C.N. v. Ridgewood Board of Education ( 2005 )

Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
12-1-2005
C.N. v. Ridgewood Bd of Ed
Precedential or Non-Precedential: Precedential
Docket No. 04-2849
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PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 04-2849
C. N., Individually and as
Guardian Ad Litem of J.N., a Minor;
L. M., Individually and as
Guardian Ad Litem of V.M., a Minor;
M. E., Individually and as
Guardian Ad Litem of J.E., a Minor,
Appellants
v.
RIDGEWOOD BOARD OF EDUCATION;
FREDERICK J. STOKLEY; JOYCE SNIDER;
RONALD VERDICCHIO; ROBERT WEAKLEY;
JOHN MUCCIOLO; ANTHONY BENCIVENGA;
SHEILA BROGAN
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 00-cv-01072)
District Judge: Honorable Jose L. Linares
Argued April 1, 2005
Before: ALITO, SMITH and FISHER, Circuit Judges.
(Filed December 1, 2005)
F. Michael Daily, Jr. (Argued)
216 Haddon Avenue
Sentry Office Plaza, Suite 100
Westmont, NJ 08108
Attorney for Appellants
David B. Rubin (Argued)
44 Bridge Street
P.O. Box 4579
Metuchen, NJ 08840
Attorney for Appellees
Andrew L. Schlafly
521 Fifth Avenue, 17th Floor
New York, NY 10175
Attorney for Amicus-Appellant,
Eagle Forum Education
& Legal Defense Fund
Cynthia J. Jahn
New Jersey School Board Association
315 West State Street
P.O. Box 909
Trenton, NJ 08605
Attorney for Amicus-Appellee,
New Jersey School Board
Association
2
Julie Underwood
National School Boards Association
1680 Duke Street
Alexandria, VA 22314
Attorney for Amicus-Appellee,
National School Boards Association
OPINION OF THE COURT
FISHER, Circuit Judge.
In the fall of the 1999 school year, school officials in the
Ridgewood public school district in New Jersey administered a
survey entitled “Profiles of Student Life: Attitudes and Behaviors”
to students in the 7th through 12th grades. The survey sought
information about students’ drug and alcohol use, sexual activity,
experience of physical violence, attempts at suicide, personal
associations and relationships (including the parental relationship),
and views on matters of public interest. The survey itself was
designed to be voluntary and anonymous. Survey results were
designed to be and actually were released only in the aggregate with
no identifying information.
Three students and their mothers (“Plaintiffs”) brought this
action against the Ridgewood Board of Education (“Board”) and
several individually named school administrators (collectively
“School Defendants”). Plaintiffs claimed that the survey had been
administered so as to be involuntary and non-anonymous and had
thus violated their rights under the Family Educational Records
Privacy Act (FERPA), 20 U.S.C. § 1232g, the Protection of Pupil
3
Rights Amendment (PPRA), 20 U.S.C. § 1232h, and the United
States Constitution. Prior to any discovery, the United States District
Court for the District of New Jersey denied Plaintiffs’ motion to
enjoin release of the survey results and granted summary judgment to
the School Defendants on the merits of the statutory and
constitutional claims. C.N. v. Ridgewood Bd. of Educ., 146 F. Supp.
2d 528 (D.N.J. 2001). On appeal, this Court reversed in part and
remanded for further proceedings. 281 F.3d 219 (3d Cir. 2001)
(unpublished). Following discovery and voluntary dismissal of the
statutory claims, the District Court granted the School Defendants’
motion for summary judgment on the remaining constitutional claims.
319 F. Supp. 2d 483 (D.N.J. 2004). We will affirm.
I.
A. The Parties
Plaintiffs are Carol Nunn, individually and as guardian ad
litem of Jennifer Nunn (surveyed as a 15 year old, high school
freshman); Mary Epiphan, individually and as guardian ad litem of
Jean Epiphan (surveyed as a 17 year old, high school senior) and
L.M., individually and as guardian ad litem of V.M. (surveyed as a 12
year old, middle school 7th grader). We will refer to the student
Plaintiffs as “Freshman Plaintiff,” “Senior Plaintiff” and “Middle
School Plaintiff” and to their guardians collectively as “Plaintiff
Parents.” School Defendants, with all titles identified as of the date
the survey was administered, are the Board, Frederick J. Stokley
(Superintendent of the Ridgewood Schools), Joyce Snider (Assistant
Superintendent of the Ridgewood Schools), Dr. Ronald Verdicchio
(Executive Director of the Ridgewood Community School, and
4
“Executive Director of Community Education”),1 Robert Weakley
(Director of Human Resources), John Mucciolo (Principal of the
Ridgewood High School), Anthony Bencivenga (Principal of the
Benjamin Franklin Middle School), and Sheila Brogan (President of
the Board).2
B. The Facts
In this section, we draw extensively on and frequently quote
the District Court’s concise statement of the facts. See 319 F.
Supp. 2d at 486-87. However, because we are addressing an appeal
from summary judgment, we will also include in this recitation of the
facts additional evidence and any inferences from the totality of the
evidence that we conclude ultimately support the Plaintiffs as the
non-moving party.
1
Defendant Dr. Verdicchio’s titles and role merit further
explanation. The Ridgewood Community School, of which Dr.
Verdicchio was the Executive Director, was part of the Ridgewood
school system and offered primarily adult education, child care, and
professional development activities. Superintendent Stokley was Dr.
Verdicchio’s direct supervisor. One of Dr. Verdicchio’s duties was
to represent the School District at community meetings on behalf of
the Superintendent. He was also involved in preparing grant
applications for federal funding.
2
Our review of the record reveals no evidence to connect
Defendants Snider or Weakley in any meaningful way to the
underlying events.
5
1. Choosing the survey and alerting the community
In 1998, the Human Resources Coordinating Council
(“HRCC”) of the Village of Ridgewood, an organization comprised
of public and private social service agencies, assembled a group of
community members to assess the needs of local youth. The group
concluded that it was important to survey Ridgewood’s student
population to better understand their needs, attitudes and behavior
patterns in order to use the town’s programs and resources more
effectively. To obtain this information, the group selected a survey
designed by Search Institute of Minneapolis, Minnesota.3 Throughout
1999, representatives of the HRCC met with public bodies and citizen
groups to publicize the survey and elicit public comments. The
HRCC formed a team comprised of thirty representatives from
various sectors of the community, including a student from
Ridgewood High School (herein “Community Vision Team”), to
oversee the project. The record suggests that Superintendent Stokley,
Dr. Verdiccho, Board President Brogan and High School Principal
Mucciolo served on the Community Vision Team, although their role
in that capacity is unclear. Also unclear is exactly how the
3
It is not entirely clear how this particular survey was chosen.
Board President Brogan recalled that some HRCC members had
attended an outside training session where the concept of “asset
building” had been discussed. The concept of “asset building” is said
to be the basis for the questions contained in the survey. See Brief of
School Defendants at 3 (“[t]he survey ... was intended to measure the
strength of 40 ‘assets,’ i.e., attributes and experiences known to
promote a healthy and wholesome adolescence.”). An HRCC
member representing the local YMCA subsequently brought
information about Search Institute to the HHRC. Both Dr.
Verdicchio and Board President Brogan recalled some type of
presentation regarding “asset building” later made to the HRCC.
6
Ridgewood schools became the venue for the survey beyond the
obvious fact that youth attend schools. Dr. Verdicchio testified
during deposition that “the reason ... was ... because that’s where the
students are. So it was not a school project. It was a community
project where the students responded in a school setting.” A. 436
(Dep. Verdicchio). Dr. Verdicchio, who was described by Board
President Brogan as the liaison between the Community Vision Team
and district officials, recommended to Superintendent Stokley that the
youth be surveyed in the schools. No formal vote appears to have
been taken by the Board to authorize administration of the survey; yet
the Board, as evidenced by purchase orders in the record, eventually
purchased the survey from Search Institute with funds provided to the
district by the federal government under a program known as “Goals
2000.”
In a letter dated May 19, 1999, Superintendent Stokley
notified all parents of students in the district that a survey would be
administered to students ages 12-19 in the fall of the upcoming 1999-
2000 school year. The letter was sent in the wake of the Columbine,
Colorado school tragedy that occurred a month before, and in it,
Superintendent Stokley ruminated on the violence facing today’s
youth, listed available district resources, and in the penultimate
paragraph, explained:
One year ago, the Human Resources Coordinating
Council of Ridgewood, an organization that represents
public and nonprofit agencies serving children and
families, developed an initiative to make Ridgewood
a more supportive and nurturing community for young
people. Last September, seventy representatives from
community agencies and organizations, Village
government officials, educators, School Board
members, and parents came together to begin the
7
process of assessing the needs and interests of our
young people. The [HRCC] and a coalition of twenty
Ridgewood organizations are making plans to survey
our village youth, ages 12-19 in September [1999].
The results of the survey will be reported at a
community meeting in December at the Ridgewood
Public Library.
A. 642.
Around the same time, members of the Federated Home and
School Association, a group composed of the presidents of the nine
Ridgewood parent-teacher associations (“PTA”), held several
meetings at which the survey was discussed. Superintendent Stokley
and Board President Brogan, as representatives of the school
administration, attended these meetings. The record shows that after
one of those meetings, the President of the PTA advised Dr.
Verdicchio by letter dated May 21, 1999 that its members had
expressed “[s]everal serious reservations and concerns” about “giving
the survey to the students” because “[t]he explicit content regarding
drugs usage, sexual activity, alcohol abuse and suicide ... seemed to
suggest such activity was within normal adolescent experience.”4 In
June 1999, Dr. Verdicchio presented an overview of the survey to the
PTA and told its members that the individual parents’ rights to refuse
the administration of the survey to their children would be respected.
Although denied by the School Defendants, Freshman Plaintiff’s
guardian, Carol Nunn, testified during deposition that Superintendent
4
Also in the record is an e-mail dated May 25, 1999, from
Superintendent Stokley to the district’s physician (whose opinion on
the survey Stokley had earlier solicited), ruminating that he (Stokley)
was “frankly ... stunned by the reaction of the parents in this ‘post-
Columbine’ period.” A. 457(c).
8
Stokley and Board President Brogan promised at that meeting that
written consent forms would be required. On June 28, 1999, after a
meeting of the PTA, Board President Brogan sent an e-mail to Dr.
Verdicchio stating that the “process of allowing children to opt out of
participating in the survey must be part of the parental information.”
The PTA eventually passed a motion in support of administering the
survey.
Search Institute shipped the surveys to the district in August
1999, along with a manual and cover memorandum requesting that
the manual be reviewed and copies be distributed to every person
involved in administering the survey. The manual emphasized that
the survey required “a standardized administration format” in order
to be effective. The manual also provided student instructions to be
read verbatim by survey administrators, one of which provided:
“[T]he survey is voluntary. This means you do not have to take it and
it is not a test that you take for school grades. Second, the survey is
filled out anonymously. No one will know which survey booklet is
yours .... Please do not put your name on the survey.” (emphasis in
the original).
On September 1, 1999, Superintendent Stokley sent another
letter to parents, which provided in full:
Dear Parent:
In late September, Village youth will be asked
to complete a survey, Profiles of Student Life,
Attitudes and Behaviors, developed by the Search
Institute in Minneapolis, Minnesota. The voluntary
and anonymous survey will be made available to
9
young people in grades 7-12.[5] The survey is the first
phase of a community initiative, Healthy
Communities – Healthy Youth.
The questions in the survey ask young people
about attitudes and behaviors relating to themselves,
their school, and their community. While many
questions ask about community involvement and
school, some survey items seek information about at-
risk behaviors such as substance abuse, sexuality,
stress and depression. Prior to the administration of
the survey, a copy will be available for parental
review in the main office at the middle schools and
the high school. The results of the survey will be
reported at a Town Meeting on December 1, 1999, at
the Ridgewood Public Library.
The information from the survey will be used
to identify the strengths and needs required to support
youth and families in the Village of Ridgewood. The
survey results will provide information to more
effectively identify existing community assets and
resources available to assist our youth to grow in a
healthy, caring, and responsible way.
5
At some point during the process, a decision was made not
to survey the 6th grade students at the middle schools. See A. 519
(Dep. Middle School Principal Bencivenga) (“after conversation,
consensus was reached that seventh and eighth grade was the most
appropriate ... I don’t know exactly who made the final decision”);
see also A. 476 (Dep. Board President Brogan) (suggesting this
decision was likely made after consultation between Superintendent
Stokley, Dr. Verdicchio and the building principals).
10
Attached is additional information about the
Healthy Communities – Healthy Youth initiative
[attached were a list of the 40 developmental assets
and notice of a meeting where the assets would be
discussed]. Further information can be obtained by
contacting [named school representative] at
[telephone number] or through e-mail at [e-mail
address].
Sincerely,
/s/Frederick J. Stokley
Superintendent of Schools
A. 637 (emphasis in original). This letter was drafted by Dr.
Verdicchio but he and Superintendent Stokley decided it should issue
directly from the Superintendent. Approximately 15-20 parents came
to review the survey in the wake of the letter.
2. Preparing to administer the survey
On October 4, 1999, Dr. Verdicchio sent a letter to the
principals of the buildings in which the survey would be
administered,6 in which he included draft directions for
administration of the survey to be provided to staff. This letter told
the principals that they should “[p]lease feel free (I know you will) to
edit the directions as you choose.” The included instructions
provided, in pertinent part:
6
The survey was actually administered at three buildings – the
Ridgewood High School, the Benjamin Franklin Middle School and
the George Washington Middle School – however, this action
included no parties specific to the latter.
11
Directions for Teachers: (1) Students should be
informed that the survey is anonymous and voluntary.
If a student elects not to complete the survey, he/she
should hand in the blank copy. If a person chooses to
not answer a question, he/she should be instructed to
leave the item blank. Students who choose not to take
the survey should read or work quietly while others
are completing the survey. (2) Please indicate that the
purpose of the survey is to assist the Ridgewood
Community, of which the schools are part, to better
understand the needs of young people in Ridgewood
and how their community supports and assists them.
Please indicate that their opinions are valued and they
will be invited to a community meeting where the
summary results will be reported and they will be part
of a discussion with community leaders.
A. 636 (emphasis added).
As preparations for the survey continued, High School
Principal Mucciolo had numerous discussions with students, parents
and teachers at the High School about the upcoming event.
Specifically, he met pre-survey with the three “grade administrators”
chosen to administer the survey for the purpose of directing them how
to instruct the students.7 Although Mucciolo could not recall the
exact instructions he provided, he did recall telling the grade
administrators to inform students that the survey was voluntary, and
also that “it was important that it was anonymous, and ... that kids
underst[a]nd it is not a test, and they didn’t have to take it.” A. 505
7
“Grade administrators” as opposed to teachers were
apparently used in an effort to promote anonymity and uniformity in
instruction.
12
(Dep. Mucciolo). One grade administrator recalled a meeting where
it was discussed how best to get the students to take the survey
seriously. It was apparently decided to give the survey in the
gymnasium according to when a student had either physical education
or health class (i.e., mandatory classes which would ensure that all
students took the survey). This grade administrator did not recall
being specifically told not to examine the completed surveys, but
assumed that was the case. Another individual who was an
instructional aide at the High School submitted a declaration relaying
how, prior to administration, she had asked a health teacher if
students had to take the survey and was told that they did. A few days
before administration, a memorandum from High School Principal
Mucciolo was distributed to health, physical education and driver
education teachers, instructing, inter alia: “If students ask what this
survey is about, you should say ‘This survey offers you an
opportunity to express your views about your experience in the
Ridgewood Community – especially your experiences in non-school
activities.’” A. 563.
Middle School Principal Bencivenga instructed his staff
regarding the survey on several occasions in individual, group and
faculty conferences. Specifically, he testified during deposition that
he met with staff at a faculty meeting and told them the survey would
be administered anonymously, confidentially and voluntarily. He also
had meetings with the homeroom teachers who were to administer the
survey, as well as individual conversations with them prior to
administration; he testified in that regard:
A: I just made it clear to them when they received
the survey, when they were to administer it, it
was to be anonymous, confidential and
voluntary ... I had individual conferences,
small group conferences and a faculty
13
meeting. ... I spoke with every teacher that
administered the [survey].
...
Q: [W]hat did you specifically tell each teacher?
A: That the survey was to be administered
anonymously, confidentially and voluntarily.
...
Q: Did you say to the teachers that they were to
tell the students that it was voluntary?
A: I don’t recall if I used those words exactly, but
it was clear from my point of view that they
were to administer it voluntarily. Whatever
word I used, I don’t recall, but it was clear that
my direction was that this was to be a
voluntary survey.
A. 521-22 (Dep. Bencivenga). Mr. Grasso, one of numerous teachers
who administered the survey at the Middle School, recalled a meeting
with Principal Bencivenga sometime before survey day where
homeroom teachers were told to pick up the surveys on the morning
of survey day at the main office, and to distribute, collect and return
them to the main office that same day. He recalled no instructions as
to how specifically to administer the survey. Board President Brogan
also reiterated the assertion that the survey was always intended to be
voluntary and testified that there was never any discussion about
requiring students to take it.
14
3. Administering the survey
The survey was administered to students at the Benjamin
Franklin Middle School on October 13, 1999, and to students at the
Ridgewood High School on November 2, 1999. There is some
disagreement as to what precisely occurred during administration at
both buildings. Middle School Plaintiff testified that her homeroom
teacher, Mr. Grasso, told students they were required to take the
survey and to place their names on the survey booklets. She also
testified that the booklets themselves had attached to them a sticker
asking for name, grade and student identification number and that she
put her name on the booklet. Mr. Grasso admitted at deposition that
although his recollection of the day’s events was not clear, he may
have failed to tell his students that the survey was not required. He
also could not rule out the possibility that the survey booklets had the
stickers (routinely used for standardized testing) attached to them,
although he explained why he believed they did not. Middle School
Plaintiff also testified that Mr. Grasso collected the completed
surveys in her homeroom and placed them in a box, and that she did
not observe him examine any of the completed booklets.
Senior Plaintiff who took the survey at the High School said
students were told that the survey was anonymous and that her
teacher in particular told the class the survey was voluntary and not
to put names on it. However, both Senior Plaintiff and Freshman
Plaintiff recounted that they heard a loudspeaker announcement
which they interpreted to warn that students would receive a “cut” if
they did not participate in the survey. A. 577 (Dep. Freshman
Plaintiff) (recounting that after students were seated in the gym in
preparation for administration of the survey, she heard a loudspeaker
announcement that she interpreted as “if you are not there, if you
leave, then it is counted as a cut.”); A. 567 (Dep. Senior Plaintiff)
(“Q: Tell me all the exact words that you remember being used in the
15
announcement. A: ... It said if the students don’t go to the survey,
they will receive a cut. That’s exactly what I remember ....”). The
record suggests the following instructions were read at the High
School:
Today, during this period, you have an opportunity to
express your views about your experiences in the
Ridgewood Community – especially your experiences
in non-school activities. Interested in the results of
this survey are community members like the Mayor
and others in charge of youth activities in the
community who will respond to your views in a
concrete way. Since the adults in this community are
asking for your input, and will take it seriously, you
also should take this opportunity seriously to tell
adults what you think about a young person’s
experience in the Ridgewood Community. You
should know that this survey is confidential. That
means no one will be able to identify who completed
individual surveys. This survey should take 45
minutes to complete. Please take advantage of the full
amount of time, since we will be using the entire
period for this purpose. Please make no identifying
marks on your survey. Please begin.
A. 610.8 High School Principal Mucciolo was present during actual
administration of the survey.
8
Although no witnesses could recall the exact instructions,
these written instructions were found during discovery in a file
pertaining to the survey kept by Dr. Verdicchio.
16
4. The survey
The survey itself is obviously critically important to resolution
of this appeal.9 It contained 156 questions with fill-in-the-circle style
answer choices. The front cover of the survey instructed: “[A]nswers
on this questionnaire will be kept strictly confidential. DO NOT put
your name on this form. It has no code numbers, so no one will be
able to find out how you or anyone else answered. Your school will
receive a report that combines many students’ answers together.
Therefore, no one will be able to connect your answers with your
name.” The survey itself did not seek any explicit identifying
information (such as name, address or student identification number);
however, numerous questions did seek statistical information,
including age, grade, sex, racial group and parental family
composition. In addition, students were asked to identify their
parents’ level of education, how long they had lived in their present
city and whether they lived on a farm, in the country not on a farm, on
an American Indian reservation, or in cities or towns of various
specified populations.
Sections of the survey were devoted to drug and alcohol
usage. For example, Questions 81, 82 and 83 asked students how
many times they had alcohol to drink in their lifetime, during the last
9
While the parties differ in their characterization of the survey
and its effect on students who participated in it, the contents of the
survey are undisputed. To put this litigation in a broader perspective,
we note the existence of a long-lived public debate over whether
public schools should be the situs of social research. See, e.g., Beth
Garrison, Note,“Children Are Not Second Class Citizens”: Can
Parents Stop Public Schools from Treating Their Children Like
Guinea Pigs?, 39 VAL. U. L. REV . 147 (2004) (reviewing history of
social research in the public schools).
17
12 months and during the last 30 days, with answer choices 0, 1, 2,
3-5, 6-9, 10-19, 20-39 and 40+. Questions 94 through 96 asked how
many times during the last 12 months students had “been to a party
where other kids your age were drinking,” “driven a car after you had
been drinking” and “ridden in a car whose driver had been drinking,”
with answer choices “never, once, twice, 3-4 times, and 5 or more
times.” Questions 92-93 asked “how many times, if any,” the student
“had used cocaine (crack, coke, snow, rock)” in the student’s lifetime
and during the last 12 months, with answer choices 0, 1, 2, 3-5, 6-9,
10-19, 20-39, and 40+. Questions 97-98 asked “how many times, if
any, have you sniffed glue, breathed the contents of aerosol spray
cans or inhaled other fumes in order to get high” in “the last 12
months” and “during the last 30 days,” with answer choices 0, 1, 2,
3-5, 6-9, 10-19, 20-39, and 40+. Questions 104-109 asked how many
times in the last 12 months a student had used “chewing tobacco or
snuff,” “heroin (smack, horse, skag) or other narcotics like opium or
morphine,” “Alawan,” “PCP or Angel Dust,” “LSD (‘acid’),” or
“Amphetamines (for example, uppers, ups, speed, bennies, dexies)
without a prescription from a doctor,” with answer choices 0, 1, 2,
3-5, 6-9, 10-19, 20-39, and 40+.10
The survey contained questions related to sex, including “have
you ever had sexual intercourse (‘gone all the way,’ ‘made love’),”
with answer choices “no, once, twice, 3 times, and 4 or more times,”
and “when you have sex, how often do you and/or your partner use a
birth control method such as birth control pills, a condom (rubber),
foam, diaphragm, or IUD,” with answer choices “never, seldom,
sometimes, often, and always.” The survey contained questions about
10
Alawan was a fictitious drug. In tabulating survey results,
and in an effort to ensure the quality of data reported, Search Institute
would remove from the pool any surveys in which the respondent
claimed use of this drug.
18
suicide and seemingly related questions about a students’ sense of
individual worth. For example, Question 101 asked “have you ever
tried to kill yourself,” with answer choices “no, yes, once, yes, twice
and yes, more than two times,” and students were asked to indicate
their agreement/disagreement on a scale with statements including
“on a whole, I like myself,” “at times, I think I am no good at all,” “I
feel I do not have much to be proud of” and “sometimes I feel like my
life has no purpose.” There were also questions about students’
experience of violence in their neighborhood, schools and home. For
example, students were asked how many times during the last 12
months they had “taken part in a fight where a group of your friends
fought another group,” “hurt someone badly enough to need bandages
or a doctor,” and “used a knife, gun or other weapon to get something
from a person,” with answer choices “never, once, twice, 3-4 times,
and 5 or more times.” Students were also asked how often they feel
afraid of “walking around your neighborhood,” “getting hurt by
someone at your school ... [or] at your home,” with answer choices
“never, once in a while, sometimes, often, and always.” Question 149
asked “have you ever been physically harmed (that is, where someone
caused you to have a scar, black and blue marks, welts, bleeding, or
a broken bone) by someone in your family or someone living with
you?,” with answer choices “never, once, 2-3 times, 4-10 times, and
more than 10 times.”
Numerous questions interspersed throughout the survey
inquired into the parental relationship. For example, students were
asked how often their parents helped with school work, talked to
them about school work or attended school events or meetings.
Students were also asked to indicate their agreement or disagreement
on a scale with such statements as “my parents push me to be the best
I can be,” “if I break one of my parents’ rules, I usually get punished,”
“my parents give me help and support when I need it,” “my parents
often tell me they love me,” and “I have lots of good conversations
19
with my parents.” Question 85 asked “if you came home from a party
and your parents found out that you had been drinking, how upset do
you think they would be?” Question 99 asked, “in an average week,
how many times do all of the people in your family who live with you
eat dinner together?” Question 121 asked, “if you had an important
concern about drugs, alcohol, sex, or some other serious issue, would
you talk to your parent(s) about it?” Question 122 asked “how much
of the time do your parents ask you where you are going or with
whom you will be?” Question 148 asked how much time a student
spent at home without adult supervision.
Finally, there were questions related to students’ associations
and views on topics of public interest. For example, students were
asked how many hours in an average week they spent playing on
school or community sports teams, participating in clubs or
organizations (other than sports) at school or outside school,
attending “programs, groups or services at a church, synagogue,
mosque, or other religious or spiritual place,” doing organized
volunteer service, helping friends and neighbors, and
practicing/taking lessons in music, art, drama or dance. The survey
also asked students to rate how important certain concepts were in
their lives, on a scale of not important to extremely important,
including “helping to reduce hunger and poverty in the world,”
“helping to make sure that all people are treated fairly,” “getting to
know people who are of a different race than I am,” “speaking up for
equality (everyone should have the same rights and opportunities),”
and “giving time or money to make life better for other people.”11
11
As the Eagle Forum Education and Legal Defense Fund, as
amicus curiae in support of Plaintiffs, explains, some view questions
like many appearing on the Ridgewood survey as objectionable
because the answer choices provided “plant an unfortunate seed in the
mind of the recipient.” Eagle Forum Amicus Br. at 3. For example,
20
5. Security and tabulating the survey
At the High School, completed surveys were placed in a large
box either by the students themselves, the grade administrators or
Principal Mucciolo. Principal Mucciolo then took custody of the box,
delivered it to the guidance office, and had it wrapped and sent
immediately to Dr. Verdicchio. Principal Mucciolo believed the
grade administrators knew not to look, and indeed did not look, at any
of the completed surveys. At the Middle School, although Principal
Bencivenga issued no specific instructions to homeroom teachers
concerning collection of completed surveys, he assumed that those
teachers retrieved them and brought them to his office, where his
secretaries collected and forwarded them to the main district office.
Superintendent Stokley declared that survey booklets were
transported to the main office by courier, where they were secured in
a locked office until sent to Search Institute in early December 1999
for tabulation. He further declared that the survey booklets “were not
reviewed in any manner.” A. 648 (Decl. Stokley).
Dr. Marc Mannes, the director of applied research for Search
Institute, explained the process of tabulation. First, a Search Institute
staff person would check the number of returned surveys against the
number said to have been administered. Then the surveys would be
sent to Data Recognition Corporation (under subcontract with Search
Institute), which would visually scan the surveys, collect the
information on a disk and return the disk and surveys to Search
Institute. Search Institute would then format a report of results and
send it to the client. It was Search Institute’s operating policy to
where the question asks “have you ever tried to kill yourself,” the
answer choices of “no; yes, once; yes, twice; and yes, more than two
times” might be read to suggest that suicidal inclinations are common
and accepted.
21
destroy completed surveys within 90 days of their being scanned.
The Ridgewood surveys were destroyed in March 2000.12
C. Prior Court Proceedings
On March 6, 2000 (after administration of the survey, but
before results were released), Plaintiffs filed this action, claiming that
the survey had been administered so as to be involuntary and non-
anonymous, and had thus violated (1) their statutory rights under the
FERPA and the PPRA,13 and (2) their federal constitutional rights,
12
The record does not contain the results of the Ridgewood
survey, but does include an “Executive Summary” prepared by Search
Institute of results from two other suburban high schools outside New
Jersey whose students took the same survey in approximately the
same time period. The first page of those results contains a table
identifying the number of youth surveyed and the percentage of the
total represented by that number, broken down by gender, grade (6th
through 12th) and race/ethnicity (specifically “American Indian,
Asian/Pacific Islander, Black/African American/Hispanic, White,
Multi-racial”). The first page explains that surveys found by Search
Institute not to meet any one of five criteria are discarded (results
from these two districts indicated that 69 and 138 surveys were
discarded on that basis). Pages 2-7 contain tables, bar graphs and pie
charts tied to the number or percentage of students exhibiting the
“external” or “internal” assets said to be measured by the survey. We
see no way for individual students to be identified or connected with
their personal information via this format.
13
The PPRA currently provides, in pertinent part:
[n]o student shall be required, as part of any
applicable program, to submit to a survey, analysis or
22
including (a) Plaintiff Students’ right under the First Amendment
against compelled speech; (b) Plaintiffs’ right under the Fourth and
Fourteenth Amendments to be free from unlawful intrusion into the
evaluation that reveals information concerning
(1) political affiliations or beliefs of the student or the
student’s parent; (2) mental or psychological problems
of the student or the student’s family; (3) sex behavior
or attitudes; (4) illegal, anti-social, self-incriminating
and demeaning behavior; (5) critical appraisals of
other individuals with whom respondents have close
family relationships; (6) legally recognized privileged
or analogous relationships, such as those of lawyers,
physicians, and ministers; (7) religious practices,
affiliations, or beliefs of the student or beliefs of the
student’s parents; or (8) income (other than that
required by law to determine eligibility for
participation in a program of for receiving financial
assistance under such program), without the prior
consent of the student ... or in the case of an un-
emancipated minor, without the prior written consent
of the parent.
20 U.S.C. § 1232h(b) (emphasis added). The federal statutory claims
have since been dismissed by consent of the parties in light of
Gonzaga University v. Doe, 536 U.S. 273 (2002) (holding that no
private right of action exists under the FERPA). While Gonzaga
addressed only the FERPA, the parties have obviously interpreted it
to dictate the fate of the private PPRA claim asserted here. The
propriety of that assumption is not before us. We will omit any
discussion of those portions of prior opinions in this case which
address the statutory claims, and concentrate solely on the
constitutional claims dealt with in the order on appeal.
23
household; (c) Plaintiff Parents’ substantive due process right under
the Fourth and Fourteenth Amendments to raise their children as they
see fit; (d) Plaintiffs’ right under the Fourth and Fourteenth
Amendments to privacy; and (e) Plaintiff Students’ right under the
Fifth Amendment not to be forced to incriminate themselves (i.e.,
because some of the survey questions dealt with conduct constituting
a crime).14 Plaintiffs sought to enjoin the then-forthcoming disclosure
of survey results and requested damages for emotional harm. The
School Defendants filed a motion for summary judgment.
Before any discovery was conducted, the District Court
(Politan, J.) denied the injunction request and granted summary
judgment to the School Defendants. 146 F. Supp. 2d 528. In an
accompanying opinion, the District Court first held that no cause of
action for constitutional violations lay against the Board under 42
U.S.C. § 1983 because “the official policy of the Board was that the
survey be administered voluntarily and anonymously.” Id. at 533.
Further, the District Court held that even assuming individual school
employees had administered the survey so as to make it involuntary,
“their actions cannot be characterized as carrying out the policy of the
Board.” Id. The District Court also held that the individual School
Defendants were entitled to qualified immunity on the constitutional
claims, reasoning: “[t]here is no indication now or in October of
1999 that a voluntary and anonymous survey which is used to obtain
data in the aggregate (rather than personal information on particular
individuals) would violate plaintiffs’ First Amendment rights to
refrain from speaking; their Fourth Amendment rights regarding
intrusion into a person’s household; the Fifth and Fourteenth
14
Seven complaints about the survey administered at
Ridgewood were also filed in approximately the same time period
with the United States Department of Education under the PPRA.
See 20 U.S.C. § 1232h(e). See infra n.16.
24
Amendment rights of parents to raise their children; their Fourth,
Fifth, and Fourteenth Amendment rights to privacy; or their Fifth
Amendment rights against self-incrimination.” Id. at 535 (emphasis
added).15
15
Specifically, the District Court rejected the Fifth
Amendment self-incrimination claim because the survey results were
to be destroyed, and because the District Court found the survey to
have been administered anonymously, thus making the identification
of any student admitting to a crime in the context of the survey
improbable. 146 F. Supp. 2d at 540. The First Amendment
compelled speech claim was rejected because “the Board [ ]
compelled nothing,” id. at 538, and because “[n]o adverse
repercussions would occur if a student decided not to answer the
survey.” Id. Claims based on the Fourth, Fifth and Fourteenth
Amendments for “unreasonable intrusion into the household” and
violation of the “right to privacy” were rejected because the District
Court interpreted the record to show only that the survey was
voluntary and anonymous. See id. at 539. Finally, the substantive
due process claim of Plaintiff Parents to raise their children as they
see fit was rejected on the grounds that School Defendants’ conduct
“did not rise to the level of a constitutional violation” and did not
actually infringe the right. Id. at 539. The latter type of claim,
reasoned the District Court, only arises where the state has attempted
to “eliminate a parent’s role in the custody or nurture of the child,”
id., and such did not happen here because the students’ “parents were
provided ample notice of the administration of the survey,” and were
“informed that the survey was voluntary and anonymous.” Id. at 539-
40. Thus, “[School Defendants] have in no way impinged on the
plaintiffs’ rights to raise their children in a manner which they
choose.” Id. at 540.
25
Plaintiffs appealed and this Court affirmed in part, reversed
in part, and remanded. 281 F.3d 219 (3d Cir. December 10, 2001)
(unpublished). Specifically, this Court affirmed the dismissal of the
Fifth Amendment self-incrimination claim, but concluded that
voluntariness was disputed, and thus it was inappropriate for the
District Court to dismiss the remaining constitutional claims for
reasons tied to voluntariness. As this Court reasoned, one did not
know in the absence of discovery what the Board’s policy with regard
to the voluntary nature of the survey had actually been. In the specific
context of qualified immunity and the alleged constitutional claims,
this Court reasoned:
If a jury would find that the students were actually
required to take the survey, then the District Court
would have to address the further question in the
qualified immunity analysis as to whether a teacher or
principal in this setting would have reasonably
understood that the survey was being administered in
violation of the law.
...
We are not ... prepared to say that [plaintiffs] could
not, as a matter of law, establish any set of facts which
would demonstrate violations of the other
constitutional rights asserted. We believe that a
conclusion as to the contours of these guarantees is
specific to the factual setting and should be reached
after discovery.
The parties then engaged in discovery, after which the School
Defendants again moved for summary judgment on the constitutional
26
claims remaining in the case.16 The District Court (Linares, J.)
granted the motion in full upon concluding that Plaintiffs had failed
to identify any constitutional violations, and further that, even if they
had, the individual School Defendants would be entitled to qualified
immunity. 319 F. Supp. 2d 483. Critically, the District Court
determined that the summary judgment record supported only a
finding that the survey had been voluntary and anonymous. Id. at
16
Meanwhile the United States Department of Education
issued its final decision in the seven administrative complaints. See
supra n.14. In a letter decision dated December 18, 1999, the Family
Policy Compliance Office of the Department of Education noted that
during the course of its investigation, the Board had taken the
position that it did not “require” the survey and thus the PPRA’s
parental consent provision was not triggered. See 20 U.S.C.
§ 1232h(b) (“No student shall be required, as part of any applicable
program, to submit to a survey ... that reveals information concerning
– [listing types of information] without the prior consent” of the
student or parent where the student is an unemancipated minor)
(emphasis added). The Compliance Office, however, found that the
District had violated the PPRA because “[a]pplying the totality of the
circumstances test to the evidence before this Office [which evidence
included declarations and affidavits which had been borrowed from
this civil action in its pre-discovery stage], ... the District ‘required’
students to take the survey.” A. 626. As a result, the Compliance
Office ordered the Board to provide it with “written assurance that all
appropriate officials of the District have been informed of the PPRA
requirements. Specifically, [that they were] informed of the
requirement that written consent be obtained from parents prior to
administering a survey that is subject to PPRA.” Id. at 627.
27
491.17 This, in turn, impacted the court’s reasoning as to the
existence of any constitutional violations. The District Court also
explained, however, why, even assuming the survey had been
involuntary, no constitutional violations had occurred. Finally,
although unnecessary, the District Court also opined that the
individual School Defendants would have qualified immunity
because “reasonable school officials would not have known that the
administration of a voluntary, confidential and anonymous survey to
students after providing adequate notice to parents to opt-out was
unconstitutional.” Id. at 499. Plaintiffs appealed.
II.
The District Court had jurisdiction of this action pursuant to
28 U.S.C. §§ 1331 and 1343(3). We have jurisdiction pursuant to 28
U.S.C. § 1291.
“We exercise plenary review over a district court’s grant of
summary judgment and apply the same standard as the district court;
i.e., whether there are any genuine issues of material fact such that a
reasonable jury could return a verdict for the plaintiffs. We are
required to review the record and draw inferences in a light most
favorable to the non-moving party, yet the non-moving party must
provide admissible evidence containing specific facts showing that
there is a genuine issue for trial.” Pa. Prot. & Advocacy, Inc. v. Pa.
Dep’t of Pub. Welfare, 402 F.3d 374, 379 (3d Cir. 2005) (internal
quotations and citations omitted). “[S]ummary judgment may not be
17
The District Court took note of the Department of
Education’s administrative finding that the District had “required”
students to participate in the survey, but stressed its independent duty
to examine the record in light of the specific constitutional violations
alleged. 319 F. Supp. 2d 493 n.3.
28
granted, however, if there is a disagreement over what inferences can
reasonably be drawn from the facts even if the facts are undisputed.”
Nathanson v. Med. Coll. of Pa., 926 F.2d 1368, 1380 (3d Cir. 1991).
III.
Pursuant to 42 U.S.C. § 1983, Plaintiffs seek to hold both the
Board and the individual School Defendants liable for constitutional
violations. To impose liability on the Board under § 1983, Plaintiffs
must show a “relevant [] policy or custom, and that the policy caused
the constitutional violation ... allege[d].” Natale v. Camden County
Corr. Facility, 318 F.3d 575, 583-84 (3d Cir. 2003). See also Monell
v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978) (“a local
government may not be sued under § 1983 for an injury inflicted
solely by its employees or agents. Instead, it is when execution of a
government’s policy or custom, whether made by its lawmakers or by
those whose edicts or acts may fairly be said to represent official
policy, inflicts the injury that the government as an entity is
responsible under § 1983.”). To impose liability on the individual
defendants, Plaintiffs must show that each one individually
participated in the alleged constitutional violation or approved of it.
C.H. v. Olivia, 226 F.3d 198, 201-02 (3d Cir. 2000) (en banc).
The individual defendants, however, may be entitled to
qualified immunity if “‘their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable
person would have known.’” Wilson v. Layne, 526 U.S. 603, 609
(1999) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). In
assessing qualified immunity, a court “must first determine whether
the plaintiff has alleged the deprivation of an actual constitutional
right at all, and if so, proceed to determine whether that right was
clearly established at the time of the alleged violation.” Conn v.
Gabbert, 526 U.S. 286, 290 (1999). See also Sutton v. Rasheed, 323
29
F.3d 236, 250 n.27 (3d Cir. 2003) (reasoning that, because the
directive in Wilson is mandatory, a district court “can decide the issue
of qualified immunity only after it has concluded that a cause of
action has been stated,” and therefore, courts of appeals initiates its
inquiry by examining whether plaintiffs have alleged a constitutional
violation). Under this framework, the existence of a constitutional
violation is the threshold inquiry.
IV.
In the course of analyzing the compelled speech claim, the
District Court concluded that the evidence on summary judgment
supported only a finding that the Board intended the survey to be
voluntary. See 319 F. Supp. 2d at 491 (“[E]ven construing all facts
in the light most favorable to the non-movants, the record does not
support Plaintiffs’ contention that the students were compelled by
Defendants to disclose any information. All of the evidence obtained
through discovery indicates that Defendants had fully intended the
survey to be voluntary, made considerable efforts to make known the
voluntary nature of the survey to the parents and teachers, and took
reasonable actions to ensure that the survey was in fact administered
in a fashion so that the students would understand it was voluntary.”)
(emphasis omitted); see also id. at 492 (“the Board’s policy and
practice was for student survey responses to be voluntary, anonymous
and confidential.”). The District Court also concluded that, to the
extent Plaintiffs sought to hold the Board liable under Section 1983
for failure to supervise any school administrator who might have
made the survey mandatory, the record did not indicate that the
School Defendants had contemporaneous knowledge of any
subordinates’ failure to follow instructions, or that the School
Defendants had tacitly approved of any compulsion brought to bear
on students by its subordinates. See id. at 492. As to the individual
School Defendants, the District Court concluded that the summary
30
judgment record “points to neither participation nor approval by
[them] of any unconstitutional actions.” Id.On appeal, Plaintiffs contend that summary judgment was
improperly granted to the School Defendants because there remains
a dispute over what are, in this case, the two key facts – i.e., whether
the survey was voluntary and whether it was anonymous. The
governing legal framework outlined above requires that these two key
facts be analyzed in two ways: First, we must ask whether the record
could support a finding that the survey, as actually administered, was
involuntary and non-anonymous. And if the record would support
such a finding, we must then inquire whether the record would also
support that the Board actually intended for the survey to be
involuntary and non-anonymous, such that the Board might be liable
under § 1983 for an unconstitutional policy or practice. On the
existing record, we find a genuine issue of material fact as to whether
the survey was voluntary, both as administered and as intended by the
Board. At the same time, however, we find that the summary
judgment record supports only one finding as to anonymity and that
is that the survey, as administered and as intended by the Board, was
anonymous. We explain both conclusions in Part V, sub-sections A
& B. Then, in Part VI, we explain why, even assuming the survey
was involuntary, no constitutional violations have been shown.
A. Voluntariness
1. Administration of the survey
A myriad of direct and indirect evidence coalesces to support
the reasonable inference that the survey, as actually administered, was
31
involuntary.18 First and perhaps most critically, the direct evidence
relevant to what occurred on survey day in the High School and the
Benjamin Franklin Middle School – even with Senior Plaintiff’s
admission that her administrator instructed students that the survey
was voluntary – supports an inference of involuntariness in
administration. Relevant to events at the Middle School, Middle
School Plaintiff testified that students in her homeroom where she
took the survey were told by teacher Mr. Grasso that “you have to
take [the survey].” Mr. Grasso admitted he may not have told his
class the survey was voluntary, and could not recall his superiors
giving him instruction as to actual administration. At the High
School, both Freshman and Senior Plaintiffs testified that they heard
a loud speaker announcement that they interpreted to warn that
anyone not taking the survey would receive “a cut.” The instructions
read at the High School did not inform students that the survey was
voluntary, stressed that students were to answer questions “seriously”
and “honestly” and asked students to “please begin.” These
instructions echo what students might hear before mandatory state
testing. And, despite being present during the actual administration,
Defendant High School Principal Mucciolo did not intercede to add
to the spoken instructions that the survey was voluntary.
Second, a form returned to Search Institute with the completed
surveys under the auspices of Dr. Verdicchio indicated that 100% of
students in grades 7-12 participated in the survey. In a district as
large as Ridgewood, such a high compliance level alone lends
considerable support to a finding of involuntariness in administration.
Such a finding is further bolstered here by evidence that another
student (not a plaintiff) who was absent on survey day from the
George Washington Middle School was required “to make it up” on
18
We stress that by “involuntary,” we mean only that students
were required to participate in the survey.
32
the day he returned. Overall, the record suggests that school officials
attempted to ensure the fullest participation possible. It would be
permissible to infer therefrom that the survey was administered as
involuntary.
Third, while the record reveals numerous efforts made by the
district and community organizations to notify parents of the survey
and encourage them to review it in advance, the evidence also shows
that no consent form was distributed to parents nor were parents ever
instructed how to avoid their child’s participation if a parent objected
to the survey. We are not in the business of second-guessing public
school decision-making, and thus we offer no comment on the
legality or wisdom of this approach. Nonetheless, we believe that a
jury could view such as supporting an inference of involuntariness in
actual administration. On a related note, the evidence also shows the
absence of any advance warning of the exact dates on which the
survey would be administered. See A. 642 (Superintendent Stokley’s
May 19 letter, providing “The [HHRC] and a coalition of twenty
Ridgewood organizations are making plans to survey our village
youth, ages 12-19, in September [1999].”); A. 637 (Superintendent
Stokley’s September 1 letter, providing “[i]n late September [1999],
Village youth will be asked to complete a survey ... The voluntary
and anonymous survey will be made available to young people in
grades 7-12.”). A jury could legitimately wonder how a parent who
objected to the survey could seek to avoid it for their child. On what
day would the parent keep the child home from school or instruct her
to hand in a blank survey? A jury could reasonably think it
unrealistic in this age of busy, working parents and busy, scheduled
children that a letter warning of a survey on a date uncertain would be
sufficient to allow a parent to act on an objection. For this reason, we
reject the District Court’s finding that parents were given an opt-out
option in this situation.
33
Fourth, the survey was administered in a setting that may have
suggested to some students that participation was mandatory.
Completion of the survey was estimated to take an entire class period,
and all students were required to remain in the room and at their
desks during this period. In short, the procedure was very much like
the procedure that is customarily followed when a test is
administered, and this similarity may well have suggested to students
that the survey, like a test, had to be completed and handed in.
Overall, we conclude that because the record would permit an
inference of involuntariness in administration, the District Court
overstepped its role in concluding that the survey was voluntary.
2. Board policy
The harder question in this case is whether the record could
also support a finding that the Board and certain individual School
Defendants intended for the survey to be involuntary in
administration – in other words, whether it was Board policy to
administer the survey as involuntary. Such a finding is necessary to
hold the Board liable under § 1983, and to ensure that this case is not
merely one of subordinates defying instruction. See Natale, 318 F.3d
at 583 (state agency cannot be held liable under § 1983 for the acts of
its employees under a theory of respondeat superior or vicarious
liability).
As the District Court identified, there is certainly much
evidence in the record to support that the Board intended the survey
to be voluntary. See 319 F. Supp. 2d at 491-92. However, our review
has convinced us that much of the same evidence outlined above
could also reasonably lead a jury to infer that the Board intended the
survey to be involuntary. One might infer, especially in light of the
close ties between certain School Defendants and the HRCC and/or
34
Community Vision Team, that the School Defendants took advantage
of the compulsory nature of the school setting to ensure a high level
of participation in the survey which they supported as a method of
information gathering. One might also infer that parental consent was
not solicited and Superintendent Stokley’s letter purposefully left out
the exact date of administration in an effort to ensure the fullest
participation. Additionally, one might examine the events leading up
to administration at the two school buildings and conclude that
administrators purposefully provided inadequate direction to
administrators or failed to correct misinformation in an attempt to
promote participation. While we tend to think that the stronger
inference on this record is simply one of lack of attention to some key
details as opposed to intent, we cannot rule out that a jury might
examine the evidence and reasonably indulge an inference of intent.19
Thus, we conclude that the summary judgment record would also
support a finding that the survey as intended by the Board and certain
School Defendants acting on behalf of the Board was involuntary.
The District Court erred in holding to the contrary.
B. Anonymity
On the other hand, we conclude that Plaintiffs have failed to
identify a genuine issue of material fact as to anonymity. While the
District Court did not separately treat the evidence as to anonymity,
19
Even if a jury would find that the Board and certain School
Defendants intended the survey to be involuntary, the record reflects
that such was pursued only in the spirit of ensuring the highest level
of participation possible in order to generate more useful information
for laudable community purposes. The record does not reflect that
the School Defendants sought to influence students’ actual answers
on the survey. This is an important distinction upon which we draw
in rejecting Plaintiffs’ constitutional claims. See infra Part V.
35
it clearly viewed the record as supporting only a finding that the
survey as actually administered and as intended by the Board was
anonymous. See 319 F. Supp. 2d at 492 (“For the reasons already
stated, the Board’s policy and practice was for student survey
responses to be ... anonymous”); id. at 494 (“The information ... was
obtained anonymously, in confidence and the individual results were
not publicly disseminated”).
On appeal, Plaintiffs point to the following evidence as
creating a genuine issue of material fact on anonymity: Middle
School Plaintiff testified that her survey booklet had affixed to it a
sticker seeking identifying information and one student had a teacher
look over his shoulder, observe his responses and make him retake
the survey in a one-on-one setting, and at least one student who
missed the survey was identified and made to take it in a one-on-one
or small setting. We deem this evidence insufficient as a matter of
law to support a factual finding in Plaintiffs’ favor. Only Middle
School Plaintiff recalled the sticker. Against this evidence, Mr.
Grasso explained why such stickers would not have been used and
every other School Defendant stressed that anonymity was
maintained. Additionally, while a few students (notably not the
Student Plaintiffs, and out of over 2000 students who took the survey
district-wide) were placed in settings with a potential to compromise
anonymity, there is no evidence that anonymity was actually
compromised. Instead, the record reflects that the surveys were
treated as anonymous during the actual administration and
afterwards.20 Additionally, we do not believe the record would
20
This might be a different case if Plaintiff students actually
observed administrators peeking at completed surveys or if the survey
setting itself lent support to Plaintiffs’ fears of compromised
anonymity. This record, however, with a few isolated exceptions,
shows that the survey was administered in large classroom settings;
36
support an inference that the Board intended the survey to be non-
anonymous. The record shows that anonymity and confidentiality –
as opposed to voluntariness – were consistently stressed to parents,
principals and survey administrators.
V.
The existence of a disputed issue of material fact as to
voluntariness, however, does not preclude summary judgment for the
School Defendants in this case. Even if we assume, as the District
Court did, that the survey was purposefully administered as
involuntary, no violation of the right to privacy or the First
Amendment right against compelled speech has been shown.
Before we address the constitutional claims, we deem it
appropriate to dispose of the primary argument for affirmance
advanced by the School Defendants (and supported by The National
School Boards Association and the New Jersey School Boards
Association as amici): that because Ridgewood, as a New Jersey
school district, is mandated to teach students about many of the
sensitive topics included on the survey, no constitutional violation
can be shown.21 We reject this argument. The scope of the right to
it simply strains credulity to think that an administrator could first,
identify a particular student’s booklet and second, sneak a peek at it
before completed surveys were collected en masse and delivered to
the district’s main office. The record simply does not substantiate the
Plaintiffs’ suspicions.
21
See New Jersey Dept. of Education, New Jersey Core
Curriculum Content Standards for Comprehensive Health and
Physical Education (May 1996) (available at
http://www.state.nj.us/njded/cccs/archive/1996) (“all students will
37
privacy is defined by the Constitution and may not be restricted by a
state legislature or by state education officials. School-sponsored
speech may be restricted for legitimate pedagogical purposes,
Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260 (1988), and it
seems clear that a school may compel some speech for such purposes.
For example, a school may compel a student to write a paper on a
particular topic even if the student would prefer to write on a different
topic. How far a school may go in compelling speech for what it
views as legitimate pedagogical purposes is a difficult and unsettled
question. We need not explore that question here, however, because
the survey administered at Ridgewood was not chosen by New Jersey
as a means of advancing education, but by a group of local
organizations and district officials who deemed it convenient to use
the local school district as the venue for administration. The record
reflects that the survey was not administered in the letter or spirit of
fulfilling New Jersey’s educational requirements, but rather as a
means to collect information to enable laudatory social programs.
A. Right to Privacy
The United States Constitution does not mention an explicit
right to privacy and the United States Supreme Court has never
proclaimed that such a generalized right exists. The Supreme Court
has, however, found certain “zones of privacy” in the amendments to
the Constitution, see Roe v. Wade, 410 U.S. 113, 152-153 (1973)
learn the physical, mental, emotional, and social effects of the use and
abuse of alcohol, tobacco, and other drugs” and “the biological,
social, cultural, and psychological aspects of human sexuality and
family life.”); School Defendants’ Br. 14-15 (“Plainly, the public
policy of the State of New Jersey is that responsible discourse
concerning these subjects is no longer the exclusive province of the
home, but is now a critical element of a public school education”).
38
(tracing this development), and from these zones has specified that
the constitutional right to privacy “protects two types of privacy
interests: ‘One is the individual interest in avoiding disclosure of
personal matters, and another is the interest in independence in
making certain kinds of important decisions.’” Hedges v. Musco, 204
F.3d 109, 121 (3d Cir. 2000) (quoting Whalen v. Roe, 429 U.S. 589,
599-600 (1977) (footnote omitted)). See also Sterling v. Borough of
Minersville, 232 F.3d 190, 193-196 (3d Cir. 2000) (tracing the
development and treatment of the right to privacy in Supreme Court
and Third Circuit jurisprudence).22 The “important decisions”
referred to in the latter strand of the privacy protection “have
encompassed ‘matters relating to marriage, procreation,
contraception, family relationships, and child rearing and education.’”
United States v. Westinghouse Elec. Corp., 638 F.2d 570, 577 (3d
Cir. 1980) (quoting Paul v. Davis, 424 U.S. 693, 713 (1976)).
Plaintiffs alleged violations of both types of privacy interests in this
case; we address each in turn.
1. Disclosure of personal matters
“[T]he right not to have intimate facts concerning one’s life
disclosed without one’s consent” is “a venerable [right] whose
constitutional significance we have recognized in the past.” Bartnicki
22
Plaintiffs asserted constitutional violations based on
Plaintiffs’ right under the Fourth and Fourteenth Amendments to be
free from unlawful intrusion into the household, Plaintiff Parents’
substantive due process right under the Fourth and Fourteenth
Amendments to raise their children as they see fit and Plaintiffs’ right
under the Fourth and Fourteenth Amendments to privacy. Although
denoted as three separate constitutional claims, we, like the District
Court, interpret these claims to invoke the two recognized strands of
the privacy right, and will analyze them accordingly.
39
v. Vopper, 200 F.3d 109, 122 (3d Cir. 1999) (citing Paul P. v.
Verniero, 170 F.3d 396 (3d Cir. 1999) (collecting cases)). “In
determining whether information is entitled to privacy protection,
[this Court] ha[s] looked at whether it is within an individual’s
reasonable expectations of confidentiality. The more intimate or
personal the information, the more justified is the expectation that it
will not be subject to public scrutiny.” Fraternal Order of Police v.
City of Philadelphia, 812 F.2d 105, 112 (3d Cir. 1987). As we
explained in Sterling, “[o]ur jurisprudence takes an encompassing
view of [the] information entitled to a protected right to privacy.”
232 F.3d at 195. Thus, we have deemed to be protected a private
employee’s medical information when sought by the government,
Westinghouse Elec., 638 F.2d 570, medical, financial and behavioral
information relevant to a police investigator’s ability to work in
dangerous and stressful situations, Fraternal Order of Police, 812
F.2d 105, a public employee’s medical prescription record, Doe v.
Southeastern Pennsylvania Trans. Auth. (SEPTA), 72 F.3d 1133 (3d
Cir. 1995), a minor student’s pregnancy status, Gruenke v. Seip, 225
F.3d 290 (3d Cir. 2000), sexual orientation, Sterling, 232 F.3d 190,
and an inmate’s HIV-positive status, Doe v. Delie, 257 F.3d 309 (3d
Cir. 2001). The constitutional right to privacy extends to minors. See
Application of Gault, 387 U.S. 1, 13 (1967) (“neither the Fourteenth
Amendment nor the Bill of Rights is for adults alone”); Gruenke, 225
F.3d 290 (reversing summary judgment and remanding for
consideration of minor student’s disclosure-based privacy claim).
The right to avoid disclosure of personal matters is not
absolute, however. “Public health or like public concerns may justify
access to information an individual may desire to remain
confidential.” Sterling, 232 F.3d at 195 (citing Westinghouse Elec.,
638 F.2d at 577); see also Fraternal Order of Police, 812 F.2d at 110(“Disclosure may be required if the government interest in disclosure
outweighs the individual’s privacy interest”). As we explained in
40
Westinghouse Electric, in order to decide whether an intrusion into an
individual’s privacy is justified, “we must engage in the delicate task
of weighing competing interests.” 638 F.2d at 578. The following
factors should be considered: “the type of record requested, the
information it does or might contain, the potential for harm in any
subsequent nonconsensual disclosure, the injury from disclosure to
the relationship in which the record was generated, the adequacy of
safeguards to prevent unauthorized disclosure, the degree of need for
access, and whether there is an express statutory mandate, articulated
public policy, or other recognizable public interest militating toward
access.” Id.In this case, the District Court found that the information
requested, as it related to sexual activity, drug and alcohol use and
relationships, was “of course [ ] intimate and private.” 319 F. Supp.
at 495. We agree. The District Court, however, then rejected that a
constitutional violation had been shown because it found unmet what
it considered to be two threshold requirements to an actionable
disclosure claim – i.e., (1) actual disclosure of a kind that would
permit identification between the individual and the personal
information, and (2) disclosure that was involuntary in nature. See id.
at 494-495. Additionally, the District Court reasoned that, even were
it to ignore such threshold requirements, the claim would still fail
under the balancing test of Westinghouse Electric. See id. at 495.
Because we recognize the existence of a genuine issue of material fact
on voluntariness, we will not affirm the District Court’s rejection of
the disclosure-based privacy claim on the ground that disclosure was
41
voluntary.23 However, we agree that the claim fails under the
balancing test.
The cases in which a disclosure-based privacy violation has
been found involve situations where there was either actual
identification or the disclosure of identifying information such as
would allow the individual to be identified and ultimately connected
to his or her private information. In Whalen, for example, the
challenged statutory scheme required the disclosure of a patient’s
name, address and age, as well as the drug prescribed, to state health
officials. 429 U.S. at 593. Similarly, in Fraternal Order of Police,
job applicants challenged certain intimate questions appearing on a
employment questionnaire which required the applicant to identify
himself by name.24
23
As we will explain in our discussion of the First Amendment
compelled speech claim, the question of whether disclosure of
information by the students was voluntary is a nuanced one on these
facts. Even if the students were required to take the survey, the
record reveals that they were not required to answer every question,
and could choose their answers from within the confines of the
answers provided. Thus, in a sense, we agree with the District Court
that any private information disclosed was not necessarily disclosed
involuntarily.
24
In the discovery context, lower courts recognize that the
constitutional interest in avoiding disclosure of private information
is satisfied once identifying information is removed. See, e.g., Wei v.
Bodner, 127 F.R.D. 91, 98 (D.N.J. 1989) (stating, in context of
Sherman Act suit brought by anesthesiologist against other physicians
and hospital, that “the constitutional right of privacy weighs in favor
of removing patient’s names from all documents. ... It is the
combination of the personal information with identifying information
42
Doe v. SEPTA, in which this Court addressed as a threshold
matter the existence of disclosure as a prerequisite to the assertion of
a disclosure-based privacy claim, is also instructive. SEPTA
provided a self-insured health care program and the official
responsible for containing program costs requested prescription
utilization reports from Rite-Aid, the program’s sole prescription
provider. The report listed by name those employees filling
prescriptions at a cost of $100 or more per month, along with the
drugs supplied. The official deduced therefrom that Plaintiff Doe was
HIV positive and shared this information with another official then
aiding the cost-containment efforts. In this context, we explained:
we must first assess whether, and to what extent, [the
official] disclosed [plaintiff’s] prescription drug
information. Obviously, no privacy violation would
have taken place had the information from Rite-Aid
come in encoded form. ... Doe would have no cause
of action if all that had been disclosed were that an
unknown number of people at SEPTA were
purchasing Retrovir for the treatment of HIV-related
illnesses. Therefore, such disclosure as occurred
came only when Doe’s name was revealed with
respect to his purchase of drugs under SEPTA’s
prescription drug program.
72 F.3d at 1138 (emphasis added). In Doe, we went on to determine
that the Employer’s need for access outweighed the Employee’s
interest in confidentiality.
to which people object. Once the identifying information is redacted,
the majority of the privacy concerns are eliminated”) (citation
omitted)).
43
We conclude that Plaintiffs’ disclosure-based privacy claim
fails under the balancing test. As the District Court correctly noted,
the first five factors of the test (i.e., the type of record requested, the
information it does or might contain, the potential for harm in any
subsequent non-consensual disclosure, and the injury from disclosure
to the relationship in which the record was generated) account for the
individual’s privacy expectation while the final two factors account
for the governmental interest in disclosure. We adopt the District
Court’s assessment of the first five factors, and thus find that while
the privacy expectation is great, the privacy side of the balance is
nonetheless lessened because disclosure of personal information
occurred only in the aggregate and personal information was
adequately safeguarded. See 319 F. Supp. 2d at 495-96. As we
explained above, the record shows that the survey was administered
as anonymous. The survey did not ask students to identify
themselves by name or address. While the survey did seek some
statistical information that could conceivably be used to trace a
student’s identity, the record reflects confidentiality in the
administration, collection and storage of the surveys prior to
submission to Search Institute for tabulation of results.25 Once
tabulated, the surveys were destroyed. The information, moreover,
while publicly disclosed, was revealed only in the aggregate, in a
format that did not permit individual identification.
25
We are not saying that identification based on such statistical
information could never occur. Certainly there may be instances
where an individual is readily identifiable by such data; a single
school building, for example, might contain only one African
American or Native American student or one family headed by a
single parent, or one family in a particularly high or low socio-
economic category. Such is not the case here, however.
44
We part company slightly with the District Court, however, in
its assessment of the governmental interest. While New Jersey’s
public school districts must educate students about some of the
sensitive topics appearing on the survey, administration of the survey
at Ridgewood was undertaken to gather information. We do not
understand New Jersey to have explicitly sanctioned this kind of
social research being undertaken in its schools, and thus we hesitate
to engage in an analysis under the balancing test that might condone
an individual district for having done so. At the same time, the record
reflects that the survey was administered at Ridgewood in an attempt
to obtain information directly related to the understanding and
prevention of the social problems confronting today’s youth – a
laudable goal, apparently pursued with the youths’ best interests in
mind. In this unique context, we will deem the balance to tip in the
government’s favor, and accordingly find no constitutional violation
of the privacy right against disclosure.
2. Independence in important decision-making
“[I]t cannot now be doubted that the Due Process Clause of
the Fourteenth Amendment protects the fundamental right of parents
to make decisions concerning the care, custody, and control of their
children.” Troxel v. Granville, 530 U.S. 57, 66 (2000). See also
McCurdy v. Dodd, 352 F.3d 820, 826-27 (3d Cir. 2003) (examining
the nature and history of the right); Gruenke, 225 F.3d at 303, 304(acknowledging that “[t]he right of parents to raise their children
without undue state interference is well established” and that in
Troxel, the Supreme Court had “reaffirmed the validity of such
long-standing precedents as Meyer v. Nebraska, 262 U.S. 390, 401
(1923) (right of parents to control education of their children), Pierce
v. Society of Sisters, 268 U.S. 510, 534-35 (1925) (right to direct
upbringing and education of children), and Prince v. Massachusetts,
321 U.S. 158, 166 (1944), where the [Supreme] Court said ‘the
45
custody, care and nurture of the child reside first in the parents, whose
primary function and freedom include preparation for obligations the
state can neither supply nor hinder.’”) (parallel citations removed));
Parents United for Better Schools, Inc. v. Sch. Dist. of Philadelphia
Bd. of Educ., 148 F.3d 260 (3d Cir. 1998) (recognizing the right).
The Supreme Court has never been called upon to define the
precise boundaries of a parent’s right to control a child’s upbringing
and education. It is clear, however, that the right is neither absolute
nor unqualified. See Lehr v. Robertson, 463 U.S. 248, 256 (1983)
(constitutional protection available for parent-child relationship in
“appropriate cases”); Croft v. Westmoreland Co. Children and Youth
Serv., 103 F.3d 1123, 1125 (3d Cir. 1997) (interest of parents in the
care, custody and management of children is “not absolute”; “liberty
interest in familial integrity is limited by the compelling
governmental interest in the protection of children”); Hodge v. Jones,
31 F.3d 157, 163-64 (4th Cir. 1994) (“The maxim of familial privacy
is neither absolute nor unqualified, and may be outweighed by a
legitimate governmental interest.”). In Gruenke, this Court
recognized that, despite the Supreme Court’s “near-absolutist
pronouncements” concerning the right to familial privacy, the right
is necessarily qualified in a school setting where “the state’s power is
‘custodial and tutelary, permitting a degree of supervision and control
that could not be exercised over free adults.’” 225 F.3d at 304(quoting Vernonia Sch. Dist. v. Acton, 515 U.S. 646, 655 (1995)).
Courts have held that in certain circumstances the parental right to
control the upbringing of a child must give way to a school’s ability
to control curriculum and the school environment. See, e.g., Swanson
v. Guthrie Independent Sch. Dist., 135 F.3d 694 (10th Cir. 1998)
(school policy against part-time attendance did not violate parent’s
right to direct upbringing of child); Herdon v. Chapel Hill-Carrboro
City Bd. of Educ., 89 F.3d 174 (mandatory student participation in
community service program did not violate parents’ right to direct the
46
upbringing of their child); Immediato v. Rye Neck Sch. Dist., 73 F.3d
454 (2d Cir. 1996) (same); Brown v. Hot, Sexy and Safer Prods., Inc.,
68 F.3d 525, 533 (1st Cir. 1995) (finding in context of plaintiff
parents’ claim that mandatory student attendance at sexually explicit
AIDS awareness assembly that plaintiff parents had failed to
demonstrate an intrusion of constitutional magnitude” on the right to
direct the upbringing and control of child). This case, however, like
Gruenke, involves a situation where the challenged action of the
school defendant is not neatly tied to considerations of curriculum or
educational environment. In Gruenke, this Court concluded that the
parents of a public school student forced to take a commercial
pregnancy test by her high school swim coach who later discussed the
positive result with others (but notably not the student’s parents), had
stated a claim for violation of the familial right to privacy. As the
Gruenke panel explained:
Although a student may not enjoy a right of privacy to
the same extent as a free adult, there are nevertheless
limitations on intrusions by school authorities.
...
School-sponsored counseling and psychological
testing that pry into private family activities can
overstep the boundaries of school authority and
impermissibly usurp the fundamental rights of parents
to bring up their children, as they are guaranteed by
the Constitution. Public schools must not forget that
‘in loco parentis’ does not mean ‘displace parents.’
It is not educators, but parents who have primary
rights in the upbringing of children. School officials
have only a secondary responsibility and must respect
47
these rights. State deference to parental control over
children is underscored by the [Supreme] Court’s
admonitions that the child is not the mere creature of
the State, and that it is the parents’ responsibility to
inculcate moral standards, religious beliefs, and
elements of good citizenship.
225 F.3d at 304, 307 (internal citations and quotations omitted).
In this case, the District Court concluded that no violation of
the familial right to privacy had been shown. Its reasoning was two-
fold. First, the District Court reemphasized that the existing record
supported only a finding that the survey had been voluntary and
anonymous, or at least that the Board had so intended. 319 F. Supp.
2d at 498. In this regard, the District Court relied heavily upon its
own interpretation of Defendant Superintendent Stokley’s September
1999 letter to parents, suggesting that “[t]he most logical inference to
be drawn from this correspondence is that the child would be
surveyed if the parent did not respond. In addition to the
correspondence, the survey was preceded by months of publicity
through [PTA] Association meetings and discussions in school and
the community. Any parent who did not want his or her child to take
the survey could have simply told the child not to answer the
questions, without any adverse repercussions.” Id. This
characterization of the facts allowed the District Court to then
analogize the familial privacy claim asserted here to that rejected by
this Court in Parents United for Better Schools, 148 F.3d at 274-75(rejecting familial right to privacy claim in the context of a voluntary
high school condom distribution program accompanied by a parental
opt-out provision). See id. Second, the District Court distinguished
Gruenke, reasoning that the facts in this case could not be fairly
compared to those which gave rise to the claim in Gruenke. Because
we recognize a genuine issue of material fact over voluntariness, we
48
do not base our rejection of the familial right to privacy claim on a
characterization of the record that assumes voluntariness, nor will we
analogize this case to Parents United for Better Schools, which
involved a parental opt-out provision. Rather, we conclude that even
if the survey was involuntary, the conduct at issue does not rise to the
level of a constitutional violation.
Gruenke is instructive. In that case, plaintiff parents asserted
that the swim coach’s action deprived them of their right to make
decisions concerning their child, not simply that his action
complicated the making and implementation of those decisions. As
the Gruenke Court summarized:
As the [plaintiff] parents explained, had not all the
adverse publicity occurred as the result of [the swim
coach’s] actions, they would have quietly withdrawn
[minor pregnant child] from school, apparently after
the state [swim] meet, and sent her to Florida to live
with her married sister. After the child was born, it
might have been adopted by the sister or another
sibling, but because [the swim coach’s] conduct made
the family’s dilemma a topic of conversation for the
school community, any discreet measures that the
parents would have taken were no longer feasible. ...
Mrs. Gruenke’s position is that the management of
this teenage pregnancy was a family crisis in which
the State, through [the swim coach], had no right to
obstruct the parental right to choose the proper
method of resolution.
See Gruenke, 225 F.3d at 306. See also id. (“This case presents
another example of the arrogation of the parental role by a school”);
309-10 (Roth, J., concurring) (agreeing with the ultimate finding of
49
qualified immunity for the defendant swim coach, but disagreeing
with the other two panel members that the parents had stated a claim
because, in her view, defendant swim coach’s behavior “merely
complicated the Gruenke’s ability to make decisions concerning the
pregnancy” and “the Gruenkes were free at all times to make
whatever decision they pleased as to the outcome of [student’s]
pregnancy, even after [defendant swim coach] discussed her condition
with other parents or swim team members”). We read Gruenke to
recognize a distinction between actions that strike at the heart of
parental decision-making authority on matters of the greatest
importance and other actions that, although perhaps unwise and
offensive, are not of constitutional dimension. Other Courts of
Appeals have recognized a similar distinction. See Hodge, 31 F.3d
at 163 (“[C]ircuit courts have strictly construed actionable violations
of the familial privacy right to encompass only those instances where
state official’s actions were directly aimed at the parent-child
relationship, Pittsley v. Warish, 927 F.2d 3, 8 (1st Cir. [(1991) (no
familial privacy claim stated where police threatened children would
never see arrested family member again and refused to let them kiss
him goodbye)], implicated the ‘most essential and basic aspect of
familial privacy – the right of the family to remain together without
the coercive interference of the awesome power of the state,’
Duchesne v. Sugarman, 566 F.2d 817, 825 (2d Cir. 1977) [(liberty
interest in family privacy deprived without due process where
children not returned to mother)], ‘drove a wedge into a family and
threatened its very foundation,’ or ‘eroded the family’s solidarity
internally and impaired the family’s ability to function,’ Bohn [v.
County of Dakota], 772 F.2d [1433], at 1436 n.4 [(8th Cir. 1985)
(father accused by county of child abuse)]); see also Pittsley, 927
F.2d at 8 (“State action that affects the parental relationship only
incidentally ... is not sufficient to establish a violation”).
50
In this case, Plaintiff Parents complain that the School
Defendants, by not requiring parental consent prior to the
administration of the survey and failing to provide sufficient
information to allow an objecting parent to avoid having their child
participate, deprived them of their right to make the important
decision whether to allow their child to participate in the survey.
Additionally, we understand Plaintiff Parents to complain that the
School Defendants’ actions intruded upon their parental authority to
decide when and how to introduce their children to sensitive topics
such as appeared on the survey.
The legitimacy and strength of the parental interest at stake
has been recognized by the New Jersey legislature, which enacted the
state’s “Protection of Pupil Rights” law. See N.J.S.A. § 18A:36-43.
This law, which took effect on January 1, 2001, requires “prior
written informed consent” before a survey such as the one implicated
here could be administered in New Jersey’s public schools. By all
accounts, the events at Ridgewood were the impetus for this new law.
See Cheryl Wetzstein, “Consent required for nosy surveys; Parental
outcry spurred N.J. law,” WASH . TIMES, A5 (Jan. 14, 2002) (“The law
stems from an outcry in Ridgewood, N.J., over a 1999 school survey
...”); Catherine Gewertz, “N.J. requires permission for student
surveys,” 21 EDUC. WK. 15 (Jan. 23, 2002) (same).
It does not necessarily follow, however, that the survey
violated the Constitution. While the Supreme Court has extended
constitutional protection to parental decisions regarding certain
matters (see Troxel, 530 U.S. 57 (visitation); Pierce, 268 U.S. 510(decision to enroll child in private, religious school rather than public
school)), our review of these cases prompts us to conclude that the
decision whether to permit a middle or high school student to
participate in a survey of this type is not a matter of comparable
gravity.
51
Further, while it is true that parents, not schools, have the
primary responsibility “to inculcate moral standards, religious beliefs,
and elements of good citizenship,” Gruenke, 225 F.3d at 307, a
myriad of influences surround middle and high school students
everyday, many of which are beyond the strict control of the parent
or even abhorrent to the parent. We recognize that introducing a
child to sensitive topics before a parent might have done so herself
can complicate and even undermine parental authority, but conclude
that the survey in this case did not intrude on parental decision-
making authority in the same sense as occurred in Gruenke. A parent
whose middle or high school age child is exposed to sensitive topics
or information in a survey remains free to discuss these matters and
to place them in the family’s moral or religious context, or to
supplement the information with more appropriate materials. School
Defendants in no way indoctrinated the students in any particular
outlook on these sensitive topics; at most, they may have introduced
a few topics unknown to certain individuals. We thus conclude that
the survey’s interference with parental decision-making authority did
not amount to a constitutional violation.26
26
In reaching this conclusion, we do not hold, as did the panel
in Fields v. Palmdale School District, No. 03-56499, 2005 WL
2861946 (9th Cir. Nov. 2, 2005), that the right of parents under the
Meyer-Pierce rubric “does not extend beyond the threshold of the
school door.” Id. at *65. Nor do we endorse the categorical approach
to this right taken by the Fields court, wherein it appears that a claim
grounded in Meyers-Pierce will now trigger only an inquiry into
whether or not the parent chose to send their child to public school
and if so, then the claim will fail. Instead, guided by Gruenke,
wherein this Court stressed that it is primarily the parents’ right “to
inculcate moral standards, religious beliefs and elements of good
citizenship,” 225 F.3d at 307, we have determined only that, on the
facts presented, the parental decisions alleged to have been usurped
52
B. Compelled Speech
Plaintiffs contend that the School Defendants compelled the
Plaintiff Students to speak about their associations and views on
political concepts in violation of the First Amendment. The District
Court rejected the compelled speech claim on two different grounds.
First, having concluded that the record supported only a finding of
voluntariness, the District Court reasoned that the threshold
requirement of compulsion was unmet. 319 F. Supp. 2d at 492-93.
Second, the District Court reasoned that, even assuming
involuntariness, the First Amendment right to refrain from speaking
has no force where one is compelled to speak but need not embrace
a particular viewpoint or message favored by the government. See id.
at 493. We will affirm the District Court’s conclusion that no
violation of the right against compelled speech occurred, but under
slightly different reasoning.
1.
In Turner Broadcasting System, Inc. v. Federal
Communications Commission, the Supreme Court explained that “[a]t
the heart of the First Amendment lies the principle that each person
should decide for himself or herself the ideas and beliefs deserving of
expression, consideration, and adherence. Our political system and
cultural life rest upon this ideal.” 512 U.S. 622, 641 (1994). See also
Wooley v. Maynard, 430 U.S. 705, 714 (1977) (citing Board of
Education v. Barnette, 319 U.S. 624, 633-34 (1943)) (“the right of
freedom of thought protected by the First Amendment against state
action includes both the right to speak freely and the right to refrain
from speaking at all. ... The right to speak and the right to refrain
by the School Defendants are not of comparable gravity to those
protected under existing Supreme Court precedent.
53
from speaking are complementary components of the broader concept
of ‘individual freedom of mind.’”); Riley v. National Federation of
the Blind of North Carolina, Inc., 487 U.S. 781, 796-97 (1988) (“the
First Amendment guarantees ‘freedom of speech,’ a term necessarily
comprising the decision of both what to say and what not to say”)
(emphasis in the original); Hurley v. Irish-American Gay, Lesbian
and Bisexual Group of Boston, 515 U.S. 557, 573 (1995) (“one
important manifestation of the principle of free speech is that one
who chooses to speak may also decide ‘what not to say.’”).
Before exploring the contours of the First Amendment’s
protection of the right “to refrain from speaking at all,” it must be
recognized that this particular right is necessarily different in the
public school setting. While axiomatic that students do not “shed
their constitutional rights to freedom of speech or expression at the
schoolhouse gate,” Tinker v. Des Moines Indep. Community Sch.
Dist., 393 U.S. 503, 506 (1969), the First Amendment’s wide
freedom in matters of adult public discourse has never meant that the
First Amendment rights of students in the public schools are
automatically coextensive with the rights of adults in other settings.
The Circle School v. Pappert, 381 F.3d 172, 177-78 (3d Cir. 2004)
(citing Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 682
(1986)). “[S]tudents retain the protections of the First Amendment,
but the shape of these rights in the public school setting may not
always mirror the contours of constitutional protections afforded in
other contexts.” Sypniewski v. Warren Hills Regional Bd. of Educ.,
307 F.3d 243, 253 (3d Cir. 2002). See also Hazelwood School Dist.
v. Kuhlmeier, 484 U.S. 260, 266 (1988) (First Amendment rights of
public school students must be applied in light of the special
characteristics of the school environment). Thus, First Amendment
jurisprudence recognizes that the educational process itself may
sometimes require a state actor to force a student to speak when the
student would rather refrain. A student may also be forced to speak
54
or write on a particular topic even though the student might prefer a
different topic. And while a public educational institution may not
demand that a student profess beliefs or views with which the student
does not agree, a school may in some circumstances require a student
to state the arguments that could be made in support of such beliefs
or views. See Brown v. Li, 308 F.3d 939, 953 (9th Cir. 2002)
(explaining in the context of First Amendment challenge to a
university’s refusal to approve a student thesis that “a college history
teacher may demand a paper defending Prohibition, and a law-school
professor may assign students to write ‘opinions’ showing how
Justices Ginsburg and Scalia would analyze a particular Fourth
Amendment question.... Such requirements are part of the teachers’
curricular mission to encourage critical thinking ... and to conform to
professional norms”); see also Board of Regents of Univ. of
Wisconsin Sys. v. Southworth, 529 U.S. 217, 242-43 (2000) (Souter,
J., concurring) (noting that university students “are inevitably
required to support the expression of personally offensive viewpoints
in ways that cannot be thought constitutionally objectionable unless
one is prepared to deny the University its choice over what to
teach.”); Marinello v. Bushby, 1996 WL 671410 *14 (N.D. Miss.
1996) (unpublished) (“it is part of the function of schools to compel
speech from students to some degree so that officials can ensure that
the students are in fact learning what is taught”), aff’d 163 F.3d 1356(5th Cir. 1998) (table); Smolla & Nimmer, FREEDOM OF SPEECH
§ 17:1.50 (2005) (compelling speech may be part of a school’s
curricular mission.).
It is settled law that “[g]overnment action that ... requires the
utterance of a particular message favored by the Government,
contravenes th[e] essential right” to refrain from speaking protected
by the First Amendment. Turner Broadcasting, 512 U.S. at 641. See
also Barnette, 319 U.S. 624 (affirming the issuance of an injunction
against compulsory flag salute by public school students); Wooley,
55
430 U.S. 705 (affirming the issuance of an injunction against the
enforcement of New Hampshire’s statute criminalizing the act of
obscuring the language on the state’s “Live Free or Die” license
plates); Forum for Academic and Institutional Rights v. Rumsfeld,
390 F.3d 219, 235-36 (3d Cir. 2004) (summarizing the existing
jurisprudence), cert. granted, 125 S. Ct. 1977 (May 2, 2005). This
principle recognizes that government action “of this sort pose[s] the
inherent risk that the Government seeks not to advance a legitimate
regulatory goal, but to suppress unpopular ideas or information or
manipulate the public debate through coercion rather than
persuasion.” Turner Broadcasting, 512 U.S. at 641. Thus, under
First Amendment jurisprudence, “[l]aws that compel speakers to utter
or distribute speech bearing a particular message are subject to the
same rigorous scrutiny [as applied to regulations that suppress,
disadvantage, or impose differential burdens on speech because of its
contents].” Id. at 642 (citing Riley; Barnettte).
The Supreme Court has only ever found a violation of the
First Amendment right against compelled speech in the context of
forced speech that requires the private speaker to embrace a particular
government-favored message. Some lower court decisions may be
read to suggest that the First Amendment right against compelled
speech is violated only where the government mandates that the
speaker express a certain viewpoint or message. See, e.g., Coleman
v. Miller, 117 F.3d 527, 531 (11th Cir. 1997) (rejecting compelled
speech claim in context of challenge to constitutionality of the
Georgia state flag because plaintiffs “pointed to no government action
that requires affirmation of a belief and an attitude of mind”) (internal
citation omitted); United States v. Sindel, 53 F.3d 874, 878 (8th Cir.
1995) (rejecting compelled speech challenge to IRS summons
because the summons required recipient “only to provide the
government with information which his clients have given him
voluntarily, not to disseminate publicly a message with which he
56
disagrees”); see also id. (“First Amendment protection against
compelled speech ... has been found only in the context of
governmental compulsion to disseminate a particular political or
ideological message.”). The District Court in this case so held, and
rejected Plaintiffs’ compelled speech claim on the grounds that the
School Defendants did not force students to express any particular
message in choosing answers on the survey. We find this
interpretation of the right to be too limited. The Supreme Court in
Turner Broadcasting recognized that government compulsion to
speak may exist in the absence of content-based regulation, and
instructed that such action be subject to an intermediate level of
scrutiny. See 512 U.S. at 642. Thus, the law does not hold that a
compelled speech violation occurs only in the context of compulsion
to embrace a certain viewpoint; rather, it subjects compelled speech
to different levels of scrutiny depending on whether the government
is also compelling a certain viewpoint as part of the compelled
speech.
While we reject the District Court’s reasoning in this regard,
we need not determine the exact contours of the “right to refrain from
speaking” or the breadth of its protection to students in the public
school setting because Plaintiffs do not ask us to determine whether
merely requiring Plaintiff Students to participate in the survey
violated this right. Rather, they present the much narrower question
of whether requiring students to participate in a survey that sought
information about their associations and opinions on political
concepts violates the right against compelled speech. Framed in this
manner, Plaintiffs’ claim implicates the First Amendment and its
protection for privacy concerns. As the Supreme Court stated in
Brown v. Socialist Workers ‘74 Campaign Committee, “[t]he
Constitution protects against the compelled disclosure of political
associations and beliefs.” 459 U.S. 87, 91 (1982). See also Buckley
v. Valeo, 424 U.S. 1, 64 (1976) (“we have repeatedly found that
57
compelled disclosure, in itself, can seriously infringe on privacy of
association and belief guaranteed by the First Amendment”); Shelton
v. Tucker, 364 U.S. 479, 485-86 (1960) (“to compel a teacher to
disclose his every associational tie is to impair that teacher’s right of
free association, a right closely allied to freedom of speech and a right
which, like free speech, lies at the foundation of a free society”);
Fraternal Order of Police, 812 F.2d at 119.
One other general principle of compelled speech
jurisprudence informs our analysis, and that is that a violation of the
First Amendment right against compelled speech occurs only in the
context of actual compulsion. “In order to compel the exercise ... of
speech, the governmental measure must punish, or threaten to punish,
protected speech by governmental action that is ‘regulatory,
proscriptive, or compulsory in nature.’” Phelan v. Laramie County
Community College Bd. of Trustees, 235 F.3d 1243, 1244-47 (10th
Cir. 2000) (quoting Laird v. Tatum, 408 U.S. 1, 11 (1972)). Such
compulsion, however, “need not take the form of a direct threat or a
gun to the head.” Axson-Flynn, 356 F.3d at 1290.
2.
In analyzing this First Amendment compelled speech claim,
we will assume without deciding that the act of answering questions
on a survey is speech for First Amendment purposes.27 The claim
nevertheless fails.
First, Plaintiffs have not shown the compulsion necessary to
establish a First Amendment violation. Even assuming the School
Defendants forced students to take the survey, there was no evidence
27
We decline to address School Defendants’ argument that
there was no “speech” here for First Amendment purposes.
58
of “some type of disincentive or penalty if the survey was not
completed,” 319 F. Supp. 2d at 492, or if certain answers were or
were not selected. The record supports only that students were made
to sit in chairs and put pen to paper during administration of the
survey. The record does not suggest that School Defendants
threatened or actually punished students for failure to complete the
survey or to select particular answers. There has been no suggestion
that Ridgewood personnel had any interest in compelling certain
answers as might reflect on the district or community efforts; rather,
the School Defendants appear to have wanted merely to collect as
much information as the survey could generate.
Second, the disclosure required for a constitutional violation
of the First Amendment’s protection against compelled disclosure of
private information simply has not been shown. With regard to
associations, students were not asked to list their group memberships
or associations by name. Rather, Questions 60, 61, 62 and 64 asked
them to identify how many hours in an average week they spent
participating in “sports,” “clubs or organizations (other than sports)
at school” “clubs or organizations (other than sports) outside of
school” and “going to programs, groups or services at a church,
synagogue, mosque, or other religious or spiritual place.” Question
130 asked how many evenings per week a student spent going “out
to activities at a school, youth group, congregation or other
organization.” At most, one could possibly deduce from the answers
that a student either had a religious affiliation of some kind or not.
But the information was disclosed in a format that did not permit
individualized detection. We can find no authority to suggest that
merely requesting such highly generalized information or releasing it
in the aggregate violates the Constitution.
Students were also asked questions which Plaintiffs
characterize as inquiring into core political concepts like racial
59
equality, hunger, poverty, religion and charity. For example, some
questions asked students how important certain concepts (including
“helping to reduce hunger and poverty in the world,” and “helping to
make sure that all people are treated equally”) were to them
personally, to be rated on a scale from “not important” to “extremely
important.” Even assuming this information is entitled to some
measure of privacy, we see no constitutional violation where the
information is safeguarded and released only in the aggregate with no
way to tie a student to his or her responses.
VI.
We conclude that the summary judgment record in this case
does give rise to a genuine issue of material fact over whether the
survey as administered and as intended by the Board was voluntary.
However, because even assuming that fact in the Plaintiffs’ favor, no
constitutional violation of the right to privacy or the First Amendment
right against compelled speech has been shown, we will affirm the
grant of summary judgment to the School Defendants.28
28
In light of our disposition, we need not reach the issue of
qualified immunity.
60