68 F.3d 525 (1st Cir. 1995), 95-1275, Brown v. Hot, Sexy and Safer Productions, Inc.

Docket Nº:95-1275.
Citation:68 F.3d 525
Party Name:Ronald C. BROWN, et al., Plaintiffs-Appellants, v. HOT, SEXY AND SAFER PRODUCTIONS, INC., et al., Defendants-Appellees.
Case Date:October 23, 1995
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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68 F.3d 525 (1st Cir. 1995)

Ronald C. BROWN, et al., Plaintiffs-Appellants,


HOT, SEXY AND SAFER PRODUCTIONS, INC., et al., Defendants-Appellees.

No. 95-1275.

United States Court of Appeals, First Circuit

October 23, 1995

Heard Aug. 1, 1995.

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[Copyrighted Material Omitted]

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John L. Roberts, Springfield, MA, for appellant.

John Foskett, Boston, MA, with whom Deutsch Williams Brooks DeRensis Holland & Drachman, P.C., Paul F. Degnan, Nancy Kirk, Kirby & Associates, Boston, MA, Mary L. Bonauto, Bennett H. Klein, Gay & Lesbian Advocates & Defenders, Boston, MA, Neila J. Straub, Salem, MA, and Straub & Meyers were on joint brief for appellees Chelmsford School Committee, Wendy Marcks, Mary E. Frantz, Richard H. Moser, David S. Troughton, George J. Betses, Suzanne Landolphi and Hot, Sexy & Safer Productions, Inc.; Frances S. Cohen, Boston, MA, with whom Monica L. Phillips, Hill & Barlow, Sarah Wunsch and Massachusetts Civil Liberties Union Foundation were on brief for appellees Michael Gilchrist and Judith Hass.

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Before TORRUELLA, Chief Judge, STAHL, Circuit Judge, and DOMINGUEZ, [*] District Judge.

TORRUELLA, Chief Judge.

The plaintiffs are two minors and their parents. The minors allege that they were compelled to attend an indecent AIDS and sex education program conducted at their public high school by defendant Hot, Sexy and Safer Productions ("Hot, Sexy, and Safer"). Plaintiffs allege, inter alia, that the compelled attendance deprived the minors of their privacy rights and their right to an educational environment free from sexual harassment. The district court granted the defendants' motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). We affirm.


The plaintiffs are Chelmsford High School students Jason P. Mesiti ("Mesiti") and Shannon Silva ("Silva"), and their parents Ronald and Suzanne Brown ("the Browns"), and Carol and Richard Dubreuil ("the Dubreuils"). The plaintiffs' complaint alleges the following facts, which we take as true for purposes of this appeal. On April 8, 1992, Mesiti and Silva attended a mandatory, school-wide "assembly" at Chelmsford High School. Both students were fifteen years old at the time. The assembly consisted of a ninety-minute presentation characterized by the defendants as an AIDS awareness program (the "Program"). The Program was staged by defendant Suzi Landolphi ("Landolphi"), contracting through defendant Hot, Sexy, and Safer, Inc., a corporation wholly owned by Landolphi.

Plaintiffs allege that Landolphi gave sexually explicit monologues and participated in sexually suggestive skits with several minors chosen from the audience. Specifically, the complaint alleges that Landolphi: 1) told the students that they were going to have a "group 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 promiscuous premarital sex; 4) simulated masturbation; 5) characterized the loose pants worn by one minor as "erection wear"; 6) referred to being in "deep sh--" after anal sex; 7) had a male minor lick an oversized condom with her, after which 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" with her for the camera; 9) informed a male minor that he was not having enough orgasms; 10) 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 that the sexually explicit nature of Landolphi's speech and behavior humiliated and intimidated Mesiti and Silva. Moreover, many students copied Landolphi's routines and generally displayed overtly sexual behavior in the weeks following the Program, allegedly exacerbating the minors' harassment. The complaint does not allege that either of the minor plaintiffs actually participated in any of the skits, or were the direct objects of any of Landolphi's comments.

The complaint names eight co-defendants along with Hot, Sexy, and Safer, and Landolphi, alleging that each played some role in planning, sponsoring, producing, and compelling the minor plaintiffs' attendance at the Program. In March 1992, defendant Judith Hass ("Hass"), then chairperson of the Chelmsford Parent Teacher Organization (the "PTO"), initiated negotiations with Hot, Sexy, and Safer. Hass and defendant Michael Gilchrist, M.D., also a member of the PTO, as well as the school physician, viewed a promotional videotape of segments of Landolphi's past performances and then recommended the Program to the school administration. On behalf of defendant Chelmsford School Committee (the "School Committee"), Hass executed an agreement with Hot, Sexy, and Safer, and authorized the release of $1,000 of Chelmsford school funds to pay Landolphi's fee.

The complaint also names as defendants two other members of the School Committee,

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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.

A school policy adopted by the School Committee required "[p]ositive subscription, with written parental permission" as a prerequisite to "instruction in human sexuality." The plaintiffs allege, however, that the parents 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 defendants' motion to dismiss plaintiffs' complaint, pursuant to Federal Rule of Civil Procedure 12(b)(6), for failure to state a claim upon which relief may be granted, and also dismissed the state law claims under the supplemental jurisdiction principles of 28 U.S.C. Sec. 1367. 1 The district court deferred entry of final judgment, giving plaintiffs leave to file an amended complaint curative of the deficiencies by February 10, 1995. Plaintiffs failed to do so, and final judgment was entered on March 3, 1995, dismissing their claims.


We exercise de novo review over a district court's dismissal of a claim under Rule 12(b)(6). Vartanian v. Monsanto Co., 14 F.3d 697, 700 (1st Cir.1994); Kale v. Combined Ins. Co. of America, 924 F.2d 1161, 1165 (1st Cir.1991). We accept the allegations of the complaint as true, and determine whether, under any theory, the allegations are sufficient to state a cause of action in accordance with the law. Vartanian, 14 F.3d at 700; Knight v. Mills, 836 F.2d 659 (1st Cir.1987). Although our review is plenary, an appeal is not an opportunity to conjure new arguments not raised before the district court. McCoy v. Massachusetts Inst. of Tech., 950 F.2d 13, 22 (1st Cir.1991), cert. denied, 504 U.S. 910, 112 S.Ct. 1939, 118 L.Ed.2d 545 (1992). In addition, "[b]ecause only well pleaded facts are taken as true, we will not accept a complainant's unsupported conclusions or interpretations of law." Washington Legal Found. v. Massachusetts Bar Found., 993 F.2d 962, 971 (1st Cir.1993) (citations omitted). We may affirm a district court's dismissal order under any independently sufficient grounds. Id.


The plaintiffs seek both declaratory and monetary relief, alleging that the school sponsored program deprived the minor plaintiffs of: (1) their privacy rights under the First and Fourteenth Amendments; (2) their substantive due process rights under the First and Fourteenth Amendments; (3) their procedural due process rights under the Fourteenth Amendment; and (4) their First Amendment rights under the Free Exercise Clause (in conjunction with a deprivation of the parent plaintiffs' right to direct and control the upbringing of their children). Plaintiffs also allege that the Program created a sexually hostile educational environment in violation of Title IX of the Education Amendments of 1972, 20 U.S.C. Sec. 1681 et seq. 2

As an initial matter, we briefly address defendants' assertion of the defense of qualified immunity. Plaintiffs seek monetary damages under 42 U.S.C. Sec. 1983, 3 and defendants assert the affirmative defense of qualified immunity, which shields public officials performing discretionary functions from liability for civil damages "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable

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person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). A right is "clearly established" if, at the time of the alleged violation, "[t]he contours of the right [are] sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987). "[T]he relevant question is whether a reasonable official could have believed his actions 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 837, 844 (1st Cir.1995) (citations omitted).

The Supreme Court has explained that: "A necessary concomitant to the determination of whether the constitutional right asserted by a plaintiff is 'clearly established' at the time the defendant acted is the determination of whether the plaintiff has asserted a violation of a constitutional right at all." Siegert v. Gilley, 500 U.S. 226, 232, 111 S.Ct. 1789,...

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