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SCOMA v. CHICAGO BOARD OF EDUCATION
November 13, 1974
JULIE SCOMA AND RICHARD SCOMA, PLAINTIFFS,
THE CHICAGO BOARD OF EDUCATION ET AL., DEFENDANTS.
The opinion of the court was delivered by: Decker, District Judge.
Plaintiffs, parents residing in the City of Chicago, have filed
a civil rights action under 42 U.S.C. § 1983, seeking a
preliminary and permanent injunction and declaratory judgment
against defendants from interfering with plaintiffs' decision to
educate their two school-age children*fn1 at home, by the
enforcement of the state compulsory attendance statute.*fn2
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 School.
"(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, § 12
of the Illinois Constitution, S.H.A.
In Count II, plaintiffs allege that the Illinois Compulsory
Attendance Act, Ill.Rev.Stat. ch. 122, §§ 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. § 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. § 1986.
Plaintiffs have moved this court to convene a three-judge
court, pursuant to 28 U.S.C. § 2281 and § 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, § 702-3(b); and the Illinois statute prohibiting adults from
contributing to the delinquency of minors, Ill.Rev.Stat. ch. 23,
§§ 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
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. § 1331, ...