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

Marcks, Mary
George J.

E. Frantz, Richard

Betses,

Suzanne

School Committee, Wendy

H. Moser,

Landolphi

and

David S.
Hot,

Sexy

Troughton,
&

Safer

Productions,
Phillips,
________

Inc.;

Frances S.
Cohen,
___________________

with

Hill & Barlow, Susan Wunsch and

______________ _____________

Liberties Union

Foundation were

on brief for

whom

Monica L.
__________

Massachusetts Civil

appellees Michael

Gilchrist and Judith Hass.

____________________

October 23, 1995

____________________
____________________

Of the District of Puerto Rico, sitting by designation.

TORRUELLA, Chief Judge.

TORRUELLA, Chief Judge.
___________

and their parents.

attend an

their

The minors allege that they were compelled to

indecent AIDS and

public

high school

Productions ("Hot,

alia, that
____

The plaintiffs are two minors

sex education program

by

defendant

Sexy, and Safer").

Hot,

conducted at

Sexy

and

Safer

Plaintiffs allege, inter

_____

the compelled attendance deprived the minors of their

privacy rights and their right to an educational environment free

from

sexual

defendants'

harassment.

motion

Procedure 12(b)(6).

to

The

dismiss

district

under

court

Federal

granted

Rule

of

the

Civil

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

Richard Dubreuil

("the Dubreuils").

alleges the following facts,

of this

appeal.

mandatory,

On April

school-wide

Both students were

consisted

of a

defendants as

Program

The

and Carol and

plaintiffs' complaint

which we take as true

8, 1992, Mesiti and

"assembly"

for purposes

Silva attended a

at Chelmsford

High

fifteen years old at the time.

School.

The assembly

ninety-minute presentation characterized

an AIDS awareness

was staged

contracting

Brown ("the Browns"),

through

by defendant

program (the

"Program").

Suzi Landolphi

defendant Hot,

Sexy,

and

by the

The

("Landolphi"),

Safer, Inc.,

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

complaint alleges that Landolphi:

were

going to

have

a "group

audience.

Specifically,

the

1) told the students that they

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

masturbation;

promiscuous

premarital

sex;

simulated

5) characterized the loose pants worn by one minor

as "erection wear";

6) referred

to being in

"deep sh--"

anal sex; 7) had a male minor lick an oversized

after which

4)

after

condom with her,

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"

minor

that

he

with her

was

not

for the camera;

having

enough

9) informed a

orgasms;

10)

male

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

of

Landolphi's speech

Mesiti

and Silva.

and

that the sexually

explicit nature

behavior humiliated

and intimidated

Moreover,

many students

copied Landolphi's

routines and

generally displayed overtly sexual

weeks following

harassment.

The

minor plaintiffs

behavior in the

the Program, allegedly exacerbating

complaint does

not allege that

actually participated in

the minors'

either of

any of the

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.

Judith Hass

In March

("Hass"), then chairperson of

Teacher Organization

Hot, Sexy,

(the

and Safer.

and

promotional videotape

performances

and

administration.

Committee

behalf

of

(the "School Committee"),

with Hot, Sexy, and

the

with

Gilchrist,

the school physician,

of segments of

then recommended

On

negotiations

defendant Michael

M.D., also a member of the PTO, as well as

viewed a

the Chelmsford Parent

"PTO"), initiated

Hass

1992, defendant

Landolphi's past

Program

defendant

to the

school

Chelmsford

School

Hass executed

an agreement

Safer, and authorized the release

of Chelmsford school funds to pay Landolphi's fee.

of $1,000

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.

required

permission"

sexuality."

school

policy

"[p]ositive

as

The

adopted

by

subscription,

prerequisite

to

plaintiffs allege,

the

with

School

Committee

written

parental

"instruction

however, that

in

human

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

dismiss plaintiffs' complaint, pursuant

Procedure

relief

12(b)(6), for

failure

may be granted, and

defendants'

motion

to

to Federal Rule of Civil

to state

also dismissed the

claim upon

which

state law claims

under

the supplemental

1367.1

The

jurisdiction principles

district court

deferred entry

of 28

of final

U.S.C.

judgment,

giving plaintiffs leave to file an amended complaint curative

the deficiencies by February

so, and final judgment

10, 1995.

Plaintiffs failed

was entered on March 3,

of

to do

1995, dismissing

their claims.

STANDARD OF REVIEW
STANDARD OF REVIEW

We

dismissal

Co., 14
___

exercise de novo
________

review over

of a claim under Rule 12(b)(6).

a district

court's

Vartanian v. Monsanto
_________
________

F.3d 697, 700 (1st Cir. 1994); Kale v. Combined Ins. Co.
____
_________________

of America, 924
__________

allegations

F.2d 1161, 1165 (1st Cir. 1991).

of the

complaint

as true,

We accept the

and determine

whether,

under any theory, the allegations are sufficient to state a cause

of action in accordance with the law.

Knight v. Mills,
______
_____

836 F.2d 659

Vartanian, 14 F.3d at 700;

_________

(1st Cir.

1987).

Although,

our

review is plenary, an appeal is not an opportunity to conjure new

____________________

28 U.S.C.

exercise

1367(c)

supplemental

gives a court discretion

jurisdiction

over a

to "decline to

[state

law]

claim

[where] the district court has dismissed all claims over which it
has original jurisdiction."

-5-

arguments

not

raised

before

the

Massachusetts Inst. of Tech., 950

_____________________________

cert. denied, 112 S. Ct.

_____________

only

district

F.2d 13, 22

1939 (1992).

well pleaded facts are taken as

court.

McCoy v.
_____

(1st Cir. 1991),

In addition, "[b]ecause

true, we will not accept a

complainant's unsupported conclusions or interpretations of law."

Washington Legal Found.

________________________

962, 971 (1st

district

v. Massachusetts Bar Found.,

_________________________

Cir. 1993)(citations

court's

sufficient grounds.

dismissal

omitted).

We

under

any

order

Id.
__

DISCUSSION
DISCUSSION

993 F.2d

may affirm

independently

The

plaintiffs

relief, alleging

minor

and

rights

under

both

declaratory

that the school sponsored

plaintiffs of:

Fourteenth

seek

(1)

the First

and

(2) their

under the First

substantive

Fourteenth

monetary

program deprived the

their privacy rights

Amendments;

and

due process

Amendments; (3)

their

procedural due process rights under the Fourteenth Amendment; and

(4) their First

(in

Amendment rights under the Free

conjunction with

right to direct

Plaintiffs

hostile

also

deprivation of

and control the

allege

that

the parent

the Program

Education Amendments of 1972, 20 U.S.C.

initial matter,

plaintiffs'

upbringing of their

created

educational environment in violation of

As an

Exercise Clause

children).

sexually

Title IX of the

1681 et seq.2
__ ___

we briefly

address defendants'

assertion of

the defense of qualified immunity.

Plaintiffs seek

____________________

The complaint also

alleges five state

law claims which

are

irrelevant for purposes of this appeal.

-6-

monetary damages

the

under 42 U.S.C.

affirmative defense

public

officials

of

1983,3

qualified

performing

and defendants assert

immunity, which

discretionary

functions

shields

from

liability for civil

damages "insofar as

their conduct does

not

violate clearly established statutory or constitutional rights of

which

reasonable

Fitzgerald,
__________

457 U.S.

established" if,

person

800,

at the

right."

relevant

would understand

have

known."

818 (1982).

time of the

contours of the right [are]

official

would

Harlow
______

A right

is

"clearly

alleged violation,

"[t]he

sufficiently clear that a reasonable

that what he

is doing

violates that

Anderson v. Creighton, 483 U.S. 635, 640 (1987).

________
_________

question is

believed his actions

v.

whether a

reasonable official

"[T]he

could have

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

______
_____

(1st Cir. 1995) (citations omitted).

The

Supreme

837, 844

Court

has

explained that: "A necessary

whether

the

concomitant to the determination of

constitutional right

'clearly established'

determination of

at the

asserted

time

whether the plaintiff has

232 (1991).

immunity,

of

appeals

is

acted is

the

asserted a violation

Siegert v. Gilley, 500

_______
______

Therefore, "before

court

a plaintiff

the defendant

of a constitutional right at all."

226,

by

even reaching

must

ascertain

U.S.

qualified

whether

the

appellants have asserted a violation of a constitutional right at

____________________

Section 1983 provides a remedy

color

of

state

law,

constitutional rights.

deprives
42 U.S.C.

-7-

against any person who, under

a

citizen

1983.

of

his

or

her

all."

49

Watterson v. Page, 987 F.2d 1, 7 (1st

_________
____

F.3d

at

reasonableness

844.

Thus,

inquiry,

as

"a

Cir. 1993); Singer,

______

predicate

plaintiff

must

to

the

objective

establish

that

particular defendant violated the plaintiff's federally protected

rights."

Singer, 49 F.3d at 844 (citations omitted).

______

Accordingly, we first

claims to determine

federal

law.

If

whether it

any

of

address each of

states a cause

the

claims

meet

the plaintiffs'

of action

this

under

threshold

requirement,

we will

then

proceed to

the

issue of

qualified

immunity.

I.
I.

Privacy Rights and Substantive Due Process

Privacy Rights and Substantive Due Process
__________________________________________

shall

The

Fourteenth

Amendment

. .

deprive any

person

without due

process

of law."

substantive component

government actions

of due

1991)

process) (citing

U.S.

v. Warish, 927
______

due

Monroe v. Pape,
______
____

process

State

or property

Const. amend

process protects

substantive

"[n]o

liberty

XIV.

The

against "certain

of the procedures

Daniels v. Williams, 474

_______
________

See also Pittsley

________ ________

(comparing

of life

regardless of the fairness

used to implement them."

(1986).

provides that

U.S. 327, 331

F.2d 3, 6

to

365 U.S. 167,

(1st Cir.

procedural

due

171-72 (1961)).

There

are two

theories

under which

substantive due process claim.

demonstrate a

deprivation of

interest protected

by the

F.2d at 6 (citing Meyer

_____

Under

the second,

plaintiff may

bring

Under the first, a plaintiff must

an identified liberty

Fourteenth Amendment.

or property

Pittsley, 927
________

v. Nebraska, 262 U.S. 390, 399

________

plaintiff is

-8-

not

required to

(1923)).

prove

the

deprivation

of a

rather,

must prove

he

conscience."

specific

Id. at 6
__

165, 172 (1952)).

attendance at

liberty or

that

the

property interest,

state's conduct

(quoting Rochin v.
______

but,

"shocks

the

California, 342 U.S.

__________

Plaintiffs contend that compelling the minors'

the Program constitutes a

substantive due process

violation under both tests.

A.
A.

Conscience Shocking Behavior

Conscience Shocking Behavior
____________________________

Plaintiffs'

claim

conscience

shocking

behavior

plaintiffs

to attend

In

the

when

the Program.

standard for analyzing claims

Rochin.
______

that

defendants

they

The

compelled

engaged

the

Supreme Court

in

minor

set the

of conscience shocking behavior in

that case, the Court held

that the government could

not

use

against

evidence

his

will

egregious that

"hardened

obtained

by pumping

because

the

it "shock[ed]

sensibilities."

state

defendant's

actor's conduct

the conscience" and

Rochin, 342
______

stomach

was

so

offended even

U.S. at 172.

The Court

explained that the stomach pumping employed by the state was "too

close

to

the

rack

differentiation."

and

screw

to

permit

of

Id.
__

Similarly, we have found "conscience

only

where the

constitutional

state

physical conduct."

actors engaged

Souza v. Pina,
_____
____

1995); Harrington v.
__________

Almy, 977
____

(reasonable fact-finder could

where a police officer

shocking" conduct

in "extreme

53 F.3d

or intrusive

423, 427 (1st

F.2d 37, 43-44

(1st Cir.

Cir.

1992)

find "conscience shocking" conduct

charged with child abuse was

required to

-9-

take

penile

reinstatement).

plethysmograph4

See also Garc a

_________ ______

as

v. Meira,
_____

condition

817 F.2d

(10th Cir. 1987) (corporal punishment of students may

conscience"

if

disproportionate

it

"caused

to the need

injury

so

severe,

presented, and was

of

his

650, 655

"shock the

was

so

so inspired by

malice or

abuse

sadism . . . that it amounted to a brutal and inhumane

of official power") (quoting Hall v. Tawney, 621 F.2d 607,

____
______

613 (4th Cir. 1980)).

Although we

words or verbal

behavior

have not

harassment may

in violation

of

foreclosed the

possibility that

constitute "conscious

substantive due

shocking"

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

which he

the suicide of her son by conducting press conferences in

encouraged the media

to link

the son to

a string

of

serial

murders.

The

plaintiff

further

alleged

that

prosecutor knew of her son's suicidal tendencies and should

known

that

accusations.

he would

Although

take

his

own life

as

result of

the

have

the

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
the

A penile plethysmograph assesses a person's sexual profile by

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

street again, you'll never see him again."

5.

they

When

Pittsley, 927 F.2d at

________

the police subsequently arrested the children's father,

"use[d] vulgar language"

give their

father on the

and refused

father a hug and kiss goodbye.

directed verdicts

to let

Id.
__

for defendants, we explained:

and wrongful as it may

the children

In affirming the

"As despicable

have been, the single threat made

officers is not sufficient to 'shock the conscience.'"

by the

Id. at 7.
__

The

facts alleged

at bar are

found insufficient in Souza and Pittsley.

_____
________

this

case were

awareness

compelled

to attend

assembly without

defendants'

failure

to

prior

provide

displayed a certain callousness

minors, their

evinced

acts do

less severe

The minor teenagers in

sexually explicit

parent approval.

opt-out

than those

procedures

AIDS

While

the

may

have

towards the sensibilities of the

not approach the

mean-spirited brutality

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.
B.

The

Protected Liberty Interests

Protected Liberty Interests
___________________________

Supreme

Court

has

held

that

the

Fourteenth

Amendment

encompasses

significant

decisions.

government

See Roe
___ ___

right of privacy

privacy right

intrusions

v. Wade,
____

that

into

certain

410 U.S. 113,

"has some extension

marriage, procreation, contraception,

protects

against

personal

152 (1973).

This

to activities relating

to

family relationships,

and

-11-

child

rearing

and

education."

Id.
__

(citations

omitted).

Nevertheless,

rights

the Supreme

that "can

concept of

be

325

(1937)).

explained that

deemed 'fundamental'

ordered liberty'

personal privacy."

319,

Court has

are included

Id. (quoting
__

only those

or 'implicit

in the

in this guarantee

Palko v. Connecticut, 302

_____
___________

Regulations

limiting

these

of

U.S.

"fundamental

rights" may be justified "only by a 'compelling state interest' .

. . [and]

must be narrowly drawn to express

interests at stake."

1.
1.

Id. (citations omitted).

__

Right to Rear Children

Right to Rear Children
______________________

Parent-plaintiffs allege that

their privacy

and educate

only the legitimate

right to direct

them in

the defendants

the upbringing of

accord with

their own

violated

their children

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

Meyer v.
_____

U.S. 510, 535 (1925).

state

languages

"right

found in

Nebraska, 262 U.S. 390 (1923), and Pierce v. Society of

________
______
__________

Sisters, 268
_______

down

right claimed here can be

of

children.

law

In Meyer, the
_____

forbidding instruction

in part

because

parents"

to

it arbitrarily

procure

Meyer, 262 U.S.

_____

such

at 400.

in

certain

define

this
with

Court has

not

exactness

their

holding, the

Court

attempted to
the

[guaranteed by the due process

the Fourteenth Amendment],

the

for

stated:

While

foreign

interfered with

instruction

In so

Court struck

liberty
clause of

the term

has

-12-

received much consideration

the included things have
stated.

Without

and some

been definitely

doubt, it

merely freedom from bodily

also

the

right

contract, to
occupations

of

of

the

denotes not
restraint but

individual

to

engage in any of the common

of

life, to

knowledge, to marry,
and bring

up

according

to the

acquire useful

to establish a home

children, to
dictates

worship

God

of

own

his

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

interfere[d] with the

the upbringing

268 U.S. at

been

interpreted by

The

it

"unreasonably

of children under

the Court

as recognizing

custody,

child reside first in the parents."

care and

to direct

their control."

Meyer and Pierce decisions

_____
______

scheme, "the

U.S. 158, 166 (1944);

because

liberty of parents or guardians

and education

534-35.

Constitutional

schools --

have since

that, under

our

nurture of

the

Prince v. Massachusetts, 321

______
_____________

see Wisconsin v. Yoder, 406 U.S. 205, 232___ _________

_____

33 (1972).

Nevertheless, the Meyer

_____

well

before the

developed,

current

and Pierce cases were

______

"right to

and the Supreme Court

decided

privacy" jurisprudence

has yet to

was

decide whether the

right to direct the upbringing and education of one's children is

among

those

fundamental

heightened scrutiny.

to

We

rights

whose

infringement

need not decide here whether

merits

the right

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

principle

specific

Meyer
_____

and

Pierce
______

that the state cannot

educational

program

instruction

at a

private

language.

That

is,

"standardize

whether

school or

does

or "foster

to choose a different path of education.

supra,
_____

15-6 at

it

instruction

completely foreclosing the opportunity

discussed in, Tribe,

____________

think,

evince

the

prevent parents from choosing a

--

the state

its children"

cases, we

not

have

be

religious

in a

foreign

the power

a homogenous

to

people" by

of individuals and groups

Meyer, 262 U.S. at 402,

_____

1319.

We do not

think,

however,

that

constitutional

this

freedom

encompasses

right to

dictate

the curriculum

fundamental

at the

public

____________________

The

decided

issue is muddled because the Meyer

_____

on the grounds that the "statute as applied is arbitrary

and without reasonable relation to any

of the state."
36.

end within the competency

Meyer, 262 U.S. at 403; Pierce, 268 U.S. at 534_____

______

Indeed, the

current

and Pierce cases were

______

opinions indicate that something less

"compelling

state

interest"

test

was

then

than the
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

Fourteenth
First

Bill of Rights was incorporated

Amendment, and

Amendment

grounds.

would

probably be

Rotunda

&

into the

decided today

Nowak,

Treatise

on

on

____________
Constitutional Law:
Substance and Procedure,
______________________________________________

21.7 (2d

1992); Laurence H. Tribe, American Constitutional Law,

____________________________
1319-20

(1988)

Amendment's
spectrum

(suggesting

limit
of

on

the

available

that
state's

they

reflect

ability

knowledge")

to

(quoting

ed.

15-6 at

the

First

"contract
Griswold
________

the

v.

Connecticut, 381 U.S. 479, 482 (1965)).

___________

-14-

school

Rotunda

to which they

&

Nowak,

have chosen to

supra,

18.28

send their children.

n.25.

We

think

See
___

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

child

the parent to

subjects that

instance involves

their

say to

the state, "You

are morally

offensive to

the state

children, while

can't teach

me."

The first

proscribing parents from

the second

what the state shall teach their

involves parents

children.

my

educating

prescribing

If all parents had a

fundamental constitutional right to dictate individually what the

schools

teach their

cater a

curriculum for each

moral disagreements

We

cannot see

children, the

student whose

be forced

parents had

with the school's choice

that the

state educational

schools would

to

genuine

of subject matter.

Constitution imposes

systems, and accordingly find

such a

burden on

that the rights

of parents

as described by Meyer
_____

broad-based

right to

and Pierce do not

______

restrict the

flow

encompass a

of information

in the

public schools.6

2.
2.

Right to be Free from Offensive Speech

Right to be Free from Offensive Speech
______________________________________

____________________

Plaintiffs claim

(A.D.2

that Alfonso v. Fern ndez, 606

_______
_________

Dept. 1993),

supports

their position

N.Y.S.2d 259

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

However,

court's

distribution at
holding

public

specifically

high

school.

distinguished

distribution program from exposure "to

students

in the

face of

the public

for participation in

controversial issues."

the latter claim would

school's role

a world replete

Id. at 266.
__

condom

talk or literature on the

subject of sexual behavior," finding that

"falter

the

the

in preparing

with complex and

-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

found

exists.

sexuality."

Plaintiffs

none -- indicating

Rather, they

cite no cases

that such a

attempt to

-- and we

have

fundamental privacy right

extract

the claimed

privacy

right from the Supreme Court's First Amendment cases which uphold

the state's
_______

protect

limited power

to regulate or

minors from offensive or vulgar speech.

Dist. No. 403 v. Fraser, 478

_____________
______

proposition that

place

for

"[a] high

a sexually

unsuspecting

Found.,
______

discipline speech

audience

438 U.S. 726

See Bethel Sch.

___ ___________

U.S. 675, 685 (1986)(cited for

school assembly

explicit

monologue

of teenage

(1978).

or classroom

We agree

the

is no

directed towards

students");

to

FCC v.
___

an

Pacifica
________

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.
II.

Procedural Due Process

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

____________________

The Supreme

pertains

where

Court has
a

conjunction with a

free

explained
exercise

substantive due

that a

special situation

challenge

is

brought

process challenge

in

involving

the

right of parents to direct the upbringing of their children.

See
___

Employment Div.
________________

Wisconsin
_________
analyze

v. Smith,
_____

v. Yoder, 406 U.S.

_____
this

challenge.

"hybrid

right"

494

U.S.

872, 881-82

205, 233-34 (1972).

along with

See infra.
___ _____

-16-

their

(1990);

We therefore
free

exercise

an opportunity to opt out of attending.

"In procedural

state action

of a constitutionally protected

liberty, or property'

unconstitutional is

Parratt
_______

deprivation by

interest in 'life,

is not in itself unconstitutional; what is

the deprivation of such

due process of law."

__________________

(quoting

due process claims, the

an interest without
_______

Zinermon v. Burch, 494 U.S. 113, 125 (1990)

________
_____

v.

Taylor,
______

451

U.S.

527,

537

(1981)).

Application of this prohibition requires a well settled two-stage

analysis.

interests

We

are

first

decide whether

encompassed

within

the

the

asserted

Fourteenth

individual

Amendment's

protection

interests

of

"life,

liberty

are implicated,

constitute

or

we then

Ingraham v.
________

651, 672 (1977) (citations omitted).

the

laws

of

protected

what procedures

Wright, 430 U.S.

______

Protected liberty interests

sources -- the Due Process

the states.

If

must decide

"due process of law."

may arise from two

property."

Clause itself and

Kentucky Dept. of Corrections

_______________________________

v.

Thompson, 490 U.S. 454, 460 (1989) (citations omitted).

________

The

liberty

process includes

preserved

from deprivation

the right "generally to

without

due

enjoy those privileges

long recognized at common law as essential to the orderly pursuit

of happiness

previously

by

free

discussed,

men."

Meyer,
_____

however,

Fourteenth Amendment does not

262

the liberty

U.S.

at 399.

protected

encompass a right to be

by

As

the

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

Committee's

Policy")

policy

confers

on

contend that

"Sex

a protected

state law and

Education"

liberty

(the

interest,

"Sex

the School

Education

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

schools can best transmit

human

sexuality

context

of

the

continuum.

group

instruction

information on

students
health

in

tools

will

be

in

human

appropriate to
used

the

education

Therefore, information

instructional
age

to

the public

to

the

include

sexuality in

curricular offerings on health.

and

the

Positive
________

subscription,
with
written
parental
_________________________________________
permission, will be a prerequisite to
_________________________________________
enrolling.
_________

(Emphasis added.)

were not

The complaint further alleges that the parents

given advance notice of the

an opportunity to opt out.

contents of the Program or

Defendants concede

that

the

Sex Education

Policy

freedom from exposure to

purposes

confers a

of their

liberty

motion

interest in

the content of the Program and in being

afforded an opportunity to

the

for the

opt out.8

They argue,

however, that

plaintiffs still fail to state a claim because the violation

of the Sex Education

Policy was a "random and

unauthorized" act

____________________

The plaintiffs also maintain that Mass.

Ann. Laws ch. 71,

(1995) confers a protected liberty interest.

a

right to

whose

opt out

"sincerely

instruction.

from "instruction

held

religious

Defendants assume for the

that Mass. Gen. L.

ch. 71,

1 is an

claimed liberty interest.

-18-

That statute grants

on disease"

beliefs"

to students

conflict with

such

purposes of this appeal

alternative source for the

within the confines

Palmer,
______

468 U.S.

plaintiffs

in

of the Parratt-Hudson
_______ ______

517

(1984);

Parratt,
_______

doctrine.

451

U.S.

Hudson
______

527.

v.

The

maintain that their claim is more akin to that stated

Zinermon, and is thus outside the scope of the Parratt-Hudson

________
_______ ______

doctrine.

In Parratt,
_______

because prison

a state prisoner

employees had

brought a

1983 action

negligently lost materials

he had

ordered by mail.

The

post-deprivation tort

because

the state

Supreme Court ruled

remedy was

could

and unauthorized deprivation.

Court

explained, "the loss is

state procedure and the State

loss will

occur.

could provide

place."

reasoning

that

Id.
__

It is

In

unauthorized

state

can

of random

Parratt, 451 U.S. at 541.

_______

not a result

As

the

Supreme

more

intentional conduct

the

how the State

the deprivation takes

Court

extended

of property,

anticipate

of its

the

of some established

cannot predict precisely when

deprivations

no

was due

predeprivation

the risk of this kind

difficult to conceive of

Hudson,
______

prisoner's

process that

provided any

a meaningful hearing before

to intentional

"[t]he

all the

not have

procedural safeguard to address

that the

the

this

explaining

random

employees than

and

it can

similar negligent conduct."

Parratt
_______

and

Hudson, 468 U.S. at 533.

______

Hudson preclude
______

"random and unauthorized" conduct

state cannot "anticipate and

Zinermon, 494 U.S. at 130.

________

1983

claims for

the

of state officials because the

control [such conduct] in advance."

In addition, the Court has made clear

that unauthorized deprivations of

-19-

property by state employees do

not

constitute

Amendment

due

so long

available.

process

as

violations

meaningful

Id. at 128-30.
__

under

the

Fourteenth

postdeprivation remedies

Moreover, the

are

Court has emphasized

that "no matter how significant the private interest at stake and

the

risk

of

its

erroneous deprivation,

required constitutionally

predeprivation

process."

to

do

the

Id.
__

at

the

State

impossible

129

cannot be

by

providing

(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.

his

Burch alleged

admission

provided by

that he was incompetent

and should

have

the involuntary

liberty, it nevertheless

state a viable

more

found that Burch's claim

that the timing of Burch's

predictable than

in

Although the

had failed to

was not controlled

Parratt and
_______

Hudson.
______

is hardly unforeseeable that

treatment

mental illness

might

First,

the Court

deprivation of liberty was

explained, "it

for

protections

Id. at 131-32.
__

by Parratt and Hudson for three basic reasons.

_______
______

explained

of

doctrine applied to deprivations

concluded that Burch

1983 claim.

The court

afforded the

placement procedure.

Court found that Parratt-Hudson

_______ ______

of

been

at the time

be

As

the

Court

a person requesting

incapable of

informed

consent."

occur,

Id. at
__

if at

all,

136.

at

Thus, "[a]ny erroneous

specific,

deprivation will

predicable

point

in

the

-20-

admission process."

could

have

Id.
__

provided

Second, the Court found that the

meaningful

predeprivation

possibly averted the deprivation Burch alleged.

process

state

and

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

conclusion limits the procedural due process inquiry under

to

the

question

remedies."

Our

that

of

Lowe v.
____

the

adequacy

plaintiffs'

state

Scott, 959 F.2d 323,

_____

examination here leads us

the

of

claim

within

1983

postdeprivation

341 (1st Cir. 1992).9

to agree with

falls

the district court

the

Parratt-Hudson
_______ ______

doctrine.

The plaintiffs

have not

alleged any facts

bring their claim within the scope of Zinermon.

________

facts

suggesting

that

the

state

could

have

that would

They point to no

predicted

the

____________________

Other circuits

Caine v.
_____

have interpreted the doctrine similarly.

Hardy, 943 F.2d

_____

1406, 1413 (5th

("Zinermon thus requires a hard look at

________

Cir. 1991)

(en banc)

a Parratt/Hudson defense
_______ ______

to determine whether the state officials' conduct, under all

circumstances, could have been adequately
by

procedural safeguards.");

See
___

Easter House
____________

the

foreseen and addressed

v. Felder,
______

910 F.2d

1387, 1402 (7th Cir.1990) (en banc), cert. denied, 111 S. Ct. 783
____________
(1991)

(concluding that

deprivations of

"Zinermon holds
________

liberty and property which

conduct are compensable under

1983").

-21-

only that

predictable

flow from authorized

defendants'

opportunity,

failure

nor

do

to give

the

required

they

suggest

any

predeprivation procedures

notice and

reasonable

which would have

opt-out

additional

meaningfully reduced

the risk of the due process violation alleged.

The plaintiffs

characterized

as

contend that the

"random

and

deprivation cannot be

unauthorized"

performance was planned well in advance.

because

the

This contention ignores

both the nature of the deprivation and the relevant caselaw.

The

deprivation

itself,

alleged

but

here is

rather

the

procedures mandated by

Supreme Court

applies to both

should

any

has established that

defendant

very

138.10

failure

the

to

Program

follow

the

Moreover, the

the Parratt-Hudson
_______ ______

doctrine

negligent and intentional tortious acts of state

a hearing

would be absurd to suggest

to determine

is applicable here.

facts from

staging of

the Sex Education Policy.

engage in such conduct."

reasoning

the

defendants'

actors, explaining that "it

State hold

not

which a

whether

Hudson,
______

a [state

official]

468 U.S. at 533.

The plaintiffs

court could

that the

That

have not alleged

reasonably infer

that any

was vested with "the power and authority to effect the

deprivation complained

Rather,

the

Sex

of here."

Education

Zinermon,
________

Policy

494 U.S.

states

at

that

"[p]ositive

prerequisite

subscription, with

to

enrolling,"

parental permission,

and,

accordingly,

will be

vested

no

____________________

10

As the

district court noted, although three

members of the School Committee (which

Policy),
either

the plaintiffs

do

not allege

defendants were

adopted the Sex Education

that these

defendants,

individually or as a group, were authorized to circumvent

a policy adopted and enacted by the School Committee as a whole.

-22-

discretion in

failure

school officials.

to follow

unauthorized"

act

the Sex

within

We therefore

Education Policy

the

confines of

conclude that the

was a

the

"random and

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

plaintiffs did not

remedies were

argue to

baldly

that

the district court

inadequate, relying

Zinermon was controlling.

________

"[n]o

damaging influences

the performance."

Parratt, 451 U.S.

_______

527).

that the

instead on their

The

state

belief that

On appeal, they do no more than state

post-deprivation

procedures

which were impressed on

Accordingly,

we deem

can

undo

the

the students during

this point waived

for

appellate

review, see United States

___ _____________

(1st Cir.),

cert. denied, 494

____________

v. Zannino, 895
_______

U.S. 1082 (1990)

"settled appellate rule that issues adverted

manner, unaccompanied by some effort

are deemed waived"), and therefore

F.2d 1, 17

(discussing the

to in a perfunctory

at developed argumentation,

find that the plaintiffs have

failed to state a procedural due process claim.

III.
III.

Free Exercise Clause

Free Exercise Clause
____________________

Plaintiffs'

fourth

claim

seeks

both

monetary

and

declaratory relief, alleging that the defendants' endorsement and

encouragement

of

sexual

"imping[ed] on their

chastity and

promiscuity at

sincerely held

morality," and

mandatory

religious values

thereby violated the

assembly

regarding

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.

test did

not

The Court held

apply to

that the compelling

free exercise

challenges to

interest

"generally

applicable

882-85.

prohibitions of

The

socially harmful

Court explained

that the First

offended by neutral, generally

Restoration

Supreme

1994,

Congress

in

Amendment was

Smith.
_____

the

Religious

In General

RFRA states,

-- Government

substantially burden
of
from

religion even
a

rule

shall not

a person's exercise

if the

burden results

of general

applicability,

except as provided

in subsection (b)

of

this section.

(b)

Exception

--

substantially burden

Freedom

2000bb, in response to the

part:

(a)

not

Id. at 878-82.
__

enacted

Act ("RFRA"), 42 U.S.C.

Court's decision

Id. at
__

applicable laws, unless burdening

religion was the object of the law.

In

conduct."

Government

may

a person's exercise

in relevant

of religion only if it
application of the

demonstrates that

burden to the

person

-(1) is

in

furtherance of

compelling

governmental interest; and

(2) is

the

furthering

least restrictive
that

means

of

compelling governmental

interest.

Id.
__

RFRA states that it was enacted to bring the law back to its

pre-Smith state.
_____

The

Id.
__

plaintiffs'

complex constitutional

Free

issues.

Exercise challenge

The threshold issue

-24-

raises

two

is whether

the

Free Exercise

If indeed

claim, the

the Free

Clause

even applies

Exercise Clause

question would then

to public

applies to

be whether

education.11

the plaintiffs'

their free

exercise

rights were violated by the compulsory attendance at the Program.

Because the Program

1994, however,

was staged in 1992, and RFRA

a cause of

action under RFRA exists

statute applies retroactively.

conclude that

RFRA does

was enacted in

For the

only if the

reasons stated below, we

not apply retroactively

to plaintiffs'

claim for monetary damages.

The

"decline[]

to

Supreme

give

Court has

retroactive

explained

effect

that

courts should

to statutes

burdening

private

Landgraf
________

Such

rights unless

v. USI Film Products,

__________________

an intent

'clear,

will not

strong, and

application."

Cranch)

Congress

114 S.

be inferred

(1806)).

clear its

Ct. 1483,

where the

imperative' language

Id. (citing
__

399, 413

ha[s] made

United States
_____________

intent."

1499 (1994).

statute "lacks

requiring retroactive

v.

"The presumption

Heth, 8
____

U.S. (3

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

law, whether

states that it "applies to

statutory or otherwise, and

____________________

all Federal and State

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
matters is bounded only

that

school boards'

authority

by the Establishment Clause.

Hawkins County Board of Education, 827 F.2d

___________________________________

in

such

Mozert v.
______

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

clearly

provides access

against all

think

in violation of

it

laws burdening

lacks the

necessary

to

Id.
__

declaratory and

the free

"clear,

to create a

this section."

strong,

While

injunctive

exercise

relief

of religion,

and imperative"

retroactive cause of

RFRA

we

language

action for monetary

damages.

We

awarded

have found

damages

under RFRA

statute's enactment.

been found retroactive

grant injunctive

damages.

(10th Cir.

no decisions in

for

Rather, the

conduct

which a

occurring before

decisions in

considered only the

relief,

as opposed

See, e.g., Werner

___ ____ ______

to

which RFRA

issue of whether

an award

v. McCotter, 49
________

1995); Brown-El v. Harris,

plaintiff was

of

the

has

to

monetary

F.3d 1476, 1479-80

26 F.3d 68, 69

(8th Cir.

________

1994)

(dicta); Boone
_____

______

v. Commissioner of Prisons,
________________________

1994 WL 383590,

1994 U.S.Dist.

1994);

Clarke,
______

Rust v.
____

(dicta); Allah v.
_____

851

LEXIS 10027 (E.D.

F. Supp.

Menei, 844 F.
_____

Pa. 1994); Lawson v. Dugger, 844

______
______

1994).

Equitable

therefore

retroactivity

find

that

n.15 (E.D.

is prospective

Fla.

rather than

to conduct occurring before

See Landgraf,
___ ________

the

21,

(D. Neb. 1994)

F. Supp. 1538, 1542 (S.D.

relief, however,

enactment.

377, 380

Pa. July

Supp. 1056, 1061 at

retroactive, even when it applies

statute's

No. 93-5074,

cases

114 S.

Ct. at

purportedly

1500.

We

addressing

do not support a finding that Congress intended to

-26-

create a

RFRA.

Smith,
_____

retroactive cause of action for

monetary damages under

Accordingly, the plaintiffs' claim must be addressed under

the

law

in

effect

at

the

time

of

the

defendants'

actions.12

The

Supreme Court has

neutral and of general

compelling

governmental

explained that

a "law

that is

applicability need not be justified

interest

even

if

the

law

has

by a

the

incidental effect of burdening

a particular religious practice."

Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 113 S.

______________________________________
_______________

Ct.

2217,

plaintiffs

that

2226-27 (1993)

(citing Smith,
_____

do not allege, nor

494

is it apparent

U.S. 872).

The

from their claim,

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

nevertheless be analyzed under

exercise claim would

Smith because all the defendants'

_____

with the possible exception of the School Committee are protected

by qualified immunity from monetary damages.

As

we explained

officials

from

above,

qualified

pecuniary

liability

immunity
unless

shields
they

public

violated

constitutional or statutory norms that were "clearly established"

at the

time of the violation.

Anderson v. Creighton,
________
_________

635, 639-40 (1987); Harlow, 457 U.S. at 818.

______

483 U.S.

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

minor

when

they compelled

attendance at the Program.

plaintiffs'

See Werner v. McCotter, 49 F.3d 1476,

___ ______
________

1481-82

(10th

Cir.),

cert. denied,
_____________

(holding

that

prison

officials

damages

because

clearly

established

their

the

acts

were

did not

rights under

the

115

S. Ct.

shielded
constitute
Smith
_____

2625
from

(1995)

monetary

violation

standard and

of

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

it targeted

the ritual

slaughter of

Exercise clause because

animals only

by religious

Rather, plaintiffs allege that their case

falls within

groups).

the "hybrid" exception recognized by Smith for cases that involve

_____

"the

Free

Exercise

Clause

constitutional protections."

most relevant

Yoder,
_____

406

invalidated

of

U.S.

in

a compulsory

with

other

Smith, 494 U.S. at 881 & n.1.

_____

the so-called

205,

conjunction

232-33

school

hybrid

(1972),

cases is

in

Wisconsin
_________

which

attendance law

The

the

v.

Court

as applied

to

Amish

parents who

refused on

children to school.

to send

stands as a charter of the rights

parents

the

religious

upbringing of their children.

And, when

combined

to

direct

with a

free exercise

the nature revealed

than

their

In so holding, the Court explained that

Pierce
______
of

religious grounds

merely

claim of

by this record, more

"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).

plaintiffs allegations

bring them

do not

We find

within

that the

the sweep

of

Yoder for two distinct reasons.

_____

First, as we explained, the plaintiffs'

interference with

family relations and

allegations of

parental prerogatives do

not state a privacy or substantive due process claim.

exercise challenge

is thus

not conjoined with

protected constitutional protection.

claim

is

qualitatively

an independently

Second, their free exercise

distinguishable from

that

-28-

Yoder.
_____

As the Court in Yoder emphasized:

_____

the Amish in this case

demonstrated

the

religious beliefs,

Their free

have convincingly

sincerity

of

their

the interrelationship

alleged

in

of belief
vital
play
Order

with their

mode of life,

the

role that belief and daily conduct

in the

continued

Amish

religious

survival of

communities

and

organization, and

Old
their

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

of

life.

Accordingly,

Program threatened their entire way

the plaintiffs' free

exercise claim for

damages was properly dismissed.

The

concerning

Rights.

the

The

plaintiffs

alleged

also

seek

infringement

standing requirement

of

declaratory

their

of Article

Free

judgment

Exercise

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

(1984).

The

relief."

Allen
_____

v. Wright,
______

Supreme Court has made clear

468 U.S. 737,

751

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."

Lyons, 461 U.S. 95, 104-06, 111 (1983).

_____

Workers Union v. Frank,

_____________
_____

City of Los Angeles v.

___________________

See also American Postal

________ _______________

968 F.2d 1373, 1374-76 (1st

Cir. 1992).

Here, the plaintiffs do not allege (nor does it appear) that they

are

likely

allegedly

lack

to

again

violate their

jurisdiction

be

subject

to

Free Exercise

over the

claim

-29-

for

school

Rights.

activities

that

We accordingly

declaratory relief

and

conclude

IV.
IV.

that it also was properly dismissed.

Sexual Harassment
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

of,

or

be

subjected to

under any education

receiving

Federal

the benefits
discrimination

program or
financial

activity
assistance

. . . .

20 U.S.C.

1681.

Because the relevant caselaw under Title IX is

relatively

sparse, we apply Title

VII caselaw by

Franklin v. Gwinnett County Pub. Schs., 112 S.

________
____________________________

analogy.

Ct. 1028,

(1990); Lipsett v. University of Puerto Rico, 864 F.2d

_______
__________________________

See
___

1037

881, 899

(1st Cir. 1988).

Title VII, and

spectrum

of disparate

thus Title

treatment

conduct having the purpose

with

an individual's

hostile

or offensive

IX, "strike

of men

at the

and women,"

entire

including

or effect of unreasonably interfering

performance

environment.

or creating

an intimidating,

Meritor Sav. Bank, FSB

_______________________

v.

Vinson, 477 U.S. 57, 64-65 (1986);

______

Lipsett, 864 F.2d at 899.

_______

the Supreme Court explained:

Sexual harassment which creates a hostile

or offensive environment
one

sex

barrier

is

every

to

sexual

workplace

that

racial equality.
that
sexual

a man

bit

for members
the

arbitrary

equality

racial harassment
Surely, a

or woman

run a

of

at

the
is to

requirement
gauntlet of

abuse in return for the privilege

-30-

As

of

being

living

allowed
can

be

to work
as

disconcerting as the

and

make

demeaning
harshest of

a
and

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

type of sexual harassment claim are: (i) that he/she is a

of a protected class;

(ii) that he/she was subject

sexual harassment; (iii)

such

member

to unwelcome

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

employer liability has been established.

(v) that

some basis

Id. at 66-73.
__

for

See also
________

Harris v. Forklift Sys. Inc., 114 S. Ct. 367 (1993); Lipsett, 864
______
__________________
_______

F.2d at 898-901.

Title

environment]

is

ridicule, and

to

IX

is

violated

permeated

with

"[w]hen

the

[educational

'discriminatory

intimidation,

insult' that is 'sufficiently

severe or pervasive

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.

_______
_______

a court

must consider

whether

plaintiff

hostile or abusive,

the frequency

(3) whether

has

circumstances in

established that

it must be

of the

it is

all of the

an

determining

environment

particularly concerned with

discriminatory conduct; (2)

physically threatening or

While

is

(1)

its severity;

humiliating rather

than a mere

offensive utterance; and (4) whether it unreasonably

-31-

interferes with an employee's work performance.

S. Ct. at 371.

See Harris,
___ ______

114

Although the presence or absence of psychological

harm or an unreasonable effect on work performance

no single factor is required.

are relevant,

See id.
___ __

The Court has explained

that the relevant factors must

be

viewed both objectively and

If the

conduct is not so

subjectively.

severe or pervasive

person would find it hostile or

purview.

See
___

id.
__

Similarly,

there

actually altered the

not only

plaintiff,

but

the actual

also the

that a reasonable

if

the

plaintiff

does

not

to be abusive, the conduct

conditions of her

is no Title IX violation.

consider

id. at 1454.
__

abusive, it is beyond Title IX's

subjectively perceive the environment

has not

See
___

See id.
___ __

effect of

effect such

employment, and

Thus, the court must

the harassment

conduct

would have

on the

on a

reasonable person in the plaintiff's position.

Turning

alleged here

are

harassment under

to the

case at

insufficient

to

bar, we

state

find that

a hostile environment theory.

claim

the facts

for

sexual

The plaintiffs'

allegations are weak on every one of the Harris factors, and when
______

considered

existence

in sum,

of an

are

clearly insufficient

objectively

hostile

or

to establish

abusive

the

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
alleged

hostile environment

claim.

The

frequency of

the

harassment is a significant factor, but only one of many

-32-

We also

think that the plaintiffs'

establish that Landolphi's

an objectively

both

allegations do not

comments were so severe

hostile environment.

the context and content

This finding

of her remarks.

as to create

is based

on

The remarks were

given to the entire ninth and tenth grades at what the defendants

labelled

an

"AIDS

awareness

plaintiffs do not allege

in

any of

the

program."

Significantly,

that they were required

offensive skits

or that

they

the

to participate

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

virus. . . .

It

with

the

means they

virus when they were in high

AIDS

caught the
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

takes a special messenger.

have a

message, it
And today, we

very special messenger,

probably one of the most

who uses

effective forms

of communication -- humor.

I want you to

listen

it, but

carefully.

Enjoy

also

remember the message.

Similarly, Landolphi stated in

going

to talk

prefaces

framed

about AIDS,

the Program

her opening remarks that "[w]e're

but not

in the

in such

person would understand that Landolphi's

usual way."

way that

These

an objective

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

that

introductions also

Landolphi's

speech

was

belie the

physically

plaintiffs' claim

threatening

and

humiliating,

Landolphi's

rather

remarks

than

were

not

mere

offensive

directed

utterance.

specifically

at

the

plaintiffs and were couched in an attempt to use humor to educate

the students on sex and

the AIDS virus.

average

high school

graphic

sexual discussions

could not

students might

reasonably

alleged

be considered

In this

have been

here,

context, while

offended by

Landolphi's

physically

the

remarks

threatening

or

humiliating so as to create a hostile environment.

Similarly, the plaintiffs'

the

Program

did

not

significantly

environment from an objective

of

two ninety-minute

allegations establish

alter

standpoint.

their

educational

The Program consisted

sex-education presentations,

the plaintiffs allege that

that

and although

"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

hostility

"create[d]

toward members

[educational

of

an

atmosphere

one sex

environment] for them."

In fact, they allege

that

so

infused

[it] alter[ed]

with

the

Lipsett, 864 F.2d at 897.

_______

that the offensive behavior was

visited on

"those students," regardless of gender, "who were not inclined to

accept 'the message' about human sexuality."

they

allege discrimination

based upon

-34-

If anything, then,

the basis

of viewpoint,

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

and find them similarly without merit.

Affirmed.
Affirmed
________

of the plaintiffs

-35-