Brown v. Hot, Sexy & Safer
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Brown v. Hot, Sexy & Safer, (1st Cir. 1995).
Opinion
USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 95-1275
RONALD C. BROWN, ET AL.,
Plaintiffs - Appellants,
v.
HOT, SEXY AND SAFER PRODUCTIONS, INC., ET AL.,
Defendants - Appellees.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Robert E. Keeton, U.S. District Judge] ___________________
____________________
Before
Torruella, Chief Judge, ___________
Stahl, Circuit Judge, _____________
and Dom nguez,* District Judge. ______________
_____________________
John L. Roberts for appellant. _______________
John Foskett, with whom Deutsch Williams Brooks DeRensis _____________ __________________________________
Holland & Drachman, P.C., Paul F. Degnan, Nancy Kirk, Kirby & _________________________ _______________ ___________ ________
Associates, Mary L. Bonauto, Bennett H. Klein, Gay & Lesbian __________ ________________ _________________
Advocates & Defenders, Neila J. Straub and Straub & Meyers were ________________ ________________
on joint brief for appellees Chelmsford School Committee, Wendy
Marcks, Mary E. Frantz, Richard H. Moser, David S. Troughton,
George J. Betses, Suzanne Landolphi and Hot, Sexy & Safer
Productions, Inc.; Frances S. Cohen, with whom Monica L. ___________________ __________
Phillips, Hill & Barlow, Susan Wunsch and Massachusetts Civil ________ ______________ _____________
Liberties Union Foundation were on brief for appellees Michael
Gilchrist and Judith Hass.
____________________
October 23, 1995
____________________
____________________
* Of the District of Puerto Rico, sitting by designation.
TORRUELLA, Chief Judge. The plaintiffs are two minors TORRUELLA, Chief Judge. ___________
and their parents. The minors allege that they were compelled to
attend an indecent AIDS and sex education program conducted at
their public high school by defendant Hot, Sexy and Safer
Productions ("Hot, Sexy, and Safer"). Plaintiffs allege, inter _____
alia, that the compelled attendance deprived the minors of their ____
privacy rights and their right to an educational environment free
from sexual harassment. The district court granted the
defendants' motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6). We affirm.
BACKGROUND BACKGROUND
The plaintiffs are Chelmsford High School students
Jason P. Mesiti ("Mesiti") and Shannon Silva ("Silva"), and their
parents Ronald and Suzanne Brown ("the Browns"), and Carol and
Richard Dubreuil ("the Dubreuils"). The plaintiffs' complaint
alleges the following facts, which we take as true for purposes
of this appeal. On April 8, 1992, Mesiti and Silva attended a
mandatory, school-wide "assembly" at Chelmsford High School.
Both students were fifteen years old at the time. The assembly
consisted of a ninety-minute presentation characterized by the
defendants as an AIDS awareness program (the "Program"). The
Program was staged by defendant Suzi Landolphi ("Landolphi"),
contracting through defendant Hot, Sexy, and Safer, Inc., a
corporation wholly owned by Landolphi.
Plaintiffs allege that Landolphi gave sexually explicit
monologues and participated in sexually suggestive skits with
-2-
several minors chosen from the audience. Specifically, the
complaint alleges that Landolphi: 1) told the students that they
were going to have a "group sexual experience, with audience
participation"; 2) used profane, lewd, and lascivious language to
describe body parts and excretory functions; 3) advocated and
approved oral sex, masturbation, homosexual sexual activity, and
condom use during promiscuous premarital sex; 4) simulated
masturbation; 5) characterized the loose pants worn by one minor
as "erection wear"; 6) referred to being in "deep sh--" after
anal sex; 7) had a male minor lick an oversized condom with her,
after which she had a female minor pull it over the male minor's
entire head and blow it up; 8) encouraged a male minor to display
his "orgasm face" with her for the camera; 9) informed a male
minor that he was not having enough orgasms; 10) closely
inspected a minor and told him he had a "nice butt"; and 11) made
eighteen references to orgasms, six references to male genitals,
and eight references to female genitals.
Plaintiffs maintain that the sexually explicit nature
of Landolphi's speech and behavior humiliated and intimidated
Mesiti and Silva. Moreover, many students copied Landolphi's
routines and generally displayed overtly sexual behavior in the
weeks following the Program, allegedly exacerbating the minors'
harassment. The complaint does not allege that either of the
minor plaintiffs actually participated in any of the skits, or
were the direct objects of any of Landolphi's comments.
The complaint names eight co-defendants along with Hot,
-3-
Sexy, and Safer, and Landolphi, alleging that each played some
role in planning, sponsoring, producing, and compelling the minor
plaintiffs' attendance at the Program. In March 1992, defendant
Judith Hass ("Hass"), then chairperson of the Chelmsford Parent
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USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 95-1275
RONALD C. BROWN, ET AL.,
Plaintiffs - Appellants,
v.
HOT, SEXY AND SAFER PRODUCTIONS, INC., ET AL.,
Defendants - Appellees.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Robert E. Keeton, U.S. District Judge] ___________________
____________________
Before
Torruella, Chief Judge, ___________
Stahl, Circuit Judge, _____________
and Dom nguez,* District Judge. ______________
_____________________
John L. Roberts for appellant. _______________
John Foskett, with whom Deutsch Williams Brooks DeRensis _____________ __________________________________
Holland & Drachman, P.C., Paul F. Degnan, Nancy Kirk, Kirby & _________________________ _______________ ___________ ________
Associates, Mary L. Bonauto, Bennett H. Klein, Gay & Lesbian __________ ________________ _________________
Advocates & Defenders, Neila J. Straub and Straub & Meyers were ________________ ________________
on joint brief for appellees Chelmsford School Committee, Wendy
Marcks, Mary E. Frantz, Richard H. Moser, David S. Troughton,
George J. Betses, Suzanne Landolphi and Hot, Sexy & Safer
Productions, Inc.; Frances S. Cohen, with whom Monica L. ___________________ __________
Phillips, Hill & Barlow, Susan Wunsch and Massachusetts Civil ________ ______________ _____________
Liberties Union Foundation were on brief for appellees Michael
Gilchrist and Judith Hass.
____________________
October 23, 1995
____________________
____________________
* Of the District of Puerto Rico, sitting by designation.
TORRUELLA, Chief Judge. The plaintiffs are two minors TORRUELLA, Chief Judge. ___________
and their parents. The minors allege that they were compelled to
attend an indecent AIDS and sex education program conducted at
their public high school by defendant Hot, Sexy and Safer
Productions ("Hot, Sexy, and Safer"). Plaintiffs allege, inter _____
alia, that the compelled attendance deprived the minors of their ____
privacy rights and their right to an educational environment free
from sexual harassment. The district court granted the
defendants' motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6). We affirm.
BACKGROUND BACKGROUND
The plaintiffs are Chelmsford High School students
Jason P. Mesiti ("Mesiti") and Shannon Silva ("Silva"), and their
parents Ronald and Suzanne Brown ("the Browns"), and Carol and
Richard Dubreuil ("the Dubreuils"). The plaintiffs' complaint
alleges the following facts, which we take as true for purposes
of this appeal. On April 8, 1992, Mesiti and Silva attended a
mandatory, school-wide "assembly" at Chelmsford High School.
Both students were fifteen years old at the time. The assembly
consisted of a ninety-minute presentation characterized by the
defendants as an AIDS awareness program (the "Program"). The
Program was staged by defendant Suzi Landolphi ("Landolphi"),
contracting through defendant Hot, Sexy, and Safer, Inc., a
corporation wholly owned by Landolphi.
Plaintiffs allege that Landolphi gave sexually explicit
monologues and participated in sexually suggestive skits with
-2-
several minors chosen from the audience. Specifically, the
complaint alleges that Landolphi: 1) told the students that they
were going to have a "group sexual experience, with audience
participation"; 2) used profane, lewd, and lascivious language to
describe body parts and excretory functions; 3) advocated and
approved oral sex, masturbation, homosexual sexual activity, and
condom use during promiscuous premarital sex; 4) simulated
masturbation; 5) characterized the loose pants worn by one minor
as "erection wear"; 6) referred to being in "deep sh--" after
anal sex; 7) had a male minor lick an oversized condom with her,
after which she had a female minor pull it over the male minor's
entire head and blow it up; 8) encouraged a male minor to display
his "orgasm face" with her for the camera; 9) informed a male
minor that he was not having enough orgasms; 10) closely
inspected a minor and told him he had a "nice butt"; and 11) made
eighteen references to orgasms, six references to male genitals,
and eight references to female genitals.
Plaintiffs maintain that the sexually explicit nature
of Landolphi's speech and behavior humiliated and intimidated
Mesiti and Silva. Moreover, many students copied Landolphi's
routines and generally displayed overtly sexual behavior in the
weeks following the Program, allegedly exacerbating the minors'
harassment. The complaint does not allege that either of the
minor plaintiffs actually participated in any of the skits, or
were the direct objects of any of Landolphi's comments.
The complaint names eight co-defendants along with Hot,
-3-
Sexy, and Safer, and Landolphi, alleging that each played some
role in planning, sponsoring, producing, and compelling the minor
plaintiffs' attendance at the Program. In March 1992, defendant
Judith Hass ("Hass"), then chairperson of the Chelmsford Parent
Teacher Organization (the "PTO"), initiated negotiations with
Hot, Sexy, and Safer. Hass and defendant Michael Gilchrist,
M.D., also a member of the PTO, as well as the school physician,
viewed a promotional videotape of segments of Landolphi's past
performances and then recommended the Program to the school
administration. On behalf of defendant Chelmsford School
Committee (the "School Committee"), Hass executed an agreement
with Hot, Sexy, and Safer, and authorized the release of $1,000
of Chelmsford school funds to pay Landolphi's fee.
The complaint also names as defendants two other
members of the School Committee, Wendy Marcks and Mary E. Frantz,
as well as the Superintendent and Assistant Superintendent of the
Chelmsford Public Schools, Richard H. Moser, and David S.
Troughton, and the Principal of Chelmsford High School, George J.
Betses. Plaintiffs allege that all the defendants participated
in the decisions to hire Landolphi, and to compel the students to
attend the Program. All the defendants were physically present
during the Program.
A school policy adopted by the School Committee
required "[p]ositive subscription, with written parental
permission" as a prerequisite to "instruction in human
sexuality." The plaintiffs allege, however, that the parents
-4-
were not given advance notice of the content of the Program or an
opportunity to excuse their children from attendance at the
assembly.
The district court granted defendants' motion to
dismiss plaintiffs' complaint, pursuant to Federal Rule of Civil
Procedure 12(b)(6), for failure to state a claim upon which
relief may be granted, and also dismissed the state law claims
under the supplemental jurisdiction principles of 28 U.S.C.
1367.1 The district court deferred entry of final judgment,
giving plaintiffs leave to file an amended complaint curative of
the deficiencies by February 10, 1995. Plaintiffs failed to do
so, and final judgment was entered on March 3, 1995, dismissing
their claims.
STANDARD OF REVIEW STANDARD OF REVIEW
We exercise de novo review over a district court's ________
dismissal of a claim under Rule 12(b)(6). Vartanian v. Monsanto _________ ________
Co., 14 F.3d 697, 700 (1st Cir. 1994); Kale v. Combined Ins. Co. ___ ____ _________________
of America, 924 F.2d 1161, 1165 (1st Cir. 1991). We accept the __________
allegations of the complaint as true, and determine whether,
under any theory, the allegations are sufficient to state a cause
of action in accordance with the law. Vartanian, 14 F.3d at 700; _________
Knight v. Mills, 836 F.2d 659 (1st Cir. 1987). Although, our ______ _____
review is plenary, an appeal is not an opportunity to conjure new
____________________
1 28 U.S.C. 1367(c) gives a court discretion to "decline to
exercise supplemental jurisdiction over a [state law] claim
[where] the district court has dismissed all claims over which it
has original jurisdiction."
-5-
arguments not raised before the district court. McCoy v. _____
Massachusetts Inst. of Tech., 950 F.2d 13, 22 (1st Cir. 1991), _____________________________
cert. denied, 112 S. Ct. 1939 (1992). In addition, "[b]ecause _____________
only well pleaded facts are taken as true, we will not accept a
complainant's unsupported conclusions or interpretations of law."
Washington Legal Found. v. Massachusetts Bar Found., 993 F.2d ________________________ _________________________
962, 971 (1st Cir. 1993)(citations omitted). We may affirm a
district court's dismissal order under any independently
sufficient grounds. Id. __
DISCUSSION DISCUSSION
The plaintiffs seek both declaratory and monetary
relief, alleging that the school sponsored program deprived the
minor plaintiffs of: (1) their privacy rights under the First
and Fourteenth Amendments; (2) their substantive due process
rights under the First and Fourteenth Amendments; (3) their
procedural due process rights under the Fourteenth Amendment; and
(4) their First Amendment rights under the Free Exercise Clause
(in conjunction with a deprivation of the parent plaintiffs'
right to direct and control the upbringing of their children).
Plaintiffs also allege that the Program created a sexually
hostile educational environment in violation of Title IX of the
Education Amendments of 1972, 20 U.S.C. 1681 et seq.2 __ ___
As an initial matter, we briefly address defendants'
assertion of the defense of qualified immunity. Plaintiffs seek
____________________
2 The complaint also alleges five state law claims which are
irrelevant for purposes of this appeal.
-6-
monetary damages under 42 U.S.C. 1983,3 and defendants assert
the affirmative defense of qualified immunity, which shields
public officials performing discretionary functions 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 v. ______
Fitzgerald, 457 U.S. 800, 818 (1982). A right is "clearly __________
established" if, at the time of the alleged violation, "[t]he
contours of the right [are] sufficiently clear that a reasonable
official would understand that what he is doing violates that
right." Anderson v. Creighton, 483 U.S. 635, 640 (1987). "[T]he ________ _________
relevant question is whether a reasonable official could have
believed his actions were lawful in light of clearly established
law and the information the official possessed at the time of his
allegedly unlawful conduct." Singer v. Maine, 49 F.3d 837, 844 ______ _____
(1st Cir. 1995) (citations omitted). The Supreme Court has
explained that: "A necessary concomitant to the determination of
whether the constitutional right asserted by a plaintiff is
'clearly established' at the time the defendant acted is the
determination of whether the plaintiff has asserted a violation
of a constitutional right at all." Siegert v. Gilley, 500 U.S. _______ ______
226, 232 (1991). Therefore, "before even reaching qualified
immunity, a court of appeals must ascertain whether the
appellants have asserted a violation of a constitutional right at
____________________
3 Section 1983 provides a remedy against any person who, under
color of state law, deprives a citizen of his or her
constitutional rights. 42 U.S.C. 1983.
-7-
all." Watterson v. Page, 987 F.2d 1, 7 (1st Cir. 1993); Singer, _________ ____ ______
49 F.3d at 844. Thus, as a predicate to the objective
reasonableness inquiry, "a plaintiff must establish that a
particular defendant violated the plaintiff's federally protected
rights." Singer, 49 F.3d at 844 (citations omitted). ______
Accordingly, we first address each of the plaintiffs'
claims to determine whether it states a cause of action under
federal law. If any of the claims meet this threshold
requirement, we will then proceed to the issue of qualified
immunity.
I. Privacy Rights and Substantive Due Process I. Privacy Rights and Substantive Due Process __________________________________________
The Fourteenth Amendment provides that "[n]o State
shall . . . deprive any person of life liberty or property
without due process of law." U.S. Const. amend XIV. The
substantive component of due process protects against "certain
government actions regardless of the fairness of the procedures
used to implement them." Daniels v. Williams, 474 U.S. 327, 331 _______ ________
(1986). See also Pittsley v. Warish, 927 F.2d 3, 6 (1st Cir. ________ ________ ______
1991) (comparing substantive due process to procedural due
process) (citing Monroe v. Pape, 365 U.S. 167, 171-72 (1961)). ______ ____
There are two theories under which a plaintiff may bring a
substantive due process claim. Under the first, a plaintiff must
demonstrate a deprivation of an identified liberty or property
interest protected by the Fourteenth Amendment. Pittsley, 927 ________
F.2d at 6 (citing Meyer v. Nebraska, 262 U.S. 390, 399 (1923)). _____ ________
Under the second, a plaintiff is not required to prove the
-8-
deprivation of a specific liberty or property interest, but,
rather, he must prove that the state's conduct "shocks the
conscience." Id. at 6 (quoting Rochin v. California, 342 U.S. __ ______ __________
165, 172 (1952)). Plaintiffs contend that compelling the minors'
attendance at the Program constitutes a substantive due process
violation under both tests.
A. Conscience Shocking Behavior A. Conscience Shocking Behavior ____________________________
Plaintiffs' claim that the defendants engaged in
conscience shocking behavior when they compelled the minor
plaintiffs to attend the Program. The Supreme Court set the
standard for analyzing claims of conscience shocking behavior in
Rochin. In that case, the Court held that the government could ______
not use evidence obtained by pumping a defendant's stomach
against his will because the state actor's conduct was so
egregious that it "shock[ed] the conscience" and offended even
"hardened sensibilities." Rochin, 342 U.S. at 172. The Court ______
explained that the stomach pumping employed by the state was "too
close to the rack and screw to permit of constitutional
differentiation." Id. __
Similarly, we have found "conscience shocking" conduct
only where the state actors engaged in "extreme or intrusive
physical conduct." Souza v. Pina, 53 F.3d 423, 427 (1st Cir. _____ ____
1995); Harrington v. Almy, 977 F.2d 37, 43-44 (1st Cir. 1992) __________ ____
(reasonable fact-finder could find "conscience shocking" conduct
where a police officer charged with child abuse was required to
-9-
take a penile plethysmograph4 as a condition of his
reinstatement). See also Garc a v. Meira, 817 F.2d 650, 655 _________ ______ _____
(10th Cir. 1987) (corporal punishment of students may "shock the
conscience" if it "caused injury so severe, was so
disproportionate to the need presented, and was so inspired by
malice or sadism . . . that it amounted to a brutal and inhumane
abuse of official power") (quoting Hall v. Tawney, 621 F.2d 607, ____ ______
613 (4th Cir. 1980)).
Although we have not foreclosed the possibility that
words or verbal harassment may constitute "conscious shocking"
behavior in violation of substantive due process rights, see ___
Souza, 53 F.3d at 427; Pittsley, 927 F.2d at 6, our review of the _____ ________
caselaw indicates that the threshold for alleging such claims is
high and that the facts alleged here do not rise to that level.
In Souza, the plaintiff alleged that the prosecutor had _____
caused the suicide of her son by conducting press conferences in
which he encouraged the media to link the son to a string of
serial murders. The plaintiff further alleged that the
prosecutor knew of her son's suicidal tendencies and should have
known that he would take his own life as a result of the
accusations. Although we "pause[d] to make clear that we do not
condone the conduct alleged by Souza," we nevertheless found that
the conduct was not "conscience shocking." Souza, 53 F.3d at _____
424-27.
____________________
4 A penile plethysmograph assesses a person's sexual profile by
the placement of a gauge on the subjects' penis while he views
various sexually explicit slides of both adults and children.
-10-
In Pittsley, police officers told two young children -- ________
ages four and ten -- that "if we ever see your father on the
street again, you'll never see him again." Pittsley, 927 F.2d at ________
5. When the police subsequently arrested the children's father,
they "use[d] vulgar language" and refused to let the children
give their father a hug and kiss goodbye. Id. In affirming the __
directed verdicts for defendants, we explained: "As despicable
and wrongful as it may have been, the single threat made by the
officers is not sufficient to 'shock the conscience.'" Id. at 7. __
The facts alleged at bar are less severe than those
found insufficient in Souza and Pittsley. The minor teenagers in _____ ________
this case were compelled to attend a sexually explicit AIDS
awareness assembly without prior parent approval. While the
defendants' failure to provide opt-out procedures may have
displayed a certain callousness towards the sensibilities of the
minors, their acts do not approach the mean-spirited brutality
evinced by the defendants in Souza and Pittsley. We accordingly _____ ________
hold that the acts alleged here, taken as true, do not constitute
conscience shocking and thus fail to state a claim under Rochin. ______
B. Protected Liberty Interests B. Protected Liberty Interests ___________________________
The Supreme Court has held that the Fourteenth
Amendment encompasses a privacy right that protects against
significant government intrusions into certain personal
decisions. See Roe v. Wade, 410 U.S. 113, 152 (1973). This ___ ___ ____
right of privacy "has some extension to activities relating to
marriage, procreation, contraception, family relationships, and
-11-
child rearing and education." Id. (citations omitted). __
Nevertheless, the Supreme Court has explained that only those
rights that "can be deemed 'fundamental' or 'implicit in the
concept of ordered liberty' are included in this guarantee of
personal privacy." Id. (quoting Palko v. Connecticut, 302 U.S. __ _____ ___________
319, 325 (1937)). Regulations limiting these "fundamental
rights" may be justified "only by a 'compelling state interest' .
. . [and] must be narrowly drawn to express only the legitimate
interests at stake." Id. (citations omitted). __
1. Right to Rear Children 1. Right to Rear Children ______________________
Parent-plaintiffs allege that the defendants violated
their privacy right to direct the upbringing of their children
and educate them in accord with their own views. This, they
maintain, is a constitutionally protected "fundamental right" and
thus can only be infringed upon a showing of a "compelling state
interest" that cannot be achieved by any less restrictive means.
The genesis of the right claimed here can be found in
Meyer v. Nebraska, 262 U.S. 390 (1923), and Pierce v. Society of _____ ________ ______ __________
Sisters, 268 U.S. 510, 535 (1925). In Meyer, the Court struck _______ _____
down a state law forbidding instruction in certain foreign
languages in part because it arbitrarily interfered with the
"right of parents" to procure such instruction for their
children. Meyer, 262 U.S. at 400. In so holding, the Court _____
stated:
While this Court has not attempted to
define with exactness the liberty
[guaranteed by the due process clause of
the Fourteenth Amendment], the term has
-12-
received much consideration and some of
the included things have been definitely
stated. Without doubt, it denotes not
merely freedom from bodily restraint but
also the right of the individual to
contract, to engage in any of the common
occupations of life, to acquire useful
knowledge, to marry, to establish a home
and bring up children, to worship God
according to the dictates of his own
conscience, and generally to enjoy those
privileges long recognized at common law
as essential to the orderly pursuit of
happiness by free men.
Id. at 399. __
Two years later the Court in Pierce struck down a state ______
statute requiring public school attendance -- and thus precluding
attendance at parochial schools -- because it "unreasonably
interfere[d] with the liberty of parents or guardians to direct
the upbringing and education of children under their control."
268 U.S. at 534-35. The Meyer and Pierce decisions have since _____ ______
been interpreted by the Court as recognizing that, under our
Constitutional scheme, "the custody, care and nurture of the
child reside first in the parents." Prince v. Massachusetts, 321 ______ _____________
U.S. 158, 166 (1944); see Wisconsin v. Yoder, 406 U.S. 205, 232- ___ _________ _____
33 (1972).
Nevertheless, the Meyer and Pierce cases were decided _____ ______
well before the current "right to privacy" jurisprudence was
developed, and the Supreme Court has yet to decide whether the
right to direct the upbringing and education of one's children is
among those fundamental rights whose infringement merits
heightened scrutiny. We need not decide here whether the right
to rear one's children is fundamental because we find that, even
-13-
if it were, the plaintiffs have failed to demonstrate an
intrusion of constitutional magnitude on this right.5
The Meyer and Pierce cases, we think, evince the _____ ______
principle that the state cannot prevent parents from choosing a
specific educational program -- whether it be religious
instruction at a private school or instruction in a foreign
language. That is, the state does not have the power to
"standardize its children" or "foster a homogenous people" by
completely foreclosing the opportunity of individuals and groups
to choose a different path of education. Meyer, 262 U.S. at 402, _____
discussed in, Tribe, supra, 15-6 at 1319. We do not think, ____________ _____
however, that this freedom encompasses a fundamental
constitutional right to dictate the curriculum at the public
____________________
5 The issue is muddled because the Meyer and Pierce cases were _____ ______
decided on the grounds that the "statute as applied is arbitrary
and without reasonable relation to any end within the competency
of the state." Meyer, 262 U.S. at 403; Pierce, 268 U.S. at 534- _____ ______
36. Indeed, the opinions indicate that something less than the
current "compelling state interest" test was then used to
evaluate a substantive due process challenge involving one of the
listed liberty interests: "The established doctrine is that this
liberty may not be interfered with, under the guise of protecting
the public interest, by legislative action which is arbitrary or
without reasonable relation to some purpose within the competency
of the State to effect." Meyer, 262 U.S. at 399-400; see also _____ ________
Pierce, 268 U.S. at 535. ______
Moreover, it should be noted that these cases were decided in
the 1920's, before the Bill of Rights was incorporated into the
Fourteenth Amendment, and would probably be decided today on
First Amendment grounds. Rotunda & Nowak, Treatise on ____________
Constitutional Law: Substance and Procedure, 21.7 (2d ed. ______________________________________________
1992); Laurence H. Tribe, American Constitutional Law, 15-6 at ____________________________
1319-20 (1988) (suggesting that they reflect the First
Amendment's limit on the state's ability to "contract the
spectrum of available knowledge") (quoting Griswold v. ________
Connecticut, 381 U.S. 479, 482 (1965)). ___________
-14-
school to which they have chosen to send their children. See ___
Rotunda & Nowak, supra, 18.28 n.25. We think it is _____
fundamentally different for the state to say to a parent, "You
can't teach your child German or send him to a parochial school,"
than for the parent to say to the state, "You can't teach my
child subjects that are morally offensive to me." The first
instance involves the state proscribing parents from educating
their children, while the second involves parents prescribing
what the state shall teach their children. If all parents had a
fundamental constitutional right to dictate individually what the
schools teach their children, the schools would be forced to
cater a curriculum for each student whose parents had genuine
moral disagreements with the school's choice of subject matter.
We cannot see that the Constitution imposes such a burden on
state educational systems, and accordingly find that the rights
of parents as described by Meyer and Pierce do not encompass a _____ ______
broad-based right to restrict the flow of information in the
public schools.6
2. Right to be Free from Offensive Speech 2. Right to be Free from Offensive Speech ______________________________________
____________________
6 Plaintiffs claim that Alfonso v. Fern ndez, 606 N.Y.S.2d 259 _______ _________
(A.D.2 Dept. 1993), supports their position that they have a
fundamental right to preclude the schools from teaching subjects
that they find objectionable. The court in Alfonso did hold that _______
the parental right to direct the upbringing of their children was
fundamental and that it was violated by a program providing for
condom distribution at a public high school. However, the
court's holding specifically distinguished the condom
distribution program from exposure "to talk or literature on the
subject of sexual behavior," finding that the latter claim would
"falter in the face of the public school's role in preparing
students for participation in a world replete with complex and
controversial issues." Id. at 266. __
-15-
The minor plaintiffs maintain that the defendants'
conduct violated their privacy right to be free from "exposure to
vulgar and offensive language and obnoxiously debasing portrayals
of human sexuality." Plaintiffs cite no cases -- and we have
found none -- indicating that such a fundamental privacy right
exists. Rather, they attempt to extract the claimed privacy
right from the Supreme Court's First Amendment cases which uphold
the state's limited power to regulate or discipline speech to _______
protect minors from offensive or vulgar speech. See Bethel Sch. ___ ___________
Dist. No. 403 v. Fraser, 478 U.S. 675, 685 (1986)(cited for the _____________ ______
proposition that "[a] high school assembly or classroom is no
place for a sexually explicit monologue directed towards an
unsuspecting audience of teenage students"); FCC v. Pacifica ___ ________
Found., 438 U.S. 726 (1978). We agree with the district court ______
that these cases "do not create a private cause of action against
state officials for exposure" to patently offensive language.7
II. Procedural Due Process II. Procedural Due Process ______________________
The plaintiffs' third claim alleges that their
procedural due process rights under the Fourteenth Amendment were
violated when the defendants compelled the minor plaintiffs to
attend the Program without giving the parents advance notice and
____________________
7 The Supreme Court has explained that a special situation
pertains where a free exercise challenge is brought in
conjunction with a substantive due process challenge involving
the right of parents to direct the upbringing of their children.
See Employment Div. v. Smith, 494 U.S. 872, 881-82 (1990); ___ ________________ _____
Wisconsin v. Yoder, 406 U.S. 205, 233-34 (1972). We therefore _________ _____
analyze this "hybrid right" along with their free exercise
challenge. See infra. ___ _____
-16-
an opportunity to opt out of attending.
"In procedural due process claims, the deprivation by
state action of a constitutionally protected interest in 'life,
liberty, or property' is not in itself unconstitutional; what is
unconstitutional is the deprivation of such an interest without _______
due process of law." Zinermon v. Burch, 494 U.S. 113, 125 (1990) __________________ ________ _____
(quoting Parratt v. Taylor, 451 U.S. 527, 537 (1981)). _______ ______
Application of this prohibition requires a well settled two-stage
analysis. We first decide whether the asserted individual
interests are encompassed within the Fourteenth Amendment's
protection of "life, liberty or property." If protected
interests are implicated, we then must decide what procedures
constitute "due process of law." Ingraham v. Wright, 430 U.S. ________ ______
651, 672 (1977) (citations omitted). Protected liberty interests
may arise from two sources -- the Due Process Clause itself and
the laws of the states. Kentucky Dept. of Corrections v. _______________________________
Thompson, 490 U.S. 454, 460 (1989) (citations omitted). ________
The liberty preserved from deprivation without due
process includes the right "generally to enjoy those privileges
long recognized at common law as essential to the orderly pursuit
of happiness by free men." Meyer, 262 U.S. at 399. As _____
previously discussed, however, the liberty protected by the
Fourteenth Amendment does not encompass a right to be free from
exposure to speech which one regards as offensive. Thus, the
plaintiffs' asserted liberty interest, if one exists, must derive
from state law.
-17-
The plaintiffs contend that state law and the School
Committee's policy on "Sex Education" (the "Sex Education
Policy") confers a protected liberty interest, and that the
defendants' actions deprived them of it without due process.
Specifically, the complaint alleges that the defendants failed to
follow the school's Sex Education Policy, which provides:
The Committee believes that the public
schools can best transmit information on
human sexuality to students in the
context of the health education
continuum. Therefore, information and
instructional tools appropriate to the
age group will be used to include
instruction in human sexuality in the
curricular offerings on health. Positive ________
subscription, with written parental _________________________________________
permission, will be a prerequisite to _________________________________________
enrolling. _________
(Emphasis added.) The complaint further alleges that the parents
were not given advance notice of the contents of the Program or
an opportunity to opt out.
Defendants concede for the purposes of their motion
that the Sex Education Policy confers a liberty interest in
freedom from exposure to the content of the Program and in being
afforded an opportunity to opt out.8 They argue, however, that
the plaintiffs still fail to state a claim because the violation
of the Sex Education Policy was a "random and unauthorized" act
____________________
8 The plaintiffs also maintain that Mass. Ann. Laws ch. 71, 1
(1995) confers a protected liberty interest. That statute grants
a right to opt out from "instruction on disease" to students
whose "sincerely held religious beliefs" conflict with such
instruction. Defendants assume for the purposes of this appeal
that Mass. Gen. L. ch. 71, 1 is an alternative source for the
claimed liberty interest.
-18-
within the confines of the Parratt-Hudson doctrine. Hudson v. _______ ______ ______
Palmer, 468 U.S. 517 (1984); Parratt, 451 U.S. 527. The ______ _______
plaintiffs maintain that their claim is more akin to that stated
in Zinermon, and is thus outside the scope of the Parratt-Hudson ________ _______ ______
doctrine.
In Parratt, a state prisoner brought a 1983 action _______
because prison employees had negligently lost materials he had
ordered by mail. The Supreme Court ruled that the prisoner's
post-deprivation tort remedy was all the process that was due
because the state could not have provided any predeprivation
procedural safeguard to address the risk of this kind of random
and unauthorized deprivation. Parratt, 451 U.S. at 541. As the _______
Court explained, "the loss is not a result of some established
state procedure and the State cannot predict precisely when the
loss will occur. It is difficult to conceive of how the State
could provide a meaningful hearing before the deprivation takes
place." Id. In Hudson, the Supreme Court extended this __ ______
reasoning to intentional deprivations of property, explaining
that "[t]he state can no more anticipate the random and
unauthorized intentional conduct of its employees than it can
similar negligent conduct." Hudson, 468 U.S. at 533. ______
Parratt and Hudson preclude 1983 claims for the _______ ______
"random and unauthorized" conduct of state officials because the
state cannot "anticipate and control [such conduct] in advance."
Zinermon, 494 U.S. at 130. In addition, the Court has made clear ________
that unauthorized deprivations of property by state employees do
-19-
not constitute due process violations under the Fourteenth
Amendment so long as meaningful postdeprivation remedies are
available. Id. at 128-30. Moreover, the Court has emphasized __
that "no matter how significant the private interest at stake and
the risk of its erroneous deprivation, the State cannot be
required constitutionally to do the impossible by providing
predeprivation process." Id. at 129 (citations omitted). __
Therefore, "the proper inquiry under Parratt is whether the state _______ _____
is in a position to provide for predeprivation process." Id. at __
130 (quotation omitted).
Zinermon involved a due process claim against the state ________
doctors who admitted the plaintiff Burch as a "voluntary" mental
patient. Burch alleged that he was incompetent at the time of
his admission and should have been afforded the protections
provided by the involuntary placement procedure. Although the
Court found that Parratt-Hudson doctrine applied to deprivations _______ ______
of liberty, it nevertheless concluded that Burch had failed to
state a viable 1983 claim. Id. at 131-32. __
The court found that Burch's claim was not controlled
by Parratt and Hudson for three basic reasons. First, the Court _______ ______
explained that the timing of Burch's deprivation of liberty was
more predictable than in Parratt and Hudson. As the Court _______ ______
explained, "it is hardly unforeseeable that a person requesting
treatment for mental illness might be incapable of informed
consent." Id. at 136. Thus, "[a]ny erroneous deprivation will __
occur, if at all, at a specific, predicable point in the
-20-
admission process." Id. Second, the Court found that the state __
could have provided meaningful predeprivation process and
possibly averted the deprivation Burch alleged. Third, the Court
found that because the state had delegated the hospital officials
broad authority to "effect the very deprivation complained of
here," their conduct could not be characterized as "unauthorized"
in the same sense as the destruction of the prisoners' property
in Parratt and Hudson. _______ ______
The Parratt-Hudson-Zinermon trilogy "requires that _______ ______ ________
courts scrutinize carefully the assertion by state officials that
their conduct is 'random and unauthorized' . . . where such a
conclusion limits the procedural due process inquiry under 1983
to the question of the adequacy of state postdeprivation
remedies." Lowe v. Scott, 959 F.2d 323, 341 (1st Cir. 1992).9 ____ _____
Our examination here leads us to agree with the district court
that the plaintiffs' claim falls within the Parratt-Hudson _______ ______
doctrine.
The plaintiffs have not alleged any facts that would
bring their claim within the scope of Zinermon. They point to no ________
facts suggesting that the state could have predicted the
____________________
9 Other circuits have interpreted the doctrine similarly. See ___
Caine v. Hardy, 943 F.2d 1406, 1413 (5th Cir. 1991) (en banc) _____ _____
("Zinermon thus requires a hard look at a Parratt/Hudson defense ________ _______ ______
to determine whether the state officials' conduct, under all the
circumstances, could have been adequately foreseen and addressed
by procedural safeguards."); Easter House v. Felder, 910 F.2d ____________ ______
1387, 1402 (7th Cir.1990) (en banc), cert. denied, 111 S. Ct. 783 ____________
(1991) (concluding that "Zinermon holds only that predictable ________
deprivations of liberty and property which flow from authorized
conduct are compensable under 1983").
-21-
defendants' failure to give the required notice and opt-out
opportunity, nor do they suggest any reasonable additional
predeprivation procedures which would have meaningfully reduced
the risk of the due process violation alleged.
The plaintiffs contend that the deprivation cannot be
characterized as "random and unauthorized" because the
performance was planned well in advance. This contention ignores
both the nature of the deprivation and the relevant caselaw. The
deprivation alleged here is not the staging of the Program
itself, but rather the defendants' failure to follow the
procedures mandated by the Sex Education Policy. Moreover, the
Supreme Court has established that the Parratt-Hudson doctrine _______ ______
applies to both negligent and intentional tortious acts of state
actors, explaining that "it would be absurd to suggest that the
State hold a hearing to determine whether a [state official]
should engage in such conduct." Hudson, 468 U.S. at 533. That ______
reasoning is applicable here. The plaintiffs have not alleged
any facts from which a court could reasonably infer that any
defendant was vested with "the power and authority to effect the
very deprivation complained of here." Zinermon, 494 U.S. at ________
138.10 Rather, the Sex Education Policy states that
"[p]ositive subscription, with parental permission, will be a
prerequisite to enrolling," and, accordingly, vested no
____________________
10 As the district court noted, although three defendants were
members of the School Committee (which adopted the Sex Education
Policy), the plaintiffs do not allege that these defendants,
either individually or as a group, were authorized to circumvent
a policy adopted and enacted by the School Committee as a whole.
-22-
discretion in school officials. We therefore conclude that the
failure to follow the Sex Education Policy was a "random and
unauthorized" act within the confines of the Parratt-Hudson _______ ______
doctrine.
The second stage of a Parratt-Hudson analysis looks to _______ ______
whether the state has provided adequate postdeprivation remedies.
Lowe, 959 F.2d at 340 (discussing Parratt, 451 U.S. 527). The ____ _______
plaintiffs did not argue to the district court that the state
remedies were inadequate, relying instead on their belief that
Zinermon was controlling. On appeal, they do no more than state ________
baldly that "[n]o post-deprivation procedures can undo the
damaging influences which were impressed on the students during
the performance." Accordingly, we deem this point waived for
appellate review, see United States v. Zannino, 895 F.2d 1, 17 ___ _____________ _______
(1st Cir.), cert. denied, 494 U.S. 1082 (1990) (discussing the ____________
"settled appellate rule that issues adverted to in a perfunctory
manner, unaccompanied by some effort at developed argumentation,
are deemed waived"), and therefore find that the plaintiffs have
failed to state a procedural due process claim.
III. Free Exercise Clause III. Free Exercise Clause ____________________
Plaintiffs' fourth claim seeks both monetary and
declaratory relief, alleging that the defendants' endorsement and
encouragement of sexual promiscuity at a mandatory assembly
"imping[ed] on their sincerely held religious values regarding
chastity and morality," and thereby violated the Free Exercise
Clause of the First Amendment.
-23-
In Employment Div., Oregon Dep't of Human Resources v. _________________________________________________
Smith, 494 U.S. 872 (1990), the Supreme Court addressed a free _____
exercise challenge to a facially neutral and generally applicable
criminal statute. The Court held that the compelling interest
test did not apply to free exercise challenges to "generally
applicable prohibitions of socially harmful conduct." Id. at __
882-85. The Court explained that the First Amendment was not
offended by neutral, generally applicable laws, unless burdening
religion was the object of the law. Id. at 878-82. __
In 1994, Congress enacted the Religious Freedom
Restoration Act ("RFRA"), 42 U.S.C. 2000bb, in response to the
Supreme Court's decision in Smith. RFRA states, in relevant _____
part:
(a) In General -- Government shall not
substantially burden a person's exercise
of religion even if the burden results
from a rule of general applicability,
except as provided in subsection (b) of
this section.
(b) Exception -- Government may
substantially burden a person's exercise
of religion only if it demonstrates that
application of the burden to the person
--
(1) is in furtherance of a compelling
governmental interest; and
(2) is the least restrictive means of
furthering that compelling governmental
interest.
Id. RFRA states that it was enacted to bring the law back to its __
pre-Smith state. Id. _____ __
The plaintiffs' Free Exercise challenge raises two
complex constitutional issues. The threshold issue is whether
-24-
the Free Exercise Clause even applies to public education.11
If indeed the Free Exercise Clause applies to the plaintiffs'
claim, the question would then be whether their free exercise
rights were violated by the compulsory attendance at the Program.
Because the Program was staged in 1992, and RFRA was enacted in
1994, however, a cause of action under RFRA exists only if the
statute applies retroactively. For the reasons stated below, we
conclude that RFRA does not apply retroactively to plaintiffs'
claim for monetary damages.
The Supreme Court has explained that courts should
"decline[] to give retroactive effect to statutes burdening
private rights unless Congress ha[s] made clear its intent."
Landgraf v. USI Film Products, 114 S. Ct. 1483, 1499 (1994). ________ __________________
Such an intent will not be inferred where the statute "lacks
'clear, strong, and imperative' language requiring retroactive
application." Id. (citing United States v. Heth, 8 U.S. (3 __ _____________ ____
Cranch) 399, 413 (1806)). "The presumption against statutory
retroactivity has consistently been explained by reference to the
unfairness of imposing new burdens on persons after the fact."
Id. at 1500. __
RFRA states that it "applies to all Federal and State
law, whether statutory or otherwise, and whether adopted before
____________________
11 At least one federal judge has argued that the Free Exercise
Clause does not restrict the "prerogative of school boards to set
curricula," concluding that school boards' authority in such
matters is bounded only by the Establishment Clause. Mozert v. ______
Hawkins County Board of Education, 827 F.2d 1058, 1078-81 (6th ___________________________________
Cir. 1987) (Boggs, J., concurring).
-25-
or after the enactment of this Act." 42 U.S.C. 2000bb. The
statute was enacted to "restore the compelling interest test" and
provide judicial relief to persons "whose religious exercise has
been burdened in violation of this section." Id. While RFRA __
clearly provides access to declaratory and injunctive relief
against all laws burdening the free exercise of religion, we
think it lacks the "clear, strong, and imperative" language
necessary to create a retroactive cause of action for monetary
damages.
We have found no decisions in which a plaintiff was
awarded damages under RFRA for conduct occurring before the
statute's enactment. Rather, the decisions in which RFRA has
been found retroactive considered only the issue of whether to
grant injunctive relief, as opposed to an award of monetary
damages. See, e.g., Werner v. McCotter, 49 F.3d 1476, 1479-80 ___ ____ ______ ________
(10th Cir. 1995); Brown-El v. Harris, 26 F.3d 68, 69 (8th Cir. ________ ______
1994) (dicta); Boone v. Commissioner of Prisons, No. 93-5074, _____ ________________________
1994 WL 383590, 1994 U.S.Dist. LEXIS 10027 (E.D. Pa. July 21,
1994); Rust v. Clarke, 851 F. Supp. 377, 380 (D. Neb. 1994) ____ ______
(dicta); Allah v. Menei, 844 F. Supp. 1056, 1061 at n.15 (E.D. _____ _____
Pa. 1994); Lawson v. Dugger, 844 F. Supp. 1538, 1542 (S.D. Fla. ______ ______
1994). Equitable relief, however, is prospective rather than
retroactive, even when it applies to conduct occurring before a
statute's enactment. See Landgraf, 114 S. Ct. at 1500. We ___ ________
therefore find that the cases purportedly addressing
retroactivity do not support a finding that Congress intended to
-26-
create a retroactive cause of action for monetary damages under
RFRA. Accordingly, the plaintiffs' claim must be addressed under
Smith, the law in effect at the time of the defendants' _____
actions.12
The Supreme Court has explained that a "law that is
neutral and of general applicability need not be justified by a
compelling governmental interest even if the law has the
incidental effect of burdening a particular religious practice."
Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 113 S. ______________________________________ _______________
Ct. 2217, 2226-27 (1993) (citing Smith, 494 U.S. 872). The _____
plaintiffs do not allege, nor is it apparent from their claim,
that the compulsory attendance at the Program was anything but a
neutral requirement that applied generally to all students. Cf. ___
____________________
12 Even assuming that RFRA created a retroactive cause of action
for monetary damages, the plaintiffs' free exercise claim would
nevertheless be analyzed under Smith because all the defendants' _____
with the possible exception of the School Committee are protected
by qualified immunity from monetary damages.
As we explained above, qualified immunity shields public
officials from pecuniary liability unless they violated
constitutional or statutory norms that were "clearly established"
at the time of the violation. Anderson v. Creighton, 483 U.S. ________ _________
635, 639-40 (1987); Harlow, 457 U.S. at 818. ______
Because the Program was staged in 1992, the standard set forth
in Smith (rather than the less rigorous RFRA standard) must be _____
employed to determine whether the defendants violated a clearly
established right when they compelled the minor plaintiffs'
attendance at the Program. See Werner v. McCotter, 49 F.3d 1476, ___ ______ ________
1481-82 (10th Cir.), cert. denied, 115 S. Ct. 2625 (1995) _____________
(holding that prison officials were shielded from monetary
damages because their acts did not constitute violation of
clearly established rights under the Smith standard and the _____
defendants could not be responsible for violations created by the
change in the law); see also Young v. Lane, 922 F.2d 370, 378 _________ _____ ____
(7th Cir. 1991) (applying qualified immunity to damage claims for
alleged free exercise deprivations).
-27-
Id. (where city ordinance violated Free Exercise clause because __
it targeted the ritual slaughter of animals only by religious
groups).
Rather, plaintiffs allege that their case falls within
the "hybrid" exception recognized by Smith for cases that involve _____
"the Free Exercise Clause in conjunction with other
constitutional protections." Smith, 494 U.S. at 881 & n.1. The _____
most relevant of the so-called hybrid cases is Wisconsin v. _________
Yoder, 406 U.S. 205, 232-33 (1972), in which the Court _____
invalidated a compulsory school attendance law as applied to
Amish parents who refused on religious grounds to send their
children to school. In so holding, the Court explained that
Pierce stands as a charter of the rights ______
of parents to direct the religious
upbringing of their children. And, when
combined with a free exercise claim of
the nature revealed by this record, more
than merely a "reasonable relation to
some purpose within the competency of the
State" is required to sustain the
validity of the State's requirement under
the First Amendment.
Id. at 232 (discussing Pierce, 268 U.S. 510). We find that the __ ______
plaintiffs allegations do not bring them within the sweep of
Yoder for two distinct reasons. _____
First, as we explained, the plaintiffs' allegations of
interference with family relations and parental prerogatives do
not state a privacy or substantive due process claim. Their free
exercise challenge is thus not conjoined with an independently
protected constitutional protection. Second, their free exercise
claim is qualitatively distinguishable from that alleged in
-28-
Yoder. As the Court in Yoder emphasized: _____ _____
the Amish in this case have convincingly
demonstrated the sincerity of their
religious beliefs, the interrelationship
of belief with their mode of life, the
vital role that belief and daily conduct
play in the continued survival of Old
Order Amish communities and their
religious organization, and the hazards
presented by the State's enforcement of a
Statute generally valid as to others.
Id. at 235. Here, the plaintiffs do not allege that the one-time __
compulsory attendance at the Program threatened their entire way
of life. Accordingly, the plaintiffs' free exercise claim for
damages was properly dismissed.
The plaintiffs also seek a declaratory judgment
concerning the alleged infringement of their Free Exercise
Rights. The standing requirement of Article III necessitates
that the claimant "allege personal injury fairly traceable to the
defendant's allegedly unlawful conduct and likely to be addressed
by the requested relief." Allen v. Wright, 468 U.S. 737, 751 _____ ______
(1984). The Supreme Court has made clear that past exposure to
harm will not in and of itself confer standing upon a litigant to
obtain equitable relief "[a]bsent a sufficient likelihood that he
will again be wronged in a similar way." City of Los Angeles v. ___________________
Lyons, 461 U.S. 95, 104-06, 111 (1983). See also American Postal _____ ________ _______________
Workers Union v. Frank, 968 F.2d 1373, 1374-76 (1st Cir. 1992). _____________ _____
Here, the plaintiffs do not allege (nor does it appear) that they
are likely to again be subject to school activities that
allegedly violate their Free Exercise Rights. We accordingly
lack jurisdiction over the claim for declaratory relief and
-29-
conclude that it also was properly dismissed.
IV. Sexual Harassment IV. Sexual Harassment _________________
The plaintiffs' fifth claim alleges that the defendants
engaged in sexual harassment by creating a sexually hostile
environment, in violation of Title IX of the Education Amendments
of 1972. Title IX provides in relevant part:
No person in the United States shall, on __
the basis of sex, be excluded from ____________________
participation in, be denied the benefits
of, or be subjected to discrimination
under any education program or activity
receiving Federal financial assistance
. . . .
20 U.S.C. 1681. Because the relevant caselaw under Title IX is
relatively sparse, we apply Title VII caselaw by analogy. See ___
Franklin v. Gwinnett County Pub. Schs., 112 S. Ct. 1028, 1037 ________ ____________________________
(1990); Lipsett v. University of Puerto Rico, 864 F.2d 881, 899 _______ __________________________
(1st Cir. 1988).
Title VII, and thus Title IX, "strike at the entire
spectrum of disparate treatment of men and women," including
conduct having the purpose or effect of unreasonably interfering
with an individual's performance or creating an intimidating,
hostile or offensive environment. Meritor Sav. Bank, FSB v. _______________________
Vinson, 477 U.S. 57, 64-65 (1986); Lipsett, 864 F.2d at 899. As ______ _______
the Supreme Court explained:
Sexual harassment which creates a hostile
or offensive environment for members of
one sex is every bit the arbitrary
barrier to sexual equality at the
workplace that racial harassment is to
racial equality. Surely, a requirement
that a man or woman run a gauntlet of
sexual abuse in return for the privilege
-30-
of being allowed to work and make a
living can be as demeaning and
disconcerting as the harshest of racial
epithets.
Meritor, 477 U.S. at 67 (quoting Henson v. Dundee, 682 F.2d 897, _______ ______ ______
902 (1982)).
The elements a plaintiff must prove to succeed in such
type of sexual harassment claim are: (i) that he/she is a member
of a protected class; (ii) that he/she was subject to unwelcome
sexual harassment; (iii) that the harassment was based upon sex;
(iv) that the harassment was sufficiently severe or pervasive so
as to alter the conditions of plaintiff's education and create an
abusive educational environment; and (v) that some basis for
employer liability has been established. Id. at 66-73. See also __ ________
Harris v. Forklift Sys. Inc., 114 S. Ct. 367 (1993); Lipsett, 864 ______ __________________ _______
F.2d at 898-901.
Title IX is violated "[w]hen the [educational
environment] is permeated with 'discriminatory intimidation,
ridicule, and insult' that is 'sufficiently severe or pervasive
to alter the conditions of the victim's employment and create an
abusive . . . environment.'" Harris, 114 S. Ct. at 370 (quoting ______
Meritor, 477 U.S. 64-65 (1986)); Lipsett, 864 F.2d at 898. While _______ _______
a court must consider all of the circumstances in determining
whether a plaintiff has established that an environment is
hostile or abusive, it must be particularly concerned with (1)
the frequency of the discriminatory conduct; (2) its severity;
(3) whether it is physically threatening or humiliating rather
than a mere offensive utterance; and (4) whether it unreasonably
-31-
interferes with an employee's work performance. See Harris, 114 ___ ______
S. Ct. at 371. Although the presence or absence of psychological
harm or an unreasonable effect on work performance are relevant,
no single factor is required. See id. ___ __
The Court has explained that the relevant factors must
be viewed both objectively and subjectively. See id. at 1454. ___ __
If the conduct is not so severe or pervasive that a reasonable
person would find it hostile or abusive, it is beyond Title IX's
purview. See id. Similarly, if the plaintiff does not ___ __
subjectively perceive the environment to be abusive, the conduct
has not actually altered the conditions of her employment, and
there is no Title IX violation. See id. Thus, the court must ___ __
consider not only the actual effect of the harassment on the
plaintiff, but also the effect such conduct would have on a
reasonable person in the plaintiff's position.
Turning to the case at bar, we find that the facts
alleged here are insufficient to state a claim for sexual
harassment under a hostile environment theory. The plaintiffs'
allegations are weak on every one of the Harris factors, and when ______
considered in sum, are clearly insufficient to establish the
existence of an objectively hostile or abusive environment.
First, plaintiffs cannot claim that the offensive speech occurred
frequently, as they allege only a one-time exposure to the
comments.13
____________________
13 We do not hold that a one-time episode is per se incapable of ______
sustaining a hostile environment claim. The frequency of the
alleged harassment is a significant factor, but only one of many
-32-
We also think that the plaintiffs' allegations do not
establish that Landolphi's comments were so severe as to create
an objectively hostile environment. This finding is based on
both the context and content of her remarks. The remarks were
given to the entire ninth and tenth grades at what the defendants
labelled an "AIDS awareness program." Significantly, the
plaintiffs do not allege that they were required to participate
in any of the offensive skits or that they were the direct
objects of Landolphi's sexual comments.
Moreover, during his introductory remarks, defendant
Gilchrist advised students that the purpose of the Program was to
educate them about the dangers of sexual activity, stating:
We [] see young people in their twenties
who are infected with the AIDS
virus. . . . It means they caught the
virus when they were in high school, and
will be dead before they are thirty years
old. That's why the doctors are scared,
and they want you to hear the message.
Now, sometimes to hear a message, it
takes a special messenger. And today, we
have a very special messenger, who uses
probably one of the most effective forms
of communication -- humor. I want you to
listen carefully. Enjoy it, but also
remember the message.
Similarly, Landolphi stated in her opening remarks that "[w]e're
going to talk about AIDS, but not in the usual way." These
prefaces framed the Program in such a way that an objective
person would understand that Landolphi's allegedly vulgar sexual
____________________
to be considered in determining whether the conduct was
"sufficiently severe or pervasive" that a reasonable person would
find that it had rendered the environment hostile or abusive.
-33-
commentary was intended to educate the students about the AIDS
virus rather than to create a sexually hostile environment.
These introductions also belie the plaintiffs' claim
that Landolphi's speech was physically threatening and
humiliating, rather than a mere offensive utterance.
Landolphi's remarks were not directed specifically at the
plaintiffs and were couched in an attempt to use humor to educate
the students on sex and the AIDS virus. In this context, while
average high school students might have been offended by the
graphic sexual discussions alleged here, Landolphi's remarks
could not reasonably be considered physically threatening or
humiliating so as to create a hostile environment.
Similarly, the plaintiffs' allegations establish that
the Program did not significantly alter their educational
environment from an objective standpoint. The Program consisted
of two ninety-minute sex-education presentations, and although
the plaintiffs allege that "coarse jesting, sexual innuendo, and
overtly sexual behavior took place for the weeks following the
Program," they fail to explain how the coarse jesting and overtly
sexual behavior "create[d] an atmosphere so infused with
hostility toward members of one sex that [it] alter[ed] the
[educational environment] for them." Lipsett, 864 F.2d at 897. _______
In fact, they allege that the offensive behavior was visited on
"those students," regardless of gender, "who were not inclined to
accept 'the message' about human sexuality." If anything, then,
they allege discrimination based upon the basis of viewpoint,
-34-
rather than on the basis of gender, as required by Title IX. We
therefore find that their claim under Title IX fails.
CONCLUSION CONCLUSION
We have considered the other claims of the plaintiffs
and find them similarly without merit.
Affirmed. Affirmed ________
-35-
Related
Meyer v. Nebraska
262 U.S. 390 (Supreme Court, 1923)
Pierce v. Society of Sisters
268 U.S. 510 (Supreme Court, 1925)
Monroe v. Pape
365 U.S. 167 (Supreme Court, 1961)
Griswold v. Connecticut
381 U.S. 479 (Supreme Court, 1965)
Wisconsin v. Yoder
406 U.S. 205 (Supreme Court, 1972)
Roe v. Wade
410 U.S. 113 (Supreme Court, 1973)
Federal Communications Commission v. Pacifica Foundation
438 U.S. 726 (Supreme Court, 1978)
Parratt v. Taylor
451 U.S. 527 (Supreme Court, 1981)
Harlow v. Fitzgerald
457 U.S. 800 (Supreme Court, 1982)
City of Los Angeles v. Lyons
461 U.S. 95 (Supreme Court, 1983)
Hudson v. Palmer
468 U.S. 517 (Supreme Court, 1984)
Allen v. Wright
468 U.S. 737 (Supreme Court, 1984)
Daniels v. Williams
474 U.S. 327 (Supreme Court, 1986)
Meritor Savings Bank, FSB v. Vinson
477 U.S. 57 (Supreme Court, 1986)
Bethel School District No. 403 v. Fraser
478 U.S. 675 (Supreme Court, 1986)
Anderson v. Creighton
483 U.S. 635 (Supreme Court, 1987)
Kentucky Department of Corrections v. Thompson
490 U.S. 454 (Supreme Court, 1989)
Employment Div., Dept. of Human Resources of Ore. v. Smith
494 U.S. 872 (Supreme Court, 1990)
Franklin v. Gwinnett County Public Schools
503 U.S. 60 (Supreme Court, 1992)
Harris v. Forklift Systems, Inc.
510 U.S. 17 (Supreme Court, 1993)
Cite This Page — Counsel Stack
Bluebook (online)
Brown v. Hot, Sexy & Safer, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brown-v-hot-sexy-safer-ca1-1995.