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September 11, 1997

SCHOOL DISTRICT OF PHILADELPHIA BOARD OF EDUCATION, et al., Defendants and JAMIL DOE, et al., Intervenor-Defendants.

The opinion of the court was delivered by: GAWTHROP

 This cause of action challenges the legality of a condom distribution program in Philadelphia public high schools. Pending before the court are Motions for Summary Judgment filed both by the defendants and by the intervenors. The movants argue that the Philadelphia School District's Board of Education has the authority to implement the condom program, which fully complies with state law. They further contend that this voluntary program does not infringe the parents' Fourteenth Amendment rights, and that any prior parental consent requirement would infringe the students' privacy rights. They also argue that Plaintiffs cannot maintain a private cause of action under the cited criminal statutes. I agree and shall grant their motions.

 I. Background

 On June 24, 1991, at a public meeting, held after nine public hearings, the Board of Education of the School District of Philadelphia adopted Policy 123 on "Adolescent Sexuality." Designed to address the problems of pregnancy and sexually transmitted diseases among students, Policy 123 directs the Superintendent of Schools to develop broad-based curricula to promote healthy behavior. Specifically, the curricula should "convey the message that abstinence is the most effective way of preventing pregnancy, sexually transmitted diseases and HIV infection" and should include "a voluntary parental education component, designed to enhance the frequency and effectiveness of parents' communication with their children . . . ." Policy 123 § 3.1. In addition, for those students who are sexually active, Policy 123 establishes a pilot program permitting in-school distribution of condoms with mandatory counseling ("the condom program"). Policy 123 § 3.5. Student participation in the condom program is voluntary, and "parents or guardians of students in schools taking part in the phased-in pilot program shall have the absolute right to veto their child's or children's participation in the program." Policy 123 § 4.1. The Board of Education adopted Policy 123 "pursuant to its authority under the Educational Supplement to the [Philadelphia] Home Rule Charter . . . ." Policy 123 P 2.1.

  The condom program began in three schools on December 17 and 18, 1991, *fn1" and currently exists in nine Philadelphia public high schools. When students enter any of these schools, the school sends letters to their parents or guardians, informing them of the condom program and instructing them to return an enclosed "opt-out" form if they do not want their child to have access to condoms in school. These letters refer to the condom program as a "health service" and state that students who request condoms will be given counseling and education from "a doctor, a nurse or a social worker." However, only 21% of 100 randomly surveyed members of Parents United for Better Schools, Inc. ("PUBS") said that they remembered receiving an opt-out letter. In addition, when new centers are opened, notice is published in area newspapers and on the School District's television channel.

 Each time a student requests condoms, a counselor determines whether an executed parental opt-out form is on file for that student. If the parent has returned an opt-out form, the counselor will not give the student condoms. If no form is on file, the counselor discusses the virtues of abstinence with the student, and, should the student still wish to receive condoms, the counselor will give the student condoms after providing instructions on their proper use.

 The health resource centers are staffed primarily by counselors and social workers. The centers have no medical equipment, but rather are furnished with a desk, chairs, and tables stacked with health pamphlets. These centers offer students written information and professional counseling on abstinence, sexually transmitted diseases, relationships, and pregnancy. 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. During that same period, counselors made 686 referrals to health care providers for sexually transmitted diseases, HIV screening, or treatment, and made 984 referrals to health care providers for pregnancy or birth control needs.

 The School-District administers the condom program through partnerships with health care and social service providers. The School District does not use any of its own funds for the condom program. Rather, funding for these centers comes from private and non-School District public sources, including the Philadelphia Department of Health, and federal grants under Title X of the Public Health Service Act, 42 U.S.C. § 300(a).

 On January 13, 1992, PUBS and several individual parents filed a complaint in the Philadelphia County Court of Common Pleas against the School District of Philadelphia's Board of Education, the Board of Education's President, and the School District's Superintendent of Schools. The plaintiffs requested a declaratory judgment that the condom program was "unlawful and invalid," an injunction prohibiting the distribution of condoms in Philadelphia public schools, and an order mandating the implementation of an abstinence program. On November 10, 1992, the Court of Common Pleas granted the defendants' Motion for Summary Judgment, holding that, because Policy 123 provided for a parental veto of a student's participation, the plaintiffs lacked standing. Parents United for Better Schools, Inc. v. School Dist., 17 Pa. D. & C. 4th 325 (Comm. Pl. 1992). The Pennsylvania Commonwealth Court reversed and remanded, holding that the plaintiffs have standing in Pennsylvania courts because they have an interest in giving express consent before their children receive medical-treatment. Parents United for Better Schools, Inc. v. School Dist., 166 Pa. Commw. 462, 646 A.2d 689 (1994) (en banc). The Commonwealth Court, however, did not determine whether condom distribution constitutes medical treatment. 646 A.2d at 691 n. 3.

 On June 1, 1995, the Court of Common Pleas allowed several individuals and organizations to intervene as defendants. *fn2" In March, 1996, the intervenors and the defendants filed separate motions for summary judgment, which the Court of Common Pleas summarily denied. In opposing the defendants' Motion for Summary Judgment, Plaintiffs relied on allegations that federal substantive due process gives them the right to raise their children as they see fit. That federal claim prompted the intervenors and the defendants to remove this case to federal court on May 17, 1996. This court denied Plaintiffs' swiftly ensuing Motion to Remand. Parents United for Better Schools, Inc. v. School Dist., 1996 U.S. Dist. LEXIS 11167, No. 96-3791, 1996 WL 442887 (E.D. Pa. July 31, 1996).

 Now, after a goodly amount of discovery, Defendants' and Intervenors' Motions for Summary Judgment are before the court. They argue that the condom program is within the Board of Education's authority and discretion, that it complies with Pennsylvania law, and that this voluntary program does not unconstitutionally burden parental rights under the Fourteenth Amendment. To the contrary, they maintain that, were the situation otherwise, any express parental consent requirement would violate federal law and students' privacy rights. Plaintiffs counter that the condom program burdens their constitutional liberty interest in raising their children as they see fit. They argue that any limits on parental liberty should be subject to strict scrutiny, and that the current opt-out provision fails to pass constitutional muster in that it burdens them with an affirmative duty to act, or else. Plaintiffs also contend that the condom program is invalid under Pennsylvania law because the Board of Education lacks the authority to implement a new health service without express legislative approval. Finally, in their Complaint, Plaintiffs maintain that condom distribution endangers the welfare of their children, but they omit that argument from responses to the summary judgment motions.

 II. Standard of Review

 In considering a motion for summary judgment, the court must determine "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). Only facts that may affect the outcome of the case under applicable law are "material." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). The court does not resolve factual disputes or make credibility determinations, and must view facts and inferences in the light most favorable to the party opposing the motion. Siegel Transfer, Inc. v. Carrier Express, Inc., 54 F.3d 1125, 1127 (3d Cir. 1995). Although the movant has the initial burden of demonstrating an absence of genuine issues of material fact, the non-movant then must establish the existence of each element on which it bears the burden of proof. J.F. Feeser, Inc. v. Serv-A-Portion, Inc., 909 F.2d 1524, 1531 (3d Cir. 1990), cert. denied, 499 U.S. 921, 113 L. Ed. 2d 246, 111 S. Ct. 1313 (1991) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986)). Unless evidence in the record would permit a jury to return a verdict for the non-movant, there are no issues for trial, and summary judgment becomes appropriate. Anderson, 477 U.S. at 248. It appearing to the Court that the issues here are not factual, but rather questions of law, summary judgment is appropriate.

 III. Discussion

 A. Board of Education's Authority to Enact Condom Program

 1. Generally

 Although a school district's powers are limited to its statutory grant, this grant is a broad one. In the Public School Code of 1949, the Pennsylvania General Assembly granted local school districts the power to "establish, equip, furnish, and maintain [various schools and departments] for the education and recreation of persons residing in said district, and for the proper operation of its schools." 24 Pa. Stat. Ann. § 5-502. Local school districts have a duty to "define the general policies of the school system" and "to legislate upon all matters concerning the conduct of the schools subject to the provisions of this act." 24 Pa. Stat. Ann. § 21-2013. Both state law and the Philadelphia Home Rule Charter give schools all necessary powers to enable them to carry out the laws governing schools. 24 Pa. Cons. Stat. Ann. § 2-211; 351 Pa. Code § 12.12-300. *fn4"

 In general, the state statute "reposes a wide discretion in the school board." Harris v. Board of Pub. Ed. of School Dist. of Phila., 306 Pa. 546, 548, 160 A. 443 (1932)(construing related provision in 1911 School Code). Under this broad grant of power, school districts have considerable control over school policies and activities. See, e.g., Chambersburg Area School Dist. v. Pennsylvania, 60 Pa. Commw. 29, 430 A.2d 740, 743 (1981) (upholding school district policy which banned smoking in all school district buildings, citing 24 Pa. Stat. Ann. § 2-211). Thus, these general provisions, standing alone, provide sufficient statutory authority for the condom program.

 2. Cooperative Agreements

 Plaintiffs maintain, however, that a school district's broad powers do not include the power to implement the condom program. They cite Barth v. School Dist., 393 Pa. 557, 143 A.2d 909 (1958) as an example of a school district exceeding its statutory grant, and argue that the reasoning in Barth equally applies here. In Barth, the Pennsylvania Supreme Court concluded that the Philadelphia School District lacked authority to establish and fund, with the City of Philadelphia, a commission to address juvenile delinquency. While recognizing the program's laudable goals, the court found that "a worthy objective does not justify the action of a School District . . . unless that action is authorized by the Constitution or by an Act of the Legislature." 393 Pa. 557, 143 A.2d at 911. The court could find no such statutory authorization in either 24 Pa. Stat. Ann. § 5-521 (permitting boards of school directors to enter into certain agreements with political subdivisions) or § 7-706 (authorizing school districts to join with local governments in equipping, maintaining, and operating parks, playgrounds, etc.). It further found that the expenditure of school district funds for this program, because the Public School Code did not specifically authorize it, was illegal under 24 Pa. Stat. Ann. § 6-610 ("The use or payment of any public school funds of any school district, in any manner or for any purpose not provided in this act, shall be illegal.").

 After Barth, however, the law changed. The Philadelphia Home Rule Charter was amended expressly to authorize cooperative programs to address juvenile delinquency. 351 Pa. Code § 12.12-309(a). This same provision authorizes cooperative health programs: "The Board of Education shall have the authority to enter into agreements relating to, but not limited to, . . . health services . . . with any non-profit private agency when, in the opinion of the Board, such agreement will further the efficient and effective administration of public education." Id. The General Assembly specifically authorized such a provision in 53 Pa. Stat. Ann. § 13219. *fn5"

 The Board of Education adopted Policy 123 "pursuant to its authority under the Educational Supplement to the Home Rule Charter," Policy 123 P 2.1, which includes the cooperative agreement provision, 351 Pa. Code. § 12.12-309. This policy "further[s] the efficient and effective administration of public education," § 12.12-309, by "reducing high risk sexual behavior leading to teen pregnancy, sexually transmitted diseases and HIV infection." Policy 123 P 2.1.b. It is sadly self-evident that students' education is hindered when they drop out of school because they are pregnant, sick with venereal disease, or dying of AIDS. By "promoting a healthy lifestyle for all children," Policy 123 P 2.1, ...

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