2010 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit

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w . v i l l a no v a . e du/thir dc ir c uit_2010/179NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

____________ No. 10

- 2164

_____________ JOHN DOE, individually and on behalf of JANE DOE; JANE DOE, a minor child, all fictitious names, Appellants v. LEFTERIS BANOS; MICHAEL WILSON; ALAN FEGLEY; HADDONFIELD BOARD OF EDUCATION; JOHN DOES (1

- 10), Fictitious Defendants On Appeal from the United States District Court for the District of New Jersey (No. 1

- 10

- cv - 01338) Distric t Judge: Honorable Noel L. Hillman Submitted Under Third Circuit LAR 34.1(a)

November 17, 2010 Before: BARRY, CHAGARES, and VANASKIE, Circuit Judges

.

(Filed November 30, 2010 )

____________ OPINION

_____________2

CHAGARES, Circuit Judge

. “John Doe,” individ ually an d on behalf of his fifteen

- year - old daughter, “Jane Doe,” 1 appeal s from the District Court‟s denial of his motion for a preliminary injunction. For the reasons stated below, we will affirm.
I. Because we solely write for the parties, we will on ly briefly summarize the essential facts. The Haddonfield Board of Education, as part of an effort to “educate its students . . . in the process of making life choices, particularly in regard to . . . respecting and obeying the law and coping with the p ressures of drug and alcohol in our society,” has adopted a “comprehensive 24/7 Drug and Alcohol Policy.” Appendix (“App.”) at 46. The 24/7 Policy “is a 24 hours a day, 7 days a week, 365 days a year Policy that governs any underage drinking or drug use .” App. 47. The policy, with limited exceptions, essentially bans students from any contact with drugs or alcohol. Students who violate the policy are subject to a series of escalating punishments. In order for a Haddonfield student to participate in any extracurricular activity, including athletic teams, both the student and the student‟s parent must sign a “Student Activities Permission Form.” This form requires the student to acknowledge that he or she understands that drug and alcohol use is p rohibited at all times and that any violations will be punished according to the 24/7 Policy. The student‟s parent must also sign the

1 To protect the identity of “Jane Doe,” a ppellants are proceeding under pseudonyms. See D oe Br. at 6 n.3.3

form

. T hree statements on the Student Activities Permission F orm pertain to the parent

. The first one p rovides that: I am willing that my child participate in any of the listed activities during his/her school year. I am also willing that he/she take scheduled trips should he/she become a member of any activity. When required , I will have him/her examined by our family physician. I will not hold the Board of Education responsible for the payment of any bills incurred because of accidents or injuries to my child in his/her school activity(ies). App. 62. The second statement pertains to the interplay between the Boar d‟s insurance policy and the family‟s insurance policy, and absolves the Board from any liability for injury to a student in connection with an athletic extracurricular activity. The final statement reads as follows: “I have received and read all the in formation regarding student participation in the interscholastic/co

- curricular activities. I have also reviewed the HSD Alcohol & Drug Regulations.” App. 62.
Jane Doe is a fifteen

- year - old sophomore who wished to play lacrosse at Haddonfield‟s public high school. As required, the Does submitted a signed Student Activities Permission Form, but John Doe modified the form by crossing out certain language on the form that pertained to the 24/7 Policy. See App. 91. The Haddonfield Board of Education info rmed Mr. Doe that the form, as modified, would not be accepted. John Doe subsequently submitted an unmodified signed permission form, but accompanied that form with a cover letter stating that he had “filled out the form under duress.” App. 54. After re ceiving this new form and letter, counsel for the Board of Education expressed concern over the use of the term “under duress,” and suggested that Mr. Doe adopt the language “with full reservation of rights” instead. App. 57. John Doe4

refused to modify h is letter, asserting, through his counsel, that he “won‟t agree to be bound to a policy [he] believe[s] to be illegal.” App. 96. The Board then informed Mr. Doe that the form he signed “under duress” was “invalid and unacceptable.” App. 58. Acknowledgi ng that John Doe “certainly [has] a right to disagree with the 24/7 Policy,” the Board determined that Jane Doe would not be permitted to play lacrosse unless Mr. Doe “either unconditionally sign[s] a new permission form,” “rescind[s] in writing [his previ ous] statement regarding signing the form under duress,” or “amend[s] [his] correspondence to indicate „with full reservation of rights.‟” Id. Ultimately, John Doe refused these options, and the Board did not allow Jane Doe to participate on the lacrosse

team. The Does are challenging the validity of the 24/7 Policy in a separate lawsuit. In this action, John Doe alleges that “Defendants, through their actions in preventing Jane Doe from participating in extracurricular activities on account of wha t her father asserted in a letter to the school accompanying an unedited permission form, violated Plaintiff John Doe‟s right to freedom of speech and expression guaranteed under the First Amendment of the United States Constitution.” App. 35. 2 Shortly a fter filing the complaint, John Doe moved for a preliminary injunction, seeking to enjoin the Board from excluding Jane Doe‟s participation on the school lacrosse team. The District Court denied the motion, and John Doe now appeals that decision.

2 The complaint also states a claim for state

- law negligence, which is not relevant on this appeal.5 II.
T he District Court had jurisdiction under 28 U.S.C. § 1331. We exercise jurisdiction over an interlocutory appeal pursuant to 28 U.S.C. § 1292(a)(1). A party seeking a preliminary injunction pursuant to Rule 65 of the Federal Rules of Civil Procedure mus t satisfy the traditional four

- factor test: (1) a likelihood of success on the merits; (2) irreparable harm if the injunction is denied; (3) that granting relief will not result in even greater harm to the nonmoving party; and (4) that the public interest favors such relief. See Child Evangelism Fellowship of N.J. Inc. v. Stafford Twp. Sch. Dist. , 386 F.3d 514, 524 (3d Cir. 2004). The “failure to establish any element . . . renders a preliminary injunction inappropriate.” NutraSweet Co. v. Vit

- Mar Ente rs., Inc. , 176 F.3d 151, 153 ( 3d Cir. 1999) . “Furthermore, when the preliminary injunction is directed not merely at preserving the status quo but, as in this case, at providing mandatory relief, the burden on the moving party is particularly heavy.” Pun nett v. Carter , 621 F.2d 578, 582 (3d Cir. 1980). Ordinarily, w hen reviewing a preliminary i njunction, “we review the court‟ s legal conclusions de novo, its findings of fact for clear error, and its ultimate decision to grant or deny the preliminary injunc tion for an abuse of discretion.” Maldonado v. Houstoun , 157 F.3d 179, 183 (3d Cir. 1998). “However, when First Amendment rights are implicated, this court must conduct an independent examination of the factual record as a whole.” McTernan v. City of Yo rk, Pa. , 577 F.3d 521, 526 (3d Cir. 2009).6 III. As an initial matter, we note that this appeal does not require us to resolve whether it is valid for a school to adopt a disciplinary policy that governs student off

- campus involvement with drugs and alco hol. The Does, as noted, raise this issue in a separate lawsuit. The only issue before this Court is whether John Doe‟s First Amendment rights were violated by the school‟s refusal to accept a Student Activities Permission Form accompanied by a letter st ating that John Doe was signing the form “under duress.” In support of this claim, John Doe appears to alternate between two overlapping theories relying upon the First Amendment. On the one hand, he insists that this is a case involving “forced speech” o r “an attempt to compel speech.” Doe Br. at 22; Reply Br. at 2. On the other hand, John Doe argues that “[t]his is a clear case of the government censoring speech,” and “that he is now faced with the choice between quietly criticizing a governmental poli cy or being pressured through the punishment of his daughter to retract his criticism.” Doe Br. at 14, 18. Both of these theories fail. In regard to the first theory , the only speech being “compelled” here is John Doe‟s unqualified signature on the Stu dent Activities Permission Form , which, among other things, provides permission for Jane Doe to participate in lacrosse and acknowledges familiar ity with the 24/7 Policy. Predicating student participation in extracurricular activities on a parent‟s uncond itional consent to such a form does not infringe a parent‟s First Amendment rights. Put simply, t he First Amendment does not protect a parent‟s right to sign a school permission form “under duress” while still mandating that the school allow his or her ch ild to participate in the7

underlying activity. A constitutional problem might exist, of course , if the parent‟s speech was otherwise restricted

. John Doe‟s second theory seizes on this possibility , and
argues that the Board here essentially “censored” hi s speech. W e disagree. There is no evidence that John Doe‟s ability to criticize the 24/7 Policy has been inhibited in any manner whatsoever

. As the District Court stated, the record reveals that “John Doe had and was continuously offered every opportun ity to exercise his constitutional right to free speech.” App. 15. Indeed, John Doe ‟s signature on the Student Activities Permission
Form neither required him to indicate that he agreed with the substance of the 24/7 Policy nor prevented him from critici zing the policy in any way.
T he Board‟s decision to reject a Student Activities Permission Form purportedly signed “under duress” is subject only to rational basis review. Cf. Ysursa v. Pocatello Educ. Ass‟n , 129 S. Ct. 1093, 1098 (2009). We share the District Court‟s view that John Doe has failed to meet the heavy burden of demonstrating that he is likely to succeed on the merits of his First Amendment claim under this level of scrutiny

. 3 We therefore hold that the District Court did not abuse its dis cretion in denying the motion for a preliminary injunction.
IV. For the foregoing reasons, we will affirm the denial of the motion for a preliminary injunction.

3 We affirm on this point alone and decline to reach the other issues raised on this appeal.