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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF IOWA CENTRAL DIVISION LISA SCHMIDT, 4:08-CV-477 Plaintiff, v. DES MOINES PUBLIC SCHOOLS, HELEN OLIVER (in his/her official and individual capacity), JAMES MOLLISON (in his/her official and individual capacity), ALEXANDER HENNA (in his/her official and individual capacity), DIANE KEUM (in his/her official and individual capacity), JANE DARE (in his/her official and individual capacity), Defendants. The Court has before it defendant’s motion for summary judgment and plaintiff’s motion for partial summary judgment, filed July 23, 2010. The parties filed resistances to both motions on August 18, 2010. The motions are fully submitted.1 ORDER

I.

BACKGROUND The following relevant facts either are not in dispute or are viewed in a light most

favorable to plaintiff. A. Facts Regarding Plaintiff’s Visitation Rights

Plaintiff, Lisa Schmidt, and her ex-husband, Michael Schmidt, separated in 2005. Michael filed for divorce in September 2005. At the time of their divorce, plaintiff and Michael

Although oral argument has been requested, the Court finds the extensive briefings and evidentiary material submitted render oral argument unnecessary.

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had three minor children who attended schools within the Des Moines Public School District. Plaintiff’s eldest child, Gabrielle, attended Roosevelt High School.2 Plaintiff’s second minor child, M, attended Merrill Middle School, and plaintiff’s youngest child, A, attended Hanawalt Elementary School. On August 17, 2006, the Iowa District Court for Polk County issued an order enforcing a Decree of Dissolution of Marriage, while reserving three issues for trial. The order awarded joint legal custody of the three minor children to plaintiff and Michael Schmidt, and primary physical custody and care to Michael Schmidt subject to plaintiff’s visitation rights. A general schedule of visitation was provided for in the order specifying times when plaintiff could exercise her visitation rights during select holidays and school breaks. The order provided for additional visitation only “as mutually agreed to by and between the parties so as not to interfere with the health, education, and welfare of the parties’ minor children.” Pl’s App. at 44. A subsequent order was issued by the Polk County District Court on November 20, 2006 granting plaintiff special visitation rights for the following dates and times: November 20, 2006 from 5 p.m. to 8 p.m.; November 21, 2006 from 5 p.m. to 8 p.m.; and November 22, 2006 from 5 p.m. to 9 p.m. Neither this order nor the August 17, 2006 order granted plaintiff visitation rights during school hours. On February 16, 2007, a final Decree of Dissolution of Marriage was entered by the Iowa District Court for Polk County. The Decree did not alter the previously settled custody arrangement concerning plaintiff’s children.

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Gabrielle has since graduated from high school and has reached the age of majority. 2

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B.

Facts Regarding Plaintiff’s Interactions With Des Moines Public School Employees

Defendant, Des Moines Public Schools (“DMPS”), had been advised of the custody arrangement regarding plaintiff’s children as set forth in the divorce decree prior to the events at issue in this case. On numerous occasions, Michael Schmidt communicated to DMPS that he did not want plaintiff visiting the children during school hours. Plaintiff alleges that defendants respected Michael Schmidt’s wishes and did, in fact, “block” her access to her children following her separation from Michael Schmidt on numerous occasions, preventing her from “parenting them through the school.” Def. App. at 115. Specifically, on one occasion, plaintiff attempted to pick Gabrielle up from Roosevelt High School prior to the end of the day. Plaintiff was informed at this time by defendant James Mollison (“Mollison”), then-vice principal of the school, that Gabrielle did not wish to leave with her. The school would not allow plaintiff to take Gabrielle out of school as a result. On another occasion, plaintiff emailed Gabrielle’s swim coach with questions concerning Gabrielle’s participation on the swim team. The swim coach initially did not respond to the emails. Later, however, plaintiff was informed that she should direct her questions to Michael Schmidt or her daughter. On a separate occasion, plaintiff accessed Roosevelt High School’s online record system and noticed certain dates where Gabrielle had been absent from school. Plaintiff sought information regarding the reason for these absences through an email to the school’s attendance clerk. The attendance clerk would not provide plaintiff information regarding the reason for Gabrielle’s absences. Plaintiff estimates that the foregoing incidents in relation to Gabrielle occurred in April 2007. 3

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Additionally, plaintiff alleges that she attempted to visit M at Merrill Middle School during the school day on November 22, 2006. During this visit, plaintiff spoke with defendant Alexander Hanna (“Hanna”), Merrill’s principal, defendant Diane Kehm (“Kehm”), Merrill’s vice-principal, and Connie Sloan, another school administrator. Plaintiff indicated that she wished to speak with her daughter. Connie Sloan left the office to locate M, and plaintiff was informed upon Sloan’s return that M did not wish to speak with her. Plaintiff left the school after approximately thirty minutes of discussion without visiting M. Plaintiff also attempted to visit A at Hanawalt Elementary School on November 22, 2006. During this visit, plaintiff was informed by defendant Helen Oliver (“Oliver”), then-principal of Hanawalt, that A was not in school that day. Plaintiff claims that she later learned that her son was at school during her visit, and that Oliver “took it upon herself to get Denise, the girlfriend of [Michael Schmidt], [her] two daughters, and [A] out the back door without [plaintiff] seeing them.” Def. App. at 123. Plaintiff was also not allowed to talk on the phone to her son during the school day on his birthday without Michael Schmidt’s permission, and Hanawalt did not send plaintiff all of the school projects, such as A’s artwork, that she requested.3 Plaintiff later spoke with Oliver about the possibility of visiting A on April 18, 2008 during A’s lunch time at school. In a written letter addressed to plaintiff’s and Michael Schmidt’s counsel on April 1, 2008, defendant Elizabeth Nigut (“Nigut”), General Counsel for DMPS, explained the school’s position that, pursuant to the divorce decree, plaintiff would not

Oliver had previously sent an email to her staff at Hanawalt Elementary on October 22, 2006 informing them that no visitor could see or speak to A except Michael Schmidt or his girlfriend, Denise Brooks. The email further stated that plaintiff did not have visitation rights during school hours and that the office should be contacted if plaintiff asked to see A. 4

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be allowed the lunch visitation unless mutually agreed to by Michael Schmidt. C. Fact Regarding the DMPS’s Policy and Its General Counsel’s Interpretation of the Divorce Decree

At the time of the events at issue in this case, DMPS had adopted a policy to help school officials handle issues that may arise between divorced or separated parents and their interaction with their children and their school. This policy, titled “Rights of Custodial and Non-Cutodial Parents,” provides: “The District will obey all court orders relating to custody issues and parental rights. Therefore, the rights afforded parents under the policy may be limited in any individual situation.” Def. App. at 12. With regard to releasing students from school to a noncustodial parent, the policy provides: “it shall be the custodial parent’s responsibility to provide the school district with documentation regarding any restrictions applicable to the non-custodial parent.” Id. The policy defines a non-custodial parent as “a natural parent . . . who does not presently have primary responsibility for the day-to-day care and control of the student.” Id. On May 18, 2007, Nigut emailed Oliver at Hanawalt Elementary, Mollison at Roosevelt High School, and Hanna at Merrill Middle School to instruct the schools as to how plaintiff’s visits during school hours should be handled. The emails advised that: (1) pursuant to the divorce decree, if plaintiff wished to exercise visitation rights beyond the vacation and holiday schedule set forth in the decree, such visitation must be mutually agreed to by Michael Schmidt; and (2) if plaintiff showed up at school unannounced, Michael would need to be contacted and agree to the visitation before plaintiff could see the children. The email also explained: “Lisa is prone to becoming upset and demonstrative in a negative way if she cannot see the kids. It is certainly legal to advise Lisa that if she does not agree to leave the school and if she continues to conduct herself in an inappropriate manner, the police will be contacted.” Pl. App. at 68, 71. 5

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Plaintiff had been informed of the schools’ policy to require Michael Schmidt’s consent to any visitation sought by plaintiff during school hours. Plaintiff and Michael Schmidt had further been encouraged to “determine what are mutually agreeable visitation periods” and to “advise the school to the extent the visitation is to occur during the school day.” Pl’s. App. at 128. The schools’ approach with regard to plaintiff’s ability to visit her children during school hours results from Nigut’s interpretation of the DMPS policy and divorce decree at issue in this case. D. Present Complaint

Plaintiff filed the present complaint in this Court on November 20, 2008. The various counts allege violations of procedural due process, substantive due process, and equal protection under both the United States Constitution, pursuant to 42 U.S.C. § 1983, and the Iowa Constitution, based upon defendants’ alleged refusal to allow plaintiff access to her children during school hours. The parties have filed competing motions for summary on plaintiff’s claims.

II.

APPLICABLE LAW AND DISCUSSION A. Summary Judgment Standard

“Summary judgment is appropriate when no genuine issue of material fact remains and the movant is entitled to judgment as a matter of law. . . . [I]f the record as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.” Walnut Grove Partners, L.P. v. Am. Fam. Mut. Ins. Co., 479 F.3d 949, 951-52 (8th Cir. 2007) (citing Fed. R. Civ. P. 56(c) (internal quotation omitted)); see also Anderson v. Liberty Lobby,

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Inc., 477 U.S. 242, 247 (1986). In order to defeat a motion for summary judgment, the nonmoving party “may not rely merely on allegations or denials in its own pleading,” it must “set out specific facts showing a genuine issue for trial.” Fed. R. Civ. P. 56(e). “Mere allegations, unsupported by specific facts or evidence beyond the nonmoving party’s own conclusions, are insufficient to withstand a motion for summary judgment.” Menz v. New Holland N. Am., Inc., 507 F.3d 1107, 1110 (8th Cir. 2007) (quoting Thomas v. Corwin, 483 F.3d 516, 527 (8th Cir. 2007)). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson, 477 U.S. at 248; Wells Fargo Fin. Leasing, Inc. v. LMT Fette, Inc., 382 F.3d 852, 856 (8th Cir. 2004) B. Substantive Due Process Violation - Federal

Count II of plaintiff’s complaint asserts a claim against defendants pursuant to 42 U.S.C. § 1983 based upon an alleged violation of her right to substantive due process under the United States Constitution. Specifically, plaintiff alleges that defendants deprived her of her fundamental right to direct the education of her children and/or her fundamental right to direct the care, custody and control of her children. Defendants argue that they are entitled to summary judgment on plaintiff’s substantive due process claim because: (1) plaintiff was not deprived of a constitutionally protected liberty interest; and (2) defendants’ conduct does not shock the conscience. For the reasons discussed below, this Court agrees with defendants’ position. 1. Protected Liberty Interest

To succeed with her substantive due process claim, plaintiff must first demonstrate that she was deprived of a right secured by the Constitution and laws of the United States. Zakrzewski v. Fox, 87 F.3d 1011, 1013 (8th Cir. 1996) (citing 42 U.S.C. § 1983). Protection

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under the Fourteenth Amendment’s Due Process Clause is afforded to those “fundamental rights and liberties which are, objectively, deeply rooted in this Nation’s history and tradition and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed.” Washington v. Glucksberg, 521 U.S. 702, 721 (1997) (internal citations and quotations omitted). Plaintiff identifies the asserted liberty interest at issue in this case as her “right to participate in the educational needs of her children by use of her state-recognized and stateordered ‘joint rights of legal custody.’” Pl’s. Reply Brief at 7. Plaintiff asserts that defendants have interfered with these rights by denying her “access to her children at school” through a deliberate and erroneous interpretation of the divorce decree and DMPS policy at issue. Pl’s. Resistance Brief at 5; Pl’s. Reply at 2. It is plaintiff’s position that her joint right of legal custody includes the right to participate equally in the education of her children, which necessarily implies the right to “access” her children while they are in school. It is a long-standing precedent that parents “have a fundamental ‘liberty interest’ in the care, custody, and management of their children.” Ruffalo by Ruffalo v. Civiletti, 702 F.2d 710, 715 (8th Cir. 1983) (citing Santosky v. Kramer, 455 U.S. 745 (1982)); Troxel v. Granville, 530 U.S. 57, 66 (2000). This protected liberty interest includes “a degree of parental control over children’s education.” Crowley v. McKinney, 400 F.3d 965, 968 (7th Cir. 2005); Meyer v. Nebraska, 262 U.S. 390 (1923); Pierce v. Society of Sisters, 268 U.S. 510 (1925). The right to direct the education of one’s child is not “absolute or unqualified,” however. C.N. v. Ridgewood Bd. of Educ., 430 F.3d 159, 182 (3rd. Cir. 2005); accord Swanson v. Guthrie Indep. Sch. Dist. No. I-L, 135 F.3d 694, 699 (10th Cir. 1998). “[I]n certain circumstances the parental right to

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control the upbringing of a child must give way to a school’s ability to control curriculum and the school environment.” C.N., 430 F.3d at 182. The Seventh Circuit’s decision in Crowley is helpful to the Court’s analysis in this matter. In Crowley, a non-custodial parent (Crowley) filed a § 1983 action against his children’s school principal and a school district, alleging that his right to substantive due process was violated when the school refused to allow him to observe his son during recess on school grounds, forbade him from attending school functions, failed to “adequately provide [him] with school notices, records, correspondence and other documents” despite his repeated requests, and failed to provide him with information about his child’s school attendance. Crowley, 400 F.3d

at 967-68. A marital settlement agreement incorporated in a divorce decree had given Crowley “joint and equal rights of access to records that are maintained by third parties, including . . . their education . . . records,” but provided “sole care, custody, control and education of the minor children” to Crowley’s ex-wife. Id. at 967. One of the main issues before the court was the scope of Crowley’s asserted federal constitutional right over the education of his children. Id. at 968. In advancing his due process argument, Crowley relied primarily on the United States Supreme Court’s decisions in Meyer and Pierce. Those cases recognized that parents have a constitutionally-protected right to privately educate their children. The Seventh Circuit, in addressing Crowley’s due process claim, however, was careful to distinguish Meyer and Pierce from the case presently before it, explaining: It is one thing to say that parents have a right to enroll their children in a private school that will retain a degree of autonomy and thus be free to teach a foreign language, or evolution, or human sexual biology, without prohibition by the state. It is another thing to say that they have a constitutional right to school records, or 9

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to be playground monitors, or to attend school functions. Schools have valid interests in limiting the parental presence-as, indeed, do children, who in our society are not supposed to be the slaves of their parents. Id. at 969. The court further observed: Federal judges are ill equipped by training or experience to draw the line in the right place, and litigation over where to draw it would be bound to interfere with the educational mission. It would do so not only by increasing schools’ legal fees but also and more ominously by making school administrators and teachers timid because fearful of being entangled in suits by wrathful parents rebuffed in their efforts to superintend their children’s education. Interests of constitutional weight and dignity are on both sides of the ledger because academic freedom, which is an aspect of freedom of speech, includes the interest of educational institutions, public as well as private, in controlling their own destiny and thus in freedom from intrusive judicial regulation. Paradoxically, in Meyer and Pierce the state was trying to weaken or encumber private education while here the plaintiff is trying to fasten a constitutional albatross to the neck of a public school. Id. at 969-70. The Seventh Circuit recognized that Crowley’s substantive due process claim was ultimately weakened by his status as a non-custodial parent. Id. at 970. Additionally, the court recognized that Crowley’s asserted liberty interest was not as strong as the interest at stake in cases where state laws had a direct impact on parents’ ability to make decisions concerning the care, custody, and control of their children. Id. at 971 (discussing Troxel, 530 U.S. 57; Santosky v. Kramer, 455 U.S. 745 (1982)). The court characterized the case before it as involving the “slighter interest of Mr. Crowley in micromanaging his children’s education at the school properly chosen for them.” Id. In rejecting Crowley’s substantive due process argument, the court explained, in part: [I]n the divorce decree Mr. Crowley surrendered the only federal constitutional right vis-à-vis the education of one’s children that the cases as yet recognize, and that is the right to choose the school and if it is a private school to have a choice among different types of school with different curricula, educational philosophies, and sponsorship (e.g., secular versus sectarian). It is not a right to participate in 10

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the school’s management-a right inconsistent with preserving the autonomy of educational institutions, which is itself, as we have noted, an interest of constitutional dignity. Id. at 971 (emphasis added). Similar to the acts complained of in Crowley, this case involves a school district’s refusal to allow a parent to visit or speak with her children during school hours, and failure to provide requested information pertaining to her children on specific occasions, acts which the Seventh Circuit deemed insufficient to amount to a constitutional violation in the case before it. Plaintiff argues that Crowley is distinguishable from the present case, because Crowley’s parental rights were severely circumscribed by a marital settlement agreement, while she shares legal custody rights with Michael Schmidt over her three children. Plaintiff contends that her right to visit/speak with her children during school hours and to receive requested information/records derives from this joint right of legal custody, which makes her case sufficiently distinct from Crowley and renders the majority opinion in that case of little persuasive value. While plaintiff is correct to assert that she enjoys greater custodial rights by virtue of the divorce decree at issue in this case than those held by Crowley, this distinction does little to strengthen her claim. Under Iowa law, “legal custody” refers to the legal relationship between a parent and his/her child, and involves the right of a parent to participate in important decisions affecting a child’s life, including but not limited to, decisions relating to a “child’s legal status, medical care, education, extracurricular activities, and religious instruction.” Iowa Code § 598.1(5) (2009). Plaintiff has cited to no authority recognizing that this custody right necessarily includes the right to visit her children during school hours, or to receive requested information

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concerning her children’s school activities/attendance upon her demand.4 But more importantly, plaintiff has identified no authority recognizing that these rights are protected by the Constitution or laws of the United States even for a parent with full custodial rights. At least one other district court addressing an issue similar to the one at issue in this case has declined to find that a parent possesses a constitutional right to obtain information from a school regarding a child’s education or to have unsupervised visits with a child on school grounds, during school hours. See Bangura v. The City Of Philadelphia, No. 07-127, 2008 WL 934438, *4 (E.D. Pa. April 1, 2008). That case and the Crowley decision aptly demonstrate that courts have yet to recognize a “federal constitutional right vis-à-vis the education of one’s children” outside of the right to choose a child’s school, and, if the school chosen is a private school, “to have a choice among different types of schools with different curricula, educational

Contrary to plaintiff’s argument, “legal custody” has not been defined or interpreted so expansively under Iowa law. See Iowa Code § 598.1(5). Joint legal custody refers only to the right to participate equally in important decisions affecting a child’s life; it does not involve physical access to a child. Iowa Code § 598.1(3). Even records required to facilitate important educational decisions affecting the child are normally sent to the primary care parent, who must then share this information with the parent lacking physical custody rights. As Iowa courts have explained in discussing joint legal custody rights and obligations: The parent having physical care will be the one receiving information on school events, getting conference slips and report cards. These should be shared with the other parent. Except for emergency situations, the parent then having physical care has a responsibility of communicating to the other parent the need to make the decision and making the necessary information available. In re Marriage of Hoksbergen, 587 N.W.2d 490, 492-493 (Iowa 1998) (quoting In re Marriage of Westcott, 471 N.W.2d 73, 75-76 (Iowa App.1991); In re Marriage of Fortelka, 425 N.W.2d 671, 673 (Iowa App. 1988). To be sure, legal access to the educational records of a child is provided for under Iowa law. Iowa Code § 598.41(1)(e). This right, however, is not absolute, and is always subject to what is in the best interest of the child. Harder v. Anderson, Arnold, Dickey, Jensen, Gullickson and Sanger, L.L.P., 764 N.W.2d 534, 538 (Iowa 2009). 12

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philosophies, and sponsorship.” Crowley, 400 F.3d at 971. In the present case, the record evidence, viewed in a light most favorable to plaintiff, does not suggest that defendants have deprived plaintiff of the ability to make decisions concerning where her children will attend school. Furthermore, plaintiff has not identified material facts which reasonably suggest that defendants’ actions have in any way deprived her of her ability to raise her children in the manner in which she sees fit, a fundamental aspect of a parent’s liberty interest in the care, custody, and management of her children. Plaintiff’s access to her children outside of the school setting remains unimpaired by defendants’ actions, subject only to limitations provided for in the divorce decree. Having failed to allege conduct that has deprived her of a right protected by the federal constitution or laws of the United States, defendants are entitled to summary judgment on plaintiff’s substantive due process claim as a matter of law. 2. Conscience Shocking Conduct

Even if a constitutionally-protected right could be established to satisfy the first element of her claim, plaintiff would need to demonstrate that the official conduct complained of which deprived her of her protected right(s) was “conscience-shocking.” Norris v. Engles, 494 F.3d 634, 637 (8th Cir. 2007) (citations omitted). A substantive due process violation “is properly reserved for truly egregious and extraordinary cases.” Zakrzewski, 87 F.3d at 1014. In the present case, defendants contend that their conduct in denying plaintiff “access” to her children while at school does not shock the conscience because their actions were based upon a good faith

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and reasonable interpretation of the divorce decree and DMPS policy.5 Whether defendants’ conduct in this matter is conscience shocking is a question of law to be resolved by the Court. Akins v. Epperly, 588 F.3d 1178, 1183 (8th Cir. 2009). While parents have “a fundamental liberty interest in the care, custody, and management of their children,” this interest may be “substantially reduced by the terms of [a] divorce decree . . . .” Id. at 1013-14 (internal quotations and citations omitted). In the present case, the custody orders in effect at the time of the conduct at issue in this case awarded primary physical care of plaintiff’s children to Michael Schmidt, and set forth a general schedule of visitation between plaintiff and her children during certain holidays and school breaks with additional visitation only “as mutually agreed to by and between the parties so as not to interfere with the health, education, and welfare of the . . . minor children.” Pl’s App. at 44. As evident from the record and undisputed by the parties, Nigut has interpreted the divorce decree at issue to preclude plaintiff from visiting her children during school hours without Michael Schmidt’s consent, and plaintiff readily acknowledges that this interpretation forms the basis of her suit against defendants. Pl’s Brief In Support of Partial Motion for Summary Judgment at 7; Pl’s Resistance Brief at 28. Plaintiff contends that Nigut’s interpretation of the divorce decree at issue is plainly erroneous because it misconstrues the visitation and physical custody provisions and improperly applies them to preclude her access to her children while they are at school. According to plaintiff, the physical care and visitation provisions in the divorce decree have no bearing on her

The DMPS policy at issue provides that “[t]he District will obey all court orders relating to custody issues and parental rights.” Def. App. at 12. 14

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ability to visit or speak with her children during school hours and are not applicable to this case because they only concern the ability of a parent to “host” the children outside of school hours consistent with the visitation schedule. Plaintiff explains: “when a child is at a school or school function, neither parent is exercising visitation with the child. Rather, the school has the temporary custody, care and control of the child while the parents are entitled to participate in the educational activities and needs of the child. . . . The parent is merely attending for purposes of educational participation and involvement” through the exercise of legal custody rights. Pl’s Resistance Brief at 12. Whatever merit plaintiff’s argument may have, an erroneous legal conclusion regarding the effect of the divorce decree would not, in and of itself, constitute conscience-shocking conduct. “[S]ubstantive due process secures individuals from ‘arbitrary’ government action that rises to the level of ‘egregious conduct,’ not from reasonable, though possibly erroneous, legal interpretation.” Brittain v. Hansen, 451 F.3d 982, 996 (9th Cir. 2006); see also Scott v. City of Seattle, 99 F. Supp. 2d. 1263, 1271-72 (W.D. Wash 1999). Under Iowa law, “physical care” refers to the right and responsibility of a parent “to maintain a home for the minor child and provide for the routine care of the child.” Iowa Code § 598.1(7). When joint physical care is awarded to both legal custodial parents, “both parents have rights and responsibilities toward the child including, but not limited to, shared parenting time with the child, maintaining homes for the child, [and] providing routine care for the child . . . .” Id. at § 598.1(3). “When joint physical care is not warranted, the court must choose one parent to be the primary caretaker, awarding the other parent visitation rights.” In re Marriage of Hynick, 727 N.W.2d 575, 579 (Iowa 2007). In such a situation, “[t]he noncaretaker parent is

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relegated to the role of hosting the child for visits on a schedule determined by the court to be in the best interest of the child.” Id. at 579. As plaintiff identifies, Nigut has interpreted the term “visitation” as used in the divorce decree to refer to plaintiff’s right of access to her children at any time of the day, including those times during which her children are at school. The term “visitation” is not defined under Iowa law; however, various definitions of “visitation” provided in dictionary sources are consistent with Nigut’s understanding of the term. See Black’s Law Dictionary 1602, 1603 (8th ed. 2004) (“visitation” means, inter alia, “a relative’s, especially a noncustodial parent’s period of access to a child”; “visitation right” means, inter alia, “a noncustodial parent’s . . . court-ordered, privilege of spending time with a child who is living with another person, usually the custodial parent, . . . .”); Lubinski v. Lubinski, 761 N.W.2d 676, 680 (Wis. Ct. App. 2008) (quoting Riverside Webster’s II New Collegiate Dictionary 1235 (1995) (“‘visit’ is defined as ‘[t]o go or come to see”). Additionally, other jurisdictions have defined “visitation” as involving a parent’s right of access to a child. See West’s Ann. Cal. Penal Code § 277 (“‘Visitation’ means the time for access to the child allotted to any person by court order.”). These definitions demonstrate that Nigut’s interpretation of the divorce decree is not, as plaintiff contends, unreasonable, or, in any event, so unreasonable as to shock the conscience.6 Accordingly, defendant’s conduct in

It is further telling that the Iowa District Court for Polk County, the court that issued the divorce decrees in this case, has referred to plaintiff’s attempted visits at school as “visitation.” See Defendant’s App. at 52. In ruling on a request to modify the divorce decree, dated June 23, 2009, the court noted: The Respondent on several occasions when she was in Des Moines would go to the children’s schools and attempt to have visitation during school hours. These attempts were not always successful either because of the reluctance of the school officials to allow visitation based upon the wording of the Court’s orders. In 16

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denying plaintiff the ability to visit her children at school based upon this interpretation does not support a § 1983 claim. The Court recognizes that the concepts of visitation during school hours and access to educational records are distinct, and that plaintiff’s claim of denied access to educational records should be analyzed separately for purposes of discerning whether defendants’ conduct is conscience shocking. In the present case, however, the record before the Court does not support plaintiff’s claim that she was denied access to the educational records of her children. As defendants identify, “Plaintiff’s Statement of Material Facts contain no reference to any educational records being refused” in this case. Def’s Resistance Brief at 17; see Pl’s Statement of Undisputed Facts. Plaintiff admits that she received certain educational records from defendants upon her request, see id at 5, ¶ 22, and further indicates that she had access to Roosevelt High School’s online record system. Def’s App. at 117.7 Plaintiff’s claim of denied access to educational records appears to be based primarily on Roosevelt’s refusal, on one occasion in April of 2007, to provide information regarding the reason for Gabrielle’s documented absences from school, and Roosevelt’s swim coach’s refusal, on another occasion, to provide answers to questions concerning Gabrielle’s participation on the swim team. These isolated incidents do not rise to the requisite level of egregiousness needed to

addition, it was the Petitioner’s desire that the Respondent not disturb or have visitation with the children during school hours. Id. (emphasis added). Additionally, the DMPS policy at issue provides that non-custodial parents (i.e. those who do not “have primary responsibility for the day-to-day care and control of the student”) shall receive student records “from the school upon written request.” Def’s App. at 12. 17
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sustain a § 1983 action. See Pisacane v. Desjardins, 115 Fed.Appx. 446, 451, 2004 WL 2339204, *3 (1st Cir. 2004) (school’s act of rebuffing plaintiffs in their attempt to obtain school records on one occasion because they were “banned from the building” did not pose an issue under the federal constitution where evidence demonstrated that they were afforded access to records on other occasions). As previously indicated, the record in this case does not support any claim that defendants unconditionally denied plaintiff access to her children’s records. The failure to provide requested information on two occasions is not “so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.” Schmidt v. City of Bella Villa, 557 F.3d 564, 574 (8th Cir. 2009) (quoting Rogers v. City of Little Rock, 152 F.3d 790, 797 (8th Cir.1998)). In conclusion, because plaintiff has failed to allege conduct in this matter that shocks the conscience, defendants would also be entitled to summary judgment as a matter of law on the second element of plaintiff’s substantive due process claim. C. Procedural Due Process Violation - Federal

Count I of plaintiff’s complaint alleges that defendants have denied her procedural due process under the United States Constitution. Because plaintiff has failed to meet the fundamental showing that she was deprived of a protected liberty interest, her procedural due process claim must fail. Zakrzewski, 87 F.3d at 1014. Summary judgment in favor or defendants on this claim is therefore appropriate. D. Substantive and Procedural Due Process Violations - State

Count III and IV of plaintiff’s complaint allege that defendants have violated her right to substantive and procedural due process under the Iowa Constitution. The Iowa Supreme Court

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deems “the due process provisions of the United States and the Iowa Constitutions” to be “nearly identical in scope, import and purpose.” Holm v. Iowa Dist. Court for Jones County, 767 N.W.2d 409, 417 (Iowa 2009). Because plaintiff offers no argument for employing a different analysis under the Iowa Constitution, the Court’s discussion of plaintiff’s due-process argument applies to both her federal and state claims. See State v. Dudley, 766 N.W.2d 606, 624 (Iowa 2009). Accordingly, for the reasons previously discussed in Sections B I and II of this Order, defendants are entitled to summary judgment on plaintiff’s state due process claims as a matter of law. E. Equal Protection

Counts V and VI of plaintiff’s complaint allege that defendants have violated her right to equal protection under both the United States and Iowa Constitutions. Specifically, plaintiff alleges that she was treated differently than a married parent as a result of her divorce status. The Equal Protection Clause of the Fourteenth Amendment “is essentially a direction that all persons similarly situated should be treated alike.” Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439 (1985). Therefore, to establish a violation of the Equal Protection Clause, a plaintiff must first “show that [she] was treated differently than other persons who were in all relevant respects similarly situated.”8 Flowers v. City of Minneapolis, Minn., 558 F.3d 794, 798 (8th Cir. 2009). Plaintiff argues that she is similarly situated to a married parent because, like married parents, she has legal custody rights. Defendants argue, however, that plaintiff is not

In Varnum v. Brien, 763 N.W.2d 862, 882 (Iowa 2009), the Iowa Supreme Court explained: “to truly ensure equality before the law, the equal protection guarantee requires that laws treat all those who are similarly situated with respect to the purposes of the law alike.” Id. at 883. 19

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similarly situated to married parents because her ability to access her children has been significantly limited by the divorce decree. The DMPS policy at issue in this case provides that “[p]arents . . . may be provided access to their students during school hours or school-related activities only so long as this access does not cause or threaten to cause material and substantial disruption to school or schoolrelated activities.” Def’s App. at 12. The policy also provides, however, that the “District will obey all court orders relating to custody issues and parental rights,” and that “the rights afforded parents under the policy may be limited in any individual situation” as a result. Id. The clear purpose of this policy is to establish appropriate parameters for a parent’s access to his/her children during school hours and activities and to ensure compliance with court orders relating to custody and parental rights. The disparate treatment alleged in this case – defendants’ refusal to allow plaintiff access to her children during school hours without Michael Schmidt’s consent – results from the application of this policy to the facts of this case based upon Nigut’s interpretation of the divorce decree. In its prior order of July 20, 2009, the Court concluded that plaintiff “is not ‘in all relevant respects similarly situated’ to the typical ‘married parent,’ such that an equal protection analysis is appropriate.” July 20, 2009 Order at 13 As the Court observed, “the typical married parent has both legal and physical custody of his/her children at all times, a situation in which [plaintiff] did not find herself.” Id. Here, plaintiff’s parental rights in the physical custody of her children have been abdicated by the divorce decree, and she has been granted visitation with her children only during select holidays, school breaks, and other times as mutually agreed to by Michael Schmidt.

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It is true that plaintiff shares legal custody rights in this case with Michael Schmidt. Legal custody, however, which involves rights of decision making, not access, does not place plaintiff on an equal footing with Michael Schmidt (or other married parents enjoying physical custody of their children) such that she may be deemed “similarly situated” for purposes of the Court’s equal protection analysis. It is plaintiff’s lack of physical custody rights, and more importantly, her limited rights to visitation, that has resulted in her inability to access her children during school hours in this case. Her legal custody rights are not implicated. To succeed with her equal protection claim, plaintiff would therefore be required to demonstrate that she was treated differently than a married parent who similarly lacks physical custody rights and enjoys only limited visitation rights with his/her children. There is nothing in the record before this Court to suggest that plaintiff was treated differently than a married parent would be under the DMPS policy in that situation. Having failed to establish such dissimilar treatment, defendants are entitled to summary judgment on plaintiff’s equal protection claims.

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III.

CONCLUSION For the reasons outline above, plaintiff’s motion for summary judgment is DENIED.

Defendants’ motion for summary judgment is GRANTED. IT IS ORDERED. Dated this 23rd day of September, 2010.

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