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. e du/thir dc ir c uit_1998/151Filed 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; HAROL D 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; CONSTA NCE 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 PENNSYLVANIAParents 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 Circu it Judge for the Eighth Judicial Circuit, sitting by designation.

2Attorney 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

3OPINION 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 Bo ard acted within its statutory and regulatory authority , and because the policy neither coerces parental or stud ent 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 judgm ent action against the School District of Philadelphia Board of Education; President of the School Board; and the Superintendent of Schools. Several parties interven ed: individually listed students in Philadelphia public schools and their parents, ActionAIDS, Inc., the Family Pla nning Council of Southeastern Pennsylvania, Inc., and Pla nned Parenthood of Southeastern Pennsylvania. Plaintiffs appeal the district court's order granting defendants' mot ion for summary judgment. See Parents United for Better Sch s., Inc. v. School Dist. of Phila. Bd. of Educ., 978 F. Supp. 197 (E.D. Pa. 1997).

I.

A.

The Pennsylvania Constitution entrusts the legislat ure with the responsibility of providing for public edu cation. See Pa. Const. Art. 3 S 14 ("The General Assembly s hall provide for the maintenance and support of a thorou gh and efficient system of public education"). "In meeting its responsibility, the General Assembly has establishe d a comprehensive legislative scheme governing the oper ation and administration of public education." Pennsylvan ia

4Fed'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 P olicy Number 123, entitled "Adolescent Sexuality." Accord ing to the Board "adolescent pregnancy, sexually transmitt ed diseases, and HIV infection are epidemic among scho ol age youth . . . . [T]he Board recognizes that schools, in concert with all segments of the Philadelphia community, ha ve an obligation to promote a healthy lifestyle for all a dolescents." (App. 36). The Board enunciated a broad purpose:

1.1 The Board of Education reaffirms its po licy to provide comprehensive human growth and development instruction to all public school students. In accordance with School District policy an d state law, such instruction should be part of the publi c school program and should be shared by the public s chools, home, and community. The primary purposes of such instruction are to promote more wholesome fa mily and interpersonal relationships; to help young p eople understand their sexuality at all levels of development; and to develop healthy habits and moral valu es regarding human sexuality.

1.2 The Board recognizes that the expressio n of

human sexual behavior can be the source of m any of life's most meaningful experiences as well a s its most

___________________________________________________ ______________

1. "The organization of [Pennsylvania's] public sch ool 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 Distri cts act as agencies of the state legislature in administering the educatio nal program within the district." Chambersburg Area Sch. Dist. v. Pennsylv ania Labor Relations Bd., 430 A.2d 740, 743 (Pa. Commw. Ct. 1981) (citat ion 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 D istrict of Philadelphia is an agent or creature of the Legislature"); Kaufm an v. Central Susquehanna Intermediate Unit No. 16, 601 A.2d 412, 414 (Pa. Commw. Ct. 1991) ("The legislature has established that ea ch school district and intermediate unit shall have, inter alia, a board o f directors and has set forth the powers and duties of each") (citation omi tted).

5painful problems; and the Board of Education firmly

asserts that abstinence from sexual activity during adolescence promotes good health and a healt hy lifestyle.

1.3 The Board of Education firmly believes that successful pursuit of the mission of promoti ng a healthy lifestyle for all adolescents depend s upon the cooperation of a broad spectrum of the Phila delphia community, including schools, families, reli gious institutions, health care providers, social service agencies, businesses, government, and media.

(App. 37). The Board described the Policy's objecti ves 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 disease s and HIV

infection.

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

2.1.d. To assure that all programs and acti vit ies take into consideration the broad spectrum of eth nic and cultural diversities, as well as mental and physical

disabilities.

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

3.1 The Superintendent shall direct the development and acquisition of curricula whi ch comprehensively promote healthy behavior and which shall be taught in all grade levels, pre-kin dergarten through grade twelve. Such curricula shall f ocus on behavioral outcomes and effective methods to convey the message that abstinence is the most effe ctive way of preventing pregnancy, sexually transmitte d diseases and HIV infection; a voluntary parental educ ation component, designed to enhance the frequency and effectiveness of parents' communication with their

6children; and a mechanism for monitoring the efficacy

of the curricula.

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

The cornerstone of the policy, and its most controv ersial provision, is its directive to facilitate student a ccess to

condoms:

3.4 The Board believes that the effectivene ss of the curricula to promote healthy lifestyles and to prevent pregnancy, sexually transmitted diseases and HIV infection is enhanced for sexually active st udents by facilitating their access to condoms outside of school. Toward that end, the Board supports the Scho ol 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 d esign of a pilot, educationally-based program, permitti ng in- school availability of condoms and the couns eling of students in the use of same, utilizing estab lished non-

School District health care and social servi ce providers, in partnership with participating schools. S uch programs shall commence not later than the F all 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 progr am shall be specifically for the education of parents , designed to enhance the frequency and effectiveness of p arents'

communication with their children about sexu ality.

(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

7professionally-trained health educators and clinicians

provide health and sexuality information as well as condoms through existing school health clini cs . . .. The second model, Health Resource Centers, establishes separate centers inside high sch ools, staffed by experienced counselors or social workers, where teens can go to receive condoms with c ounseling and health and sexuality information. No hea lth care services are provided in these Centers. Rath er, students are referred to services in the com munity.

(App. 298).

The Board does not fund the program. (App. 41). The health resource centers receive funding through pri vate and

non-school district sources and under the Public He alth Service Act, 42 U.S.C.A. SS 201-300aaa-13 (West 199 1 & Supp. 1998). (App. 461, 475 ("The Council continues to fund comprehensive family planning services through subcontracting agencies . . . . [c]ouncil subcontra cts 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 n onprofit private entities to assist in the establishment and operation of voluntary family planning projects which shall o ffer a broad range of acceptable and effective family plan ning methods and services").

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

4.1 Parents or guardians of students in sch ools taking part in the phase-in pilot program sh all 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 retur ns an opt out form, the counselor will not supply that studen t with condoms. If an opt out form is not on file, the cou nselor

discusses the virtues of abstinence with the studen t. In the event the student still requests condoms, the couns elor supplies them after providing instructions for thei r proper

use.

8The condom distribution program began on December

21, 1991 when letters were mass-mailed to parents b y 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 impor tance of abstinence, from a doctor, a nurse or a soci al 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 s ervice should be available to your child you do not have to send back your form.

(App. 76). As of September 12, 1997, condom availab ility programs were operating in nine of Philadelphia's f orty public schools.

B.

1.

On January 13, 1992, Plaintiffs filed a complaint i n the Philadelphia County Court of Common Pleas seeking a permanent injunction and declaratory relief. Count I alleged the policy violates the Pennsylvania Code because i t 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 o ut provision illegally usurps common law and statutori ly guaranteed parental rights of permission before the ir

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)).

9Count III and Count IV maintained the condom distri bution

program violates 18 Pa. Cons. Stat. S 4304 ("Endang ering welfare of children") (West Supp. 1998) because it, inter alia, encourages abstinent children to engage in se xual activity and increases the sexual activity of child ren who are already sexually active. Count V claimed the co ndom distribution policy offends the provision in the Ph iladelphia City Municipal Code allowing for " `reasonable requ irements to insure or require the control of the spread of

communicable diseases' in schools or institutions .

. . because it promotes condom use alone." (App. 17 (Co mpl. PP 32-33)). Finally, Count VI asserted the Policy i tself has been violated because "no such curricula emphasizin g the efficiency of abstinence and no evaluation criteria or monitoring was in place when the condom distributio n began" and "Defendants have not notified all affect ed parents of their right to veto nor do they have any effective mechanism to insure all affected parents are notifi ed 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, fi nding plaintiffs lacked standing to bring the lawsuit bec ause the policy allows parents to veto their children's part icipation. On appeal, the Pennsylvania Commonwealth Court reversed, finding Plaintiffs "(1) identified a subs tantial interest, i.e., prior express parental consent to m edical treatment; (2) which interest is directly affected by the action of the Board; and (3) the consequences of th e Board's action affecting that interest are immediat e." Parents United for Betters Schs., Inc. v. School Di st. 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. Th at 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). Plainti ffs abandoned both this claim and Count IV. See Parents, 978 F. Supp. at 212 n.7.

10United States District Court for the Eastern Distri ct of

Pennsylvania on May 17, 1996, and the district cour t 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 a nd in opposition to the summary judgment motion. Defendants supplied affida vits averring (1) the School District of Philadelphia does not dispen se funds for the condom distribution program; (2) giving or receivin g a condom is not a medical service requiring medical training or super vision; and (3) confidentiality is particularly important to a mino r's use of these services; ease of access tends to ensure consistent use. (App. 41, 64, 253).

Students submitted affidavits stating (1) having co ndoms in the resource centers does not increase sexual activity but rather increases the incidence of condom use; (2) students use the r esource centers to get condoms; and (3) most of them would not ask their p arents to sign the consent form. Defendants also supplied affidavits f rom physicians declaring (1) most sexually active adolescents eith er fail to use precautions against pregnancy and disease or use th ese preventive measures inconsistently or improperly; (2) adolesce nts face obstacles in obtaining condoms or other devices that prevent pre gnancy; (3) there is no evidence that providing minors access to contrac eptives without parental consent, in schools or elsewhere, increase s their sexual activity; and (4) a well designed, school based program to ma ke condoms available together with counseling on alternative m eans of protection from the hazards of unsafe sex, such as abstinence, can be effective in reducing pregnancy.

Defendants also provided statistical evidence. Betw een September 1993 and June 1994, 4,650 students made 16,224 visi ts to the school based clinics and health resource centers. These 4, 650 students represent 24% of the total number of students enrol led at the high schools offering condom availability programs. Seve nty-one percent (71%) of the students who visited the school based clinics and health

resource centers received condoms at the time of th eir initial visit. Of

the

students for whom condom distribution information w as available, only of 1% (23) were denied condoms because of parental requests to bar condom availability to their children. Of the 16,06 0 visits (74%) that

11district court rejected plaintiffs' argument that t he Board's

broad powers do not include the power to implement the condom program, finding the Board was fulfilling it s educational mandate.

The district court also rejected Plaintiffs' argume nt that

___________________________________________________ ______________

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

Generally, five condoms are distributed at each vis it. Seventy percent (70%) of students using the centers and clinics rec eived 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 7 4% in 1993-94, and

the number of initial visits at which condoms were received increased from 2,071 to 3,114 respectively. Also, the percent age receiving condoms during initial visits increased slightly from 68% t o 71%. (App. 300-01). See also Parents United for Better Schs., Inc. v. S chool Dist. of Phila.

Bd. of Educ., 978 F. Supp. 197, 200 (E.D. Pa. 1997) ("I n the 1995-96 school year, 5,400 students visited the health resource ce nters at which condoms are available. Seventy-five percent of thos e students received

condoms . . . . counselors made 686 referrals to he alth care providers for sexually transmitted diseases, HIV screening, or tr eatment, and made 984 referrals . . . for pregnancy or birth control needs").

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

Plaintiffs also supplied the affidavit of the presi dent of Parents United for Better Schools, stating staff members made phon e 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, w hile 79% said they had never received a letter from the School District. ( App. 116). Plaintiffs' expert's affidavit concluded the condom distributio n program provides

health services to "the extent it entails instituti onalized 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).

12the 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 t est 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 tuber culosis 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 pr ovided with school

nurse services.

* * *

(b) For each child of school age, a compreh ensive health record shall be maintained by the school district o r 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 di agnostic purposes, furnished by the Secretary of Health and com pleted by the child or by the child's parent or guardian, at such t imes 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 p hysical appearance, changes in attendance habits and changes in scholastic achievement, which may indicate impairment o f a child's health.

* * *

(e) The school physicians of each district or joint board shall

make a medical examination and a comprehensive ap praisal 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 individualschool districts the school health services program specified in

this section. The program as modified shall confo rm to approved medical or dental practices and shall permit valid s tatistical appraisals

of the various components of the program.

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

13distribution, shows a clear legislative intent to r estrict,

rather than expand, allowable school based health s ervices. Plaintiffs unsuccessfully argued to the district co urt that the absence of explicit statutory authorization to distribute condoms in 24 Pa. Stat. S 14-1402 suggests the cond om program lies beyond the scope of the school distric t'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 healt h service, as indicated by the enumerated services, whi ch include hearing and vision tests, tests for tubercul osis, and height and weight measurements. These servic es relate to the evaluation and preservation of studen ts' health. Condoms, too, involve health preservation. W hile it requires very little training to use a condo m in a medically correct way, neither does it requi re great medical expertise to measure a child's weigh t and height. Because a condom is a prophylactic m easure to preserve health by reducing the risk of sexu ally transmitted disease, it is a health service within the meaning of the School Code.

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

Parents, 978 F. Supp. at 203.

The district court also rejected plaintiffs' attemp ts 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 pro vide health services that are specifically mandated by l aw, i.e., explicitly mentioned in 24 Pa. Stat. S 14-1402:

The statutes and regulations regarding manda tory health services already prescribe the means by which

the schools must deliver those services. See e.g., 24 Pa.

14Cons. Stat. Ann. S 14-1401 (defining school health

personnel); S 14-1410 (governing `employment of school health personnel'); S 14-1411 (governing pub lic

contracts for health services with local hea lth departments); 28 Pa. Code SS 23.32(b), 23.33 (b), 23.34, 23.35(b) (governing employment of school hea lth 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 admin istration of public education. This provision cannot a pply to the

mandated health services because these must be delivered through direct hiring and contract s as specified by law. To have meaning, S 12.12-3 09 must apply instead to other health-related servic es, such as the condom program, which are not mandated b ut

which school districts have the discretion t o offer. Further, as discussed below, the school dist rict could

distribute condoms in schools not as a healt h service to students, but as an effective means of fu lfilling its educational mandate by targeting those stude nts most

at risk.

Parents, 978 F. Supp. at 204.

2.

According to the district court, a statutory provis ion authorizing the Board to educate students about hea lth and hygiene supports the conclusion the Board did n ot exceed its power by implementing the condom program . See 24 Pa. Stat. S 15-1513 ("Physiology and hygiene, wh ich shall in each division of the subject so pursued in clude special reference to the effect of alcoholic drinks

, stimulants, and narcotics upon the human system, an d which shall also include special reference to tuber culosis 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) ("E ach student shall acquire and use the knowledge and ski lls necessary to promote individual and family health a nd wellness"); 22 Pa. Stat. S 5.202(f)(8) (iii) ("Scho ol Districts

15shall prepare all students to attain the following student

learning outcomes . . . . All students demonstrate their knowledge of the benefits associated with physicalf itness and good personal health habits including health pr omotion and disease prevention"); 22 Pa. Code. S 5.213 ("Pl anned courses that provide instruction in the following a reas shall be taught to every student in the high school progr am . . . . Wellness and fitness, incorporating physical educat ion, aerobic fitness, regular physical activity and heal th and instruction every year about prevention of alcohol, chemical
and tobacco abuse").

As the district court noted, these regulations spec ify education about the prevention of sexually transmit ted disease: "[i]nstruction regarding prevention of hum an immunodeficiency virus (HIV) infestation/acquired immunodeficiency syndrome (AIDS) shall be given for primary, intermediate, middle school and high schoo l 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. T he program of instruction shall include informa tion about the nature of the disease, the lack of a cur e, the ways

the disease is transmitted and how infection can be prevented . . . . Programs discussing transm ission through sexual activity shall stress that ab stinence from sexual activity is the only completely reliable means of preventing sexual transmission.

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

education:

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

16prevent the spread of HIV and other sexually

transmitted diseases. The School District kn ows that these students may obtain condoms from a var iety of sources, including pharmacies, clinics, and even in

certain rest rooms. In-school access to cond oms 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 t hat

furthers the School District's educational m ission:

students who obtain condoms in the school mu st receive a lecture on abstinence, and learn h ow to use condoms properly. The condom distribution pr ogram gives the School District opportunity to urg e students not to engage in sexual activity. The progra m also thus targets those students most at risk of contr acting a social disease, i.e., those who intend to en gage in

sexual relations. The School District thus e nsures that

the students know how to use condoms correct ly. The student who buys condoms from a drug store d oes not necessarily receive this instruction; the on e who gets them through the in-school program does. Thu s, the program promotes the education of school stu dents in physiology and hygiene, as authorized and re quired 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 S chs., Inc. v. School Dist. of Phila. Bd. of Educ., 646 A.2d 68 9, 691 (Pa. Commw. Ct. 1994) ("The principle that parental cons ent must be secured before medical treatment [is] provi ded is time honored . . . . Generally, it is for the paren t in the first

___________________________________________________ ______________

5. Plaintiffs unsuccessfully asserted the Board abu sed its discretion. The

district court determined the Board acted within it s statutory authority, displaying neither ignorance nor caprice. See id. a t 206 ("To the contrary, the Board of Education held multiple hear ings and conducted a thorough examination of the reasons for, and impl ications of, distributing condoms in public schools").

17instance to decide what is actually necessary for t he

protection and preservation of the life of his or h er child") (citations omitted). The district court found condo m 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. T hus, they no more need parents' consent to dispense co ndoms 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 pro phylactic . . . non-invasive, are not used to diagnose or cu re disease, and do not require medical training or super vision for

their use. Because condom distribution is no t a medical treatment, it would not fall within the

common-law rule.

* * *

Plaintiffs, however, would expand the commo n law rule beyond curative procedures involving ph ysical contact by arguing that health services, suc h as condom distribution, also require parental c onsent. I agree that condom distribution is health-rel ated. Whether condoms are used can have a signific ant impact upon a person's health. When used pro perly, condoms serve as a barrier for germs, bacter ia and viruses, thus keeping contagious little dise ase generators from passing from one person's bo dy into another's, thereby infecting, perhaps fatall y, the other person. Not all condoms are totally impermea ble, 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 he alth, their distribution is a health service, with in the ordinary meaning of that term. Impact upon h ealth, however, does not transform a health service into a medical treatment. Health services, by defin ition, encompass far more than medical treatment. B ecause the cases requiring parental consent speak o nly to medical treatment, I will not engraft a comm on-law

18consent requirement onto the much broader ca tegory

of health services.

Parents, 978 F. Supp. at 207.

The district court incorporated the same reasoning with the respect to plaintiffs' assertion that the distr ibution of condoms without prior parental consent violates the Minor's Consent Act, 35 Pa. Stat. SS 10101-10105 (W est 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 c onsent to medical, dental and health services for himself or herself." 35 Pa. Stat. S 10101. Plaintiffs argued t hat

because condom distribution is not an enumerated exception within the Act, parental consent is requi red. The district court disagreed:

a provision of the Act permits minors to con sent to `medical and health services to determine th e presence of or to treat pregnancy, and venereal disea se and the consent of no other person shall be necessar y.' 35 Pa. Stat. Ann. S 10103. On the one hand, the Leg islature easily could have inserted `to prevent' befo re`to determine.' On the other hand, it seems absu rd for the legislature to allow minors to consent to tr eatment once they are pregnant or infected with a se xually transmitted disease, but forbid them to obta in contraceptives to prevent those conditions w ithout parental consent.

* * *

Further, the very terms of the statute expr ess an intent to liberalize the circumstances under which

minors can receive medical care. This libera lization 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 an y circumstances not enumerated, it would restr ict the very rights it means to expand.

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

194.

The district court accepted defendants' argument th at federal statutory rights under the Public Health Se rvice Act, specifically 42 U.S.C.A. S 300(a), bar the impositi on of a parental consent requirement. According to the dist rict court, services under this statutory scheme include the provision of contraceptives, and "all circuit court s which have considered the issue have concluded that paren tal 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 yi eld to federal confidentiality requirements whenever a min or 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 crit ical because pregnancy and sexually transmitted diseases impact as heavily, if not more heavily, upon minors.

During the past two decades, the Supreme Co urt consistently has rejected blanket parental c onsent 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 a ccess to abortions: `the decision whether to use cont raceptives 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.' P lanned Parenthood Ass'n of Utah v. Matheson, 582 F. Supp. 1001, 1009 (D. Utah 1983). But states have e ven less interest in regulating minors' access to con traception than in regulating minors' access to abortio n. Thus, the Constitution forecloses an interpretatio n of Pennsylvania law that would compel parental consent whenever a minor seeks contraceptives.

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

205.

In assessing the constitutionality of the condom distribution program, the district court focused on plaintiffs' claim that parents are coerced into par ticipating in the program, in contravention to their Fourteent h Amendment liberty interest and right to be free fro m unnecessary governmental intrusion in the rearing o f their children. Plaintiffs characterized the opt out prov ision as coercive, arguing it forces parents to affirmativel y respond to insure their children do not participate in the condom distribution program. The district court found no c oercion:

[s]o also, just as the condom program at is sue 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 he alth resource centers is entirely voluntary. Furt her, parents

are free to instruct their children not to u se the program, and may even actively prevent their children's participation by sending an opt out letter t o the school. In fact, the opt out provision encourages pa rental involvement by notifying them of the school program and permitting them to forbid their children to use it. Because it allows parents to restrict childr en's in- school access to condoms, the provision give s parents more authority to control their children. Th e opt out provision supports, not burdens, parental ri ghts.

Parents thus remain free to exercise their t raditional care, custody and control over their emancip ated

children.

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

6.

Finally, the district court concluded plaintiffs co uld 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 o f age commits an offense if he knowingly endangers the we lfare of the child by violating a duty of care, protectio n or support"):

21[Plaintiffs] cannot show either that the con dom

program endangers children or that the defen dants had the requisite intent. If in-school distribut ion of condoms increases sexual activity, Plaintiff s might show endangerment. But Plaintiffs have provi ded no evidence linking condom distribution to incr eased sexual activity. Further, while improper use of condoms can be dangerous, failing to use con doms puts sexually active children at even greate r risk. If anything, the danger to the children would b e increased were this condom program quashed. Thus, Plaintiffs have not shown that the condom pr ogram endangers children. Without a showing of endangerment, there can be no liability.

Even if Plaintiffs could show that the cond om program endangers children, they cannot prov e that the defendants had the requisite intent. Rat her, the

record evidences the defendants' belief that the program promotes students' health and welfar e, not that it endangers them. The mere possibility

, unsupported by the record, that Defendants m ight be mistaken in their belief, as Plaintiffs' arg ue, 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 co urt's granting of summary judgment, we exercise plenary review." DeBlasio v. Zoning Bd. of Adjustment for t he Township of West Amwell, 53 F.3d 592, 596 (3d Cir. 1995) (citation omitted), cert. denied, 516 U.S. 937 (199 5).

III.

A.

1.

Plaintiffs maintain the Board only enjoys that auth ority explicitly granted by the legislature. In the absen ce of

22express statutory authorization to provide a new he alth

service, plaintiffs contend the Board exceeded its powers by implementing a program operated exclusively by non- school district personnel who provide a service never befo re offered by any school district in Pennsylvania. Plaintiffs also

characterize the health services offered as too rem ote from education, the primary function of the Board, citin g Barth v. School Dist. of Phila., 143 A.2d 909 (Pa. 1958) (invalidating agreement between the Board and the C ity to establish and finance a youth conservation commissi on to serve as an instrumentality for curbing juvenile delinquency because "the main purpose of this agree ment is, at best, very indirectly and very remotely conn ected with Education. Virtually all of the work contemplated b y this Agreement would be performed (a) outside of the sch ools, and (b) by an independent agency").

We believe plaintiffs have too restrictive a view o f Board authority. The General Assembly delegated broad pow ers to

the Board to execute the School Code and effectuate its underlying policies. "School authorities must be gi ven broad discretionary powers to ensure a better educa tion for the children of this Commonwealth and any restricti ons on the exercise of these powers must be strictly const rued." Smith v. Darby Sch. Dist., 130 A.2d 661, 668-69 (Pa . 1957). See also Pennsylvania Fed'n of Teachers v. School D ist. of Phila., 484 A.2d 751, 753 (Pa. 1984) ("the General Assembly has established a comprehensive legislative scheme governing the operation and administration of publi c education. Those local agencies created to administ er the system have been delegated broad powers"); Chambers burg Area Sch. Dist. v. Pennsylvania Labor Relations Bd. , 430 A.2d 740, 743 (Pa. Commw. Ct. 1981) ("School distri cts are given broad powers to determine policy relative to education by the Public School Code of 1949") (citations omit ted).

The statutory scheme devised by the General Assembl y, specifically the School Code, contains several prov isions manifesting legislative intent to invest the Board with such power. 24 Pa. Stat. Ann. S 2-211 provides,"[t]he se veral 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

23also 24 Pa. Stat. Ann. S 21-2103 (listing Board dut ies,

including, inter alia, "(1) [t]o define the general policies of the school system, (2) [t]o legislate upon all matt ers pertaining thereto . . . (7) [i]n general to legisl ate upon all matters concerning the conduct of the schools subje ct to the provisions of this act").

More specifically, "the board of school directors i n any school district may establish, equip, furnish, and maintain . . . additional schools or departments for the edu cation and recreation of persons residing in said district, an d 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 b oard to institute, besides specifically named classes of sc hools of educational departments, such other schools or educ ational departments as they, in their wisdom, may see prope r 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 consolidat ed schools formed by uniting two or more public schools"); S 5-507 (prov iding Board, when necessary to "establish, enlarge, equip, furnish, o perate, and maintain any schools or departments herein provided," with p ower and authority to "levy and collect, in the manner herein provided , the necessary taxes required"); S 5-510 (authorizing Board to "adopt an d enforce such reasonable rules and regulations as it may deem nec essary 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 a s it may deem proper, regarding . . . exercises, athletics . . . school publications, debating, forensic, dramatic, musical, and other ac tivities related to the school program"); S 5-513 (authorizing school distr icts to "make contracts of insurance with any insurance company, or nonprofit hospitalization corporation, or nonprofit medical s ervice corporation,

authorized to transact business within the Commonwe alth"); S 5-523 (requiring Board to "adopt and amend, when necessar y, a State Plan for Educational Broadcasting").

24Nothing in this act shall be construed as c onstituting

a prohibition against agreements including, but not limited to, joint tax collection, joint purc hasing of supplies, equipment and contractual services , use of recreational and park equipment and faciliti es, control and prevention of juvenile delinquency, city planning, capital budgeting, capital programming and comprehensive development planning, with any municipal or former county department, agenc y, office, board or commission or any agency of the

Commonwealth or the United States Government

, when, in the opinion of a duly constituted b oard of

education of the home rule school district o r its authorized agents, such agreement will furth er the efficient and effective administration of pu blic

education.

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

The Home Rule Charter, authorized by 53 Pa. Stat. A nn. 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 Educ ation of the School District of Philadelphia which shall be charged with the administration, management and operation o f the home rule school district"); 351 Pa. Code S 12.12-3 00 (1998) ("To enable it to administer, manage, and op erate the School District of Philadelphia, the Board of E ducation 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. 199 1) ("Philadelphia has been . . . granted certain power s by a Home Rule Charter") (citation omitted), cert. denie d, 503 U.S. 985 (1992); Pennsylvania Human Relations Comm' n v. School Dist. of Phila., 681 A.2d 1366, 1379 (Pa. Co mmw. Ct. 1996) ("The City conducts its affairs pursuant to t he Philadelphia Home Rule Charter") (citation omitted)

.

The Home Rule Charter contains a provision that mir rors 53 Pa. Stat. Ann. S 13219(b) but provides additiona l

25authority to enter into agreements relating to "hea lth

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 n onprofit private agency, when, in the opinion of the Board, such agreement will further the efficient and effec tive administration of public education." 351 Pa. CodeS 12.12- 309(a) (1998) (emphasis supplied).

An examination of considerable statutory and regula tory authority granted to the Board by the General Assem bly supports the conclusion that the Board acted within its broad discretionary powers when implementing the co ndom distribution program. The School Code specifically grants necessary powers to enable the Board to effectuate the provisions of that Act, including the power to crea te "[s]uch other schools or educational departments as the dir ectors, in their wisdom, may see proper to establish." 24 P a. Stat. S 5-502. One of these provisions explicitly authori zes the Board to enter into agreements that, in the opinion of the Board, "will further the efficient and effective ad ministration of public education." 53 Pa. Stat. S 13219(b). Alth ough 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 sch ool 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 distribu tion 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 o n existing law:

Any charter provisions thus proposed, which are approved by a majority of the qualified elec tors 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 th ereof. So far as the same are consistent with the grant of powers and the limitations, restrictions and regula tions

26hereinafter prescribed, they shall supersede all acts, or

parts of acts, local, special or general, af fecting the organization, government and powers of such school district to the extent that they are inconsi stent or in

conflict therewith.

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

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

2.

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

___________________________________________________ ______________

7. We consider Plaintiffs' reliance on Barth v. Sch ool Dist. of Phila.,

143 A.2d 909 (Pa. 1958) misplaced. Barth found the juve nile delinquency program remotely connected with education because i t focused on matters "embraced not in Education but in the age-o ld 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 prov iders 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 46 8 (Pa. Super. Ct. 1942), contending the Board's power to direct and c ontrol health services provided to students is restricted. In Guerrieri , parents brought suit

after a teacher attempted to cure a student's infectedfin ger by placing it in boiling water. Although citing teachers' in loco pa rentis 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 teac her's] lay judgment, as a parent may, in the matter of the treatment of inj ury or disease suffered by a pupil." Id. at 241 (citation omitted). But Gue rrieri, decided seven years before the adoption of the School Code, focus ed on the scope of the common law concept of in loco parentis authority. H ere, the Board is acting as educator, not in loco parentis. Furthermo re, parental approval here was solicited; parents may decline their child ren's participation. Parental authority has not been supplanted.27more 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. St at. S 14- 1402, does not reveal a legislative intent to restr ict

allowable school based health services. The health services

listed there include examinations like vision tests , hearing tests, height and weight measurements, and tests fo r tuberculosis. See also 28 Pa. Code S 23.1 (requirin g school districts to provide the following health services: "(1) Medical examinations. (2) Dental examinations. (3) Vision screening tests. (4) Hearing screening tests. (5) T hreshold 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 Adv isory Health Board may deem advisable to protect the heal th of the child," 24 Pa. Stat. S 14-1402, suggesting legi slative intent to expand school based health services. As prophylactic devices designed to prevent the transm ission of disease, condoms constitute a health service des igned to protect students, and the concomitant counseling ai ds 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 deve lop a curriculum designed to prepare students to demonstr ate their knowledge of the benefits associated with "go od personal health habits including health promotion a nd disease prevention." School districts are also inst ructed to educate high school students on "wellness andfitnes s, incorporating physical education, aerobic fitness, regular physical activity and health . . ." 22 Pa. Code S 5 .213(c)(9). More importantly, the regulations demand "[i]nstruc tion regarding prevention of human immunodeficiency viru s (HIV) infection/acquired immunodeficiency syndrome
(AIDS)." 22 Pa. Code S 5.220(a). The General Assemb ly

entrusts school districts to effectuate this direct ive. See 22 Pa. Code S 5.220(b) ("Educational materials and ins truction [regarding AIDS] shall be determined by the local s chool district . . .").

28The School Code also directs that physiology and hy giene

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 matte r (as organs, tissues, or cells)." Webster's Ninth New Collegiate Dictionary 888 (1990). Hygiene is defined as "a sci ence of

the establishment and maintenance of health." Id. a t 591. By distributing condoms and counseling on abstinenc e and disease prevention, the Board's policy furthers the se goals.

3.

Accordingly, we find the Board did not abuse its discretion in implementing the policy. "Judicial in terference 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 inq uiry into the facts necessary to form an intelligent jud gment, 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 t he 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, 25 0 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 Boa rd of the breadth of its authority. Rather, the Board her e acted within its statutory duties by implementing the pol icy, and Plaintiffs have presented no evidence of a lack of inquiry, caprice, or arbitrariness. See Downing v. School Di st. of City of Erie, 61 A.2d 133, 135 (Pa. 1948) ("The burden o f showing to the contrary, when the action of a schoo l board is challenged with respect to matters committed to its discretion, is a heavy one") (citations omitted).

29B.

Plaintiffs argue the Board's policy violates their fundamental right to remain free from unnecessary governmental interference with bringing up their ch ildren. 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 stat e supplants parental authority. Plaintiffs take issue with the opt out provision because it apparently "requires p arents to take action to reclaim their authority and prevent the state from distributing condoms to their children." (Appe llants Br. 35). Plaintiffs maintain "[r]equiring consent b efore distributing condoms leaves parental authority inta ct unless the parent takes action to give his authorit y to state officials." (Id.).

"The Supreme Court has long recognized the right of parents to the care, custody and nurture of their c hildren 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 firs t instance to decide what is actually necessary for the pr otection and preservation of the life of his or her c hild.

* * *

Parental consent is further recognized by t he exceptions which have been carved out by the legislature, most notably the Minor's Consen t 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 ca nnot donate blood without the prior consent of a parent

. . . parental consent is not necessary for the tr eatment of substance abuse . . . no liability attaches for treatment of a minor venereal disease).

Parents United for Better Schs., Inc. v. School Dis t. of Philadelphia, 646 A.2d 689, 692 (Pa. Commw. Ct. 199 4) (citations omitted).

30We recognize the strong parental interest in decidi ng

what is proper for the preservation of their childr ens' health. But we do not believe the Board's policy in trudes on this right. Participation in the program is volunta ry. 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 takin g part in the phase-in pilot program shall have the absolute right to veto their child's or children's participation in t he program")). Once parents return the opt out form, t heir child will not be able to receive either counseling or condoms.

The Board's policy contains adequate notice provisi ons designed to effectively inform parents. "Letters ar e sent by first class mail to the parents of all ninth grader s and to all new students entering high schools which house heal th clinics or resource rooms." (App. 41). Furthermore, "[p]rior to the initial opening of new resource centers a no tice 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 stude nts 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 stud ents. The applicable statutes and regulations evince legi slative concern regarding the parental liberty interest in raising children. The General Assembly has imposed the foll owing obligation on school districts:

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

(1) Access to information about the curricul um, including expected student learning outcomes

, instructional materials and assessment techn iques.

31(2) A process for the review of instructiona l

materials.

(3) The right to have their children excused from specific instruction which conflicts with th eir religious beliefs, upon receipt by the schoo l 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 schoo l district of a written request from the paren ts.

22 Pa. Code S 5.4. The Board's opt out provision al so requires parents to affirmatively exercise their ri ght 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 convic tion similar to a religious belief ").

The General Assembly envisaged that some parents ma y 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 w ith the religious beliefs or moral principles of the pupil or parent or guardian of the pupil and when exc usal is requested in writing. Prior to the commencem ent of instruction, a school district shall publici ze that

detailed curriculum outlines and curricular materials used in conjunction with the instruction are available to parents and guardians during normal schoo l hours or at teacher-parent conferences. Curricular materials, if practical, shall be made available by the school district for home instruction use by a paren t or guardian of a student excused from the distr ict's HIV/AIDS instruction.

22 Pa. Code S 5.221(c). In accordance with this pro vision's direction, the Board allows parents to refuse parti cipation.

32C.

A brief examination of the relevant case law suppor ts our conclusion. In Doe, the United States Court of Appe als for the Sixth Circuit assessed a condom distribution pr ogram offered by a county health department in conjunctio n with the Michigan Department of Public Health. Minors we re given contraceptives without regard to either age o r parental consent, and services were not advertised. The county conducted weekly "rap sessions" to discuss b irth control methods and responsibilities associated wit h sexual activity. No minor received condoms without attendi ng a rap session, and parents were encouraged to attend if they inquired, but no effort was made to seek their atte ndance. In upholding the constitutionality of the program, the Sixth

Circuit stated:

The State of Michigan, acting through the C enter and defendants, has imposed no compulsory requir ements or prohibitions which affect rights of the p laintiffs. It has merely established a voluntary birth con trol 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 plaint iff's participating in decisions of their minor ch ildren on issues of sexual activity and birth control. The plaintiff 's remain free to exercise their t raditional care, custody and control over their emancipated c hildren . . . . we find no deprivation of the libert y interest of parents in the practice of not notifying the m of their children's voluntary decisions to participat e in the

activities of the Center.

Doe, 615 F.2d at 1168. The program here is also vol untary 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) in volved a condom distribution program in junior and senior hi gh schools. The program did not contain an opt out pro vision, and plaintiffs requested provisions (1) allowing pa rents to opt out of the program and (2) notifying parents of their childrens' request for a condom. Counseling was pro vided to students who requested it, and abstinence was st ressed.

33Before receiving condoms, students were counseled a nd

supplied with pamphlets on AIDS and other sexually transmitted diseases. Students could either request free condoms from the nurse or purchase them in bathroom s.

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

[w]e discern no coercive burden on the plai ntiffs' parental liberties in this case. No classroo m participation is required of students. Condo ms are available to students who request them and, in high school, may be obtained from vending machine s. The students are not required to seek out and ac cept the condoms, read the literature accompanying th em, or participate in counseling regarding their us e. In other words, the students are free to decline to p articipate in the program. No penalty or disciplinary acti on ensues if a student does not participate in the pro gram. For their part, the plaintiff parents are free t o instruct their children not to participate . . . . Although exposure to condom vending machines and to the program i tself may offend the moral and religious sensibili ties of plaintiffs, mere exposure to programs offere d at school

does not amount to unconstitutional interfer ence with parental liberties without the existence of some compulsory aspect of the program.

* * *

Because we conclude the program lacks any d egree of coercion or compulsion in violation of th e plaintiffs' parental liberties, or their familial privac y, we conclude also that neither an opt out provision nor p arental notification is required by the Federal Cons titution.

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

34Alfonso v. Fernandez, 606 N.Y.S.2d 259 (N.Y. App. 1 993)

which reached the opposite conclusion, involved a mandatory program.

[The program] calls for the high schools to make condoms available to students who request th em. Public high schools are to establish resourc e 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 o r 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 import antly, this component of the respondent's program does n ot include a provision for parental consent or op-out.

Id. at 261 (emphasis supplied).8 The key distincti on 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 implement ing the policy, acted within its statutory and regulato ry 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 co ndoms to minor, unemancipated students without the knowledge or consent of their parents. Nor do we believe that they have an y inherent authority to

do so.

* * *

We do not find that the policy is essential. No matter how laudable its purpose, by excluding parental involveme nt, the condom availability component of the program imperm issibly trespasses on the petitioner's parental rights by substitu ting the respondents in loco parentis, without a compelling necessit y therefor.

Id. at 263-65 (citations omitted).

35enacting a voluntary program, the Board did not off end

parental rights regarding the custody and care of t heir children. In light of parents' ability to opt out o f 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 is sue addressed by the district court.

For the foregoing reasons, we will affirm the judgm ent of

the district court.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

36