Kampfer v. Gokey, 955 F.

Kampfer v. Gokey, 955 F. Supp. 167 (N.D.N.Y. 1997).

Plaintiff parents' daughter was absent from school on October 30, 1995. When she returned to school, the school nurse checked the student and found evidence of nits. State law requires that children found with nits or head lice be sent home from school. However, plaintiffs came to school and asked that the student be allowed to stay for the school's Halloween party, and the school official allowed her to do so. When she returned to school on November 1, the teacher tried to send the student to the nurse to be rechecked for nits, but the student refused to go to the nurse. Plaintiff father refused to allow the school nurse to inspect the student, instead demanding that the inspection be done by the school physician. The school refused to allow the school physician to examine the student, and sent her home from school. Plaintiffs filed an action under 42 U.S.C.S. § 1983, alleging that defendant school officials violated the plaintiffs' rights under the Fourteenth Amendment to educate their child in the school of their choice. They also alleged that defendants refused to authorize the school doctor to inspect the student, which would have allowed the student to return to school. The plaintiffs also filed a motion for recusal, pursuant to 28 U.S.C.S. § 455, claiming that the judge could not render decisions in the case without bias because the plaintiffs had filed a judicial conduct complaint and a lawsuit against the presiding judge.

Issues: Should the judge have recused himself? Were defendants entitled to dismissal pursuant to Fed. R. Civ. P. 12(h), on the grounds that the Court lacked subject matter jurisdiction due to plaintiff's failure to make a valid federal claim? Did the defendants fail to comply with New York education law regarding the inspection of the student after she was diagnosed with nits? Do the plaintiffs have standing to bring the case? Are the plaintiffs entitled to summary judgment?

Reasoning: Under 28 U.S.C.S. § 455(a), a federal judge must recuse himself "in any proceeding in which his impartiality might reasonably be questioned. The Court must consider whether, "a reasonable person, knowing all the facts, [would] conclude that the trial judge's impartiality could reasonably be questioned." United States v. Lovaglia, 954 F.2d 811, 815 (2d Cir.1992). Under Fed. R. Civ. P. 12(h)(3), when the court lacks subject matter jurisdiction, the court shall dismiss the action. To show a lack of subject matter jurisdiction, a claim must be "so insubstantial, implausible, or otherwise completely devoid of merit as not to involve a federal controversy." IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1056 (2d Cir. 1993). The court held that "Parents' right to educational choice for their children is triggered by substantial denials of educational choice…not by state health and welfare concerns over who is responsible for checking children for contagious diseases." Kampfer v. Gokey, 955 F. Supp. 167, 171 (N.D.N.Y. 1997).