                                                                                                                           Opinions of the United
2000 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-21-2000

Gruenke v. Seip
Precedential or Non-Precedential:

Docket 98-2041




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Filed August 21, 2000

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 98-2041

JOAN GRUENKE, Individually and as
parent and natural guardian of
Leah Gruenke, a minor,

       Appellant

v.

MICHAEL SEIP

Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Action No. 97-cv-05454)
District Judge: Honorable Franklin S. VanAntwerpen

Argued September 9, 1999

Before: ROTH and WEIS, Circuit Judges
SHADUR,1 District Judge

(Opinion filed August 21, 2000)

Richard J. Orloski, Esquire (Argued)
Orloski, Hinga & Pandaleon
111 North Cedar Crest Boulevard
Allentown, PA 18104

 Attorney for Appellant



_________________________________________________________________
1. Honorable Milton I. Shadur, United States District Court Judge for the
Northern District of Illinois, sitting by designation.
       Richard A. Polachek, Esquire
        (Argued)
       Polachek, Pecile & Smith
       320 South Pennsylvania Boulevard
       Suite 394
       Wilkes-Barre, PA 18701

        Attorney for Appellee

OPINION OF THE COURT

ROTH, Circuit Judge

Emmaus High School swim team coach, Michael Seip,
suspected that team member, Leah Gruenke, was pregnant.
Despite Leah's repeated denials of pregnancy, Seip allegedly
required Leah to take a pregnancy test. Leah and her
mother, Joan, have now sued Seip under 42 U.S.C.S 1983,
claiming that the pregnancy test, and the actions
surrounding it, constituted an illegal search in violation of
Leah's Fourth Amendment rights, unconstitutionally
interfered with Joan and Leah's right to familial privacy,
violated Leah's right to privacy regarding personal matters,
and violated Leah's right to free speech and association
protected by the First Amendment. In their suit, Joan and
Leah also made claims under Pennsylvania tort law.

The District Court granted summary judgment in favor of
Seip on the S 1983 claims on the basis of qualified
immunity and dismissed the Gruenkes' state law claims
without prejudice.

For the reasons stated below, we affirm the District
Court's grant of summary judgment with respect to the
"familial right to privacy" and the free speech and
association claims. We reverse and remand, however, with
respect to the Fourth Amendment and "privacy regarding
personal matters" claims. Because that reversal restores
the case to the District Court's docket, we reverse and
remand its dismissal of the Pennsylvania state tort claims.

                                2
I.

A.

Seventeen year-old Leah Gruenke was an eleventh grader
at Emmaus High School and a member of the varsity swim
team. In January of 1997, Michael Seip, the varsity swim
coach, began to suspect that Leah was pregnant. At swim
practice, Seip observed that Leah was often nauseated,
made frequent trips to the bathroom, and complained
about having a low energy level. In addition, Leah's body
was "changing rapidly." In February of 1997, Seip asked his
assistant swim coach, Kim Kryzan, who also had observed
the changes in Leah's behavior and physical appearance, to
approach Leah to discuss the possibility that Leah was
pregnant. Although the exact content of this discussion is
not clear, Leah refused to volunteer any information; she
denied that she was pregnant and refused to acknowledge
she had had sex with her boyfriend. Shortly after the
discussion between Leah and Kim Kryzan, Seip approached
Leah and attempted to discuss sex and pregnancy with her.
When questioned by Seip, Leah again emphatically denied
that she was pregnant.

Meanwhile, other members of the swim team began to
suspect that Leah was pregnant. Leah, however, denied the
possibility, claiming that she had never had sexual
intercourse. Leah refused to acknowledge that she might be
pregnant because she felt that her condition was nobody's
business.

Leah was also approached by a school guidance
counselor, at Seip's request, and by the school nurse. Both
the guidance counselor and the nurse attempted to discuss
with Leah the possibility of pregnancy, but Leah again
denied the possibility, refusing to volunteer any
information.

During this time, the mothers of other swim team
members also began to suspect Leah's possible pregnancy
and discussed this hunch with Seip. At least one of the
mothers suggested that Leah should take a pregnancy test.
Eventually, Lynn Williams, a mother of a swim team
member, purchased a pregnancy test and gave it to Seip.

                                3
He reimbursed Williams for the test and kept it at the
school.

On March 5, 1997, Leah was approached by two fellow
swim team members, Abby Hochella and Kathy Ritter, who
suggested that Leah take a pregnancy test to clear her
name. Leah refused, stating that she would not take a test
unless everyone on the team took a test. The next day,
Leah was again approached by Hochella and Ritter. At this
point, there is some conflict in the stories. Leah alleges that
Ritter and Hochella told her that they still had the
pregnancy test kit, given to them by Seip, and that Seip
wanted her (Leah) to take the test. Ritter and Hochella,
however, recount a different version, claiming that they
merely told Leah that Seip had a pregnancy test if Leah
wanted to take it. Similarly, Seip contends that he did not
encourage Leah to take the test nor did he try to get
Hochella and Ritter to persuade Leah to take a pregnancy
test. He acknowledges, however, telling Hochella and Ritter
that if Leah were his friend, he would ask her to take a
pregnancy test.

Following this second attempt to convince Leah to take a
pregnancy test, Leah wrote a letter to Seip (which he
apparently never read) stating that Seip had no right to
make her take a pregnancy test, that she was not showing
any symptoms of being pregnant, and that she had never
had sexual intercourse. According to Leah, she also told
Ritter and Hochella, in an attempt to get them to stop
bothering her, that she could not be pregnant because she
had never had sexual intercourse.

That same day, despite rejecting their earlier attempts,
Leah was again approached by Ritter and Hochella.
According to Leah, Ritter and Hochella claimed that unless
Leah took the pregnancy test, Seip would take her off the
relay team. Hochella, however, contends that she and Ritter
tried to convince Leah to take the test by suggesting that a
negative test result would resolve speculation about her
condition. Ritter and Hochella further contend that Leah
ultimately approached them and volunteered to take the
pregnancy test.

Ritter, Hochella, and another member of the swim team,
Sara Cierski, were all present when Leah finally took the

                               4
first pregnancy test. The test was positive. Cierski
suggested that Leah take another test. Cierski, Ritter, and
Hochella then went to the school parking lot where they got
money from their parents to purchase two additional
pregnancy tests. Leah drove with Hochella and Ritter to
purchase the pregnancy test kits. Leah took both tests;
both were negative.

Later that night, Leah recounted the events of the day to
her mother, who was very upset. Hochella called Leah that
evening and suggested that Leah take another pregnancy
test. Hochella also told Leah that Hochella's mother would
be willing to take Leah to the doctor to determine with
certainty whether Leah was pregnant. Leah got up early the
next morning and went to school where she took a fourth
pregnancy test, purchased this time by Hochella and her
mother. Ritter and Hochella were with Leah in the school
locker room when she took the test. Again, the test was
negative.

After learning of the positive test result, Seip asked
assistant swim coach Dr. Meade, an orthopedist, whether
in his medical opinion it was acceptable for a pregnant
swimmer to compete on the team. Dr. Meade advised Seip
that swimming would not endanger Leah's pregnancy.
Based on this advice, Seip decided that there was no
medical reason to prevent Leah from competing on the
team. The District Court found that beyond consulting a
school guidance counselor and his assistant coaches, Seip
did not attempt to talk directly to Leah's parents or to
inform a higher level of the school's administration that
Leah was pregnant. The District Court further found that
Leah continued to deny the possibility that she was
pregnant until she was examined by Dr. Greybush, on
March 10, 1997, at an appointment scheduled by her
mother. There, Leah ultimately learned that she was almost
six months pregnant. Even then, Leah did not reveal to
anyone else on the swim team or at school that she was
pregnant because she wanted to compete in the state swim
tournament. Eventually, however, Leah's teammates, their
parents, and Leah's mother learned that Leah was indeed
pregnant.

                                5
The Gruenkes allege that after Leah's baby was born,
Seip tried to alienate Leah from her peers. Specifically, Leah
testified that after she quit the private swim team that Seip
also coached, Seip told members of his team not to sit with
Leah during swim meets. Moreover, Leah asserts that
during her last year of high school, Seip refused to speak
to her and retaliated against her by taking her out of
several swim meets.

B.

On August 26, 1997, Joan Gruenke, for herself and on
her daughter's behalf, filed suit under 42 U.S.C.S 1983 and
state tort law, 42 Pa. Cons. Stat. S 8550, et. seq., in U.S.
District Court for the Eastern District of Pennsylvania. The
Gruenkes allege that their rights under the Constitution
and Pennsylvania state tort law were violated when Seip
required Leah to take a pregnancy test.

The Gruenkes subsequently amended their complaint on
November 4, 1997, alleging that the required pregnancy
test (1) constituted an illegal search in violation of Leah's
Fourth Amendment rights, (2) violated Joan and Leah's
right to familial privacy, (3) violated Leah's right to privacy
regarding personal matters, (4) violated Leah's right to free
speech and association protected by the First Amendment,
and (5) violated Joan and Leah's rights under state tort law.

On September 4, 1998, Seip moved for summary
judgment claiming qualified immunity. The District Court
granted Seip's motion for summary judgment on the
Gruenkes' S 1983 claims, holding that Seip was entitled to
qualified immunity either because he had not violated any
clearly established constitutional rights, or alternatively,
that the Gruenkes' claims did not give rise to the violation
of a constitutional right, clearly established or otherwise.
See Gruenke v. Seip, 1998 WL 734700, at *8-*15 (E.D. Pa.
October 21, 1998). In so holding, the District Court did not
reach the merits of Leah's various constitutional claims.
The District Court then dismissed the state tort law claims
for lack of subject matter jurisdiction. On November 9,
1998, the Gruenkes appealed the District Court's decision.

                               6
II.

The District Court had subject matter jurisdiction over
the Gruenkes' S 1983 claims pursuant to 28 U.S.C. S 1331,
and over their state tort law claims under 28 U.S.C.S 1367.
We have appellate jurisdiction over the Gruenkes' claims
under 28 U.S.C. S 1291. Our review of the District Court's
disposition of a S 1983 case on summary judgment alleging
qualified immunity is plenary:

       [We] review the district court's summary judgment
       determination de novo, applying the same standard as
       the district court. . . . [I]n all cases[,] summary
       judgment should be granted if, after drawing all
       reasonable inferences from the underlying facts in the
       light most favorable to the non-moving party, the court
       concludes that there is no genuine issue of material
       fact to be resolved at trial[,] and the moving party is
       entitled to judgment as a matter of law.

Kornegay v. Cottingham, 120 F.3d 392, 395 (3d Cir. 1997)
(quoting Spain v. Gallegos, 26 F.3d 439, 446 (3d Cir.
1994)).

III.

Section 1983 imposes civil liability upon any person who,
acting under the color of state law, deprives another
individual of any rights, privileges, or immunities secured
by the Constitution or laws of the United States. This
section does not create any new substantive rights but
instead provides a remedy for the violation of a federal
constitutional or statutory right. See Baker v. McCollan,
443 U.S. 137, 144 n.3 (1979) ("[S]ection[1983] is not itself
a source of substantive rights, but a method for vindicating
federal rights elsewhere conferred by those parts of the
United States Constitution and federal statutes that
[section 1983] describes."). To state a claim under S 1983,
a plaintiff must show that the defendant, through conduct
sanctioned under the color of state law, deprived her of a
federal constitutional or statutory right. See Morse v. Lower
Merion Sch. Dist., 132 F.3d 902, 907 (3d Cir. 1997) (citing
Parratt v. Taylor, 451 U.S. 527, 535 (1981), overruled on
other grounds, Daniels v. Williams, 474 U.S. 327 (1986)).

                               7
In a typical S 1983 action, a court must initially
determine whether the plaintiff has even alleged the
deprivation of a right that either federal law or the
Constitution protects. See Baker, 443 U.S. at 140 ("The
first inquiry in any S 1983 suit . . . is whether the plaintiff
has been deprived of a right `secured by the Constitution
and laws.' "). As the Supreme Court recently emphasized,
when the defendant in a S 1983 action claims qualified
immunity, our first task is to assess whether the plaintiff 's
allegations are sufficient to establish the violation of a
constitutional or statutory right at all. See, e.g., Conn v.
Gabbert, 526 U.S. 286, 290 (1999); County of Sacramento v.
Lewis, 523 U.S. 833, 841 n.5 (1998).

If the plaintiff 's allegations meet this threshold, we must
next determine whether, as a legal matter, the right that
the defendant's conduct allegedly violates was a clearly
established one, about which a reasonable person would
have known. If so, then the defendant is not entitled to
qualified immunity. If, in contrast, the plaintiff 's allegations
fail to satisfy either inquiry, then the defendant is entitled
to summary judgment. Until the question of qualified
immunity is addressed, a court cannot reach the
underlying merits of the case. See Harlow v. Fitzgerald, 457
U.S. 800, 813-20 (1982); see also Siegert v. Gilley, 500 U.S.
226, 232 (1991) ("One of the purposes of immunity,
qualified or absolute, is to spare a defendant not only
unwarranted liability but unwarranted demands
customarily imposed upon those defending a long drawn
out lawsuit."); Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)
("The entitlement is an immunity from suit rather than a
mere defense to liability . . . and . . . is effectively lost if a
case is erroneously permitted to go to trial.").

In the seminal qualified immunity case, Harlow v.
Fitzgerald, 457 U.S. 800 (1982), the Supreme Court
articulated the oft-quoted legal standard for analyzing a
qualified immunity defense: "[G]overnment 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, 457 U.S. at 818. In analyzing a claim for qualified

                               8
immunity, then, a court must deny the claim if the law is
clearly established, "since a reasonably competent public
official should know the law governing his conduct" unless
he can either demonstrate extraordinary circumstances or
that he "neither knew nor should have known" about the
legal right in question. Id. at 818-19.

Anderson v. Creighton, 483 U.S. 635 (1987), clarified the
Harlow standard in two key ways that bear on our analysis
of Seip's claim for qualified immunity. First, Anderson held
that, whether a government official asserting qualified
immunity could be held personally liable for conduct that
allegedly violated a constitutional or statutory violate
depended on the "objective legal reasonableness" of the
action. Id. at 639. Under this standard, government officials
are shielded from civil liability not based on their subjective
understanding of the law but only "as long as their actions
could reasonably have been thought consistent with the
rights they are alleged to have violated." Id. Second,
Anderson defined more specifically the meaning of a "clearly
established right":

       The contours of the right must be sufficiently clear that
       a reasonable official would understand that what he is
       doing violates that right. This is not to say that an
       official action is protected by qualified immunity unless
       the very action in question has been previously held
       unlawful, but it is to say that in the light of pre-
       existing law the unlawfulness must be apparent.

Anderson, 483 U.S. at 639. In sum, an official will not be
liable for allegedly unlawful conduct so long as his actions
are objectively reasonable under current federal law. See
Malley v. Briggs, 475 U.S. 335, 341 (1986) (observing that
"all but the plainly incompetent or those who knowingly
violate the law" are protected by qualified immunity).

The evaluation of a qualified immunity defense is
appropriate for summary judgment because the court's
inquiry is primarily legal: whether the legal norms the
defendant's conduct allegedly violated were clearly
established. See Mitchell, 472 U.S. at 528. Nevertheless,
some factual allegations, such as how the defendant acted,
are necessary to resolve the immunity question. See id. We

                                9
have phrased the inquiry for granting qualified immunity in
terms of the defendant's conduct:

       [I]t is not sufficient that the right at issue be clearly
       established as a general matter. Rather, the question is
       whether a reasonable public official would know that
       his or her specific conduct violated clearly established
       rights.

Grant v. City of Pittsburgh, 98 F.3d 116, 121 (3d Cir. 1996)
(citing Brown v. Grabowski, 922 F.2d 1097, 1111 (3d Cir.
1990)). We also noted in Grant that this admittedly fact-
intensive analysis must be conducted by viewing the facts
alleged in the light most favorable to the plaintiff. See
Grant, 98 F.3d at 122 (discussing inquiry on appeal of
denial of qualified immunity). Finally, when qualified
immunity is denied, any genuine disputes over the material
facts are remanded, to be settled at trial.

With this framework in mind, we will analyze each of the
Gruenkes' claims in turn.

A. Fourth Amendment

The Gruenkes argue that the pregnancy test taken by
Leah that was allegedly administered by or at the behest of
Seip constituted an illegal search under the Fourth
Amendment. As the District Court correctly noted, a school
official's administration of a pregnancy test to a student
"clearly constitutes a search within the meaning of the
Fourth Amendment." Gruenke, 1998 WL 734700, at *7. It
foundered, however, on whether her right to be free from
this type of search was clearly established.

Although the District Court analyzed Leah's claim within
the proper legal framework governing Fourth Amendment
searches of athletes in public schools, see id. , it misapplied
the qualified immunity framework to her claim when it
failed to heed Anderson's caveat that the specific official
conduct need not have been previously deemed unlawful.
Instead, the District Court reasoned that, because the
question of whether the administration by a school official
of a pregnancy test to a student was one of first impression,
Leah's right to be free from the search was not clearly
established:

                               10
       We decline to decide today whether a Fourth
       Amendment violation may be established by the facts
       in this case. We merely wish to indicate that as in
       Anderson II, we cannot say that the right allegedly
       violated has been clearly established by prior law.
       Anderson v. Creighton, 483 U.S. 635, 639-40 (1987).
       Taking the Plaintiffs' assertions as true for the
       purposes of this motion, we certainly do believe the
       Defendant's conduct was questionable and wonder why
       he failed to discreetly refer any concerns about Leah
       Gruenke directly to her parents or to higher levels of
       the school administration. Indeed, without the qualified
       immunity issue, we might well find that material issues
       of fact exist as to whether the Defendant violated
       Plaintiffs' fourth amendment rights. However, as a
       matter of law, we cannot say that the law on this issue
       has been clearly established, and therefore must hold
       that the Defendant is entitled to qualified immunity on
       this fourth amendment claim.

Id. at *8. This conclusion is wrong. Merely because the
Supreme Court has not yet ruled on whether a school
official's administration of a pregnancy test to a student
violates her Fourth Amendment rights does not mean the
right is not clearly established. Moreover, a review of
current Fourth Amendment law in the public school context
reveals not only that the right is clearly established, but
also that Seip's conduct as alleged was objectively
unreasonable.

We turn first to the question of whether Leah's right to
refuse to submit to the pregnancy test was clearly
established. The Fourth Amendment of the Constitution
protects individuals from unreasonable searches and
seizures by the government, see U.S. Const., Amend. IV,
and this prohibition against unreasonable governmental
intrusions extends to state public school officials as well.
See New Jersey v. T.L.O., 469 U.S. 325, 336-37 (1985).
Whether a search is unconstitutional depends on its
reasonableness. Although probable cause is the common
touchstone for reasonableness in criminal contexts, in
other circumstances, there may be "special needs" that
make probable cause impracticable. See id. at 341
(requiring individualized suspicion).

                               11
The public school context is one of those settings. Thus,
reasonableness is determined by balancing the
government's interest against the individual's expectation of
privacy. In the public school context, students have a
reduced expectation of privacy when compared with the
public at large. See Vernonia Sch. Dist. 47J v. Acton, 515
U.S. 646, 656-57 (1995) (holding randomly testing student
athletes for drugs satisfies Fourth Amendment). Student
athletes, because they not only submit to "suiting up" in
communal locker rooms, but also frequently agree to follow
certain regulations, such as taking physical exams and
acquiring insurance, have an even lower expectation of
privacy than their fellow students who do not play sports.
See id. at 657.

The nature of the intrusion must also be considered
when determining whether the search is unreasonable. A
urinalysis test, like the one conducted for drugs in
Vernonia, is clearly intrusive because it reveals personal
information but can be made less so by having students
take it in private, tailoring it so that it tests only for drugs,
and limiting the disclosure of the information it reveals. See
id. at 658. Finally, the government's interest in the search
must be balanced against the intrusion. This interest must
be compelling, one that is "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 660.

We believe that the standard set forth in Vernonia clearly
establishes that a school official's alleged administration to
a student athlete of the pregnancy tests would constitute
an unreasonable search under the Fourth Amendment.
Although student athletes have a very limited expectation of
privacy, a school cannot compel a student to take a
pregnancy test absent a legitimate health concern about a
possible pregnancy and the exercise of some discretion.
This is not to say that a student, athlete or not, cannot be
required to take a pregnancy test. There may be unusual
instances where a school nurse or another appropriate
school official has legitimate concerns about the health of
the student or her unborn child. An official cannot,
however, require a student to submit to this intrusion

                               12
merely to satisfy his curiosity. While it might be shown at
trial that the facts are more favorable to Seip, we cannot
say, as a matter of law, that his conduct as alleged by the
Gruenkes did not violate a clearly established constitutional
right.

Nor do we consider Seip's alleged conduct to have been
reasonable under this standard. The requirement that an
official's conduct be objectively reasonable casts a wide net
of protection to most officials but it does not insulate all
official conduct. See Harlow, 457 U.S. at 819 ("[Qualified
immunity . . . provide[s] no license to unlawful conduct.").
When the defendant violates a clearly established right
about which a reasonable person would have known, he is
not entitled to qualified immunity. See, e.g., Parkhurst v.
Trapp, 77 F.3d 707, 712-13 (3d Cir. 1996); Simmons v. City
of Philadelphia, 947 F.2d 1042, 1088-89 (3d Cir. 1991).
Even if the right is clearly established, officials will not be
held liable if they were "acting reasonably in good-faith
fulfillment of their responsibilities." Wilson v. Schillinger,
761 F.2d 921, 929 (3d Cir. 1985); see also Hynson v. City
of Chester, 827 F.2d 932, 933 (3d Cir. 1987) (same). Public
school officials have the same guarantee. Qualified
immunity "must be such that public school officials
understand that action taken . . . within the bounds of
reason under all circumstances will not be punished and
[those officials] need not exercise their discretion with
timidity." Wood v. Strickland, 420 U.S. 308, 321 (1975)
(emphasis added).

However, under current precedent, we cannot say that
Seip's conduct passes this objective test. Here, the swim
coach, an individual without any medical background,
allegedly forced Leah to take a pregnancy test. His
responsibilities can be reasonably construed to include
activities related to teaching and training. They cannot be
extended to requiring a pregnancy test. Moreover, a
reasonable swim coach would recognize that his student
swimmer's condition was not suitable for public
speculation. He would have exercised some discretion in
how he handled the problem. Seip, however, has offered no
explanation that could justify his failure to respect the
boundaries of reasonableness.

                               13
We hold, therefore, that Seip is not entitled to qualified
immunity from Leah's Fourth Amendment, S 1983 claim,
because Seip should have reasonably known that his
conduct would violate a clearly established right. For this
reason, we reverse the District Court's grant of summary
judgment with respect to Leah's Fourth Amendment claim
and remand this claim to the District Court.2

B. Substantive Due Process

1. Right to Privacy

The Gruenkes next argue that Seip violated Leah's
substantive due process right to privacy. In evaluating the
Gruenkes' claim, the District Court analyzed two lines of
relevant Supreme Court cases: (1) cases implicating an
individual's interest in independence when making certain
decisions; and (2) cases implicating an individual's interest
in avoiding disclosure of personal matters. See Gruenke,
1998 WL 734700, at *11. The District Court first decided
that the Gruenkes' claim did not fall under thefirst line of
cases, because Leah's decision-making with respect to a
fundamental right had not been impaired. See id.

With respect to Leah's other substantive due process
claim, the right to keep certain personal matters private,
however, the District Court acknowledged that "[t]he Third
Circuit has clearly recognized that private medical
information is `well within the ambit of materials entitled to
privacy protection' " under the substantive due process
clause. Id. (citing United States v. Westinghouse Electric
Corp., 638 F.2d 570, 577 (3d Cir. 1980)). The District Court
concluded, however, that because the Third Circuit"ha[d]
not yet addressed the compelled disclosure by a school
official of a student's health records," the right to be free
from such disclosure was not a clearly established one.
Gruenke, 1998 WL 734700, at *12. In arriving at this
_________________________________________________________________

2. In so holding, we leave for another day the question of whether, under
facts otherwise analogous to those presented today, an appropriate
school official would be entitled to qualified immunity for requiring a
pregnancy test under Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646
(1995).

                               14
outcome, the District Court reasoned that, although the
"[p]laintiffs [sic] claim does . . . fall under the right to be
free from disclosure of personal matters, . . . .[w]ithout any
cases where some factual correspondence exists with the
present case, . . . this court must conclude that there is no
relevant clearly established law and that the Defendant is
entitled to qualified immunity." Id.

As it did in analyzing Leah's Fourth Amendment claim,
the District Court misconstrued the test for determining
whether an allegedly violated right is clearly established. As
we stated above, the test is not whether the current
precedents protect the specific right alleged but whether the
contours of current law put a reasonable defendant on
notice that his conduct would infringe on the plaintiff 's
asserted right. See Anderson, 483 U.S. at 639. Leah's claim
not only falls squarely within the contours of the recognized
right of one to be free from disclosure of personal matters,
see Whalen v. Roe, 429 U.S. 589, 599-600 (1977), but also
concerns medical information, which we have previously
held is entitled to this very protection. See Westinghouse
Electric Corp., 638 F.2d at 577. While the preservation of
this right must be balanced with factors such as concerns
for public health in the work environments, see Doe v.
Southeastern Pa. Transp. Auth., 72 F.3d 1133, 1139 (3d
Cir. 1995), Leah's version of the facts satisfies this test.
While it may prove, at trial, that her facts misstate the
case, that possibility does not entitle Seip to qualified
immunity at the summary judgment stage.

We are also concerned by the District Court's assertion
that "[e]ven considering the facts in a light most favorable
to the Plaintiffs, it is . . . highly uncertain that Leah
Gruenke's test information was in fact confidential or that
its disclosure was compelled by the Defendant." Id.
(emphasis added). The District Court's characterization as
"highly uncertain" of the likelihood that Leah's test
information was confidential or that its disclosure was
compelled by Seip belies its grant of summary judgment. If,
as Leah alleges, the information about her pregnancy tests
was confidential,3 and Seip compelled Leah to take the
_________________________________________________________________

3. As the District Court noted, it is at best unclear whether Leah's
pregnancy was actually "confidential"; her condition may have been
readily observable to the public because of her physical appearance. See
Gruenke, 1998 WL 734700, at *12.

                               15
tests, his alleged failure to take appropriate steps to keep
that information confidential, by Seip's having Leah's
teammates administer the test and by his discussing the
test results with his assistant coaches, could infringe
Leah's right to privacy under the substantive due process
clause. This type of conduct is not objectively reasonable
under current law and does not entitle Seip to immunity
from suit. Moreover, Leah's testimony creates genuine
issues of material fact, which make the District Court's
grant of summary judgment inappropriate. We therefore
reverse the District Court's grant of summary judgment
with respect to Leah's right to privacy claim and remand
this claim to the District Court.

2. Right to Familial Integrity4

The Gruenkes also argue that Seip violated their
substantive due process right to be free from state
interference with family relations. While acknowledging that
"the Supreme Court has clearly recognized a fundamental
liberty interest in familial integrity and privacy," the District
Court held that the Gruenkes' claim that Seip violated
Leah's right to familial privacy and Joan's right to influence
and guide her daughter during her pregnancy did not rise
to the level of a constitutional violation, or, even if it did,
the constitutional right in question was not clearly
established. Gruenke, 1998 WL 734700, at *11. As such,
the District Court granted Seip's motion for summary
judgment, concluding that the Gruenkes' failure to
establish the violation of a clearly established constitutional
right on either basis meant that Seip was entitled to
qualified immunity. Although we ultimately agree that Seip
is entitled to qualified immunity, we disagree with the
District Court's reasoning.

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 (1996), "[c]hoices
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
_________________________________________________________________

4. Part III.B.2 represents the views of Judges Weis and Shadur only.
Judge Roth's views are set forth in a separate concurring opinion.

                                  16
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 (1982), the Court
pointed out that "[t]he 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 (1981)) (some internal quotes omitted).

In Troxel v. Granville, No. 99-138, 2000 WL 712807 (U.S.
June 5, 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." Id. at *5. That case reaffirmed
the validity of such long-standing precedents as Meyer v.
Nebraska, 262 U.S. 390, 401 (1923) (right of parents to
control education of their children), Pierce v. Society of
Sisters, 268 U.S. 510, 534-35 (1925) (right to direct
upbringing and education of children), and Prince v.
Massachusetts, 321 U.S. 158, 166 (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 (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

                               17
(1995). For some purposes, then, "school authorities act[ ]
in loco parentis." Bethel Sch. Dist. v. Fraser, 478 U.S. 675,
684 (1986). But see New Jersey v. T.L.O., 469 U.S. 325,
336-37 (1985) (school authorities are not merely parental
surrogates but also exercise public authority for Fourth
Amendment purposes.).

Thus, there 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
(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 (1984), "[t]he Court has long recognized that,
because the Bill of Rights is designed to secure individual
liberty, it must afford the formation and preservation of

                               18
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.

In December 1996, Leah's father commented to Seip that
Leah's racing times had increased. Seip said that she
appeared to be heavier in the water. Even though he had
suspicions, he made no comment to Leah's father about
possible pregnancy at that time or in the following month
in a subsequent discussion.

In January 1997, the parents arranged for Leah to have
a medical examination because of her decreased stamina
and slower racing times. A physician diagnosed a vitamin
deficiency and prescribed dietary supplements. Her
examination did not reveal the pregnancy, although no
pregnancy test was administered. The physician said that
additional tests would be required to definitively rule it out.
Leah declined the additional tests because, based on her
previous health history, her symptoms did not indicate
pregnancy.

                               19
Leah and her mother discussed the possibility of
pregnancy at that time, but took no further steps then.
Mrs. Gruenke also discussed Leah's condition with a nurse
friend, who also suggested a vitamin deficiency. The
parents testified that Leah was a very athletic person and
her appearance did not suggest pregnancy, at least not
until the end of March.

The record does not disclose whether Seip was aware that
Leah had a medical examination in January 1997, but by
the following month, he had engaged in discussions of
Leah's possible pregnancy with some of her teammates,
their mothers, assistant coaches and a guidance counselor.
He also had an assistant coach attempt to determine
whether Leah might admit to pregnancy. In addition, Seip
had a conversation with Leah about sexual conduct that
could lead to pregnancy.

Despite his suspicions of Leah's pregnancy, Seip did not
contact Mrs. Gruenke because "she would hang up on
him." He apparently did not consider sending a note
circumspectly outlining the symptoms he had observed,
and he failed to mention his suspicions to her father when
asked about changes in her performance.

Seip did nothing to stop the gossip; rather, he added
credence to it when he would, on occasion, tell others that
it was possible that Leah was pregnant. The continuing
discussions with a number of persons developed for some
weeks until the affair culminated in Leah's submission,
under pressure, to a pregnancy test. She said that she had
agreed to the test as a result of threats to bar her from
swimming in the state championship meet taking place in
less than ten days. Seip did not make these statements to
her directly, but through her teammates. He also furnished
the pregnancy test kit, which he had previously acquired
and had kept at the school.

Leah took the test while several teammates waited
nearby. One of them informed Seip that the result was
positive. Other tests performed that evening and the
following morning were negative. The news of the initial
results, however, spread rapidly through the high school
community. One of the girls told the putative father, among

                                20
others. Leah told her mother about the readings and she
immediately made an appointment with a physician, who
confirmed that Leah was pregnant.

As the parents explained, had not all the adverse
publicity occurred as the result of Seip's actions, they
would have quietly withdrawn Leah from school, apparently
after the state meet, and sent her to Florida to live with her
married sister. After the child was born, it might have been
adopted by the sister or another sibling, but because Seip's
conduct made the family's dilemma a topic of conversation
for the school community, any discreet measures that the
parents would have taken were no longer feasible.

Mrs. Gruenke alleges, therefore, that Seip's continued
intrusion into what was a private family matter, his failure
to notify her while instead aiding and abetting the members
of the team and their mothers in making Leah's pregnancy
a subject of gossip in the school community, violated her
constitutional right to manage the upbringing of her child.
Mrs. Gruenke's position is that the management of this
teenage pregnancy was a family crisis in which the State,
through Seip, had no right to obstruct the parental right to
choose the proper method of resolution. As is apparent,
Leah's claim of deprivation of privacy, which has been
remanded for trial, overlaps with and is largely inseparable
from that of familial rights.

In reviewing the record, one is struck by the fact that the
guidance counselor, aware of the situation, apparently did
not advise Seip to notify the parents. Nor did the counselor
herself undertake that responsibility. Even the principal
(himself a former guidance counselor), who did not became
aware of the matter until late in the game, did not even
comment that this was a matter for the parents and not
school authorities. His reprimand to Seip did not mention
the supremacy of the parents' interest in matters of this
nature.

This case presents another example of the arrogation of
the parental role by a school similar to, although not as
egregious as, Arnold v. Board of Education, 880 F.2d 305
(11th Cir. 1989). In that case, the parents alleged that
school officials coerced a student into having an abortion

                                21
and urged her not to discuss the matter with her parents.
The Court held that in so acting, the school counselor
interfered with the parents' right to direct the rearing of
their child. Id. at 312.

The Arnold Court declined to hold that counselors are
constitutionally mandated to notify parents when their
minor child receives counseling about pregnancy, but
nevertheless indicated, "[a]s a matter of common sense,"
counselors should encourage communication. Id. at 314. In
this case, however, Seip was not a counselor whose
guidance was sought by a student, but instead, someone
who was acting contrary to her express wishes that he
mind his own business.

We need not consider the potential liability of school
counselors here, although we have considerable doubt
about their right to withhold information of this nature
from the parents. Because public school officials are state
actors, they must not lose sight of the fact that their
professional association ethical codes, as well as state
statutes, must yield to the Constitution.5

School-sponsored counseling and psychological testing
that pry into private family activities can overstep the
boundaries of school authority and impermissibly usurp
the fundamental rights of parents to bring up their
children, as they are guaranteed by the Constitution. See
Merriken v. Cressman, 364 F. Supp. 913, 922 (E.D. Pa.
1973) (questionnaire probing family relationships by school
authorities held unconstitutional). Public schools must not
forget that "in loco parentis" does not mean "displace
parents."

It is not educators, but parents who have primary rights
in the upbringing of children. School officials have only a
secondary responsibility and must respect these rights.
_________________________________________________________________

5. See Stephen R. Ripps et al., To Disclose or Not to Disclose: The
Dilemma of the School Counselor, 13 MISS. C. L. REV. 323, 328-29 (1993)
("[T]here is a developing trend in state and federal case law recognizing
the existence of a legal duty or special relationship between the school
district and a student's parents necessitating disclosure of personal
information about the student in certain circumstances.").

                               22
State deference to parental control over children is
underscored by the Court's admonitions that "[t]he child is
not the mere creature of the State," Pierce , 268 U.S. at 535,
and that it is the parents' responsibility to inculcate "moral
standards, religious beliefs, and elements of good
citizenship." Yoder, 406 U.S. at 233.

Although the parents have sufficiently alleged a
constitutional violation,6 the record must establish that the
right violated was clearly established in order to defeat
Seip's claim of immunity. At this point, the plaintiffs' claim
falters. Although the general principles were articulated by
the Supreme Court opinions, their application to the
unique circumstances of this case cannot be said to have
been clearly established. We conclude that on that basis,
Seip is entitled to qualified immunity and judgment in his
favor on the familial claim. See Sameric Corp. v. City of
Phila., 142 F.3d 582, 590 n.6 (3d Cir. 1998).

C. First Amendment

Finally, the Gruenkes argue that Seip violated Leah's
First Amendment rights by forbidding members of his
private swim team from associating with Leah. Holding that
the Gruenkes had failed to show that Seip had violated
Leah's First Amendment rights, and therefore had failed to
show any violation under S 1983, the District Court also
granted Seip qualified immunity on this fourth claim. See
Gruenke, 1998 WL 734700 at *13. Characterizing Leah's
asserted right to associate with her former team members
as purely social, the District Court analogized this right to
the other types of social associations that the Supreme
Court has previously denied constitutional protection. See
id. ("[T]he activity of talking to swim team members during
a swimming competition is not an individual liberty interest
protected by the First Amendment.")

We agree with the District Court's reasoning, although we
will modify its outcome. While the Constitution also guards
those associational activities necessary to further other
_________________________________________________________________

6. Any such violation does not, however, extend to the allegations of
interference in the relationship between Leah and her unborn child.

                               23
activities, such as speech and assembly, that the First
Amendment directly protects, purely social rights to
association lack this same heightened constitutional
protection. See, e.g., City of Dallas v. Stanglin, 490 U.S. 19,
25 (1989) (denying constitutional protection to young
adults' asserted right to socialize in public settings). Seip's
alleged interference with Leah's interaction with other
swimmers clearly does not amount to a violation of a
protected right.7 We will thus affirm the District Court's
grant of summary judgment in favor of Seip. See Sameric
Corp., 142 F.3d at 590 n.6.

D. Related State Tort Law Claims

The Gruenkes' state law tort claims were before the
District Court pursuant to 28 U.S.C. S 1367. Because the
District Court dismissed the Gruenkes' S 1983 claims on
summary judgment, the court also dismissed the Gruenkes'
supplemental state tort law claims noting that "the absence
of any federal question or constitutional issue" made
dismissal of the state tort law claims appropriate. Gruenke,
1998 WL 734700 at *14. Because we reverse the District
Court's grant of summary judgment with respect to the
Gruenkes' Fourth Amendment and right to privacy claims,
thus restoring the case to active status, we will also reverse
and remand the District Court's dismissal of the Gruenkes'
state tort law claims.

IV.

In conclusion, we hold that the District Court erred in
granting Seip's motion for summary judgment with respect
to Leah's Fourth Amendment claim and Leah's right to
privacy claim, and we reverse and remand these claims for
further consideration consistent with this opinion. We
affirm the District Court's grant of summary judgment with
respect to the Gruenkes' right to familial integrity claim and
_________________________________________________________________

7. We also agree with the District Court's conclusion that Leah's asserted
right to social association does not fall within the ambit of the right to
education that Brown v. Board of Education, 347 U.S. 483 (1954),
protects.

                               24
Leah's First Amendment claim because Seip is entitled to
qualified immunity with respect to these claims. We also
reverse the order dismissing the Gruenkes' supplemental
state law tort claims and remand them to the District
Court.

                               25
ROTH, Circuit Judge, concurring in part:

I write separately on the issue of interference with
familial relations. While I concur with the majority's ruling
that Seip is entitled to summary judgment on the claim for
interference with familial relations, I disagree that the
Gruenkes have alleged such a constitutional violation.

The factual basis for the Gruenkes' claim of interference
with family relations lies in their claims that Seip destroyed
Joan Gruenke's right to raise and advise Leah, her
daughter, without outside influences of the public,
Appellants' Opening Br. at 47, and that he destroyed Leah's
right as a child and a potential parent to abort the fetus or
carry it to term. See id. at 49. They assert that Seip
disclosed the results of the pregnancy test to Leah's
classmates and to Seip's assistant coaches but not to
Leah's parents or to the higher school administrators. See
id. at 51. The Gruenkes qualify their claims by
acknowledging that while Seip "did not personally coerce
Leah to make any decision regarding her pregnancy,[he]
did set in motion a chain of events that prevented[the
Gruenkes] from making childbirth and reproductive
decisions autonomously." Id. at 51-52. While it is
unfortunate that, as a result of Seip's actions, the
Gruenkes may have had certain personal family matters
disclosed in an unwanted manner, I do not believe that this
subsequent disclosure violated a constitutional right.

I reach this conclusion because the type of interference
that the Gruenkes assert does not fall within the scope of
actions that constitutionally infringe on familial privacy. In
evaluating the Gruenkes' claims of an unconstitutional
interference with parents' fundamental right to make
decisions concerning the care, custody, and control of
children, I will turn first to Troxel v. Granville, 120 S.Ct.
2154 (2000), the most recent Supreme Court case dealing
with this issue.1 In Troxel , a plurality of the Court found
_________________________________________________________________

1. We note, however, that, to the extent Troxel expanded the boundaries
of parental rights, it cannot for qualified immunity purposes apply to
Seip's past actions since, as a case decided this Term, it could not, by
definition, retroactively govern his actions in 1997. See Harlow, 457 U.S.
at 818 (noting that law must be clearly established at "the time an action
occurred.")

                               26
that a Washington statute, providing for the rights of
visitation with minor children, violated the substantive due
process rights of the mother because of its "breathtaking"
scope: Any person could petition at any time for visitation
of a child with the only requirement being that the
visitation serve the best interest of the child. Id. at 2061. A
parent's decision that visitation would not be in the child's
best interest was given no deference; the best interest
determination was placed solely in the hands of the judge.
See id. In writing for the plurality, Justice O'Connor stated
that "so long as a parent adequately cares for his or her
children (i.e., is fit), there will normally be no reason for the
State to inject itself into the private realm of the family to
further question the ability of that parent to make the best
decisions concerning the rearing of that parent's children."
Id. (emphasis added) (citing Reno v. Flores , 507 U.S. 292,
304 (1992)).

This reasoning in Troxel is consistent with the Court's
earlier decisions defining the scope of the liberty interest of
parents to control the upbringing of their children without
interference from the state. These cases, upon which Troxel
relies, involve the injection of the state into the process of
raising children. For example, in two of these cases, the
Court declared unconstitutional laws that impeded parents'
decisions on their children's education by prohibiting
private schools, see Pierce v. Society of Sisters, 268 U.S.
510 (1925), or the teaching of foreign languages in schools,
see Meyer v. Nebraska, 262 U.S. 390 (1923).

In a third one, Santosky v. Kramer, 455 U.S. 745 (1982),
the Court held that, to terminate parental rights, a state
must present clear and convincing evidence of unfitness. In
yet another, M.L.B. v. S.L.J., 519 U.S. 102 (1996), the Court
held that a right to appeal in forma pauperis must be
granted by the state when parental rights are terminated.
Finally, in Quilloin v. Walcott, 434 U.S. 246 (1978), the
Court rejected the efforts of the father of an illegitimate
child to veto the adoption of that child by the natural
mother's husband. Instead, it concluded that a natural
father who had failed to claim paternity until the adoption
was proposed could not rely on state law to overturn the
state's full recognition of an already existing family unit

                               27
that was in the child's best interests. See id. at 255-56.
Each of these cases share a common theme: They involve a
situation in which the state has attempted by statute or by
a court's procedural requirements to eliminate a parent's
role in the custody or nurture of the child.

The situation before in this case is very different. The
Commonwealth of Pennsylvania has not attempted by
statute or by court proceedings to determine the outcome of
Leah's pregnancy or to dictate whether she should keep the
child or give it up for adoption. Nor did Seip physically
prevent Leah or her parents from taking any action as a
consequence of her pregnancy. The claim here is that Seip's
discussion of Leah's pregnancy with others and his failure
to inform the Gruenkes of the pregnancy merely
complicated the Gruenkes' ability to make decisions
concerning the pregnancy. This alleged breach of privacy
and failure by a school official to impart information to the
family is not an action by the state to control the education
of a child against the parents' wishes or to determine
custody or visitation without proper input by the parents.
In fact, the Gruenkes were free at all times to make
whatever decision they pleased as to the outcome of Leah's
pregnancy, even after Seip discussed her condition with
other parents or swim team members.

Accepting the facts as proffered by the Gruenkes, I
conclude that the Gruenkes have failed to establish the
violation of a constitutional right to familial integrity.
Consequently, Seip is entitled to summary judgment on
this claim, see Sameric Corp., 142 F.3d at 590 n.6, but, I
believe, not for the reasons cited by the majority.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                                28
