

                  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 &amp; Drachman,  P.C., Paul  F. Degnan, Nancy  Kirk, Kirby  &amp;                                                                           
Associates, Mary  L. Bonauto,  Bennett H.  Klein,  Gay &amp;  Lesbian                                                          
Advocates &amp; Defenders, Neila  J. Straub and Straub &amp;  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  &amp;  Safer
Productions,  Inc.;  Frances  S.   Cohen,  with  whom  Monica  L.                                                                           
Phillips,  Hill &amp;  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  &amp;  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  &amp;  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 &amp; 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-
