United States District Court, District of New Jersey
February 15, 2001
C.N., INDIVIDUALLY AND AS GUARDIAN AD LITEM OF J.N., ET AL.,
RIDGEWOOD BOARD OF EDUCATION, ET AL.
The opinion of the court was delivered by: Nicholas H. Politan, United States District Judge
THE ORIGINAL OF THIS LETTER OPINION
IS ON FILE WITH THE CLERK OF THE COURT
This matter comes before the Court on the plaintiffs'
motion for a preliminary injunction and the
defendants' motion for summary judgment. The Court
heard oral argument on September 18, 2000. For the
reasons explained below, the plaintiffs' motion for a
preliminary injunction is DENIED, and the defendants'
motion for summary judgment is GRANTED. This case is
It is said that no good deed goes unpunished, or, at least in this
case, unlitigated. The plaintiffs in this action, all residents of the
Village of Ridgewood, are the parents of three minor girls who attend
Ridgewood public schools. C.N. is the mother of plaintiff J.N., age 15;
L.M. is the mother of plaintiff V.M., age 12; and M.E. is the mother of
plaintiff J.E., age 17.*fn1 At the time the events surrounding this
action occurred, J.N. and J.E. were students at Ridgewood High School and
V.M. was a student at the Benjamin Franklin Middle School. Defendants are
the Ridgewood Board of Education and several school administrators,
including Frederick J. Stokley, Superintendent of schools; Joyce Snider,
Assistant Superintendent; Ronald Verdicchio, member of the central
administration; Robert Weakley, Director of Human Resources; John
Mucciolo, Ridgewood High School Principal; Anthony Bencivenga, Benjamin
Franklin Middle School Principal; and Sheila Brogan, President of the
Board of Education.
In September 1998, an organization called the Human Resources
Coordinating Council ("HRCC") in Ridgewood, which is comprised of public
and private social service agencies, assembled a group of community
members whose purpose was to assess the needs and interests of
Ridgewood's youth. The group concluded that it was necessary for
Ridgewood to survey the student population to gain insight into the
needs, attitudes, and behavior patterns of the town's youth.*fn2 The
group met with public organizations and private citizens throughout 1999
and elicited comment regarding the survey. The HRCC created a "Vision
Team" to supervise the project, which included thirty persons from every
sector of the community, including school officials and one student.
Prior to the culmination of the 1998-99 school year, the Superintendent,
Frederick J. Stokley, notified all parents in May 1999 that the survey
would be administered in the fall of 1999, and stated the reasons behind
the survey. On September 1, 1999, Superintendent Stokley again notified
all parents of the survey and advised that the survey was voluntary and
The survey itself is fairly extensive but apparently was to be filled
out anonymously. There is no space for a student's name or a code, and
students were instructed not to place their names or make any
distinguishing marks on the paper.*fn3 The survey, produced by the
Search Institute of Minneapolis, Minnesota, consisted of 156 questions.
Students answered each question by using a pencil to fill the circle
which corresponded to the appropriate answer, such as "Strongly Agree,"
"Agree," "Not Sure," "Disagree," or "Strongly Disagree." Some of these
questions included the following:
40. I get along well with my parents.
43. If I break one of my parent's rules, I usually get punished.
45. It is against my values to have sex while I am a teenager.
Other questions asked the students whether they had, in the past twelve
months, engaged in certain activities. A student responded to these
questions by similarly filling a circle corresponding to the appropriate
answer, such as "Never," "Once," "Twice," "3-4 Times," or "5 or More
Times." These questions included some of the following:
56. Stolen something from a store.
57. Gotten into trouble with the police.
58. Hit or beat up someone.
59. Damaged property just for fun (such as breaking windows, scratching a
car, putting paint on walls, etc.).
Still other questions asked students how many times over the last two
weeks they had imbibed alcohol, specific types of drugs, or had driven a
vehicle after drinking alcohol. Further areas covered by the survey
included violent and criminal behavior and sexual activity and
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. On March 6, 2000, plaintiffs brought this action
pursuant to 42 U.S.C. § 1983, alleging a deprivation of rights secured
by the First, Fourth, Fifth, and Fourteenth Amendments of the United
States Constitution, the Family Educational Records Privacy Act,
20 U.S.C. § 1232g ("FERPA"), and the Protection of Pupils Rights
Amendment, 20 U.S.C. § 1232h ("PPRA"). The plaintiffs argue that the
survey was highly invasive of the students' privacy and that the Board
did not properly and adequately notify the parents and the students that
the survey was voluntary and anonymous. Specifically, plaintiffs complain
that the Board did not obtain written consent from the parent and/or
parents of each student.
Additionally, plaintiffs allege that prior to the administration of the
survey the defendants failed to notify parents as to how and when the
survey would be administered, how students could elect not to
participate, how nonparticipating students would be accommodated, whether
parental consent would be required before their child could take the
survey, whether parents had a right to object to their child taking the
survey, how parents could object to their child taking the survey, and
whether certain questions would be subject to a Fifth Amendment right
Plaintiffs have filed for preliminary injunctive relief, while
defendants have moved for summary judgment. For the following reasons,
the Court will grant defendants' motion for summary judgment. Because
summary judgment is appropriate, plaintiffs' preliminary injunction
request is denied.
I. Summary Judgment Standard
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment
is appropriate only if the "pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if
any, show that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law."
Fed.R.Civ.P. 56(c). Summary judgment may be granted against a party who
fails to adduce facts sufficient to establish the existence of any
element essential to that party's case, for which that party will bear
the ultimate burden of proof at trial. See Celotex Corp. v. Catrett,
477 U.S. 317, 322-23 (1986).
The moving party bears the initial burden of identifying evidence that
demonstrates the absence of a genuine issue of material fact. See id. at
323. Whether a fact is material is determined by the applicable
substantive law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). An issue involving a material fact is genuine "if the evidence is
such that a reasonable jury could return a verdict for the nonmoving
party." Healy v. New York Life Ins. Co., 860 F.2d 1209, 1219 n. 3 (3d
Cir. 1988), cert. denied, 490 U.S. 1098 (1989). Once that burden has been
met, the nonmoving party must set forth "specific facts showing that
there is a genuine issue for trial," or the factual record will be taken
as presented by the moving party and judgment will be entered as a matter
of law. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986). In determining whether any genuine issues of
material fact exist, the Court must resolve "all inferences, doubts, and
issues of credibility. . . . against the moving party." Meyer v. Riegel
Prods. Corp., 720 F.2d 303, 307 n. 2 (3d Cir. 1983) (citing Smith v.
Pittsburgh Gage & Supply Co., 464 F.2d 870, 874 (3d Cir. 1972)).
Further, the nonmovant must "do more than simply show that there is
some metaphysical doubt as to the material facts." Matsushita, 475 U.S.
at 586. An issue is "material" only if the dispute "might affect the
outcome of the suit under the governing law." Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). To defeat "a properly supported summary
judgment motion, the party opposing it must present sufficient evidence
for a reasonable jury to find in its favor." Groman v. Tp. of Manalapan,
47 F.3d 628, 633 (3d Cir. 1995). Accordingly, the party opposing summary
judgment may not merely restate the allegations of its pleadings. See
Farmer v. Carlson, 685 F. Supp. 1335, 1339 (M.D.Pa. 1988). Moreover, a
party cannot rely upon self-serving conclusions, unsupported by specific
facts in the record. See Celotex, 477 U.S. at 322-23. If the record, as a
whole, cannot "lead a rational trier of fact to find for the nonmoving
party, there is no `genuine issue for trial.'" Matsushita, 475 U.S. at
II. § 1983 Action Against the Board of Education
The touchstone of a Section 1983 action against a local government body
is an allegation that official policy or custom is responsible for the
deprivation of the plaintiff's constitutional rights. See Monell v. Dep't
of Social Servs., 436 U.S. 658, 690-91 (1978). "[M]unicipal liability
under § 1983 attaches where — and only where — a deliberate choice to
follow a course of action is made from among various alternatives by the
official or officials responsible for establishing final policy with
respect to the subject matter in question." Pembaur v. City of
Cincinnati, 475 U.S. 469, 483-84 (1986). There must exist "affirmative
decisions of individual policymaking officials." Carter v. Morris,
164 F.3d 215, 218 (4th Cir. 1999) (citing Pembaur v. City of Cincinnati,
475 U.S. 469, 483-84 (1986)).
As defendants argue, plaintiffs cannot maintain a § 1983 action
against the Ridgewood Board of Education because the allegations lodged
against the Board are not a reflection of Board policy, but rather a
violation of Board policy. The Court is inclined to agree. The gravamen
of the Complaint is that defendants violated the PPRA, the FERPA, and the
First, Fourth, Fifth, and Fourteenth Amendments by failing to provide
parents and students with proper notice that the survey was voluntary, by
implementing a mandatory survey, and by failing to obtain the written
consent of the parents.
The evidence, however, shows the parents were given ample notice that
the survey was voluntary and anonymous. Superintendent Stokley sent a
letter to the parents on September 1, 1999, specifically emphasizing in
underlined print that the survey was to be "voluntary" and "anonymous."
The first sentence in the directions for administering the survey, which
were given to all teachers, reads "Students should be informed that the
survey is anonymous and voluntary." The directions give further guidance
in the event a student elects not to fill out the survey. Notwithstanding
any subjective belief on the part of the students that the survey was
mandatory, all of the objective indicia point to the administration of a
voluntary and anonymous survey. Therefore, the official policy of the
Board was that the survey be administered voluntarily and anonymously.
Consequently, even assuming employees of the Board failed to follow
this directive, their actions cannot be characterized as carrying out the
policy of the Board. Rather, if we were to assume the teachers who
implemented the survey actually administered the survey in a mandatory
fashion, this is instead a violation of the Board's policy. Accordingly,
based on Monell, plaintiffs cannot maintain a § 1983 cause of action
against the Board of Education.*fn4
III. Qualified Immunity
The individual defendants seek cover under the doctrine of qualified
immunity. The issue of qualified immunity should be decided as early in
the litigation as possible so as to relieve government officials of the
burden of broad-reaching discovery. See Crawford-El v. Britton,
523 U.S. 574, 600 (1998); Siegert v. Gilley, 500 U.S. 226, 232 (1991).
Municipal officers enjoy qualified immunity if "their conduct does not
violate clearly established statutory or constitutional rights of which a
reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800,
818 (1982). To defeat the qualified immunity defense of a municipal
officer sued in his individual capacity, a plaintiff must demonstrate
that "`the particular actions taken by defendant were impermissible under
law established at that time.'" W.B. v. Matula, 67 F.3d 484, 500 (3d
Cir. 1995) (quoting P.C v. McLaughlin, 913 F.2d 1033, 1040 (2d Cir.
A right is clearly established if "[t]he contours of the right [are]
sufficiently clear that a reasonable official would understand that what
he is doing violates that right." Anderson v. Creighton, 483 U.S. 635,
640 (1987). By contrast, if "the law is not established clearly when an
official acts, he is entitled to qualified immunity because he `could not
reasonably be expected to anticipate subsequent legal developments.'"
Matula, 67 F.3d at 499 (quoting In re City of Philadelphia, 49 F.3d 945,
961 (3d Cir. 1995)). On the other hand, the "clearly established"
standard does not require "`precise factual correspondence between
relevant precedents and the conduct at issue.'" In re City of
Philadelphia, 49 F.3d 945, 970 (3d Cir. 1995) (citation omitted). An
official will not be liable for allegedly unlawful conduct so long as his
actions are objectively reasonable under current federal law. See Gruenke
v. Seip, 225 F.3d 290, 299 (3d Cir. 2000) (citing Malley v. Briggs,
475 U.S. 335, 341 (1986)).
Defendants persuasively argue that the law governing student surveys
was not clearly established at the time of the alleged violation. First,
the case law demonstrates that at the time the survey was administered,
the question of whether the PPRA even applied to this survey was not
Courts have held that where no federal funds are used in a program,
schoolchildren cannot challenge the program under the PPRA. See Altman
v. Bedford Cent. Sch. Dist., 45 F. Supp.2d 368, 390 (S.D.N.Y. 1999);
Herbert v. Reinstein, 976 F. Supp. 331, 339 (E.D.Pa. 1997). In this
case, there is evidence that the survey was actually funded solely by the
township. In addition, the Department of Education has yet to promulgate
regulations which might explain when a survey falls under the tentacles
of the PPRA.
Further, plaintiffs' Complaint asserts that defendants did not first
obtain the written consent of the parents before administering the
survey. But the PPRA calls for written parental consent only before any
minor pupil can be "required" to submit to a survey. See
20 U.S.C. § 1232h(b). Where the survey is not "required," i.e., where
it is voluntary, no written parental consent is necessary, and the PPRA
is silent regarding the proper method by which students and parents are
to be notified that student participation is not "required."*fn5 No
rules or regulations have been promulgated which prescribe the
appropriate manner in which students and parents are to be informed that
the survey is voluntary. The case law on this point is similarly sparse.
Therefore, it is this Court's opinion that the issue of whether the Board
was required to comply with the PPRA was not clearly established at the
time. Likewise, the law concerning the proper method of informing
students and parents of the voluntary nature of the survey was not
Furthermore, the law regarding the proper administration of a survey
was not clearly established at the time the defendants administered the
survey in question. In sum, at the time of the alleged violations the
"contours of current law" pertaining to the PPRA as it relates to the
administration of student surveys would not put a reasonable defendant on
notice that his conduct would violate the PPRA. Accordingly, the
individual defendants are entitled to qualified immunity as to the PPRA
Turning to the plaintiffs' constitutional claims, a review of the case
law reveals that the defendants' actions were objectively reasonable
under federal law. There 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 Amendment rights of parents
to raise their children; their Fourth, Fifth and Fourteenth Amendment
rights to privacy; or their Fifth Amendment rights against
The cases cited by plaintiffs supposedly supporting their position are
easily distinguishable. It would strain logic to conclude that under
these circumstances a reasonable public official would know that his or
her specific conduct violated plaintiffs' constitutional rights.
Accordingly, the individual defendants are entitled to qualified immunity
as to the constitutional claims. Summary judgment is therefore
IV. The PPRA and FERPA Claims
Even assuming the Board and individual defendants were not immune to
suit, plaintiffs' claims nevertheless fail on the merits. Although one
may sue under 42 U.S.C. § 1983 to vindicate violations of the
Constitution or federal statutes, plaintiffs cannot establish that the
PPRA or FERPA even apply to this situation. Moreover, plaintiffs have not
proffered a scintilla of evidence showing the defendants violated the PPRA
Section 1983 provides a federal cause of action in cases where an
individual's constitutional rights are violated by another acting under
color of state law. Section 1983 provides, in pertinent part:
Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of Columbia,
subjects, or causes to be subjected, any citizen of the United States or
other person within the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the Constitution and laws,
shall be liable to the party injured in an action at law, suit in
equity, or other proper proceeding for redress. . . .
42 U.S.C. § 1983. The statute "is not itself a source of substantive
rights, but a method for vindicating federal rights elsewhere conferred
by those parts of the United States Constitution and federal statutes
that it describes." Alexander v. Whitman, 114 F.3d 1392, 1400 (3d Cir.),
cert. denied, 522 U.S. 949 (1997) (quoting Baker v. McCollan, 443 U.S. 137,
145 n. 3 (1979)). Therefore, in order to establish a claim under Section
1983, a plaintiff "must demonstrate a violation of a right secured by the
Constitution and the laws of the United States [and] that the alleged
deprivation was committed by a person acting under color of state law."
Mark v. Borough of Hatboro, 51 F.3d 1137, 1141 (3d Cir.), cert. denied,
516 U.S. 858 (1995) (quoting Moore v. Tartler, 986 F.2d 682, 685 (3d
Plaintiffs cannot establish either that the PPRA applies to this case
or, assuming it does, that a violation of the PPRA occurred. The PPRA
prohibits requiring students to submit to a survey concerning certain
personal issues without prior written consent of the parent.*fn8 As the
statute provides, no student shall be "required" to submit to a survey as
part of "any applicable program."
Plaintiffs cannot establish that the survey was administered as part of
an "applicable program." As defined by the General Education Provisions
Act, 20 U.S.C. § 1221 et seq. ("GEPA"), an "applicable program" is
[A]ny program for which the Secretary or the Department has
administrative responsibility as provided by law or by delegation of
authority pursuant to law. The term includes each program for which the
Secretary or the Department has administrative responsibility under the
Department of Education Organization Act [20 U.S.C. § 3401 et seq.]
or under Federal law effective after May 4, 1980.
20 U.S.C. § 1221(c)(1). "The text of the statute and the regulations
implementing it indicate that Section 1232h was meant to apply only to
programs administered by the Secretary of Education." Herbert v.
Reinstein, 976 F. Supp. 331, 340 (E.D.Pa. 1997).
As the defendants correctly point out, the statute and the regulations
promulgated by the Department of Education do not define what
administrative responsibility the Secretary or the Department must have
to trigger the PPRA. See 20 U.S.C. § 1221(c)(1); 34 C.F.R. § 98.1.
Although the Department of Education published a notice of proposed rules
on August 28, 1995, those rules were never formally adopted.*fn9 In
defining an "applicable program," courts have pointed to this unadopted
rule and held that where no federal funds are used in a program,
schoolchildren cannot challenge the program under the PPRA. See Altman
v. Bedford Cent. Sch. Dist., 45 F. Supp.2d 368, 390 (S.D.N.Y. 1999);
Herbert, 976 F. Supp. at 339. In this case there is no evidence that the
survey was administered using federal funds. In fact, it appears that the
survey was funded solely by the township. As a result, the plaintiffs
have no claim under the PPRA.
Neither has it been established that the students were "required" to
answer the survey questions. To the contrary, the evidence demonstrates
that the survey was completely voluntary. Whether some students may have
subjectively believed the survey to be mandatory is of no moment — the
objective indicia point to the implementation of a voluntary survey. In a
September 1, 1999, letter to the parents, Superintendent Stokley
specifically cautioned that the survey was "voluntary and anonymous." In
addition, the first sentence in the teachers' instructions for
administering the survey, which were given to all teachers, reads
"Students should be informed that the survey is anonymous and voluntary."
The directions give further guidance in the event a student elects not to
fill out the survey. Clearly, then, the survey was intended to be
voluntary. As such, the PPRA is not applicable and written parental
consent was not necessary.
Plaintiffs stand on even weaker ground with respect to their § 1983
claims under FERPA. The provisions of FERPA do not touch upon the survey
which is at issue in this case. Rather, FERPA governs the accessibility
and privacy of student education records at educational institutions.
FERPA was enacted to ensure access to educational records for parents and
students while protecting the privacy of such records. See Student Press
Law Center v. Alexander, 778 F. Supp. 1227 (D.D.C. 1991). The statute
merely provides that the Secretary of Education is solely responsible for
enforcing its provisions and protections. See 20 U.S.C. § 1232g(f).
The only mention of surveys in the FERPA is found at § 1232g(c),
which is entitled "Surveys or data-gathering activities; regulations."
This section, however, does not contain substantive provisions regarding
surveys, but merely prescribes a time frame by which the Secretary of
Education shall adopt appropriate regulations.
Moreover, FERPA is violated only when there is a "policy or practice"
which prevents the inspection and review of a student's education
records, see 20 U.S.C. § 1232g(a)(1); Weixel v. Bd. of Educ., 2000 WL
1100395, at *7 (S.D.N.Y. Aug. 7, 2000), or by which student education
information is disclosed without parental or student authorization. See
20 U.S.C. § 1232g(b)(1). See also Weixel, 2000 WL 1100395 at *7;
Schuler v. Board of Educ., 2000 WL 134346, at *9-10 (E.D.N.Y. Feb. 1,
2000); Jensen v. Reeves, 45 F. Supp.2d 1265, 1276 (D.Utah 1999) (holding
that FERPA addresses systematic, not individual, violations of student
privacy). Here, there is no "policy or practice" of the Board which
prevents the inspection and review of a student's education records or
which allows student education information to be disclosed without
parental or student authorization. Indeed, it appears that the FERPA is
inapplicable in this case. Accordingly, summary judgment dismissing the
FERPA claim is appropriate.
V. Constitutional Claims
Plaintiffs' claims based on the First, Fourth, Fifth and Fourteenth
Amendments of the Constitution are similarly without merit. The case law
indicates that the First, Fourth, Fifth and Fourteenth Amendments are not
offended by the voluntary and anonymous survey used in this case.
Regarding the First Amendment claim, "[t]he freedom of speech protected
by the First Amendment, though not absolute, includes both the right to
speak freely and the right to refrain from speaking at all." Steirer by
Steirer v. Bethlehem Area Sch. Dist., 987 F.2d 989, 993 (3d Cir. 1993)
(quoting Wooley v. Maynard, 430 U.S. 705, 714 (1977)). Plaintiffs contend
their First Amendment claim falls under the category of "compelled
disclosure" cases. See Leora Harpaz, Justice Jackson's Flag Salute
Legacy: The Supreme Court Struggles to Protect Intellectual
Individualism, 64 Tex. L. Rev. 817, 818 (1986) (distinguishing "[t]wo
distinct kinds of liberty interest [that] support the right to refrain
from expressive activity[,] . . . an interest in not being forced to
reveal information about personal beliefs or associations . . . [and] an
interest in not being forced to belong to any organization or to make any
statements when [individuals] would rather be silent or express different
Plaintiffs' attempt to analogize this case to the so-called "compelled
disclosure" cases is misplaced. This is not a "compelled disclosure" case
because, simply put, the Board of Education compelled nothing. The cases
plaintiffs principally rely upon are inapplicable and involve situations
where a prospective employee is required to either fill out a
questionnaire or authorize release of private information as a condition
to employment. See Fraternal Order of Police, Lodge No. 5 v. City of
Philadelphia, 812 F.2d 105 (3d Cir. 1987); Denius v. Dunlap, 209 F.3d 944
(7th Cir. 2000). In this case, however, the survey was voluntary and not
administered as a condition to gaining employment or any other privilege
or right. No adverse repercussions would occur if a student decided not
to answer the survey. Moreover, here the identities of the students
filling out the survey were completely confidential, whereas in Fraternal
Order of Police, the administrators of the questionnaire would know how
each applicant answered each question. Likewise, the employer in Denius,
through its required condition, would gain access to the plaintiff's
private information and identity.*fn10
This case is also quite different from Shelton v. Tucker, 364 U.S. 479
(1960), where the Supreme Court held that a public school teacher need
not reveal all organizations to which that teacher has belonged for fear
of community hostility or loss of employment. The disclosure in Shelton
was a mandatory condition to gaining employment. Ostensibly, the employer
would review each applicant's information and possibly use that
information in making an employment decision. In this case, however, the
Board of Education attempted to collect personal information in an
anonymous fashion which would be used to analyze the resulting data in
the aggregate. The identity of each individual student, and each
student's answers to the survey, could not be discovered. Counsel for the
Board has also represented that the surveys will be destroyed after the
final results are completed.
Plaintiffs' claim for "unreasonable intrusion into the households" of
the respective plaintiffs in violation of the Fourth and Fourteenth
Amendments suffers from similar infirmities. See Complaint at ¶ 36,
Second Count. As explained above, the survey was voluntary and anonymous
in nature and therefore no intrusion occurred. Plaintiffs cite no case
law or facts which support this cause of action. For the same reasons,
their claim that the defendants "invaded and impaired [their] rights to
privacy under the Fourth, Fifth, and Fourteenth Amendments" must also be
dismissed. See Complaint at ¶ 42, Fourth Count.
The claim alleging violation of plaintiffs' Fifth and Fourteenth
Amendment substantive due process rights to direct the upbringing of
their children also fails on the merits. See Complaint at ¶ 39, Third
Count. It is without question that parents possess a fundamental due
process right to raise their children without undue state interference.
See Gruenke, 225 F.3d at 307. In this case, however, the defendants'
actions do not rise to the level of a constitutional violation, and in no
way infringed upon plaintiffs' rights to raise their children as they see
The majority of cases concerning a parent's fundamental right to make
decisions concerning the care, custody, and control of children involve
the "injection" of the state into the private, familial realm. See
Gruenke, 225 F.3d at 309 (discussing cases involving the "injection of
the state into the process of raising children."). As the Third Circuit
succinctly concluded in Gruenke, the typical parental intrusion case
"involve[s] a situation in which the state has attempted by statute or by
a court's procedural requirements to eliminate a parent's role in the
custody or nurture of the child." Id.
Here, there has been no injection by the defendants into the private
realm of the family.*fn11 The parents were provided with ample notice of
the administration of the survey. Plaintiffs were also informed that the
survey was voluntary and anonymous. Based on these facts, defendants have
in no way impinged on the plaintiffs' rights to raise their children in a
manner in which they choose.*fn12 Consequently, the parental rights
claim must be dismissed.
The claim arising under the Fifth and Fourteenth Amendments with
respect to the right against self-incrimination is easily resolved. See
Complaint at ¶ 45, Fifth Count. Plaintiff C.N. complains that a
handwriting expert could identify her child's survey, thereby exposing
her child to potential criminal prosecution. Such a scenario is difficult
to imagine, considering the students were instructed not to write on the
survey and answered the survey by merely filling a small circle with the
very familiar No. 2 pencil. Counsel for defendants represented at oral
argument that the company which created the survey and collects and
assesses the data likely destroys each survey upon completion of the
survey results. In any event, counsel for defendants also stated that the
Board would destroy the surveys once the final results are completed.
Moreover, the anonymous nature of the survey makes it improbable, if
not impossible, that anyone, let alone law enforcement officials, could
ascertain the identity of any student who filled out the survey. In
fact, this argument was rejected when the Third Circuit revisited
Fraternal Order of Police after a remand and second appeal. See Fraternal
Order of Police, Lodge No. 5 v. City of Philadelphia, 859 F.2d 276,
282-83 (3d Cir. 1988). That court held that requiring police officers to
answer a questionnaire seeking medical information, information
concerning police officer's behavior, and financial information of the
officer and his or her family did not violate the privilege against
self-incrimination because the officers were not compelled to fill out
the application. See Fraternal Order of Police, 859 F.2d at 282-83.
Accordingly, the claim based on self-incrimination under the Fifth and
Fourteenth Amendments is also dismissed.
For the foregoing reasons, the motion of the plaintiffs for a
preliminary injunction is DENIED. The motion of the defendants for summary
judgment is GRANTED. Accordingly, the plaintiffs' Complaint is DISMISSED
WITH PREJUDICE and this case is CLOSED.
An appropriate Final Order accompanies this Letter Opinion.