Appeal and cross-appeal from a judgment of the United States District Court for the Northern District of New York, entered after a memorandum decision and order of Miner, J., awarding nominal damages against the defendant school district and its superintendent pursuant to 42 U.S.C. § 1983 (1982) for denying plaintiff Robert Fay access to his children's education records, see 20 U.S.C. § 1232g(a)(1)(A) (1982), and granting injunctive relief on his pendent state law claim. The court dismissed the constitutional claims, also brought against the school district under section 1983, based on Fay's due process right to control the upbringing of his children and his right to equal protection of the laws. The district court dismissed all of Fay's claims against defendant Ambach.
This is an appeal and cross-appeal from a judgment of the United States District Court for the Northern District of New York, Miner, J. The plaintiffs below were Robert E. Fay (Fay) and his children, Theresa M. Fay and Thomas R. Fay. The defendants were the South Colonie Central School District, its superintendent (hereinafter the district and its superintendent are collectively described as "the school district") and the New York Commissioner of Education. The district court partially granted the plaintiffs' summary judgment motion, holding the school district liable under 42 U.S.C. § 1983 (1982) for denying Robert Fay access to his children's education records, see 20 U.S.C. § 1232g(a)(1)(A) (1982), awarding nominal damages for the denial of access to the records and granting injunctive relief on a pendent state law claim for violation of his rights as a parent with joint legal custody of his children. The court dismissed all of the plaintiff's claims against Commissioner Ambach. It also dismissed Fay's claim under section 1983 that the school district violated Fay's due process right to control the upbringing of his children and his right to equal protection of the laws.
For reasons set out below, we conclude that Fay's claim for compensatory damages is barred neither by res judicata nor by the Eleventh Amendment. We affirm the dismissal of the claims against Commissioner Ambach. We also affirm the dismissal of the constitutional claims against the school district, but do so for different reasons than those relied on by the district court. We affirm the portion of the judgment holding the school district liable for denying Robert Fay access to his children's education records but vacate the award of nominal damages for this violation of Robert Fay's federal statutory rights and remand for further proceedings on the issue of damages. Finally, we hold that the district court abused its discretion when it entertained the pendent state law claim and we dismiss the claim.
This suit involves an attempt to have the federal courts resolve a dispute that could be more appropriately resolved either by the state courts or by mediation.
Under a separation agreement Fay and his ex-wife have joint legal custody of their two children. The children live with Fay during the summer and live with their mother during the school year. The separation agreement further provides that the ex-wife
must . . . consult with [Fay] concerning . . . schooling, relevant to which school [the children] should attend, whether public or private, matters concerning any special education courses which the children may pursue or desire to pursue and further, the [ex-]wife is to provide [Fay] with report cards of the children or photostatic copies thereof . . . .
App. at 179. Fay alleges that his ex-wife has failed to comply fully with this provision.
Dissatisfied with the operation of this aspect of the separation agreement, Fay tried to get information regarding his children's activities and progress directly from the children's schools. In December 1980 Fay sent a letter to the superintendent of the school district demanding such information. Although Fay's original demand was inchoate, it later became clear that he sought information ranging from standardized test results and accident reports to notices about classroom parties and cafeteria menus. Instead of seeking to accommodate any of the demands, the superintendent responded that the school would "provide information to any person or organization whom the courts decide have a legal right to it." App. at 302-A-18.
More letters were exchanged between Fay and the superintendent and in April 1981 the United States Department of Education advised the superintendent of Fay's rights under the Family Education Rights and Privacy Act, 20 U.S.C. § 1232g (1982) (FERPA). Thereafter, the school district began mailing copies of the Fay children's education records to Fay. The school district continued to refuse to mail to Fay duplicates of all school-related notices mailed to his ex-wife or carried home by his children.
In May or June 1981 Fay initiated an appeal of this continuing refusal to the New York Commissioner of Education, Gordon Ambach. See N.Y. Educ. Law § 310 (McKinney 1969 & Supp. 1986). In October 1981 Commissioner Ambach invoked a regulation promulgated under his statutory authority "to regulate the practice" in such appeals, N.Y. Educ. Law § 311, subd. 1 (McKinney 1969), which required appeals to be brought within thirty days of "the performance of the act complained of." N.Y. Admin. Code tit. 8, § 275.16 (1986). The Commissioner dismissed Fay's appeal, asserting that the appeal was brought "long after the prescribed time," App. at 155, and refused to excuse the failure to bring a timely appeal because Fay had failed to explain the reasons for the delay. See N.Y. Admin. Code tit. 8, § 275.16 ("The commissioner . . . may excuse a failure to commence an appeal within the time specified for good cause shown."). The Commissioner also noted that Fay's ex-wife was a necessary party who should have been joined in the appeal.
The Commissioner did not confine his observations to procedural matters, however. He also stated that Fay's request to receive copies of all communications sent by the school to his ex-wife would place "an unreasonable burden" on the school district. App. at 156.
Fay brought an Article 78 proceeding to annul Commissioner Ambach's ruling. See N.Y. Civ. Prac. Law §§ 7801-06 (McKinney 1981 & Supp. 1986). The New York Supreme Court dismissed the proceeding. The court noted in a brief memorandum decision that it could "not substitute its judgment [for that of the Commissioner] unless it is found that the determination reviewed is unlawful, arbitrary, unreasonable or . . . constitutes an abuse of discretion." App. at 161. After citing two New York cases as authority for this standard of review, the court ambiguously concluded: "It is sufficient to here note that the determination of the Commissioner is clearly supported by [a] rational basis." Id. The opinion did not state whether the "rational basis" referred to was the procedural aspect or the substantive aspect of the Commissioner's ruling. In January 1983 the Appellate Division of the New York Supreme Court dismissed Fay's appeal.
In August 1983 Fay brought this action for damages and injunctive relief on behalf of himself and his children. The complaint alleged that the school district, the superintendent (in his official capacity) and Commissioner Ambach violated Fay's statutory rights under FERPA, his constitutional right to control the upbringing of his children and his constitutional right to equal protection of the laws. The complaint was later amended to include a pendent state law claim against the school district for violating Fay's rights as a joint custodial parent. The complaint did not state what legal theory the Fay children relied on.
When discovery was complete the parties filed cross-motions for summary judgment. After receiving briefs and hearing argument on the motions, the district court issued a thorough memorandum decision and order dismissing Fay's constitutional claims and granting partial summary judgment to Fay on the other two claims. The court rejected the defendants' argument that this section 1983 action was barred by res judicata and collateral estoppel, reasoning that there had been no adjudication in a state tribunal on the merits of Fay's claims. The court reasoned that Commissioner Ambach relied solely on procedural grounds to dismiss Fay's claims and that the New York Supreme Court simply reaffirmed that procedural dismissal in the Article 78 proceeding.
Treating Commissioner Ambach's brief discussion of the merits of Fay's administrative appeal as "the equivalent of obiter dicta," App. at 348, the court concluded that the Commissioner's procedural dismissal had not established a substantive state policy on the rights of joint custodial parents to receive school notices. In the absence of such a policy, which the court saw as the sole basis for Fay's claims against the Commissioner, the court dismissed those claims.
Turning to Fay's due process claim, the district court noted that a parent has a fundamental interest in his child's upbringing. See Stanley v. Illinois, 405 U.S. 645, 651, 31 L. Ed. 2d 551, 92 S. Ct. 1208 (1972); Meyer v. Nebraska, 262 U.S. 390, 399-400, 67 L. Ed. 1042, 43 S. Ct. 625 (1923). The court, relying on the representation of the school district's attorney that "there are various things . . . that are available to Dr. Fay any time he wants to walk by and pick them up," App. at 322, found that the school district had not "denied plaintiff the ability to inspect and review any and all documents relating to his children's education." Id. at 351. The district court, therefore, treated the legal question to be decided on summary judgment as whether the school district had a "constitutional duty to mail [all documents] to each parent." Id. (emphasis added). The court held that no such duty exists. Id. The court reasoned that the school district did not deprive Fay of the right to control his children's upbringing, but rather only taxed Fay's "convenience" in exercising that right. Id. at 352-53.
The district court summarized Fay's equal protection claim as being that the school district's policy "'discriminate[s] against men, denying them the same information which is sent to women.'" App. at 350 (quoting Memorandum in Support of Plaintiffs' Motion for Summary Judgment at 18). The district court found no facts in the record to support a finding of discriminatory intent and dismissed the claim.
The school district has argued both here and below that FERPA does not give rise to a private cause of action either by itself or under section 1983. The district court rejected the school district's argument. Although FERPA does not create a separate cause of action, the court held that there is a private cause of action under section 1983 for violation of FERPA. The court found that the school district "tacitly conceded" that it had refused to allow Fay access to his children's education records from May 1980 until April 1981. App. at 354. The court then held that this refusal established liability under section 1983, but awarded only nominal damages, finding that "plaintiff has failed to establish any compensable injury from this eleven-month denial of access." App. at 358.
The district court granted substantial relief on Fay's pendent state law claim that his parental joint custody rights had been violated. Judge Miner noted that "under New York law, joint custody includes 'giving to both parents an equal voice in the children's education, upbringing, and general welfare.'" Id. at 360 (quoting Odette R. v. Douglas R., 91 Misc. 2d 792, 399 N.Y.S.2d 93, 96 (Fam. Ct. 1977)). Rejecting the school district's argument that it was not a party to the separation agreement, Judge Miner reasoned that the school district "should not be permitted to ignore the rights that [the agreement] granted to plaintiff and to choose the parent with whom [the school district wishes] to communicate." Id. Judge Miner analogized this case to Page v. Rotterdam-Mohonasen Central School District, 109 Misc. 2d 1049, 441 N.Y.S.2d 323, 325 (Sup. Ct. 1981), a case where a joint custodial father was held to have the right to see education records regarding his children. Quoting the opinion in Page, which he had authored as a justice of the New York Supreme Court, Judge Miner asserted that school district must make education information available "to both parents of every school child fortunate ...