Colegio Puertorriqueno v. Pesquera de Busquets

• Decision Date: 06 February 1979
• Docket Number: Civ. No. 78-2103.
• Citation: 464 F. Supp. 761
• Parties: COLEGIO PUERTORRIQUEÑO DE NIÑAS, LICEO PONCEÑO, INC., et al., Plaintiffs, v. Carmen T. PESQUERA DE BUSQUETS, Secretary to Department of Consumer Affairs of Commonwealth of Puerto Rico, Defendant.
• Court: U.S. District Court — District of Puerto Rico

464 F. Supp. 761

COLEGIO PUERTORRIQUEÑO DE NIÑAS, LICEO PONCEÑO, INC., et al., Plaintiffs, v. Carmen T. PESQUERA DE BUSQUETS, Secretary to Department of Consumer Affairs of Commonwealth of Puerto Rico, Defendant.

Civ. No. 78-2103.

United States District Court, D. Puerto Rico.

February 6, 1979.

Luis Roberto Piñero, Hato Rey, P. R., for plaintiffs.

José M. Herrero, Secretary of Justice, San Juan, P. R., for defendant.

OPINION AND ORDER

TORRUELLA, District Judge.

This is an action seeking declaratory and injunctive relief, as well as damages, brought under the provisions of Section 1983 of Title 42, United States Code, and Sections 1331 and 1343 of Title 28, United States Code. The Plaintiffs are eighteen private schools which have been duly licensed or accredited by the Commonwealth Department of Education to operate in Puerto Rico, and a professional organization which assembles over one hundred private schools of all educational levels throughout Puerto Rico. The Defendant is the Secretary of the Department of Consumer Affairs of the Commonwealth of Puerto Rico.

This case presents the same factual background involved in His Excellency Bishop Ricardo Suriñach, etc. v. Carmen T. Pesquera de Busquets, 460 F.Supp. 121 (D.C.P.R., 1978). As in that case, the Defendant herein has requested information, documents and books from Plaintiffs concerning the number of students and teachers in the respondent schools, number of classrooms, salaries paid to teachers and academic preparation of teachers, transportation and other services provided to students, scholarships offered and criteria used for awarding scholarships, general information about the sources and funds for the financing of the private schools for the years 1975, 1976 and 1977, cost per student for registration and admission, monthly fees, fees for activities and for permanent improvements, medical insurance, and fees for student evaluations, meals and materials. The inquiry also covered information about the cost of uniforms, cost of books and sale price thereof, and data concerning numbers and salary of employees for three categories of personnel. The request was part of an investigation by the Department of Consumer Affairs into the costs of the private schools operating in Puerto Rico, initiated pursuant to Sections 3, 6 and 14(a) of Act Number 5, enacted by the Legislative Assembly of the Commonwealth of Puerto Rico on April 23, 1973. 3 L.P.R.A. 341 et seq.

Section 3 of the Act, 3 L.P.R.A. 341b, expressly directs the Department to protect the rights of consumers, curb inflationary tendencies and establish a price control system over goods and services. Section 6 of the enabling statute, 3 L.P.R.A. 341e, empowers the agency to issue subpoenas to compel the appearance of witnesses and production of documents and/or information, to inspect records, inventories, documents and physical facilities of persons or entities subject to the provisions of the Act, and to perform all other acts necessary and convenient for the most effective achievement of the purposes of the Act. (Subsections 6(h), (v), (w) and (x)). The administrative faculties of the Department are more specifically delineated in Section 14(a), 3 L.P.R.A. 341m, which enables the Department to engage in all types of studies and investigations on matters affecting consumers. In furtherance of these faculties, the Secretary of the Department is given the authority to, inter alia, request all necessary and relevant information and inspect records, inventories, documents and physical facilities of entities under the Agency's jurisdiction; approve all necessary and reasonable rules and regulations and receive testimony and evidence related to consumer-related matters.

Plaintiffs contend that the purpose of Defendant's inquiry is for price fixing of private education in alleged violation of the Due Process Clause of the Fourteenth Amendment, insofar as such price fixing deprivates private schools of their property right of conducting their affairs. Plaintiffs further argue that Defendant's actions have the purpose of provoking the standardization of private education and interfering with the liberty of parents and guardians to select and direct the education of their children. In the second cause of action of the complaint it is asserted that Defendant's action constitutes an invasion of Plaintiffs' privacy rights under the First, Fourth, Fifth, Ninth and Fourteenth Amendments to the Constitution of the United States.

Our only duty in this case is to determine whether the investigation undertaken by the Defendant is violative of any constitutionally protected right of those required to respond to the questionnaire. To that inquiry we will now address ourselves.

Plaintiffs question the power of the Defendant to regulate the costs of private education in Puerto Rico. Concerning this argument, it is the view of this Court that, as the matter now stands no concrete controversy is presented to us for adjudication. O'Shea v. Littleton, 414 U.S. 488, 493-494, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974). The issue is not what type of regulatory action might be taken by the Defendant in the future under the authority conferred by statute,¹ but rather what kind of disclosure requirements the Defendant has in fact imposed. California Bankers Ass'n v. Shultz, 416 U.S. 21, 64, 94 S.Ct. 1494, 39 L.Ed.2d 812 (1974). It is black-letter law that "the requiring of information concerning a business is not regulation of that business." ICC v. Goodrich Transit Co., 224 U.S. 194, 211, 32 S.Ct. 436, 440, 56 L.Ed. 729 (1912), and the distinction between both types of official action "is substantial." United States v. Five Gambling Devices, 346 U.S. 441, 462-463, 74 S.Ct. 190, 98 L.Ed. 179 (1953).

In order to satisfy the threshold requirement imposed by Art. III of the Constitution, those who seek to invoke the power of federal courts must demonstrate that the injury or threat of injury must be both "real and immediate", not "conjectural" or "hypothetical." Golden v. Zwickler, 394 U.S. 103, 109-110, 89 S.Ct. 956, 22 L.Ed.2d 113 (1969). This Plaintiffs have failed to do.

As we stated in His Excellency Bishop Ricardo Suriñach, etc. v. Carmen T. Pesquera de Busquets, supra, "the absence of an immediate possibility of actual regulation counsels against our entertaining issues which may be affected by future events of an uncertain nature." See, United Public Workers of America v. Mitchell, 330 U.S. 75, 67 S.Ct. 556, 91 L.Ed. 754 (1947); International Longshoremen's and Warehousemen's Union, Local 37 v. Boyd, 347 U.S. 222, 74 S.Ct. 447, 98 L.Ed. 650 (1954).²

We therefore conclude that no case or controversy has been presented to us regarding Plaintiffs' allegations of price fixing. We are thus constitutionally prevented from entertaining those claims. O'Shea v. Littleton, supra.

We will now consider the second issue presented by the first cause of action, wherein Plaintiffs allege a threat to the liberty of parents to direct the educational upbringing of their children by reason of governmental "standardization" of private education.

The tensions between individual liberty and governmental attempts to achieve homogeneity in the educational context have been presented to the United States Supreme Court in controversies disputing the validity of State statutes that forbade the teaching of foreign languages before the eighth grade, Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923) or that required all students to attend public schools. Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925). Understandably, the basic postulates of both decisions are that the State has no power to "standardize its children by forcing them to accept instruction from public teachers only." Id., at 535, 45 S.Ct. at 573. or "foster a homogeneous people." Meyer, supra, 262 U.S. at 402, 43 S.Ct. 625.³

The dangers repudiated in those decisions are nowhere apparent from the record in this case. Unlike in Pierce, and contrary to the arguments of Plaintiffs, the status quo presents no imminence of destruction of the right of private schools to exist and to operate. 268 U.S. at 535-536, 45 S.Ct. 571. Moreover, "The preeminent right of parents to direct the educational upbringing of their children is not conceivably being subject to governmental curtailment or restriction by the implementation of the inquiry that Defendant purports to conduct." Suriñach, supra, at 125. See, Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972); Norwood v. Harrison, 413 U.S. 455, 462, 93 S.Ct. 2804, 37 L.Ed.2d 723 (1973). Furthermore, there has been no showing that the actions complained of would in any way affect the content and scope of teaching in private schools. See, Runyon v. McCrary, 427 U.S. 160, 96 S.Ct. 2586, 49 L.Ed.2d 415 (1976); see also, Stanley v. Georgia, 394 U.S. 557, 565-566, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1964).

The foregoing suffices to disprove Plaintiffs' claims of governmental transgression of protected parental and educational liberties. To the extent that Plaintiffs base their challenge on unspecified and uncertain eventualities, the first cause of action also fails to present an actionable controversy, in light of the principles summarized hereinbefore.

At this juncture, we are called upon to decide whether the administrative probe in question here constitutes an invasion of constitutionally protected rights of privacy. The importance of this question compels us to undertake a careful analysis of the various factors involved.

There is no right of "privacy" as such in the constitution. Hence, the judicially recognized "zones of privacy" emanate from specific and substantive constitutional guarantees. Paul v. Davis, 424 U.S. 693, 712-713, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976). The foundations of privacy rights, which have been termed as "protected rights of personhood", Tribe, American...