Saxe v. State College Area School Dist., 4:CV-99-1757.

Citation77 F.Supp.2d 621
Decision Date17 December 1999
Docket NumberNo. 4:CV-99-1757.,4:CV-99-1757.
PartiesDavid 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.
CourtU.S. District Court — Middle District of Pennsylvania

Bryan J. Brown, Stephen M. Crampton, Brian Fahling, American Family Association, Center for Law & Policy, Tupelo, MS, Scott A. Williams, Williamsport, PA, for plaintiffs.

David B. Consiglio, John R. Miller, Jr., Miller, Kistler, Campbell, Miller, Williams & Benson, State College, PA, for defendants.

MEMORANDUM

McCLURE, District Judge.

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 1666.1 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?2

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.3 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 Christians4 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 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 environment.

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.5 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...

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1 cases
  • Saxe v. State College Area School District, 99-4081
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • 23 Mayo 2000
    ...to dismiss on the pleadings, holding that the Policy was facially constitutional. See Saxe v. State College Area School District, 77 F. Supp. 2d 621 (M.D. Pa. 1999). The Court found that the Policy's operative definition of harassment was contained in its second paragraph, which, as the Cou......

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