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Hot, sexy - and safer?

The public schools in Chelmsford, Massachusetts, have a policy requiting "positive subscription, with written permission" for students who plan to participate in "instruction in human sexuality." Moreover, Massachusetts legislation grants a fight to opt out of "instruction on disease" to students whose "sincerely held religious beliefs" conflict with such instruction.

In an effort to promote AIDS awareness, the parent/teacher organization (PTO) initiated negotiations with Suzi Landolphi, a private consultant whose company Hot, Sexy, and Safer, Inc., specializes in presenting information on AIDS to school assemblies. After viewing a promotional videotape of segments of her past performances, the chairperson of the PTO and the school physician recommended the program to the school administration. The administration finalized the contractual arrangements with Landolphi.

On 8 April 1992 Landolphi conducted a mandatory schoolwide assembly on AIDS awareness at Chelmsford High School.(1) The school physician, who was a member of the PTO, introduced her with this caveat:

We see young people in their twenties who are infected with the AIDS virus [which] . . . means that they caught the virus when they were in high school and will be dead before they are 30 years old. That's why . . . [we] want you to hear the message. Now, sometimes to hear a message, it takes a special messenger. . . . [This] very special messenger . . . uses one of the most effective forms of communication - humor. . . . Enjoy it, but also remember the message.

Similarly, Landolphi started her 90-minute presentation by warning, "We're going to talk about AIDS, but not in the usual way." Her program included sexually suggestive skits with several students chosen from the audience. Landolphi also allegedly told the students that they were going to have a "group sexual experience, with audience participation"; described body parts in lewd language; advocated and simulated masturbation; referred to being in "deep sh - " after anal sex; had a female student pull an oversized condom over a male student's head; told one student that he had a "nice butt"; referred to another student's loose pants as "erection wear"; and made 18 references to orgasms, six references to male genitals, and eight references to female genitals.(2)

Students Jason Mesiti and Shannon Silva and their parents filed suit in federal court, claiming violations of 14th Amendment substantive and procedural due process and of First Amendment freedom of religion. They also filed a claim of sexual harassment (by means of a hostile environment) under Title IX. The plaintiffs named various co-defendants, including Landolphi, the chairperson of the PTO, the principal, the superintendent, and members of the school board who approved and attended the assembly. They claimed that the sexually explicit nature of Landolphi's speech and behavior humiliated and intimidated Jason and Shannon and that the aftermath, when several students repeated Landolphi's routines and remarks, exacerbated the harassment.

The defendants moved for a dismissal, which the trial court granted. The plaintiffs filed for review by the federal First Circuit Court of Appeals. In a unanimous, three-judge opinion, the First Circuit affirmed the dismissal, rejecting each of the plaintiffs' legal claims.(3)

First, with regard to substantive due process, the court pointed out that the standards to be met are government conduct that "shocks the conscience" or government conduct that violates a specific liberty or property interest without a compelling, close-fitting justification. The court concluded that the failure to provide opt-in or opt-out procedures "may have displayed a certain callousness" but did not come close to the brutal and inhumane level of abuse established in the conscience-shocking case law.

Similarly, the court rejected the parents' purported liberty interest, concluding that, even if the right to direct the upbringing and education of one's children is within the constitutional right of privacy, it does not extend to dictating the curriculum of the public schools. "If all parents had a fundamental constitutional right to dictate individually what the school teaches their children" the court reasoned, "the school would be forced to cater a curriculum for each student whose parents had genuine moral disagreements with the school's choice of subject matter."

Second, with regard to procedural due process, although agreeing with the plaintiffs that the school district policy and state statute conferred the right to be free from exposure to the content of the program, the court found missing the other essential element established by relevant case law: that the school officials' conduct could have been adequately predicted and procedurally remedied.

Third, with regard to First Amendment free exercise of religion, the court largely ducked the complex questions that might be raised by the 1994 Religious Freedom Restoration Act, finding the act not to apply retroactively to the plaintiffs' claim for monetary damages. Similarly, the court dodged the plaintiffs' accompanying claim for declaratory relief, finding that they did not have standing because "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."

Finally, with regard to sexual harassment, the court rejected the hostile environment claim, concluding that the allegations were weak on every one of the requisite factors. For example, rather than being sufficiently severe or pervasive, the exposure was a one-time episode in which the plaintiffs were not required to participate in any of the offensive skits and were not the direct objects of the presenter's sexual comments. Pointing to the introductory statements of the school physician and the prefatory remarks of the presenter, the court concluded that her graphic and allegedly vulgar commentary "could not reasonably be considered physically threatening or humiliating so as to create a hostile environment." Similarly, with regard to the alleged aftermath, the court found that the coarse jesting and sexual innuendo allegedly directed at those not inclined to accept the message was, if anything, based on viewpoint rather than on gender, as required by Title IX.

In March 1996 the U.S. Supreme Court declined to review the First Circuit's decision. Meanwhile, state court litigation in the same matter is still pending: the plaintiffs have filed parallel claims based on Massachusetts' civil rights and sexual harassment statutes, and they have dusted off an ancient state law that requires teachers to inculcate chastity.

While acknowledging that the issues have not been conclusively and completely resolved and that, even if they had been, school officials faced the financial and other costs of litigation, their lead attorney, John Foskett, suggests: "The lesson is that administrators ought to present such programs, but they need to be careful to provide an opt-out mechanism for objecting students or parents." The plaintiffs' attorney, John Roberts, adds advice to parents to keep carefully apprised of what will be presented to their children in the curriculum and special assemblies because of "the continuing danger that some school officials may abuse their authority and force students to attend degrading and sexually explicit performances which attack their and their parents' religious and moral beliefs."

In this era of the AIDS epidemic, teenage pregnancy, and fractured families, the need for schools to take positive action with regard to sex education is real. A long line of court decisions has consistently rejected parental religious and nonreligious challenges to such programs when there has been an excusal system in place.(4) The litigation involving more recent and extensive efforts, such as sex education,(5) condom distribution,(6) and AIDS instruction,(7) when school officials chose not to provide parental opt-out procedures, has, like the Chelmsford case, been less conclusive and depended initially on the boundaries of any applicable state law. For school officials who favor forcing the issue, based on the collective interest in avoiding deadly contagion, the important and not necessarily insurmountable legal questions include: 1) Is there an applicable state law that requires excusal? 2) Would the proposed program significantly burden the objector's exercise of religion? 3) Is the justification for such a program compelling?

Finally, deciding whether to engage in such efforts without providing for excusal also requires school administrators to consider how to do so. Using sexually graphic content is a risk that may appear to be unavoidable for such a subject.(8) Is presenting this content in so candid a way and with the humor that reaches students worth the risk? The question is an open one. Depending on the court and the circumstances, some students, unlike those in this case, may have a prayer for relief.(9)

1. Because of constraints of space and scheduling, the program was given twice in the same day: once for grades 9 and 10 and once for grades 11 and 12.

2. The "facts" in this case, as in other cases that we have covered in which an appellate court is reviewing a dismissal or other dispositive ruling prior to the evidentiary phase of a trial, are allegations that are accepted as true merely for the purpose of testing the ruling.

3. Brown v. Hot, Sexy, and Safer Productions, Inc., 68 F. 3d 525 (1st Cir. 1995), cert. denied, 116 S. Ct. 1044 (1996). I obtained supplementary information via telephone interviews in early June 1996 with attorneys John Roberts and John Foskett, who represented the plaintiff families and the defendant school officials respectively.

4. See, for example, Smith v. Ricci, 446 A.2d 501 (N.J. 1982), appeal dismissed, 459 U.S. 962 (1982); Citizens for Parental Rights v. San Mateo County Bd. of Educ., 124 Cal. Rptr. 68 (Ct. App. 1976), appeal dismissed, 425 U.S. 908 (1976); Hobolth v. Greenway, 218 N.W.2d 98 (Mich. App. 1974); and Medeiros v. Kiyosaki, 478 P.2d 314 (Hawaii 1970).

5. Coleman v. Caddo Parish Sch. Bd., 635 So.2d 1238 (La. App. 1994), appeal denied, 639 So.2d 1171 (La. 1995) (interpreted and applied limitations in state statute).

6. See, for example, Perry A. Zirkel, "A Case of Condoms," Phi Delta Kappan, December 1992, pp. 347-48. For a recent reversal in this case, see Alfonso v. Fernandez, 606 N.Y.S.2d 259 (Sup. Ct. App. Div. 1993). In contrast, for a more recent decision that upheld condom distribution, see Curtis v. School Committee, 652 N.E.2d 580 (Mass. 1995), cert. denied, 116 S. Ct. 753 (1996).

7. Ware v. Valley Stream Sch. Dist., 551 N.Y.S.2d 167 (1989) (remand to determine whether the AIDS curriculum had a significant burden on this close-knit religious community and, if so, whether the government had a compelling justification for it).

8. In the analogous area of teacher use of sexually suggestive classroom content, compare the recent decisions in Hosford v. School Committee, 659 N.E.2d 1178 (Mass. 1996); and Williams v. Concordia Parish School Board, 670 So.2d 351 (La. App. 1996).

9. Compare Perry A. Zirkel, "A Doomed Prayer for Relief," Phi Delta Kappan, February 1995, pp. 496-97.

PERRY A. ZIRKEL is University Professor of Education and Law at Lehigh University, Bethlehem, Pa.
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Title Annotation:human sexuality subjects
Author:Zirkel, Perry A.
Publication:Phi Delta Kappan
Article Type:Column
Date:Sep 1, 1996
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