Facts

    Question: Can Public Schools Require Physical Examinations (More than Drug Testing) as a Condition of Participation In School Athletics?

Answer: Probably Not. (But as a practical matter – is this the parents’ fight at the expense of the child.  Only a parent can make that determination.)

The Constitution

The Fourteenth Amendment provides that no State shall “deprive any person of life, liberty, or property, without due process of law.” The U.S. Supreme Court has long recognized that the Amendment’s Due Process Clause, like its Fifth Amendment counterpart, “guarantees more than fair process.”^[1] The Clause also includes a substantive component that “provides heightened protection against government interference with certain fundamental rights and liberty interests.”^[2]
             The liberty interest at issue here — the interest of parents in the care, custody, and control of their children — is perhaps the oldest of the fundamental liberty interests recognized by the United States Supreme Court and Virginia Courts.^[3], 406 U.S. 205, 232, 32 L. Ed. 2d 15, 92 S. Ct. 1526 (1972) (“The history and culture of Western civilization reflect a strong tradition of parental concern for the nurture and upbringing of their children. This primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition”); Quilloin v. Walcott, 434 U.S. 246, 255, 54 L. Ed. 2d 511, 98 S. Ct. 549 (1978) (“We have recognized on numerous occasions that the relationship between parent and child is constitutionally protected”); Parham v. J. R., 442 U.S. 584, 602, 61 L. Ed. 2d 101, 99 S. Ct. 2493 (1979) (“Our jurisprudence historically has reflected Western civilization concepts of the family as a unit with broad parental authority over minor children. Our cases have consistently followed that course”); Santosky v. Kramer, 455 U.S. 745, 753, 71 L. Ed. 2d 599, 102 S. Ct. 1388 (1982) (discussing “the fundamental liberty interest of natural parents in the care, custody, and management of their child”); Glucksberg, supra, at 720 (“In a long line of cases, we have held that, in addition to the specific freedoms protected by the Bill of Rights, the ‘liberty’ specially protected by the Due Process Clause includes the right . . . to direct the education and upbringing of one’s children” (citing Meyer and Pierce)). In light of this extensive precedent, it cannot now be doubted that the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children,^[4] including medical treatment decisions.

   In Gruenke v. Seip, 225 F.3d 290, 303-305 (3d Cir. 2000) the Third Circuit Court of Appeals for the United States decided that forcing a child to take a pregnancy test as a condition of participating on the school’s swim team would violate the Constitution.  On the other hand, the United Supreme Court has stated that requiring athletes to take drug tests is not unreasonable.  The Court in Seip stated in pertinent part as follows:

The right of parents to raise their children without undue state interference is well established. As the Supreme Court remarked in M.L.B. v. S.L.J., 519 U.S. 102, 117 S. Ct. 555, 136 L. Ed. 2d 473 (1996), “choices about marriage, family life, and the upbringing of children are among associational rights this Court has ranked as of basic importance in our society, rights sheltered by the Fourteenth Amendment against the State’s unwarranted usurpation, disregard, or disrespect.” Id. at 116 (citation and internal quotes omitted).

In Santosky v. Kramer, 455 U.S. 745, 71 L. Ed. 2d 599, 102 S. Ct. 1388 (1982), the Court pointed out that “the fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents . . . .” Id. at 753. Indeed, it is “‘plain beyond the need for multiple citation’ that a natural parent’s ‘desire for and right to the companionship, care, custody, and management of his or her children’ is an interest  far more precious than any property right.” Id. at 758-59 (quoting Lassiter v. Department of Soc. Servs., 452 U.S. 18, 27, 68 L. Ed. 2d 640, 101 S. Ct. 2153 (1981)) (some internal quotes omitted).

In Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054, 147 L. Ed. 2d 49, 2000 WL 712807 (U.S. 2000), the Court reiterated that the parental interest in “the care, custody, and control of their children” is “perhaps the oldest of the fundamental liberty interests recognized by this Court.” 120 S. Ct. at 2060, 147 L. Ed. 2d at 56, Id. at *5. That case reaffirmed the validity of such long-standing precedents as Meyer v. Nebraska, 262 U.S. 390, 401, 67 L. Ed. 1042, 43 S. Ct. 625 (1923) (right of parents to control education of their children), Pierce v. Society of Sisters, 268 U.S. 510, 534-35, 69 L. Ed. 1070, 45 S. Ct. 571 (1925) (right to direct upbringing and education of children), and Prince v. Massachusetts, 321 U.S. 158, 166, 88 L. Ed. 645, 64 S. Ct. 438 (1944), where the Court said “the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.” See also  Wisconsin v. Yoder, 406 U.S. 205, 232-33, 32 L. Ed. 2d 15, 92 S. Ct. 1526 (1972) (“primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition,” particularly in matters of “moral standards, religious beliefs, and elements of good citizenship”).

Notwithstanding these near-absolutist pronouncements, the Court has also recognized that for some portions of the day, children are in the compulsory custody of state-operated school systems. In that setting, the state’s power is “custodial and tutelary, permitting a degree of supervision and control that could not be exercised over free adults.” Vernonia Sch. Dist. v. Acton, 515 U.S. 646, 655, 132 L. Ed. 2d 564, 115 S. Ct. 2386(1995). For some purposes, then, “school authorities act[] in loco parentis.” Bethel Sch. Dist. v. Fraser, 478 U.S. 675, 684, 92 L. Ed. 2d 549, 106 S. Ct. 3159 (1986). But see New Jersey v. T.L.O., 469 U.S. 325, 336-37, 83 L. Ed. 2d 720, 105 S. Ct. 733 (1985) (school authorities are not merely parental surrogates but also exercise public authority for Fourth Amendment purposes.).

Thus, HN25there may be circumstances in which school authorities, in order to maintain order and a proper educational atmosphere in the exercise of police power, may impose standards of conduct on students that differ from those approved by some parents. See, e.g., Vernonia, 515 U.S. at 664-65 (allowing participation in school athletics to be conditioned upon testing for illegal drugs); Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 273, 98 L. Ed. 2d 592, 108 S. Ct. 562 (1988) (permitting censorship of school-sponsored publication); T.L.O., 469 U.S. at 347-48 (upholding warrantless search of student’s effects).

Although a student may not enjoy a right of privacy to the same extent as a free adult, there are nevertheless limitations on intrusions by school authorities. Thus, in Vernonia, although the Court approved drug tests, it was also careful to indicate that the tests were inappropriate to determine “whether the student is, for example, epileptic, pregnant, or diabetic.” 515 U.S. at 658. In describing the justification for the random, coerced drug testing in Vernonia, the Court pointed out that the State must  demonstrate “an interest that appears important enough to justify the particular search at hand, in light of other factors that show the search to be relatively intrusive upon a genuine expectation of privacy.” Id. at 661.

It is not unforeseeable, therefore, that a school’s policies might come into conflict with the fundamental right of parents to raise and nurture their child. But when such collisions occur, the primacy of the parents’ authority must be recognized and should yield only where the school’s action is tied to a compelling interest.

As the Court said in Roberts v. United States Jaycees, 468 U.S. 609, 82 L. Ed. 2d 462, 104 S. Ct. 3244 (1984), “the Court has long recognized that, HN28because the Bill of Rights is designed to secure individual liberty, it must afford the formation and preservation of certain kinds of highly personal relationships a substantial measure of sanctuary from unjustified interference by the State.” Id. at 618. Familial relationships are the quintessential “personal bonds” that “act as critical buffers between the individual and the power of the State.” Id. at 619-20.

In determining whether plaintiffs have presented a constitutional issue that will survive summary judgment, the reviewing court draws all reasonable inferences from the underlying facts in the light most favorable to the nonmoving party. Sameric Corp. v. City of Phila., 142 F.3d 582, 590 (3d Cir. 1998). In this case, review is complicated because in critical instances, the facts and inferences are sharply contested and the testimony on some points is quite vague. We are, however, persuaded that there is sufficient evidence, coupled with such reasonable inferences, to establish an unconstitutional interference with familial relations.

Defendant Seip conceded that he could not exclude Leah from the team or bar her from participating in swim meets merely because she was pregnant. He was aware that some women compete in such strenuous activities as triathlons in the seventh month of pregnancy. He was, of course, free to limit her participation because of poor performance, but did not until the state meet on March 15, 1997.

Gruenke v. Seip, 225 F.3d 290, 303-305 (3d Cir. 2000)

Miscellaneous Notes:

^[1]Washington v. Glucksberg, 521 U.S. 702, 719, 138 L. Ed. 2d 772, 117 S. Ct. 2258 (1997)

^[2]521 U.S. at 720; see also Reno v. Flores, 507 U.S. 292, 301-302, 123 L. Ed. 2d 1, 113 S. Ct. 1439 (1993); Troxel v. Granville, 530 U.S. 57, 65 ( U.S. , 2000)

^[3]More than 75 years ago, the Court in Meyer v. Nebraska, 262 U.S. 390, 399, 401, 67 L. Ed. 1042, 43 S. Ct. 625 (1923), held that the “liberty” protected by the Due Process Clause includes the right of parents to “establish a home and bring up children” and “to control the education of their own.” Two years later, the Court in Pierce v. Society of Sisters, 268 U.S. 510, 534-535, 69 L. Ed. 1070, 45 S. Ct. 571 (1925),  again held that the “liberty of parents and guardians” includes the right “to direct the upbringing and education of children under their control.” The Court explained in Pierce that “the child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.” 268 U.S. at 535. The Court returned to the subject in Prince v. Massachusetts, 321 U.S. 158, 88 L. Ed. 645, 64 S. Ct. 438 (1944), and again confirmed that there is a constitutional dimension to the right of parents to direct the upbringing of their children, stating “It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.” 321U.S. at 166.  In subsequent cases also, the Court has recognized the fundamental right of parents to make decisions concerning the care, custody, and control of their children. See, e.g., Stanley v. Illinois, 405 U.S. 645, 651, 31 L. Ed. 2d 551, 92 S. Ct. 1208 (1972) (“It is plain that the interest of a parent in the companionship, care, custody, and management of his or her children ‘comes to this Court with a momentum for respect lacking when appeal is made to liberties which derive merely from shifting economic arrangements'” (citation omitted)); Wisconsin v. Yoder

^[4]Troxel v. Granville, 530 U.S. 57, 65-67 ( U.S. , 2000)