Fields v. Palmdale School District

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JAMES FIELDS; TAMMANY FIELDS; 

STUART HABERMAN; ROBERT

HOAGLIN; KATHIE HOAGLIN;

VANESSA SHETLER, No. 03-56499

Plaintiffs-Appellants,

v.  D.C. No.

CV-03-00457-JVS

PALMDALE SCHOOL DISTRICT (PSD); OPINION

MICHAEL GEISSER; ARLAND

ATWOOD,

Defendants-Appellees.



Appeal from the United States District Court

for the Central District of California

James V. Selna, District Judge, Presiding

Argued and Submitted

June 2, 2005—Pasadena, California

Filed November 2, 2005

Before: Donald P. Lay,* Stephen Reinhardt, and

Sidney R. Thomas, Circuit Judges.

Opinion by Judge Reinhardt

*The Honorable Donald P. Lay, Senior United States Circuit Judge for

the Eighth Circuit, sitting by designation.

15059

15062 FIELDS v. PALMDALE SCHOOL DIST.

COUNSEL

Erik Gunderson, Esq., Steven C. Shonack, Esq., Gunderson,

Schlichter, Shonack & Handel, LLP, Manhattan Beach, Cali-

FIELDS v. PALMDALE SCHOOL DIST. 15063

fornia; Duane L. Bartsch, Esq., Law Offices of Duane

Bartsch, Manhattan Beach, California, for the plaintiffs-

appellants.

Dennis J. Walsh, Esq., Douglas Lyon, Esq., Law Offices of

Dennis J. Walsh, APC, Encino, California, for the defendants-

appellees.

OPINION

REINHARDT, Circuit Judge:

When parents of schoolchildren in Palmdale, California

learned from their sons and daughters that they had been

questioned in their public elementary school about sexual top-

ics such as the frequency of “thinking about having sex” and

“thinking about touching other peoples’ private parts,” some

of them exercised their constitutional right to take their griev-

ance to the courts. The questioning was part of a survey the

Palmdale School District was conducting regarding psycho-

logical barriers to learning. The parents brought an action in

district court against the School District and two of its offi-

cials for violating their right to privacy and their right “to con-

trol the upbringing of their children by introducing them to

matters of and relating to sex.” They brought both federal and

state claims. The district court dismissed the federal causes of

action for failure to state a claim upon which relief could be

granted and dismissed the state claims without prejudice to

their right to re-file in state court. We agree, and hold that

there is no fundamental right of parents to be the exclusive

provider of information regarding sexual matters to their chil-

dren, either independent of their right to direct the upbringing

and education of their children or encompassed by it. We also

hold that parents have no due process or privacy right to over-

ride the determinations of public schools as to the information

to which their children will be exposed while enrolled as stu-

15064 FIELDS v. PALMDALE SCHOOL DIST.

dents. Finally, we hold that the defendants’ actions were ratio-

nally related to a legitimate state purpose.

I.

Kristi Seymour volunteered as a “mental health counselor”

at Mesquite Elementary School while she was enrolled in a

master’s degree program at the California School of Profes-

sional Psychology. The Palmdale School District, of which

Mesquite was a part, collaborated with the School of Profes-

sional Psychology, the Children’s Bureau of Southern Califor-

nia, and Seymour to develop and administer a psychological

assessment questionnaire for first, third, and fifth grade stu-

dents with the announced goal of “establish[ing] a community

baseline measure of children’s exposure to early trauma (for

example, violence).”

Prior to administering the survey, Seymour mailed a letter

to the parents of the children to be surveyed informing them

of the questionnaire’s nature and purpose, and requesting their

consent to its administration.1 The parental consent letter was

1

The letter states:

“Parental Consent

Dear Parent or Caregiver:

The Palmdale School District is asking your support in participating in

a district-wide study of our first, third and fifth grade children. The study

will be a part of a collaborative effort with The California School of Pro-

fessional Psychology — CSPP/ Alliant International University, Chil-

dren’s Bureau of Southern California and the Palmdale School District.

The goal of this assessment is to establish a community baseline mea-

sure of children’s exposure to early trauma (for example, violence). We

will identify internal behaviors such as anxiety and depression and exter-

nal behaviors such as aggression and verbal abuse. As a result, we will be

designing a district wide intervention program to help children reduce

these barriers to learning, which students can participate in. Please read

this consent letter and if you agree, please sign and send it back to your

school’s principal no later than December 20, 2001.

FIELDS v. PALMDALE SCHOOL DIST. 15065

enclosed in a School District envelope and was mailed using

School District postage. The letter did not explicitly state that

some questions involved sexual topics, although it did specify

that the survey questions were about “early trauma (for exam-

ple, violence)” and there was a warning that “answering ques-

tions may make [the] child feel uncomfortable.”

After the School District approved the survey, Seymour

administered it during school hours at Mesquite Elementary

School. She sat with the students, aged seven to ten, while

they completed the survey and ensured that they read and

responded to each question. The survey included seventy-nine

The assessment will consist of three, twenty-minute self-report mea-

sures, which will be given to your child on one day during the last week

of January. This study is 100% confidential and at no time will the infor-

mation gathered be used to identify your child. Your child will not be pho-

tographed or videotaped. You may refuse to have your child participate or

withdraw from this study at any time without any penalty or loss of ser-

vices to which your child is entitled.

[—page break—]

I am aware that the research study coordinator, Kristi Seymour, one

research assistant, the Palmdale School District, Director of Psychology,

Michael Geisser, and a professor from CSPP, will be the only people who

have access to the study’s information. After the study is completed, all

information will be locked in storage and then destroyed after a period of

five years.

I understand answering questions may make my child feel uncomfort-

able. If this occurs, then, Kristi Seymour, the research study coordinator,

will assist us in locating a therapist for further psychological help if neces-

sary. If I have further questions, I may contact Kristi Seymour at 1529 E.

Palmdale Blvd., Suite 210, Palmdale, CA 93550 at 661.272.9997 x128. I

understand that I will not be able to get my child’s individual results due

to anonymity of the children, but I may get a summary report of the study

results.

I have read this form and understand what it says. I her[e]by agree to

allow my child to participate in this district-wide study.” (emphasis in

original). Additionally, two lines were made available on the “Parental

Consent” form for the “Parent/Caregiver” to sign and date it.

15066 FIELDS v. PALMDALE SCHOOL DIST.

questions testing the frequency that the subjects experienced

a variety of sensations, emotions, thoughts, and experiences.

It was composed of four questionnaires. The first question-

naire contains fifty-four questions and is copyrighted by Psy-

chological Assessment Resources, Inc.2 The children were

asked to rate the following activities, among others, on a scale

from “never” to “almost all the time”: “Bad dreams or night-

mares,” “Feeling dizzy,” “Wanting to yell at people,” “Want-

ing to hurt other people,” “Trying not to have feelings,”

“Can’t stop thinking about something bad that happened to

me,” and “Wanting to kill myself.” Ten of those questions

were about sexual subjects.3 The second part of the survey is

labeled “Bialer-Cromwell LC Scale (Modified).”4 These ques-

tions concentrate on the child subject’s perception of other

people and the external world. The third part follows the same

format as Bialer-Cromwell, but the questions focus upon the

2

Psychological Assessment Resources, Inc. is a leading publisher of

assessment instruments, software, books, and other related materials. See

http://www.parinc.com (last visited Aug. 16, 2005).

3

The sexual references are:

8. Touching my private parts too much

17. Thinking about having sex

22. Thinking about touching other people’s private parts

23. Thinking about sex when I don’t want to

26. Washing myself because I feel dirty on the inside

34. Not trusting people because they might want sex

40. Getting scared or upset when I think about sex

44. Having sex feelings in my body

47. Can’t stop thinking about sex

54. Getting upset when people talk about sex

4

The Bialer-Cromwell Locus of Control Scale is a 23-item, “yes-no”

questionnaire that measures the extent to which a child construes out-

comes as being consequential to his own actions (i.e., internally con-

trolled) rather than due to the whims and/or manipulations of fate, chance,

or other people (i.e., externally controlled).

FIELDS v. PALMDALE SCHOOL DIST. 15067

children’s past traumatic experiences. Among the questions

are the following: Have you ever “[B]een threatened or

chased by a gang?”, “Seen someone get shot?”, “Been in a car

accident?”, “Been touched by someone, on your body, that

made your feel uncomfortable?”, and “Know[n] anyone who

has or is being abused?” The final part is limited to demo-

graphic information such as the student’s grade, race, and

familial living arrangement.

Plaintiffs James and Tammany Fields, Stuart and Kathleen

Haberman, Robert and Kathie Hoaglin, and Vanessa Shetler

are parents of minor children who were enrolled at Mesquite

Elementary School. All of them had children who participated

in the survey. The parent-plaintiffs learned of the sexual

nature of some of the questions on the survey when their chil-

dren informed them of the questions after they had completed

the questionnaires. The parents allege that if they had known

the true nature of the survey, they would not have consented

to their children’s involvement. Prior to filing in federal court,

the parents initially sought redress for their alleged injuries

through an administrative tort claim filed with the Palmdale

School Board. Therein, they alleged that their “basic constitu-

tional right to control” their children’s upbringing had been

“robbed” by the defendants’ actions. Their claim was denied

and they subsequently filed a complaint in district court alleg-

ing four causes of action: (1) violation of their federal consti-

tutional right to privacy; (2) violation of their California

constitutional right to privacy; (3) deprivation of civil rights

pursuant to 42 U.S.C. § 1983; and (4) negligence. The parents

sought damages and injunctive relief.

Defendant Michael Geisser is the Palmdale School Dis-

trict’s Director of Psychological Services, and Arland Atwood

is the principal of Mesquite Elementary School; both Atwood

and Geisser are sued in their official capacities.5 The defen-

5

Although Seymour was named as a defendant in the complaint, she is

not a party to the case. In the notice of appeal, the parent-appellants admit

that she “was not served, has not appeared, and is not a party to this

appeal.”

15068 FIELDS v. PALMDALE SCHOOL DIST.

dants did not file an answer to the complaint. Instead, they

moved under Fed. R. Civ. Pro. 12(b)(6) to dismiss the entire

action for failure to state a claim upon which relief could be

granted. They asserted that there is no deeply rooted and fun-

damental right of parents “to control the upbringing of their

children by introducing them to matters of and relating to sex

in accordance with their personal and religious values and

beliefs.” They further contended that the § 1983 claim was

not viable because the parents’ civil rights had not been vio-

lated and that even if they had, the School District is immune

from suit and the individual defendants are entitled to quali-

fied immunity. Finally, they argued that they are not liable

under California law because their actions were discretionary

and state law immunity applies.

The parents countered that the administration of the survey

violated their constitutional privacy right as well as their right

to control their children’s exposure to sexual subjects, that the

defendants arrogated unto themselves the parents’ right to

determine how their children learn about sexual matters, and

that the defendants are not immune from suit.

After holding a hearing on the motion, the district court dis-

missed the federal claims for “lack of a cognizable legal theo-

ry.” In doing so, it first recharacterized the parents’ privacy

claim as a substantive due process claim because “all of the

Parents’ arguments concerning the claim are grounded in the

Fourteenth Amendment’s Substantive Due Process Clause.

Other than citing generally to privacy cases outside the Four-

teenth Amendment’s scope, the Parents do not connect their

asserted interest . . . to the First, Third, Fourth, Fifth, Ninth,

or Tenth Amendments.” The court ruled next that the right “to

control the upbringing of their children by introducing them

to matters of and relating to sex in accordance with their per-

sonal and religious values and beliefs” does not rise to the

level of a fundamental right protected by Substantive Due

Process. It further concluded that the fundamental right to

direct the upbringing and education of one’s children does not

FIELDS v. PALMDALE SCHOOL DIST. 15069

encompass the right “to control the upbringing of their chil-

dren by introducing them to matters of and relating to sex in

accordance with their personal and religious values and

beliefs.” Finally, the court declined to exercise supplemental

jurisdiction over the state law causes of action and dismissed

them without prejudice. The parents now appeal.

II.

On appeal, the parents challenge the district court’s dis-

missal of their federal claims for failure to state a claim upon

which relief may be granted.6 The district court’s dismissal

pursuant to Rule 12(b)(6) for failure to state a claim is

reviewed de novo. See Zimmerman v. City of Oakland, 255

F.3d 734, 737 (9th Cir. 2001).

The parents argue that the defendants’ actions deprived

them of their free-standing fundamental right “to control the

upbringing of their children by introducing them to matters of

and relating to sex in accordance with their personal and reli-

gious values and beliefs.” They also contend that the right to

“determine when and how their children are exposed to sexu-

ally explicit subject matter” is encompassed within their fun-

damental due process right to control their children’s

upbringing and their constitutional right to privacy to make

intimate familial decisions. They argue that under both doc-

trines they have a fundamental right “to control the upbring-

ing of their children by introducing them to matters of and

relating to sex in accordance with their personal and religious

values and beliefs” and that the defendants’ actions infringing

6

Subsequent to the district court’s dismissal of the federal causes of

action, the court also dismissed without prejudice the state law causes of

action on jurisdictional grounds. The parent-appellants’ opening brief does

not renew their opposition to the district court’s dismissal of the state law

causes of action. Those issues are therefore waived. See Alaska Ctr. for

the Env’t v. U.S. Forest Serv., 189 F.3d 851, 858 n.4 (9th Cir. 1999)

(“Arguments not raised in [an] opening brief are waived.”). Of course, the

parents may pursue the state law causes of action in state court.

15070 FIELDS v. PALMDALE SCHOOL DIST.

that right are therefore subject to strict scrutiny. Finally, they

maintain that even if the court concludes that the deprivation

of their liberty interest in “control[ling] the upbringing of

their children by introducing them to matters of and relating

to sex” is not subject to strict scrutiny, the School District’s

administration of the psychological survey was not rationally

related to a legitimate state end.

A. Meyer-Pierce

We note at the outset that it is not our role to rule on the

wisdom of the School District’s actions. That is a matter that

must be decided in other fora. The question before us is sim-

ply whether the parents have a constitutional right to exclu-

sive control over the introduction and flow of sexual

information to their children. It is clear, and the parents agree,

that no court has ever held that parents have a specific funda-

mental right “to control the upbringing of their children by

introducing them to matters of and relating to sex in accor-

dance with their personal and religious values and beliefs.” In

fact, no such specific right can be found in the deep roots of

the nation’s history and tradition or implied in the concept of

ordered liberty. See Washington v. Glucksberg, 521 U.S. 702,

720-21 (1997). Thus, whether the parents have a constitu-

tional right to exclusive control over the introduction and flow

of sexual information to their children depends entirely upon

whether the asserted right is encompassed within some

broader constitutional right.

[1] The parents next argue that the right they seek to invoke

is encompassed within the fundamental due process right to

“control the education and upbringing of one’s children.” The

Supreme Court has held that the right of parents to make deci-

sions concerning the care, custody, and control of their chil-

dren is a fundamental liberty interest protected by the Due

Process Clause. See Troxel v. Granville, 530 U.S. 57, 66

(2000) (plurality opinion) (“[I]t cannot now be doubted that

the Due Process Clause of the Fourteenth Amendment pro-

FIELDS v. PALMDALE SCHOOL DIST. 15071

tects the fundamental right of parents to make decisions con-

cerning the care, custody, and control of their children.”).

This right is commonly referred to as the Meyer-Pierce right

because it finds its origin in two Supreme Court cases, Meyer

v. Nebraska, 262 U.S. 390 (1923), and Pierce v. Society of

Sisters, 268 U.S. 510 (1925).

[2] As with all constitutional rights, the right of parents to

make decisions concerning the care, custody, and control of

their children is not without limitations. In Prince v. Massa-

chusetts, 321 U.S. 158 (1944), the Court recognized that par-

ents’ liberty interest in the custody, care, and nurture of their

children resides “first” in the parents, but does not reside there

exclusively, nor is it “beyond regulation [by the state] in the

public interest.” Id. at 166. For example, the state “as parens

patriae” may restrict parents’ interest in the custody, care, and

nurture of their children “by requiring school attendance, reg-

ulating or prohibiting the child’s labor and in many other

ways.” Id. (footnotes omitted). See also Runyon v. McCrary,

427 U.S. 160, 177 (1976) (holding that there is no parental

right to educate children in private segregated schools); Nor-

wood v. Harrison, 413 U.S. 455, 461-62 (1973) (discussing

the limited scope of Pierce); Wisconsin v. Yoder, 406 U.S.

205, 239 (1972) (White, J., concurring) (stating that the

Pierce right “lends no support to the contention that parents

may replace state educational requirements with their own

idiosyncratic views of what knowledge a child needs to be a

productive and happy member of society”); Pierce, 268 U.S.

at 534 (“No question is raised concerning the power of the

state reasonably to regulate all schools, to inspect, supervise

and examine them, their teachers and pupils; to require that all

children of proper age attend some school, that teachers shall

be of good moral character and patriotic disposition, that cer-

tain studies plainly essential to good citizenship must be

taught, and that nothing be taught which is manifestly inimi-

cal to the public welfare.”); Hooks v. Clark County Sch. Dist.,

228 F.3d 1036, 1042 (9th Cir. 2000) (subjecting the Meyer-

15072 FIELDS v. PALMDALE SCHOOL DIST.

Pierce right to reasonable regulation by the state), cert.

denied, 532 U.S. 971 (2001).

Likewise, lower courts have recognized the constitutional-

ity of a wide variety of state actions that intrude upon the lib-

erty interest of parents in controlling the upbringing and

education of their children. See Littlefield v. Forney Indep.

Sch. Dist., 268 F.3d 275 (5th Cir. 2001) (upholding school

district’s mandatory school uniform policy); Hooks, 228 F.3d

at 1036 (upholding state statute denying speech therapy ser-

vices to home-schooled children); Hutchins v. District of

Columbia, 188 F.3d 531 (D.C. Cir. 1999) (plurality opinion)

(upholding a municipality’s curfew ordinance that was only

applicable to minors); Swanson v. Guthrie Indep. Sch. Dist.

No. 1-L, 135 F.3d 694 (10th Cir. 1998) (upholding school dis-

trict’s full-time attendance policy); Herndon v. Chapel Hill-

Carrboro City Bd. of Educ., 89 F.3d 174 (4th Cir. 1996)

(upholding school district’s mandatory community service

program).

Finally, there are a number of cases that have upheld the

constitutionality of school programs that educate children in

sexuality and health. See, e.g., Leebaert v. Harrington, 332

F.3d 134 (2d Cir. 2003) (upholding school district’s manda-

tory health classes against a father’s claim of a violation of his

fundamental rights); Parents United for Better Sch., Inc. v.

School Dist. of Philadelphia Bd. of Educ., 148 F.3d 260 (3d

Cir. 1998) (upholding school district’s consensual condom

distribution program); Brown v. Hot, Sexy & Safer Prods.,

Inc., 68 F.3d 525 (1st Cir. 1995) (upholding compulsory high

school sex education assembly program); Citizens for Paren-

tal Rights v. San Mateo County Bd. of Educ., 51 Cal. App. 3d

1 (1975) (upholding school district’s non-compulsory health

and sex education program against parental challenge).

[3] Of particular import to this case is Brown, in which a

compulsory high school assembly presentation aimed at edu-

cating students on AIDS and other health concerns included

FIELDS v. PALMDALE SCHOOL DIST. 15073

explicit references to sexuality. See 68 F.3d at 529. The

Brown plaintiffs alleged that the compelled attendance of

schoolchildren at the assembly deprived the minors and their

parents of their privacy rights, substantive due process rights,

and their right to an educational environment free from sexual

harassment. Rejecting those claims, the First Circuit

explained that,

[t]he Meyer and Pierce cases, we think, evince the

principle that the state cannot prevent parents from

choosing a specific educational program — whether

it be religious instruction at a private school or

instruction in a foreign language. That is, the state

does not have the power to “standardize its children”

or “foster a homogenous people” by completely

foreclosing the opportunity of individuals and groups

to choose a different path of education. We do not

think, however, that this freedom encompasses a

fundamental constitutional right to dictate the curric-

ulum at the public school to which they have chosen

to send their children. We think it is fundamentally

different for the state to say to a parent, “You can’t

teach your child German or send him to a parochial

school,” than for the parent to say to the state, “You

can’t teach my child subjects that are morally offen-

sive to me.” The first instance involves the state pro-

scribing parents from educating their children, while

the second involves parents prescribing what the

state shall teach their children. If all parents had a

fundamental constitutional right to dictate individu-

ally what the schools teach their children, the

schools would be forced to cater a curriculum for

each student whose parents had genuine moral dis-

agreements with the school’s choice of subject mat-

ter. We cannot see that the Constitution imposes

such a burden on state educational systems, and

accordingly find that the rights of parents as

described by Meyer and Pierce do not encompass a

15074 FIELDS v. PALMDALE SCHOOL DIST.

broad-based right to restrict the flow of information

in the public schools.

Id. at 533-34 (citations omitted) (emphasis added). We agree

with and adopt the First Circuit’s analysis. Meyer, Pierce, and

their progeny “evince the principle that the state cannot pre-

vent parents from choosing a specific educational program,”

but they do not afford parents a right to compel public schools

to follow their own idiosyncratic views as to what information

the schools may dispense. Parents have a right to inform their

children when and as they wish on the subject of sex; they

have no constitutional right, however, to prevent a public

school from providing its students with whatever information

it wishes to provide, sexual or otherwise, when and as the

school determines that it is appropriate to do so.

Neither Meyer nor Pierce provides support for the view

that parents have a right to prevent a school from providing

any kind of information — sexual or otherwise — to its stu-

dents. As the Brown court said, “Meyer and Pierce do not

encompass [the] broad-based right [the parent-plaintiffs seek]

to restrict the flow of information in the public schools.” Id.

at 534. Although the parents are legitimately concerned with

the subject of sexuality, there is no constitutional reason to

distinguish that concern from any of the countless moral, reli-

gious, or philosophical objections that parents might have to

other decisions of the School District — whether those objec-

tions regard information concerning guns, violence, the mili-

tary, gay marriage, racial equality, slavery, the dissection of

animals, or the teaching of scientifically-validated theories of

the origins of life. Schools cannot be expected to accommo-

date the personal, moral or religious concerns of every parent.

Such an obligation would not only contravene the educational

mission of the public schools, but also would be impossible

to satisfy.

As the First Circuit made clear in Brown, once parents

make the choice as to which school their children will attend,

FIELDS v. PALMDALE SCHOOL DIST. 15075

their fundamental right to control the education of their chil-

dren is, at the least, substantially diminished. The constitution

does not vest parents with the authority to interfere with a

public school’s decision as to how it will provide information

to its students or what information it will provide, in its class-

rooms or otherwise. See Yoder, 406 U.S. at 205. Perhaps the

Sixth Circuit said it best when it explained, “While parents

may have a fundamental right to decide whether to send their

child to a public school, they do not have a fundamental right

generally to direct how a public school teaches their child.

Whether it is the school curriculum, the hours of the school

day, school discipline, the timing and content of examina-

tions, the individuals hired to teach at the school, the extracur-

ricular activities offered at the school or, as here, a dress code,

these issues of public education are generally ‘committed to

the control of state and local authorities.’ ” (citations omitted)

(emphasis in original). Blau v. Fort Thomas Pub. Sch. Dist.,

401 F.3d 381, 395-96 (6th Cir. 2005). We endorse and adopt

the Sixth Circuit’s view.7

The parents argue that the reasoning in Brown should not

be followed in this case because the AIDS assembly being

challenged in that case was part of the general curriculum,

and there is a “curriculum exception” to the Meyer-Pierce

right which supported that court’s disposition of that case.

The parents cite no case recognizing such a curriculum excep-

tion. They simply urge that we create one, and then hold that

in all other respects Meyer-Pierce controls all matters relating

to education and the educational system. That is not how the

courts have analyzed the issue, see, e.g., Blau, and we see no

reason to follow a different course.

[4] Brown and Blau compel the conclusion that what

Meyer-Pierce establishes is the right of parents to be free

from state interference with their choice of the educational

7

We offer no comment as to any First Amendment issues that may arise

with respect to any of these matters.

15076 FIELDS v. PALMDALE SCHOOL DIST.

forum itself, a choice that ordinarily determines the type of

education one’s child will receive. The School District’s

design and administration of the survey in no way interfered

with that right. Indeed, it was only because the parents had

selected the school they did that their children were asked the

questions to which the parents objected. The state action at

issue simply does not fall within the Meyer-Pierce proscrip-

tion.

In sum, we affirm that the Meyer-Pierce right does not

extend beyond the threshold of the school door. The parents’

asserted right “to control the upbringing of their children by

introducing them to matters of and relating to sex in accor-

dance with their personal and religious values and beliefs,” by

which they mean the right to limit what public schools or

other state actors may tell their children regarding sexual mat-

ters, is not encompassed within the Meyer-Pierce right to con-

trol their children’s upbringing and education. Accordingly,

Meyer-Pierce provides no basis for finding a substantive due

process right that could have been violated by the defendants’

authorization and administration of the survey.

B. Privacy

The parents argue alternatively that the right “to control the

upbringing of their children by introducing them to matters of

and relating to sex in accordance with their personal and reli-

gious values and beliefs” is encompassed within their consti-

tutional “right to privacy with respect to intimate decisions.”

The defendants argue that no such right to privacy exists inde-

pendent of the substantive due process rights already ana-

lyzed, and that, in any event, any such right to privacy is not

implicated by the state’s actions here.

[5] The nature of the relationship between the privacy right

protecting intimate decision-making and the Meyer-Pierce

right is far from clear. The parents suggest that “the two sepa-

rate rights are inextricably intertwined in modern constitu-

FIELDS v. PALMDALE SCHOOL DIST. 15077

tional jurisprudence.” Some courts, including the district

court, have construed the two rights as one and the same when

discussing a parent’s privacy interest in controlling the

upbringing and education of children. See, e.g., Brown, 68

F.3d at 532-34. Both theories find their roots in substantive

due process. To the extent that the two are “inextricably inter-

twined,” the failure of the parents to state a claim under

Meyer-Pierce disposes of their privacy argument. For pur-

poses of this opinion, however, we will also analyze the pri-

vacy right separately.

Although the right to privacy provides a different source

for the right the parents seek to assert than does Meyer-

Pierce, like Meyer-Pierce it does not encompass that right.

The Supreme Court has identified at least two constitutionally

protected privacy interests: the right to control the disclosure

of sensitive information and the right to “independence when

making certain kinds of important decisions.” Whalen v. Roe,

429 U.S. 589, 599-600 (1977). The parents do not allege that

their children were forced to disclose private information.

Their argument here is only that the survey violated their own

right to make important decisions regarding the manner and

timing of exposing their children to sexual matters.8

[6] In its earliest formulation, the right to privacy was used

essentially to protect the family structure. See Pierce, 268

U.S. at 510 (affirming family’s right to be free from all but

the most necessary state interference); Meyer, 262 U.S. at 390

(same). Courts have since found, however, that the right to

privacy also protects important parental decisions such as

whether to bear children, who has control over children, and

other decisions related to procreative autonomy. See Carey v.

Population Servs. Int’l, 431 U.S. 678, 684-86 (1977) (holding

8

No claim is asserted that either the childrens’ or the parent’s rights

were violated because the children were compelled to disclose personal or

sensitive information. Thus, we do not consider any question of compul-

sory disclosure of such information here.

15078 FIELDS v. PALMDALE SCHOOL DIST.

state’s restrictions on sale of contraceptives an unconstitu-

tional intrusion on the right to decide privately whether to

have children); Roe v. Wade, 410 U.S. 113 (1973) (holding

that the right to abortion falls within the right to privacy);

Stanley v. Illinois, 405 U.S. 645, 651 (1972) (affirming the

equal rights of unmarried fathers to the custody of their chil-

dren); Eisenstadt v. Baird, 405 U.S. 438, 453-54 (1972) (dis-

cussing privacy right to beget children). It also encompasses

a right of sexual intimacy. See Lawrence v. Texas, 539 U.S.

558 (2003). We cannot overstate the significance of these

rights. They symbolize the importance of our evolving under-

standing of the nature of our Constitution. See Stephen G.

Breyer, Active Liberty: Interpreting Our Democratic Consti-

tution (2005). Here, however, the survey simply did not inter-

fere with the right of the parents to make intimate decisions.

Making intimate decisions and controlling the state’s determi-

nation of information regarding intimate matters are two

entirely different subjects. No constitutional provision prohib-

its the dissemination of information to children, or to adults

(unless it is the Treason Clause). Thus, the right of the parents

“to control the upbringing of their children by introducing

them to matters of and relating to sex in accordance with their

personal and religious values and beliefs” is not protected by

the constitutional right to privacy, at least not as that pur-

ported right is understood by the parents in this case.

C. Rational Basis Review

[7] Governmental actions that infringe upon a fundamental

right receive strict scrutiny. See Mullins v. Oregon, 57 F.3d

789, 793 (9th Cir. 1995). However, government actions that

do not affect fundamental rights or liberty interests and do not

involve suspect classifications will be upheld if it they are

rationally related to a legitimate state interest. See Vacco v.

Quill, 521 U.S. 793 (1997); Doe v. Tandeske, 361 F.3d 594,

597 (9th Cir.), cert. denied, 125 S. Ct. 56 (2004). Because we

hold that the School District’s administration of the survey

did not violate a fundamental right, strict scrutiny does not

FIELDS v. PALMDALE SCHOOL DIST. 15079

apply. We therefore review the parents’ federal claims by

applying the rational basis test. Id. We start from the premise

that courts must be wary of “[j]udicial interposition in the

operation of the public school system of the Nation.” Goss v.

Lopez, 419 U.S. 565, 578 (1975) (quoting Epperson v. Arkan-

sas, 393 U.S. 97, 104 (1968)); see also Vernonia Sch. Dist.

47J v. Acton, 515 U.S. 646, 656-57 (1995); Yoder, 406 U.S.

at 235; Blau, 401 F.3d at 393.

The parents offer two arguments with respect to our ratio-

nal basis review. First, the complaint alleges on information

and belief that there was no legitimate governmental purpose

to the survey and that it was undertaken in order to benefit

Seymour’s academic career. The allegation is entirely specu-

lative and conclusory in nature. No facts are offered in sup-

port of the parents’ theory. Although in other circumstances

we might dismiss such an allegation with leave to amend, it

is apparent here that such a dismissal could not in the end aid

the parents in stating a claim. Attached to the complaint is

detailed information setting forth the legitimate governmental

purpose of the survey and explaining with specificity how the

information obtained will be used for educational purposes

and how it will ultimately benefit the School District and its

children. Given the inclusion in the complaint of this specific

information establishing the legitimacy of the School Dis-

trict’s action, we must, even for purposes of a motion to dis-

miss, approach the application of the rational basis test from

the premise that the School District had a legitimate educa-

tional purpose in undertaking the survey.

The parents also argue that the survey cannot pass review

because it was not a part of the school’s curriculum, and

information regarding sexual matters may be conveyed only

as part of a student’s academic studies. The curriculum argu-

ment also fails. First, neither education itself nor the legiti-

mate functions of a public school are limited to the

curriculum. See Blau discussed supra at pp. 15075-76 and

adopted herein. Such a view construes too narrowly the aims

15080 FIELDS v. PALMDALE SCHOOL DIST.

of education and fails to recognize the unique role that it plays

in American society. See Plyler v. Doe, 457 U.S. 202, 221

(1982) (stating that public education is not “merely some gov-

ernmental ‘benefit’ indistinguishable from other forms of

social welfare legislation”); Sch. Dist. of Abington v.

Schempp, 374 U.S. 203, 230 (1963) (Brennan, J., concurring)

(calling public education “a most vital civic institution for the

preservation of a democratic system of government”). One

need review only the Supreme Court’s unanimous decision in

Brown v. Board of Education, 347 U.S. 483 (1954), for a

reminder of the state’s compelling interest in the broad ends

of education, the scope of which extend far beyond “curricu-

lum”:

Today, education is perhaps the most important

function of state and local governments. Compulsory

school attendance laws and the great expenditures

for education both demonstrate our recognition of

the importance of education to our democratic soci-

ety. It is required in the performance of our most

basic public responsibilities, even service in the

armed forces. It is the very foundation of good citi-

zenship. Today it is a principal instrument in awak-

ening the child to cultural values, in preparing him

for later professional training, and in helping him to

adjust normally to his environment. In these days, it

is doubtful that any child may reasonably be

expected to succeed in life if he is denied the oppor-

tunity of an education.

Id. at 493. In fine, education is not merely about teaching the

basics of reading, writing, and arithmetic. Education serves

higher civic and social functions, including the rearing of chil-

dren into healthy, productive, and responsible adults and the

cultivation of talented and qualified leaders of diverse back-

grounds. See Grutter v. Bollinger, 539 U.S. 306 (2003). The

defendants prepared the psychological survey as an “assess-

ment [ ] to establish a community baseline measure of chil-

FIELDS v. PALMDALE SCHOOL DIST. 15081

dren’s exposure to early trauma.” Protecting the mental health

of children falls well within the state’s broad interest in edu-

cation.

Second, the psychological survey’s ultimate objective was,

according to an exhibit to the complaint, to improve students’

ability to learn. The exhibit reveals that the survey was

intended to gauge exposure to early trauma and to assist in

designing an intervention program to help the School District

reduce barriers to students’ ability to learn. Although the stu-

dents who were questioned may or may not have “learned”

anything from the survey itself and may or may not have been

“taught” anything by the questions they were asked, the facili-

tation of their ability to absorb the education the school pro-

vides is without question a legitimate educational objective. It

is indeed more directly within the school’s basic educational

mission, than, for example, requiring students to wear uni-

forms or to participate in community service, both of which

some courts have held constitutional. See Littlefield, 268 F.3d

at 291 (“While [p]arents may have a fundamental right in the

upbringing and education of their children, this right does not

cover the [p]arents’ objection to a public school Uniform Pol-

icy.”); Herndon, 89 F.3d at 176 (requiring high school stu-

dents to perform community service in order to graduate does

not violate parents’ right to control the education of their chil-

dren). See also Swanson, 135 F.3d at 699 (“Federal courts

addressing the issue have held that parents have no right to

exempt their children from certain reading programs the par-

ents found objectionable, or from a school’s community-

service requirement, or from an assembly program that

included sexually explicit topics.”) (citations omitted).

Finally, apart from any discussion of whether the survey

was intended to aid the educational process, the questioning

can also be justified on the basis of an alternative state interest

— namely, parens patriae. See Prince, 321 U.S. at 166-67.

The defendants argue that the survey was intended to gauge

the mental health of the School District’s students by “iden-

15082 FIELDS v. PALMDALE SCHOOL DIST.

tify[ing] internal behaviors such as anxiety and depression

and external behaviors such as aggression and verbal abuse.”

In this respect, the School District’s interest in the mental

health of its students falls well within the state’s authority as

parens patriae. As such, the School District may legitimately

play a role in the care and nurture of children entrusted to

them for schooling. See id. at 166 (ruling that the state “as

parens patriae” may supplement or even in some circum-

stances supplant parents’ interest in the custody, care, and

nurture of their children “by requiring school attendance, reg-

ulating or prohibiting the child’s labor and in many other

ways”) (citations omitted). See also Parham v. J.R., 442 U.S.

584 (1979) (holding that a state’s scheme for committing chil-

dren to mental health care in state hospitals, when the child

is the ward of the state, comported with due process); Stanley,

405 U.S. at 652 (“We do not question the assertion that

neglectful parents may be separated from their children.”);

Jacobson v. Massachusetts, 197 U.S. 11 (1905) (upholding

state mandatory vaccination laws, as reasonable protection of

public health and safety, against a parental challenge).

[8] Given the broad aims of education and the state’s inter-

est as parens patriae, there can be no question that the School

District’s interests in effective education and the mental

health of its students are legitimate ends. See Parham, 442

U.S. at 603 (“[A] state is not without constitutional control

over parental discretion in dealing with children when their

physical or mental health is jeopardized.”) (citation omitted);

Hunter v. Regents, 190 F.3d 1061, 1067 (9th Cir. 1999)

(“California has a compelling interest in providing effective

education . . . .”). Equally so, it is reasonable for the School

District to believe that the students’ answers to questions

posed by its employee, who was trained in evaluating mental

health, would aid the establishment of a district-wide inter-

vention program to identify and treat barriers to learning

caused by exposure to childhood trauma. Accordingly, the

School District’s administration of the survey was rationally

FIELDS v. PALMDALE SCHOOL DIST. 15083

related to its legitimate state interest in effective education

and the mental welfare of its students.

Although we reach our conclusions with little difficulty and

firmly endorse the School District’s authority to conduct a

survey for the purposes involved here, we reiterate that we

express no view on the wisdom of posing some of the particu-

lar questions asked or of conducting an inquiry into some of

the particular areas surveyed by the School District. That

determination is properly left to the school authorities.

III.

In summary, we hold that there is no free-standing funda-

mental right of parents “to control the upbringing of their chil-

dren by introducing them to matters of and relating to sex in

accordance with their personal and religious values and

beliefs” and that the asserted right is not encompassed by any

other fundamental right. In doing so, we do not quarrel with

the parents’ right to inform and advise their children about the

subject of sex as they see fit. We conclude only that the par-

ents are possessed of no constitutional right to prevent the

public schools from providing information on that subject to

their students in any forum or manner they select. We further

hold that a psychological survey is a reasonable state action

pursuant to legitimate educational as well as health and wel-

fare interests of the state. Accordingly, the parent-appellants

have failed to state a federal claim upon which relief may be

granted. The decision of the district court is affirmed.

AFFIRMED.