Vesely v. Ill. Sch. Dist. 45

669 F.Supp.3d 706

Bryan VESELY, Plaintiff, v. ILLINOIS SCHOOL DISTRICT 45 and Susan Hardek-Vesely, Defendant.

No. 22 CV 2035

United States District Court, N.D. Illinois, Eastern Division

Signed April 18, 2023

Mason Scott Cole, Dean J. Tatooles, Cole Sadkin, LLC, Chicago, IL, for Plaintiff.

Nikoleta Lamprinakos, Robbins Schwartz Nicholas Lifton & Taylor Ltd., Chicago, IL, for Defendant Illinois School District 45.

Thomas Andrew Christensen, Jenna Nicole Wadulak, Patrick B. Hurley, Huck, Bouma, Martin, Jones & Bradshaw, P.C., Wheaton, IL, for Defendant Susan Hardek-Vesely.

MEMORANDUM OPINION AND ORDER

Lindsay C. Jenkins, United States District Judge

Bryan Vesely ("Bryan") brings suit against Susan Hardek-Vesely ("Susan"), his ex-wife and co-parent of their 12-year-old child, A.V., and Illinois School District 45 ("District") for allegedly violating his parental rights under the Fourteenth Amendment of the United States Constitution and Article I of the Illinois Constitution.¹ Bryan alleges that Susan and the District conspired to violate his parental rights by facilitating A.V.'s gender transition at school. The District and Susan have filed motions to dismiss Bryan's claims under Federal Rule of Civil Procedure 12(b)(6). [Dkts. 23, 24.] For the following reasons, both motions [Dkts. 23, 24] are granted. Bryan's federal substantive Due Process claim is dismissed for failure to state a claim. Bryan's state law claims are dismissed because Bryan has not stated a viable federal claim to support the Court's exercise of supplemental jurisdiction over his state law claims.² This dismissal is without prejudice. Bryan is given until May 2, 2023 to file an amended complaint, if he believes he can do so consistent with this opinion and Rule 11.³ If no amended pleading is filed by that date, the dismissal will convert to a dismissal with prejudice.

I. Background

The following facts are taken from the governing complaint [Dkt. 1]. All well-pleaded factual allegations are assumed to be true for purposes of Defendants' motions to dismiss. Deb v. SIRVA, Inc., 832 F.3d 800, 808-809 (7th Cir. 2016). Bryan and Susan are the divorced parents of 12-year-old A.V. [Dkt. 1, ¶¶ 2, 4, 34.] They were granted joint parental decision-making authority by court order. [Id. ¶ 3.]⁴ Susan resides in Illinois, and Bryan in Florida. [Id. ¶¶ 5-6.] A.V. attends a middle school in the District in Illinois. [Id. ¶¶ 4, 7.] A.V.'s assigned sex at birth was male. [Id. ¶ 34.] At some point, A.V. expressed to her parents and the District's staff a preference for a feminine name, female pronouns, and wearing make-up, nail polish, and feminine clothing at school. [Id. ¶¶ 35-36.]⁵

Bryan alleges upon information and belief that the District has a policy of allowing its students to "socially transition to a different gender identity at school." [Dkt. 1, ¶ 33.] Under this policy, the District's staff refers to A.V. by her preferred pronouns and name and allows A.V. to wear make-up, nail polish, and feminine clothing. [Id. ¶ 39.] Bryan objects to A.V.'s transition, but Susan approves. [Id. ¶¶ 37-38.]

Bryan brings this lawsuit against both the District and Susan over the policy to affirm A.V.'s gender transition at school without Bryan's consent and over his objection. [Dkt. 1, ¶¶ 38, 40-42.] Bryan alleges that the policy violates his parental rights under both the Fourteenth Amendment to the United States Constitution and the Illinois Constitution [id. ¶ 56], and that the District and Susan conspired to violate his parental rights [id. ¶ 59]. He seeks declaratory relief, damages, and to enjoin the District "from allowing or requiring staff to refer to students by a name or pronouns at odds with their biological sex, while at school, without parental consent[.]" [Id. ¶¶ 56, 61.] Currently before the Court are Defendants' motions to dismiss the complaint for failure to state a claim.

II. Legal Standard

Defendants move to dismiss Plaintiff's complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). "To survive a motion to dismiss under Rule 12(b)(6), plaintiff's complaint must allege facts which, when taken as true, 'plausibly suggest that the plaintiff has a right to relief, raising that possibility above a speculative level.' " Cochran v. Illinois State Toll Highway Auth., 828 F.3d 597, 599 (7th Cir. 2016) (quoting EEOC v. Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th Cir. 2007)). The Court "accept[s] all well-pleaded facts as true and draw all reasonable inferences in plaintiff's favor." Id. at 600 (citing Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008)). The Court reads the complaint and assesses its plausibility as a whole. See Atkins v. City of Chicago, 631 F.3d 823, 832 (7th Cir. 2011).

III. Analysis

Bryan brings suit against the District for allegedly violating his parental rights under the Fourteenth Amendment to the United States Constitution and Article I of the Illinois Constitution. He also brings suit against the District and Susan for allegedly conspiring to violate his federal and state constitutional rights. For purposes of Defendants' motions to dismiss, all of Bryan's claims are contingent on his ability to plead a viable Fourteenth Amendment claim against the District: the conspiracy claims are premised on an underlying constitutional violation, and the state law claims are before the Court based solely on supplemental jurisdiction. See supra n.2.

The Fourteenth Amendment provides that no State shall "deprive any person of life, liberty, or property, without due process of law." U.S. CONST. amend. XIV, § 1. This right "guarantees more than fair process"; it also "includes a substantive component that 'provides heightened protection against government interference with certain fundamental rights and liberty interests.' " Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) (quoting Washington v. Glucksberg, 521 U.S. 702, 719, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997)). The "touchstone of due process . . . is 'protection of the individual against arbitrary government action.' " Remer v. Burlington Area School Dist., 286 F.3d 1007, 1013 (7th Cir. 2002) (quoting Dunn v. Fairfield Community High School Dist. No. 225, 158 F.3d 962 (7th Cir. 1998)).

The Supreme Court "has always been reluctant to expand the concept of substantive due process because guideposts for responsible decisionmaking in this unchartered area are scarce and open-ended." Collins v. City of Harker Heights, Tx., 503 U.S. 115, 125, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992). This is reflected in its "established method of substantive-due-process analysis," which "has two primary features." Glucksberg, 521 U.S. at 720, 117 S.Ct. 2258. First, it recognizes that "the Due Process Clause specially protects 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.' " Id. at 720-21, 117 S.Ct. 2258 (internal quotation marks and citations omitted). Second, it requires "a 'careful description' of the asserted fundamental liberty interest." Id. at 721, 117 S.Ct. 2258; see also Collins, 503 U.S. at 125, 112 S.Ct. 1061 (since the "doctrine of judicial self-restraint requires us to exercise the utmost care whenever we are asked to break new ground in this field," it is "important . . . to focus on the allegations in the complaint to determine how petitioner describes the constitutional right at stake and what the [defendant] allegedly did to deprive her husband of that right"). Thus, for example, when the Glucksberg Court considered a Washington statute prohibiting "aid[ing] another person to attempt suicide," it defined the interest at stake narrowly as "a right to commit suicide which itself includes a right to assistance in doing so"—rather than as "the right to die," "a liberty to choose how to die," or "the liberty to shape death," as the Ninth Circuit had erroneously done. 521 U.S. at 703, 117 S.Ct. 2258.

If the asserted liberty interest truly is "fundamental," then "the Fourteenth Amendment 'forbids the government to infringe . . . at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest.' " Glucksberg, 521 U.S. 702, 721, 117 S.Ct. 2258 (1997) (quoting Reno v. Flores, 507 U.S. 292, 302, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993)) (emphasis in Glucksberg). If the plaintiff fails to establish the threshold requirement that the challenged state action implicates a fundamental right, then only "a reasonable relation to a legitimate state interest to justify the action" is required to pass constitutional muster. Id. at 722, 117 S.Ct. 2258; see also Lukaszczyk v. Cook County, 47 F.4th 587, 599-600 (7th Cir. 2022) ("Under this framework, we consider whether the plaintiffs assert a fundamental right or liberty. If so, we must apply heightened scrutiny. If not, we review the claim for a rational basis."); Hayden ex rel. A.H. v. Greensburg Community School Corp., 743 F.3d 569, 576 (7th Cir. 2014) ("Where a non-fundamental liberty—sometimes described as a 'harmless liberty'—is at stake, the government need only demonstrate that the intrusion upon that liberty is rationally related to a legitimate government interest.") (quoting Swank v. Smart, 898 F.2d 1247, 1251 (7th Cir. 1990)).

Turning to the particular right at issue in this case, the Supreme Court has long recognized a "fundamental right of parents to make decisions concerning the care, custody and control of their children." Troxel, 530 U.S. at 66, 120 S.Ct. 2054. This fundamental right originated in Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923), which struck down a statute prohibiting the teaching of subjects in any school, public or private, in any language other than English, as an arbitrary interference with parents' right to control the...