Bender v. Metropolitan Nashville Board of Public Education
MEMORANDUM OF THE COURT. Signed by District Judge Aleta A. Trauger on 7/18/2013. (xc:Pro se party by regular and certified mail.)(DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(eh)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
ALBERT BENDER and MELANIE BENDER,
METROPOLITAN NASHVILLE BOARD OF
EDUCATION, JESSE REGISTER,
AIMEE WYATT, STEPHEN BALL, and
Case No. 3:13-cv-0470
Plaintiffs Albert Bender and Melanie Bender have filed a pro se complaint, purportedly on their
own behalf and on behalf of their son, Jeffrey Bender (ECF No. 1). Because the plaintiffs have been
permitted to proceed in forma pauperis, the complaint is before the court for an initial review pursuant to
28 U.S.C. § 1915(e)(2). For the reasons set forth herein, the court finds, upon conducting that initial
review, that the complaint is subject to dismissal in its entirety for failure to state a colorable claim over
which this court has jurisdiction.
As an initial matter, the court notes that the plaintiffs state on their in forma pauperis applications,
submitted under penalty of perjury, that their son, Jeffrey Bender, is 18 years old. (See, e.g., ECF No. 4,
at 3.) The plaintiffs nonetheless purport to bring suit on behalf of their son as well as on their own behalf.
(Complaint, ECF No. 1, at ¶ 5.)
The plaintiffs name as defendants the Metropolitan Nashville Board of Education (“School
Board”); Jesse Register, who is School Board Director and Director of Schools for Metropolitan Nashville
Public Schools (“MNPS”); Aimee Wyatt, Executive Lead Principal for Secondary Schools on behalf of
MNPS and the School Board; Stephen Ball, principal of East Nashville Magnet School; and Chelsea
Bennett, the Critical Thinking Teacher at East Nashville Magnet School. Register, Wyatt, Ball and Bennett
are all sued in both their official and individual capacities.
The plaintiffs allege that Jeffrey Bender is (or perhaps was) a student at East Nashville Magnet
School. During the 2011–2012 school year, he was enrolled in the “Critical Thinking” course taught at that
school by defendant Chelsea Bennett. The plaintiffs allege that Jeffrey diligently attended class and
performed all assignments, and had a very high grade in the course. However, at around 5:30 in the
evening on May 23, 2012, one day before the final exam, Bennett sent plaintiff Albert Bender an email
advising him that “quite a few items” were “missing from [Jeffrey’s] portfolio,” including the score-tracking
sheet. The plaintiffs were unable to reach Bennett for clarification of this message because the school
year was ending. They were told to contact Bennett at the beginning of the 2012–2013 school year. The
complaint does not include any factual allegations regarding what effect the missing items or the failure to
communicate with Bennett had on Jeffrey’s grade in the class, but in the “Relief Sought” section of the
complaint, the plaintiffs seek an injunction “removing the ‘D’ Grade from [Jeffrey’s] transcript.” (Complaint
The plaintiffs telephoned Bennett at school on or around August 15, 2012, leaving her a
message. Bennett returned the call, and in her turn left a message that she would speak with Jeffrey to
clarify the matter. However, Bennett never spoke with Jeffrey. Instead, Principal Stephen Ball became
involved in the matter, and the plaintiffs never were able to speak with Bennett either. The plaintiffs
assert, conclusorily, that Ball “has set a pattern of obstructing communication between parents and
teachers” and that “[t]his is a huge, egregious, flagrant violation of MNPS policy.” (Complaint ¶ 17
(emphasis in original).)
Defendant Ball closed the matter. The plaintiffs appealed to Aimee Wyatt in her role as executive
lead principal, but Wyatt “rubber stamped” Principal Ball’s decision. (Complaint ¶¶ 13, 18.) The plaintiffs
do not actually state what that decision was or how it affected them or their son, other than to indicate, as
stated above, that their son received a D grade in Bennett’s class. They assert that the decision rejecting
their appeal, and leaving in place the unacceptable grade, placed at risk of imminent injury their son’s
“right . . . to attend the university of his choice.” (Complaint ¶ 12.) The plaintiffs contend that Bennett, and
presumably Ball, by cutting off any communication between Bennett and the plaintiffs, as parents of
Jeffrey, violated MNPS Policy of Parental Involvement–IM 4.102 and the Parental/Family Involvement
Policy of East Nashville Magnet School. MNPS and East Nashville Magnet School both apparently have a
policy of ensuring “meaningful, two-way on-going communication” between parents and teachers. (Id.)
The plaintiffs invoke the court’s federal-question jurisdiction under 28 U.S.C. § 1331, insofar as
they purport to assert a violation of their rights under the Equal Protection and Due Process Clauses of
the United States Constitution, redressable under 42 U.S.C. § 1983. They also assert that the court has
supplemental jurisdiction over any state law claims arising from a common nucleus of operative facts that
support their federal claims.
STANDARD OF REVIEW
Under 28 U.S.C. § 1915(e)(2)(B), the court must dismiss any portion of a civil complaint filed in
forma pauperis that fails to state a claim upon which relief can be granted, is frivolous, or seeks monetary
relief from a defendant who is immune from such relief. The Sixth Circuit has confirmed that the dismissal
standard articulated by the Supreme Court in Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Bell Atlantic
Corp. v. Twombly, 550 U.S. 544 (2007), “governs dismissals for failure to state a claim under th[is]
statute because the relevant statutory language tracks the language in Rule 12(b)(6).” Hill v. Lappin, 630
F.3d 468, 470–71 (6th Cir. 2010). Thus, to survive scrutiny on initial review, “a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Iqbal,
556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). “[A] district court must (1) view the
complaint in the light most favorable to the plaintiff and (2) take all well-pleaded factual allegations as
true.” Tackett v. M & G Polymers, USA, LLC, 561F.3d 478, 488 (6th Cir. 2009) (citing Gunasekera v.
Irwin, 551 F.3d 461, 466 (6th Cir. 2009) (citations omitted)).
Although pro se pleadings are to be held to a less stringent standard than formal pleadings
drafted by lawyers, Haines v. Kerner, 404 U.S. 519, 520–21 (1972); Jourdan v. Jabe, 951 F.2d 108, 110
(6th Cir. 1991), the courts’ “duty to be ‘less stringent’ with pro se complaints does not require us to
conjure up [unpleaded] allegations.” McDonald v. Hall, 610 F.2d 16, 19 (1st Cir. 1979) (citation omitted).
Claims on Behalf of Third Party
Under Rule 17(c) of the Federal Rules of Civil Procedure, a parent or guardian may bring suit on
behalf of his or her minor child. In this case, however, the plaintiffs make it clear in their applications to
proceed in forma pauperis that their child is not a minor. (See ECF No. 4, at 3.) He is 18 years old and,
under Tennessee law, competent to bring suit on his own behalf. Tenn. Code Ann. § 1-3-113(a).
Accordingly, his parents do not have standing under either 28 U.S.C. § 1654 or Rule 17(c) to bring suit on
Moreover, even if Jeffrey Bender were still a minor, his parents would not have the ability to bring
suit on his behalf without retaining an attorney. “While a litigant has the right to act as his or her own
counsel, see 28 U.S.C. § 1654, a non-attorney parent is not permitted to represent the interests of his or
her minor child.” Lawson v. Edwardsburg Pub. Sch., 751 F. Supp. 1257, 1258 (W.D. Mich. 1990).
“[P]arents cannot appear pro se on behalf of their minor children because a minor’s personal cause of
action is her own and does not belong to her parent or representative.” Shepherd v. Wellman, 313 F.3d
963, 970 (6th Cir. 2002) (citing Cheung v. Youth Orchestra Found. of Buffalo, Inc., 906 F.2d 59, 61 (2d
Albert and Melanie Bender, who are not attorneys, cannot bring this action on behalf of their son
Jeffrey, regardless of whether he is a minor. All claims purporting to be brought on behalf of Jeffrey
Bender will therefore be dismissed without prejudice to Jeffrey’s ability to assert on his own behalf any
viable claims he might have.
The Benders’ Claims under § 1983
The plaintiffs also bring claims on their own behalf under 42 U.S.C. § 1983. Section 1983
provides that “[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of
any State, . . . subjects, or causes to be subjected, any citizen . . . to the deprivation of any rights
privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an
action at law.” 42 U.S.C. § 1983. Thus, “in any § 1983 action, the initial inquiry must focus on whether the
two essential elements to a § 1983 action are present: (1) whether the conduct complained of was
committed by a person acting under color of state law; and (2) whether this conduct deprived a person of
rights, privileges, or immunities secured by the Constitution or laws of the United States.” Parratt v.
Taylor, 451 U.S. 527, 535 (1981), overruled in part on other grounds, Daniels v. Williams, 474 U.S. 327
State law is used to determine the age of majority. Fed. R. Civ. P. 17(b); Maroni v. Pemi-Baker
Reg’l Sch. Dist., 346 F.3d 247, 248 n.2 (1st Cir. 2003).
(1986); see also McQueen v. Beecher Cmty. Sch., 433 F.3d 460, 463 (6th Cir. 2006). “For liability to
attach, both questions must be answered in the affirmative.” Doe v. Claiborne Cnty., 103 F.3d 495, 506
(6th Cir. 1996).
In “Count I” of the complaint, the plaintiffs allege that the defendants “obstruct[ed] the Plaintiffs’
legally protected interest in having their student pursue further learning at an educational institution of his
choice,” and that “Defendant Ball violated Due Process by obstructing the Plaintiffs from having a meeting
with Defendant teacher Woods [sic ].” (ECF No. 1, at 5.) In “Count II,” the plaintiffs state that the
defendants violated the Fourteenth Amendment by violating MNPS policy of ensuring “meaningful twoway on-going (sic) communication between teachers and parents. . . .” (Id.) The court construes this
language as attempting to state claims based on violations of the plaintiffs’ due-process rights, and
possibly of their equal protection rights as well.
Substantive Due Process Claim
The Sixth Circuit “has analyzed section 1983 actions based on deprivations of due process as
falling into two categories: violations of procedural due process and violations of substantive due
process.” Midkiff v. Adams Cnty. Reg’l Water Dist., 409 F.3d 758, 762 (6th Cir. 2005) (quoting Mansfield
Apartment Owners Ass’n v. City of Mansfield, 988 F.2d 1469, 1473–74 (6th Cir. 1993)). “The substantive
component of the Due Process Clause protects ‘fundamental rights’ that are so ‘implicit in the concept of
ordered liberty’ that ‘neither liberty nor justice would exist if they were sacrificed.’” Doe v. Mich. Dep’t of
State Police, 490 F.3d 491, 500 (6th Cir. 2007) (quoting Palko v. Connecticut, 302 U.S. 319, 325 (1937)).
Substantive due process has been defined in the Sixth Circuit as “the doctrine that governmental
deprivations of life, liberty, or property are subject to limitations regardless of the adequacy of the
procedures employed.” Pearson v. City of Grand Blanc, 961 F.2d 1211, 1216 (6th Cir. 1992) (citations
The law is clear that parents have a “‘fundamental right . . . to make decisions concerning the
care, custody and control of their children.’” Blau v. Fort Thomas Pub. Sch. Dist., 401 F.3d 381, 395 (6th
Cir. 2005) (quoting Troxel v. Granville, 530 U.S. 57, 66 (2000)). However, it is equally well established
There is no defendant named Woods. The court presumes that the plaintiffs intended to refer to
the defendant teacher Bennett.
that “[t]he right to attend a public school is a state-created, rather than a fundamental, right for the
purposes of substantive due process.” C.B. v. Driscoll, 82 F.3d 383, 387 (11th Cir. 1996) (citing Plyler v.
Doe, 457 U.S. 202, 221 (1982)); see also San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 35
(1973) (holding that education is not protected under the Fourteenth Amendment as a fundamental right).
The plaintiffs appear to be alleging a substantive due process violation insofar as they claim a
violation of their “legally protected interest in having their student pursue further learning at an educational
institution of his choice.” (ECF No. 1, at 5.) Aside from the plaintiffs’ lack of standing to assert claims on
behalf of their son, because even an elementary education is not a fundamental right, the parents clearly
do not have a fundamental interest in assuring that their son attends the college of his choice.
The plaintiff’s also appear to be asserting a substantive due process violation arising from the
school officials’ acts to prevent the parents from having a meeting with defendant Bennett to discuss the
grade their son received in her class. Although the parents do have a fundamental right to direct the
education of their child, that right is not without limits, Blau, 401 F.3d at 395. As the Sixth Circuit has
The critical point is this: While parents may have a fundamental right to decide whether to
send their child to a public school, they do not have a fundamental right generally to
direct how a public school teaches their child. Whether it is the school curriculum, the
hours of the school day, school discipline, the timing and content of examinations, the
individuals hired to teach at the school, the extracurricular activities offered at the school
or . . . a dress code, these issues of public education are generally “committed to the
control of state and local authorities.”
Id. at 395–96 (quoting Goss v. Lopez, 419 U.S. 565, 578 (1975); see also Leebaert v. Harrington, 332
F.3d 134, 142 (2d Cir.2003) (noting that the fundamental right to control the upbringing and education of
one’s child does not include “the right to tell public schools what to teach or what not to teach him or her”);
Swanson v. Guthrie Indep. Sch. Dist., 135 F.3d 694, 699 (10th Cir. 1998) (parents do not have a
fundamental right to send their child to school part-time only and pick and choose the classes she takes);
Herndon v. Chapel Hill–Carrboro City Bd. of Educ., 89 F.3d 174, 176 (4th Cir. 1996) (requirement that
high school students perform community service in order to graduate does not violate parents' right to
control education of their children); Brown v. Hot, Sexy and Safer Prods., Inc., 68 F.3d 525, 533 (1st Cir.
1995) (parents’ fundamental right to control a child's education does not include the right to control
curriculum at their child's public school).
Based on this precedent, the court concludes that parents have no fundamental rights
whatsoever concerning their child’s grades, and specifically no fundamental right to be involved in the
process of determining what grade a child should receive in a particular class. See Epperson v. Arkansas,
393 U.S. 97, 104 (1968) (“Courts do not and cannot intervene in the resolution of conflicts which arise in
the daily operation of school systems and which do not directly and sharply implicate basic constitutional
values.”); Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 507 (1969) (noting the Court had
“repeatedly emphasized the need for affirming the comprehensive authority of the States and of school
officials, consistent with fundamental constitutional safeguards, to prescribe and control conduct in the
schools”). As another district court has had occasion to remark:
Is there a student who has not at some point in her academic career felt (beginning as
early as the first grade) that a grading system was unfair or that a particular teacher had
applied the system in an unfair manner? Especially in that instance where the student
has received a grade she considers to be lower than that deserved?
Heenan v. Rhodes, 757 F. Supp. 2d 1229, 1241 (M.D. Ala. 2010). The fact that the plaintiffs believe the
grade their child received was unfair and unwarranted does not turn their claim into a federal
constitutional violation. In short, the parents have no fundamental interest in the grade their child receives
in a class, and no fundamental right under the United States Constitution to confer with the teacher about
that grade. The plaintiffs’ complaint therefore fails to state a substantive-due process claim.
Procedural Due Process Claim
The plaintiffs also allege that the defendants violated the Fourteenth Amendment by failing to
adhere to MNPS policy of ensuring “meaningful two-way on-going (sic) communication between teachers
and parents. . . .” (ECF No. 1, at 5; see id. at 4–5 (“Defendant Ball has set a pattern of obstructing
communication between parents and teachers. This is a huge, egregious, flagrant violation of MNPS
policy.”).) The court understands this claim as asserting a procedural due-process violation. To
demonstrate a claim for a violation of procedural, as opposed to substantive, due process, a plaintiff must
establish a constitutionally protected property or liberty interest of which they were deprived without
appropriate process. Midkiff, 409 F.3d at 762 (citing Bd. of Regents v. Roth, 408 U.S. 564, 569–70
(1972); LRL Props. v. Portage Metro Hous. Auth., 55 F.3d 1097, 1108 (6th Cir. 1995)).
Here, the plaintiffs complain that school officials violated school policy. To be clear, the plaintiffs
do not allege that they were unable to contest the grade given to their child and to appeal the decision
through the procedure established by the school board, nor do they complaint that no meaningful
appellate procedure was available. Rather, they indicate that they are dissatisfied with the way the initial
decision to award the grade was handled and with the ultimate outcome of their appeal. However, the
mere failure of a local entity to comply with its own procedures does not inevitably give rise to a federal
due-process claim.1 While meaningful communication between parents and teachers may be a laudable
policy as a general matter, it is not required by the Due Process Clause of the United States Constitution.
The court therefore finds that the plaintiffs have failed to establish the existence of a constitutionally
protected interest for purposes of stating a procedural due-process claim.
The plaintiffs state that their claims arise under the Equal Protection Clause of the Fourteenth
Amendment (see ECF No. 1, at 2), but the complaint does not include factual allegations that would
support an equal-protection claim.
The Equal Protection Clause commands that no State shall “deny to any person within its
jurisdiction the equal protection of the laws.” U.S. Const. Amend. XIV, § 1. It is “essentially a direction that
all persons similarly situated should be treated alike.” City of Cleburne v. Cleburne Living Ctr., 473 U.S.
432, 439 (1985). “To state a claim under the Equal Protection Clause, a § 1983 plaintiff must allege that a
state actor intentionally discriminated against the plaintiff because of membership in a protected class.”
LRL Properties v. Portage Metro Hous. Auth., 55 F.3d 1097, 1111 (6th Cir. 1995). The plaintiffs here do
not allege membership in a protected class; even if they had, they also do not make the requisite showing
of disparate treatment. See Scarbrough v. Morgan Cnty. Bd. of Educ., 470 F.3d 250, 260 (6th Cir. 2006)
(“The threshold element of an equal protection claim is disparate treatment. . . .”).
Accordingly, the court finds that the complaint fails to state a claim for violation of the plaintiffs’
rights under the Equal Protection Clause.
For the reasons set forth herein, the claims brought on behalf of Jeffrey Bender will be dismissed
Of course, a due process claim may arise from violation of local procedure where the procedure
is itself required by due process. See, e.g., United States v. James Daniel Good Real Prop., 510 U.S. 43,
62 (1993) (requiring a locality to “afford notice and a meaningful opportunity to be heard before seizing
real property subject to civil forfeiture”). That is not the case here.
without prejudice on the basis that plaintiffs Albert and Melanie Bender do not have standing to bring
claims on behalf of their adult son. In addition, the plaintiffs’ claims asserted on their own behalf are
subject to dismissal for failure to state a claim under 42 U.S.C. § 1983 for which relief may be granted. To
the extent the complaint might be construed as stating claims under state law, the court will decline to
exercise supplemental jurisdiction over such state law claims. See 28 U.S.C. § 1367(c)(3) (district court
may decline to exercise supplemental jurisdiction when claims giving rise to original jurisdiction have
An appropriate order is filed herewith, dismissing this case in its entirety.
Aleta A. Trauger
United States District Judge