The opinion of the court was delivered by: McCLURE, District Judge.
Earlier this year, the Supreme Court of the United States
issued a landmark decision holding that a local school board
could be held liable for damages under Title IX of the Education
Amendments of 1972, 20 U.S.C. § 1681 et seq. (as amended) for
claims of "student-on-student" sexual harassment. Davis v.
Monroe County Board of Education, 526 U.S. 629, 119 S.Ct. 1661,
143 L.Ed.2d 839 (1999). Such an action will lie "only where the
funding recipient acts with deliberate indifference to known acts
of harassment in its programs or activities" and "only for
that is so severe, pervasive, and objectively offensive that it
effectively bars the victim's access to an educational
opportunity or benefit." Id. at 1666.*fn1 This case properly
may be viewed as the inevitable fallout from that holding, since
this action involves a school district's attempt to prevent
harassment prior to its occurrence as well as its attempt to set
forth a procedure to remedy an instance of harassment.
To be balanced against that effort are an individual's rights
under the Bill of Rights, specifically the rights to free speech,
free exercise of religion, free press, and due process, and
against the establishment of religion. The primary issue in this
case may be stated in two ways: Does a school district violate
constitutional boundaries by prohibiting harassment?; or, To what
extent does the Constitution protect the right to cast verbal
On October 4, 1999, plaintiffs David Warren Saxe, Student Doe
1, and Student Doe 2 commenced this action with the filing of a
complaint pursuant to 42 U.S.C. § 1983 alleging that the State
College Area School District Anti-Harassment Policy (the
"Policy") violates their rights, i.e. the rights enumerated
above. They seek a declaration that the Policy is contrary to
both the Constitution of the United States and the Pennsylvania
Constitution, an injunction against enforcement of the Policy,
and costs of this litigation, including attorney's fees.
Before the court are a motion by plaintiffs for a preliminary
injunction and a motion by defendants to dismiss the complaint
pursuant to Fed.R.Civ.P. 12(b)(6). The motions both will be
considered at this time because their disposition depends on the
Plaintiff David Warren Saxe is an Associate Professor of
Education at the Pennsylvania State University and a member of
the Pennsylvania State Board of Education. He is a former member
of the school board for the State College Area School District
(SCASD) and has been an unpaid volunteer for SCASD. Student Doe 1
and Student Doe 2 are enrolled in schools in SCASD. Saxe is the
legal guardian of both student-plaintiffs.
Defendant SCASD is a political subdivision of the Commonwealth
of Pennsylvania responsible for the administration and operation
of the public schools in the State College, Centre County, area.
Defendant Constance Martin is the President of the Board of
School Directors of SCASD.*fn3 Other board members are Cynthia
Potter (Vice President), Robert Ascah, Eric Barron, Elizabeth
Dutton, Lou Ann Evans, Keith Hardin, Donna Queeney, and Susan
On August 9, 1999, the SCASD board unanimously approved the
Policy for the 1999-2000 school year. The Policy has been
published on the worldwide web, and SCASD has discussed the
Policy in classes and at mandatory student assemblies, and
materials on the Policy have been distributed to students. A
discussion of the terms of the Policy is set forth below.
II. PROVISIONS OF THE POLICY
The Policy is divided into a number of parts, including
"General Statement of Policy," "Definitions," "Procedures for
Implementation of Anti-Harassment Policy," "Reporting of
Potential Physical and/or Sexual Abuse," "Confidentiality,"
"Alternative Complaint Procedures," "Litigation," and "Notice and
Publication." Plaintiffs contend that language specifically
defining "harassment" is absent. However, several provisions of
the Policy refer to conduct which may constitute harassment, and
we set forth those provisions in full.
Harassment means verbal or physical conduct based on
one's actual or perceived race, religion, color,
national origin, gender, sexual orientation,
disability, or other personal characteristics, and
which has the purpose or effect of substantially
interfering with a student's educational performance
or creating an intimidating, hostile or offensive
According to state law (18 Pa.C.S.A. § 2709), an
individual commits the crime of harassment when, with
intent to harass, annoy or alarm another person, the
individual subjects, or attempts or threatens to
subject, the other person to unwelcome physical
contact; follows the other person in or about a
public place or places; or behaves in a manner which
alarms or seriously annoys the other person and which
serves no legitimate purpose.
Harassment can include any unwelcome verbal, written
or physical conduct which offends, denigrates, or
belittles an individual because of any of the
characteristics described above. Such conduct
includes, but is not limited to unsolicited
derogatory remarks, jokes, demeaning comments or
behavior, slurs, mimicking, name calling, graffiti,
innuendo, gestures, physical contact, stalking,
threatening, bullying, extorting or the display or
circulation of written materials or pictures.
It is the policy of the State College Area School
District to oppose and prohibit, which qualification
harassment based on race, color, religion, national
origin, gender, sexual orientation, disability, and
other forms of harassment. Harassment is not only a
form of ...