Dubbs v. Head Start, Inc., No. 01-5098.

Decision Date21 July 2003
Docket NumberNo. 01-5098.,No. 01-5177.
PartiesJack DUBBS, individually, and as father and next friend of Tiffani Dubbs, a minor; Francisco Aguirre, individually, and as father and next friend of Jessica Aguirre, a minor; Joy Brown, individually, and as mother and next friend of Marii Brown, a minor; Keenya Cowans, individually, and as mother and next friend of Keymiya Cowans, a minor; Shanika Crowley, individually, and as mother and next friend of Kwanita M. Crowley, a minor; Raichelle Loftin, individually, and as mother and next friend of Quenten Loftin, a minor; Elisha Porterfield, individually, and as mother and next friend of LaQuante Porterfield, a minor; Daphine Suddarth, individually, and as mother and next friend of Ronisha Suddarth, a minor, Plaintiff-Appellants, v. HEAD START, INC., an Oklahoma corporation; Independent SChool District, No. 1 of Tulsa County, Oklahoma; John Doe, Sued as Doe Government Agents 1 through 5, and John Does 1 through 10; John Does 1 Through 10; Peggy Doe, Defendants, and Community Action Project Of Tulsa County, Oklahoma, an Oklahoma not-for-profit corporation; Tulsa City-County Health Department; KD Enterprises, Inc., an Oklahoma corporation; Jackie Strayhorn, ARNP; Kim Baker, sued as: K. Baker, RN, Defendants-Appellees.
CourtU.S. Court of Appeals — Tenth Circuit

Steven H. Aden, The Rutherford Institute, Charlottesville, VA, (John W. Whitehead, The Ruthersford Institute, Charlottesville, VA, Jack Y. Goree and Christopher Goree, Goree & Goree, P.C., Tulsa, OK, and Leah Farish, Tulsa, OK, with him on the briefs), for Plaintiffs-Appellants.

Kevin D. Jewell, Magenheim, Bateman & Helfand, P.L.L.C., Houston, TX, Roni S. Rierson, Atkinson, Haskins, Nellis, Holeman, Phipps, Brittingham & Gladd, Tulsa, OK, Scott B. Wood, Whitten, Nelson, McGuire, Wood, Terry, Roeslius & Dittrich, Tulsa, OK, (William S. Helfand and Barbara E. Roberts, Magenheim, Bateman & Helfand, P.L.L.C., Houston, TX; Galen L. Brittingham, Atkinson, Haskins, Nellis, Holeman, Phipps, Brittingham & Gladd, Tulsa, OK; Elizabeth A. Hart, Whitten, Nelson, McGuire, Wood, Terry, Roeslius & Dittrich, Tulsa, OK; John E. Dowdell and Christine D. Little, Norman, Wohlgemuth, Chandler, & Dowdell, Tulsa, OK, with them on the briefs) for Defendants-Appellees.

Before SEYMOUR and McCONNELL, Circuit Judges, and KRIEGER, District Judge.*

McCONNELL, Circuit Judge.

In this civil rights action, parents of eight pre-school children enrolled in the Head Start program in Tulsa, Oklahoma, complain that their children were subjected to intrusive physical examinations, including genital examinations and blood tests, on school premises without parental notice or consent. They claim that the Head Start agency, defendant Tulsa Community Action Project, falsely represented to medical personnel that consent forms had been obtained for each of the children and insisted on examinations even for children with up-to-date physicals supplied by their own doctors. They claim that these examinations violated their rights under the Fourth and Fourteenth Amendments to the United States Constitution and under state law.

In a series of orders, the district court disposed of all claims against all defendants, either on dismissal for failure to state a claim on which relief may be granted or on summary judgment. The district court then ordered the plaintiffs to pay the costs of the litigation.

For the reasons set forth below, we reverse the judgment of the district court insofar as it granted summary judgment on the claims against the Tulsa Community Action Project under the Fourth Amendment, technical battery, and invasion of privacy under Oklahoma law, also reverse the dismissal of the parents' claim under the Fourteenth Amendment, but affirm as to all other claims, and remand for further proceedings, including reconsideration of the assessment of costs against the parents.

Factual and Procedural Background

Head Start is a program designed to provide qualified low-income children with pre-elementary instruction to enable them to succeed when they enter school. Recognizing the connection between health care and educational readiness, Head Start program regulations require Head Start agencies, within 90 days of enrollment of a child in the program, in "collaboration with the parents," to "make a determination as to whether or not each child has an ongoing source of continuous, accessible health care." 45 C.F.R. 1304.20(a)(1)(i). If not, the agency must "assist the parents" in "accessing a source of care." Id. In addition, the agency must "[o]btain from a health care professional" a "determination as to whether the child is up-to-date on a schedule of age appropriate preventive and primary health care," in accordance with professional standards. Id., § 1304.20(a)(1)(ii). Again, if children are not "up-to-date" on this schedule of care, the agency is instructed to "assist parents in making the necessary arrangements to bring the child up-to-date." Id., § 1304.20(a)(1)(ii)(A). The regulations do not authorize, nor do they permit, Head Start agencies to provide medical examinations or health care to enrolled children without parental knowledge or consent.

Defendant-Appellee Tulsa Community Action Project ("CAP") is a not-for-profit organization that oversees the Head Start program in Tulsa, Oklahoma. It is a "Head Start Agency" or "grantee" as defined by the applicable regulations, 45 C.F.R. § 1301.2. It receives both state and federal funds. Other defendants (and appellees) are the Tulsa City-County Health Department (the "County Health Department"), K.D. Enterprises ("KD"), and two individual nurses, Jacqueline Strayhorn, ARNP, and Kimberly Baker, RN. CAP contracted with the County Health Department to perform the examinations at issue. The Health Department employed nurses Strayhorn and Baker, who performed the examinations. CAP contracted with KD to perform the educational component of the Head Start program in Tulsa. CAP leased space at the Roosevelt Elementary School, in Tulsa, to administer the Head Start program.

On November 5, 1998, Peggy Terry, a registered nurse and a CAP employee, entered a classroom of pre-school children participating in the Head Start program at Roosevelt Elementary in Tulsa. She announced that the children were to be taken to a another classroom in the building for physical examinations. One parent, Misti Dubbs, who was employed as an aide in the Head Start program, protested that CAP had not obtained consent for the examinations and that many of the families had already turned in physical examination reports from their own doctors. When nurse Terry insisted on examinations for all the children, Mrs. Dubbs approached a KD supervisor who in turn consulted the supervisor of employees at KD's Roosevelt site. Neither of these supervisors intervened.

CAP had previously told the County Health Department that CAP would obtain the requisite consent from parents prior to the medical examinations. Relying on that representation, the Health Department conveyed this information to nurses Strayhorn and Baker. On November 5, Strayhorn and Baker arrived at Roosevelt before the appointed time for the exams and queried the CAP Head Start representative, Peggy Terry, about whether the children's parents had completed consent forms. Strayhorn and Baker looked for consent forms in the students' file folders and found none. The nurses raised concerns about the absence of consent forms with nurse Terry, but Terry assured them that CAP had previously obtained consent and that the proper forms were on file. Strayhorn and Baker relied on that information and proceeded with the exams.

The central question in this case is whether CAP and the other defendants had a reasonable basis for believing that the parents had consented to the examinations.1 At the time of enrollment in the Head Start program, CAP gave parents of the enrolled children three forms. It is undisputed that these are the only consent forms for medical procedures used by CAP, and that no other form of consent, oral or written, was requested or provided. Two of the forms were to be signed by the parent and returned to CAP. One of these was entitled "Parent Consent Form," and solicited parental permission for eight specified tests "if needed": tuberculosis, speech/language, dental, developmental screening, hearing, hemoglobin/HCT, vision screening, and hearing screening. The form also solicited permission for the child to appear in CAP advertising, for name and phone number to appear on a classroom roster, and for CAP to maintain, use, and release "my child's complete history" for use in "health and educational planning." The second form was entitled "Authorization For Treatment to Minors." It solicited parental consent for "diagnosis or treatment" by a "physician or dentist," as well as transportation to a medical facility "for emergency care." At the bottom of the form, parents were given the option to refuse permission to transport their child "for emergency medical/dental care," and to indicate what should be done "[i]n the event of illness or injury which require emergency medical/dental treatment." Neither of the forms to be signed by parents or guardians authorized a general physical examination or a genital examination.

The third form, provided to at least some of the parents, was entitled "Child Health Record: Form 3, Screenings, Physical Examination/Assessment." This was a physical examination form to be filled in and signed by a "health care provider," with a checklist of tests and procedures to be performed. Among the items on this checklist were a blood test (hematocrit or hemoglobin) and a genital examination. Nowhere on Form 3 was there any place for parental signature, acknowledgment, or consent.

Prior to the examinations at issue, at least four of the eight plaintiff parents had arranged...

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