
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 95-1275                               RONALD C. BROWN, ET AL.,                               Plaintiffs - Appellants,                                          v.                    HOT, SEXY AND SAFER PRODUCTIONS, INC., ET AL.,                               Defendants - Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. Robert E. Keeton, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                               Torruella, Chief Judge,                                          ___________                                Stahl, Circuit Judge,                                       _____________                           and Dom nguez,* District Judge.                                           ______________                                _____________________               John L. Roberts for appellant.               _______________               John  Foskett, with  whom Deutsch  Williams Brooks  DeRensis               _____________             __________________________________          Holland & Drachman,  P.C., Paul  F. Degnan, Nancy  Kirk, Kirby  &          _________________________  _______________  ___________  ________          Associates, Mary  L. Bonauto,  Bennett H.  Klein,  Gay &  Lesbian          __________  ________________   _________________          Advocates & Defenders, Neila  J. Straub 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,  with  whom  Monica  L.                               ___________________               __________          Phillips,  Hill &  Barlow, Susan  Wunsch and  Massachusetts Civil          ________   ______________  _____________          Liberties Union  Foundation were  on brief for  appellees Michael          Gilchrist and Judith Hass.                                 ____________________                                   October 23, 1995                                 ____________________                                        ____________________          *  Of the District of Puerto Rico, sitting by designation.                    TORRUELLA, Chief Judge.   The plaintiffs are two minors                    TORRUELLA, Chief Judge.                               ___________          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.                                      BACKGROUND                                      BACKGROUND                    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                                         -2-          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,                                         -3-          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, 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                                         -4-          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.            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.                                   STANDARD OF REVIEW                                  STANDARD OF REVIEW                    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                                        ____________________          1   28 U.S.C.   1367(c)  gives a court discretion  to "decline to          exercise  supplemental  jurisdiction  over a  [state  law]  claim          [where] the district court has dismissed all claims over which it          has original jurisdiction."                                         -5-          arguments  not  raised  before  the  district  court.    McCoy v.                                                                   _____          Massachusetts  Inst. of Tech., 950  F.2d 13, 22  (1st Cir. 1991),          _____________________________          cert.  denied, 112 S. Ct.  1939 (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.                               __                                      DISCUSSION                                      DISCUSSION                    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.   1681 et seq.2                                                          __ ___                    As an  initial matter,  we briefly  address defendants'          assertion of  the defense of qualified immunity.  Plaintiffs seek                                        ____________________          2   The complaint also  alleges five state  law claims which  are          irrelevant for purposes of this appeal.                                         -6-          monetary damages  under 42 U.S.C.   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  person  would  have  known."    Harlow  v.                                                                 ______          Fitzgerald,  457 U.S.  800,  818 (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 (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 (1991).    Therefore, "before  even reaching  qualified          immunity,  a   court  of  appeals  must   ascertain  whether  the          appellants have asserted a violation of a constitutional right at                                        ____________________          3   Section 1983 provides a remedy  against any person who, under          color   of  state  law,  deprives   a  citizen  of   his  or  her          constitutional rights.  42 U.S.C.   1983.                                         -7-          all."  Watterson v. Page, 987 F.2d 1, 7 (1st  Cir. 1993); Singer,                 _________    ____                                  ______          49  F.3d  at  844.    Thus,  as  a  predicate  to  the  objective          reasonableness  inquiry,  "a  plaintiff  must  establish  that  a          particular defendant violated the plaintiff's federally protected          rights."  Singer, 49 F.3d at 844 (citations omitted).                    ______                    Accordingly, we first  address each of  the plaintiffs'          claims to determine  whether it  states a cause  of action  under          federal   law.    If  any  of  the  claims  meet  this  threshold          requirement,  we will  then  proceed to  the  issue of  qualified          immunity.          I.  Privacy Rights and Substantive Due Process          I.  Privacy Rights and Substantive Due Process              __________________________________________                    The  Fourteenth  Amendment  provides that  "[n]o  State          shall  .  . .  deprive any  person  of life  liberty  or property          without due  process  of law."    U.S.  Const. amend  XIV.    The          substantive component  of due  process protects  against "certain          government actions  regardless of the fairness  of the procedures          used to implement them."  Daniels v. Williams, 474  U.S. 327, 331                                    _______    ________          (1986).   See also Pittsley  v. Warish, 927  F.2d 3, 6  (1st Cir.                    ________ ________     ______          1991)  (comparing  substantive  due  process  to  procedural  due          process) (citing  Monroe v. Pape,  365 U.S. 167,  171-72 (1961)).                            ______    ____          There  are two  theories  under which  a  plaintiff may  bring  a          substantive due process claim.  Under the first, a plaintiff must          demonstrate a  deprivation of  an identified liberty  or property          interest protected  by the  Fourteenth Amendment.   Pittsley, 927                                                              ________          F.2d at 6 (citing Meyer  v. Nebraska, 262 U.S. 390, 399  (1923)).                            _____     ________          Under  the second,  a  plaintiff is  not  required to  prove  the                                         -8-          deprivation  of a  specific  liberty or  property interest,  but,          rather,  he  must prove  that  the  state's conduct  "shocks  the          conscience."   Id. at 6  (quoting Rochin v.  California, 342 U.S.                         __                 ______     __________          165, 172 (1952)).  Plaintiffs contend that compelling the minors'          attendance at  the Program constitutes a  substantive due process          violation under both tests.                    A.  Conscience Shocking Behavior                    A.  Conscience Shocking Behavior                        ____________________________                    Plaintiffs'  claim  that  the  defendants   engaged  in          conscience  shocking  behavior  when  they  compelled  the  minor          plaintiffs  to attend  the Program.   The  Supreme Court  set the          standard for analyzing claims  of conscience shocking behavior in          Rochin.  In  that case, the Court held  that the government could          ______          not  use  evidence  obtained  by pumping  a  defendant's  stomach          against  his  will  because  the  state  actor's conduct  was  so          egregious that  it "shock[ed]  the conscience" and  offended even          "hardened  sensibilities."  Rochin, 342  U.S. at 172.   The Court                                      ______          explained that the stomach pumping employed by the state was "too          close  to  the  rack  and   screw  to  permit  of  constitutional          differentiation."  Id.                              __                    Similarly, we have found "conscience  shocking" conduct          only  where the  state  actors engaged  in "extreme  or intrusive          physical conduct."   Souza v. Pina,  53 F.3d  423, 427 (1st  Cir.                               _____    ____          1995); Harrington v.  Almy, 977  F.2d 37, 43-44  (1st Cir.  1992)                 __________     ____          (reasonable fact-finder could  find "conscience shocking" conduct          where a police officer  charged with child abuse was  required to                                         -9-          take   a   penile  plethysmograph4   as   a   condition  of   his          reinstatement).   See  also Garc a  v. Meira,  817 F.2d  650, 655                            _________ ______     _____          (10th Cir. 1987) (corporal punishment of students may  "shock the          conscience"   if   it   "caused   injury  so   severe,   was   so          disproportionate  to the need  presented, and was  so inspired by          malice or  sadism . . . that it amounted to a brutal and inhumane          abuse  of official power") (quoting Hall v. Tawney, 621 F.2d 607,                                              ____    ______          613 (4th Cir. 1980)).                    Although we  have not  foreclosed the  possibility that          words or verbal  harassment may  constitute "conscious  shocking"          behavior  in violation  of  substantive due  process rights,  see                                                                        ___          Souza, 53 F.3d at 427; Pittsley, 927 F.2d at 6, our review of the          _____                  ________          caselaw indicates that  the threshold for alleging such claims is          high and that the facts alleged here do not rise to that level.                    In Souza, the plaintiff alleged that the prosecutor had                       _____          caused  the suicide of her son by conducting press conferences in          which he  encouraged the media  to link  the son to  a string  of          serial  murders.     The  plaintiff  further   alleged  that  the          prosecutor knew of her son's suicidal tendencies and should  have          known  that  he would  take  his  own life  as  a  result of  the          accusations.  Although  we "pause[d] to make clear that we do not          condone the conduct alleged by Souza," we nevertheless found that          the conduct was  not "conscience  shocking."  Souza,  53 F.3d  at                                                        _____          424-27.                                        ____________________          4   A penile plethysmograph assesses a person's sexual profile by          the  placement of a gauge  on the subjects'  penis while he views          various sexually explicit slides of both adults and children.                                          -10-                    In Pittsley, police officers told two young children --                       ________          ages  four and ten  -- that  "if we ever  see your  father on the          street again, you'll never see him again."  Pittsley, 927 F.2d at                                                      ________          5.  When  the police subsequently arrested the children's father,          they  "use[d] vulgar language"  and refused  to let  the children          give their  father a hug and kiss goodbye.  Id.  In affirming the                                                      __          directed verdicts  for defendants, we explained:   "As despicable          and wrongful as it may  have been, the single threat made  by the          officers is not sufficient to 'shock the conscience.'"  Id. at 7.                                                                  __                    The  facts alleged  at bar are  less severe  than those          found insufficient in Souza and Pittsley.  The minor teenagers in                                _____     ________          this  case were  compelled  to attend  a  sexually explicit  AIDS          awareness  assembly without  prior  parent approval.   While  the          defendants'  failure  to  provide  opt-out  procedures  may  have          displayed a certain callousness  towards the sensibilities of the          minors, their  acts do  not approach the  mean-spirited brutality          evinced  by the defendants in Souza and Pittsley.  We accordingly                                        _____     ________          hold that the acts alleged here, taken as true, do not constitute          conscience shocking and thus fail to state a claim under Rochin.                                                                   ______                    B.  Protected Liberty Interests                    B.  Protected Liberty Interests                        ___________________________                    The  Supreme  Court  has   held  that  the   Fourteenth          Amendment  encompasses  a  privacy right  that  protects  against          significant   government   intrusions   into   certain   personal          decisions.   See Roe  v. Wade,  410 U.S. 113,  152 (1973).   This                       ___ ___     ____          right of privacy  "has some extension  to activities relating  to          marriage, procreation, contraception,  family relationships,  and                                         -11-          child  rearing   and  education."     Id.   (citations  omitted).                                                __          Nevertheless,  the Supreme  Court has  explained that  only those          rights  that "can  be  deemed 'fundamental'  or 'implicit  in the          concept of  ordered liberty'  are included  in this guarantee  of          personal privacy."  Id. (quoting  Palko v. Connecticut, 302  U.S.                              __            _____    ___________          319,  325  (1937)).    Regulations  limiting  these  "fundamental          rights" may be justified "only by a 'compelling state interest' .          . . [and]  must be narrowly drawn to express  only the legitimate          interests at stake."  Id. (citations omitted).                                __                      1.  Right to Rear Children                      1.  Right to Rear Children                          ______________________                    Parent-plaintiffs allege that  the defendants  violated          their privacy  right to direct  the upbringing of  their children          and educate  them in  accord with  their own  views.  This,  they          maintain, is a constitutionally protected "fundamental right" and          thus  can only be infringed upon a showing of a "compelling state          interest" that cannot be achieved by any less restrictive means.                    The genesis of the  right claimed here can be  found in          Meyer v.  Nebraska, 262 U.S. 390 (1923), and Pierce v. Society of          _____     ________                           ______    __________          Sisters, 268  U.S. 510, 535 (1925).   In Meyer, the  Court struck          _______                                  _____          down  a  state  law  forbidding instruction  in  certain  foreign          languages  in part  because  it arbitrarily  interfered with  the          "right  of  parents"  to   procure  such  instruction  for  their          children.   Meyer, 262 U.S.  at 400.   In so  holding, the  Court                      _____          stated:                      While  this  Court has  not  attempted to                      define   with   exactness   the   liberty                      [guaranteed by the due process  clause of                      the Fourteenth Amendment],  the term  has                                         -12-                      received much consideration  and some  of                      the included things have  been definitely                      stated.   Without  doubt, it  denotes not                      merely freedom from bodily  restraint but                      also  the  right  of  the  individual  to                      contract, to  engage in any of the common                      occupations  of  life, to  acquire useful                      knowledge, to marry,  to establish a home                      and bring  up  children, to  worship  God                      according  to the  dictates  of  his  own                      conscience, and generally to  enjoy those                      privileges long recognized at  common law                      as  essential to  the orderly  pursuit of                      happiness by free men.          Id. at 399.          __                    Two years later the Court in Pierce struck down a state                                                 ______          statute requiring public school attendance -- and thus precluding          attendance  at  parochial  schools --  because  it  "unreasonably          interfere[d] with the  liberty of parents or guardians  to direct          the upbringing  and education  of children under  their control."          268 U.S. at  534-35.  The  Meyer and Pierce decisions  have since                                     _____     ______          been  interpreted by  the Court  as recognizing  that, under  our          Constitutional  scheme, "the  custody,  care and  nurture of  the          child reside first in the parents."  Prince v. Massachusetts, 321                                               ______    _____________          U.S. 158, 166 (1944);  see Wisconsin v. Yoder, 406 U.S. 205, 232-                                 ___ _________    _____          33 (1972).                    Nevertheless, the Meyer  and Pierce cases were  decided                                      _____      ______          well  before the  current  "right to  privacy" jurisprudence  was          developed,  and the Supreme Court  has yet to  decide whether the          right to direct the upbringing and education of one's children is          among   those  fundamental   rights  whose   infringement  merits          heightened scrutiny.  We  need not decide here whether  the right          to  rear one's children is fundamental because we find that, even                                         -13-          if  it  were,  the  plaintiffs  have  failed  to  demonstrate  an          intrusion of constitutional magnitude on this right.5                    The  Meyer  and  Pierce  cases, we  think,  evince  the                         _____       ______          principle  that the state cannot  prevent parents from choosing a          specific  educational   program  --  whether   it  be   religious          instruction  at a  private  school or  instruction  in a  foreign          language.    That  is,  the state  does  not  have  the power  to          "standardize  its children"  or "foster  a homogenous  people" by          completely foreclosing the opportunity  of individuals and groups          to choose a different path of education.  Meyer, 262 U.S. at 402,                                                    _____          discussed in, Tribe,  supra,   15-6 at  1319.   We do not  think,          ____________          _____          however,   that   this    freedom   encompasses   a   fundamental          constitutional  right to  dictate  the curriculum  at the  public                                        ____________________          5  The  issue is muddled because the Meyer  and Pierce cases were                                               _____      ______          decided  on the grounds that the "statute as applied is arbitrary          and without reasonable relation to any  end within the competency          of the state."   Meyer, 262 U.S. at 403; Pierce, 268 U.S. at 534-                           _____                   ______          36.  Indeed, the  opinions indicate that something less  than the          current  "compelling  state  interest"  test  was  then  used  to          evaluate a substantive due process challenge involving one of the          listed liberty interests:  "The established doctrine is that this          liberty may not be interfered with, under the guise of protecting          the public  interest, by legislative action which is arbitrary or          without reasonable relation to some purpose within the competency          of the  State to effect."   Meyer, 262 U.S. at  399-400; see also                                      _____                        ________          Pierce, 268 U.S. at 535.          ______             Moreover,  it should be noted that these cases were decided in          the 1920's, before the  Bill of Rights was incorporated  into the          Fourteenth  Amendment, and  would  probably be  decided today  on          First  Amendment   grounds.     Rotunda  &  Nowak,   Treatise  on                                                               ____________          Constitutional Law:   Substance  and Procedure,     21.7 (2d  ed.          ______________________________________________          1992); Laurence H. Tribe, American  Constitutional Law,   15-6 at                                    ____________________________          1319-20  (1988)   (suggesting   that  they   reflect  the   First          Amendment's  limit  on  the  state's  ability  to  "contract  the          spectrum   of   available   knowledge")   (quoting   Griswold  v.                                                               ________          Connecticut, 381 U.S. 479, 482 (1965)).          ___________                                         -14-          school  to which they  have chosen to  send their children.   See                                                                        ___          Rotunda  &  Nowak,  supra,     18.28  n.25.    We  think   it  is                              _____          fundamentally  different for the state  to say to  a parent, "You          can't teach your child German or send him to a parochial school,"          than for  the parent to  say to  the state, "You  can't teach  my          child  subjects that  are morally  offensive to  me."   The first          instance involves  the state  proscribing parents from  educating          their  children, while  the second  involves parents  prescribing          what the state shall teach their  children.  If all parents had a          fundamental constitutional right to dictate individually what the          schools  teach their  children, the  schools would  be forced  to          cater a  curriculum for each  student whose  parents had  genuine          moral disagreements  with the school's choice  of subject matter.          We  cannot see  that the  Constitution imposes  such a  burden on          state educational  systems, and accordingly find  that the rights          of parents  as described by Meyer  and Pierce do not  encompass a                                      _____      ______          broad-based  right to  restrict the  flow  of information  in the          public schools.6                        2.  Right to be Free from Offensive Speech                      2.  Right to be Free from Offensive Speech                          ______________________________________                                        ____________________          6  Plaintiffs claim  that Alfonso v. Fern ndez, 606  N.Y.S.2d 259                                    _______    _________          (A.D.2  Dept. 1993),  supports  their position  that they  have a          fundamental right to preclude  the schools from teaching subjects          that they find objectionable.  The court in Alfonso did hold that                                                      _______          the parental right to direct the upbringing of their children was          fundamental and that it  was violated by a program  providing for          condom  distribution at  a  public  high  school.   However,  the          court's   holding   specifically    distinguished   the    condom          distribution program from exposure "to  talk or literature on the          subject of sexual behavior," finding that  the latter claim would          "falter  in the  face of  the public  school's role  in preparing          students  for participation in  a world replete  with complex and          controversial issues."  Id. at 266.                                  __                                         -15-                    The  minor plaintiffs  maintain  that  the  defendants'          conduct violated their privacy right to be free from "exposure to          vulgar and offensive language and obnoxiously debasing portrayals          of human  sexuality."  Plaintiffs  cite no cases  -- and we  have          found  none -- indicating  that such a  fundamental privacy right          exists.   Rather, they  attempt to  extract  the claimed  privacy          right from the Supreme Court's First Amendment cases which uphold          the state's  limited power  to regulate or  discipline speech  to              _______          protect  minors from offensive or vulgar speech.  See Bethel Sch.                                                            ___ ___________          Dist. No. 403 v. Fraser, 478  U.S. 675, 685 (1986)(cited for  the          _____________    ______          proposition that  "[a] high  school assembly  or classroom  is no          place  for  a sexually  explicit  monologue  directed towards  an          unsuspecting  audience  of teenage  students");  FCC v.  Pacifica                                                           ___     ________          Found.,  438 U.S. 726  (1978).  We agree  with the district court          ______          that these cases "do not create a private cause of action against          state officials for exposure" to patently offensive language.7          II.  Procedural Due Process          II.  Procedural Due Process               ______________________                    The   plaintiffs'  third   claim  alleges   that  their          procedural due process rights under the Fourteenth Amendment were          violated when  the defendants  compelled the minor  plaintiffs to          attend the Program without giving the parents advance  notice and                                        ____________________          7    The Supreme  Court has  explained  that a  special situation          pertains  where   a  free   exercise  challenge  is   brought  in          conjunction with a  substantive due  process challenge  involving          the  right of parents to direct the upbringing of their children.          See  Employment  Div.  v. Smith,  494  U.S.  872, 881-82  (1990);          ___  ________________     _____          Wisconsin  v. Yoder, 406 U.S.  205, 233-34 (1972).   We therefore          _________     _____          analyze  this  "hybrid  right"  along with  their  free  exercise          challenge.  See infra.                      ___ _____                                         -16-          an opportunity to opt out of attending.                    "In procedural  due process claims, the  deprivation by          state action  of a constitutionally protected  interest in 'life,          liberty, or property'  is not in itself unconstitutional; what is          unconstitutional is  the deprivation of such  an interest without                                                                    _______          due process of law."  Zinermon v. Burch, 494 U.S. 113, 125 (1990)          __________________    ________    _____          (quoting  Parratt   v.  Taylor,   451  U.S.  527,   537  (1981)).                    _______       ______          Application of this prohibition requires a well settled two-stage          analysis.    We  first  decide whether  the  asserted  individual          interests  are  encompassed  within  the  Fourteenth  Amendment's          protection  of  "life,  liberty   or  property."    If  protected          interests  are implicated,  we then  must decide  what procedures          constitute  "due process of law."   Ingraham v.  Wright, 430 U.S.                                              ________     ______          651, 672 (1977) (citations omitted).  Protected liberty interests          may arise from two  sources -- the Due Process  Clause itself and          the  laws  of  the states.    Kentucky  Dept.  of Corrections  v.                                        _______________________________          Thompson, 490 U.S. 454, 460 (1989) (citations omitted).          ________                    The  liberty  preserved  from deprivation  without  due          process includes  the right "generally to  enjoy those privileges          long recognized at common law as essential to the orderly pursuit          of happiness  by   free  men."   Meyer,  262  U.S.  at 399.    As                                           _____          previously  discussed,  however,  the liberty  protected  by  the          Fourteenth Amendment does not  encompass a right to be  free from          exposure to speech  which one  regards as offensive.   Thus,  the          plaintiffs' asserted liberty interest, if one exists, must derive          from state law.                                         -17-                    The plaintiffs  contend that  state law and  the School          Committee's  policy  on  "Sex   Education"  (the  "Sex  Education          Policy")  confers  a protected  liberty  interest,  and that  the          defendants'  actions deprived  them  of it  without due  process.          Specifically, the complaint alleges that the defendants failed to          follow the school's Sex Education Policy, which provides:                      The  Committee  believes that  the public                      schools can best transmit  information on                      human  sexuality  to   students  in   the                      context    of   the    health   education                      continuum.    Therefore, information  and                      instructional  tools  appropriate to  the                      age  group  will   be  used  to   include                      instruction  in  human  sexuality in  the                      curricular offerings on health.  Positive                                                       ________                      subscription,   with   written   parental                      _________________________________________                      permission,  will  be  a prerequisite  to                      _________________________________________                      enrolling.                        _________          (Emphasis added.)  The complaint further alleges that the parents          were not  given advance notice of the  contents of the Program or          an opportunity to opt out.                    Defendants concede  for the  purposes  of their  motion          that  the  Sex Education  Policy  confers a  liberty  interest in          freedom from exposure to  the content of the Program and in being          afforded an opportunity to  opt out.8  They argue,  however, that          the  plaintiffs still fail to state a claim because the violation          of the Sex Education  Policy was a "random and  unauthorized" act                                        ____________________          8  The plaintiffs also maintain that Mass.  Ann. Laws ch. 71,   1          (1995) confers a protected liberty interest.  That statute grants          a  right to  opt out  from "instruction  on disease"  to students          whose  "sincerely  held  religious  beliefs"  conflict with  such          instruction.   Defendants assume for the  purposes of this appeal          that Mass. Gen. L.  ch. 71,   1 is an  alternative source for the          claimed liberty interest.                                         -18-          within the confines  of the Parratt-Hudson  doctrine.  Hudson  v.                                      _______ ______             ______          Palmer,  468 U.S.  517  (1984);  Parratt,  451  U.S.  527.    The          ______                           _______          plaintiffs  maintain that their claim is more akin to that stated          in  Zinermon, and is thus outside the scope of the Parratt-Hudson              ________                                       _______ ______          doctrine.                    In Parratt,  a state prisoner  brought a    1983 action                       _______          because prison  employees had  negligently lost materials  he had          ordered by mail.   The  Supreme Court ruled  that the  prisoner's          post-deprivation tort  remedy was  all the  process that  was due          because  the state  could  not have  provided any  predeprivation          procedural safeguard to address  the risk of this kind  of random          and unauthorized deprivation.  Parratt, 451 U.S. at 541.  As  the                                         _______          Court  explained, "the loss is  not a result  of some established          state procedure and the State  cannot predict precisely when  the          loss will  occur.  It is  difficult to conceive of  how the State          could provide  a meaningful hearing before  the deprivation takes          place."   Id.    In  Hudson,  the  Supreme  Court  extended  this                    __         ______          reasoning  to intentional  deprivations  of property,  explaining          that  "[t]he  state  can  no  more  anticipate  the  random   and          unauthorized  intentional conduct  of its  employees than  it can          similar negligent conduct."  Hudson, 468 U.S. at 533.                                       ______                    Parratt  and  Hudson preclude     1983  claims for  the                    _______       ______          "random and unauthorized" conduct  of state officials because the          state cannot "anticipate and  control [such conduct] in advance."          Zinermon, 494 U.S. at 130.  In addition, the Court has made clear          ________          that unauthorized deprivations of  property by state employees do                                         -19-          not  constitute  due  process  violations  under  the  Fourteenth          Amendment  so long  as  meaningful  postdeprivation remedies  are          available.   Id. at 128-30.   Moreover, the  Court has emphasized                       __          that "no matter how significant the private interest at stake and          the  risk  of  its  erroneous deprivation,  the  State  cannot be          required constitutionally  to  do  the  impossible  by  providing          predeprivation  process."     Id.  at  129  (citations  omitted).                                        __          Therefore, "the proper inquiry under Parratt is whether the state                                               _______                _____          is in a position to provide for predeprivation process."   Id. at                                                                     __          130 (quotation omitted).                    Zinermon involved a due process claim against the state                    ________          doctors who admitted the plaintiff Burch as a  "voluntary" mental          patient.  Burch alleged  that he was incompetent  at the time  of          his  admission  and should  have  been  afforded the  protections          provided by  the involuntary  placement procedure.   Although the          Court found that Parratt-Hudson  doctrine applied to deprivations                           _______ ______          of  liberty, it nevertheless  concluded that Burch  had failed to          state a viable   1983 claim.  Id. at 131-32.                                        __                    The court  found that Burch's claim  was not controlled          by Parratt and Hudson for three basic reasons.  First,  the Court             _______     ______          explained  that the timing of Burch's  deprivation of liberty was          more  predictable than  in  Parratt and  Hudson.   As  the  Court                                      _______      ______          explained, "it  is hardly unforeseeable that  a person requesting          treatment  for  mental illness  might  be  incapable of  informed          consent."  Id. at  136.  Thus, "[a]ny erroneous  deprivation will                     __          occur,  if at  all,  at  a  specific,  predicable  point  in  the                                         -20-          admission process."  Id.  Second, the Court found that the  state                               __          could   have  provided  meaningful   predeprivation  process  and          possibly averted the deprivation Burch alleged.  Third, the Court          found that because the state had delegated the hospital officials          broad  authority to  "effect the  very deprivation  complained of          here," their conduct could not be characterized as "unauthorized"          in the same sense  as the destruction of the  prisoners' property          in Parratt and Hudson.             _______     ______                    The  Parratt-Hudson-Zinermon   trilogy  "requires  that                         _______ ______ ________          courts scrutinize carefully the assertion by state officials that          their conduct is  'random and unauthorized'  . .  . where such  a          conclusion limits the procedural due process inquiry under   1983          to  the  question  of   the  adequacy  of  state  postdeprivation          remedies."   Lowe v.  Scott, 959 F.2d 323,  341 (1st Cir. 1992).9                       ____     _____          Our  examination here leads us  to agree with  the district court          that  the  plaintiffs'  claim  falls  within  the  Parratt-Hudson                                                             _______ ______          doctrine.                    The plaintiffs  have not  alleged any facts  that would          bring their claim within the scope of Zinermon.  They point to no                                                ________          facts  suggesting  that  the   state  could  have  predicted  the                                        ____________________          9  Other circuits  have interpreted the doctrine similarly.   See                                                                        ___          Caine v.  Hardy, 943 F.2d  1406, 1413 (5th  Cir. 1991)  (en banc)          _____     _____          ("Zinermon thus requires a hard look at  a Parratt/Hudson defense            ________                                 _______ ______          to determine whether the state officials' conduct, under all  the          circumstances, could have been adequately  foreseen and addressed          by  procedural safeguards.");  Easter House  v. Felder,  910 F.2d                                         ____________     ______          1387, 1402 (7th Cir.1990) (en banc), cert. denied, 111 S. Ct. 783                                               ____________          (1991)  (concluding that  "Zinermon holds  only that  predictable                                     ________          deprivations of  liberty and property which  flow from authorized          conduct are compensable under   1983").                                         -21-          defendants'  failure  to give  the  required  notice and  opt-out          opportunity,  nor  do  they  suggest  any  reasonable  additional          predeprivation procedures  which would have  meaningfully reduced          the risk of the due process violation alleged.                    The plaintiffs  contend that the  deprivation cannot be          characterized   as   "random   and  unauthorized"   because   the          performance was planned well in advance.  This contention ignores          both the nature of the deprivation and the relevant caselaw.  The          deprivation  alleged  here is  not  the  staging of  the  Program          itself,  but  rather  the   defendants'  failure  to  follow  the          procedures mandated by  the Sex Education Policy.   Moreover, the          Supreme Court  has established that  the Parratt-Hudson  doctrine                                                   _______ ______          applies to both  negligent and intentional tortious acts of state          actors, explaining that "it  would be absurd to suggest  that the          State hold  a hearing  to determine  whether  a [state  official]          should  engage in such conduct."  Hudson,  468 U.S. at 533.  That                                            ______          reasoning  is applicable here.   The plaintiffs  have not alleged          any  facts from  which a  court could  reasonably infer  that any          defendant  was vested with "the power and authority to effect the          very  deprivation complained  of here."   Zinermon,  494 U.S.  at                                                    ________          138.10     Rather,   the   Sex  Education   Policy  states   that          "[p]ositive  subscription, with  parental permission,  will be  a          prerequisite  to   enrolling,"   and,  accordingly,   vested   no                                        ____________________          10  As the  district court noted, although three  defendants were          members of the School Committee (which  adopted the Sex Education          Policy),  the plaintiffs  do  not allege  that these  defendants,          either  individually or as a group, were authorized to circumvent          a policy adopted and enacted by the School Committee as a whole.                                         -22-          discretion in  school officials.  We therefore  conclude that the          failure  to follow  the Sex  Education Policy  was a  "random and          unauthorized"  act  within  the  confines of  the  Parratt-Hudson                                                             _______ ______          doctrine.                    The second stage of  a Parratt-Hudson analysis looks to                                           _______ ______          whether the state has provided adequate postdeprivation remedies.          Lowe, 959  F.2d at 340 (discussing  Parratt, 451 U.S.  527).  The          ____                                _______          plaintiffs did not  argue to  the district court  that the  state          remedies were  inadequate, relying  instead on their  belief that          Zinermon was controlling.   On appeal, they do no more than state          ________          baldly  that  "[n]o  post-deprivation  procedures  can  undo  the          damaging influences  which were impressed on  the students during          the performance."   Accordingly,  we deem  this point waived  for          appellate  review, see United States  v. Zannino, 895  F.2d 1, 17                             ___ _____________     _______          (1st Cir.),  cert. denied, 494  U.S. 1082 (1990)  (discussing the                       ____________          "settled appellate rule that issues adverted  to in a perfunctory          manner, unaccompanied by some effort  at developed argumentation,          are deemed waived"), and therefore  find that the plaintiffs have          failed to state a procedural due process claim.          III.  Free Exercise Clause          III.  Free Exercise Clause                ____________________                    Plaintiffs'  fourth  claim   seeks  both  monetary  and          declaratory relief, alleging that the defendants' endorsement and          encouragement  of  sexual  promiscuity at  a  mandatory  assembly          "imping[ed] on their  sincerely held  religious values  regarding          chastity and  morality," and  thereby violated the  Free Exercise          Clause of the First Amendment.                                         -23-                    In Employment Div., Oregon  Dep't of Human Resources v.                       _________________________________________________          Smith,  494 U.S. 872 (1990),  the Supreme Court  addressed a free          _____          exercise challenge to a facially neutral and generally applicable          criminal statute.   The Court held  that the compelling  interest          test did  not  apply to  free exercise  challenges to  "generally          applicable  prohibitions of  socially harmful  conduct."   Id. at                                                                     __          882-85.  The  Court explained  that the First  Amendment was  not          offended by neutral, generally  applicable laws, unless burdening          religion was the object of the law.  Id. at 878-82.                                               __                    In  1994,  Congress   enacted  the  Religious   Freedom          Restoration  Act ("RFRA"), 42 U.S.C.   2000bb, in response to the          Supreme  Court's decision  in  Smith.   RFRA states,  in relevant                                         _____          part:                       (a)  In General  -- Government  shall not                      substantially burden  a person's exercise                      of  religion even  if the  burden results                      from  a  rule  of general  applicability,                      except as provided  in subsection (b)  of                      this section.                      (b)    Exception   --    Government   may                      substantially burden  a person's exercise                      of religion only if it  demonstrates that                      application of the  burden to the  person                      --                       (1) is  in  furtherance of  a  compelling                      governmental interest; and                       (2) is  the  least restrictive  means  of                      furthering  that  compelling governmental                      interest.          Id.  RFRA states that it was enacted to bring the law back to its          __          pre-Smith state.  Id.              _____         __                    The  plaintiffs'  Free  Exercise challenge  raises  two          complex constitutional  issues.   The threshold issue  is whether                                         -24-          the  Free Exercise  Clause  even applies  to public  education.11          If indeed  the Free  Exercise Clause  applies to  the plaintiffs'          claim, the  question would then  be whether  their free  exercise          rights were violated by the compulsory attendance at the Program.          Because the Program  was staged in 1992, and RFRA  was enacted in          1994, however,  a cause of  action under RFRA exists  only if the          statute applies retroactively.  For the  reasons stated below, we          conclude that  RFRA does  not apply retroactively  to plaintiffs'          claim for monetary damages.                    The  Supreme  Court has  explained  that  courts should          "decline[]  to  give  retroactive  effect  to statutes  burdening          private  rights unless  Congress  ha[s] made  clear its  intent."          Landgraf  v. USI  Film Products,  114 S.  Ct. 1483,  1499 (1994).          ________     __________________          Such  an intent  will not  be inferred  where the  statute "lacks          'clear,  strong, and  imperative' language  requiring retroactive          application."    Id. (citing  United States  v.  Heth, 8  U.S. (3                           __           _____________      ____          Cranch)  399, 413  (1806)).   "The presumption  against statutory          retroactivity has consistently been explained by reference to the          unfairness of imposing  new burdens on  persons after the  fact."          Id. at 1500.          __                    RFRA  states that it "applies to  all Federal and State          law, whether  statutory or otherwise, and  whether adopted before                                        ____________________          11  At least one federal  judge has argued that the Free Exercise          Clause does not restrict the "prerogative of school boards to set          curricula," concluding  that  school boards'  authority  in  such          matters is bounded only  by the Establishment Clause.   Mozert v.                                                                  ______          Hawkins  County Board of  Education, 827 F.2d  1058, 1078-81 (6th          ___________________________________          Cir. 1987) (Boggs, J., concurring).                                         -25-          or after the enactment  of this Act."   42 U.S.C.   2000bb.   The          statute was enacted to "restore the compelling interest test" and          provide judicial relief to  persons "whose religious exercise has          been burdened  in violation of  this section."   Id.  While  RFRA                                                           __          clearly  provides access  to  declaratory and  injunctive  relief          against all  laws burdening  the free  exercise  of religion,  we          think  it  lacks the  "clear,  strong,  and imperative"  language          necessary  to create a  retroactive cause of  action for monetary          damages.                    We  have found  no decisions in  which a  plaintiff was          awarded  damages  under RFRA  for  conduct  occurring before  the          statute's enactment.   Rather, the  decisions in  which RFRA  has          been found retroactive  considered only the  issue of whether  to          grant injunctive  relief,  as opposed  to  an award  of  monetary          damages.   See, e.g., Werner  v. McCotter, 49  F.3d 1476, 1479-80                     ___  ____  ______     ________          (10th Cir.  1995); Brown-El v. Harris,  26 F.3d 68, 69  (8th Cir.                             ________    ______          1994)  (dicta); Boone  v. Commissioner  of Prisons,  No. 93-5074,                          _____     ________________________          1994 WL 383590,  1994 U.S.Dist.  LEXIS 10027 (E.D.  Pa. July  21,          1994);  Rust v.  Clarke,  851  F. Supp.  377, 380  (D. Neb. 1994)                  ____     ______          (dicta); Allah v.  Menei, 844 F.  Supp. 1056, 1061 at  n.15 (E.D.                   _____     _____          Pa. 1994); Lawson v. Dugger, 844  F. Supp. 1538, 1542 (S.D.  Fla.                     ______    ______          1994).   Equitable  relief, however,  is prospective  rather than          retroactive, even when it applies  to conduct occurring before  a          statute's  enactment.   See Landgraf,  114 S.  Ct. at  1500.   We                                  ___ ________          therefore    find   that   the   cases   purportedly   addressing          retroactivity  do not support a finding that Congress intended to                                         -26-          create a  retroactive cause of action for  monetary damages under          RFRA.  Accordingly, the plaintiffs' claim must be addressed under          Smith,  the  law  in  effect  at  the  time  of  the  defendants'          _____          actions.12                      The  Supreme Court has  explained that  a "law  that is          neutral and of general  applicability need not be justified  by a          compelling  governmental  interest  even   if  the  law  has  the          incidental effect of burdening  a particular religious practice."          Church of the Lukumi Babalu Aye,  Inc. v. City of Hialeah, 113 S.          ______________________________________    _______________          Ct.  2217,  2226-27 (1993)  (citing Smith,  494  U.S. 872).   The                                              _____          plaintiffs  do not allege, nor  is it apparent  from their claim,          that  the compulsory attendance at the Program was anything but a          neutral requirement that  applied generally to all students.  Cf.                                                                        ___                                        ____________________          12  Even assuming that RFRA created a retroactive cause of action          for monetary  damages, the plaintiffs' free  exercise claim would          nevertheless be analyzed under  Smith because all the defendants'                                          _____          with the possible exception of the School Committee are protected          by qualified immunity from monetary damages.             As  we explained  above,  qualified  immunity  shields  public          officials   from  pecuniary   liability   unless  they   violated          constitutional or statutory norms that were "clearly established"          at the  time of the violation.   Anderson v. Creighton,  483 U.S.                                           ________    _________          635, 639-40 (1987); Harlow, 457 U.S. at 818.                              ______             Because the Program was staged in 1992, the standard set forth          in  Smith (rather than the  less rigorous RFRA  standard) must be              _____          employed to  determine whether the defendants  violated a clearly          established  right  when  they compelled  the  minor  plaintiffs'          attendance at the Program.  See Werner v. McCotter, 49 F.3d 1476,                                      ___ ______    ________          1481-82  (10th  Cir.),  cert.  denied,  115  S. Ct.  2625  (1995)                                  _____________          (holding  that  prison  officials  were  shielded  from  monetary          damages  because  their  acts  did not  constitute  violation  of          clearly  established  rights under  the  Smith  standard and  the                                                   _____          defendants could not be responsible for violations created by the          change in  the law); see  also Young v.  Lane, 922 F.2d  370, 378                               _________ _____     ____          (7th Cir. 1991) (applying qualified immunity to damage claims for          alleged free exercise deprivations).                                         -27-          Id. (where  city ordinance violated Free  Exercise clause because          __          it targeted  the ritual  slaughter of  animals only  by religious          groups).                    Rather, plaintiffs allege that their case  falls within          the "hybrid" exception recognized by Smith for cases that involve                                               _____          "the   Free   Exercise   Clause   in   conjunction   with   other          constitutional protections."   Smith, 494 U.S. at 881 & n.1.  The                                         _____          most relevant  of  the so-called  hybrid  cases is  Wisconsin  v.                                                              _________          Yoder,  406  U.S.   205,  232-33  (1972),  in   which  the  Court          _____          invalidated  a compulsory  school  attendance law  as applied  to          Amish  parents who  refused on  religious grounds  to send  their          children to school.  In so holding, the Court explained that                       Pierce  stands as a charter of the rights                      ______                      of  parents  to   direct  the   religious                      upbringing of their children.   And, when                      combined  with a  free exercise  claim of                      the nature revealed  by this record, more                      than  merely  a  "reasonable relation  to                      some purpose within the competency of the                      State"   is   required  to   sustain  the                      validity of the State's requirement under                      the First Amendment.          Id. at 232 (discussing Pierce,  268 U.S. 510).  We find  that the          __                     ______          plaintiffs allegations  do not  bring them  within  the sweep  of          Yoder for two distinct reasons.          _____                    First, as we explained, the plaintiffs'  allegations of          interference with  family relations and  parental prerogatives do          not state a privacy or substantive due process claim.  Their free          exercise challenge  is thus  not conjoined with  an independently          protected constitutional protection.  Second, their free exercise          claim  is  qualitatively  distinguishable from  that  alleged  in                                         -28-          Yoder.  As the Court in Yoder emphasized:           _____                   _____                      the Amish in this case  have convincingly                      demonstrated   the  sincerity   of  their                      religious beliefs,  the interrelationship                      of belief  with their  mode of life,  the                      vital  role that belief and daily conduct                      play  in the  continued  survival of  Old                      Order   Amish   communities   and   their                      religious  organization, and  the hazards                      presented by the State's enforcement of a                      Statute generally valid as to others.          Id. at 235.  Here, the plaintiffs do not allege that the one-time          __          compulsory attendance at the  Program threatened their entire way          of  life.  Accordingly,  the plaintiffs' free  exercise claim for          damages was properly dismissed.                    The  plaintiffs  also   seek  a  declaratory   judgment          concerning  the  alleged  infringement  of  their  Free  Exercise          Rights.   The  standing requirement  of Article  III necessitates          that the claimant "allege personal injury fairly traceable to the          defendant's allegedly unlawful conduct and likely to be addressed          by the requested  relief."  Allen  v. Wright,  468 U.S. 737,  751                                      _____     ______          (1984).  The  Supreme Court has made clear  that past exposure to          harm will not in and of itself confer standing upon a litigant to          obtain equitable relief "[a]bsent a sufficient likelihood that he          will again be wronged  in a similar way."  City of Los Angeles v.                                                     ___________________          Lyons, 461 U.S. 95, 104-06, 111 (1983).  See also American Postal          _____                                    ________ _______________          Workers Union v. Frank,  968 F.2d 1373, 1374-76 (1st  Cir. 1992).          _____________    _____          Here, the plaintiffs do not allege (nor does it appear) that they          are  likely  to  again  be  subject  to  school  activities  that          allegedly  violate their  Free Exercise  Rights.   We accordingly          lack  jurisdiction  over the  claim  for  declaratory relief  and                                         -29-          conclude  that it also was properly dismissed.          IV.  Sexual Harassment          IV.  Sexual Harassment               _________________                    The plaintiffs' fifth claim alleges that the defendants          engaged  in  sexual harassment  by  creating  a sexually  hostile          environment, in violation of Title IX of the Education Amendments          of 1972.  Title IX provides in relevant part:                      No person  in the United States shall, on                                                             __                      the  basis  of   sex,  be  excluded  from                      ____________________                      participation in, be denied  the benefits                      of,  or  be  subjected to  discrimination                      under any education  program or  activity                      receiving  Federal  financial  assistance                      . . . .          20 U.S.C.   1681.  Because the relevant caselaw under Title IX is          relatively  sparse, we apply Title  VII caselaw by  analogy.  See                                                                        ___          Franklin v. Gwinnett  County Pub.  Schs., 112 S.  Ct. 1028,  1037          ________    ____________________________          (1990); Lipsett v. University  of Puerto Rico, 864 F.2d  881, 899                  _______    __________________________          (1st Cir. 1988).                      Title VII, and  thus Title  IX, "strike  at the  entire          spectrum  of disparate  treatment  of men  and women,"  including          conduct having the purpose  or effect of unreasonably interfering          with  an individual's  performance  or creating  an intimidating,          hostile  or offensive  environment.   Meritor Sav.  Bank, FSB  v.                                                _______________________          Vinson, 477 U.S. 57, 64-65 (1986);  Lipsett, 864 F.2d at 899.  As          ______                              _______          the Supreme Court explained:                      Sexual harassment which creates a hostile                      or offensive environment  for members  of                      one  sex  is   every  bit  the  arbitrary                      barrier   to   sexual  equality   at  the                      workplace  that  racial harassment  is to                      racial equality.   Surely, a  requirement                      that  a man  or woman  run a  gauntlet of                      sexual  abuse in return for the privilege                                         -30-                      of  being  allowed  to work  and  make  a                      living   can   be   as    demeaning   and                      disconcerting as the  harshest of  racial                      epithets.          Meritor, 477 U.S. at 67 (quoting Henson v. Dundee,  682 F.2d 897,          _______                          ______    ______          902 (1982)).                    The elements a plaintiff must prove to succeed in  such          type of sexual harassment claim are: (i) that he/she is a  member          of a protected class;  (ii) that he/she was subject  to unwelcome          sexual harassment; (iii)  that the harassment was based upon sex;          (iv) that the harassment was sufficiently severe  or pervasive so          as to alter the conditions of plaintiff's education and create an          abusive  educational environment;  and  (v) that  some basis  for          employer liability has been established.  Id. at 66-73.  See also                                                    __             ________          Harris v. Forklift Sys. Inc., 114 S. Ct. 367 (1993); Lipsett, 864          ______    __________________                         _______          F.2d at 898-901.                    Title  IX   is   violated  "[w]hen   the   [educational          environment]  is  permeated  with  'discriminatory  intimidation,          ridicule, and  insult' that is 'sufficiently  severe or pervasive          to  alter the conditions of the victim's employment and create an          abusive . . . environment.'"   Harris, 114 S. Ct. at 370 (quoting                                         ______          Meritor, 477 U.S. 64-65 (1986)); Lipsett, 864 F.2d at 898.  While          _______                          _______          a court  must consider  all of the  circumstances in  determining          whether  a  plaintiff  has  established that  an  environment  is          hostile or abusive,  it must be  particularly concerned with  (1)          the frequency  of the  discriminatory conduct; (2)  its severity;          (3) whether  it is  physically threatening or  humiliating rather          than a mere  offensive utterance; and (4) whether it unreasonably                                         -31-          interferes with an employee's work performance.  See Harris,  114                                                           ___ ______          S. Ct. at 371.  Although the presence or absence of psychological          harm or an unreasonable effect on work performance  are relevant,          no single factor is required.  See id.                                           ___ __                    The Court has explained  that the relevant factors must          be  viewed both objectively and  subjectively.  See  id. at 1454.                                                          ___  __          If the  conduct is not so  severe or pervasive  that a reasonable          person would find it hostile or  abusive, it is beyond Title IX's          purview.    See  id.    Similarly,  if  the  plaintiff  does  not                      ___  __          subjectively perceive the environment  to be abusive, the conduct          has not  actually altered the  conditions of her  employment, and          there  is no Title IX violation.   See id.   Thus, the court must                                             ___ __          consider  not only  the actual  effect of  the harassment  on the          plaintiff,  but  also the  effect such  conduct  would have  on a          reasonable person in the plaintiff's position.                    Turning  to the  case at  bar, we  find that  the facts          alleged here  are  insufficient  to  state  a  claim  for  sexual          harassment under  a hostile environment theory.   The plaintiffs'          allegations are weak on every one of the Harris factors, and when                                                   ______          considered  in sum,  are  clearly insufficient  to establish  the          existence  of an  objectively  hostile  or  abusive  environment.          First, plaintiffs cannot claim that the offensive speech occurred          frequently,  as  they  allege  only a  one-time  exposure  to the          comments.13                                        ____________________          13  We do not hold that a one-time episode is per se incapable of                                                        ______          sustaining a  hostile environment  claim.  The  frequency of  the          alleged  harassment is a significant factor, but only one of many                                         -32-                    We also  think that the plaintiffs'  allegations do not          establish that Landolphi's  comments were so severe  as to create          an objectively  hostile environment.   This finding  is based  on          both  the context and content  of her remarks.   The remarks were          given to the entire ninth and tenth grades at what the defendants          labelled   an  "AIDS  awareness  program."    Significantly,  the          plaintiffs do not allege  that they were required  to participate          in  any of  the  offensive skits  or that  they  were the  direct          objects of Landolphi's sexual comments.                    Moreover,  during  his introductory  remarks, defendant          Gilchrist advised students that the purpose of the Program was to          educate them about the dangers of sexual activity, stating:                      We  [] see young people in their twenties                      who   are   infected   with    the   AIDS                      virus. . . .   It  means they  caught the                      virus when they were in high  school, and                      will be dead before they are thirty years                      old.  That's why the doctors are  scared,                      and they want you to hear the message.                      Now,  sometimes  to  hear  a  message, it                      takes a special messenger.  And today, we                      have a  very special messenger,  who uses                      probably one of the most  effective forms                      of communication -- humor.  I want you to                      listen  carefully.   Enjoy  it, but  also                      remember the message.          Similarly, Landolphi stated in  her opening remarks that "[w]e're          going  to talk  about AIDS,  but not  in the  usual way."   These          prefaces  framed  the Program  in such  a  way that  an objective          person would understand that Landolphi's  allegedly vulgar sexual                                        ____________________          to  be   considered  in  determining  whether   the  conduct  was          "sufficiently severe or pervasive" that a reasonable person would          find that it had rendered the environment hostile or abusive.                                         -33-          commentary was intended  to educate the  students about the  AIDS          virus rather than to create a sexually hostile environment.                    These  introductions also  belie the  plaintiffs' claim          that   Landolphi's  speech   was   physically   threatening   and          humiliating,     rather   than   a  mere   offensive   utterance.          Landolphi's   remarks  were  not  directed  specifically  at  the          plaintiffs and were couched in an attempt to use humor to educate          the students on sex and  the AIDS virus.  In this  context, while          average  high school  students might  have been  offended by  the          graphic  sexual discussions  alleged  here,  Landolphi's  remarks          could not  reasonably  be considered  physically  threatening  or          humiliating so as to create a hostile environment.                    Similarly, the plaintiffs'  allegations establish  that          the  Program   did  not  significantly  alter  their  educational          environment from an objective  standpoint.  The Program consisted          of  two ninety-minute  sex-education presentations,  and although          the plaintiffs allege that  "coarse jesting, sexual innuendo, and          overtly sexual  behavior took place  for the weeks  following the          Program," they fail to explain how the coarse jesting and overtly          sexual  behavior  "create[d]   an  atmosphere  so   infused  with          hostility  toward members  of  one sex  that  [it] alter[ed]  the          [educational  environment] for them."   Lipsett, 864 F.2d at 897.                                                  _______          In fact, they allege  that the offensive behavior was  visited on          "those students," regardless of gender, "who were not inclined to          accept 'the message' about human sexuality."   If anything, then,          they  allege discrimination  based upon  the basis  of viewpoint,                                         -34-          rather than on the  basis of gender, as required by Title IX.  We          therefore find that their claim under Title IX fails.                                      CONCLUSION                                      CONCLUSION                    We have  considered the other claims  of the plaintiffs          and find them similarly without merit.                    Affirmed.                    Affirmed                    ________                                         -35-
