N.Y.S.2d 259, 265-67 (N.Y. App. Div. 1993) (striking down condom distribution program which lacked parental consent requirement, but noting that such a program would be constitutionally valid if it had a parental "opt-out" procedure).
Because I find that Plaintiffs have not shown that the state has violated their constitutional rights, it is unnecessary to consider whether the state has a compelling interest which supersedes the parents' liberty interest. See, e.g., Prince v. Massachusetts, 321 U.S. 158, 165-69, 88 L. Ed. 645, 64 S. Ct. 438 (1944).
F. Private Cause of Action under Criminal Statutes
The intervenors also request that the court grant them summary judgment on Plaintiffs' claim for child endangerment (Count III). They maintain that Plaintiffs have waived this count by failing to argue it in their Response, and that, if not waived, this count must fail because Plaintiffs have no private right of action under 18 Pa. Cons. Stat. § 4304(a), the criminal statute prohibiting child endangerment.
Because I find that Plaintiffs cannot prove their claim in Count III, I find it unnecessary to reach the question of whether this statute permits a private cause of action.
As a preliminary matter, I shall not deem this count abandoned simply because Plaintiffs have not defended it in their Response. Although a court is permitted to enter judgment when the non-movant fails to respond, see Fed. R. Civ. P. 56(e), the court is not automatically required so to do. See, e.g., John v. Louisiana (Bd. of Trustees for State Colleges & Univs.), 757 F.2d 698, 709-10 (5th Cir. 1985).
Count III alleges that the defendants' distribution of condoms in public schools endangers the welfare of children because they thus increase children's sexual activity which is harmful to their physical, psychological and spiritual well-being. Under Pennsylvania law, "[a] parent, guardian, or other person supervising the welfare of a child under 18 years of age . . . [breaks the law] if he knowingly endangers the welfare of the child by violating a duty of care, protection or support." 18 Pa. Cons. Stat. § 4304(a). This statute is to be "given meaning by reference to the 'common sense of the community' and the broad protective purpose for which . . .[it was] enacted." Commonwealth v. Mack, 467 Pa. 613, 359 A.2d 770, 772 (1976). To be held liable, the alleged offender must be "aware of his or her duty to protect the child; is aware that the child is in circumstances which threaten the child's physical or psychological welfare; and has either failed to act or has taken actions so lame or meager that such actions cannot reasonably be expected to be effective to protect the child's . . . welfare." Commonwealth v. Cardwell, 357 Pa. Super. 38, 515 A.2d 311, 315 (1986), appeal denied, 515 Pa. 573, 527 A.2d 535 (1987). Plaintiffs, however, 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 this record, that Defendants might be mistaken in their belief, as Plaintiffs argue, cannot support a claim for child endangerment. See Commonwealth v. Miller, 411 Pa. Super. 33, 600 A.2d 988, 992 (1992) (concluding that mistakes in judgment which harm children do not rise to the level of criminal culpability unless parents knowingly allow their children to be at risk with awareness of the potential consequences of their actions). Thus, I shall grant summary judgment to the defendants and intervenors on this claim as well.
I thus hold that there is no genuine issue of material fact and conclude that the applicable law commands that judgment be summarily entered in favor of the Defendants and against the Plaintiffs.
An order follows.
AND NOW, this 11th day of September, 1997, upon the reasoning in the attached Memorandum:
1. Defendants' Motion for Summary Judgment is GRANTED. Judgment is entered in favor of Defendants and against Plaintiffs.
2. Intervenor-Defendants' Motion for Summary Judgment is GRANTED. Judgment is entered in favor of Intervenor-Defendants and against Plaintiffs.
BY THE COURT
Robert S. Gawthrop, III, J.