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August 19, 2005.

BRENT CLARK, in his capacity as Superintendent, and BELLEVILLE TOWNSHIP HIGH SCHOOL DISTRICT NUMBER 201, Defendants.

The opinion of the court was delivered by: MICHAEL J. REAGAN, District Judge



Plaintiffs, parents of students at one of the two high schools that comprise Belleville Township High School District 201 (Belleville Township High School East and Belleville Township High School West) brought suit in their names seeking injunctive relief. They claim, inter alia, their Constitutional rights to due process were violated when the District 201 School Board ("Board") passed a revised dress code which included the former dress code but also mandated certain colors and was more restrictive regarding the style of dress. The plaintiffs claim the Board violations included lack of due process in not following state open meeting laws; lack of due process in not ensuring persons affected by the dress code revision had input into it; lack of due process in not following the Board's own policies by discussing matters not on the agenda at a specially called meeting; and lack of due process by voting on the dress code without appropriate notice. The dress code itself is not challenged on its merits-only the procedure adopting it is in dispute. The Court rules that 1) the conduct complained of does not offend the Constitution; 2) the procedures used in passing the dress code did not violate the school code; and 3) plaintiffs have not met their burden in proving the necessary elements to prevail on their Motion for Preliminary Injunction.

  Consequently, the Court declines the invitation to enjoin the implementation of the dress code. The Lancers and Maroons are to attend school on Monday, August 29, 2005 dressed consistent with the "Standardized Dress Policy" as passed by the Board when it met and voted on March 21, 2005. Students who do not heed the policy are subject to the sanctions listed in the student handbook.


  On March 21, 2005, the School Board of Belleville Township High School District 201 adopted a "uniform policy" specifying a dress code for students at Belleville East and West High Schools. (Compl. ¶ 65.) This policy was created by Defendant School District and a "Uniform Committee"*fn1 composed of teachers, parents, and students. (Id. ¶¶ 24-30.) This committee met nine times between September 14, 2004 and February 7, 2005 to create and revise the dress code. (Id.) The new dress code incorporates much of the predecessor dress code but adds additional restrictions on the style and color of clothing that may be worn. (Pls' Exs. 14, 16.) The Plaintiffs, parents of several high school students at the District's two high schools (Belleville East and West), filed suit in their own names in the Circuit Court for the Twentieth Judicial Circuit in St. Clair County, Illinois on August 8, 2005. (Compl. p. 1.) They sought injunctive relief only. (Id.) The complaint alleges that in creating and adopting the revised dress code policy, Defendant School District failed to comply with Illinois state law administrative procedures (specifically, the Open Meetings Act) (Id. ¶¶ 66-84), with the Illinois School Code, and with the School Board's own policies, and thereby violated Plaintiffs' right to due process under Amendment XIV of the United States Constitution. (Id. ¶¶ 85, 92, 102.) Plaintiffs also allege a violation of their right to free speech under Amendment I of the United States Constitution. (Id. ¶ 89 and n. 5.) Also on August 8, 2005, Plaintiffs filed a motion requesting that the Circuit Court issue a temporary restraining order ( Fed.R.Civ.P. 65(b)) and preliminary injunction (Fed.R.Civ.P. 65(a)) delaying the implementation of the policy when the school year begins until such time as this matter is resolved. (Doc. 1.) The dress code itself is not challenged on its merits — only the procedure adopting it is in dispute. The school year is scheduled to begin Monday, August 29, 2005.

  On August 11, 2005, then-Defendant Kurt Schroder filed a notice of removal of the action to federal court (Doc. 1) pursuant to 28 U.S.C. § 1441(a) and (b). As required by 28 U.S.C. § 1446(a), Defendant stated in support of removal that this Court has federal question jurisdiction under 28 U.S.C. § 1331 by virtue of the Plaintiffs' invoking Amendments I and XIV of the United States Constitution. (Id.) On August 12, 2005, the Court held a status conference on the matter (Doc. 3), and at that conference, the Court ordered that briefs discussing federal subject matter jurisdiction be submitted by noon on August 15, 2005, and set oral argument on the issue of this Court's jurisdiction for 9 A.M. on August 16, 2005. (Doc. 4.)

  Immediately after the status conference, Plaintiffs filed a motion to remand the case to the Circuit Court (Doc. 5.) As ordered, on August 15, 2005, Plaintiffs filed a memorandum in support of their motion, Part II of which is a brief arguing against federal jurisdiction. (Doc. 13.) Also as ordered, Defendants filed a brief in support of federal question jurisdiction, set within a motion opposing Plaintiff's motion to remand. (Doc. 14.)

  Upon consideration of the parties' jurisdictional memoranda and immediately after the August 16, 2005 oral argument on jurisdiction, the Court verbally issued a finding that it does have federal question subject matter jurisdiction over the case. A full discussion of the reasoning behind this finding follows in Part II infra of this Memorandum and Order. The Court then set a hearing on Plaintiffs' Motion for a Temporary Restraining Order and a Preliminary Injunction for 1:30 P.M. the same day. Defendants requested that all named Plaintiffs attend the hearing to be available if necessary as witnesses. Because one Plaintiff, Don Bevirt, could not be present at the hearing, and apparently did not have claims distinct from the other Plaintiffs, he was dismissed upon oral motion of the Plaintiffs and without objection. Individual Defendants Eckert, Highsmith, Scharf, Schroeder and Wagner were also terminated as unnecessary parties on Plaintiffs' oral motion and without objection. Because the only remaining parties in the case all had been served with notice, the motion for a temporary restraining order was converted into a motion for preliminary injunction under Fed.R.Civ.P. 65. Defendants filed their answer to Plaintiffs' complaint on the same day, before the hearing began.

  The hearing on Plaintiffs' motion for a preliminary injunction began as scheduled on August 16 and was completed on the morning of August 17, 2005. Plaintiffs presented several witnesses. Plaintiff Hermerding described the harm she suffered as the result of the Board's action to include: (1) monetary loss because her son is the same size this year as last and so she had no intention of purchasing new clothes for him; (2) the inconvenience of doing laundry more frequently because she may buy fewer clothes that comport with the policy; and (3) her offer to volunteer for the uniform committee was shunned. Thompson was an unsuccessful candidate for the Board and one plank of his election platform involved the dress code. He thought the process for implementing the dress code was flawed and when the Court inquired as to his opinion whether the new dress code would be more or less costly than its predecessor, he could not respond without speculating. Plaintiffs also called as a witness Brent Clark, Superintendent of District 201 and a defendant in his official capacity. Clark was formerly the Superintendent in Benton, Illinois and holds a Doctorate in Education. He supplied the rationale for the recommended changes in the dress code, which is discussed briefly in Section II.B infra. Plaintiffs also called School Board member and ex-defendant Kurt Schroeder and School Board secretary Lois Luther as witnesses.

  After Plaintiffs rested their case, Defendants moved for judgment as a matter of law under Fed.R.Civ.P. 52©). The Court ruled that the motion would be argued at the same time that closing arguments were to be given during that day's hearing. Defendants declined to present witnesses or introduce other evidence, and renewed their motion for judgment as a matter of law. Plaintiffs then gave their closing argument. Defendants then gave their closing argument and their arguments in support of their motions for judgment as a matter of law. Plaintiffs then gave their argument in opposition to the summary judgment motions. The Court adjourned, and now enters this memorandum and order regarding its jurisdiction, Plaintiffs' Motion for a Temporary Restraining Order and a Preliminary Injunction and Defendants' Motions for Judgment as a Matter of Law.



  "The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. A leading case on the issue of whether the introduction of a right protected by the United States Constitution is sufficient to create federal question jurisdiction is Gully v. First Nat'l Bank, 299 U.S. 109 (1936). In that case, the Supreme Court declared that:
To bring a case within the statute, a right or immunity created by the Constitution or laws of the United States must be an element, and an essential one, of the plaintiff's cause of action. The right or immunity must be such that it will be supported if the Constitution or laws of the United States are given one construction or effect, and defeated if they receive another.
Id. at 112 (internal citations omitted). Gully was reviewed and approved in Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1 (1983), and this Court follows it in the instant case. The Court must examine whether the two federal rights alleged in Plaintiffs' complaint to have been violated are essential to the outcome of the case. This examination takes place in the context of the Plaintiffs' complaint as it exists at the time of removal, not in the context of later amended complaints or dismissed claims. See Gossmeyer v. McDonald, 128 F.3d 481, 488 (7th Cir. 1997) ("Whether subject matter exists is a question answered by looking at the complaint as it existed at the time the petition for removal was filed. . . . Once an action is properly removed . . ., amendment of the complaint . . . does not defeat the original removal.").


  Plaintiffs allege that Defendant School District violated the First Amendment of the United States Constitution by restricting logos on clothing to the size of a half-dollar, "thereby depriving students of their ability to communicate political messages, or otherwise engage in free speech." (Compl. ¶ 89 n. 5.) However, no student is a ...

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