Hot, Sexy - and Safer?
Zirkel, Perry A., Phi Delta Kappan
The public schools in Chelmsford, Massachusetts, have a policy requiting "positive subscription, with written permission" for students who plan to participate in "instruction in human sexuality." Moreover, Massachusetts legislation grants a fight to opt out of "instruction on disease" to students whose "sincerely held religious beliefs" conflict with such instruction.
In an effort to promote AIDS awareness, the parent/teacher organization (PTO) initiated negotiations with Suzi Landolphi, a private consultant whose company Hot, Sexy, and Safer, Inc., specializes in presenting information on AIDS to school assemblies. After viewing a promotional videotape of segments of her past performances, the chairperson of the PTO and the school physician recommended the program to the school administration. The administration finalized the contractual arrangements with Landolphi.
On 8 April 1992 Landolphi conducted a mandatory schoolwide assembly on AIDS awareness at Chelmsford High School.(1) The school physician, who was a member of the PTO, introduced her with this caveat:
We see young people in their twenties who are infected with the AIDS virus [which] . . . means that they caught the virus when they were in high school and will be dead before they are 30 years old. That's why . . . [we] want you to hear the message. Now, sometimes to hear a message, it takes a special messenger. . . . [This] very special messenger . . . uses one of the most effective forms of communication - humor. . . . Enjoy it, but also remember the message.
Similarly, Landolphi started her 90-minute presentation by warning, "We're going to talk about AIDS, but not in the usual way." Her program included sexually suggestive skits with several students chosen from the audience. Landolphi also allegedly told the students that they were going to have a "group sexual experience, with audience participation"; described body parts in lewd language; advocated and simulated masturbation; referred to being in "deep sh - " after anal sex; had a female student pull an oversized condom over a male student's head; told one student that he had a "nice butt"; referred to another student's loose pants as "erection wear"; and made 18 references to orgasms, six references to male genitals, and eight references to female genitals.(2)
Students Jason Mesiti and Shannon Silva and their parents filed suit in federal court, claiming violations of 14th Amendment substantive and procedural due process and of First Amendment freedom of religion. They also filed a claim of sexual harassment (by means of a hostile environment) under Title IX. The plaintiffs named various co-defendants, including Landolphi, the chairperson of the PTO, the principal, the superintendent, and members of the school board who approved and attended the assembly. They claimed that the sexually explicit nature of Landolphi's speech and behavior humiliated and intimidated Jason and Shannon and that the aftermath, when several students repeated Landolphi's routines and remarks, exacerbated the harassment.
The defendants moved for a dismissal, which the trial court granted. The plaintiffs filed for review by the federal First Circuit Court of Appeals. In a unanimous, three-judge opinion, the First Circuit affirmed the dismissal, rejecting each of the plaintiffs' legal claims.(3)
First, with regard to substantive due process, the court pointed out that the standards to be met are government conduct that "shocks the conscience" or government conduct that violates a specific liberty or property interest without a compelling, close-fitting justification. The court concluded that the failure to provide opt-in or opt-out procedures "may have displayed a certain callousness" but did not come close to the brutal and inhumane level of abuse established in the conscience-shocking case law.
Similarly, the court rejected the parents' purported liberty interest, concluding that, even if the right to direct the upbringing and education of one's children is within the constitutional right of privacy, it does not extend to dictating the curriculum of the public schools. …