education taught to children of corresponding
age and grade in the public schools, and where the instruction of the child
in the branches of education is in the English language;'
As interpreted by the Illinois Supreme Court in People v. Levisen, 404
Ill. 574, 578, 90 N.E.2d 213, 215 (1950), the term 'private school' can
include private home instruction if the child receives 'a type of instruction
and discipline having the required quality and character.' This home instruction,
said the court, must be 'at least commensurate with the standards prescribed
for the public schools.'
In preparation for the withdrawal of their children from the public
school, the plaintiffs began contacting defendants in an attempt to secure
approval for their proposed plan as early as December, 1973. At that time,
they were told by the Administrator of School Attendance and the School
Board's attorney that there were no established procedures for prior approval
of a home instruction plan, and that parents who withdraw their children
from public school will be prosecuted under the Illinois statute. Three
months later, plaintiffs, through their attorney, wrote to the Administrator
of School Attendance seeking a form of 'declaratory judgment' that their
proposed plan 'meets minimal permissable [sic] educational standards',
and that 'criminal prosecution will not be forthcoming'. They also sought
a statement outlining the nature and criteria of the standards to be used
in evaluating their plan, and the current procedures for ensuring compliance
with the statute. The Administrator responded that he had no authority
to render such a 'declaratory judgment', that only the school Principal
and the District Superintendent had the authority to initiate criminal
prosecution, and the plaintiffs would hear from them 'forthwith'.
On April 19, 1974, plaintiffs transferred their children from the public
school to home instruction and informed defendant Principal of their plan.
On May 3, 1974, and again on May 17, 1974, plaintiffs received a telephone
call from defendant Truant Officer who, on the latter occasion, 'threatened
to officially seize and remove (the) children from their home, and demanded
that the children return to Ravenswood School on or before May 20, 1974.
On May 21, 1974, plaintiffs filed this complaint.
Count I alleges that as a result of their actions, defendants deprived
plaintiffs of their rights, privileges and immunities guaranteed by the
First, Fourth, Fifth, Ninth and Fourteenth Amendments of the United States
Constitution, and Article I, sec. 12 of the Illinois Constitution, S.H.A.
In Count II, plaintiffs allege that the Illinois Compulsory Attendance
Act, Ill.Rev.Stat. ch. 122, sec. 26-1 to 26-11, is unconstitutional as
applied to plaintiffs by defendants in that it deprives them of substantive
due process and equal protection of the laws in violation of the Fourteenth
Amendment, and in that it is vague and uncertain as applied to them. In
Count III, plaintiffs claim that the Illinois Compulsory Attendance Act
is unconstitutional on its face in violation of the Fifth and Fourteenth
Amendments, by its use of 'public schools' as the statutory standard for
an adequate private school.
Count IV invokes 42 U.S.C. sec. 1985(3) in alleging that defendants
conspired to deny plaintiffs their constitutional rights. In Count V, plaintiffs
allege that defendants, knowing that the wrongs conspired to be done were
about to be committed, neglected or refused to prevent such wrong, in violation
of 42 U.S.C. sec. 1986.
Plaintiffs have moved this court to convene a three-judge court, pursuant
to 28 U.S.C. sec. 2281 and sec. 2284. Plaintiffs seek a preliminary and
permanent injunction restraining defendants from enforcing the Illinois
Compulsory School Attendance Act; the Illinois Truancy Statute, Ill.Rev.Stat.
ch. 37, sec. 702-3(b); and the Illinois statute prohibiting adults from
contributing to the delinquency of minors, Ill.Rev.Stat. ch. 23, sec.sec.
2360, 2361 and 2361a; in such a way as to prevent plaintiffs from conducting
a private school for their children in their home, and from requiring plaintiffs'
children to attend a state approved and licensed school. The plaintiffs
also seek a declaratory judgment that the Illinois Compulsory Attendance
Act is unconstitutional, both on its face and as applied. Defendants have
moved this court to dismiss the complaint, deny the motion for a three-judge
court, and deny the motion for a preliminary injunction.
I. Motion to Dismiss
A. Lack of Jurisdiction
Defendants assert that this court lacks jurisdiction over the subject
matter of the complaint, and move to dismiss pursuant to F.R.Civ.P. 12(b)(1).
Plaintiffs have invoked federal jurisdiction under the provisions of 28
U.S.C. sec. 1331, 1343(3), 2201, 2202; and 42 U.S.C. sec. 1983, 1985(3)
1. Jurisdiction under 28 U.S.C. sec. 1343(3)
Plaintiffs have alleged violations of 42 U.S.C. sec. 1983, 1985(3)
and 1986, and thereby assert jurisdiction under 28 U.S.C. sec. 1343(3)
which confers jurisdiction upon a federal district court for an action
to redress the deprivation of civil rights 'secured by . . . any Act of
Congress.' Defendants assert that neither the Board of Education nor any
of its employees or agents is a 'person' within the meaning of 42 U.S.C.
sec. 1983, and therefore not subject to the jurisdiction of 28 U.S.C. sec.
The Board of Education of the City of Chicago is a 'municipal corporation'.
Norfolk and Western Ry. Co. v. Board of Education, of the City of Chicago,
114 F.2d 859 (7th Cir. 1940); Ill.Rev.Stat. ch. 122, sec. 34-2. Such municipal
corporations have been held to be outside the ambit of sec. 1983 both in
actions for damages as well as those seeking equitable relief. Monroe v.
Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961); City of Kenosha
v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973). Plaintiffs'
reliance on Aurora Education Association v. Board of Education of Aurora
Public School District No. 131, 490 F.2d 431 (7th Cir. 1973), cert. denied,
416 U.S. 985, 94 S.Ct. 2388, 40 L.Ed.2d 762 (1974); Lee v. Board of Regents,
441 F.2d 1257 (7th Cir. 1971); and Harkless v. Sweeney Independent School
District, 427 F.2d 319 (5th Cir. 1970) cert. denied, 400 U.S. 991, 91 S.Ct.
451, 27 L.Ed.2d 439 (1971); is misplaced. In Lee, the court had relied
on two earlier Seventh Circuit cases footnote3
in holding that a municipal corporation, board of education, although not
liable for damages, is liable for declaratory and injunctive relief under
sec. 1983. In Harkless, the Fifth Circuit limited the Supreme Court's holding
in Monroe v. Pape, supra, to exempting municipal corporations from liability
only for money damages under sec. 1983, and held a school district subject
to equitable relief. The precise line of reasoning running through both
Lee and Harkless was specifically rejected by the Supreme Court in City
of Kenosha, supra, 412 U.S. at 512-13, 93 S.Ct. 2222. As for Aurora, supra,
490 F.2d at 434, the court made a specific finding that the Board of Education
of Aurora Public School District No. 131 of Kane County was not a municipal
corporation; such is not the case for the Board of Education of the City
of Chicago. See also, Bravo v. Board of Education of the City of Chicago,
No. 72 C 970 (N.D.Ill., July 31, 1974). Accordingly, this court finds that
the Board of Education is not a 'person' within the meaning of sec. 1983,
and is therefore not subject to federal jurisdiction under 28 U.S.C. sec.
Defendant employees of the Board of Education, footnote4
however, can claim no such exemption. In every case cited by defendants
to support the proposition that the doctrine of respondeat superior is
not allowable under sec. 1983, footnote5 the
plaintiffs had sought to recover money damages; in no case did a court
hold that such individuals were not subject to equitable relief. As plaintiffs
indicate, there have been many cases since City of Kenosha in which defendant
municipal officers or employees were held subject to injunctive or declaratory
relief. footnote6 Defendants additionally argue
that defendant employees retain a qualified immunity under sec. 1983 for
acts done in good faith, under Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213,
18 L.Ed.2d 288 (1967). In that case, however, the Supreme Court conferred
an immunity only from liability for damages; there was no indication whatsoever
that such employees would be immune from equitable relief. Accordingly,
this court finds that the defendant employees of the Board of Education
are 'persons' within the meaning of sec. 1983, and are therefore subject
to federal jurisdiction under 28 U.S.C. sec. 1343. It is therefore unnecessary
to consider defendants' jurisdictional claims with regard to sec. 1985(3)
and 1986, except to find that defendant Board of Education is not a 'person'
within the meaning of either of those sections. See Potts v. Wright, 357
F.Supp. 215 (E.D.Pa.1973).
2. Jurisdiction under 28 U.S.C. sec. 1331 footnote7
A federal district court has jurisdiction of 'federal questions'
under sec. 1331, only where the $10,000 jurisdictional amount requirement
is met. Since plaintiffs seek an injunction and declaratory judgment only,
and have omitted a prayer for monetary damages, the question remains whether
plaintiffs' alleged deprivation of constitutional rights is, as plaintiffs
allege, capable of valuation in excess of $10,000. In injunction actions,
the amount in controversy is not the amount which plaintiff might recover
at law, but the value of the right to be protected or the extent of the
injury to be prevented. 1 Barron & Holtzoff, Federal Practice and Procedure,
sec. 24, at 111 (Wright's ed. 1960). See Hedberg v. State Farm Mutual,
350 F.2d 924, 928 (8th Cir. 1965); and Weiss v. Sunasco Inc., 316 F.Supp.
1197, 1204 (E.D.Pa.1970). This court must therefore estimate the present
probability that the value of the rights asserted here will exceed the
jurisdictional amount. Although it is dificult to determine the pecuniary
value of those rights,egal footnote8 the
interests claimed by plaintiffs are capable of being translated into terms
of money. This court cannot say as a lcertainty, without first reaching
the merits of the case, that plaintiffs would be unable to justify the
jurisdictional claims which they have pleaded. Spock v. David, 469 F.2d
1047 (3d Cir. 1972). Accordingly, defendants' motion to dismiss the complaint
for lack of jurisdiction under 28 U.S.C. sec. 1331 is hereby denied.
B. Failure to State a Claim
Defendants have moved this court to dismiss the complaint for failure to
state a claim upon which relief can be granted. F.R.Civ.P. 12(b)(6). In
this Circuit, the test of such a dismissal is whether the allegations in
plaintiffs' pleadings, construed in the light most favorable to plaintiffs,
can reasonably be said to warrant relief on any theory of law. United Milk
Products Co. v. Lawndale National Bank of Chicago, 392 F.2d 876 (7th Cir.
1968). For the reasons which follow, this court has concluded that the
allegations of plaintiffs' complaint are not sufficient to warrant the
injunctive or declaratory relief sought.
Preliminarily it must be noted that there is currently no state prosecution
pending against plaintiffs. Plaintiffs have alleged, however, that they
have been threatened with prosecution under the challenged statutes by
defendant Truant Officer Palmer. Assuming this allegation to be true for
the purposes of this motion, footnote9 plaintiffs
have satisfied the requirement of ripeness of their claim. Boyle v. Landry,
401 U.S. 77, 91 S.Ct. 758, 27 L.Ed.2d 696 (1971). Nonetheless, to warrant
injunctive relief, plaintiffs must show that they are in jeopardy of suffering
irreparable injury if the State is left free to prosecute them under the
statutes in question. footnote10 It has further
been suggested that in such a case, plaintiffs must also show bad faith
and harassment on the part of State officials. footnote11
Such a showing, while perhaps appropriate, has not yet been held to be
a prerequisite to the granting of injunctive relief. Allee v. Medrano,
416 U.S. 802, 820 n. 15, 94 S.Ct. 2191, 2203 n. 15, 40 L.Ed.2d 566 (1974).
Plaintiffs have failed to meet the traditional requirement for injunctive
relief of a showing of irreparable injury. Such injury is generally measured
by the 'chilling effect' suffered by a plaintiff who is intimidated by
an allegedly unconstitutional statute and who chooses not to violate it
as a means of testing its validity. But plaintiffs here have admittedly
withdrawn their children from the public school system. The validity of
the statute, both on its face and as applied to plaintiffs, has yet to
be tested in the courts, but plaintiffs certainly were not chilled to the
degree that they became frozen into inaction. They allege that, in the
eyes of defendants, they have violated the statute in question, and that
the local authorities intend to prosecute them for their past acts. Thus
plaintiffs have a clear and readily available opportunity to test the constitutionality
of the statute without violating it any further. footnote12)
It has been suggested that a single judge may not dismiss an action
otherwise within the three-judge requirement solely because he finds no
threat of irreparable injury. footnote13 He must
additionally find that the constitutional claim raised by plaintiff is
insubstantial. Ex parte Poresky, 290 U.S. 30, 54 S.Ct. 3, 78 L.Ed. 152
(1933). Moreover, plaintiffs seek a declaratory judgment that: (a) the
Illinois Compulsory Attendance Act, Ill.Rev.Stat. ch. 122, sec. 26-1 to
26-11, is unconstitutional on its face; (b) the Act is unconstitutional
as applied to plaintiffs; and (c) defendants' manner of enforcement creates
an unconstitutional burden of proof and a presumption of guilt upon plaintiffs.
Declaratory relief requires no showing of irreparable injury. Steffel v.
Thompson, 415 U.S. 452, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974); Perez v.
Ledesma, 401 U.S. 82, 111-130, 91 S.Ct. 674, 27 L.Ed.2d 701 (1971), (Brennan,
J., concurring). Therefore, this court must consider the merits of plaintiffs'
constitutional claims to determine whether such claims are substantial,
and whether declaratory relief is appropriate.
In People v. Levisen, 404 Ill. 574, 90 N.E.2d 213 (1950), the Illinois
Supreme Court construed the Illinois Compulsory Attendance Act to include
as a 'private school' the type of home education that plaintiffs here allege
they provide for their children. The court never reached the contention
that the statute violates the constitutional right of parents to direct
the education of their children. footnote14 Plaintiffs
in this case, however, go beyond Levisen and make that very challenge.
They assert in Count I of their complaint new and wide-ranging 'fundamental'
constitutional rights which include:
'(the) right and duty to educate their children adequately but as they
see fit; to rear their children in accordance with their determination
of what best serves the family's interest and welfare; to be protected
in their family privacy and personal decision-making from governmental
intrusion; to distribute and receive information; and to teach and to ensure
their children's freedom of thought and inquiry.'
Plaintiffs seek authority for this proposition from dicta in Griswold v.
Connecticut, 381 U.S. 479, 482, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965), where
in another context the court reaffirmed the prior case of Pierce v. Society
of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925). In Pierce,
the court held only that the property rights of a private school had been
unconstitutionally abridged by a state compulsory school attendance statute
which did not exempt students who attended private schools. The 'right'
is thus a limited one; it merely provides parents with an opportunity to
seek a reasonable alternative to public education for their children. footnote15
As Mr. Justice White observed in his concurring opinion in Wisconsin v.
Yoder, 406 U.S. 205, 239, 92 S.Ct. 1526, 1545, 32 L.Ed.2d 15 (1972):
'(Pierce) lends no support to the contention that parents may
replace state educational requirements with their own idiosyncratic views
of what knowledge a child needs to be a productive and happy member of
society; in Pierce, both the parochial and military schools were in compliance
with all the educational standards that the State had set, and the Court
held simply that while a State may posit such standards, it may not pre-empt
the educational process by requiring children to attend public schools.'
In Yoder, the Court was concerned with the right of parents to 'direct
the religious upbringing of their children.' (At 233, 92 S.Ct. at 1542,
emphasis added.) The recognized fundamental right was thus the 'free exercise
of religion' guaranteed by the First Amendment. Plaintiffs there were Amish
parents who challenged the constitutionality of a state statute which required
their children to attend school beyond the eighth grade, until reaching
the age of 16. The court found that preservation of the traditional way
of life of the Amish was central to their deepest religious convictions.
In Yoder the Court also found that compulsory secondary education in a
modern school was in sharp conflict with the inculcation of that religious
belief. In carefully considering the Amish beliefs, the court noted:
'The very concept of ordered liberty precludes allowing every
person to make his own standards on matters of conduct in which society
as a whole has important interests. Thus, if the Amish asserted their claims
because of their subjective evaluation and rejection of the contemporary
secular values accepted by the majority, much as Thoreau rejected the social
values of his time and isolated himself at Walden Pond, their claims would
not rest on a religious basis. Thoreau's choice was philosophical and personal
rather than religious, and such belief does not rise to the demands of
the Religion Clauses.' (At 215-16, 92 S.Ct. at 1533.) $15$ The Court further
observed: 'Pierce, of course, recognized that where nothing more than the
general interest of the parent in the nurture and education of his children
is involved, it is beyond dispute that the State acts 'reasonably' and
constitutionally in requiring education to age 16 in some public or private
school meeting the standards prescribed by the State.' (At 233, 92 S.Ct.
There is no such claim of religious belief here. The plaintiffs'
asserted right to educate their children 'as they see fit' and 'in accordance
with their determination of what best serves the family's interest and
welfare' does not rise above a personal or philosophical choice and cannot
claim to be within the bounds of Constitutional protection.
Aside from claims based on the exercise of religion clause, compulsory
attendance statutes have generally been regarded as valid. 79 C.J.S. Schools
and School Districts sec. 463b. The courts have held that the state may
constitutionally require that all children attend some school, under the
authority of its police power. footnote16 Plaintiffs
have established no fundamental right which has been abridged by the compulsory
attendance statute. footnote17 Thus the state
need not demonstrate a 'compelling interest'; it must act only 'reasonably'
in requiring children to attend school. Under the test of Pierce and Yoder,
and Illinois statute as interpreted in Levisen is reasonable and constitutional.
In Count II, plaintiffs claim that the statute deprives them of equal
protection of the laws in violation of the Fourteenth Amendment as applied
to them, in that defendants distinguish between parents who educate their
children in either a public or institutional private school, and those
who, like plaintiffs, educate their children privately at home. It is true
that defendants administratively presume that parents who educate their
children at home are in violation of the statute. Plaintiffs do not assert,
however, that this distinction operates to the peculiar disadvantage of
any suspect class. Moreover, it should be clear, for the reasons stated
above and in accord with the recent Supreme Court decision in San Antonio
Independent School District v. Rodriguez, 411 U.S. 1, 29-39, 93 S.Ct. 1278,
36 L.Ed.2d 16 (1973), that the defendants' actions do not interfere with
the exercise of any 'fundamental' right. In Rodriguez, the court held that
education is not a constitutionally protected fundamental right, the impingement
of which would necessitate subjecting the State's action to strict judicial
scrutiny. This court need therefore apply only the traditional standard
of review, which 'requires only that the State's system be shown to bear
some rational relationship to legitimate state purposes.' 411 U.S. at 40,
93 S.Ct. at 1300. It is clear that the State is empowered to reasonably
'regulate all schools, to inspect, supervise and examine them, their teachers
and pupils.' Pierce v. Society of Sisters, 268 U.S. 510, 534, 45 S.Ct.
571, 573, 69 L.Ed. 1070 (1925). The distinction in treatment by the State
between parents who send their children to institutional schools and those
who educate them at home directly relates to the difficulty that the State
would surely face in supervising, at considerable expense, a host of facilities
and individuals, widely scattered, who might undertake to instruct their
children at home; as compared with the less difficult and expensive supervision
of teachers and facilities in organized public and private schools. moreover,
the legislature might have concluded that institutional private schools
are under the direct supervision of their school authorities at all times,
and their students would thus presumptively qualify for the statutory exemption.
People v. Turner, 121 Cal.App.2d Supp. 861, 263 P.2d 685 (1953), appeal
dismissed, 347 U.S. 972, 74 S.Ct. 785, 98 L.Ed. 1112 (1954); State v. Hoyt,84
N.H. 38, 146 A. 170 (1929).
Plaintiffs further assert that defendants' manner of enforcing the
statute creates a burden of proof and presumption of guilt upon plaintiffs
in violation of their right to due process of law under the Fourteenth
Amendment. We might first note that the presumption of innocence in a criminal
trial is not predicated upon any express provision of the Constitution,
but upon ancient concepts antedating the development of the common law.
See Coffin v. United States, 156 U.S. 432, 453-60, 15 S.Ct. 394, 39 L.Ed.
481 (1895). Further, the presumption of innocence is but the reverse side
of the talisman which imposes upon a prosecutor the burden of proof. See
Thayer, A Preliminary Treatise on Evidence at Common Law, Appendix B, The
Presumption of Innocence in Criminal Cases, 551-76 (1898). The clear rule
of law, however, is that the burden of proof shifts upon the criminal defendant
'when a criminal statute sets forth an exception, which exception is not
a part of the crime, but operates to prevent an act otherwise included
in the statute from being a crime.' United States v. Holmes, 187 F.2d 222,
225 (7th Cir.), cert. denied, 341 U.S. 948, 71 S.Ct. 1015, 95 L.Ed. 1372
In this case, Ill.Rev.Stat. ch. 122, sec. 26-1(1) creates an exception
to the requirement of compulsory attendance at a public school, which prevents
attendance at a private school from being a crime. Thus, as the Illinois
Supreme Court dictated in Levisen, the burden of proof that a plan of home
instruction qualifies as a private school must rest with the parents who
have withdrawn their children from the public schools.
Finally, in Count III plaintiffs claim that the statute is unconstitutionally
vague on its face in its use of the phrase 'public schools' as a criterion
for adequacy of authorized private education. It is true that a basic principle
of due process is a requirement that statutory prohibitions must he clearly
defined and that no person can 'be held criminally responsible for conduct
which he could not reasonably understand to be proscribed.' United States
v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 812, 98 L.Ed. 989 (1954).
However, 'we can never expect mathematical certainty from our language.'
Grayned v. City of Rockford, 408 U.S. 104, 110, 92 S.Ct. 2294, 2300, 33
L.Ed.2d 222 (1972). The vagueness doctrine is rooted in the notion that
a potential violator of a statute must be given fair warning. footnote18
As the Supreme Court observed, however, in Colten v. Kentucky, 407 U.S.
104, 110, 92 S.Ct. 1953, 1957, 32 L.Ed.2d 584 (1972):
'It is not a principle designed to convert into a constitutional dilemma
the practical difficulties in drawing criminal statutes both general enough
to take into account a variety of human conduct and sufficiently specific
to provide fair warning that certain kinds of conduct are prohibited.'
The plain meaning of the phrase 'public schools', as the requisite standard
of education, should cause no difficulty for citizens who desire to obey
the statute. The statute exempts from compulsory attendance any child attending
a private school where he is taught 'the branches of education taught to
children of corresponding age and grade in the public schools.' The statutory
duty imposed by this section was explained by the court in Levisen, supra,
404 Ill. at 578, 90 N.E.2d at 216:
'No parent can be said to have a right to deprive his child of educational
advantages at least commensurate with the standards prescribed for the
public schools, and any failure to provide such benefits is a matter of
great concern to the courts.'
Such a standard, as explained by the highest state court, cannot
be constitutionally void on its face on grounds of vagueness.
II. Motion for a Three-Judge Court
Plaintiffs, having failed to raise any substantial constitutional question,
are not entitled to a three-judge court. Idlewild Bon Voyage Liquor Corp.
v. Epstein, 370 U.S. 713, 82 S.Ct. 1294, 8 L.Ed.2d 794 (1962).
Plaintiffs have failed to set forth any facts upon which either injunctive
or declaratory judgment relief can be granted. Accordingly, defendants'
motion to dismiss the complaint for failure to state a claim upon which
relief can be granted is hereby granted and the cause dismissed.
(click on browser's back button or "Alt+left arrow" to return to text
if you clicked a footnote.)
(References to Ill. Rev. Stat. ch. 122. sec. 26-xxx were renumbered
to 105 ILCS 5/26-xxx.)
1. Lizabeth and Nicole Scoma, ages 7 and 5, respectively (at the time
this lawsuit was filed).
2. Ill.Rev.Stat. ch. 122, sec. 26-1 through 26-11. As the Court of
Appeals for this circuit has noted, this statute is directed not at children,
but at parents and guardians. Betts v. Board of Education of City of Chicago,
466 F.2d 629, 635 (7th Cir. 1972).
3. Schnell v. City of Chicago, 407 F.2d 1084 (1969); and Adams v. City
of Park Ridge, 293 F.2d 535 (1961).
4. James F. Redmond, Jack Oberhart, Louise Daugherty, John Bonnell,
Bessie Laurence and Truant Officer Palmer.
5. Boyden v. Troken, 358 F.Supp. 906 (N.D.Ill.1973); Bennett v. Gravelle,
323 F.Supp. 203 (D.Md.), aff'd, 451 F.2d 1011 (4th Cir. 1971), cert. dismissed,
407 U.S. 917, 92 S.Ct. 2451, 32 L.Ed.2d 692 (1972); and Sanberg v. Daley,
306 F.Supp. 277 (N.D.Ill.1969).
6. See, e.g., Amen v. City of Dearborn, 363 F.Supp. 1267 (E.D.Mich.1973);
Smith v. City of East Cleveland, 363 F.Supp. 1131 (N.D.Ohio 1973); Dupree
v. City of Chattanooga, Tennessee, 362 F.Supp. 1136 (E.D.Tenn.1973); and
Nyberg v. City of Virginia, 361 F.Supp. 932 (D.Minn.1973).
7. Since I have found jurisdiction over the defendant employees of
the Board of Education under 28 U.S.C. sec. 1343, the jurisdictional question
under sec. 1331 is moot as to them, and remains an issue only for defendant
Board of Education of the City of Chicago.
8. Plaintiffs assert rights guaranteed by the First, Fourth, Fifth,
Ninth and Fourteenth Amendments of the United States Constitution.
9. Ricci v. Chicago Mercantile Exchange, 447 F.2d 713, 715 (7th Cir.
1971), aff'd, 409 U.S. 289, 93 S.Ct. 573, 34 L.Ed.2d 525 (1973); 2A Moore's
Federal Practice P12.08, at 2266-67 (1974).
10. Boyle v. Landry, supra, 401 U.S. at 80-81, 91 S.Ct. 758; Dombrowski
v. Pfister, 380 U.S. 479, 88 S.Ct. 1116, 14 L.Ed.2d 22 (1965).
11. Note, 48 N.Y.U.L.Rev. 965 (1973). This would expand the holdings
of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971),
and Samuels v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688 (1971),
to include situations of threatened state criminal prosecutions.
12. In Fenner v. Boykin, 271 U.S. 240, 46 S.Ct. 492, 70 L.Ed. 927 (1926),
the Court refused to issue injunctive relief, finding no irreparable injury
where the statute had already been violated.
13. D. Currie, The Three-Judge District Court in Constitutional Litigation,
32 U.Chi.L.Rev. 1, 25-26 (1964). See also Stratton v. St. Louis S.W. Ry.,
282 U.S. 10, 13, 18, 51 S.Ct. 8, 75 L.Ed. 135 (1930). Cf. Hunt v. Rodriguez,
462 F.2d 659, 662 (5th Cir. 1972).
14. See generally Comment, 18 U.Chi.L.Rev. 105 (1950).
15. See also Norwood v. Harrison, 413 U.S. 455, 461, 93 S.Ct. 2804,
37 L.Ed.2d 723 (1973).
16. See Pierce v. Society of Sisters, 268 U.S. 510, 534, 45 S.Ct. 571,
69 L.Ed. 1070 (1925); Meyer v. Nebraska, 262 U.S. 390, 402, 43 S.Ct. 625,
67 L.Ed. 1042 (1923); People v. Turner, 121 Cal.App.2d Supp. 861, 263 P.2d
685 (1953), appeal dismissed, 347 U.S. 972, 74 S.Ct. 785, 98 L.Ed. 1112
(1954); State v. Hoyt, 84 N.H. 38, 146 A. 170 (1929); Stephens v. Bongart,
15 N.J.Misc. 80, 189 A. 131 (1937); Commonwealth v. Bey, 166 Pa.Super.
136, 70 A.2d 693 (1950); State v. Williams, 56 S.D. 370, 228 N.W. 470 (1929).
17. Cf. Mattis v. Schnarr, 502 F.2d 588, 595, (8th Cir. Aug. 23, 1974).
18. See, e.g., Papachristou v. City of Jacksonville, 405 U.S. 156,
92 S.Ct. 839, 31 L.Ed.2d 110 (1972).
(click on browser's back button or "Alt+left arrow" to return to
text if you clicked a footnote.)
top of page