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Kraut v. Rachford





APPEAL from the Circuit Court of Cook County; the Hon. DANIEL A. COVELLI, Judge, presiding.


In this action, brought on behalf of the minor plaintiff by his aunt as next friend against a number of defendants, the verified complaint alleges that his right to due process was violated when he was dropped from the enrollment of Homewood-Flossmoor Community High School (H-F). Injunctive relief and damages, actual and punitive, were sought. The trial court granted two motions for summary judgment — one of defendant Rachford and the other of the remaining defendants. Plaintiff appeals only from the judgment in favor of Rachford (hereafter called defendant). The court also granted plaintiff's request for injunctive relief by ordering that he be enrolled as a tuition-free student at H-F, and defendant cross-appealed from this order.

It appears that plaintiff, his parents, brother, and sister lived in Milwaukee, Wisconsin, until his father lost his job. Upon the family's arrival in the community of Flossmoor, Illinois, financial problems necessitated that the children reside with their aunt, Natalie Bartusiewicz, while their parents lived next door with an uncle. In October, 1967, plaintiff's parents were divorced and custody of the children was awarded to their mother, who later moved to an apartment in the community of Chicago Heights. However, she did not take the children with her, because she was unemployed and was receiving no support payments from her ex-husband who had left the State. Although she received Aid for Dependent Children payments of $105 monthly, she testified that she could not adequately support her children without the assistance of her relatives. Consequently, Mrs. Bartusiewicz, who was a widow, kept the children and she and one of plaintiff's uncles contributed to their financial support.

For awhile, the children lived with their mother on a part-time basis after she remarried in March 1969, but her second husband expressed a desire that the children live with their aunt. Plaintiff's mother testified that she was dissatisfied with his attitude toward the children, because he avoided establishing a father-son relationship with them and frequently criticized their appearance and mannerisms. He would not contribute to their support, and their care was left to her and Mrs. Bartusiewicz. At this time, plaintiff's mother was employed as a secretary at Bloom Township High School (Bloom), which was located in the school district of her residence.

Mrs. Bartusiewicz testified that she welcomed the children's living with her on a full-time basis, commencing in 1969, as she was lonely and wanted to raise and supervise them. Their meals, laundry, and day-to-day supervision was provided by her and she supported them to the extent of her resources; i.e., by maintaining a home for them and providing a portion of their food expense. Their mother contributed the remainder of their support and took her evening meal with them at Mrs. Bartusiewicz's home, during which their discipline was discussed.

Plaintiff had attended a parochial elementary school, which institution listed his address as that of his mother in the Bloom rather than the H-F attendance district. While still in the eighth grade, a personal information form provided by H-F to assist freshman enrollment for the 1973-74 school year was completed, in which his address was given as that of his aunt in Flossmoor. The form was signed by both his mother and his aunt. His H-F enrollment form for that same year also bore both of their signatures, with an accompanying statement that Mrs. Bartusiewicz was his guardian. He was enrolled in and attended H-F during the 1973-74 school year.

Late in his freshman year, H-F processed his enrollment form for the 1974-75 school year over his nonresident mother's signature rather than that of his resident aunt and, on August 1, 1974, H-F accepted the payment of his fees for the sophomore year — which was designated by a H-F form to be the step necessary to commence final registration.

Thereafter, on or about August 30, 1974, it appears that defendant received a telephone call from a person who was a nonresident of the H-F district, requesting the enrollment of her children on a tuition-free basis. When told that this could not be done, she informed defendant that plaintiff lived with his mother in Chicago Heights and yet was allowed to attend H-F on a resident basis. Defendant then examined plaintiff's records, which failed to show either that he lived with his parents in the H-F attendance district or that he dwelled with a resident guardian. On August 30, 1974, defendant notified plaintiff's mother that "he had reason to believe" that plaintiff was not a legal resident of the H-F attendance district and, as a result, he had been dropped from the enrollment of H-F but that she could have the matter reviewed by contacting Mr. Fabian, Director of Student Services. The next day, she protested this action in a telephone conversation but later met with Fabian following which she completed a questionnaire given to her by Fabian. Her responses stated that plaintiff lived with his aunt on a full-time basis because of family problems — among other reasons; that he would continue to reside there as long as doing so was in his best interests; that his aunt supports him to the extent of her resources; that in event of accident or other emergency, it is his aunt who was to be notified; and that although his aunt is responsible for his discipline, due to financial considerations she (his mother) assumed responsibility for damages caused by him. On September 16, 1974, Fabian forwarded the questionnaire to defendant with an attached memo, inquiring as to what criteria should be employed to ascertain the veracity of the responses of plaintiff's mother. On September 18, 1974, defendant gave his opinion that plaintiff was living with his aunt for the express purpose of attending H-F and thus was not a legal resident of the district. In letters to Anthony's mother and aunt on September 24 and 26, defendant informed them of the grounds upon which he had based his opinion.

Plaintiff then was enrolled in Bloom Township High School and attended his sophomore year there, tuition-free. On July 3, 1975, the trial court found him to be a resident of Flossmoor and ordered defendant to enroll him in H-F as a tuition-free student. On oral argument, we were informed that he was so enrolled and has since been graduated by H-F.


• 1, 2 Plaintiff asserts that the trial court erred in granting defendant's motion for summary judgment. It is his position that a question of material fact exists concerning the issue of whether his right to due process had been violated, in which event he asserts that he is entitled to damages. The parties agree that the question of damages is governed by Wood v. Strickland (1975), 420 U.S. 308, 43 L.Ed.2d 214, 95 S.Ct. 992, and, since there is no claim of malice in the instant case, that punitive damages could not be recovered. But compensatory damages may be obtained where school officials have discharged their duties with such disregard for the student's clearly established constitutional rights that their actions cannot reasonably be characterized as being in good faith. Initially, we note that the deprivation of a right or interest is protected by the requirements of due process only where the nature of the interest is one of liberty or property. (Board of Regents v. Roth (1972), 408 U.S. 564, 33 L.Ed.2d 548, 92 S.Ct. 2701.) However, the term "property" is broad enough to offer protection to an objective expectancy of the continuance of an interest which has been initially conferred by the State. (Perry v. Sindermann (1972), 408 U.S. 593, 33 L.Ed.2d 570, 92 S.Ct. 2694.) Whether such an expectancy may be characterized as a "legitimate claim of entitlement" denoting objectivity, rather than an "abstract desire or need" denoting subjectivity, depends on the statutory terms creating the interest as well as the rules or policies by which it is administered. 408 U.S. 564, 577, 33 L.Ed.2d 548, 561, 92 S.Ct. 2701, 2709.

• 3 The Illinois School Code provides that a board of education must establish free schools sufficient to accommodate persons within the district between the ages of 6 and 21 years (Ill. Rev. Stat. 1973, ch. 122, par. 10-20.12) and to charge tuition to pupils who are non-residents of the district (Ill. Rev. Stat. 1973, ch. 122, par. 10-20.12a). Children presumptively reside in the district where their parents reside; however, for school purposes, this presumption may be rebutted by circumstances showing a different residence. (Turner v. Board of Education (1973), 54 Ill.2d 68, 294 N.E.2d 264.) Turner cited Dean v. Board of Education (1944), 386 Ill. 156, 53 N.E.2d 875, Ashley v. Board of Education (1916), 275 Ill. 274, 114 N.E. 20, Board of Education v. McCaskill (1918), 212 Ill. App. 138, and People ex rel. Saxe v. Board of Education (1917), 206 Ill. App. 381, which illustrate a panoply of such circumstances. Dean involved the residency of a child who, with the consent of his father, was ordered by the juvenile court into the custody of the Illinois Children's Home & Aid Society, which in turn placed him in a private home where he would be maintained and supported for a stated compensation. The compensation was paid in part by the father, who resided in a school district different than that of the placement home. The supreme court held that the location of the placement home was the child's residence for school purposes. In Ashley, the residency of children who had been voluntarily placed in an orphanage was questioned where some had one or more parents living in another district. The supreme court noted that neither the boarding of a child in another district nor the setting up of a temporary residency in another district for the purpose of attending school there on a tuition-free basis will, ipso facto, alter the child's residency. It was held that for school purposes the child's residence is located in the district where he dwells in circumstances such as the following: he is adopted, he is placed permanently with a family with no intention of withdrawal, his parents have relinquished all control, his parent or guardian lives in another state and exercises no control over him, or his family has no permanent abode but travels incessantly in search of work. In holding that the children's residence was the site of the orphanage, the Ashley court reasoned that the children were actually residents of the district in the ordinary and popular meaning of the term, as they had no other home, that they were placed in the home for maintenance and rearing by those who had custody of them, that there was no present intention by anyone in authority or control of the minors to relocate them, and that where broken homes and financial difficulties occur, it is frequently necessary to find a separate residence for the children. McCaskill held that children who temporarily reside with a relative during the school year but otherwise reside with their parents in another district could not be classified as tuition-free students. Saxe involved the residency of a child sent to another school district to live with his grandmother. The court reasoned that such a child was a nonresident of the school district if he was living away from his parents for the primary purpose of attending school on a tuition-free basis. The child in Saxe was held to be a resident of the school district, as it was established that his care and custody had been transferred to his grandmother and that he resided with her on a full-time, indefinite basis. In Turner, the care and custody of the child had been transferred by order of court to a relative who was a resident of the school district, but because the guardianship had been sought so that the child could attend school on a tuition-free basis, it was held that her residence for school purposes remained with her parents.

• 4, 5 Here, it cannot be questioned that the Illinois School Code conferred upon plaintiff an interest in attending a school on a tuition-free basis and that the retention of such a benefit is protected by the requirements of due process of law. The question remains, however, whether this protection is to be afforded his interest in remaining in H-F on a tuition-free basis. He had attended H-F during the 1973-74 school year as a tuition-free student, although one of his freshman enrollment forms indicated that he may not have been a resident of its attendance district since he lived with his aunt within the district rather than with his mother who resided in an adjacent school district. H-F processed his course enrollment form for the 1974-75 school year over his nonresident mother's signature rather than that of his resident aunt on March 18, 1974, and on August 1, 1974, it accepted the payment of his fees for his sophomore year. No further communication was received from H-F until August 30, 1974, when defendant notified plaintiff that he was dropped from enrollment. Under these circumstances, we believe that the actions of H-F in allowing him to attend on a tuition-free basis during his freshman year and further allowing him to proceed to final registration for his sophomore year, which encompassed a time period during which his living conditions remained constant, fostered an objective expectancy in his continuation at H-F on the same basis as before. (Perry; Roth.) Therefore, we hold that plaintiff was entitled to due process protection of his interest in continuing to attend H-F as a resident student. We must next consider what process was due him.

"`[D]ue process' cannot be imprisoned within the treacherous limits of any formula," but some real opportunity to protect the interest involved must be afforded. (Joint Anti-Fascist Refugee Committee v. McGrath (1951), 341 U.S. 123, 162, 95 L.Ed. 817, 849, 71 S.Ct. 624, 643 (Frankfurter, J., concurring).) At a minimum, however, where a proceeding is to be accorded finality, notice must be given and an opportunity to be heard afforded which will be meaningful and appropriate under the circumstances. (Armstrong v. Manzo (1965), 380 U.S. 545, 14 L.Ed.2d 62, 85 S.Ct. 1187; Mullane v. Central Hanover Bank & Trust Co. (1950), 339 U.S. 306, 94 L.Ed. 865, 70 S.Ct. 652.) Moreover, where the interests of a minor student are ...

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