|||UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
|||August 21, 2000
|||JOAN GRUENKE, INDIVIDUALLY AND AS PARENT AND NATURAL GUARDIAN OF LEAH
GRUENKE, A MINOR,
|||Appeal from the United States District Court for the Eastern District
of Pennsylvania (D.C. Civil Action No. 97-cv-05454) District Judge: Honorable
Franklin S. VanAntwerpen
|||Richard J. Orloski, Esquire (Argued) Orloski, Hinga & Pandaleon 111
North Cedar Crest Boulevard Allentown, PA 18104 Attorney for Appellant Richard
A. Polachek, Esquire (Argued) Polachek, Pecile & Smith 320 South Pennsylvania
Boulevard Suite 394 Wilkes-Barre, PA 18701 Attorney for Appellee
|||Before: Roth and Weis, Circuit Judges SHADUR,*fn1 District Judge
|||The opinion of the court was delivered by: Roth, Circuit Judge
|||Argued September 9, 1999
|||OPINION OF THE COURT
|||Emmaus High School swim team coach, Michael Seip, suspected that team
member, Leah Gruenke, was pregnant. Despite Leah's repeated denials of pregnancy,
Seip allegedly required Leah to take a pregnancy test. Leah and her mother,
Joan, have now sued Seip under 42 U.S.C.S 1983, claiming that the pregnancy
test, and the actions surrounding it, constituted an illegal search in violation
of Leah's Fourth Amendment rights, unconstitutionally interfered with Joan
and Leah's right to familial privacy, violated Leah's right to privacy regarding
personal matters, and violated Leah's right to free speech and association
protected by the First Amendment. In their suit, Joan and Leah also made
claims under Pennsylvania tort law.
|||The District Court granted summary judgment in favor of Seip on the S
1983 claims on the basis of qualified immunity and dismissed the Gruenkes'
state law claims without prejudice.
|||For the reasons stated below, we affirm the District Court's grant of
summary judgment with respect to the "familial right to privacy"
and the free speech and association claims. We reverse and remand, however,
with respect to the Fourth Amendment and "privacy regarding personal
matters" claims. Because that reversal restores the case to the District
Court's docket, we reverse and remand its dismissal of the Pennsylvania
state tort claims.
|||Seventeen year-old Leah Gruenke was an eleventh grader at Emmaus High
School and a member of the varsity swim team. In January of 1997, Michael
Seip, the varsity swim coach, began to suspect that Leah was pregnant. At
swim practice, Seip observed that Leah was often nauseated, made frequent
trips to the bathroom, and complained about having a low energy level. In
addition, Leah's body was "changing rapidly." In February of 1997,
Seip asked his assistant swim coach, Kim Kryzan, who also had observed the
changes in Leah's behavior and physical appearance, to approach Leah to
discuss the possibility that Leah was pregnant. Although the exact content
of this discussion is not clear, Leah refused to volunteer any information;
she denied that she was pregnant and refused to acknowledge she had had
sex with her boyfriend. Shortly after the discussion between Leah and Kim
Kryzan, Seip approached Leah and attempted to discuss sex and pregnancy
with her. When questioned by Seip, Leah again emphatically denied that she
|||Meanwhile, other members of the swim team began to suspect that Leah was
pregnant. Leah, however, denied the possibility, claiming that she had never
had sexual intercourse. Leah refused to acknowledge that she might be pregnant
because she felt that her condition was nobody's business.
|||Leah was also approached by a school guidance counselor, at Seip's request,
and by the school nurse. Both the guidance counselor and the nurse attempted
to discuss with Leah the possibility of pregnancy, but Leah again denied
the possibility, refusing to volunteer any information.
|||During this time, the mothers of other swim team members also began to
suspect Leah's possible pregnancy and discussed this hunch with Seip. At
least one of the mothers suggested that Leah should take a pregnancy test.
Eventually, Lynn Williams, a mother of a swim team member, purchased a pregnancy
test and gave it to Seip.
|||He reimbursed Williams for the test and kept it at the school.
|||On March 5, 1997, Leah was approached by two fellow swim team members,
Abby Hochella and Kathy Ritter, who suggested that Leah take a pregnancy
test to clear her name. Leah refused, stating that she would not take a
test unless everyone on the team took a test. The next day, Leah was again
approached by Hochella and Ritter. At this point, there is some conflict
in the stories. Leah alleges that Ritter and Hochella told her that they
still had the pregnancy test kit, given to them by Seip, and that Seip wanted
her (Leah) to take the test. Ritter and Hochella, however, recount a different
version, claiming that they merely told Leah that Seip had a pregnancy test
if Leah wanted to take it. Similarly, Seip contends that he did not encourage
Leah to take the test nor did he try to get Hochella and Ritter to persuade
Leah to take a pregnancy test. He acknowledges, however, telling Hochella
and Ritter that if Leah were his friend, he would ask her to take a pregnancy
|||Following this second attempt to convince Leah to take a pregnancy test,
Leah wrote a letter to Seip (which he apparently never read) stating that
Seip had no right to make her take a pregnancy test, that she was not showing
any symptoms of being pregnant, and that she had never had sexual intercourse.
According to Leah, she also told Ritter and Hochella, in an attempt to get
them to stop bothering her, that she could not be pregnant because she had
never had sexual intercourse.
|||That same day, despite rejecting their earlier attempts, Leah was again
approached by Ritter and Hochella. According to Leah, Ritter and Hochella
claimed that unless Leah took the pregnancy test, Seip would take her off
the relay team. Hochella, however, contends that she and Ritter tried to
convince Leah to take the test by suggesting that a negative test result
would resolve speculation about her condition. Ritter and Hochella further
contend that Leah ultimately approached them and volunteered to take the
|||Ritter, Hochella, and another member of the swim team, Sara Cierski, were
all present when Leah finally took the first pregnancy test. The test was
positive. Cierski suggested that Leah take another test. Cierski, Ritter,
and Hochella then went to the school parking lot where they got money from
their parents to purchase two additional pregnancy tests. Leah drove with
Hochella and Ritter to purchase the pregnancy test kits. Leah took both
tests; both were negative.
|||Later that night, Leah recounted the events of the day to her mother,
who was very upset. Hochella called Leah that evening and suggested that
Leah take another pregnancy test. Hochella also told Leah that Hochella's
mother would be willing to take Leah to the doctor to determine with certainty
whether Leah was pregnant. Leah got up early the next morning and went to
school where she took a fourth pregnancy test, purchased this time by Hochella
and her mother. Ritter and Hochella were with Leah in the school locker
room when she took the test. Again, the test was negative.
|||After learning of the positive test result, Seip asked assistant swim
coach Dr. Meade, an orthopedist, whether in his medical opinion it was acceptable
for a pregnant swimmer to compete on the team. Dr. Meade advised Seip that
swimming would not endanger Leah's pregnancy. Based on this advice, Seip
decided that there was no medical reason to prevent Leah from competing
on the team. The District Court found that beyond consulting a school guidance
counselor and his assistant coaches, Seip did not attempt to talk directly
to Leah's parents or to inform a higher level of the school's administration
that Leah was pregnant. The District Court further found that Leah continued
to deny the possibility that she was pregnant until she was examined by
Dr. Greybush, on March 10, 1997, at an appointment scheduled by her mother.
There, Leah ultimately learned that she was almost six months pregnant.
Even then, Leah did not reveal to anyone else on the swim team or at school
that she was pregnant because she wanted to compete in the state swim tournament.
Eventually, however, Leah's teammates, their parents, and Leah's mother
learned that Leah was indeed pregnant.
|||The Gruenkes allege that after Leah's baby was born, Seip tried to alienate
Leah from her peers. Specifically, Leah testified that after she quit the
private swim team that Seip also coached, Seip told members of his team
not to sit with Leah during swim meets. Moreover, Leah asserts that during
her last year of high school, Seip refused to speak to her and retaliated
against her by taking her out of several swim meets.
|||On August 26, 1997, Joan Gruenke, for herself and on her daughter's behalf,
filed suit under 42 U.S.C.S 1983 and state tort law, 42 Pa. Cons. Stat.
S 8550, et. seq., in U.S. District Court for the Eastern District of Pennsylvania.
The Gruenkes allege that their rights under the Constitution and Pennsylvania
state tort law were violated when Seip required Leah to take a pregnancy
|||The Gruenkes subsequently amended their complaint on November 4, 1997,
alleging that the required pregnancy test (1) constituted an illegal search
in violation of Leah's Fourth Amendment rights, (2) violated Joan and Leah's
right to familial privacy, (3) violated Leah's right to privacy regarding
personal matters, (4) violated Leah's right to free speech and association
protected by the First Amendment, and (5) violated Joan and Leah's rights
under state tort law.
|||On September 4, 1998, Seip moved for summary judgment claiming qualified
immunity. The District Court granted Seip's motion for summary judgment
on the Gruenkes' S 1983 claims, holding that Seip was entitled to qualified
immunity either because he had not violated any clearly established constitutional
rights, or alternatively, that the Gruenkes' claims did not give rise to
the violation of a constitutional right, clearly established or otherwise.
See Gruenke v. Seip, 1998 WL 734700, at *8-*15 (E.D. Pa. October 21, 1998).
In so holding, the District Court did not reach the merits of Leah's various
constitutional claims. The District Court then dismissed the state tort
law claims for lack of subject matter jurisdiction. On November 9, 1998,
the Gruenkes appealed the District Court's decision.
|||The District Court had subject matter jurisdiction over the Gruenkes'
S 1983 claims pursuant to 28 U.S.C. S 1331, and over their state tort law
claims under 28 U.S.C.S 1367. We have appellate jurisdiction over the Gruenkes'
claims under 28 U.S.C. S 1291. Our review of the District Court's disposition
of a S 1983 case on summary judgment alleging qualified immunity is plenary:
|||[We] review the district court's summary judgment determination de novo,
applying the same standard as the district court. . . . [I]n all cases[,]
summary judgment should be granted if, after drawing all reasonable inferences
from the underlying facts in the light most favorable to the non-moving
party, the court concludes that there is no genuine issue of material fact
to be resolved at trial[,] and the moving party is entitled to judgment
as a matter of law. Kornegay v. Cottingham, 120 F.3d 392, 395 (3d Cir. 1997)
(quoting Spain v. Gallegos, 26 F.3d 439, 446 (3d Cir. 1994)).
|||Section 1983 imposes civil liability upon any person who, acting under
the color of state law, deprives another individual of any rights, privileges,
or immunities secured by the Constitution or laws of the United States.
This section does not create any new substantive rights but instead provides
a remedy for the violation of a federal constitutional or statutory right.
See Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979) ("[S]section
is not itself a source of substantive rights, but a method for vindicating
federal rights elsewhere conferred by those parts of the United States Constitution
and federal statutes that [section 1983] describes."). To state a claim
under S 1983, a plaintiff must show that the defendant, through conduct
sanctioned under the color of state law, deprived her of a federal constitutional
or statutory right. See Morse v. Lower Merion Sch. Dist., 132 F.3d 902,
907 (3d Cir. 1997) (citing Parratt v. Taylor, 451 U.S. 527, 535 (1981),
overruled on other grounds, Daniels v. Williams, 474 U.S. 327 (1986)).
|||In a typical S 1983 action, a court must initially determine whether the
plaintiff has even alleged the deprivation of a right that either federal
law or the Constitution protects. See Baker, 443 U.S. at 140 ("The
first inquiry in any S 1983 suit . . . is whether the plaintiff has been
deprived of a right `secured by the Constitution and laws.' "). As
the Supreme Court recently emphasized, when the defendant in a S 1983 action
claims qualified immunity, our first task is to assess whether the plaintiff
's allegations are sufficient to establish the violation of a constitutional
or statutory right at all. See, e.g., Conn v. Gabbert, 526 U.S. 286, 290
(1999); County of Sacramento v. Lewis, 523 U.S. 833, 841 n.5 (1998).
|||If the plaintiff 's allegations meet this threshold, we must next determine
whether, as a legal matter, the right that the defendant's conduct allegedly
violates was a clearly established one, about which a reasonable person
would have known. If so, then the defendant is not entitled to qualified
immunity. If, in contrast, the plaintiff 's allegations fail to satisfy
either inquiry, then the defendant is entitled to summary judgment. Until
the question of qualified immunity is addressed, a court cannot reach the
underlying merits of the case. See Harlow v. Fitzgerald, 457 U.S. 800, 813-20
(1982); see also Siegert v. Gilley, 500 U.S. 226, 232 (1991) ("One
of the purposes of immunity, qualified or absolute, is to spare a defendant
not only unwarranted liability but unwarranted demands customarily imposed
upon those defending a long drawn out lawsuit."); Mitchell v. Forsyth,
472 U.S. 511, 526 (1985) ("The entitlement is an immunity from suit
rather than a mere defense to liability . . . and . . . is effectively lost
if a case is erroneously permitted to go to trial.").
|||In the seminal qualified immunity case, Harlow v. Fitzgerald, 457 U.S.
800 (1982), the Supreme Court articulated the oft-quoted legal standard
for analyzing a qualified immunity defense: "[G]overnment officials
performing discretionary functions generally are shielded from liability
for civil damages insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person would have
known." Harlow, 457 U.S. at 818. In analyzing a claim for qualified
immunity, then, a court must deny the claim if the law is clearly established,
"since a reasonably competent public official should know the law governing
his conduct" unless he can either demonstrate extraordinary circumstances
or that he "neither knew nor should have known" about the legal
right in question. Id. at 818-19.
|||Anderson v. Creighton, 483 U.S. 635 (1987), clarified the Harlow standard
in two key ways that bear on our analysis of Seip's claim for qualified
immunity. First, Anderson held that, whether a government official asserting
qualified immunity could be held personally liable for conduct that allegedly
violated a constitutional or statutory violate depended on the "objective
legal reasonableness" of the action. Id. at 639. Under this standard,
government officials are shielded from civil liability not based on their
subjective understanding of the law but only "as long as their actions
could reasonably have been thought consistent with the rights they are alleged
to have violated." Id. Second, Anderson defined more specifically the
meaning of a "clearly established right":
|||The contours of the right must be sufficiently clear that a reasonable
official would understand that what he is doing violates that right. This
is not to say that an official action is protected by qualified immunity
unless the very action in question has been previously held unlawful, but
it is to say that in the light of pre-existing law the unlawfulness must
be apparent. Anderson, 483 U.S. at 639.
|||In sum, an official will not be liable for allegedly unlawful conduct
so long as his actions are objectively reasonable under current federal
law. See Malley v. Briggs, 475 U.S. 335, 341 (1986) (observing that "all
but the plainly incompetent or those who knowingly violate the law"
are protected by qualified immunity).
|||The evaluation of a qualified immunity defense is appropriate for summary
judgment because the court's inquiry is primarily legal: whether the legal
norms the defendant's conduct allegedly violated were clearly established.
See Mitchell, 472 U.S. at 528. Nevertheless, some factual allegations, such
as how the defendant acted, are necessary to resolve the immunity question.
See id. We have phrased the inquiry for granting qualified immunity in terms
of the defendant's conduct:
|||[I]t is not sufficient that the right at issue be clearly established
as a general matter. Rather, the question is whether a reasonable public
official would know that his or her specific conduct violated clearly established
rights. Grant v. City of Pittsburgh, 98 F.3d 116, 121 (3d Cir. 1996) (citing
Brown v. Grabowski, 922 F.2d 1097, 1111 (3d Cir. 1990)).
|||We also noted in Grant that this admittedly fact-intensive analysis must
be conducted by viewing the facts alleged in the light most favorable to
the plaintiff. See Grant, 98 F.3d at 122 (discussing inquiry on appeal of
denial of qualified immunity). Finally, when qualified immunity is denied,
any genuine disputes over the material facts are remanded, to be settled
|||With this framework in mind, we will analyze each of the Gruenkes' claims
|||A. Fourth Amendment
|||The Gruenkes argue that the pregnancy test taken by Leah that was allegedly
administered by or at the behest of Seip constituted an illegal search under
the Fourth Amendment. As the District Court correctly noted, a school official's
administration of a pregnancy test to a student "clearly constitutes
a search within the meaning of the Fourth Amendment." Gruenke, 1998
WL 734700, at *7. It foundered, however, on whether her right to be free
from this type of search was clearly established.
|||Although the District Court analyzed Leah's claim within the proper legal
framework governing Fourth Amendment searches of athletes in public schools,
see id. , it misapplied the qualified immunity framework to her claim when
it failed to heed Anderson's caveat that the specific official conduct need
not have been previously deemed unlawful. Instead, the District Court reasoned
that, because the question of whether the administration by a school official
of a pregnancy test to a student was one of first impression, Leah's right
to be free from the search was not clearly established:
|||We decline to decide today whether a Fourth Amendment violation may be
established by the facts in this case. We merely wish to indicate that as
in Anderson II, we cannot say that the right allegedly violated has been
clearly established by prior law. Anderson v. Creighton, 483 U.S. 635, 639-40
(1987). Taking the Plaintiffs' assertions as true for the purposes of this
motion, we certainly do believe the Defendant's conduct was questionable
and wonder why he failed to discreetly refer any concerns about Leah Gruenke
directly to her parents or to higher levels of the school administration.
Indeed, without the qualified immunity issue, we might well find that material
issues of fact exist as to whether the Defendant violated Plaintiffs' fourth
amendment rights. However, as a matter of law, we cannot say that the law
on this issue has been clearly established, and therefore must hold that
the Defendant is entitled to qualified immunity on this fourth amendment
claim. Id. at *8.
|||This conclusion is wrong. Merely because the Supreme Court has not yet
ruled on whether a school official's administration of a pregnancy test
to a student violates her Fourth Amendment rights does not mean the right
is not clearly established. Moreover, a review of current Fourth Amendment
law in the public school context reveals not only that the right is clearly
established, but also that Seip's conduct as alleged was objectively unreasonable.
|||We turn first to the question of whether Leah's right to refuse to submit
to the pregnancy test was clearly established. The Fourth Amendment of the
Constitution protects individuals from unreasonable searches and seizures
by the government, see U.S. Const., Amend. IV, and this prohibition against
unreasonable governmental intrusions extends to state public school officials
as well. See New Jersey v. T.L.O., 469 U.S. 325, 336-37 (1985). Whether
a search is unconstitutional depends on its reasonableness. Although probable
cause is the common touchstone for reasonableness in criminal contexts,
in other circumstances, there may be "special needs" that make
probable cause impracticable. See id. at 341 (requiring individualized suspicion).
|||The public school context is one of those settings. Thus, reasonableness
is determined by balancing the government's interest against the individual's
expectation of privacy. In the public school context, students have a reduced
expectation of privacy when compared with the public at large. See Vernonia
Sch. Dist. 47J v. Acton, 515 U.S. 646, 656-57 (1995) (holding randomly testing
student athletes for drugs satisfies Fourth Amendment). Student athletes,
because they not only submit to "suiting up" in communal locker
rooms, but also frequently agree to follow certain regulations, such as
taking physical exams and acquiring insurance, have an even lower expectation
of privacy than their fellow students who do not play sports. See id. at
|||The nature of the intrusion must also be considered when determining whether
the search is unreasonable. A urinalysis test, like the one conducted for
drugs in Vernonia, is clearly intrusive because it reveals personal information
but can be made less so by having students take it in private, tailoring
it so that it tests only for drugs, and limiting the disclosure of the information
it reveals. See id. at 658. Finally, the government's interest in the search
must be balanced against the intrusion. This interest must be compelling,
one that is "important enough to justify the particular search at hand,
in light of other factors that show the search to be relatively intrusive
upon a genuine expectation of privacy." Id. at 660.
|||We believe that the standard set forth in Vernonia clearly establishes
that a school official's alleged administration to a student athlete of
the pregnancy tests would constitute an unreasonable search under the Fourth
Amendment. Although student athletes have a very limited expectation of
privacy, a school cannot compel a student to take a pregnancy test absent
a legitimate health concern about a possible pregnancy and the exercise
of some discretion. This is not to say that a student, athlete or not, cannot
be required to take a pregnancy test. There may be unusual instances where
a school nurse or another appropriate school official has legitimate concerns
about the health of the student or her unborn child. An official cannot,
however, require a student to submit to this intrusion merely to satisfy
his curiosity. While it might be shown at trial that the facts are more
favorable to Seip, we cannot say, as a matter of law, that his conduct as
alleged by the Gruenkes did not violate a clearly established constitutional
|||Nor do we consider Seip's alleged conduct to have been reasonable under
this standard. The requirement that an official's conduct be objectively
reasonable casts a wide net of protection to most officials but it does
not insulate all official conduct. See Harlow, 457 U.S. at 819 ("[Qualified
immunity . . . provide[s] no license to unlawful conduct."). When the
defendant violates a clearly established right about which a reasonable
person would have known, he is not entitled to qualified immunity. See,
e.g., Parkhurst v. Trapp, 77 F.3d 707, 712-13 (3d Cir. 1996); Simmons v.
City of Philadelphia, 947 F.2d 1042, 1088-89 (3d Cir. 1991). Even if the
right is clearly established, officials will not be held liable if they
were "acting reasonably in good-faith fulfillment of their responsibilities."
Wilson v. Schillinger, 761 F.2d 921, 929 (3d Cir. 1985); see also Hynson
v. City of Chester, 827 F.2d 932, 933 (3d Cir. 1987) (same). Public school
officials have the same guarantee. Qualified immunity "must be such
that public school officials understand that action taken . . . within the
bounds of reason under all circumstances will not be punished and [those
officials] need not exercise their discretion with timidity." Wood
v. Strickland, 420 U.S. 308, 321 (1975) (emphasis added).
|||However, under current precedent, we cannot say that Seip's conduct passes
this objective test. Here, the swim coach, an individual without any medical
background, allegedly forced Leah to take a pregnancy test. His responsibilities
can be reasonably construed to include activities related to teaching and
training. They cannot be extended to requiring a pregnancy test. Moreover,
a reasonable swim coach would recognize that his student swimmer's condition
was not suitable for public speculation. He would have exercised some discretion
in how he handled the problem. Seip, however, has offered no explanation
that could justify his failure to respect the boundaries of reasonableness.
|||We hold, therefore, that Seip is not entitled to qualified immunity from
Leah's Fourth Amendment, S 1983 claim, because Seip should have reasonably
known that his conduct would violate a clearly established right. For this
reason, we reverse the District Court's grant of summary judgment with respect
to Leah's Fourth Amendment claim and remand this claim to the District Court.*fn2
|||B. Substantive Due Process
|||1. Right to Privacy
|||The Gruenkes next argue that Seip violated Leah's substantive due process
right to privacy. In evaluating the Gruenkes' claim, the District Court
analyzed two lines of relevant Supreme Court cases: (1) cases implicating
an individual's interest in independence when making certain decisions;
and (2) cases implicating an individual's interest in avoiding disclosure
of personal matters. See Gruenke, 1998 WL 734700, at *11. The District Court
first decided that the Gruenkes' claim did not fall under thefirst line
of cases, because Leah's decision-making with respect to a fundamental right
had not been impaired. See id.
|||With respect to Leah's other substantive due process claim, the right
to keep certain personal matters private, however, the District Court acknowledged
that "[t]he Third Circuit has clearly recognized that private medical
information is `well within the ambit of materials entitled to privacy protection'
" under the substantive due process clause. Id. (citing United States
v. Westinghouse Electric Corp., 638 F.2d 570, 577 (3d Cir. 1980)). The District
Court concluded, however, that because the Third Circuit"ha[d] not
yet addressed the compelled disclosure by a school official of a student's
health records," the right to be free from such disclosure was not
a clearly established one. Gruenke, 1998 WL 734700, at *12. In arriving
at this outcome, the District Court reasoned that, although the "[p]laintiffs
[sic] claim does . . . fall under the right to be free from disclosure of
personal matters, . . . .[w]ithout any cases where some factual correspondence
exists with the present case, . . . this court must conclude that there
is no relevant clearly established law and that the Defendant is entitled
to qualified immunity." Id.
|||As it did in analyzing Leah's Fourth Amendment claim, the District Court
misconstrued the test for determining whether an allegedly violated right
is clearly established. As we stated above, the test is not whether the
current precedents protect the specific right alleged but whether the contours
of current law put a reasonable defendant on notice that his conduct would
infringe on the plaintiff 's asserted right. See Anderson, 483 U.S. at 639.
Leah's claim not only falls squarely within the contours of the recognized
right of one to be free from disclosure of personal matters, see Whalen
v. Roe, 429 U.S. 589, 599-600 (1977), but also concerns medical information,
which we have previously held is entitled to this very protection. See Westinghouse
Electric Corp., 638 F.2d at 577. While the preservation of this right must
be balanced with factors such as concerns for public health in the work
environments, see Doe v. Southeastern Pa. Transp. Auth., 72 F.3d 1133, 1139
(3d Cir. 1995), Leah's version of the facts satisfies this test. While it
may prove, at trial, that her facts misstate the case, that possibility
does not entitle Seip to qualified immunity at the summary judgment stage.
|||We are also concerned by the District Court's assertion that "[e]ven
considering the facts in a light most favorable to the Plaintiffs, it is
. . . highly uncertain that Leah Gruenke's test information was in fact
confidential or that its disclosure was compelled by the Defendant."
Id. (emphasis added). The District Court's characterization as "highly
uncertain" of the likelihood that Leah's test information was confidential
or that its disclosure was compelled by Seip belies its grant of summary
judgment. If, as Leah alleges, the information about her pregnancy tests
and Seip compelled Leah to take the tests, his alleged failure to take appropriate
steps to keep that information confidential, by Seip's having Leah's teammates
administer the test and by his discussing the test results with his assistant
coaches, could infringe Leah's right to privacy under the substantive due
process clause. This type of conduct is not objectively reasonable under
current law and does not entitle Seip to immunity from suit. Moreover, Leah's
testimony creates genuine issues of material fact, which make the District
Court's grant of summary judgment inappropriate. We therefore reverse the
District Court's grant of summary judgment with respect to Leah's right
to privacy claim and remand this claim to the District Court.
|||2. Right to Familial Integrity*fn4
|||The Gruenkes also argue that Seip violated their substantive due process
right to be free from state interference with family relations. While acknowledging
that "the Supreme Court has clearly recognized a fundamental liberty
interest in familial integrity and privacy," the District Court held
that the Gruenkes' claim that Seip violated Leah's right to familial privacy
and Joan's right to influence and guide her daughter during her pregnancy
did not rise to the level of a constitutional violation, or, even if it
did, the constitutional right in question was not clearly established. Gruenke,
1998 WL 734700, at *11. As such, the District Court granted Seip's motion
for summary judgment, concluding that the Gruenkes' failure to establish
the violation of a clearly established constitutional right on either basis
meant that Seip was entitled to qualified immunity. Although we ultimately
agree that Seip is entitled to qualified immunity, we disagree with the
District Court's reasoning.
|||The right of parents to raise their children without undue state interference
is well established. As the Supreme Court remarked in M.L.B. v. S.L.J.,
519 U.S. 102 (1996), "[c]hoices about marriage, family life, and the
upbringing of children are among associational rights this Court has ranked
as of basic importance in our society, rights sheltered by the Fourteenth
Amendment against the State's unwarranted usurpation, disregard, or disrespect."
Id. at 116 (citation and internal quotes omitted).
|||In Santosky v. Kramer, 455 U.S. 745 (1982), the Court pointed out that
"[t]he fundamental liberty interest of natural parents in the care,
custody, and management of their child does not evaporate simply because
they have not been model parents . . . ." Id. at 753. Indeed, it is
" `plain beyond the need for multiple citation' that a natural parent's
`desire for and right to the companionship, care, custody, and management
of his or her children' is an interest far more precious than any property
right." Id. at 758-59 (quoting Lassiter v. Department of Soc. Servs.,
452 U.S. 18, 27 (1981)) (some internal quotes omitted).
|||In Troxel v. Granville, No. 99-138, 2000 WL 712807 (U.S. June 5, 2000),
the Court reiterated that the parental interest in "the care, custody,
and control of their children" is "perhaps the oldest of the fundamental
liberty interests recognized by this Court." Id. at *5. That case 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 Court said "the 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."
See also Wisconsin v. Yoder, 406 U.S. 205, 232-33 (1972) ("primary
role of the parents in the upbringing of their children is now established
beyond debate as an enduring American tradition," particularly in matters
of "moral standards, religious beliefs, and elements of good citizenship").
|||Notwithstanding these near-absolutist pronouncements, the Court has also
recognized that for some portions of the day, children are in the compulsory
custody of state-operated school systems. In that setting, the state's power
is "custodial and tutelary, permitting a degree of supervision and
control that could not be exercised over free adults." Vernonia Sch.
Dist. v. Acton , 515 U.S. 646, 655 (1995). For some purposes, then, "school
authorities act[ ] in loco parentis." Bethel Sch. Dist. v. Fraser,
478 U.S. 675, 684 (1986). But see New Jersey v. T.L.O., 469 U.S. 325, 336-37
(1985) (school authorities are not merely parental surrogates but also exercise
public authority for Fourth Amendment purposes.).
|||Thus, there may be circumstances in which school authorities, in order
to maintain order and a proper educational atmosphere in the exercise of
police power, may impose standards of conduct on students that differ from
those approved by some parents. See, e.g. , Vernonia, 515 U.S. at 664-65
(allowing participation in school athletics to be conditioned upon testing
for illegal drugs); Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 273
(1988) (permitting censorship of school-sponsored publication); T.L.O.,
469 U.S. at 347-48 (upholding warrantless search of student's effects).
|||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. Thus, in Vernonia, although the Court approved drug tests,
it was also careful to indicate that the tests were inappropriate to determine
"whether the student is, for example, epileptic, pregnant, or diabetic."
515 U.S. at 658. In describing the justification for the random, coerced
drug testing in Vernonia, the Court pointed out that the State must demonstrate
"an interest that appears important enough to justify the particular
search at hand, in light of other factors that show the search to be relatively
intrusive upon a genuine expectation of privacy." Id. at 661.
|||It is not unforeseeable, therefore, that a school's policies might come
into conflict with the fundamental right of parents to raise and nurture
their child. But when such collisions occur, the primacy of the parents'
authority must be recognized and should yield only where the school's action
is tied to a compelling interest.
|||As the Court said in Roberts v. United States Jaycees, 468 U.S. 609 (1984),
"[t]he Court has long recognized that, because the Bill of Rights is
designed to secure individual liberty, it must afford the formation and
preservation of certain kinds of highly personal relationships a substantial
measure of sanctuary from unjustified interference by the State." Id.
at 618. Familial relationships are the quintessential "personal bonds"
that "act as critical buffers between the individual and the power
of the State." Id. at 619-20.
|||In determining whether plaintiffs have presented a constitutional issue
that will survive summary judgment, the reviewing court draws all reasonable
inferences from the underlying facts in the light most favorable to the
nonmoving party. Sameric Corp. v. City of Phila. , 142 F.3d 582, 590 (3d
Cir. 1998). In this case, review is complicated because in critical instances,
the facts and inferences are sharply contested and the testimony on some
points is quite vague. We are, however, persuaded that there is sufficient
evidence, coupled with such reasonable inferences, to establish an unconstitutional
interference with familial relations.
|||Defendant Seip conceded that he could not exclude Leah from the team or
bar her from participating in swim meets merely because she was pregnant.
He was aware that some women compete in such strenuous activities as triathlons
in the seventh month of pregnancy. He was, of course, free to limit her
participation because of poor performance, but did not until the state meet
on March 15, 1997.
|||In December 1996, Leah's father commented to Seip that Leah's racing times
had increased. Seip said that she appeared to be heavier in the water. Even
though he had suspicions, he made no comment to Leah's father about possible
pregnancy at that time or in the following month in a subsequent discussion.
|||In January 1997, the parents arranged for Leah to have a medical examination
because of her decreased stamina and slower racing times. A physician diagnosed
a vitamin deficiency and prescribed dietary supplements. Her examination
did not reveal the pregnancy, although no pregnancy test was administered.
The physician said that additional tests would be required to definitively
rule it out. Leah declined the additional tests because, based on her previous
health history, her symptoms did not indicate pregnancy.
|||Leah and her mother discussed the possibility of pregnancy at that time,
but took no further steps then. Mrs. Gruenke also discussed Leah's condition
with a nurse friend, who also suggested a vitamin deficiency. The parents
testified that Leah was a very athletic person and her appearance did not
suggest pregnancy, at least not until the end of March.
|||The record does not disclose whether Seip was aware that Leah had a medical
examination in January 1997, but by the following month, he had engaged
in discussions of Leah's possible pregnancy with some of her teammates,
their mothers, assistant coaches and a guidance counselor. He also had an
assistant coach attempt to determine whether Leah might admit to pregnancy.
In addition, Seip had a conversation with Leah about sexual conduct that
could lead to pregnancy.
|||Despite his suspicions of Leah's pregnancy, Seip did not contact Mrs.
Gruenke because "she would hang up on him." He apparently did
not consider sending a note circumspectly outlining the symptoms he had
observed, and he failed to mention his suspicions to her father when asked
about changes in her performance.
|||Seip did nothing to stop the gossip; rather, he added credence to it when
he would, on occasion, tell others that it was possible that Leah was pregnant.
The continuing discussions with a number of persons developed for some weeks
until the affair culminated in Leah's submission, under pressure, to a pregnancy
test. She said that she had agreed to the test as a result of threats to
bar her from swimming in the state championship meet taking place in less
than ten days. Seip did not make these statements to her directly, but through
her teammates. He also furnished the pregnancy test kit, which he had previously
acquired and had kept at the school.
|||Leah took the test while several teammates waited nearby. One of them
informed Seip that the result was positive. Other tests performed that evening
and the following morning were negative. The news of the initial results,
however, spread rapidly through the high school community. One of the girls
told the putative father, among others. Leah told her mother about the readings
and she immediately made an appointment with a physician, who confirmed
that Leah was pregnant.
|||As the parents explained, had not all the adverse publicity occurred as
the result of Seip's actions, they would have quietly withdrawn Leah from
school, apparently after the state 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 Seip'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 alleges, therefore, that Seip's continued intrusion into
what was a private family matter, his failure to notify her while instead
aiding and abetting the members of the team and their mothers in making
Leah's pregnancy a subject of gossip in the school community, violated her
constitutional right to manage the upbringing of her child. Mrs. Gruenke's
position is that the management of this teenage pregnancy was a family crisis
in which the State, through Seip, had no right to obstruct the parental
right to choose the proper method of resolution. As is apparent, Leah's
claim of deprivation of privacy, which has been remanded for trial, overlaps
with and is largely inseparable from that of familial rights.
|||In reviewing the record, one is struck by the fact that the guidance counselor,
aware of the situation, apparently did not advise Seip to notify the parents.
Nor did the counselor herself undertake that responsibility. Even the principal
(himself a former guidance counselor), who did not became aware of the matter
until late in the game, did not even comment that this was a matter for
the parents and not school authorities. His reprimand to Seip did not mention
the supremacy of the parents' interest in matters of this nature.
|||This case presents another example of the arrogation of the parental role
by a school similar to, although not as egregious as, Arnold v. Board of
Education, 880 F.2d 305 (11th Cir. 1989). In that case, the parents alleged
that school officials coerced a student into having an abortion and urged
her not to discuss the matter with her parents. The Court held that in so
acting, the school counselor interfered with the parents' right to direct
the rearing of their child. Id. at 312.
|||The Arnold Court declined to hold that counselors are constitutionally
mandated to notify parents when their minor child receives counseling about
pregnancy, but nevertheless indicated, "[a]s a matter of common sense,"
counselors should encourage communication. Id. at 314. In this case, however,
Seip was not a counselor whose guidance was sought by a student, but instead,
someone who was acting contrary to her express wishes that he mind his own
|||We need not consider the potential liability of school counselors here,
although we have considerable doubt about their right to withhold information
of this nature from the parents. Because public school officials are state
actors, they must not lose sight of the fact that their professional association
ethical codes, as well as state statutes, must yield to the Constitution.*fn5
|||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. See Merriken v. Cressman, 364 F. Supp.
913, 922 (E.D. Pa. 1973) (questionnaire probing family relationships by
school authorities held unconstitutional). 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 these rights. State deference to parental control over children
is underscored by the Court's admonitions that "[t]he child is not
the mere creature of the State," Pierce , 268 U.S. at 535, and that
it is the parents' responsibility to inculcate "moral standards, religious
beliefs, and elements of good citizenship." Yoder, 406 U.S. at 233.
|||Although the parents have sufficiently alleged a constitutional violation,*fn6
the record must establish that the right violated was clearly established
in order to defeat Seip's claim of immunity. At this point, the plaintiffs'
claim falters. Although the general principles were articulated by the Supreme
Court opinions, their application to the unique circumstances of this case
cannot be said to have been clearly established. We conclude that on that
basis, Seip is entitled to qualified immunity and judgment in his favor
on the familial claim. See Sameric Corp. v. City of Phila., 142 F.3d 582,
590 n.6 (3d Cir. 1998).
|||C. First Amendment
|||Finally, the Gruenkes argue that Seip violated Leah's First Amendment
rights by forbidding members of his private swim team from associating with
Leah. Holding that the Gruenkes had failed to show that Seip had violated
Leah's First Amendment rights, and therefore had failed to show any violation
under S 1983, the District Court also granted Seip qualified immunity on
this fourth claim. See Gruenke, 1998 WL 734700 at *13. Characterizing Leah's
asserted right to associate with her former team members as purely social,
the District Court analogized this right to the other types of social associations
that the Supreme Court has previously denied constitutional protection.
See id. ("[T]he activity of talking to swim team members during a swimming
competition is not an individual liberty interest protected by the First
|||We agree with the District Court's reasoning, although we will modify
its outcome. While the Constitution also guards those associational activities
necessary to further other activities, such as speech and assembly, that
the First Amendment directly protects, purely social rights to association
lack this same heightened constitutional protection. See, e.g., City of
Dallas v. Stanglin, 490 U.S. 19, 25 (1989) (denying constitutional protection
to young adults' asserted right to socialize in public settings). Seip's
alleged interference with Leah's interaction with other swimmers clearly
does not amount to a violation of a protected right.*fn7
We will thus affirm the District Court's grant of summary judgment in favor
of Seip. See Sameric Corp., 142 F.3d at 590 n.6.
|||D. Related State Tort Law Claims
|||The Gruenkes' state law tort claims were before the District Court pursuant
to 28 U.S.C. S 1367. Because the District Court dismissed the Gruenkes'
S 1983 claims on summary judgment, the court also dismissed the Gruenkes'
supplemental state tort law claims noting that "the absence of any
federal question or constitutional issue" made dismissal of the state
tort law claims appropriate. Gruenke, 1998 WL 734700 at *14. Because we
reverse the District Court's grant of summary judgment with respect to the
Gruenkes' Fourth Amendment and right to privacy claims, thus restoring the
case to active status, we will also reverse and remand the District Court's
dismissal of the Gruenkes' state tort law claims.
|||In conclusion, we hold that the District Court erred in granting Seip's
motion for summary judgment with respect to Leah's Fourth Amendment claim
and Leah's right to privacy claim, and we reverse and remand these claims
for further consideration consistent with this opinion. We affirm the District
Court's grant of summary judgment with respect to the Gruenkes' right to
familial integrity claim and Leah's First Amendment claim because Seip is
entitled to qualified immunity with respect to these claims. We also reverse
the order dismissing the Gruenkes' supplemental state law tort claims and
remand them to the District Court.
|||ROTH, Circuit Judge, concurring in part:
|||I write separately on the issue of interference with familial relations.
While I concur with the majority's ruling that Seip is entitled to summary
judgment on the claim for interference with familial relations, I disagree
that the Gruenkes have alleged such a constitutional violation.
|||The factual basis for the Gruenkes' claim of interference with family
relations lies in their claims that Seip destroyed Joan Gruenke's right
to raise and advise Leah, her daughter, without outside influences of the
public, Appellants' Opening Br. at 47, and that he destroyed Leah's right
as a child and a potential parent to abort the fetus or carry it to term.
See id. at 49. They assert that Seip disclosed the results of the pregnancy
test to Leah's classmates and to Seip's assistant coaches but not to Leah's
parents or to the higher school administrators. See id. at 51. The Gruenkes
qualify their claims by acknowledging that while Seip "did not personally
coerce Leah to make any decision regarding her pregnancy,[he] did set in
motion a chain of events that prevented[the Gruenkes] from making childbirth
and reproductive decisions autonomously." Id. at 51-52. While it is
unfortunate that, as a result of Seip's actions, the Gruenkes may have had
certain personal family matters disclosed in an unwanted manner, I do not
believe that this subsequent disclosure violated a constitutional right.
|||I reach this conclusion because the type of interference that the Gruenkes
assert does not fall within the scope of actions that constitutionally infringe
on familial privacy. In evaluating the Gruenkes' claims of an unconstitutional
interference with parents' fundamental right to make decisions concerning
the care, custody, and control of children, I will turn first to Troxel
v. Granville, 120 S.Ct. 2154 (2000), the most recent Supreme Court case
dealing with this issue.*fn8
In Troxel , a plurality of the Court found that a Washington statute, providing
for the rights of visitation with minor children, violated the substantive
due process rights of the mother because of its "breathtaking"
scope: Any person could petition at any time for visitation of a child with
the only requirement being that the visitation serve the best interest of
the child. Id. at 2061. A parent's decision that visitation would not be
in the child's best interest was given no deference; the best interest determination
was placed solely in the hands of the judge. See id. In writing for the
plurality, Justice O'Connor stated that "so long as a parent adequately
cares for his or her children (i.e., is fit), there will normally be no
reason for the State to inject itself into the private realm of the family
to further question the ability of that parent to make the best decisions
concerning the rearing of that parent's children." Id. (emphasis added)
(citing Reno v. Flores , 507 U.S. 292, 304 (1992)).
|||This reasoning in Troxel is consistent with the Court's earlier decisions
defining the scope of the liberty interest of parents to control the upbringing
of their children without interference from the state. These cases, upon
which Troxel relies, involve the injection of the state into the process
of raising children. For example, in two of these cases, the Court declared
unconstitutional laws that impeded parents' decisions on their children's
education by prohibiting private schools, see Pierce v. Society of Sisters,
268 U.S. 510 (1925), or the teaching of foreign languages in schools, see
Meyer v. Nebraska, 262 U.S. 390 (1923).
|||In a third one, Santosky v. Kramer, 455 U.S. 745 (1982), the Court held
that, to terminate parental rights, a state must present clear and convincing
evidence of unfitness. In yet another, M.L.B. v. S.L.J., 519 U.S. 102 (1996),
the Court held that a right to appeal in forma pauperis must be granted
by the state when parental rights are terminated. Finally, in Quilloin v.
Walcott, 434 U.S. 246 (1978), the Court rejected the efforts of the father
of an illegitimate child to veto the adoption of that child by the natural
mother's husband. Instead, it concluded that a natural father who had failed
to claim paternity until the adoption was proposed could not rely on state
law to overturn the state's full recognition of an already existing family
unit that was in the child's best interests. See id. at 255-56. Each of
these cases share a common theme: They involve a situation in which the
state has attempted by statute or by a court's procedural requirements to
eliminate a parent's role in the custody or nurture of the child.
|||The situation before in this case is very different. The Commonwealth
of Pennsylvania has not attempted by statute or by court proceedings to
determine the outcome of Leah's pregnancy or to dictate whether she should
keep the child or give it up for adoption. Nor did Seip physically prevent
Leah or her parents from taking any action as a consequence of her pregnancy.
The claim here is that Seip's discussion of Leah's pregnancy with others
and his failure to inform the Gruenkes of the pregnancy merely complicated
the Gruenkes' ability to make decisions concerning the pregnancy. This alleged
breach of privacy and failure by a school official to impart information
to the family is not an action by the state to control the education of
a child against the parents' wishes or to determine custody or visitation
without proper input by the parents. In fact, the Gruenkes were free at
all times to make whatever decision they pleased as to the outcome of Leah's
pregnancy, even after Seip discussed her condition with other parents or
swim team members.
|||Accepting the facts as proffered by the Gruenkes, I conclude that the
Gruenkes have failed to establish the violation of a constitutional right
to familial integrity. Consequently, Seip is entitled to summary judgment
on this claim, see Sameric Corp., 142 F.3d at 590 n.6, but, I believe, not
for the reasons cited by the majority.
|||A True Copy:
|||*fn1 . Honorable Milton I. Shadur, United States District Court Judge
for the Northern District of Illinois, sitting by designation.
|||*fn2 . In so holding,
we leave for another day the question of whether, under facts otherwise
analogous to those presented today, an appropriate school official would
be entitled to qualified immunity for requiring a pregnancy test under Vernonia
Sch. Dist. 47J v. Acton, 515 U.S. 646 (1995).
|||*fn3 . As the District
Court noted, it is at best unclear whether Leah's pregnancy was actually
"confidential"; her condition may have been readily observable
to the public because of her physical appearance. See Gruenke, 1998 WL 734700,
|||*fn4 . Part III.B.2
represents the views of Judges Weis and Shadur only. Judge Roth's views
are set forth in a separate concurring opinion.
|||*fn5 . See Stephen
R. Ripps et al., To Disclose or Not to Disclose: The Dilemma of the School
Counselor, 13 MISS. C. L. REV. 323, 328-29 (1993) ("[T]here is a developing
trend in state and federal case law recognizing the existence of a legal
duty or special relationship between the school district and a student's
parents necessitating disclosure of personal information about the student
in certain circumstances.").
|||*fn6 . Any such violation
does not, however, extend to the allegations of interference in the relationship
between Leah and her unborn child.
|||*fn7 . We also agree
with the District Court's conclusion that Leah's asserted right to social
association does not fall within the ambit of the right to education that
Brown v. Board of Education, 347 U.S. 483 (1954), protects.
|||*fn8 . We note, however,
that, to the extent Troxel expanded the boundaries of parental rights, it
cannot for qualified immunity purposes apply to Seip's past actions since,
as a case decided this Term, it could not, by definition, retroactively
govern his actions in 1997. See Harlow, 457 U.S. at 818 (noting that law
must be clearly established at "the time an action occurred.")
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