Fields v. Palmdale School District (PSD)

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JAMES FIELDS; TAMMANY FIELDS; 

STUART HABERMAN; ROBERT

HOAGLIN; KATHIE HOAGLIN; No. 03-56499

VANESSA SHETLER, D.C. No.

Plaintiffs-Appellants,

v.  CV-03-00457-JVS

OPINION RE

PALMDALE SCHOOL DISTRICT (PSD); PANEL

MICHAEL GEISSER; ARLAND REHEARING

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

Opinion Filed November 2, 2005

Petition for Rehearing En Banc Filed November 23, 2005

Filed May 17, 2006

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

Sidney R. Thomas, Circuit Judges.

Per Curiam Opinion

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

the Eighth Circuit, sitting by designation.

5417

FIELDS v. PALMDALE SCHOOL DIST. 5419

COUNSEL

Matthew D. Staver, Erik W. Stanley, Anita L. Staver, Rena

M. Lindevaldsen, and Mary E. McAlister, Liberty Counsel,

Longwood, Florida, 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

PER CURIAM:

In light of Appellants’ petition for rehearing en banc and

the amici brief in support thereof, the panel has decided to

consider whether to rehear the matter nostra sponte. We have

unanimously determined not to do so and hereby reaffirm our

decision filed on November 2, 2005. We set forth our reasons

below.

5420 FIELDS v. PALMDALE SCHOOL DIST.

Appellants are parents of schoolchildren in the Palmdale

School District. Their complaint in the district court alleged,

inter alia, that the school district violated their fundamental

right “to control the upbringing of their children by introduc-

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

their personal and religious values and beliefs” by administer-

ing a psychological assessment questionnaire containing sev-

eral questions that referred to subjects of a sexual nature. The

district court construed this claim as arising under the Sub-

stantive Due Process Clause of the Fourteenth Amendment

and, pursuant to Federal Rule of Civil Procedure 12(b)(6),

dismissed that cause of action for failure to state a claim upon

which relief could be granted. Fields v. Palmdale Sch. Dist.,

271 F. Supp. 2d 1217, 1220-23 (C.D. Cal. 2003). The parents

appealed the ruling but only on the basis of their substantive

due process claim and their “very similar and overlapping”

privacy right claim. We affirmed, Fields v. Palmdale Sch.

Dist., 427 F.3d 1197 (9th Cir. 2005), holding that Appellants

did not possess, under the Substantive Due Process Clause or

the right to privacy, a constitutional right to limit the informa-

tion that public schools make available to students.1

Less than two weeks after we filed our opinion, Appellants

replaced their California-based counsel with a national orga-

nization located in Florida. Appellants, through their new

counsel, then filed a petition for rehearing en banc. The peti-

tion raises three arguments: (1) “The Complaint Should Not

Have Been Dismissed,” (2) “The Panel Improperly Character-

ized the Parents’ Fundamental Right,” and (3) “The Panel’s

Decision Eviscerates Plaintiffs’ Procedural Due Process

Rights.” We address these arguments in turn.

With respect to the first point, Appellants argue that “the

1

The district court also dismissed without prejudice Appellants’ state

law claims. Fields, 271 F. Supp. 2d at 1224. Appellants did not raise this

issue on appeal, or otherwise appeal from the dismissal of their state

claims.

FIELDS v. PALMDALE SCHOOL DIST. 5421

panel [improperly] dismissed on a Rule 12(b)(6) motion, con-

cluding that, other than treason, the parents have not one con-

stitutional claim — not even due process grounded in state-

recognized rights, or even the Establishment Clause.” Appel-

lants contend that they should at least be allowed to amend

their complaint and present evidence before the panel consid-

ers a motion to dismiss. In an effort to support their argument,

Appellants cite two cases, Citizens for a Responsible Curricu-

lum v. Montgomery County Public Schools, 2005 WL

1075634 (D. Md. May 5, 2005), and Newdow v. U.S. Con-

gress, 328 F.3d 466 (9th Cir. 2003), in which federal courts

have recognized Establishment Clause challenges to the poli-

cies of school districts.

As an initial matter, the panel did not, as the petition

asserts, “dismiss[ ] on a Rule 12(b)(6) motion”; that motion

was heard and granted by the district court. We merely

affirmed the district court’s ruling. Next, Appellants did not

seek leave to amend in the district court, nor did they contend

on appeal that they could have amended the complaint if per-

mitted to do so. Thus to the extent that new counsel now com-

plain that no amendment was permitted, their complaint is

wholly without merit. Similarly, no questions relating to

“state-recognized rights” were presented to us and we ruled

on none. Appellants’ state law claims were not before this

court on appeal. The district court dismissed the state law

claims without prejudice to refiling in state court, and on

appeal Appellants did not raise any issue relating to that dis-

missal. Nor did Appellants assert any federal due process

right “grounded in state-recognized rights.” The only due pro-

cess right presented on appeal was the Meyer-Pierce substan-

tive due process right of parents to make decisions concerning

the upbringing of their children along with the closely related

right to privacy. Also, no First Amendment arguments were

presented on appeal and our opinion expressly reserved all

First Amendment issues. Even Appellants (and their new

counsel) must recognize that in light of the appeal presented

to this Court neither the Free Exercise nor the Establishment

5422 FIELDS v. PALMDALE SCHOOL DIST.

Clause played any part in our holding. Any argument related

to these Clauses must be presented in another case. The first

argument contained in the petition for rehearing en banc is

therefore entirely without merit.

[1] Although it is difficult to discern or interpret Appel-

lants’ second argument, it appears to be that our opinion’s

reliance upon Brown v. Hot, Sexy and Safer Productions, Inc.,

68 F.3d 525 (1st Cir. 1995), was misplaced when we con-

cluded that the parents’ fundamental right “to make decisions

concerning the care, custody and control of their children”

does not override the right of public schools to determine the

nature of the information they make available to their stu-

dents. There can be no doubt that the Due Process Clause

does protect the parents’ right to control their children’s

upbringing. That right was recognized in two leading

Supreme Court cases, Meyer v. Nebraska, 262 U.S. 390

(1923), and Pierce v. Society of Sisters, 268 U.S. 510 (1925).

Our opinion does not in any way quarrel with or constrict the

right established by those cases. However, as the Brown court

held and as we explained at length in our opinion, the Meyer-

Pierce right (and the closely related privacy right) does not

include the “right to restrict the flow of information in the

public schools.” Fields, 427 F.3d at 1206 (quoting Brown, 68

F.3d at 533-34). Indeed, parents “do not have a fundamental

[due process] right generally to direct how a public school

teaches their child.” Id. (quoting Blau v. Fort Thomas Pub.

Sch. Dist., 401 F.3d 381, 395 (6th Cir. 2005)). That is the cen-

tral holding of our opinion and no party interested in this case,

including Appellants and amici, has cited any authority hold-

ing otherwise.

Appellants’ third argument, that our opinion “eviscerates

Plaintiffs’ procedural due process rights,” ignores the follow-

ing: (1) Appellants did not raise a procedural due process

claim in the district court, (2) Appellants did not raise a proce-

dural due process claim on appeal, and (3) our opinion did not

address any procedural due process claim. We need do no

FIELDS v. PALMDALE SCHOOL DIST. 5423

more here than state the obvious: We do not address issues

not presented to us, and our failure to do so does not consti-

tute an expression of views as to the merits of any such issues.

Our opinion is straightforward and dutifully applies

Supreme Court and circuit court precedent. It holds simply, as

other courts have held, that parents of public school children

are not possessed of a constitutional right, either under the

Substantive Due Process Clause or the related right to pri-

vacy, to restrict the public schools from providing information

on the subject of sex. No federal court has ever found such a

right in the Substantive Due Process Clause of the Constitu-

tion or in the right to privacy. To hold otherwise would mis-

perceive the nature of the constitutional right at issue.

Our opinion holds in essence that the Constitution does not

afford parents a substantive due process or privacy right to

control through the federal courts the information that public

schools make available to their children. What information

schools provide is a matter for the school boards, not the

courts, to decide. Our holding does not, of course, consider

the limitations that the First Amendment imposes upon the

actions of all government agencies, including school boards.

That issue is not before us. Nor does our decision address any

question of state law, or consider any issues that might be

raised by the parents in state court. Nor, as we stated unequiv-

ocally, does our opinion address the propriety of the school

allowing the survey to be circulated. Finally, our decision

does not affect the rights of parents to influence or change the

conduct of school boards through all lawful means generally

available to citizens of this nation. That is, of course, beyond

the scope of the present proceedings. We consider on this

appeal only the issues presented by the parties initially in the

district court and then to us when we heard the matter as a

three-judge panel. We do not consider on rehearing new

issues previously not raised, briefed or argued. See, e.g.,

Squaw Valley Dev. Co. v. Goldberg, 395 F.3d 1062, 1064 (9th

Cir. 2005).

5424 FIELDS v. PALMDALE SCHOOL DIST.

[2] Accordingly, upon full review, we reaffirm our opinion

with two amendments to the text. To make our holding more

precise we delete the sentence appearing at lines 9-10 of page

15076 of the Slip Opinion (“In sum, we affirm that the Meyer-

Pierce right does not extend beyond the threshold of the

school door.”) and substitute therefor the following: “In sum,

we affirm that the Meyer-Pierce due process right of parents

to make decisions regarding their children’s education does

not entitle individual parents to enjoin school boards from

providing information the boards determine to be appropriate

in connection with the performance of their educational func-

tions, or to collect monetary damages based on the informa-

tion the schools provide.” To remove an ambiguity and to be

more specific, we delete the portion of our opinion that begins

“Here, however, the survey . . .” at line 14 of page 15078 of

the Slip Opinion and ends . . . by the parents in this case.” at

line 25 of the same page, and substitute the following lan-

guage:

Here, however, the survey simply did not interfere

with the right of the parents to make intimate deci-

sions. Indeed, before the survey was conducted the

parents were notified and their consent was sought.

None objected and all but one signed and returned

the consent form. Making intimate decisions and

controlling the state’s dissemination of information

regarding intimate matters are two entirely different

subjects. With respect to the latter, no information of

a private nature — indeed no information at all —

regarding any individuals was disseminated. More-

over, no constitutional provision prohibits the dis-

semination of general information on subjects of

public interest to children or to adults (unless it is the

Establishment or 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” — the right to privacy

FIELDS v. PALMDALE SCHOOL DIST. 5425

here asserted — does not entitle them to prohibit

public schools from providing students with infor-

mation that the schools deem to be educationally

appropriate.

The Opinion filed November 2, 2005, is REAFFIRMED with

the two amendments contained herein.