Court: Permission Form Did Not Infringe on Parent's First Amendment Rights
John T. Wolohan
There is no question that a school district may, without violating the Fourth Amendment of the United States Constitution, require students to submit to drug tests before allowing them to participate in any extracurricular activities. However, whether a school district can make a child's participation in athletics conditional on the parent's unqualified consent to a school policy that precludes the child from any involvement with drugs and alcohol is another question. That was the issue before the United States District Court for the District of New Jersey in Doe v. Haddonfield Board of Education [2010 U.S. Dist. LEXIS 51666].
The Haddonfield Board of Education adopted a policy addressing the use of drugs and alcohol by middle and high school students. Referred to as the "24/7 Policy," it prohibits students from ever consuming, possessing or distributing drugs or alcohol, or attending any gatherings or activities where the presence of drugs or alcohol is reasonably likely to occur. For those students who violate it, the policy mandates punishments that may include suspension from extracurricular activities or the imposition of counseling or community service.
In the spring of 2010, Jane Doe (as the courts called her) wanted to play lacrosse for her school team. Before being allowed to participate in any extracurricular activity, the board of education required all students to sign a "Student Activities Permission Form," which contained the 24/7 Policy. In addition to the student's signature, the board also required the student's parents to sign the form. However, when John Doe (the student's father) signed and submitted the form, he attached a cover letter in which he explained, in part, that he "believes the 24/7 Policy is illegal and unenforceable but have filled out the form under duress."
The board rejected the form. In particular, the board was concerned that the use of the term "duress" could render the form unenforceable. The board suggested that, instead of duress, Doe use the phrase "reservation of rights," which it felt would still enable both parties to later assert their positions with respect to the policy and the enforceability of the form. Doe rejected the suggestion, and replied that the board of education was coercing him to sign the form, and that he would not agree to be bound by a policy he believed to be illegal. The board then sent Doe a letter explaining that the form he signed "under duress" was invalid and unacceptable, and that Jane Doe would not be permitted to play lacrosse unless John Doe either unconditionally signed a new permission form, rescinded in writing his previous statement, or amended the correspondence to indicate "with full reservation of rights."
Refusing the board's suggestions, Doe filed a complaint in federal court in which he alleged that the board had infringed his First Amendment right to dissent by refusing to accept his permission form and cover letter. Doe sought a preliminary restraining order compelling the board to allow Jane Doe to play with the school's lacrosse team.
Before any court can grant a preliminary injunction, the party seeking the injunction must show: 1) a likelihood of success on the merits; 2) that the party will suffer irreparable harm if the injunction is denied; 3) that granting preliminary relief will not result in even greater harm to the nonmoving party; and 4) that the public interest favors such relief.
In reviewing whether Doe was likely to succeed on his First Amendment claim, the court ruled that notwithstanding the constitutional proscriptions against censoring or coercing speech, the board's conduct in this case did not offend the First Amendment or its guarantees. In particular, the court held that the board's refusal to accept Doe's permission form was not intended to (nor would it) chill, squelch or compel speech. Rather, the court held, the request for Doe's unequivocal consent to the 24/7 Policy was merely a reasonable effort to enforce the policy uniformly as it applies to student-athletes. Barring Jane Doe from playing lacrosse was not imposed by the board as a punishment for or deterrent to Doe's dissent; it was simply a consequence of the policy's mandates, which require parental consent from all student-athletes on the lacrosse team. The board, the court ruled, was entitled to ask of Doe the same thing they asked of all other parents — a legally valid permission form.
In addition, the court noted that Doe had and was continuously offered every opportunity to exercise his constitutional right to free speech. The board did not object to his criticism or disapproval of the policy in his cover letter, even when he characterized the policy as illegal and unenforceable. Nor did it attempt to quell his opposition, offering him the option of qualifying his signature with "full reservation of rights." Instead, the board's only concern was the possible legal ramifications of designating his signature as being written "under duress." Since the board has the right to predicate a student's participation in extracurricular activities on a parent's consent to the enforcement of a reasonable drug and alcohol policy, so long as the board had a rational basis to execute the policy, John Doe would not be likely to prevail on the merits of the case.
Since Doe was unable to show that his First Amendment rights had been violated, the court also ruled that he was unable to show that he would suffer irreparable harm if injunctive relief were denied. With or without an injunction, the court held that Doe could express his opinion of the policy, pursue legislative, administrative and judicial relief, and otherwise challenge the policies of the board of education.
Next, the court weighed the possibilities of harm present in this case. That Jane Doe could not play lacrosse was unfortunate, but as the court noted, it did not represent the loss of a protected interest. Moreover, the court held that any harm to Jane Doe was readily and immediately cured by her father's simple pledge to abide by the collective rules of society applicable to juveniles. On the other hand, the court held that injunctive relief would hinder the board's ability to administer the policy evenhandedly and effectively. Allowing even one student to opt out, the court held, would complicate enforcement and defeat the powerful message the board sought to send to its students and the community.
Finally, the court concluded that the public interest would be best served by not issuing any preliminary relief against the board's efforts to deter illegal drug use and underage drinking. With the court's denial of this motion, the policy will remain in full force and effect, and be applied equally to everyone who participates in Haddonfield sports — including Jane Doe, if she so chooses.
With this ruling, the court sent a powerful message to school districts and local communities that schools have the right to not only test student-athletes for drugs, but also to condition a child's participation on the parent's unqualified consent to a school policy that precludes the child from any involvement with drugs or alcohol. By allowing schools such freedom, the court believes that schools can help protect the health of young athletes from the abuses of drugs or alcohol, and ease the social pressures on them and other student leaders.
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