1998 Decisions

Opinions of the United

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Precedential or Non-Precedential: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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Recommended Citation

"Parents United v. Sch Dist Phila" (1998). 1998 Decisions. Paper 151.

http://digitalcommons.law.villanova.edu/thirdcircuit_1998/151
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 nonprofit 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. 

 33 
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. 

 34 
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). 

 35 
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 

 36