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Back to January Ed Reporter
Education Reporter
NUMBER 191 THE NEWSPAPER OF EDUCATION RIGHTS JANUARY 2002

C.N. v. Ridgewood Board of Education
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT


NO. 01-1637

C.N., individually and as Guardian Ad Litem of J.N., a minor;
L.M., individually and as Guardian Ad Litem of V.M., a minor;
M.E., individually and as Guardian Ad Litem of J.E., a minor,
Appellants
v.
RIDGEWOOD BOARD OF EDUCATION; FREDERICK J. STOKLEY; JOYCE SNIDER; RONALD VERDICCHIO; ROBERT WEAKLEY; JOHN MUCCIOLO; ANTHONY BENCIVENGA; SHEILA BROGAN
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 00-cv-01072)
District Judge: Honorable Nicholas H. Politan

Argued November 9, 2001
Before: MCKEE, RENDELL, and STAPLETON, Circuit Judges

(Filed: December 10, 2001)


OPINION

Appellants C.N., et al., appeal from a grant of summary judgment in favor of the Ridgewood Board of Education and individually named defendants. C.N. urges that it was inappropriate to grant summary judgment without affording the opportunity to conduct discovery. We agree with C.N.'s contention. We will REVERSE in part and AFFIRM in part, the Order of the District Court, and REMAND for proceedings consistent with this Opinion. Because we are writing solely for the parties who are familiar with the facts and the procedural history, we will focus on the reasons for our decision. Our review of a grant of summary judgment is plenary, and the case is properly before us under 28 U.S.C. § 1291, since it is an appeal from a final judgment.

The District Court granted summary judgment to the Board of Education and to the individual Defendants on their proffered defenses of qualified immunity. Although both statutory and constitutional claims were raised, the District Court's opinion analyzes the statutory claims more closely. There is only one statutory provision before us on appeal, the Protection of Pupil Rights Amendment (P.P.R.A.), 20 U.S.C. § 1232h, which provides that parental consent must be secured prior to requiring students to submit to a survey or testing eliciting responses in any of several enumerated categories.

Under Monell v. Dept. of Social Services of the City of New York, 436 U.S. 658 (1978), § 1983 liability can attach to local governmental units when the allegedly unconstitutional action "implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers." Id. at 690. In order for the Board of Education to be liable for the administration of the survey, the students must have been required to take the survey, and the requirement must have been in compliance with Board policy, not in violation of it.

In determining that there could be no liability as to the Board, the District Court equated a letter submitted by the Superintendent of Schools that informed parents approximately two months prior to the survey's administration that the survey would be administered voluntarily and anonymously with "Board policy." The Court reasoned that because the Board policy was that the survey be voluntary, it was not "required" as specified in the statute, and the Board had not violated the students' rights. Yet, the record reveals that the Superintendent is a non-voting member of the Board. A different Board member, Sheila Brogan, was actually assigned to the community group responsible for the survey. C.N. did not have the opportunity to depose her, nor to depose the remaining Board members to determine their understanding of Board policy. On summary judgment, it is initially the burden of the moving party — as to Board policy, the Board of Education — to demonstrate that there are no genuine issues of material fact, and that there are no unexplained gaps in the material facts presented. Ideal Dairy Farms, Inc. v. John Labatt, Ltd., 90 F.3d 737, 743 (3d Cir. 1996). The party opposing summary judgment must then come forward and demonstrate by specific facts that there is a genuine issue for trial. Id. We have two problems with the District Court's grant of summary judgment as to the Board. First, the letter from the Superintendent does not conclusively establish Board policy. Second, even if the letter is probative as to the Board policy, C.N. never had the opportunity to challenge or probe through discovery what was offered as, and what actually was, the Board's policy.

C.N. repeatedly sought discovery. The Magistrate judge sua sponte foreclosed discovery initially and, despite repeated requests, the Court never permitted discovery to proceed. Because in order to withstand a Motion for Summary Judgment the non-moving party must demonstrate at a minimum sufficient evidence to demonstrate a genuine issue of fact (see, e.g., Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986)), and the evidence was not within plaintiff's control absent limited discovery, it was necessary for C.N. to have discovery in order for the Court adequately to weigh the propriety of a grant of summary judgment in favor of the Board. Consonant with the provisions of Fed. R. Civ. P. 56(f), the attorney for C.N. submitted an Affidavit explaining why C.N. needed discovery in order to withstand the Motion for Summary Judgment. App. at 287-89. In Anderson, 477 U.S. at 250 n.5, the Supreme Court noted that Rule 56(f) provides that "summary judgment be refused where the non-moving party has not had the opportunity to discover information that is essential to his position." Id. The burden on the non-moving party is thus premised on the assumption that "both parties have had ample opportunity for discovery." Id. On the facts before us, it was premature to grant summary judgment without allowing at least limited discovery.

The District Court granted summary judgment as to the remaining individual defendants based primarily on qualified immunity. Throughout its opinion, the District Court focused on the voluntary nature of the survey to support the grant of qualified immunity. However, the narrow issue of whether the survey was in fact "required" is actually a disputed fact issue based on the record. Affidavits from students, and the narrative of a conversation between a parent and one of the building principals, indicate that at least some of the students were not informed that the survey was voluntary, and that the circumstances that surrounded the administration of the survey were — given the nature of the school setting — sufficient to infer that those students were required to take the survey. Given this factual dispute, summary judgment should not have been granted on this basis. If a jury would find that the students were actually required to take the survey, then the District Court would have to address the further question in the qualified immunity analysis as to whether a teacher or principal in this setting would have reasonably understood that the survey was being administered in violation of the law. The facts that would inform these issues have not been the subject of discovery.

Qualified immunity, in the often repeated rhetoric of the Supreme Court, provides that "government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 817-18 (1982). The precise act in question need not have been previously held unlawful, but the "contours of the right must be sufficiently clear" that a reasonable official performing the duties of the defendant would be on notice that his actions violated that right. Gruenke v. Seip, 225 F.3d 290, 299 (3d Cir. 2000).

While the Supreme Court has recognized that part of the purpose of the Harlow standard was to prevent unnecessary discovery, it has also acknowledged that not all defenses of qualified immunity can be properly disposed of on summary judgment without at least limited discovery. Crawford-El v. Britton, 523 U.S. 574, 593 (1998). We believe that in these narrow circumstances, where the questions of law as to the applicability of the statute and the actions and knowledge of the principals and teachers as to the nature of the survey are fact-bound, discovery would be appropriate, if not essential. Even without discovery, the record reveals, for example, the survey materials that were furnished to the School District (and invoiced to the Board) included copies of the P.P.R.A. Both sides agree, and did not disagree before the District Court, that the survey was purchased at least in part with federal grant funds. In the job descriptions attached for the individual defendants, several had responsibility for implementing state and federal laws, for grant administration and oversight, and for other areas in which they would be expected to have known of the statutes and regulations. Whether the entire packet of survey materials were provided to each of the individual defendants, and whether each defendant was aware that the survey had been purchased with grant funds and whether compliance with the P.P.R.A. was required by the terms of the grant is a question of fact that should not be disposed of in favor of the individual defendants on summary judgment without discovery.

In addition to its qualified immunity analysis, the District Court dismissed C.N.'s constitutional and statutory claims on their merits. As in the qualified immunity analysis above, C.N. should have the opportunity to argue the merits of the violation of the P.P.R.A. after being permitted to engage in discovery. The District Court's ruling on the merits was premature. C.N. also raised several constitutional claims. We agree with the District Court that, as a matter of law, C.N. has failed to allege a violation of the Fifth Amendment protection against compelled self-incrimination. Under our standard enunciated in Fraternal Order of Police Lodge No. 5 v. City of Philadelphia, 859 F.2d 276, 282-83 (3d Cir. 1988), compulsion in the Fifth Amendment context has an accepted meaning. In order for self-incrimination to be compelled, there must be a coercion that attaches significant penalties to non-compliance. While we did not define what the lower threshold of such threat would be in Fraternal Order of Police, we did note there that neither the parties nor we had found an "action short of firing that an employer could take that could constitute compulsion within the meaning of the fifth amendment. . . ." Id. at 283 and n.6. Here it was alleged that some students were informed that they would have been assigned unexcused absence had they not reported to take the survey. Like the alleged denial of promotion in Fraternal Order of Police, the harm that would result from compliance with the process is insufficient to constitute coercion within the meaning of the Fifth Amendment. Id.

We are not, however, prepared to say that C.N. could not, as a matter of law, establish any set of facts which would demonstrate violations of the other constitutional rights asserted. We believe that a conclusion as to the contours of these guarantees is specific to the factual setting and should be reached after discovery.

For the reasons cited above, we will AFFIRM the District Court's dismissal of C.N.'s Fifth Amendment self-incrimination claim, but REVERSE the remaining aspects of the District Court's Order and REMAND to the District Court for proceedings consistent with this Opinion.

TO THE CLERK OF COURT:
Please file the foregoing Unreported-
Not Precedential Opinion.

/s/Marjorie O. Rendell
Circuit Judge


 
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