Downingtown Area School District shall now be dismissed with prejudice for failure to state a claim.
III. SECTION 1983 CLAIMS
Defendants argue that the claims against them should be dismissed for failure to plead with required specificity. This contention is not persuasive. While the general rule in this circuit is that civil rights complaints must be plead with specificity, Hall v. Pennsylvania State Police, 570 F.2d 86, 89 (3d Cir. 1978); Rotolo v. Borough of Charleroi, 532 F.2d 920, 922-23 (3d Cir. 1976); Negrich v. Hohn, 379 F.2d 213, 215 (3d Cir. 1967); Boddorff v. Publicker Industries, Inc., 488 F. Supp. 1107, 1111 (E.D. Pa. 1980), that requirement is satisfied when the plaintiff has alleged: the conduct violating his rights; the time of the violation; the place of the violation; and the person responsible for the violation. See Hall, 570 F.2d at 89. Plaintiffs have described in detail the occurrence of the in-school counseling sessions, the subject matter of these sessions, and the resulting dependent child petition process. They have alleged specific dates in the fall of 1977 and early 1978 when these events took place. They have specified pertinent events and have charged that Appleby and Hendry are responsible for the violations of their rights.
In Rotolo, the plaintiff merely claimed a violation of first amendment rights without specifying the allegedly protected activity. In Boddorf, the plaintiff did not identify defendants by name although it was possible to do so. In Marnin v. Pinto, 463 F.2d 583, 584 (3d Cir. 1972), the plaintiff alleged only that prison conditions were "worser . . . than in ghetto areas" and that the food was "not fit for human consumption." The instant complaint stands in stark contrast by its specificity which I find sufficient to meet the pleading requirements expressed in Hall. See also Brook v. Thornburgh, 497 F. Supp. 560, 562 (E.D. Pa. 1980).
Defendants' defense of qualified or "good faith" immunity is much more persuasive. The immunity concept is based upon the need to ensure principled and conscientious governmental decision-making. Crowder v. Lash, 687 F.2d 996, 1006 (7th Cir. 1982). In Harlow v. Fitzgerald, 457 U.S. 800, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982), the Supreme Court modified the test to be used in determining whether officials are immune from suit for their actions under the doctrine of qualified immunity.
Traditionally, defendants who asserted a defense of qualified immunity had their conduct tested against both an "objective" and a "subjective" standard. Harlow, 102 S. Ct. at 2737. Druckenmiller v. United States, 548 F. Supp. 193, 194 (E.D. Pa. 1982).
Harlow dispensed with the subjective element of the defense and held that good faith immunity will defeat claims so long as official conduct does not violate "clearly established statutory or constitutional rights of which a reasonable person would have known." By relying upon the objective reasonableness of an official's conduct, as measured by reference to clearly established law, a court is now permitted to resolve insubstantial claims through summary judgment. See Harlow, 102 S. Ct. at 2738-39.
The threshold question becomes whether the conduct complained of by plaintiffs violates "clearly established" law. See, e.g., Druckenmiller v. United States, 548 F. Supp. at 194 (E.D. Pa. 1982).
More specifically, did defendant Appleby violate "clearly established" law when she conducted approximately eight interviews of Alexander Roman and thereafter referred the matter to CCCS? Did Hendry violate "clearly established law" when she relied upon information supplied to her by Appleby and thereafter provided an affidavit for use in a petition to have Alexander Roman adjudicated a "dependent" pursuant to the Juvenile Act of 1972, 11 P.S. § 50-314, reenacted as 42 P.S. § 6334? A resolution of these questions, requiring an inquiry into constitutional as well as statutory issues, leads to the conclusion that defendants' actions did not violate "clearly established" law. Therefore, the motions for summary judgment will be granted.
It is axiomatic that competing constitutional claims are found in a school setting. Students, teachers, parents, administrators, and the state as parens patriae, all have legitimate rights to further their respective goals. Sometimes these rights clash. Thus, while there is a constitutional right to freedom of religion, it is not absolute and may be circumscribed by a compelling state interest. Courts have stated repeatedly that where a child's emotional well-being may be threatened, or where there is a potential for significant social burdens, the state's interest in his mental health will override free exercise claims. See Wisconsin v. Yoder, 406 U.S. 205, 230, 233-34, 32 L. Ed. 2d 15, 92 S. Ct. 1526 (1972); Prince v. Massachusetts, 321 U.S. 158, 169-70, 88 L. Ed. 645, 64 S. Ct. 438 (1943). Wynn v. Carey, 582 F.2d 1375, 1384-86 (7th Cir. 1978). Cf. Cornwall v. State Board of Education, 314 F. Supp. 340, 342-45 (D. Md. 1969), aff'd, 428 F.2d 471 (4th Cir. 1970), cert. denied, 400 U.S. 942, 27 L. Ed. 2d 246, 91 S. Ct. 240 (1970) (upholding sex education programs over parental religious objections on grounds of the state's compelling interest in public health); Bykofsky v. Borough of Middletown, 401 F. Supp. 1242, 1262-64 (M.D. Pa. 1975), aff'd, 535 F.2d 1245 (3d Cir. 1976) (upholding constitutionality of juvenile curfew ordinance).
Furthermore, parental requests that their children be exempted from a part of the general public school programs have been frequently denied. See, e.g., Davis v. Page, 385 F. Supp. 395, 400 (D.N.H. 1974); Cornwall v. State Board of Education. As stated in Williams v. Board of Education of Cty. of Kanawha, ". . . [The First] Amendment does not guarantee that nothing about religion will be taught in the schools nor that nothing offensive to any religion will be taught in the schools." 388 F. Supp. 93, 96 (S.D. W. Va. 1975), aff'd, 530 F.2d 972 (4th Cir. 1975) (parents' complaint seeking to enjoin use of textbooks allegedly offensive to Christian morals dismissed under Rule 12(b)(6)). Moreover, where parents choose to enroll their children in public schools, they cannot demand that the school program be tailored to meet their individual preferences, even those based on religion or a right of privacy. Rather, an appropriate balance and, if possible, a reasonable accommodation, must be struck among the traditional rights of parents in the rearing of their own children, the power of the state to control public schools, and individual rights of free expression. Sheck v. Baileyville School Committee, 530 F. Supp. 679, 688 (D. Me. 1982).
Downingtown Area School District provides services of guidance counselors for all high school pupils. Appleby was hired as a guidance counselor in the Downingtown Senior High School in 1968. In or about 1977 her duties included personal, academic, vocational and career counseling. It is undisputed that Alexander Roman, then a tenth grade student, initiated the first counseling session. In the seven counseling sessions which followed, numerous topics were discussed including religion, sex, family relationships and relationships to peers. Given the competing constitutional claims which are inherently involved in a public school setting, including a guidance counselor's first amendment right of free speech, it cannot be said that Appleby's conduct violated plaintiffs' clearly established constitutional right to freely exercise their religion or with their right to maintain a private family relationship without unnecessary governmental interference. The mere fact that Appleby and Alexander discussed potentially sensitive topics does not rise to a constitutional level. There is no allegation that Alexander was compelled to attend the counseling sessions nor threatened with discipline or removal from the school if he failed to cooperate.
Plaintiffs' reliance on Reed v. VanHoven, 237 F. Supp. 48 (W.D. Mich. 1965), is inapposite as it involved the reading of prayers and biblical passages during school hours. In Reed, the court admonished that "no themes will be assigned on such topics as 'why I believe or disbelieve in religious devotions.'" 237 F. Supp. at 56. This does not mean a guidance counselor must avoid all discussion of religious and other sensitive topics, especially when initiated by students.
In addition to finding by reference to constitutional standards that Appleby's conduct did not violate clearly established law, thereby entitling her to the defense of qualified immunity, I also find that defense of immunity is supported by the provisions of the Child Protective Services Law (CPSL) of 1975, 11 P.S. § 2201, et seq.9 By this Act,
under threat of criminal sanction, a school counselor is required to report to the county welfare agency whenever it is suspected that a child "exhibits evidence of serious physical or mental injury." 11 P.S. § 2204 provides in pertinent part:
Persons Required to Report Suspected Child Abuse.
(a) Any persons who, in the course of their employment, occupation, or practice of their profession come into contact with children shall report . . . when they have reason to believe, on the basis of their medical, professional or other training and experience, that a child coming before them in their professional or official capacity is an abused child.