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SAXE v. STATE COLLEGE AREA SCHOOL DIST.

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,
v.
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.

MEMORANDUM

BACKGROUND:

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 harassment 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 stones?*fn2

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 same issues.

DISCUSSION:

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 Werner.

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
  environment.
  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 ...

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