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MERRIKEN v. CRESSMAN

September 28, 1973

Michael MERRIKEN et al.
v.
Wilmer D. CRESSMAN et al.


John Morgan Davis, District Judge.


The opinion of the court was delivered by: DAVIS

JOHN MORGAN DAVIS, District Judge.

 I. FINDINGS OF FACT

 1. Plaintiff, Michael Merriken, is an eighth grade student at Stewart Junior High School, Marshall and Forrest Avenues, Norristown, Pa. Plaintiff, Sylvia Merriken, is the mother of Michael Merriken, is a resident of Montgomery County, and pays real estate and other taxes to the county. (N.T. 12/1/72 at 13; N.T. 12/18/72 at 130)

 2. Defendants are the Montgomery County Commissioners, the members of the Norristown Area School Board, the Superintendent of Schools of the Norristown Area School Board, and the Principal of Stewart Junior High School. (N.T. 12/1/72 at 13-14)

 3. Defendants, acting in concert with each other and with Fred Streit Associates, intend to introduce a program entitled Critical Period of Intervention (CPI) into the Norristown Area School District to be administered to eighth grade students including Plaintiff, Michael Merriken. (N.T. 12/1/72 at 14; N.T. 12/18/72 at 132; N.T. 5/18/73 at 49-50)

 4. Defendants intend to expend public tax monies to implement the CPI Program. (N.T. 12/1/72 at 16)

 5. The stated purpose of the CPI Program is as a drug prevention approach as contrasted with drug rehabilitation efforts. It is designed to aid the local school district in identifying potential abusers, prepare the necessary interventions, identify resources to train and aid the district personnel to remediate the problems and, finally, to evaluate the results. (N.T. 12/1/72 at 14; Plffs' Exh. 7)

 6. When suit was first instituted, Defendants did not intend to obtain the affirmative consent of parents to the participation of their children in the CPI Program. Rather, Defendants proposed a "book of the month club" approach in which a parent's silence would be construed as acquiescence. (Plffs' Exh. 3) It was only after suit was started that Defendants offered to change that format so that affirmative written parental consent to participation in the CPI Program would be required. (Plffs' Exh. 4)

 7. However, the revised letter to parents makes no provision whatsoever for allowing parents to see the test instrument itself. (Plffs' Exh. 4; N.T. 5/18/73 at 128-129)

 9. In addition to a letter, Defendants propose to send to parents a question and answer sheet explaining the CPI Program. (Plffs' Exh. 5) By the admission of its author, Mr. Streit, that document is a "selling device", "an attempt to convince the parent to allow the child to participate". The whole purpose in composing that document "was to convince parents that they ought to allow their children to participate". (N.T. 5/18/73 at 124) Mr. Streit acknowledged that "there is nothing in this document . . . that is critical of or negative about the CPI Program". (N.T. 5/18/73 at 124)

 10. Two child psychiatrists testified without contradiction as to several negative, and indeed dangerous aspects of the CPI Program, none of which are mentioned or referred to in any of the materials to be made available to parents. These dangers include the risk that the CPI Program will operate as a self fulfulling prophecy in which a child labelled as a potential drug abuser will by virtue of the label decide to be that which people already think he or she is anyway. (N.T. 12/18/72 at 28-29, 90-92) In fact, the CPI Program manual itself, not available to parents, acknowledges this risk. (Plffs' Exh. 7) Another danger mentioned is that of scapegoating in which a child might be marked out by his peers for unpleasant treatment either because of refusal to take the CPI test or because of the results of the test. (N.T. 12/18/72 at 31-32, 90-91) That this is not a mere hypothetical risk was illustrated by an incident involving Plaintiff, Michael Merriken, in which fellow students accused him of being a drug user because his mother does not want him to participate in the CPI Program. (N.T. 12/18/72 at 132-35) Drs. Gordon and Hanford also described the severe loyalty conflict that might result by asking children the types of personal questions about their relationship with parents and siblings which are included in the CPI questionnaire. (Plffs' Exh. 1; N.T. 12/18/72 at 30-31, 86) A final example has to do with the qualifications of the personnel who will administer the so-called interventions once the results of the CPI questionnaire have been evaluated. As both psychiatrists pointed out, the types of psychotherapy that are suggested as interventions in the CPI Program are quite sophisticated and require the skills of trained psychotherapists, psychiatrists, psychologists, etc. who have undergone many years of training. However, the CPI Program contemplates that these sophisticated psychotherapy techniques will be administered by school personnel, including teachers without any particular qualifications who have undergone only a short crash course. (N.T. 12/18/72 at 36-38, 92-96; Plffs' Exh. 7; N.T. 5/18/73 at 171)

 11. According to the Program, CPI is a "drug prevention approach as contrasted with drug rehabilitation efforts . . . It is designed to aid the local school district in identifying potential abusers, prepare the necessary interventions, identify resources to train and aid the district personnel to remediate the problems and, finally, to evaluate the results". (Plffs' Exh. 7) However, the Program nowhere defines the term "potential [drug] abuser". All that the Program does state is that it will identify patterns similar to marijuana, LSD, barbiturate or amphetamine user. There is no reference to such drugs as cigarettes, alcohol, opium, heroin or cocaine. Moreover, there is no statement as to what constitutes abuse. The study on which CPI is based, however, does contain "an arbitrary set of decisions to define the degrees of use, known or experimental, moderate or heavy". (Plffs' Exhs. 6 & 7; N.T. 5/18/73 at 147)

 13. Although the CPI Program constantly refers to confidentiality, no specifics are given in the Program itself as to how confidentiality is to be maintained after evaluation. Mr. Streit did testify on this subject but that testimony is far different from what appears in the printed CPI materials. The Program, by its own terms, contemplates the development of a "massive data bank" and also dissemination of data relating to specific students to various school personnel, including superintendents, principals, guidance counsellors, athletic coaches, social workers, PTA officers, and school board members. (Plffs' Exh. 6) In fact, at a meeting of the Norristown School Board on Monday, October 23, 1972, parents were advised that teams of faculty members had already been selected to receive data back from the CPI Program in order to implement the intervention stage of the Program in the various schools in Norristown. (N.T. 5/18/73 at 170-171)

 14. Even if those who are to be working with the CPI Program were to try and be as confidential as possible, in accordance with Mr. Streit's testimony, there is absolutely no assurance that the materials which have been gathered would be free from access by outside authorities in the community who have subpoena power. Thus, there is no assurance that should an enterprising district attorney convene a special grand jury to investigate the drug problem in Montgomery County, the records of the CPI Program would remain inviolate from subpoenas and that he could not determine the identity of children who have been labeled by the CPI Program as potential drug abusers. (N.T. 5/18/73 at 172-173)

 15. The second step of the CPI Program is "intervention" or "remediation". The stated purpose of this phase is "to change the cognitive and affective domains of potential drug abusers and other forms of deviant behavior". (N.T. 5/18/73 at 164-166) Intervention may take several forms, some of which are compulsory for the student and which seriously limit and infringe upon individual liberty. For example, one form of intervention, Guided Group ...


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