C.N. v. Ridgewood Board of Education

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Precedential or Non-Precedential: Precedential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

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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

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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.

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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

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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.

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