Parents United for Better Schools, Inc. v. School District of Philadelphia Board of Education

Opinions of the United
1998 Decisions States Court of Appeals
for the Third Circuit

7-9-1998

Parents United v. Sch Dist Phila
Precedential or Non-Precedential:

Docket 97-1829

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Filed July 9, 1998

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 97-1829

PARENTS UNITED FOR BETTER SCHOOLS, INC.;
CLIFTON WELDON, parent and natural guardian of
LAKEYA WELDON; ALICIA BUCKSON, parent and natural
guardian of DAMON HARRIS; LORNA WILLIAMS, natural
guardian of TOUREE JOHNSON; ROBIN PIERCE, parent
and natural guardian of DANA WELKS; ANTHONY SCOTT,
parent and natural guardian of NITIKIA SCOTT; HAROLD
STEPHENS, parent and natural guardian of MELISSA D.
STEPHENS; PHILIP BATTAGLIA, parent and natural
guardian of PHIL BATTAGLIA

v.

SCHOOL DISTRICT OF PHILADELPHIA BOARD OF
EDUCATION; RUTH HAYRE, DR., President, School
District of Philadelphia Board of Education; CONSTANCE
E. CLAYTON, DR., Superintendent of Schools of the
School District of Philadelphia; JAMIL DOE, a minor, by
his parents and guardians SARAH DOE and WILLIAM
DOE; SARAH DOE; WILLIAM DOE; LATIYA SMITH, a
minor, by her guardian RUTH LOWE; ROSETTA DAVIS, a
minor, by her guardian BARBARA ZLOTOWSKI; ADRIAN
JONES, a minor, by her guardian GAIL SOSNOV;
NATASHA BROWN, a minor, by her mother and guardian
VENITA BRACY; JOAN ADLER, M.D.; ACTIONAIDS INC;
FAMILY PLANNING COUNCIL OF SOUTHEASTERN
PENNSYLVANIA, INC.; PLANNED PARENTHOOD OF
SOUTHEASTERN PENNSYLVANIA
 Parents United For Better
Schools, Inc.; Clifton Weldon;
Alicia Buckson; Lorna Williams;
Robin Pierce; Anthony Scott;
Harold Stephens; Philip
Battaglia,
Appellants

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Action No. 96-cv-03791)

Argued May 7, 1998

Before: SCIRICA, COWEN and BRIGHT,*
Circuit Judges

(Filed July 9, 1998)

DENNIS M. ABRAMS, ESQUIRE
(ARGUED)
Lowenthal & Abrams
555 City Line Avenue, Suite 440
Bala Cynwyd, Pennsylvania 19004

Attorney for Appellants

GLENNA M. HAZELTINE, ESQUIRE
(ARGUED)
School District of Philadelphia
Office of General Counsel
2130 Arch Street, 5th Floor
Philadelphia, Pennsylvania 19103
_________________________________________________________________

*The Honorable Myron H. Bright, United States Circuit Judge for the
Eighth Judicial Circuit, sitting by designation.

2
Attorney for Appellees,
School District of Philadelphia; Dr.
Ruth W. Hayre, President, School
District of Philadelphia Board of
Education; Dr. Constance E.
Clayton, Superintendent of Schools
of the School District of
Philadelphia

CATHERINE WEISS, ESQUIRE
(ARGUED)
LISA LANDAU, ESQUIRE
JENNIFER DALVEN, ESQUIRE
American Civil Liberties Union
Foundation
Reproductive Freedom Project
125 Broad Street, 18th Floor
New York, New York 10004

DEBORAH WEINSTEIN, ESQUIRE
Connolly, Epstein, Chicco, Foxman,
Oxholm & Ewing
1515 Market Street, Suite 900
Philadelphia, Pennsylvania 19102

Attorneys for Appellees,
Jamil Doe, a minor, by his
parents and guardians Sarah Doe
and William Doe; Sarah Doe;
William Doe; Latiya Smith, a
minor, by her guardian Ruth
Lowe; Rosetta Davis, a minor, by
her guardian Barbara Zlotowski;
Adrian Jones, a minor, by her
guardian Gail Sosnov; Natasha
Brown, a minor, by her mother
and guardian Venita Bracy; Joan
Adler, M.D.; ActionAIDS, Inc.;
Family Planning Council of
Southeastern Pennsylvania, Inc.;
Planned Parenthood of
Southeastern Pennsylvania

3
OPINION OF THE COURT

SCIRICA, Circuit Judge.

The issue on appeal is whether a board of education
exceeded its authority by implementing a consensual
program to distribute condoms in public schools in order to
prevent disease. Because the Philadelphia School Board
acted within its statutory and regulatory authority, and
because the policy neither coerces parental or student
participation nor offends the rights of parents to direct the
care and custody of their children, we will affirm.

Plaintiffs, Parents United for Better Schools, Inc. and
several individually listed parents of Philadelphia public
high school students brought this declaratory judgment
action against the School District of Philadelphia Board of
Education; President of the School Board; and the
Superintendent of Schools. Several parties intervened:
individually listed students in Philadelphia public schools
and their parents, ActionAIDS, Inc., the Family Planning
Council of Southeastern Pennsylvania, Inc., and Planned
Parenthood of Southeastern Pennsylvania. Plaintiffs appeal
the district court's order granting defendants' motion for
summary judgment. See Parents United for Better Schs.,
Inc. v. School Dist. of Phila. Bd. of Educ., 978 F. Supp. 197
(E.D. Pa. 1997).

I.

A.

The Pennsylvania Constitution entrusts the legislature
with the responsibility of providing for public education.
See Pa. Const. Art. 3 S 14 ("The General Assembly shall
provide for the maintenance and support of a thorough and
efficient system of public education"). "In meeting its
responsibility, the General Assembly has established a
comprehensive legislative scheme governing the operation
and administration of public education." Pennsylvania

4
Fed'n of Teachers v. Sch. Dist. of Phila., 484 A.2d 751, 753
(Pa. 1984) (citation omitted).1

On June 24, 1991, acting under the School Code and the
Philadelphia Home Rule Charter, the Board adopted Policy
Number 123, entitled "Adolescent Sexuality." According to
the Board "adolescent pregnancy, sexually transmitted
diseases, and HIV infection are epidemic among school age
youth . . . . [T]he Board recognizes that schools, in concert
with all segments of the Philadelphia community, have an
obligation to promote a healthy lifestyle for all adolescents."
(App. 36). The Board enunciated a broad purpose:

1.1 The Board of Education reaffirms its policy to
provide comprehensive human growth and
development instruction to all public school students.
In accordance with School District policy and state law,
such instruction should be part of the public school
program and should be shared by the public schools,
home, and community. The primary purposes of such
instruction are to promote more wholesome family and
interpersonal relationships; to help young people
understand their sexuality at all levels of development;
and to develop healthy habits and moral values
regarding human sexuality.

1.2 The Board recognizes that the expression of
human sexual behavior can be the source of many of
life's most meaningful experiences as well as its most
_________________________________________________________________

1. "The organization of [Pennsylvania's] public school system is
controlled
by the Public School Code of 1949 (School Code)[24 Pa. Stat. Ann. SS 1-
101 - 27-2702 (West 1992)]." Philadelphia Fed'n of Teachers, Local No. 3
v. Board of Educ. of the Sch. Dist. of Phila., 414 A.2d 424, 426 (Pa.
Commw. Ct. 1980) (citation omitted). "School Districts act as agencies of
the state legislature in administering the educational program within the
district." Chambersburg Area Sch. Dist. v. Pennsylvania Labor Relations
Bd., 430 A.2d 740, 743 (Pa. Commw. Ct. 1981) (citation omitted), appeal
dismissed, 446 A.2d 603 (Pa. 1982). See also Barth v. School Dist. of
Phila., 143 A.2d 909, 912 (Pa. 1958) ("the School District of Philadelphia
is an agent or creature of the Legislature"); Kaufman v. Central
Susquehanna Intermediate Unit No. 16, 601 A.2d 412, 414 (Pa. Commw.
Ct. 1991) ("The legislature has established that each school district and
intermediate unit shall have, inter alia, a board of directors and has set
forth the powers and duties of each") (citation omitted).

5
 painful problems; and the Board of Education firmly
asserts that abstinence from sexual activity during
adolescence promotes good health and a healthy
lifestyle.

1.3 The Board of Education firmly believes that
successful pursuit of the mission of promoting a
healthy lifestyle for all adolescents depends upon the
cooperation of a broad spectrum of the Philadelphia
community, including schools, families, religious
institutions, health care providers, social service
agencies, businesses, government, and media.

(App. 37). The Board described the Policy's objectives as
follows:

2.1.a. To enable and encourage students to abs tain
from sexual intercourse until ready to enter marriage
or another mutually monogamous relationship.

2.1.b. To reduce high risk sexual behavior lea ding to
teen pregnancy, sexually transmitted diseases and HIV
infection.

2.1.c. To assure a safe, equitable and positiv e school
experience for lesbian and gay students.

2.1.d. To assure that all programs and activit ies take
into consideration the broad spectrum of ethnic and
cultural diversities, as well as mental and physical
disabilities.

(App. 38). To effectuate the aforementioned objectives, the
Board prescribed specific curricula:

3.1 The Superintendent shall direct the
development and acquisition of curricula which
comprehensively promote healthy behavior and which
shall be taught in all grade levels, pre-kindergarten
through grade twelve. Such curricula shall focus on
behavioral outcomes and effective methods to convey
the message that abstinence is the most effective way
of preventing pregnancy, sexually transmitted diseases
and HIV infection; a voluntary parental education
component, designed to enhance the frequency and
effectiveness of parents' communication with their

6
 children; and a mechanism for monitoring the efficacy
of the curricula.

(Id.). The policy also empowers the Superintendent "to
develop additional partnerships with health care providers
that expand and maximize access to in-school
comprehensive health care for all children." (App. 39).

The cornerstone of the policy, and its most controversial
provision, is its directive to facilitate student access to
condoms:

3.4 The Board believes that the effectiveness of the
curricula to promote healthy lifestyles and to prevent
pregnancy, sexually transmitted diseases and HIV
infection is enhanced for sexually active students by
facilitating their access to condoms outside of school.
Toward that end, the Board supports the School
District's involvement in city wide efforts to maximize
access to condoms.

3.5 The Board of Education directs the
Superintendent to immediately initiate the design of a
pilot, educationally-based program, permitting in-
school availability of condoms and the counseling of
students in the use of same, utilizing established non-
School District health care and social service providers,
in partnership with participating schools. Such
programs shall commence not later than the Fall of
1991.

3.6 The phased-in pilot program of condom
availability in schools shall apply only to students in
grades nine through twelve.

* * *

3.7 A component of the phase in pilot program shall
be specifically for the education of parents, designed to
enhance the frequency and effectiveness of parents'
communication with their children about sexuality.

(App. 38-39). Schools employ two models for condom
distribution:

One model, which shall be referred to as the
comprehensive School Based Clinic model, has

7
 professionally-trained health educators and clinicians
provide health and sexuality information as well as
condoms through existing school health clinics . . ..
The second model, Health Resource Centers,
establishes separate centers inside high schools,
staffed by experienced counselors or social workers,
where teens can go to receive condoms with counseling
and health and sexuality information. No health care
services are provided in these Centers. Rather,
students are referred to services in the community.

(App. 298).

The Board does not fund the program. (App. 41). The
health resource centers receive funding through private and
non-school district sources and under the Public Health
Service Act, 42 U.S.C.A. SS 201-300aaa-13 (West 1991 &
Supp. 1998). (App. 461, 475 ("The Council continues to
fund comprehensive family planning services through
subcontracting agencies . . . . [c]ouncil subcontracts now
fund all nine of the condom availability sites . . .. Four of
the nine sites are funded by Title X monies")). See also 42
U.S.C.A. S 300(a) ("The Secretary is authorized to make
grants and to enter into contracts with public or nonprofit
private entities to assist in the establishment and operation
of voluntary family planning projects which shall offer a
broad range of acceptable and effective family planning
methods and services").

The condom distribution program specifically gives
parents the option of refusing to let their child participate:

4.1 Parents or guardians of students in schools
taking part in the phase-in pilot program shall have
the absolute right to veto their child's or children's
participation in the program.

(App. 39-40) (opt out provision). If a parent returns an opt
out form, the counselor will not supply that student with
condoms. If an opt out form is not on file, the counselor
discusses the virtues of abstinence with the student. In the
event the student still requests condoms, the counselor
supplies them after providing instructions for their proper
use.

8
The condom distribution program began on December
21, 1991 when letters were mass-mailed to parents by the
principals of schools with pilot programs advising them of
the availability of condoms to students as part of the
"health services" program, stating, in part:

As one part of providing new and important health
services to protect children, the Board now permits any
high school student who asks for a condom to receive
one in our school. If a high school student asks for a
condom in school, that student will also be given
counseling and education including the importance of
abstinence, from a doctor, a nurse or a social worker.

* * *

Please fill out the enclosed form if you do not wish
your child to be able to participate in this program.
Please mail it back . . . within two weeks.

If you believe that this important health service
should be available to your child you do not have to
send back your form.

(App. 76). As of September 12, 1997, condom availability
programs were operating in nine of Philadelphia's forty
public schools.

B.

1.

On January 13, 1992, Plaintiffs filed a complaint in the
Philadelphia County Court of Common Pleas seeking a
permanent injunction and declaratory relief. Count I alleged
the policy violates the Pennsylvania Code because it
emphasizes the use of condoms to prevent the spread of
AIDS instead of abstinence, a formalized curricula, and
AIDS education. Count II claimed the policy's opt out
provision illegally usurps common law and statutorily
guaranteed parental rights of permission before their
children receive medical or health services because it
requires parents to veto the participation of their child in
the condom program. (See App. 13 (Compl.PP 17-18)).

9
Count III and Count IV maintained the condom distribution
program violates 18 Pa. Cons. Stat. S 4304 ("Endangering
welfare of children") (West Supp. 1998) because it, inter
alia, encourages abstinent children to engage in sexual
activity and increases the sexual activity of children who
are already sexually active. Count V claimed the condom
distribution policy offends the provision in the Philadelphia
City Municipal Code allowing for " `reasonable requirements
to insure or require the control of the spread of
communicable diseases' in schools or institutions . . .
because it promotes condom use alone." (App. 17 (Compl.
PP 32-33)). Finally, Count VI asserted the Policy itself has
been violated because "no such curricula emphasizing the
efficiency of abstinence and no evaluation criteria or
monitoring was in place when the condom distribution
began" and "Defendants have not notified all affected
parents of their right to veto nor do they have any effective
mechanism to insure all affected parents are notified of
their absolute veto power." (App. 20 (Compl. PP 37-41)).2

On November 10, 1992, the Court of Common Pleas
granted defendant's motion for summary judgment, finding
plaintiffs lacked standing to bring the lawsuit because the
policy allows parents to veto their children's participation.
On appeal, the Pennsylvania Commonwealth Court
reversed, finding Plaintiffs "(1) identified a substantial
interest, i.e., prior express parental consent to medical
treatment; (2) which interest is directly affected by the
action of the Board; and (3) the consequences of the
Board's action affecting that interest are immediate."
Parents United for Betters Schs., Inc. v. School Dist. of Phila.,
646 A.2d 689, 693 (Pa. Commw. Ct. 1994).

In March, 1996, defendants filed another motion for
summary judgment which the Court of Common Pleas
denied. In opposing defendants' motion, plaintiffs alleged
federal substantive due process guaranteed them
unfettered discretion in raising their children. That federal
claim prompted defendants to remove the case to the
_________________________________________________________________

2. Count VII alleged the Policy runs afoul of 18 Pa. Cons. Stat. S 6301
("Corruption of minors") (West Supp. 1998). Plaintiffs abandoned both
this claim and Count IV. See Parents, 978 F. Supp. at 212 n.7.

10
United States District Court for the Eastern District of
Pennsylvania on May 17, 1996, and the district court
denied plaintiffs' subsequent motion to remand.

C.

1.

In deciding the motion for summary judgment,3 the
_________________________________________________________________

3. All parties submitted affidavits in support of and in opposition to the
summary judgment motion. Defendants supplied affidavits averring (1)
the School District of Philadelphia does not dispense funds for the
condom distribution program; (2) giving or receiving a condom is not a
medical service requiring medical training or supervision; and (3)
confidentiality is particularly important to a minor's use of these
services; ease of access tends to ensure consistent use. (App. 41, 64,
253).

Students submitted affidavits stating (1) having condoms in the
resource centers does not increase sexual activity but rather increases
the incidence of condom use; (2) students use the resource centers to get
condoms; and (3) most of them would not ask their parents to sign the
consent form. Defendants also supplied affidavits from physicians
declaring (1) most sexually active adolescents either fail to use
precautions against pregnancy and disease or use these preventive
measures inconsistently or improperly; (2) adolescents face obstacles in
obtaining condoms or other devices that prevent pregnancy; (3) there is
no evidence that providing minors access to contraceptives without
parental consent, in schools or elsewhere, increases their sexual
activity;
and (4) a well designed, school based program to make condoms
available together with counseling on alternative means of protection
from the hazards of unsafe sex, such as abstinence, can be effective in
reducing pregnancy.

Defendants also provided statistical evidence. Between September
1993 and June 1994, 4,650 students made 16,224 visits to the school
based clinics and health resource centers. These 4,650 students
represent 24% of the total number of students enrolled at the high
schools offering condom availability programs. Seventy-one percent
(71%) of the students who visited the school based clinics and health
resource centers received condoms at the time of their initial visit. Of
the
students for whom condom distribution information was available, only
of 1% (23) were denied condoms because of parental requests to bar
condom availability to their children. Of the 16,060 visits (74%) that

11
district court rejected plaintiffs' argument that the Board's
broad powers do not include the power to implement the
condom program, finding the Board was fulfilling its
educational mandate.

The district court also rejected Plaintiffs' argument that
_________________________________________________________________

were made to the centers and clinics, students received condoms in
11,810.

Generally, five condoms are distributed at each visit. Seventy percent
(70%) of students using the centers and clinics received counseling on
abstinence at the time of their initial visit. (App. 299-300). The number
of students using services increased from 3,030 in the 1992-93 school
year to 4,404 for 1993-94. The percentage of visits in which condoms
were distributed increased from 62% in 1992-93 to 74% in 1993-94, and
the number of initial visits at which condoms were received increased
from 2,071 to 3,114 respectively. Also, the percentage receiving condoms
during initial visits increased slightly from 68% to 71%. (App. 300-01).
See also Parents United for Better Schs., Inc. v. School Dist. of Phila.
Bd.
of Educ., 978 F. Supp. 197, 200 (E.D. Pa. 1997) ("In the 1995-96 school
year, 5,400 students visited the health resource centers at which
condoms are available. Seventy-five percent of those students received
condoms . . . . counselors made 686 referrals to health care providers for
sexually transmitted diseases, HIV screening, or treatment, and made
984 referrals . . . for pregnancy or birth control needs").

In opposition, plaintiffs submitted, inter alia, the deposition of a
public
school nurse, averring she (1) does not obtain parental permission before
cleansing a laceration; (2) does not hand out toothbrushes, toothpaste,
or tampons but does hand out sanitary napkins; (3) follows a standing
order issued to parents who have consented to the dispensing of Tylenol;
and (4) neither checks male genitalia nor performs internal examinations
on women. (App. 86-114).

Plaintiffs also supplied the affidavit of the president of Parents United
for Better Schools, stating staff members made phone calls to 100
randomly selected members who have children in the schools where
condoms are presently distributed under the policy. Only 21% said they
had received letters advising them of the policy, while 79% said they had
never received a letter from the School District. (App. 116). Plaintiffs'
expert's affidavit concluded the condom distribution program provides
health services to "the extent it entails institutionalized dispensation
of
condoms for students for actual use as a protection against sexually
transmitted diseases and HIV infection . . . . [I]t is not a form of
education." (App. 118-23).

12
the statutory provision on school health services, 24 Pa.
Stat. S 14-1402,4 which does not include condom
_________________________________________________________________

4. The statute provides, in part:

(a) Each child of school age shall be given by methods established
by the Advisory Health Board, (1) a vision test by a school nurse,
medical technician or teacher, (2) a hearing test by a school nurse
or medical technician, (3) a measurement of height and weight by a
school nurse or teacher, (4) tests for tuberculosis under medical
supervision, and (5) such other tests as the Advisory Health Board
may deem advisable to protect the health of the child.

* * *

(a.1) Every child of school age shall be provided with school
nurse
services.

* * *

(b) For each child of school age, a comprehensive health record
shall be maintained by the school district or joint school board,
which shall include the results of the tests, measurements and
regularly scheduled examinations and special examinations herein
specified.

(c) Medical questionnaires, suitable for diagnostic purposes,
furnished by the Secretary of Health and completed by the child or
by the child's parent or guardian, at such times as the Secretary
of
Health may direct, shall become part of the child's health record.

(d) All teachers shall report to the school nurse or school
physician any unusual behavior, changes in physical appearance,
changes in attendance habits and changes in scholastic
achievement, which may indicate impairment of a child's health.

* * *

(e) The school physicians of each district or joint board shall
make
a medical examination and a comprehensive appraisal of the health
of every child of school age.

* * *

(f) The Secretary of Health, upon petition of the school board or
joint school board or on his own initiative with the concurrence of
the school board or joint school board, may modify for individual
 school districts the school health services program specified in
this
section. The program as modified shall conform to approved medical
or dental practices and shall permit valid statistical appraisals
of the
various components of the program.

24 Pa. Stat. Ann. S 14-1402.

13
distribution, shows a clear legislative intent to restrict,
rather than expand, allowable school based health services.
Plaintiffs unsuccessfully argued to the district court that
the absence of explicit statutory authorization to distribute
condoms in 24 Pa. Stat. S 14-1402 suggests the condom
program lies beyond the scope of the school district's
authority. The district court stated:

I agree that condom distribution is within the implied
definition of health services. In the Code, the
Legislature adopts a broad meaning for health service,
as indicated by the enumerated services, which include
hearing and vision tests, tests for tuberculosis, and
height and weight measurements. These services relate
to the evaluation and preservation of students' health.
Condoms, too, involve health preservation. While it
requires very little training to use a condom in a
medically correct way, neither does it require great
medical expertise to measure a child's weight and
height. Because a condom is a prophylactic measure to
preserve health by reducing the risk of sexually
transmitted disease, it is a health service within the
meaning of the School Code.

I disagree, however, that the health services provision
forbids condom distribution programs. The caption for
the Code section relating to this statutory provision
reads `Required health services.' While the legislature
mandates the provision of certain health services,
nothing in the statute forbids a school district from
providing additional services, particularly where, as
here, no school district funds are being spent.

Parents, 978 F. Supp. at 203.

The district court also rejected plaintiffs' attempts to link
their health services argument with their position that the
Home Rule Charter, 351 Pa. Code S 12.12-309 (1998),
authorizes only those cooperative agreements to provide
health services that are specifically mandated by law, i.e.,
explicitly mentioned in 24 Pa. Stat. S 14-1402:

The statutes and regulations regarding mandatory
health services already prescribe the means by which
the schools must deliver those services. See e.g., 24 Pa.

14
 Cons. Stat. Ann. S 14-1401 (defining school health
personnel); S 14-1410 (governing `employment of school
health personnel'); S 14-1411 (governing public
contracts for health services with local health
departments); 28 Pa. Code SS 23.32(b), 23.33(b), 23.34,
23.35(b) (governing employment of school health
personnel). Section 12.12-309, in contrast, broadly
authorizes cooperative agreements `relating to health
services' whenever a school board determines that such
agreements would enhance the effective administration
of public education. This provision cannot apply to the
mandated health services because these must be
delivered through direct hiring and contracts as
specified by law. To have meaning, S 12.12-309 must
apply instead to other health-related services, such as
the condom program, which are not mandated but
which school districts have the discretion to offer.
Further, as discussed below, the school district could
distribute condoms in schools not as a health service
to students, but as an effective means of fulfilling its
educational mandate by targeting those students most
at risk.

Parents, 978 F. Supp. at 204.

2.

According to the district court, a statutory provision
authorizing the Board to educate students about health
and hygiene supports the conclusion the Board did not
exceed its power by implementing the condom program. See
24 Pa. Stat. S 15-1513 ("Physiology and hygiene, which
shall in each division of the subject so pursued include
special reference to the effect of alcoholic drinks,
stimulants, and narcotics upon the human system, and
which shall also include special reference to tuberculosis
and its prevention, shall be introduced and studied as a
regular branch"). The district court also looked to
regulations under the School Code it felt reflected the
Board's concerns. See 22 Pa. Code S 5.201(e)(8) ("Each
student shall acquire and use the knowledge and skills
necessary to promote individual and family health and
wellness"); 22 Pa. Stat. S 5.202(f)(8) (iii) ("School Districts

15
shall prepare all students to attain the following student
learning outcomes . . . . All students demonstrate their
knowledge of the benefits associated with physicalfitness
and good personal health habits including health promotion
and disease prevention"); 22 Pa. Code. S 5.213 ("Planned
courses that provide instruction in the following areas shall
be taught to every student in the high school program . . . .
Wellness and fitness, incorporating physical education,
aerobic fitness, regular physical activity and health and
instruction every year about prevention of alcohol, chemical
and tobacco abuse").

As the district court noted, these regulations specify
education about the prevention of sexually transmitted
disease: "[i]nstruction regarding prevention of human
immunodeficiency virus (HIV) infestation/acquired
immunodeficiency syndrome (AIDS) shall be given for
primary, intermediate, middle school and high school
education." 22 Pa. Code S 5.220(a). The regulations delegate
authority with respect to the means of instruction to the
local school districts:

Educational materials and instruction shall be
determined by the local school district and be
appropriate to the age group being taught. The
program of instruction shall include information about
the nature of the disease, the lack of a cure, the ways
the disease is transmitted and how infection can be
prevented . . . . Programs discussing transmission
through sexual activity shall stress that abstinence
from sexual activity is the only completely reliable
means of preventing sexual transmission.

22 Pa. Code S 5.220(b). Based on the regulations, the
district court concluded the Board could rationally decide
to permit access to condoms to further health and health
education:

Curricula developed under Policy 123 teach students
about HIV and its consequences, among other things.
Stressing abstinence, these curricula wisely include
instruction in another form of prevention, namely the
use of a prophylactics. Following this instruction, if not
before, students will know that condoms can help

16
 prevent the spread of HIV and other sexually
transmitted diseases. The School District knows that
these students may obtain condoms from a variety of
sources, including pharmacies, clinics, and even in
certain rest rooms. In-school access to condoms does
not give the students significantly greater ability to
obtain condoms than they would have without the
program. It does, however, come at a price that
furthers the School District's educational mission:
students who obtain condoms in the school must
receive a lecture on abstinence, and learn how to use
condoms properly. The condom distribution program
gives the School District opportunity to urge students
not to engage in sexual activity. The program also thus
targets those students most at risk of contracting a
social disease, i.e., those who intend to engage in
sexual relations. The School District thus ensures that
the students know how to use condoms correctly. The
student who buys condoms from a drug store does not
necessarily receive this instruction; the one who gets
them through the in-school program does. Thus, the
program promotes the education of school students in
physiology and hygiene, as authorized and required by
the School Code.

Parents, 978 F. Supp. at 205.5

3.

The district court rejected Plaintiffs' claim that condom
distribution violated common law parental consent
requirements. See e.g., Parents United for Better Schs., Inc.
v. School Dist. of Phila. Bd. of Educ., 646 A.2d 689, 691 (Pa.
Commw. Ct. 1994) ("The principle that parental consent
must be secured before medical treatment [is] provided is
time honored . . . . Generally, it is for the parent in the first
_________________________________________________________________

5. Plaintiffs unsuccessfully asserted the Board abused its discretion. The
district court determined the Board acted within its statutory authority,
displaying neither ignorance nor caprice. See id. at 206 ("To the
contrary, the Board of Education held multiple hearings and conducted
a thorough examination of the reasons for, and implications of,
distributing condoms in public schools").

17
instance to decide what is actually necessary for the
protection and preservation of the life of his or her child")
(citations omitted). The district court found condom
distribution is not medical treatment:

[P]ersons dispensing the condoms may have no medical
training, perform no surgical procedures on the
students, and intend no contact with them. Thus, they
no more need parents' consent to dispense condoms to
a student than a pharmacist would need that consent
to sell the minor students condoms in a drug store.

More generally, medical treatment tends to come
after the fact . . . . Condoms . . . are prophylactic . . .
non-invasive, are not used to diagnose or cure disease,
and do not require medical training or supervision for
their use. Because condom distribution is not a
medical treatment, it would not fall within the
common-law rule.

* * *

Plaintiffs, however, would expand the common law
rule beyond curative procedures involving physical
contact by arguing that health services, such as
condom distribution, also require parental consent. I
agree that condom distribution is health-related.
Whether condoms are used can have a significant
impact upon a person's health. When used properly,
condoms serve as a barrier for germs, bacteria and
viruses, thus keeping contagious little disease
generators from passing from one person's body into
another's, thereby infecting, perhaps fatally, the other
person. Not all condoms are totally impermeable, and
thus, they are not all perfect. But they do reduce the
risk of infection with sexually transmitted diseases.
Because condom usage may help to preserve health,
their distribution is a health service, within the
ordinary meaning of that term. Impact upon health,
however, does not transform a health service into a
medical treatment. Health services, by definition,
encompass far more than medical treatment. Because
the cases requiring parental consent speak only to
medical treatment, I will not engraft a common-law

18
 consent requirement onto the much broader category
of health services.

Parents, 978 F. Supp. at 207.

The district court incorporated the same reasoning with
the respect to plaintiffs' assertion that the distribution of
condoms without prior parental consent violates the
Minor's Consent Act, 35 Pa. Stat. SS 10101-10105 (West
1993), providing "[a]ny minor who is eighteen years of age
or older, or has graduated from high school, or has
married, or has been pregnant, may give effective consent
to medical, dental and health services for himself or
herself." 35 Pa. Stat. S 10101. Plaintiffs argued that
because condom distribution is not an enumerated
exception within the Act, parental consent is required. The
district court disagreed:

a provision of the Act permits minors to consent to
`medical and health services to determine the presence
of or to treat pregnancy, and venereal disease and the
consent of no other person shall be necessary.' 35 Pa.
Stat. Ann. S 10103. On the one hand, the Legislature
easily could have inserted `to prevent' before`to
determine.' On the other hand, it seems absurd for the
legislature to allow minors to consent to treatment
once they are pregnant or infected with a sexually
transmitted disease, but forbid them to obtain
contraceptives to prevent those conditions without
parental consent.

* * *

Further, the very terms of the statute express an
intent to liberalize the circumstances under which
minors can receive medical care. This liberalization
finds expression in the statute's title: `An Act enabling
certain minors to consent to medical, dental and health
services.' If, by negative implication, the statute
disables minors from providing consent in any
circumstances not enumerated, it would restrict the
very rights it means to expand.

Parents, 978 F. Supp. at 208 (citations omitted).

19
4.

The district court accepted defendants' argument that
federal statutory rights under the Public Health Service Act,
specifically 42 U.S.C.A. S 300(a), bar the imposition of a
parental consent requirement. According to the district
court, services under this statutory scheme include the
provision of contraceptives, and "all circuit courts which
have considered the issue have concluded that parental
consent cannot be required before a minor receives these
services." Id. at 208 (citation omitted). Thus, "[i]f
Pennsylvania's Minor Consent Act requires parental
consent before providing contraceptives, it must yield to
federal confidentiality requirements whenever a minor seeks
contraceptives through [programs funded under this
statutory scheme]." Id. at 209.

According to the district court, students' privacy rights
warranted the same freedom from a parental consent
requirement:

Constitutional protection for minors is critical because
pregnancy and sexually transmitted diseases impact as
heavily, if not more heavily, upon minors.

During the past two decades, the Supreme Court
consistently has rejected blanket parental consent
requirements for abortions, holding instead that
minors must have recourse to courts if they will not or
cannot obtain their parents' consent . . . . Access to
contraceptives may be just as important as access to
abortions: `the decision whether to use contraceptives
is as intimate and personal as, and involves risks to
the individual which are comparable to those raised by
the decision whether to have an abortion.' Planned
Parenthood Ass'n of Utah v. Matheson, 582 F. Supp.
1001, 1009 (D. Utah 1983). But states have even less
interest in regulating minors' access to contraception
than in regulating minors' access to abortion. Thus,
the Constitution forecloses an interpretation of
Pennsylvania law that would compel parental consent
whenever a minor seeks contraceptives.

Parents, 978 F. Supp. at 209 (citations omitted).

20
5.

In assessing the constitutionality of the condom
distribution program, the district court focused on
plaintiffs' claim that parents are coerced into participating
in the program, in contravention to their Fourteenth
Amendment liberty interest and right to be free from
unnecessary governmental intrusion in the rearing of their
children. Plaintiffs characterized the opt out provision as
coercive, arguing it forces parents to affirmatively respond
to insure their children do not participate in the condom
distribution program. The district court found no coercion:

[s]o also, just as the condom program at issue here
is not coercive upon the parents, nor is it coercive
upon the students. Students may be compelled to
attend school, but they are not compelled to participate
in the condom program. Student use of the health
resource centers is entirely voluntary. Further, parents
are free to instruct their children not to use the
program, and may even actively prevent their children's
participation by sending an opt out letter to the school.
In fact, the opt out provision encourages parental
involvement by notifying them of the school program
and permitting them to forbid their children to use it.
Because it allows parents to restrict children's in-
school access to condoms, the provision gives parents
more authority to control their children. The opt out
provision supports, not burdens, parental rights.
Parents thus remain free to exercise their traditional
care, custody and control over their emancipated
children.

Parents, 978 F. Supp. at 211 (citation omitted).

6.

Finally, the district court concluded plaintiffs could not
prove defendants committed an offense under 18 Pa. Cons.
Stat. Ann. S 4304(a) ("A parent, guardian, or other person
supervising the welfare of a child under 18 years of age
commits an offense if he knowingly endangers the welfare
of the child by violating a duty of care, protection or
support"):

21
 [Plaintiffs] cannot show either that the condom
program endangers children or that the defendants had
the requisite intent. If in-school distribution of
condoms increases sexual activity, Plaintiffs might
show endangerment. But Plaintiffs have provided no
evidence linking condom distribution to increased
sexual activity. Further, while improper use of
condoms can be dangerous, failing to use condoms
puts sexually active children at even greater risk. If
anything, the danger to the children would be
increased were this condom program quashed. Thus,
Plaintiffs have not shown that the condom program
endangers children. Without a showing of
endangerment, there can be no liability.

Even if Plaintiffs could show that the condom
program endangers children, they cannot prove that
the defendants had the requisite intent. Rather, the
record evidences the defendants' belief that the
program promotes students' health and welfare, not
that it endangers them. The mere possibility,
unsupported by the record, that Defendants might be
mistaken in their belief, as Plaintiffs' argue, cannot
support a claim for child endangerment.

Id. at 212-13.

II.

We have jurisdiction over this appeal under 28 U.S.C.
S 1291. "Since this is an appeal from a district court's
granting of summary judgment, we exercise plenary
review." DeBlasio v. Zoning Bd. of Adjustment for the
Township of West Amwell, 53 F.3d 592, 596 (3d Cir. 1995)
(citation omitted), cert. denied, 516 U.S. 937 (1995).

III.

A.

1.

Plaintiffs maintain the Board only enjoys that authority
explicitly granted by the legislature. In the absence of

22
express statutory authorization to provide a new health
service, plaintiffs contend the Board exceeded its powers by
implementing a program operated exclusively by non-school
district personnel who provide a service never before offered
by any school district in Pennsylvania. Plaintiffs also
characterize the health services offered as too remote from
education, the primary function of the Board, citing Barth
v. School Dist. of Phila., 143 A.2d 909 (Pa. 1958)
(invalidating agreement between the Board and the City to
establish and finance a youth conservation commission to
serve as an instrumentality for curbing juvenile
delinquency because "the main purpose of this agreement
is, at best, very indirectly and very remotely connected with
Education. Virtually all of the work contemplated by this
Agreement would be performed (a) outside of the schools,
and (b) by an independent agency").

We believe plaintiffs have too restrictive a view of Board
authority. The General Assembly delegated broad powers to
the Board to execute the School Code and effectuate its
underlying policies. "School authorities must be given
broad discretionary powers to ensure a better education for
the children of this Commonwealth and any restrictions on
the exercise of these powers must be strictly construed."
Smith v. Darby Sch. Dist., 130 A.2d 661, 668-69 (Pa. 1957).
See also Pennsylvania Fed'n of Teachers v. School Dist. of
Phila., 484 A.2d 751, 753 (Pa. 1984) ("the General Assembly
has established a comprehensive legislative scheme
governing the operation and administration of public
education. Those local agencies created to administer the
system have been delegated broad powers"); Chambersburg
Area Sch. Dist. v. Pennsylvania Labor Relations Bd., 430
A.2d 740, 743 (Pa. Commw. Ct. 1981) ("School districts are
given broad powers to determine policy relative to education
by the Public School Code of 1949") (citations omitted).

The statutory scheme devised by the General Assembly,
specifically the School Code, contains several provisions
manifesting legislative intent to invest the Board with such
power. 24 Pa. Stat. Ann. S 2-211 provides,"[t]he several
school districts in this Commonwealth shall be, and hereby
are vested as, bodies corporate, with all necessary powers
to enable them to carry out the provisions of this act." See

23
also 24 Pa. Stat. Ann. S 21-2103 (listing Board duties,
including, inter alia, "(1) [t]o define the general policies of
the school system, (2) [t]o legislate upon all matters
pertaining thereto . . . (7) [i]n general to legislate upon all
matters concerning the conduct of the schools subject to
the provisions of this act").

More specifically, "the board of school directors in any
school district may establish, equip, furnish, and maintain
. . . additional schools or departments for the education and
recreation of persons residing in said district, and for the
proper operation of its schools." 24 Pa. Stat. Ann. S 5-502.
See Harris v. Board of Pub. Educ. of Sch. Dist. of Phila., 160
A. 443, 443 (1932) (describing related provision: "[i]n broad
terms, it reposes a wide discretion in the school board to
institute, besides specifically named classes of schools of
educational departments, such other schools or educational
departments as they, in their wisdom, may see proper to
establish").6

Among these powers is the authority to enter into
agreements:
_________________________________________________________________

6. Article 5 of the School Code enunciates the wide array of Board duties
and responsibilities. See e.g., S 5-504 (empowering Board to "establish,
equip, maintain, and operate cafeterias"); S 5-505 (authorizing Board to
"establish, equip, furnish, and maintain consolidated schools formed by
uniting two or more public schools"); S 5-507 (providing Board, when
necessary to "establish, enlarge, equip, furnish, operate, and maintain
any schools or departments herein provided," with power and authority
to "levy and collect, in the manner herein provided, the necessary taxes
required"); S 5-510 (authorizing Board to "adopt and enforce such
reasonable rules and regulations as it may deem necessary and proper,
regarding the management of its school affairs and the conduct and
deportment of [pupils]"); S 5-511 (empowering Board to "prescribe, adopt,
and enforce such reasonable rules and regulations as it may deem
proper, regarding . . . exercises, athletics . . . school publications,
debating, forensic, dramatic, musical, and other activities related to the
school program"); S 5-513 (authorizing school districts to "make
contracts of insurance with any insurance company, or nonprofit
hospitalization corporation, or nonprofit medical service corporation,
authorized to transact business within the Commonwealth"); S 5-523
(requiring Board to "adopt and amend, when necessary, a State Plan for
Educational Broadcasting").

24
 Nothing in this act shall be construed as constituting
a prohibition against agreements including, but not
limited to, joint tax collection, joint purchasing of
supplies, equipment and contractual services, use of
recreational and park equipment and facilities, control
and prevention of juvenile delinquency, city planning,
capital budgeting, capital programming and
comprehensive development planning, with any
municipal or former county department, agency, office,
board or commission or any agency of the
Commonwealth or the United States Government,
when, in the opinion of a duly constituted board of
education of the home rule school district or its
authorized agents, such agreement will further the
efficient and effective administration of public
education.

53 Pa. Stat. S 13219(b) (emphasis supplied).

The Home Rule Charter, authorized by 53 Pa. Stat. Ann.
S 13202 (West Supp. 1997) (allowing Philadelphia to "adopt
charter provisions governing the administration of a
separate and independent home rule school district"), also
suggests the Board enjoys broad powers. See 351 Pa. Code
S 12.12-200 (1998) ("There shall be a Board of Education of
the School District of Philadelphia which shall be charged
with the administration, management and operation of the
home rule school district"); 351 Pa. Code S 12.12-300
(1998) ("To enable it to administer, manage, and operate
the School District of Philadelphia, the Board of Education
shall have the powers and duties enumerated herein and
any other powers and duties, not inconsistent with law,
which are necessary to carry into effect the powers and
duties conferred upon it in this Article"). See e.g., Simmons
v. City of Phila., 947 F.2d 1042, 1097 (3d Cir. 1991)
("Philadelphia has been . . . granted certain powers by a
Home Rule Charter") (citation omitted), cert. denied, 503
U.S. 985 (1992); Pennsylvania Human Relations Comm'n v.
School Dist. of Phila., 681 A.2d 1366, 1379 (Pa. Commw. Ct.
1996) ("The City conducts its affairs pursuant to the
Philadelphia Home Rule Charter") (citation omitted).

The Home Rule Charter contains a provision that mirrors
53 Pa. Stat. Ann. S 13219(b) but provides additional

25
authority to enter into agreements relating to "health
services with any department, agency, office, board or
commission of the City, or with an agency of the
Commonwealth or of the United States, or with any non-
profit private agency, when, in the opinion of the Board,
such agreement will further the efficient and effective
administration of public education." 351 Pa. CodeS 12.12-
309(a) (1998) (emphasis supplied).

An examination of considerable statutory and regulatory
authority granted to the Board by the General Assembly
supports the conclusion that the Board acted within its
broad discretionary powers when implementing the condom
distribution program. The School Code specifically grants
necessary powers to enable the Board to effectuate the
provisions of that Act, including the power to create "[s]uch
other schools or educational departments as the directors,
in their wisdom, may see proper to establish." 24 Pa. Stat.
S 5-502. One of these provisions explicitly authorizes the
Board to enter into agreements that, in the opinion of the
Board, "will further the efficient and effective administration
of public education." 53 Pa. Stat. S 13219(b). Although
S 13219(b) does not specifically provide for health services,
the range of permissible agreements is "not limited to"
those listed in the statute. Id.

Similarly, the Home Rule Charter charges the Board with
the administration, management and operation of school
districts. A provision mirroring S 13219(b) enables the
Board to enter into agreements for health services, like the
partnerships used to administer the condom distribution
program, "when, in the opinion of the Board, such
agreement will further the efficient and effective
administration of public education." 351 Pa. CodeS 12.12-
309(a). The Home Rule Charter has a strong impact on
existing law:

Any charter provisions thus proposed, which are
approved by a majority of the qualified electors voting
thereon, shall become the organic law, or a part
thereof, of the city at such time as may be fixed therein
and all courts shall take judicial notice thereof. So far
as the same are consistent with the grant of powers
and the limitations, restrictions and regulations

26
 hereinafter prescribed, they shall supersede all acts, or
parts of acts, local, special or general, affecting the
organization, government and powers of such school
district to the extent that they are inconsistent or in
conflict therewith.

53 Pa. Stat. S 13212 (West Supp. 1998).

We agree with the district court that the Board fulfills its
educational mandate by attempting to promote health
services designed to prevent disease.7

2.

According to plaintiffs, the School Code, specifically 24
Pa. Stat. S 14-1402, contains an exclusive list of health
services the Board may administer to students. School
nurses, argue plaintiffs, are only authorized to provide
limited first aid and must defer to parents before offering
_________________________________________________________________

7. We consider Plaintiffs' reliance on Barth v. School Dist. of Phila.,
143
A.2d 909 (Pa. 1958) misplaced. Barth found the juvenile delinquency
program remotely connected with education because it focused on
matters "embraced not in Education but in the age-old functions and
duties of Government." Id. at 912. Barth also noted the program was
performed outside of school by independent agencies. Here, the Board's
policy is carried out in school by health care providers acting in
partnership with participating schools. Furthermore, both 53 Pa. Stat.
S 13219 and 351 Pa. Code. S 12.12-309(a) expressly authorize
cooperative programs to address health services.

Plaintiffs also cite Guerrieri v. Tyson, 24 A.2d 468 (Pa. Super. Ct.
1942), contending the Board's power to direct and control health services
provided to students is restricted. In Guerrieri , parents brought suit
after
a teacher attempted to cure a student's infectedfinger by placing it in
boiling water. Although citing teachers' in loco parentis relationship
with
students, the Pennsylvania Superior Court concluded "there is nothing
in that relationship which will justify defendants' acts . . . . [T]here
is no
implied delegation of authority to exercise [a teacher's] lay judgment, as
a parent may, in the matter of the treatment of injury or disease suffered
by a pupil." Id. at 241 (citation omitted). But Guerrieri, decided seven
years before the adoption of the School Code, focused on the scope of the
common law concept of in loco parentis authority. Here, the Board is
acting as educator, not in loco parentis. Furthermore, parental approval
here was solicited; parents may decline their children's participation.
Parental authority has not been supplanted.
27
more extensive services. Plaintiffs assert that the
legislature's intent to devise programs for proper hygiene
appears only in express statutory provisions.

The omission of condom distribution in the relevant
School Code provision on health services, 24 Pa. Stat. S 14-
1402, does not reveal a legislative intent to restrict
allowable school based health services. The health services
listed there include examinations like vision tests, hearing
tests, height and weight measurements, and tests for
tuberculosis. See also 28 Pa. Code S 23.1 (requiring school
districts to provide the following health services:"(1)
Medical examinations. (2) Dental examinations. (3) Vision
screening tests. (4) Hearing screening tests. (5) Threshold
screening tests. (6) Height and weight measurements. (7)
Maintenance of medical and dental records. (8)
Tuberculosis tests. (9) Special examinations"). But the
School Code prescribes "such other tests as the Advisory
Health Board may deem advisable to protect the health of
the child," 24 Pa. Stat. S 14-1402, suggesting legislative
intent to expand school based health services. As
prophylactic devices designed to prevent the transmission
of disease, condoms constitute a health service designed to
protect students, and the concomitant counseling aids that
objective.

Indeed, the regulations encourage a curriculum
commensurate with the Board's policy. 22 Pa. Code
S 5.202(f)(8)(iii) directs school districts to develop a
curriculum designed to prepare students to demonstrate
their knowledge of the benefits associated with "good
personal health habits including health promotion and
disease prevention." School districts are also instructed to
educate high school students on "wellness andfitness,
incorporating physical education, aerobic fitness, regular
physical activity and health . . ." 22 Pa. Code S 5.213(c)(9).
More importantly, the regulations demand "[i]nstruction
regarding prevention of human immunodeficiency virus
(HIV) infection/acquired immunodeficiency syndrome
(AIDS)." 22 Pa. Code S 5.220(a). The General Assembly
entrusts school districts to effectuate this directive. See 22
Pa. Code S 5.220(b) ("Educational materials and instruction
[regarding AIDS] shall be determined by the local school
district . . .").

28
The School Code also directs that physiology and hygiene
be taught to students. See 24 Pa. Stat. S 15-1513.
Physiology is "a branch of biology that deals with the
functions and activities of life or of living matter (as organs,
tissues, or cells)." Webster's Ninth New Collegiate
Dictionary 888 (1990). Hygiene is defined as "a science of
the establishment and maintenance of health." Id. at 591.
By distributing condoms and counseling on abstinence and
disease prevention, the Board's policy furthers these goals.

3.

Accordingly, we find the Board did not abuse its
discretion in implementing the policy. "Judicial interference
with discretionary exercise of a school board power is
permissible where the action of the board was based on a
misconception of law, ignorance through lack of inquiry
into the facts necessary to form an intelligent judgment, or
the result of arbitrary will or caprice." Roberts v. Board of
Dir. of Sch. Dist. of Scranton, 341 A.2d 475, 480 n.4 (Pa.
1975) (citations omitted). "An abuse of discretion is not
merely an error of judgment, but if in reaching a
conclusion, the law is overridden or misapplied, or the
judgment exercised is manifestly unreasonable, or the
result of partiality, prejudice, bias or ill will, as shown by
the evidence of record, discretion is abused." Man O' War
Racing Ass'n, Inc. v. State Horse Racing Comm'n, 250 A.2d
172, 181 n.10 (Pa. 1969).

The General Assembly placed the responsibility for
controlling and managing public education with the local
school districts. Our examination of the applicable statutes
and regulations reveals no misconception by the Board of
the breadth of its authority. Rather, the Board here acted
within its statutory duties by implementing the policy, and
Plaintiffs have presented no evidence of a lack of inquiry,
caprice, or arbitrariness. See Downing v. School Dist. of City
of Erie, 61 A.2d 133, 135 (Pa. 1948) ("The burden of
showing to the contrary, when the action of a school board
is challenged with respect to matters committed to its
discretion, is a heavy one") (citations omitted).

29
B.

Plaintiffs argue the Board's policy violates their
fundamental right to remain free from unnecessary
governmental interference with bringing up their children.
According to plaintiffs, because the Board's policy not only
educates students about safe sex, but also provides the
condoms needed to accomplish the activity, the state
supplants parental authority. Plaintiffs take issue with the
opt out provision because it apparently "requires parents to
take action to reclaim their authority and prevent the state
from distributing condoms to their children." (Appellants
Br. 35). Plaintiffs maintain "[r]equiring consent before
distributing condoms leaves parental authority intact
unless the parent takes action to give his authority to state
officials." (Id.).

"The Supreme Court has long recognized the right of
parents to the care, custody and nurture of their children
as a liberty interest protected by the Fourteenth
Amendment." Doe. v. Irwin, 615 F.2d 1162, 1167 (6th Cir.)
(citing cases), cert. denied, 449 U.S. 829 (1980). Equally
honored is the principal that parental consent must be
secured before medical treatment is obtained:

Generally, it is for the parent in the first instance to
decide what is actually necessary for the protection
and preservation of the life of his or her child.

* * *

Parental consent is further recognized by the
exceptions which have been carved out by the
legislature, most notably the Minor's Consent to
Medical, Dental and Health Services, Act . . . which
enumerates where express parental consent is not
necessary for the administration of medical treatment
. . . (a minor under the age of seventeen cannot donate
blood without the prior consent of a parent . . .
parental consent is not necessary for the treatment of
substance abuse . . . no liability attaches for treatment
of a minor venereal disease).

Parents United for Better Schs., Inc. v. School Dist. of
Philadelphia, 646 A.2d 689, 692 (Pa. Commw. Ct. 1994)
(citations omitted).

30
We recognize the strong parental interest in deciding
what is proper for the preservation of their childrens'
health. But we do not believe the Board's policy intrudes on
this right. Participation in the program is voluntary. The
program specifically reserves to parents the option of
refusing their child's participation. (See App. 39-40
("Parents or guardians of students in schools taking part in
the phase-in pilot program shall have the absolute right to
veto their child's or children's participation in the
program")). Once parents return the opt out form, their
child will not be able to receive either counseling or
condoms.

The Board's policy contains adequate notice provisions
designed to effectively inform parents. "Letters are sent by
first class mail to the parents of all ninth graders and to all
new students entering high schools which house health
clinics or resource rooms." (App. 41). Furthermore, "[p]rior
to the initial opening of new resource centers a notice was
published in newspapers of communities in which the
participating high schools are located. Notice was also
broadcast on the School District's cable channel." (Id.).

Although the notice provision requires parents to
affirmatively object to their child's participation, it
specifically advises (1) that any student who asks for a
condom at school may receive one and (2) that students will
receive counseling on the importance of abstinence. (See
App. 76). Students are not required to seek out or obtain
condoms or counseling and may furthermore refuse
condoms after counseling.

We find the policy coerces neither parents nor students.
The applicable statutes and regulations evince legislative
concern regarding the parental liberty interest in raising
children. The General Assembly has imposed the following
obligation on school districts:

School districts shall adopt policies to assure that
parents have the following:

(1) Access to information about the curriculum,
including expected student learning outcomes,
instructional materials and assessment techniques.

31
 (2) A process for the review of instructional
materials.

(3) The right to have their children excused from
specific instruction which conflicts with their
religious beliefs, upon receipt by the school district of
a written request from the parents.

(4) The right to have their children excused from
State assessments under S 5.231 (relating to State
assessment system) upon receipt by the school
district of a written request from the parents.

22 Pa. Code S 5.4. The Board's opt out provision also
requires parents to affirmatively exercise their right to
object. See also 28 Pa. Code S 23.84(b) ("Children need not
be immunized if the parent, guardian or emancipated child
objects in writing to the immunization on religious grounds
or on the basis of a strong moral or ethical conviction
similar to a religious belief ").

The General Assembly envisaged that some parents may
object to AIDS instruction, and, to ensure parental control,
specifically crafted an exception to the regulation directing
AIDS education:

A school district shall excuse a pupil from HIV/AIDS
instruction when the instruction conflicts with the
religious beliefs or moral principles of the pupil or
parent or guardian of the pupil and when excusal is
requested in writing. Prior to the commencement of
instruction, a school district shall publicize that
detailed curriculum outlines and curricular materials
used in conjunction with the instruction are available
to parents and guardians during normal school hours
or at teacher-parent conferences. Curricular materials,
if practical, shall be made available by the school
district for home instruction use by a parent or
guardian of a student excused from the district's
HIV/AIDS instruction.

22 Pa. Code S 5.221(c). In accordance with this provision's
direction, the Board allows parents to refuse participation.

32
C.

A brief examination of the relevant case law supports our
conclusion. In Doe, the United States Court of Appeals for
the Sixth Circuit assessed a condom distribution program
offered by a county health department in conjunction with
the Michigan Department of Public Health. Minors were
given contraceptives without regard to either age or
parental consent, and services were not advertised. The
county conducted weekly "rap sessions" to discuss birth
control methods and responsibilities associated with sexual
activity. No minor received condoms without attending a
rap session, and parents were encouraged to attend if they
inquired, but no effort was made to seek their attendance.
In upholding the constitutionality of the program, the Sixth
Circuit stated:

The State of Michigan, acting through the Center and
defendants, has imposed no compulsory requirements
or prohibitions which affect rights of the plaintiffs. It
has merely established a voluntary birth control clinic.
There is no requirement that the children of the
plaintiffs avail themselves of the services offered by the
Center and no prohibition against the plaintiff's
participating in decisions of their minor children on
issues of sexual activity and birth control. The
plaintiff 's remain free to exercise their traditional care,
custody and control over their emancipated children
. . . . we find no deprivation of the liberty interest of
parents in the practice of not notifying them of their
children's voluntary decisions to participate in the
activities of the Center.

Doe, 615 F.2d at 1168. The program here is also voluntary
and provides for parental notification.

Curtis v. School Comm'n of Falmouth, 652 N.E.2d 580
(Mass. 1995), cert. denied, 516 U.S. 1067 (1996) involved a
condom distribution program in junior and senior high
schools. The program did not contain an opt out provision,
and plaintiffs requested provisions (1) allowing parents to
opt out of the program and (2) notifying parents of their
childrens' request for a condom. Counseling was provided
to students who requested it, and abstinence was stressed.

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Before receiving condoms, students were counseled and
supplied with pamphlets on AIDS and other sexually
transmitted diseases. Students could either request free
condoms from the nurse or purchase them in bathrooms.

Holding that the "[p]ublic education of children is
unquestionably entrusted to the control, management, and
discretion of State and local school committees," the court
concluded the program did not violate parents'
constitutional rights:

[w]e discern no coercive burden on the plaintiffs'
parental liberties in this case. No classroom
participation is required of students. Condoms are
available to students who request them and, in high
school, may be obtained from vending machines. The
students are not required to seek out and accept the
condoms, read the literature accompanying them, or
participate in counseling regarding their use. In other
words, the students are free to decline to participate in
the program. No penalty or disciplinary action ensues
if a student does not participate in the program. For
their part, the plaintiff parents are free to instruct their
children not to participate . . . . Although exposure to
condom vending machines and to the program itself
may offend the moral and religious sensibilities of
plaintiffs, mere exposure to programs offered at school
does not amount to unconstitutional interference with
parental liberties without the existence of some
compulsory aspect of the program.

* * *

Because we conclude the program lacks any degree
of coercion or compulsion in violation of the plaintiffs'
parental liberties, or their familial privacy, we conclude
also that neither an opt out provision nor parental
notification is required by the Federal Constitution.

Id. at 586 (also finding the program is not coercive simply
because it occurs in public school where attendance is
mandatory). Significantly, the program here contains the
opt out provision the Curtis plaintiffs requested.

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Alfonso v. Fernandez, 606 N.Y.S.2d 259 (N.Y. App. 1993)
which reached the opposite conclusion, involved a
mandatory program.

[The program] calls for the high schools to make
condoms available to students who request them.
Public high schools are to establish resource rooms
where trained professionals are to dispense condoms to
students who request them. A student to whom
condoms are dispensed must be given personal health
guidance counseling involving the proper use of
condoms, and the consequences of their use or misuse.
Students are not required to participate in this
component of the program and no sanction is imposed
on a student who does not do so. Most importantly, this
component of the respondent's program does not include
a provision for parental consent or op-out.

Id. at 261 (emphasis supplied).8 The key distinction of
course is that the New York program was mandatory.
Parents were not given the opportunity to opt out.

IV.

We hold the Philadelphia School Board, by implementing
the policy, acted within its statutory and regulatory
authority and effectuated its educational mandate. In
_________________________________________________________________

8. The court's decision to strike down the program rested on these
conclusions:

No judicial or legislative authority directs or permits teachers or
other public school educators to dispense condoms to minor,
unemancipated students without the knowledge or consent of their
parents. Nor do we believe that they have any inherent authority to
do so.

* * *

We do not find that the policy is essential. No matter how laudable
its purpose, by excluding parental involvement, the condom
availability component of the program impermissibly trespasses on
the petitioner's parental rights by substituting the respondents in
loco parentis, without a compelling necessity therefor.

Id. at 263-65 (citations omitted).

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enacting a voluntary program, the Board did not offend
parental rights regarding the custody and care of their
children. In light of parents' ability to opt out of the
program, we need neither assess the privacy rights of
minors to contraceptives, nor balance this privacy right, if
any, against the interests of parents and the
Commonwealth in the health and welfare of children.
Therefore, we need not reach this constitutional issue
addressed by the district court.

For the foregoing reasons, we will affirm the judgment of
the district court.

A True Copy:
Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

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