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.
The opinion of the court was delivered by: Fisher, Circuit Judge.
Before: ALITO, SMITH and FISHER, Circuit Judges.
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 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 On appeal, this Court reversed in part and remanded for further proceedings. 281 F.3d 219 (3d Cir. 2001) (unpublished).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.
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 "Executive Director of Community Education"),*fn1 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).*fn2
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. 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.*fn3 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 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 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 . The results of the survey will be reported at a community meeting in December at the Ridgewood Public Library.
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."*fn4 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 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:
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 young people in grades 7-12.*fn5 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.
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].
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,*fn6 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:
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.
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.*fn7 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 (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 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 ...