Fields v. Palmdale School , 447 F.3d 1187 ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAMES FIELDS; TAMMANY FIELDS; 
STUART HABERMAN; ROBERT
HOAGLIN; KATHIE HOAGLIN; No. 03-56499
VANESSA SHETLER, D.C. No.
Plaintiffs-Appellants,
v.  CV-03-00457-JVS
OPINION RE
PALMDALE SCHOOL DISTRICT (PSD); PANEL
MICHAEL GEISSER; ARLAND REHEARING
ATWOOD,
Defendants-Appellees.

Appeal from the United States District Court
for the Central District of California
James V. Selna, District Judge, Presiding
Argued and Submitted
June 2, 2005—Pasadena, California
Opinion Filed November 2, 2005
Petition for Rehearing En Banc Filed November 23, 2005
Filed May 17, 2006
Before: Donald P. Lay,* Stephen Reinhardt, and
Sidney R. Thomas, Circuit Judges.
Per Curiam Opinion
*The Honorable Donald P. Lay, Senior United States Circuit Judge for
the Eighth Circuit, sitting by designation.
5417
FIELDS v. PALMDALE SCHOOL DIST. 5419
COUNSEL
Matthew D. Staver, Erik W. Stanley, Anita L. Staver, Rena
M. Lindevaldsen, and Mary E. McAlister, Liberty Counsel,
Longwood, Florida, for the plaintiffs-appellants.
Dennis J. Walsh, Esq., Douglas Lyon, Esq., Law Offices of
Dennis J. Walsh, APC, Encino, California, for the defendants-
appellees.
OPINION
PER CURIAM:
In light of Appellants’ petition for rehearing en banc and
the amici brief in support thereof, the panel has decided to
consider whether to rehear the matter nostra sponte. We have
unanimously determined not to do so and hereby reaffirm our
decision filed on November 2, 2005. We set forth our reasons
below.
5420 FIELDS v. PALMDALE SCHOOL DIST.
Appellants are parents of schoolchildren in the Palmdale
School District. Their complaint in the district court alleged,
inter alia, that the school district violated their fundamental
right “to control the upbringing of their children by introduc-
ing them to matters of and relating to sex in accordance with
their personal and religious values and beliefs” by administer-
ing a psychological assessment questionnaire containing sev-
eral questions that referred to subjects of a sexual nature. The
district court construed this claim as arising under the Sub-
stantive Due Process Clause of the Fourteenth Amendment
and, pursuant to Federal Rule of Civil Procedure 12(b)(6),
dismissed that cause of action for failure to state a claim upon
which relief could be granted. Fields v. Palmdale Sch. Dist.,
271 F. Supp. 2d 1217, 1220-23 (C.D. Cal. 2003). The parents
appealed the ruling but only on the basis of their substantive
due process claim and their “very similar and overlapping”
privacy right claim. We affirmed, Fields v. Palmdale Sch.
Dist., 427 F.3d 1197 (9th Cir. 2005), holding that Appellants
did not possess, under the Substantive Due Process Clause or
the right to privacy, a constitutional right to limit the informa-
tion that public schools make available to students.1
Less than two weeks after we filed our opinion, Appellants
replaced their California-based counsel with a national orga-
nization located in Florida. Appellants, through their new
counsel, then filed a petition for rehearing en banc. The peti-
tion raises three arguments: (1) “The Complaint Should Not
Have Been Dismissed,” (2) “The Panel Improperly Character-
ized the Parents’ Fundamental Right,” and (3) “The Panel’s
Decision Eviscerates Plaintiffs’ Procedural Due Process
Rights.” We address these arguments in turn.
With respect to the first point, Appellants argue that “the
1
The district court also dismissed without prejudice Appellants’ state
law claims. Fields, 271 F. Supp. 2d at 1224. Appellants did not raise this
issue on appeal, or otherwise appeal from the dismissal of their state
claims.
FIELDS v. PALMDALE SCHOOL DIST. 5421
panel [improperly] dismissed on a Rule 12(b)(6) motion, con-
cluding that, other than treason, the parents have not one con-
stitutional claim — not even due process grounded in state-
recognized rights, or even the Establishment Clause.” Appel-
lants contend that they should at least be allowed to amend
their complaint and present evidence before the panel consid-
ers a motion to dismiss. In an effort to support their argument,
Appellants cite two cases, Citizens for a Responsible Curricu-
lum v. Montgomery County Public Schools, 2005 WL
1075634 (D. Md. May 5, 2005), and Newdow v. U.S. Con-
gress, 328 F.3d 466 (9th Cir. 2003), in which federal courts
have recognized Establishment Clause challenges to the poli-
cies of school districts.
As an initial matter, the panel did not, as the petition
asserts, “dismiss[ ] on a Rule 12(b)(6) motion”; that motion
was heard and granted by the district court. We merely
affirmed the district court’s ruling. Next, Appellants did not
seek leave to amend in the district court, nor did they contend
on appeal that they could have amended the complaint if per-
mitted to do so. Thus to the extent that new counsel now com-
plain that no amendment was permitted, their complaint is
wholly without merit. Similarly, no questions relating to
“state-recognized rights” were presented to us and we ruled
on none. Appellants’ state law claims were not before this
court on appeal. The district court dismissed the state law
claims without prejudice to refiling in state court, and on
appeal Appellants did not raise any issue relating to that dis-
missal. Nor did Appellants assert any federal due process
right “grounded in state-recognized rights.” The only due pro-
cess right presented on appeal was the Meyer-Pierce substan-
tive due process right of parents to make decisions concerning
the upbringing of their children along with the closely related
right to privacy. Also, no First Amendment arguments were
presented on appeal and our opinion expressly reserved all
First Amendment issues. Even Appellants (and their new
counsel) must recognize that in light of the appeal presented
to this Court neither the Free Exercise nor the Establishment
5422 FIELDS v. PALMDALE SCHOOL DIST.
Clause played any part in our holding. Any argument related
to these Clauses must be presented in another case. The first
argument contained in the petition for rehearing en banc is
therefore entirely without merit.
[1] Although it is difficult to discern or interpret Appel-
lants’ second argument, it appears to be that our opinion’s
reliance upon Brown v. Hot, Sexy and Safer Productions, Inc.,
68 F.3d 525 (1st Cir. 1995), was misplaced when we con-
cluded that the parents’ fundamental right “to make decisions
concerning the care, custody and control of their children”
does not override the right of public schools to determine the
nature of the information they make available to their stu-
dents. There can be no doubt that the Due Process Clause
does protect the parents’ right to control their children’s
upbringing. That right was recognized in two leading
Supreme Court cases, Meyer v. Nebraska, 262 U.S. 390(1923), and Pierce v. Society of Sisters, 268 U.S. 510 (1925).
Our opinion does not in any way quarrel with or constrict the
right established by those cases. However, as the Brown court
held and as we explained at length in our opinion, the Meyer-
Pierce right (and the closely related privacy right) does not
include the “right to restrict the flow of information in the
public schools.” Fields, 427 F.3d at 1206 (quoting Brown, 68
F.3d at 533-34). Indeed, parents “do not have a fundamental
[due process] right generally to direct how a public school
teaches their child.” Id. (quoting Blau v. Fort Thomas Pub.
Sch. Dist., 401 F.3d 381, 395 (6th Cir. 2005)). That is the cen-
tral holding of our opinion and no party interested in this case,
including Appellants and amici, has cited any authority hold-
ing otherwise.
Appellants’ third argument, that our opinion “eviscerates
Plaintiffs’ procedural due process rights,” ignores the follow-
ing: (1) Appellants did not raise a procedural due process
claim in the district court, (2) Appellants did not raise a proce-
dural due process claim on appeal, and (3) our opinion did not
address any procedural due process claim. We need do no
FIELDS v. PALMDALE SCHOOL DIST. 5423
more here than state the obvious: We do not address issues
not presented to us, and our failure to do so does not consti-
tute an expression of views as to the merits of any such issues.
Our opinion is straightforward and dutifully applies
Supreme Court and circuit court precedent. It holds simply, as
other courts have held, that parents of public school children
are not possessed of a constitutional right, either under the
Substantive Due Process Clause or the related right to pri-
vacy, to restrict the public schools from providing information
on the subject of sex. No federal court has ever found such a
right in the Substantive Due Process Clause of the Constitu-
tion or in the right to privacy. To hold otherwise would mis-
perceive the nature of the constitutional right at issue.
Our opinion holds in essence that the Constitution does not
afford parents a substantive due process or privacy right to
control through the federal courts the information that public
schools make available to their children. What information
schools provide is a matter for the school boards, not the
courts, to decide. Our holding does not, of course, consider
the limitations that the First Amendment imposes upon the
actions of all government agencies, including school boards.
That issue is not before us. Nor does our decision address any
question of state law, or consider any issues that might be
raised by the parents in state court. Nor, as we stated unequiv-
ocally, does our opinion address the propriety of the school
allowing the survey to be circulated. Finally, our decision
does not affect the rights of parents to influence or change the
conduct of school boards through all lawful means generally
available to citizens of this nation. That is, of course, beyond
the scope of the present proceedings. We consider on this
appeal only the issues presented by the parties initially in the
district court and then to us when we heard the matter as a
three-judge panel. We do not consider on rehearing new
issues previously not raised, briefed or argued. See, e.g.,
Squaw Valley Dev. Co. v. Goldberg, 395 F.3d 1062, 1064 (9th
Cir. 2005).
5424 FIELDS v. PALMDALE SCHOOL DIST.
[2] Accordingly, upon full review, we reaffirm our opinion
with two amendments to the text. To make our holding more
precise we delete the sentence appearing at lines 9-10 of page
15076 of the Slip Opinion (“In sum, we affirm that the Meyer-
Pierce right does not extend beyond the threshold of the
school door.”) and substitute therefor the following: “In sum,
we affirm that the Meyer-Pierce due process right of parents
to make decisions regarding their children’s education does
not entitle individual parents to enjoin school boards from
providing information the boards determine to be appropriate
in connection with the performance of their educational func-
tions, or to collect monetary damages based on the informa-
tion the schools provide.” To remove an ambiguity and to be
more specific, we delete the portion of our opinion that begins
“Here, however, the survey . . .” at line 14 of page 15078 of
the Slip Opinion and ends . . . by the parents in this case.” at
line 25 of the same page, and substitute the following lan-
guage:
Here, however, the survey simply did not interfere
with the right of the parents to make intimate deci-
sions. Indeed, before the survey was conducted the
parents were notified and their consent was sought.
None objected and all but one signed and returned
the consent form. Making intimate decisions and
controlling the state’s dissemination of information
regarding intimate matters are two entirely different
subjects. With respect to the latter, no information of
a private nature — indeed no information at all —
regarding any individuals was disseminated. More-
over, no constitutional provision prohibits the dis-
semination of general information on subjects of
public interest to children or to adults (unless it is the
Establishment or the Treason Clause). Thus, the
right of the parents “to control the upbringing of
their children by introducing them to matters of and
relating to sex in accordance with their personal and
religious values and beliefs” — the right to privacy
FIELDS v. PALMDALE SCHOOL DIST. 5425
here asserted — does not entitle them to prohibit
public schools from providing students with infor-
mation that the schools deem to be educationally
appropriate.
The Opinion filed November 2, 2005, is REAFFIRMED with
the two amendments contained herein.