Fields v. Palmdale School District ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAMES FIELDS; TAMMANY FIELDS; 
STUART HABERMAN; ROBERT
HOAGLIN; KATHIE HOAGLIN;
VANESSA SHETLER, No. 03-56499
Plaintiffs-Appellants,
v.  D.C. No.
CV-03-00457-JVS
PALMDALE SCHOOL DISTRICT (PSD); OPINION
MICHAEL GEISSER; ARLAND
ATWOOD,
Defendants-Appellees.

Appeal from the United States District Court
for the Central District of California
James V. Selna, District Judge, Presiding
Argued and Submitted
June 2, 2005—Pasadena, California
Filed November 2, 2005
Before: Donald P. Lay,* Stephen Reinhardt, and
Sidney R. Thomas, Circuit Judges.
Opinion by Judge Reinhardt
*The Honorable Donald P. Lay, Senior United States Circuit Judge for
the Eighth Circuit, sitting by designation.
15059
15062 FIELDS v. PALMDALE SCHOOL DIST.
COUNSEL
Erik Gunderson, Esq., Steven C. Shonack, Esq., Gunderson,
Schlichter, Shonack & Handel, LLP, Manhattan Beach, Cali-
FIELDS v. PALMDALE SCHOOL DIST. 15063
fornia; Duane L. Bartsch, Esq., Law Offices of Duane
Bartsch, Manhattan Beach, California, for the plaintiffs-
appellants.
Dennis J. Walsh, Esq., Douglas Lyon, Esq., Law Offices of
Dennis J. Walsh, APC, Encino, California, for the defendants-
appellees.
OPINION
REINHARDT, Circuit Judge:
When parents of schoolchildren in Palmdale, California
learned from their sons and daughters that they had been
questioned in their public elementary school about sexual top-
ics such as the frequency of “thinking about having sex” and
“thinking about touching other peoples’ private parts,” some
of them exercised their constitutional right to take their griev-
ance to the courts. The questioning was part of a survey the
Palmdale School District was conducting regarding psycho-
logical barriers to learning. The parents brought an action in
district court against the School District and two of its offi-
cials for violating their right to privacy and their right “to con-
trol the upbringing of their children by introducing them to
matters of and relating to sex.” They brought both federal and
state claims. The district court dismissed the federal causes of
action for failure to state a claim upon which relief could be
granted and dismissed the state claims without prejudice to
their right to re-file in state court. We agree, and hold that
there is no fundamental right of parents to be the exclusive
provider of information regarding sexual matters to their chil-
dren, either independent of their right to direct the upbringing
and education of their children or encompassed by it. We also
hold that parents have no due process or privacy right to over-
ride the determinations of public schools as to the information
to which their children will be exposed while enrolled as stu-
15064 FIELDS v. PALMDALE SCHOOL DIST.
dents. Finally, we hold that the defendants’ actions were ratio-
nally related to a legitimate state purpose.
I.
Kristi Seymour volunteered as a “mental health counselor”
at Mesquite Elementary School while she was enrolled in a
master’s degree program at the California School of Profes-
sional Psychology. The Palmdale School District, of which
Mesquite was a part, collaborated with the School of Profes-
sional Psychology, the Children’s Bureau of Southern Califor-
nia, and Seymour to develop and administer a psychological
assessment questionnaire for first, third, and fifth grade stu-
dents with the announced goal of “establish[ing] a community
baseline measure of children’s exposure to early trauma (for
example, violence).”
Prior to administering the survey, Seymour mailed a letter
to the parents of the children to be surveyed informing them
of the questionnaire’s nature and purpose, and requesting their
consent to its administration.1 The parental consent letter was
1
The letter states:
“Parental Consent
Dear Parent or Caregiver:
The Palmdale School District is asking your support in participating in
a district-wide study of our first, third and fifth grade children. The study
will be a part of a collaborative effort with The California School of Pro-
fessional Psychology — CSPP/ Alliant International University, Chil-
dren’s Bureau of Southern California and the Palmdale School District.
The goal of this assessment is to establish a community baseline mea-
sure of children’s exposure to early trauma (for example, violence). We
will identify internal behaviors such as anxiety and depression and exter-
nal behaviors such as aggression and verbal abuse. As a result, we will be
designing a district wide intervention program to help children reduce
these barriers to learning, which students can participate in. Please read
this consent letter and if you agree, please sign and send it back to your
school’s principal no later than December 20, 2001.
FIELDS v. PALMDALE SCHOOL DIST. 15065
enclosed in a School District envelope and was mailed using
School District postage. The letter did not explicitly state that
some questions involved sexual topics, although it did specify
that the survey questions were about “early trauma (for exam-
ple, violence)” and there was a warning that “answering ques-
tions may make [the] child feel uncomfortable.”
After the School District approved the survey, Seymour
administered it during school hours at Mesquite Elementary
School. She sat with the students, aged seven to ten, while
they completed the survey and ensured that they read and
responded to each question. The survey included seventy-nine
The assessment will consist of three, twenty-minute self-report mea-
sures, which will be given to your child on one day during the last week
of January. This study is 100% confidential and at no time will the infor-
mation gathered be used to identify your child. Your child will not be pho-
tographed or videotaped. You may refuse to have your child participate or
withdraw from this study at any time without any penalty or loss of ser-
vices to which your child is entitled.
[—page break—]
I am aware that the research study coordinator, Kristi Seymour, one
research assistant, the Palmdale School District, Director of Psychology,
Michael Geisser, and a professor from CSPP, will be the only people who
have access to the study’s information. After the study is completed, all
information will be locked in storage and then destroyed after a period of
five years.
I understand answering questions may make my child feel uncomfort-
able. If this occurs, then, Kristi Seymour, the research study coordinator,
will assist us in locating a therapist for further psychological help if neces-
sary. If I have further questions, I may contact Kristi Seymour at 1529 E.
Palmdale Blvd., Suite 210, Palmdale, CA 93550 at 661.272.9997 x128. I
understand that I will not be able to get my child’s individual results due
to anonymity of the children, but I may get a summary report of the study
results.
I have read this form and understand what it says. I her[e]by agree to
allow my child to participate in this district-wide study.” (emphasis in
original). Additionally, two lines were made available on the “Parental
Consent” form for the “Parent/Caregiver” to sign and date it.
15066 FIELDS v. PALMDALE SCHOOL DIST.
questions testing the frequency that the subjects experienced
a variety of sensations, emotions, thoughts, and experiences.
It was composed of four questionnaires. The first question-
naire contains fifty-four questions and is copyrighted by Psy-
chological Assessment Resources, Inc.2 The children were
asked to rate the following activities, among others, on a scale
from “never” to “almost all the time”: “Bad dreams or night-
mares,” “Feeling dizzy,” “Wanting to yell at people,” “Want-
ing to hurt other people,” “Trying not to have feelings,”
“Can’t stop thinking about something bad that happened to
me,” and “Wanting to kill myself.” Ten of those questions
were about sexual subjects.3 The second part of the survey is
labeled “Bialer-Cromwell LC Scale (Modified).”4 These ques-
tions concentrate on the child subject’s perception of other
people and the external world. The third part follows the same
format as Bialer-Cromwell, but the questions focus upon the
2
Psychological Assessment Resources, Inc. is a leading publisher of
assessment instruments, software, books, and other related materials. See
http://www.parinc.com (last visited Aug. 16, 2005).
3
The sexual references are:
8. Touching my private parts too much
17. Thinking about having sex
22. Thinking about touching other people’s private parts
23. Thinking about sex when I don’t want to
26. Washing myself because I feel dirty on the inside
34. Not trusting people because they might want sex
40. Getting scared or upset when I think about sex
44. Having sex feelings in my body
47. Can’t stop thinking about sex
54. Getting upset when people talk about sex
4
The Bialer-Cromwell Locus of Control Scale is a 23-item, “yes-no”
questionnaire that measures the extent to which a child construes out-
comes as being consequential to his own actions (i.e., internally con-
trolled) rather than due to the whims and/or manipulations of fate, chance,
or other people (i.e., externally controlled).
FIELDS v. PALMDALE SCHOOL DIST. 15067
children’s past traumatic experiences. Among the questions
are the following: Have you ever “[B]een threatened or
chased by a gang?”, “Seen someone get shot?”, “Been in a car
accident?”, “Been touched by someone, on your body, that
made your feel uncomfortable?”, and “Know[n] anyone who
has or is being abused?” The final part is limited to demo-
graphic information such as the student’s grade, race, and
familial living arrangement.
Plaintiffs James and Tammany Fields, Stuart and Kathleen
Haberman, Robert and Kathie Hoaglin, and Vanessa Shetler
are parents of minor children who were enrolled at Mesquite
Elementary School. All of them had children who participated
in the survey. The parent-plaintiffs learned of the sexual
nature of some of the questions on the survey when their chil-
dren informed them of the questions after they had completed
the questionnaires. The parents allege that if they had known
the true nature of the survey, they would not have consented
to their children’s involvement. Prior to filing in federal court,
the parents initially sought redress for their alleged injuries
through an administrative tort claim filed with the Palmdale
School Board. Therein, they alleged that their “basic constitu-
tional right to control” their children’s upbringing had been
“robbed” by the defendants’ actions. Their claim was denied
and they subsequently filed a complaint in district court alleg-
ing four causes of action: (1) violation of their federal consti-
tutional right to privacy; (2) violation of their California
constitutional right to privacy; (3) deprivation of civil rights
pursuant to 42 U.S.C. § 1983; and (4) negligence. The parents
sought damages and injunctive relief.
Defendant Michael Geisser is the Palmdale School Dis-
trict’s Director of Psychological Services, and Arland Atwood
is the principal of Mesquite Elementary School; both Atwood
and Geisser are sued in their official capacities.5 The defen-
5
Although Seymour was named as a defendant in the complaint, she is
not a party to the case. In the notice of appeal, the parent-appellants admit
that she “was not served, has not appeared, and is not a party to this
appeal.”
15068 FIELDS v. PALMDALE SCHOOL DIST.
dants did not file an answer to the complaint. Instead, they
moved under Fed. R. Civ. Pro. 12(b)(6) to dismiss the entire
action for failure to state a claim upon which relief could be
granted. They asserted that there is no deeply rooted and fun-
damental right of parents “to control the upbringing of their
children by introducing them to matters of and relating to sex
in accordance with their personal and religious values and
beliefs.” They further contended that the § 1983 claim was
not viable because the parents’ civil rights had not been vio-
lated and that even if they had, the School District is immune
from suit and the individual defendants are entitled to quali-
fied immunity. Finally, they argued that they are not liable
under California law because their actions were discretionary
and state law immunity applies.
The parents countered that the administration of the survey
violated their constitutional privacy right as well as their right
to control their children’s exposure to sexual subjects, that the
defendants arrogated unto themselves the parents’ right to
determine how their children learn about sexual matters, and
that the defendants are not immune from suit.
After holding a hearing on the motion, the district court dis-
missed the federal claims for “lack of a cognizable legal theo-
ry.” In doing so, it first recharacterized the parents’ privacy
claim as a substantive due process claim because “all of the
Parents’ arguments concerning the claim are grounded in the
Fourteenth Amendment’s Substantive Due Process Clause.
Other than citing generally to privacy cases outside the Four-
teenth Amendment’s scope, the Parents do not connect their
asserted interest . . . to the First, Third, Fourth, Fifth, Ninth,
or Tenth Amendments.” The court ruled next that the right “to
control the upbringing of their children by introducing them
to matters of and relating to sex in accordance with their per-
sonal and religious values and beliefs” does not rise to the
level of a fundamental right protected by Substantive Due
Process. It further concluded that the fundamental right to
direct the upbringing and education of one’s children does not
FIELDS v. PALMDALE SCHOOL DIST. 15069
encompass the right “to control the upbringing of their chil-
dren by introducing them to matters of and relating to sex in
accordance with their personal and religious values and
beliefs.” Finally, the court declined to exercise supplemental
jurisdiction over the state law causes of action and dismissed
them without prejudice. The parents now appeal.
II.
On appeal, the parents challenge the district court’s dis-
missal of their federal claims for failure to state a claim upon
which relief may be granted.6 The district court’s dismissal
pursuant to Rule 12(b)(6) for failure to state a claim is
reviewed de novo. See Zimmerman v. City of Oakland, 255
F.3d 734, 737 (9th Cir. 2001).
The parents argue that the defendants’ actions deprived
them of their free-standing fundamental right “to control the
upbringing of their children by introducing them to matters of
and relating to sex in accordance with their personal and reli-
gious values and beliefs.” They also contend that the right to
“determine when and how their children are exposed to sexu-
ally explicit subject matter” is encompassed within their fun-
damental due process right to control their children’s
upbringing and their constitutional right to privacy to make
intimate familial decisions. They argue that under both doc-
trines they have a fundamental right “to control the upbring-
ing of their children by introducing them to matters of and
relating to sex in accordance with their personal and religious
values and beliefs” and that the defendants’ actions infringing
6
Subsequent to the district court’s dismissal of the federal causes of
action, the court also dismissed without prejudice the state law causes of
action on jurisdictional grounds. The parent-appellants’ opening brief does
not renew their opposition to the district court’s dismissal of the state law
causes of action. Those issues are therefore waived. See Alaska Ctr. for
the Env’t v. U.S. Forest Serv., 189 F.3d 851, 858 n.4 (9th Cir. 1999)
(“Arguments not raised in [an] opening brief are waived.”). Of course, the
parents may pursue the state law causes of action in state court.
15070 FIELDS v. PALMDALE SCHOOL DIST.
that right are therefore subject to strict scrutiny. Finally, they
maintain that even if the court concludes that the deprivation
of their liberty interest in “control[ling] the upbringing of
their children by introducing them to matters of and relating
to sex” is not subject to strict scrutiny, the School District’s
administration of the psychological survey was not rationally
related to a legitimate state end.
A. Meyer-Pierce
We note at the outset that it is not our role to rule on the
wisdom of the School District’s actions. That is a matter that
must be decided in other fora. The question before us is sim-
ply whether the parents have a constitutional right to exclu-
sive control over the introduction and flow of sexual
information to their children. It is clear, and the parents agree,
that no court has ever held that parents have a specific funda-
mental right “to control the upbringing of their children by
introducing them to matters of and relating to sex in accor-
dance with their personal and religious values and beliefs.” In
fact, no such specific right can be found in the deep roots of
the nation’s history and tradition or implied in the concept of
ordered liberty. See Washington v. Glucksberg, 521 U.S. 702,
720-21 (1997). Thus, whether the parents have a constitu-
tional right to exclusive control over the introduction and flow
of sexual information to their children depends entirely upon
whether the asserted right is encompassed within some
broader constitutional right.
[1] The parents next argue that the right they seek to invoke
is encompassed within the fundamental due process right to
“control the education and upbringing of one’s children.” The
Supreme Court has held that the right of parents to make deci-
sions concerning the care, custody, and control of their chil-
dren is a fundamental liberty interest protected by the Due
Process Clause. See Troxel v. Granville, 530 U.S. 57, 66
(2000) (plurality opinion) (“[I]t cannot now be doubted that
the Due Process Clause of the Fourteenth Amendment pro-
FIELDS v. PALMDALE SCHOOL DIST. 15071
tects the fundamental right of parents to make decisions con-
cerning the care, custody, and control of their children.”).
This right is commonly referred to as the Meyer-Pierce right
because it finds its origin in two Supreme Court cases, Meyer
v. Nebraska, 262 U.S. 390 (1923), and Pierce v. Society of
Sisters, 268 U.S. 510 (1925).
[2] As with all constitutional rights, the right of parents to
make decisions concerning the care, custody, and control of
their children is not without limitations. In Prince v. Massa-
chusetts, 321 U.S. 158 (1944), the Court recognized that par-
ents’ liberty interest in the custody, care, and nurture of their
children resides “first” in the parents, but does not reside there
exclusively, nor is it “beyond regulation [by the state] in the
public interest.” Id. at 166. For example, the state “as parens
patriae” may restrict parents’ interest in the custody, care, and
nurture of their children “by requiring school attendance, reg-
ulating or prohibiting the child’s labor and in many other
ways.” Id. (footnotes omitted). See also Runyon v. McCrary,
427 U.S. 160, 177 (1976) (holding that there is no parental
right to educate children in private segregated schools); Nor-
wood v. Harrison, 413 U.S. 455, 461-62 (1973) (discussing
the limited scope of Pierce); Wisconsin v. Yoder, 406 U.S.
205, 239 (1972) (White, J., concurring) (stating that the
Pierce right “lends no support to the contention that parents
may replace state educational requirements with their own
idiosyncratic views of what knowledge a child needs to be a
productive and happy member of society”); Pierce, 268 U.S.
at 534 (“No question is raised concerning the power of the
state reasonably to regulate all schools, to inspect, supervise
and examine them, their teachers and pupils; to require that all
children of proper age attend some school, that teachers shall
be of good moral character and patriotic disposition, that cer-
tain studies plainly essential to good citizenship must be
taught, and that nothing be taught which is manifestly inimi-
cal to the public welfare.”); Hooks v. Clark County Sch. Dist.,
228 F.3d 1036, 1042 (9th Cir. 2000) (subjecting the Meyer-
15072 FIELDS v. PALMDALE SCHOOL DIST.
Pierce right to reasonable regulation by the state), cert.
denied, 532 U.S. 971 (2001).
Likewise, lower courts have recognized the constitutional-
ity of a wide variety of state actions that intrude upon the lib-
erty interest of parents in controlling the upbringing and
education of their children. See Littlefield v. Forney Indep.
Sch. Dist., 268 F.3d 275 (5th Cir. 2001) (upholding school
district’s mandatory school uniform policy); Hooks, 228 F.3d
at 1036 (upholding state statute denying speech therapy ser-
vices to home-schooled children); Hutchins v. District of
Columbia, 188 F.3d 531 (D.C. Cir. 1999) (plurality opinion)
(upholding a municipality’s curfew ordinance that was only
applicable to minors); Swanson v. Guthrie Indep. Sch. Dist.
No. 1-L, 135 F.3d 694 (10th Cir. 1998) (upholding school dis-
trict’s full-time attendance policy); Herndon v. Chapel Hill-
Carrboro City Bd. of Educ., 89 F.3d 174 (4th Cir. 1996)
(upholding school district’s mandatory community service
program).
Finally, there are a number of cases that have upheld the
constitutionality of school programs that educate children in
sexuality and health. See, e.g., Leebaert v. Harrington, 332
F.3d 134 (2d Cir. 2003) (upholding school district’s manda-
tory health classes against a father’s claim of a violation of his
fundamental rights); Parents United for Better Sch., Inc. v.
School Dist. of Philadelphia Bd. of Educ., 148 F.3d 260 (3d
Cir. 1998) (upholding school district’s consensual condom
distribution program); Brown v. Hot, Sexy & Safer Prods.,
Inc., 68 F.3d 525 (1st Cir. 1995) (upholding compulsory high
school sex education assembly program); Citizens for Paren-
tal Rights v. San Mateo County Bd. of Educ., 51 Cal. App. 3d
1 (1975) (upholding school district’s non-compulsory health
and sex education program against parental challenge).
[3] Of particular import to this case is Brown, in which a
compulsory high school assembly presentation aimed at edu-
cating students on AIDS and other health concerns included
FIELDS v. PALMDALE SCHOOL DIST. 15073
explicit references to sexuality. See 68 F.3d at 529. The
Brown plaintiffs alleged that the compelled attendance of
schoolchildren at the assembly deprived the minors and their
parents of their privacy rights, substantive due process rights,
and their right to an educational environment free from sexual
harassment. Rejecting those claims, the First Circuit
explained that,
[t]he Meyer and Pierce cases, we think, evince the
principle that the state cannot prevent parents from
choosing a specific educational program — whether
it be religious instruction at a private school or
instruction in a foreign language. That is, the state
does not have the power to “standardize its children”
or “foster a homogenous people” by completely
foreclosing the opportunity of individuals and groups
to choose a different path of education. We do not
think, however, that this freedom encompasses a
fundamental constitutional right to dictate the curric-
ulum at the public school to which they have chosen
to send their children. We think it is fundamentally
different for the state to say to a parent, “You can’t
teach your child German or send him to a parochial
school,” than for the parent to say to the state, “You
can’t teach my child subjects that are morally offen-
sive to me.” The first instance involves the state pro-
scribing parents from educating their children, while
the second involves parents prescribing what the
state shall teach their children. If all parents had a
fundamental constitutional right to dictate individu-
ally what the schools teach their children, the
schools would be forced to cater a curriculum for
each student whose parents had genuine moral dis-
agreements with the school’s choice of subject mat-
ter. We cannot see that the Constitution imposes
such a burden on state educational systems, and
accordingly find that the rights of parents as
described by Meyer and Pierce do not encompass a
15074 FIELDS v. PALMDALE SCHOOL DIST.
broad-based right to restrict the flow of information
in the public schools.
Id. at 533-34 (citations omitted) (emphasis added). We agree
with and adopt the First Circuit’s analysis. Meyer, Pierce, and
their progeny “evince the principle that the state cannot pre-
vent parents from choosing a specific educational program,”
but they do not afford parents a right to compel public schools
to follow their own idiosyncratic views as to what information
the schools may dispense. Parents have a right to inform their
children when and as they wish on the subject of sex; they
have no constitutional right, however, to prevent a public
school from providing its students with whatever information
it wishes to provide, sexual or otherwise, when and as the
school determines that it is appropriate to do so.
Neither Meyer nor Pierce provides support for the view
that parents have a right to prevent a school from providing
any kind of information — sexual or otherwise — to its stu-
dents. As the Brown court said, “Meyer and Pierce do not
encompass [the] broad-based right [the parent-plaintiffs seek]
to restrict the flow of information in the public schools.” Id.
at 534. Although the parents are legitimately concerned with
the subject of sexuality, there is no constitutional reason to
distinguish that concern from any of the countless moral, reli-
gious, or philosophical objections that parents might have to
other decisions of the School District — whether those objec-
tions regard information concerning guns, violence, the mili-
tary, gay marriage, racial equality, slavery, the dissection of
animals, or the teaching of scientifically-validated theories of
the origins of life. Schools cannot be expected to accommo-
date the personal, moral or religious concerns of every parent.
Such an obligation would not only contravene the educational
mission of the public schools, but also would be impossible
to satisfy.
As the First Circuit made clear in Brown, once parents
make the choice as to which school their children will attend,
FIELDS v. PALMDALE SCHOOL DIST. 15075
their fundamental right to control the education of their chil-
dren is, at the least, substantially diminished. The constitution
does not vest parents with the authority to interfere with a
public school’s decision as to how it will provide information
to its students or what information it will provide, in its class-
rooms or otherwise. See Yoder, 406 U.S. at 205. Perhaps the
Sixth Circuit said it best when it explained, “While parents
may have a fundamental right to decide whether to send their
child to a public school, they do not have a fundamental right
generally to direct how a public school teaches their child.
Whether it is the school curriculum, the hours of the school
day, school discipline, the timing and content of examina-
tions, the individuals hired to teach at the school, the extracur-
ricular activities offered at the school or, as here, a dress code,
these issues of public education are generally ‘committed to
the control of state and local authorities.’ ” (citations omitted)
(emphasis in original). Blau v. Fort Thomas Pub. Sch. Dist.,
401 F.3d 381, 395-96 (6th Cir. 2005). We endorse and adopt
the Sixth Circuit’s view.7
The parents argue that the reasoning in Brown should not
be followed in this case because the AIDS assembly being
challenged in that case was part of the general curriculum,
and there is a “curriculum exception” to the Meyer-Pierce
right which supported that court’s disposition of that case.
The parents cite no case recognizing such a curriculum excep-
tion. They simply urge that we create one, and then hold that
in all other respects Meyer-Pierce controls all matters relating
to education and the educational system. That is not how the
courts have analyzed the issue, see, e.g., Blau, and we see no
reason to follow a different course.
[4] Brown and Blau compel the conclusion that what
Meyer-Pierce establishes is the right of parents to be free
from state interference with their choice of the educational
7
We offer no comment as to any First Amendment issues that may arise
with respect to any of these matters.
15076 FIELDS v. PALMDALE SCHOOL DIST.
forum itself, a choice that ordinarily determines the type of
education one’s child will receive. The School District’s
design and administration of the survey in no way interfered
with that right. Indeed, it was only because the parents had
selected the school they did that their children were asked the
questions to which the parents objected. The state action at
issue simply does not fall within the Meyer-Pierce proscrip-
tion.
In sum, we affirm that the Meyer-Pierce right does not
extend beyond the threshold of the school door. The parents’
asserted right “to control the upbringing of their children by
introducing them to matters of and relating to sex in accor-
dance with their personal and religious values and beliefs,” by
which they mean the right to limit what public schools or
other state actors may tell their children regarding sexual mat-
ters, is not encompassed within the Meyer-Pierce right to con-
trol their children’s upbringing and education. Accordingly,
Meyer-Pierce provides no basis for finding a substantive due
process right that could have been violated by the defendants’
authorization and administration of the survey.
B. Privacy
The parents argue alternatively that the right “to control the
upbringing of their children by introducing them to matters of
and relating to sex in accordance with their personal and reli-
gious values and beliefs” is encompassed within their consti-
tutional “right to privacy with respect to intimate decisions.”
The defendants argue that no such right to privacy exists inde-
pendent of the substantive due process rights already ana-
lyzed, and that, in any event, any such right to privacy is not
implicated by the state’s actions here.
[5] The nature of the relationship between the privacy right
protecting intimate decision-making and the Meyer-Pierce
right is far from clear. The parents suggest that “the two sepa-
rate rights are inextricably intertwined in modern constitu-
FIELDS v. PALMDALE SCHOOL DIST. 15077
tional jurisprudence.” Some courts, including the district
court, have construed the two rights as one and the same when
discussing a parent’s privacy interest in controlling the
upbringing and education of children. See, e.g., Brown, 68
F.3d at 532-34. Both theories find their roots in substantive
due process. To the extent that the two are “inextricably inter-
twined,” the failure of the parents to state a claim under
Meyer-Pierce disposes of their privacy argument. For pur-
poses of this opinion, however, we will also analyze the pri-
vacy right separately.
Although the right to privacy provides a different source
for the right the parents seek to assert than does Meyer-
Pierce, like Meyer-Pierce it does not encompass that right.
The Supreme Court has identified at least two constitutionally
protected privacy interests: the right to control the disclosure
of sensitive information and the right to “independence when
making certain kinds of important decisions.” Whalen v. Roe,
429 U.S. 589, 599-600 (1977). The parents do not allege that
their children were forced to disclose private information.
Their argument here is only that the survey violated their own
right to make important decisions regarding the manner and
timing of exposing their children to sexual matters.8
[6] In its earliest formulation, the right to privacy was used
essentially to protect the family structure. See Pierce, 268
U.S. at 510 (affirming family’s right to be free from all but
the most necessary state interference); Meyer, 262 U.S. at 390(same). Courts have since found, however, that the right to
privacy also protects important parental decisions such as
whether to bear children, who has control over children, and
other decisions related to procreative autonomy. See Carey v.
Population Servs. Int’l, 431 U.S. 678, 684-86 (1977) (holding
8
No claim is asserted that either the childrens’ or the parent’s rights
were violated because the children were compelled to disclose personal or
sensitive information. Thus, we do not consider any question of compul-
sory disclosure of such information here.
15078 FIELDS v. PALMDALE SCHOOL DIST.
state’s restrictions on sale of contraceptives an unconstitu-
tional intrusion on the right to decide privately whether to
have children); Roe v. Wade, 410 U.S. 113 (1973) (holding
that the right to abortion falls within the right to privacy);
Stanley v. Illinois, 405 U.S. 645, 651 (1972) (affirming the
equal rights of unmarried fathers to the custody of their chil-
dren); Eisenstadt v. Baird, 405 U.S. 438, 453-54 (1972) (dis-
cussing privacy right to beget children). It also encompasses
a right of sexual intimacy. See Lawrence v. Texas, 539 U.S.
558 (2003). We cannot overstate the significance of these
rights. They symbolize the importance of our evolving under-
standing of the nature of our Constitution. See Stephen G.
Breyer, Active Liberty: Interpreting Our Democratic Consti-
tution (2005). Here, however, the survey simply did not inter-
fere with the right of the parents to make intimate decisions.
Making intimate decisions and controlling the state’s determi-
nation of information regarding intimate matters are two
entirely different subjects. No constitutional provision prohib-
its the dissemination of information to children, or to adults
(unless it is the Treason Clause). Thus, the right of the parents
“to control the upbringing of their children by introducing
them to matters of and relating to sex in accordance with their
personal and religious values and beliefs” is not protected by
the constitutional right to privacy, at least not as that pur-
ported right is understood by the parents in this case.
C. Rational Basis Review
[7] Governmental actions that infringe upon a fundamental
right receive strict scrutiny. See Mullins v. Oregon, 57 F.3d
789, 793 (9th Cir. 1995). However, government actions that
do not affect fundamental rights or liberty interests and do not
involve suspect classifications will be upheld if it they are
rationally related to a legitimate state interest. See Vacco v.
Quill, 521 U.S. 793 (1997); Doe v. Tandeske, 361 F.3d 594,
597 (9th Cir.), cert. denied, 125 S. Ct. 56 (2004). Because we
hold that the School District’s administration of the survey
did not violate a fundamental right, strict scrutiny does not
FIELDS v. PALMDALE SCHOOL DIST. 15079
apply. We therefore review the parents’ federal claims by
applying the rational basis test. Id. We start from the premise
that courts must be wary of “[j]udicial interposition in the
operation of the public school system of the Nation.” Goss v.
Lopez, 419 U.S. 565, 578 (1975) (quoting Epperson v. Arkan-
sas, 393 U.S. 97, 104 (1968)); see also Vernonia Sch. Dist.
47J v. Acton, 515 U.S. 646, 656-57 (1995); Yoder, 406 U.S.
at 235; Blau, 401 F.3d at 393.
The parents offer two arguments with respect to our ratio-
nal basis review. First, the complaint alleges on information
and belief that there was no legitimate governmental purpose
to the survey and that it was undertaken in order to benefit
Seymour’s academic career. The allegation is entirely specu-
lative and conclusory in nature. No facts are offered in sup-
port of the parents’ theory. Although in other circumstances
we might dismiss such an allegation with leave to amend, it
is apparent here that such a dismissal could not in the end aid
the parents in stating a claim. Attached to the complaint is
detailed information setting forth the legitimate governmental
purpose of the survey and explaining with specificity how the
information obtained will be used for educational purposes
and how it will ultimately benefit the School District and its
children. Given the inclusion in the complaint of this specific
information establishing the legitimacy of the School Dis-
trict’s action, we must, even for purposes of a motion to dis-
miss, approach the application of the rational basis test from
the premise that the School District had a legitimate educa-
tional purpose in undertaking the survey.
The parents also argue that the survey cannot pass review
because it was not a part of the school’s curriculum, and
information regarding sexual matters may be conveyed only
as part of a student’s academic studies. The curriculum argu-
ment also fails. First, neither education itself nor the legiti-
mate functions of a public school are limited to the
curriculum. See Blau discussed supra at pp. 15075-76 and
adopted herein. Such a view construes too narrowly the aims
15080 FIELDS v. PALMDALE SCHOOL DIST.
of education and fails to recognize the unique role that it plays
in American society. See Plyler v. Doe, 457 U.S. 202, 221
(1982) (stating that public education is not “merely some gov-
ernmental ‘benefit’ indistinguishable from other forms of
social welfare legislation”); Sch. Dist. of Abington v.
Schempp, 374 U.S. 203, 230 (1963) (Brennan, J., concurring)
(calling public education “a most vital civic institution for the
preservation of a democratic system of government”). One
need review only the Supreme Court’s unanimous decision in
Brown v. Board of Education, 347 U.S. 483 (1954), for a
reminder of the state’s compelling interest in the broad ends
of education, the scope of which extend far beyond “curricu-
lum”:
Today, education is perhaps the most important
function of state and local governments. Compulsory
school attendance laws and the great expenditures
for education both demonstrate our recognition of
the importance of education to our democratic soci-
ety. It is required in the performance of our most
basic public responsibilities, even service in the
armed forces. It is the very foundation of good citi-
zenship. Today it is a principal instrument in awak-
ening the child to cultural values, in preparing him
for later professional training, and in helping him to
adjust normally to his environment. In these days, it
is doubtful that any child may reasonably be
expected to succeed in life if he is denied the oppor-
tunity of an education.
Id. at 493. In fine, education is not merely about teaching the
basics of reading, writing, and arithmetic. Education serves
higher civic and social functions, including the rearing of chil-
dren into healthy, productive, and responsible adults and the
cultivation of talented and qualified leaders of diverse back-
grounds. See Grutter v. Bollinger, 539 U.S. 306 (2003). The
defendants prepared the psychological survey as an “assess-
ment [ ] to establish a community baseline measure of chil-
FIELDS v. PALMDALE SCHOOL DIST. 15081
dren’s exposure to early trauma.” Protecting the mental health
of children falls well within the state’s broad interest in edu-
cation.
Second, the psychological survey’s ultimate objective was,
according to an exhibit to the complaint, to improve students’
ability to learn. The exhibit reveals that the survey was
intended to gauge exposure to early trauma and to assist in
designing an intervention program to help the School District
reduce barriers to students’ ability to learn. Although the stu-
dents who were questioned may or may not have “learned”
anything from the survey itself and may or may not have been
“taught” anything by the questions they were asked, the facili-
tation of their ability to absorb the education the school pro-
vides is without question a legitimate educational objective. It
is indeed more directly within the school’s basic educational
mission, than, for example, requiring students to wear uni-
forms or to participate in community service, both of which
some courts have held constitutional. See Littlefield, 268 F.3d
at 291 (“While [p]arents may have a fundamental right in the
upbringing and education of their children, this right does not
cover the [p]arents’ objection to a public school Uniform Pol-
icy.”); Herndon, 89 F.3d at 176 (requiring high school stu-
dents to perform community service in order to graduate does
not violate parents’ right to control the education of their chil-
dren). See also Swanson, 135 F.3d at 699 (“Federal courts
addressing the issue have held that parents have no right to
exempt their children from certain reading programs the par-
ents found objectionable, or from a school’s community-
service requirement, or from an assembly program that
included sexually explicit topics.”) (citations omitted).
Finally, apart from any discussion of whether the survey
was intended to aid the educational process, the questioning
can also be justified on the basis of an alternative state interest
— namely, parens patriae. See Prince, 321 U.S. at 166-67.
The defendants argue that the survey was intended to gauge
the mental health of the School District’s students by “iden-
15082 FIELDS v. PALMDALE SCHOOL DIST.
tify[ing] internal behaviors such as anxiety and depression
and external behaviors such as aggression and verbal abuse.”
In this respect, the School District’s interest in the mental
health of its students falls well within the state’s authority as
parens patriae. As such, the School District may legitimately
play a role in the care and nurture of children entrusted to
them for schooling. See id. at 166 (ruling that the state “as
parens patriae” may supplement or even in some circum-
stances supplant parents’ interest in the custody, care, and
nurture of their children “by requiring school attendance, reg-
ulating or prohibiting the child’s labor and in many other
ways”) (citations omitted). See also Parham v. J.R., 442 U.S.
584 (1979) (holding that a state’s scheme for committing chil-
dren to mental health care in state hospitals, when the child
is the ward of the state, comported with due process); Stanley,
405 U.S. at 652 (“We do not question the assertion that
neglectful parents may be separated from their children.”);
Jacobson v. Massachusetts, 197 U.S. 11 (1905) (upholding
state mandatory vaccination laws, as reasonable protection of
public health and safety, against a parental challenge).
[8] Given the broad aims of education and the state’s inter-
est as parens patriae, there can be no question that the School
District’s interests in effective education and the mental
health of its students are legitimate ends. See Parham, 442
U.S. at 603 (“[A] state is not without constitutional control
over parental discretion in dealing with children when their
physical or mental health is jeopardized.”) (citation omitted);
Hunter v. Regents, 190 F.3d 1061, 1067 (9th Cir. 1999)
(“California has a compelling interest in providing effective
education . . . .”). Equally so, it is reasonable for the School
District to believe that the students’ answers to questions
posed by its employee, who was trained in evaluating mental
health, would aid the establishment of a district-wide inter-
vention program to identify and treat barriers to learning
caused by exposure to childhood trauma. Accordingly, the
School District’s administration of the survey was rationally
FIELDS v. PALMDALE SCHOOL DIST. 15083
related to its legitimate state interest in effective education
and the mental welfare of its students.
Although we reach our conclusions with little difficulty and
firmly endorse the School District’s authority to conduct a
survey for the purposes involved here, we reiterate that we
express no view on the wisdom of posing some of the particu-
lar questions asked or of conducting an inquiry into some of
the particular areas surveyed by the School District. That
determination is properly left to the school authorities.
III.
In summary, we hold that there is no free-standing funda-
mental right of parents “to control the upbringing of their chil-
dren by introducing them to matters of and relating to sex in
accordance with their personal and religious values and
beliefs” and that the asserted right is not encompassed by any
other fundamental right. In doing so, we do not quarrel with
the parents’ right to inform and advise their children about the
subject of sex as they see fit. We conclude only that the par-
ents are possessed of no constitutional right to prevent the
public schools from providing information on that subject to
their students in any forum or manner they select. We further
hold that a psychological survey is a reasonable state action
pursuant to legitimate educational as well as health and wel-
fare interests of the state. Accordingly, the parent-appellants
have failed to state a federal claim upon which relief may be
granted. The decision of the district court is affirmed.
AFFIRMED.