United States District Court, Middle District of Pennsylvania
December 17, 1999
DAVID WARREN SAXE, STUDENT DOE 1, BY AND THROUGH HIS NEXT FRIEND, DAVID WARREN SAXE, AND STUDENT DOE 2, BY AND THROUGH HIS NEXT FRIEND, DAVID WARREN SAXE, PLAINTIFFS,
STATE COLLEGE AREA SCHOOL DISTRICT AND CONSTANCE MARTIN, IN HER OFFICIAL CAPACITY AS PRESIDENT OF THE STATE COLLEGE AREA SCHOOL DISTRICT, DEFENDANTS.
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
I. STATEMENT OF FACTS
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.
Plaintiffs identify themselves as Christians*fn4 and state
that they believe that homosexuality is a sin. Further, they
believe that they feel compelled by their religion to "speak out"
about the sinful nature and harmful effects of homosexuality
and other topics, especially moral issues. Plaintiffs allege that
they fear being punished for expressing their religious beliefs,
whether verbally, by symbols or acts, or otherwise.
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 discrimination, but also disrespectful
behavior which will not be tolerated.
Any harassment of a student by a member of the school
community is a violation of this policy.
The State College Area School District shall act to
investigate all complaints of harassment, either
formal or informal, verbal or written, and will take
appropriate action against any member of the school
community who is found to have violated this policy.
Any school employee who observes, overhears, or
otherwise witnesses harassment, which may be
unlawful, or to whom such harassment is reported,
must take prompt and appropriate action to stop the
harassment and to prevent its recurrence.
State College Area School District Anti-Harassment Policy
(appended to Complaint as Exhibit A) at 1, 3.
Other important provisions of the Policy include a definition
of "school community" as "includ[ing], but is not limited to, all
students, school employees, contractors, unpaid volunteers,
school board members, and other visitors." Id. at 2. A list of
specific forms of harassment, including sexual, racial and color,
religious, national origin, sexual orientation, disability, and
"other," also is provided. Id. at 2-3. The procedures for
reporting harassment and the actions to be taken by SCASD,
through its "harassment complaint officials," are included. Id.
at 3-5. The Policy also provides notice to the reader that
complaints of harassment may be made to outside agencies and that
litigation under both federal and state law may be possible.
Id. at 6.
Our reading of the Policy leads us to conclude that the
provision which is at issue is the second paragraph of the
Policy, which is the first paragraph quoted above. This provision
breaks "harassment" down into two parts. First, there must be
verbal or physical conduct based on actual or perceived physical
characteristics. Second, the conduct must be intended to or
actually cause substantial interference with a student's school
performance, or must create an intimidating, hostile or offensive
Various other provisions describe behavior that may constitute
harassment or explain specific types of harassment. It is the
definition in the second paragraph of the Policy (again, the
first quoted above) which is the focus, however.
III. ISSUES BEFORE THE COURT
Before undertaking our legal analysis, we think it important to
limit the issues before the court. The parties have chosen to
expend considerable effort to characterize their opponents and
their opponents' positions in a negative light, thereby wandering
far afield from what is actually material to our disposition of
the pending motions. Defendants, for example, repeatedly remind
the court of plaintiffs' purported homophobia, while plaintiffs
inject unnecessary and inapt allusions to Humpty Dumpty.*fn5
None of this, of course, is useful for determining whether the
Policy is within constitutional parameters.
In moving to dismiss, defendants first assert that plaintiffs
lack standing to bring this action. Alternatively, they argue
that the Policy is beyond constitutional reproach. We will
address these questions in turn.
IV. STANDARD: MOTION TO DISMISS
A motion to dismiss under Fed.R.Civ.P. 12(b)(6) admits the well
pleaded allegations of the complaint, but denies their legal
sufficiency. Hospital Building Co. v. Trustees of the Rex
Hospital, 425 U.S. 738, 740, 96 S.Ct. 1848, 48 L.Ed.2d 338
(1976). The complaint must be construed in favor of the plaintiff
with every doubt resolved in the plaintiff's favor. In re Arthur
Treacher's Franchise Litigation, 92 F.R.D. 398, 422 (E.D.Pa.
1981). That is, the court must accept as true all factual
allegations set forth in the complaint as well as all reasonable
inferences that can be drawn from them. Nami v. Fauver,
82 F.3d 63, 65 (3d Cir. 1996); Jordan v. Fox, Rothschild, O'Brien &
Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994). The court looks only
to the facts alleged in the complaint and any attachments,
without reference to any other parts of the record. Jordan at
1261. "[A] case should not be dismissed unless it clearly appears
that no relief can be granted under any set of facts that could
be proved consistently with the plaintiff's allegations." Id.
(citing, inter alia, Hishon v. King & Spalding, 467 U.S. 69,
73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984)). Whether a plaintiff
will ultimately prevail is not a consideration for review of a
motion under Rule 12(b)(6). Nami at 65.
Defendants properly assert that the overbreadth doctrine, as
invoked by plaintiffs, is not applicable in this case. That does
not mean, however, that plaintiffs lack standing.
The overbreadth doctrine is an exception to conventional
Waterman v. Farmer, 183 F.3d 208, 212 n. 5 (3d Cir. 1999),
under which a plaintiff must show an actual or imminent injury.
ACLU v. Reno, 31 F. Supp.2d 473, 479 (E.D.Pa. 1999). A person
whose own speech or expressive conduct is subject to a valid
prohibition or sanction may bring an action challenging the
statute (or, as in this case, policy) on its face because it also
threatens others not before the court who desire to engage in
protected speech but who may refrain from doing so rather than
risk sanction. Brockett v. Spokane Arcades, Inc., 472 U.S. 491,
503, 105 S.Ct. 2794, 86 L.Ed.2d 394 (1985).
It is otherwise where the parties challenging the
statute are those who desire to engage in protected
speech that the overbroad statute purports to punish,
or who seek to publish both protected and unprotected
material. There is then no want of a proper party to
challenge the statute, no concern that an attack on
the statute will be unduly delayed or protected
speech discouraged. The statute may forthwith be
declared invalid to the extent that it reaches too
far, but otherwise left intact.
Brockett at 504, 105 S.Ct. 2794.
In this instance, plaintiffs claim that they wish to engage in
speech protected by the First Amendment and that their speech has
been chilled by the Policy. They thus have standing absent
application of the overbreadth doctrine. Cf. ACLU v. Reno at
481 (plaintiffs challenging statute on First Amendment grounds
had standing when they showed credible threat of prosecution or
that they would imminently suffer injury).
VI. DEFINING HARASSMENT
Regardless of the amendment, or the clause of the First
Amendment, under which plaintiffs bring their claims, the
validity of the claims depends on whether defendants have defined
"harassment" sufficiently within the Policy, because it is
"harassment" which the Policy purports to prohibit.
Defendants argue that the Policy sufficiently defines
"harassment" when read as a whole, and that plaintiffs' cramped
reading of a single provision of the Policy is not the entirety
of the definition provided. We agree.
Plaintiffs focus on the third paragraph of the Policy quoted
above, that which begins with "Harassment can include . . ." As
discussed, however, the first-quoted paragraph is more properly
read as embodying the definition, with the following paragraphs
simply adding examples of what conduct might fall within the
definition. The first paragraph states that harassment is
language or conduct which is based on specified characteristics
and which has the effect of "substantially interfering with a
student's educational performance" or which creates a hostile
educational atmosphere. As defendants point out, this language is
familiar to any practitioner of employment or education
discrimination law as that used by courts and agencies to define
harassment for purposes of Title VII, Title IX, the Pennsylvania
Human Relations Act, etc.
We also must agree with defendants that a more precise
definition of harassment, like Justice Stewart's famous
description of "pornography,"*fn6 may be virtually impossible.
As Justice O'Connor pointed out in Davis:
Whether gender-oriented conduct rises to the level
of actionable "harassment" thus "depends on a
constellation of surrounding circumstances,
expectations, and relationships," Oncale v.
Sundowner Offshore Services, Inc., 523 U.S. 75, 82,
118 S.Ct. 998, 140 L.Ed.2d 201
(1998), including, but not limited to, the ages of
the harasser and the victim and the number of
individuals involved, see OCR Title IX Guidelines
12041-12042. . . .
Davis, at 1675. Thus, some flexibility is to be expected.
Defendants assert that the definition of harassment which they
have provided, as well as the definitions of the various forms of
harassment such as sexual harassment, etc., reflect definitions
used by courts and agencies which have been asked to interpret
the various laws on employment and educational discrimination.
Obviously, providing a detailed explanation derived from
statutes, regulations, and case law would not be helpful to most
schoolchildren, as such material is incomprehensible to most
adults (including at times many judges and lawyers).
There is one further point, however, that we believe seals the
outcome of this case. It might be noted in reading the passages
from the Policy that we have quoted above that the last passage,
that of the requirement that school employees take action when
harassment comes to their attention, differs from the remaining
passages quoted in that it is not a definition or description of
harassment or conduct which may constitute harassment. We have
included this passage for a very specific reason: It states that
an employee must take action when the harassment may be
In other words, SCASD is not prohibiting anything that is not
already prohibited by law. That law takes the form of
Pennsylvania's criminal harassment statute (paraphrased in the
Policy),*fn7 Title VII, Title IX, the Americans with
Disabilities Act, the Pennsylvania Human Relations Act, etc.
Apart from the definitions, descriptions, and examples of
harassment set forth in the Policy, this reading is supported by
reference to page 6 of the Policy. There, the reader is informed
that, in addition to or in lieu of the procedure contained in the
Policy, complaints of harassment also may be filed with the
Pennsylvania Human Relations Commission, the Pennsylvania
Department of Education, and the Office for Civil Rights of the
U.S. Department of Education. Those agencies investigate
complaints of alleged unlawful discrimination.*fn8
The Policy, then, is subject to a limiting construction (if
such is necessary) which plainly makes it valid. See Broadrick
v. Oklahoma, 413 U.S. 601, 613, 93 S.Ct. 2908, 37 L.Ed.2d 830
(1973) (statute does not violate First Amendment when it is
subject to construction which makes it permissible); United
States v. Waymer, 55 F.3d 564, 569 (11th Cir. 1995) (same),
cert. denied, 517 U.S. 1119, 116 S.Ct. 1350, 134 L.Ed.2d 519
Plaintiffs characterize the Policy as a hate-speech code, a
type of regulation which has been the subject of considerable
discussion and debate in recent years due to their plainly
overreaching effects. Indeed, one's initial reaction to a
description of the Policy is in line with that characterization:
The Policy must be wrong because it attempts to place a limit on
free speech. In our sound-bite-driven society, however, one must
take special care that a cursory
description is not taken at face value and the matter is
considered somewhat more thoroughly.
In this instance, as defendants recite, the Policy is not a
hate-speech code; it prohibits harassment. Harassment has never
been considered to be protected activity under the First
Amendment. In fact, the harassment prohibited under the Policy
already is unlawful. The Policy is a tool which gives SCASD the
ability to take action itself against harassment which may
subject it to civil liability.
Because the Policy is constitutionally sound, the complaint is
subject to dismissal.
VII. PRELIMINARY INJUNCTION
Fed.R.Civ.P. 65 provides for the issuance of preliminary
injunctions. In this Circuit,
At the trial level, the party seeking a preliminary
injunction bears the burden of producing evidence
sufficient to convince the court that (1) the movant
has shown a reasonable probability of success on the
merits; (2) the movant will be irreparably injured by
denial of relief; (3) granting preliminary relief
will not result in even greater harm to the other
party; and (4) granting preliminary relief will be in
the public interest. . . .
ECRI v. McGraw-Hill, Inc., 809 F.2d 223, 226 (3d Cir. 1987)
(citation omitted). See also Schulz v. U.S. Boxing Ass'n,
105 F.3d 127, 131 n. 6 (3d Cir. 1997).
The requirement of a reasonable probability of success on the
merits also has been described as a "better than negligible
chance" of success on the merits. Int'l Kennel Club v. Mighty
Star, Inc., 846 F.2d 1079, 1084 (7th Cir. 1988) (citations
omitted). Regarding the element of irreparable injury, the harm
must be imminent and of such a nature that money damages alone
cannot atone for it. ECRI, 809 F.2d at 226.
Since we have found that the Policy is not unconstitutional on
its face, plaintiffs have not shown a reasonable likelihood of
success on the merits, and the motion for a preliminary
injunction will be denied.
We conclude that the Policy properly defines "harassment" as
conduct based on a person's physical characteristics which
substantially affects school performance or creates a hostile
atmosphere. In addition, the Policy adds a gloss that the type of
"harassment" which is prohibited is that which already is
prohibited by law. The Policy simply gives school officials the
ability to take action against unlawful harassment by or against
persons subject to their authority. Regardless of the specific
constitutional provision on which plaintiffs choose to rely, the
Policy does not violate the Constitution of the United
We do not mean to imply that, in certain instances, the manner
in which the Policy is enforced may not have the effect of
infringing on constitutionally protected liberties. Our holding
is limited to a conclusion that the Policy itself does not have
Plaintiffs' motion for preliminary injunctive relief will be
denied, and defendants' motion to dismiss will be granted. An
order consistent with this memorandum will issue.