Young et al v. Pleasant Valley School District et al

Filing 484

MEMORANDUM: Setting forth reasons for the Court's Order of July 2, 2013, record document no. 480, GRANTING defendant Smith's motion for partial summary judgment on M. Young's Section 1983 claim, filed May 6, 2013, record document no. 456. Signed by Honorable Matthew W. Brann on 7/9/13. (km)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
PATRICIA YOUNG, et al.,
Plaintiffs
v.
PLEASANT VALLEY SCHOOL
DISTRICT, et al.,
Defendants

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Civil Action No. 3:07-cv-00854
(Judge Brann)

MEMORANDUM
July 9, 2013
In a May 2, 2013 Order, the Court gave defendant Bruce Smith (hereinafter,
“Smith”) leave to file a motion for partial summary judgment with respect to
plaintiff M. Young’s claim that Smith, a former history teacher, is liable under 42
U.S.C. § 1983 because he created a sexually hostile classroom environment that
deprived M. Young, Smith’s former pupil, of the equal protection of the laws.
(ECF No. 445). The circumstances leading to, and the rationale for, that Order
were set forth in a previous Memorandum and are not repeated here.1

1

The Court has rejected M. Young’s arguments in opposition to the Court’s
Order elsewhere. (See Ct. Mem. & Order, May 2, 2013, ECF No. 445; Ct. Order,
May 22, 2013, ECF No. 465 n.1). Plaintiff’s “Brief in Opposition to Defendant
Smith’s Untimely Motion for Summary Judgment” expresses continued vexation
1

Smith filed a motion for partial summary judgment and papers in support on
May 6, 2012 (respectively, ECF Nos. 456 & 457); M. Young filed papers in
opposition on May 24, 2013 (ECF No. 467); and Smith filed papers in reply on
June 17, 2013 (ECF No. 470). On July 2, 2013, the Court issued an Order granting
Smith’s motion. (ECF No. 480). This Memorandum explains the Court’s reasons.

with the Court’s Order, but does not raise arguments the Court has not already
considered. (See Pl.’s Opp’n Br., May 24, 2013, ECF No. 467 at 26-31).
In summary, the Court holds that giving Smith leave to file a motion for
partial summary judgment was proper in light of the following: (1) The Honorable
Yvette Kane’s Memorandum & Order of May 18, 2012 (ECF No. 333), which
concluded that the evidence adduced at the first trial was insufficient to prove M.
Young’s § 1983 claim against Smith as a matter of law; (2) Rule 56 of the Federal
Rules of Civil Procedure (especially Fed. R. Civ. P. 56(b) (permitting Court to
determine when summary judgment motion may be made) & Fed. R. Civ. P. 56(f)
(permitting Court to consider summary judgment on its own initiative)); (3)
circumstances in which the “law of the case” doctrine does not require adherence
to a prior ruling; (4) the Court’s interest in limiting trial to issues in genuine
dispute; (5) the fairness of the summary judgment procedure to all parties under the
circumstances; and (6) the inapplicability of Fed. R. Civ. P. 6(b)(1)(B) to the
Court’s Order.
Furthermore, the Court rejects M. Young’s contention that “[t]he evidence
has not changed” since the Honorable James M. Munley denied Smith’s motion for
summary judgment in 2010. (See Pl.’s Opp’n Br., May 24, 2013, ECF No. 467 at
31-40). In particular, the trial revealed that the context surrounding specific
instances of Smith’s speech is materially undisputed by the parties.

2

I.

Summary Judgment Standard
Summary judgment is appropriate where “the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). A fact is “material” where it “might affect the
outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). A dispute is “genuine” where “the evidence is such that
a reasonable jury,” giving credence to the evidence favoring the nonmovant and
making all reasonable inferences in the nonmovant’s favor, “could return a verdict
for the nonmoving party.” Id.
For movants and nonmovants alike, the assertion “that a fact cannot be or is
genuinely disputed must” be supported by “citing to particular parts of materials in
the record,” or by “showing that the materials cited do not establish the absence or
presence of a genuine dispute, or that an adverse party cannot produce admissible
evidence to support the fact.” Fed. R. Civ. P. 56(c)(1). “If a party fails to properly
support an assertion of fact or fails to properly address another party’s assertion of
fact as required by Rule 56(c), the court may . . . consider the fact undisputed for
purposes of the motion.” Fed. R. Civ. P. 56(e)(2).

3

Thus, where the moving party’s motion is properly supported and his
evidence, if not controverted, would entitle him to judgment as a matter of law, the
nonmoving party, to avoid summary judgment in his opponent’s favor, must
answer by setting forth “genuine factual issues that properly can be resolved only
by a finder of fact because they may reasonably be resolved in favor of either
party.” Anderson, 477 U.S. at 250. In the face of the moving party’s evidence, the
nonmoving party’s mere allegations, general denials or vague statements will not
create a genuine factual dispute. Bixler v. Cent. Pennsylvania Teamsters Health &
Welfare Fund, 12 F.3d 1292, 1302 (3d Cir. 1993). Only citation to specific facts is
sufficient to show a need for trial. Anderson, 477 U.S. at 250.
II.

Hostile Environment Standard
This is an unusual case. M. Young alleges that Smith is liable under 42

U.S.C. § 19832 because he created a sexually hostile classroom environment that
2

42 U.S.C. § 1983 provides:
Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of Columbia,
subjects, or causes to be subjected, any citizen of the United States or
other person within the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the Constitution and laws,
shall be liable to the party injured in an action at law, suit in equity, or
other proper proceeding for redress, except that in any action brought
4

deprived M. Young of the equal protection of the laws in violation of the
Fourteenth Amendment to the United States Constitution. There is no serious
dispute that Smith’s allegedly improper classroom speech occurred while he, a
public school teacher, was acting under color of state law, but the parties dispute
whether M. Young can prove that Smith deprived her “of any rights, privileges, or
immunities secured by the Constitution.”
The strange twist in the case involves the law to be applied. Whether Smith
created a hostile classroom environment that deprived M. Young of the equal
protection of the laws is determined by applying standards developed not for the
classroom, but in the employment arena under Title VII of the Civil Rights Act of
1964. (See Mem. & Order, May 18, 2012, ECF No. 333 at 23) (noting that the
Honorable James M. Munley held in this case that “Title VII standards should be
used in determining whether a sexually hostile educational environment existed in
violation of Plaintiff’s equal protection rights.”). See also Hayut v. State Univ. of

against a judicial officer for an act or omission taken in such officer's
judicial capacity, injunctive relief shall not be granted unless a
declaratory decree was violated or declaratory relief was unavailable. For
the purposes of this section, any Act of Congress applicable exclusively
to the District of Columbia shall be considered to be a statute of the
District of Columbia.
5

New York, 352 F.3d 733, 744 (2d Cir. 2003) (“Section 1983 sexual harassment
claims that are based on a ‘hostile environment’ theory. . . are governed by
traditional Title VII ‘hostile environment’ jurisprudence.”). This is noteworthy
because courts applying Title VII are to give “careful consideration [to] the social
context in which particular behavior occurs and is experienced by its target.”
Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998).
In any case, to survive summary judgment M. Young must set forth enough
admissible evidence to permit a reasonable jury to conclude that Smith created “a
sexually objectionable environment . . . both objectively and subjectively
offensive, one that a reasonable person would find hostile or abusive, and one that
the victim in fact did perceive to be so.” Faragher v. City of Boca Raton, 524 U.S.
775, 787 (1998). See also Caver v. City of Trenton, 420 F.3d 243, 262 (3d Cir.
2005) (quoting Cardenas v. Massey, 269 F.3d 251, 260 (3d Cir. 2001) (stating the
formulation developed by the Third Circuit: “Under Title VII, the evidence must
establish that: (1) [plaintiff] suffered intentional discrimination because of [sex];
(2) the discrimination was pervasive and regular; (3) it detrimentally affected
[plaintiff]; (4) it would have detrimentally affected a reasonable person of the same
protected class in [plaintiff’s] position; and (5) there is a basis for vicarious
6

liability.”). Determining whether an environment is “hostile” or “abusive” is a
holistic endeavor that requires looking at “all the circumstances . . . includ[ing] the
frequency of the discriminatory conduct; its severity; whether it is physically
threatening or humiliating, or a mere offensive utterance; and whether it
unreasonably interferes with an employee’s work performance,” among other
relevant factors. Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993). “[A] showing
of some minimal level of harassment is necessary before a case is submissible to a
jury [and a] court . . . may decide this issue of submissibility on summary
judgment.” Jackson v. Flint Ink N. Am. Corp., 382 F.3d 869, 869 (8th Cir. 2004).
See also Vera v. McHugh, 622 F.3d 17, 27 (1st Cir. 2010) (citations and internal
quotation marks omitted) (explaining that “[i]t is the jury’s job to weigh [the
relevant] factors and decide whether the harassment was of a kind or to a degree
that a reasonable person would have felt that it affected the conditions of her
employment. The court’s role in evaluating such claims [on summary judgment] is
to polic[e] . . . the outer bounds.”)
Because hostile environment claims risk turning Title VII into a “general
civility code,” in a number of opinions the Supreme Court has reminded lower
courts of the limitations that govern such claims. First, “[c]onduct that is not severe
7

or pervasive enough to create an objectively hostile or abusive work environment –
an environment that a reasonable person would find hostile or abusive – is beyond
Title VII’s purview.” Harris, 510 U.S. at 23.
Second, sexually hostile environment claims are actionable only because
Title VII prohibits discrimination in the “terms” or “conditions” of employment,
and “conduct must be extreme to amount to a change in the terms and conditions of
employment.” Faragher, 524 U.S. at 788.
Third, “Title VII does not prohibit all verbal or physical harassment in the
workplace; it is directed only at ‘discriminat[ion]. . . because of . . . sex.’” Oncale,
523 U.S. at 80 (alteration in original) (quoting Title VII). Thus our Supreme Court
has “never held that workplace harassment, even harassment between men and
women, is automatically discrimination because of sex merely because the words
used have sexual content or connotations.” Id. However, the inference of
discrimination because of sex can be based on evidence of “explicit or implicit
proposals of sexual activity” because it is reasonable to assume the proposer would
not have made the same solicitation if the recipient was a man instead of a woman
or a woman instead of a man. Id. It would also be reasonable to infer
discrimination because of sex when the “victim is harassed in such sex-specific and
8

derogatory terms [so] as to make it clear that the harasser is motivated by general
hostility to the presence of [the victim’s sex] in the workplace.” Id.3 These are just
examples, but “[w]hatever evidentiary route the plaintiff chooses to follow, he or
she must always prove that the conduct at issue was not merely tinged with

3

In Oncale, the Court held that same-sex sexual harassment is actionable
under Title VII. Unaltered, the paragraph from which this Court quotes says:
Courts and juries have found the inference of discrimination easy to
draw in most male-female sexual harassment situations, because the
challenged conduct typically involves explicit or implicit proposals of
sexual activity; it is reasonable to assume those proposals would not
have been made to someone of the same sex. The same chain of
inference would be available to a plaintiff alleging same-sex
harassment, if there were credible evidence that the harasser was
homosexual. But harassing conduct need not be motivated by sexual
desire to support an inference of discrimination on the basis of sex. A
trier of fact might reasonably find such discrimination, for example, if
a female victim is harassed in such sex-specific and derogatory terms
by another woman as to make it clear that the harasser is motivated by
general hostility to the presence of women in the workplace. A
same-sex harassment plaintiff may also, of course, offer direct
comparative evidence about how the alleged harasser treated members
of both sexes in a mixed-sex workplace. Whatever evidentiary route
the plaintiff chooses to follow, he or she must always prove that the
conduct at issue was not merely tinged with offensive sexual
connotations, but actually constituted “discrimina[tion] . . . because of
. . . sex.”
Id. at 80-81 (alteration in original).
9

offensive sexual connotations, but actually constituted ‘discrimina[tion] ... because
of ... sex.’” Oncale, 523 U.S. at 81.
III.

Factual Background4

a)

The Evidence at the Conclusion of the First Trial

The claims of M. Young and her co-plaintiff parents, Patricia Young and
William Young, were tried before a jury nearly two years ago. On August 26,
2011, the jury returned a verdict for the Young plaintiffs on two of their claims,
one alleging that teacher Bruce Smith was liable under 42 U.S.C. § 1983 because
he created a sexually hostile classroom environment that deprived M. Young of
equal protection of the laws, and another alleging that defendant Pleasant Valley
School District (hereinafter “Pleasant Valley”) violated the First Amendment rights
of M. Young and her parents when it retaliated against the Youngs for reporting
Smith’s wrongdoing. On May 18, 2012, the Honorable Yvette Kane (who presided
over the trial) issued a Memorandum & Order in which she vacated judgment and
ordered a new trial. (ECF No. 333) (hereinafter “Ct. Mem. & Order in re New
Trial”).

4

The Court includes only the facts necessary to decide the motion. Chief
Judge Kane’s Memorandum of May 18, 2012 granting defendants’s motion for
new trial includes additional background and facts relevant to the other claims.
10

Although Chief Judge Kane determined that the resulting verdict was
defective, the evidence adduced at the first trial remains part of the record to be
considered on summary judgment. Fed. R. Civ. P. 56(c)(1)(A) & (c)(3). Viewing
the evidence in the light most favorable to M. Young – as the Court must, see
Sheridan v. NGK Metals Corp., 609 F.3d 239, 250 n.12 (3d Cir. 2010) (the Court
considering a summary judgment motion must “draw all inferences in a light most
favorable to the nonmoving party”) – the trial transcript and previously filed papers
on record reveal the facts as follows.
In 2007, Smith taught a Twentieth Century History course at Pleasant Valley
High School. (Def.’s Facts, May 24, 2013, ECF No. 456-1 ¶ 1) (hereinafter,
“Def.’s Facts”). He taught in an unorthodox manner – without a textbook, in
reverse chronological order, and making departures from the prescribed curriculum
– using a combination of lecture, powerpoint, and video and audio clips. (Pl.’s
Facts, May 24, 2013, ECF No. 466 ¶ 5 (hereinafter, “Pl.’s Facts 2013”); M. Young
Trial Test. at 174; M. Young Dep. at 32). He had shown some of the allegedly
offensive images at issue in this litigation (images, at least, of the Manson family
and Ed Gein murder victims) to his classes for five consecutive years when M.
Young joined his course. (Pl.’s Facts 2013 ¶ 10; Pl.’s Facts, June 3, 2009, ECF No.

11

96 ¶¶ 4-5). Smith was a popular teacher, and M. Young (a Pleasant Valley student)
and her peers looked forward to joining his class, having learned “how great a
teacher [Smith] was” from one of Smith’s colleagues, (M. Young Trial Test. at
209; M. Young Dep. at 19), although today M. Young believes that “Smith was
only popular because he talked about sex” (Pl.’s Facts 2013 ¶ 1).
When she was age sixteen, M. Young was assigned to Smith’s course for the
second semester of her junior year, which began at the end of January or beginning
of February 2007. (M. Young Trial Test. at 172-74; M. Young Dep. at 16). To say
the least, her expectations met with disappointment.
M. Young’s quarrels with Smith’s manner and methods are manifold. But
many of these disagreements are irrelevant to her claim to have been discriminated
against because of sex.5 Facts falling under the “irrelevant” heading are the decor
of Smith’s classroom – it was painted black and had a large Nazi flag on the wall
(Pl.’s Facts 2013 ¶ 4; M. Young Trial Test. at 174); Smith’s telling of a story about
himself as a high school student hosting a “keg party” as a prom fund-raiser (M.
Young Trial Test. at 179); his exhibition of a home video of a “keg party from

5

Evidence is relevant when “it has any tendency to make a fact more or less
probable than it would be without the evidence.” Fed. R. Evid. 401(a).
12

when he was in high school” (Id. at 185); his discussion of the “homosexuality of
the Third Reich” and “Adolf Hitler’s personal life”6 (Id. at 180); Smith’s
distribution (to a course e-mail list) of an article reporting that it was Osama Bin
Laden’s birthday (Id. at 181); Smith’s exhibition of a video showing “someone
being decapitated” (M. Young Aff., May 6, 2013, ECF No. 456-1 ¶ 12)
(hereinafter, “M. Young Aff.”); and Smith’s assignment requiring his students to
write an essay about the “riskiest or craziest things” they had ever done and his
recommendation to students who would write about things they did not “want
[their] parents to see” to not “leave [the essay] out on the kitchen counter” (M.
Young Trial Test. at 181). The Court fails to see how these facts make it more
probable that Smith’s classroom was objectionable because of sex.
A number of M. Young’s allegations, on the other hand, are relevant to her
claim. In the course of his lectures, Smith displayed photos of the female victims –

6

M. Young rightfully, if irrelevantly, expressed concern that her class
learned of Hitler’s “family and that he wanted to be an artist but . . . didn’t get into
art school, but we did not learn the Holocaust.” (Id. at 180).
In addition to homosexuality, Smith discussed which Third Reich leaders
“had a liking for little boys, and there were rumors of . . . bootlicking and one was
a Jew baiter . . ..” (Id. at 226).
13

naked, mutilated, beheaded, and defiled7 – of the infamous murderer and grave
robber Ed Gein. Most, if not all, of these images were in black and white. (M.
Young Trial Test. at 176, 178). Smith also mentioned that Gein’s mother “took
care of his teenage urges.” (Id. at 179).
Smith taught “about the undercurrent of the hippies” (M. Young Trial Test.
at 180), displaying Tate-LaBianca crime scene photos of 1969, specifically one of
Sharon Tate “with a rope tied around her neck, bloody,”8 and another of her
“bloodied, pregnant body right as they found her in her living room.” (Id. at 17778). One of these photographs was in color (id.) and one (perhaps the same one –
the record is not clear) was a “very well known photo that was in Time or
Newsweek Magazine.” (Yozwiak Trial Test. at 318). One or both photographs
were printed from the Discovery Channel’s website. (Def.’s Facts ¶ 11; Pl.’s Facts
7

(M. Young Trial Test. at 176 (“That photo is a picture of one of the victims
of Ed Gein. At this time I cannot recall the decade, but she was hung up by her
ankles and slit from her vagina to her sternum, beheaded by Ed Gein, and it was a
basis for Texas Chainsaw Massacre and the like”); id. at 178 (“I’ll start with the
black and white images on the left side. These are images of the Ed Gein murders,
the heads allegedly found in the freezer with semen in their mouths, decapitated
heads of women. . . . I do recall that [Smith] stated the police reports reported the
semen in their mouths, which I believe was postmortem.”))
8

(Id. at 177 (“This is an image of Sharon Tate, one of the victims of the
Manson murders, with a rope tied around her neck, bloody. She was stabbed
multiple times. She was pregnant, as well, and there’s tape over her nipples.”)
14

2013 ¶ 11). Tate had been a model and actress, and prior to displaying images of
Tate’s dead body, Smith displayed “one of her modeling pictures . . ., and he asked
if the boys in the class thought she was hot or if she was pretty.” (M. Young Trial
Test. at 177).
Prior to showing the photographs of the victims of Manson and Gein, Smith
warned that they were graphic and gave students permission to look away or leave
the room. (Smith Trial Test. at 617, 622).9
M. Young was also offended by Smith’s display of “an individual in a Nazi
Sturmabteilung uniform and an individual in plain clothes burning books, two of
which appear to have images of a woman with her breasts exposed on the cover.”

9

Asked if Smith offered such a warning, M. Young twice did not remember,
testifying, “At this time I don’t recall if he said that. But I would not know if
material is gruesome or not unless I see it first” (M. Young Dep. at 25), and
“Again, at this time I don’t remember. I don’t recall. But I would not know if they
were going to be gruesome unless I saw them first to determine if I could handle
looking at them or not.” (Id. at 27). Her failure to recall does not place the context
of the photo’s display in dispute, since a “failure to remember an event is not a
specific denial that the event occurred.” See Hideout Records & Dist. v. El Jay
Dee, Inc., 601 F. Supp. 1048, 1053 (D. Del 1984). See also Bixler v. Cent.
Pennsylvania Teamsters Health & Welfare Fund, 12 F.3d 1292, 1301-02 (3d Cir.
1993) (internal quotation marks omitted) (alteration in original) (construing
statement – “I don’t. I really don’t. I mean, I could have, but I don’t remember at
this time.” – as plaintiff’s admission, explaining that a nonmoving party may not
“rest upon mere allegations, general denials, or . . . vague statements” to defeat
summary judgment).
15

(Ct. Mem. & Order in re New Trial at 25). But “neither of the two objectionable
book covers . . . [was] larger than approximately one hundredth of the total area of
the photograph” (Id. at 27), and the picture – which shows Nazis “burning porn”
and, in the context of Smith’s lesson, was evidence of the Nazis’s “hypocri[sy]” –
was just one picture shown during “an entire week about the Nazis.” (P. Young
Trial Test. at 266-67).
Smith admitted that all of the nude images displayed in his classroom were
of females. (Smith Trial Test. at 8).
In addition to these offensive images, M. Young asserts that Smith’s in-class
comments manifested disrespect of women. According to her:
•

He voiced that he “didn’t believe women should be president because

[they] get [their] monthly visitor each month.” (M. Young Trial Test. at 179).
•

He “commented [that] cars in the 1920s [were] prostitution on

wheels” and showed an illustrative cartoon – entitled “Flaming Youth” – drawn by
artist John Held, a well-known magazine illustrator of the 1920s. (Id.) (the cartoon
is described in n.19 infra).
•

He explained that the flapper of the 1920s was a woman who “drank, .

. . smoked, [and had] sex when she want[ed] it.” (Id. at 179). The “comments about

16

drinking and sex were not appropriate,” according to M. Young, although she
admitted that more liberal attitudes towards drinking and sex were aspects of the
changing societal role of women “to an extent.” (Id. at 206-07).
•

Making a comparison with the popular standard of beauty typified by

the “Gibson Girl” of the early twentieth century, Smith “discussed Victoria’s
Secret models and pushup bras,” asking students if they thought one model’s
“breasts were firm enough,” and inquiring generally “what the ideal woman would
be for the men in the class” and “what the ideal size of a breast should be,”
reporting that “a boy in another class said that one handful was enough.” (Id. at
179; P. Young Trial Test. at 248-49). He asked the female students if “these
pushup bras [are] comfortable? Because they don’t look it.” (P. Young Dep. at 46).
M. Young also recalls Smith making a number of sexualized remarks:
•

In connection with a lesson covering the Clinton-Lewinsky affair,

Smith explained that the President reasoned “oral sex isn’t sex.” (M. Young Aff. ¶
18). Smith then offered students a questionable homework assignment: “go home
and have oral sex and make sure [your] parents [are] watching.” (Id. at 179, 21315).

17

•

He “talked about glow-in-the-dark condoms and seeing in the dark

while having sex.” (Id. at 179).
•

He distributed (to a course e-mail list) an article “about HIV and

AIDS,” which reported that it is “not as easy to get as you think,” and which
discussed unprotected sex. (Id. at 181).
•

He directly asked M. Young “what [she] was wearing during a pillow

fight, if [she] was in [her] underwear.”10 (Id. at 179; Pl.’s Facts 2013 ¶ 20).
Finally, M. Young also recalls Smith remarking on his personal sexual
history:
•

He “talked about how he would skip class to bang the cheerleader in

college.” (Id. at 179).
•

He “talked about a girl who slept around at school with all of his guy

friends and he knew about it and . . . he didn’t want to stick his where all theirs
was.” (Id. at 179).

10

Patricia Young testified that Smith asked this after showing an 1897 video
of the great inventor Thomas Edison pillow-fighting with girls in nightgowns (P.
Young Dep. at 44-45), but this may conflict with Smith’s own version of events.
(Def.’s Facts ¶ 20).
18

•

He recommended and then supplied a copy of his autobiographical

“Memoirs of a Class President” to M. Young (and six other students) with the
intent that she would read the unpublished manuscript to partially fulfill
Pennsylvania System of School Assessment course reading requirements. (Id. at
182; M. Young Dep. at 22). M. Young requested a copy “because students said that
they started reading it and it seemed really good, so I thought, okay, it might be
worth a shot,” but she was disappointed.11 (M. Young Trial Test. at 182). Page six
of Smith’s “Memoirs” included a particularly bothersome passage – “I didn’t like
the guy I caught my mom having sex with. He was planning to marry her and move
us to Stroudsburg. I was ten years old and pissed off at the world.” (Id. at 184). The
manuscript, which is 739 pages long, features a number of salacious passages, but
M. Young put the book down early on when she “noticed something was weird
about it” and nowhere avers that she learned of them while she was in Smith’s
course.12 (Id. at 201; M. Young Dep. at 22).
11

Giving the phrase “required reading” its ordinary meaning, M. Young’s
representation that Smith’s “Memoirs” was “required reading” (Pl.’s Facts 2013 ¶
22-23; M. Young Dep. at 22) is not supported by the citations to the record.
12

While evidence of workplace discrimination of which a plaintiff was not
aware may be relevant for certain purposes, see generally Hurley v. Atlantic City
Police Dept., 174 F.3d 95, 109-11 (3d Cir. 1999), when determining whether M.
Young perceived her environment as hostile, or whether a reasonable person in her
19

In general, M. Young claimed of her experience in Smith’s course: “”[I]t
always came back to women. It was always degrading women.” (M. Young Trial
Test. at 180).
M. Young’s parents brought some of Smith’s materials and methods to the
attention of Pleasant Valley administrators on March 8, 2007.13 (See Pl.’s Ex. 28a,
ECF No. 467-6). After an investigation, Smith was suspended for thirteen days, ten
without pay; administrators began previewing his lesson plans; his class sessions
were monitored (although M. Young disputes the adequacy of the monitoring); and
he received an unsatisfactory evaluation for the year. (Def.’s Facts ¶¶ 30-32; Pl.’s
shoes would have perceived the environment as hostile, the Court considers “only
the . . . evidence of harassment that [M. Young] personally experienced or
harassment of other[s] . . . that [M. Young] witnessed or had knowledge of during
her [time in Smith’s classroom].” Hallberg v. Eat’n Park, 1996 WL 182212, at *9
(W.D. Pa. Feb. 28, 1996). Accordingly, in addition to those parts of Smith’s
“Memoirs” to which M. Young was not exposed, the Court also disregards
evidence relating to Dark Horse, Smith’s screenplay. M. Young never read Dark
Horse, and in any case, her primary opposition to what she heard of it was that it
“echo[ed] events in society [the Virginia Tech massacre] that [she] didn’t find
should be condoned.” (M. Young Trial Test. at 204–06).
13

On March 19, 2007, parent Laura Berthel, after a conversation with her
daughter, e-mailed Smith to complain that the “display of graphic photos of one of
the worst homicides in recent history [i.e., the Manson murders] was completely
inappropriate for an 11th gr[ade] classroom!” (Pl.’s Ex. 31, ECF No. 467-7). Also,
“some time in March,” parent Connie Saba, after another parent provided her with
a packet that collected Smith’s questionable course materials and quotes,
complained to Pleasant Valley administrators. (Saba Trial Test. at 138).
20

Facts 2013 ¶¶ 30-32). For the most part, these measures appear to have put a
damper on Smith, but M. Young claims that he – on suspension at the end of
March, 2007 – retaliated against her by having a substitute show a DVD on “the
Nixon scandal and whistleblowing [i.e., Daniel Ellsberg] and if it’s really worth it”
(M. Young Trial Test. at 232), and the photo of Nazis burning pornography slipped
past the censors on April 20, 2007. (W. Young Trial Test. at 410). The Young’s
filed their lawsuit at the beginning of May, 2007.
All of this evidence was before Chief Judge Kane when she concluded that,
“[u]pon a review of all of the evidence of alleged sexually offending material and
resolving all doubts in favor of Plaintiff, the Court cannot find that Defendant
Smith’s actions meet the high legal standard for a sexually hostile educational
environment.” (Ct. Mem. & Order in re New Trial at 26). In the view of Chief
Judge Kane, “the totality of the allegations, even viewed out of context and in a
light most favorable to Plaintiff, d[id] not reasonably support a finding that the
environment was ‘permeated with discriminatory intimidation, ridicule, and insult,’
such that it changed the terms and conditions of Plaintiff’s education.” (Id. at 31).
(b)

Evidence Introduced by M. Young after Trial

21

In response to Smith’s motion for partial summary judgment, M. Young had
the opportunity to proffer additional evidence of a sexually hostile classroom
environment. To this end, she offered by way of affidavit that:
•

Smith too-vividly detailed Manson Family member Sexy Sadie’s

supposed participation in a murderous menage a trois (Pl.’s Facts 2013 ¶ 12; M.
Young Aff. ¶ 8-10; P. Young Trial Test. at 249)14;
•

he “showed a video in which a woman was shot in the desert as

punishment”15 (M. Young Aff. ¶ 11);
•

he “showed images and discussed [the] Abby and Andrew Borden

murders and how Lizzie Borden had killed her parents” (Id. ¶ 22)16;
•

Smith “discussed female masturbation in connection with Cindy

Lauper” (Id. ¶ 23);

14

Some of this evidence was discussed at trial, but apparently was not
considered by the Court, perhaps because it was introduced by way of hearsay
statements. (See, e.g., P. Young Trial Test. at 249 (“two girls, one guy, one girl sat
on him while the other rode his face, and when they orgasmed, I believe they cut
off his penis.”).
15

Given this syntax, it is not clear whether the woman or the students were
being punished – possibly both.
16

Lizzie Borden was acquitted of the gruesome 1892 murder of her
stepmother and father, but some remain skeptical of the verdict.
22

•

in connection with his discussion of the Gibson Girl, he commented

on “women’s breasts . . . sag[ging] halfway down their chests as they age” (Id. ¶
26);
•

he “discussed FDR’s mistress, which has nothing to do with 20th

Century history” (Id. ¶ 45; P. Young Trial Test. at 255);
•

Smith “asked the class how much money it would take to get

[members] to strip and run down the hall in their underwear or naked” (M. Young
Aff. ¶ 46);
•

he “told the class how to trick girls into getting in a car near dusk”

under the pretense of going to “watch for baby deer,” after which the driver could
“find a secluded spot near a field to lock the doors” (Id. ¶ 44); and
•

Smith gave an off-color example of the supposed implications of

communism: “When we were discussing communism, . . . [Smith] used two guys
in the class and asked[,] ‘[H]ow would you like to swap girlfriends for the night’?
Under communism what’s yours is mine and what’s mine is yours. [He was]
[t]reating girls like an object. And then [he] said, ‘Oh, is one girl not hot enough,
how about if I throw in two cases of beer?’” (M. Young. Dep. at 37; M. Young

23

Aff. ¶¶ 13-14).17

17

Smith moved to strike M. Young’s affidavit in its entirety. (Def.’s Mot.
Strike, June 17, 2013, ECF No. 471). Upon consideration, the Court will disregard
a number of M. Young’s representations: (1) “Defendant Smith subjected me to
comments criticizing, sexualizing, or demeaning women almost every class period
I had him” (M. Young Aff. ¶ 2); (2) “Contrary to Judge Kane’s conclusion that the
comments, images, and discussions related to criticizing, sexualizing and
demeaning women, occurred sporadic [sic], the comments, images [sic] occurred
nearly every time I was in Defendant Smith’s classroom” (id. at 4); (3) “ I was
singled out when Defendant Smith touched my arm” (id. at 5); (4) “Defendant
Smith talked about his sex life often” (id. at 7); (5) “Defendant Smith showed the
nakednews.com clip in class” (id. ¶ 49).
Averments (1), (2), and (4) are too “conclusory and lacking in specific facts”
to provide a basis for opposing Smith’s motion. Bailey v. Viacom Inc., 435 F.
App’x 85, 91-92 (3d Cir. 2011) (in the absence of other employees’s names or an
explanation of how other employees were terminated, plaintiff’s representation that
he was aware of similarly situated employees who had been terminated was
inadequate to defeat summary judgment). See also Dreshman v. Henry Clay Villa,
733 F. Supp. 2d 597, 613 (W.D. Pa. 2010) (“While Plaintiff testified that he was
subject to sexual harassment half the time that he worked, when questioned about
this estimate at his deposition, he only identified a number of discrete events or
incidents of harassing conduct, thus, the Court will not credit Plaintiff's
unsubstantiated estimation.”); Stephenson v. City of Philadelphia, 2006 WL
1804570, *11 n.2 (E.D. Pa. June 28, 2006) (refusing to credit plaintiff’s
“unsubstantiated allegations that discriminatory treatment occurred ‘all the time’”).
If there is any suggestion in M. Young’s averment (3) that Smith touched
her in a sexual way, this conflicts with her trial testimony, in which stated that
Smith, “while he was lecturing,” tapped her “on the outside of [her] right arm,”
“scar[ing] the life out” of her. (M. Young Trial Test. at 210). She clarified that she
would “not call [the touching] sexual, but retaliation.” (Id.) M. Young provides no
explanation for the conflict between her affidavit and testimony, so the Court will
not consider this incident in terms of its contribution to the allegedly sexually
24

hostile environment. See Baer v. Chase, 392 F.3d 609, 624 (3d Cir. 2004) (stating
general rule that “a party may not create a material issue of fact to defeat summary
judgment by filing an affidavit disputing his or her own sworn testimony without
demonstrating a plausible explanation for the conflict.”).
Averment (5) is not substantiated by M. Young’s personal knowledge.
Indeed, the Court is concerned that M. Young’s entire affidavit makes no claim to
be based on personal knowledge, leaving the distinct possibility that she has
incorporated into her affidavit Smith’s trial admissions respecting materials he
showed to classes she may never have attended. Instead, the affidavit merely
asserts that M. Young is “competent” (M. Young Aff. ¶ 1), that she “understand[s]
that false statements . . . are . . . subject to penalties of perjury,” and that she
“attest[s] to the best of [her] knowledge the aforementioned [sic] correct” (Id. at 8).
This falls short, see PNY Tech, Inc. v. Samsung Elec. Co., Ltd, 2011 WL 1630856,
at *3 (D.N.J. Apr. 29, 2011 (rejecting affidavit that made conclusory assertion of
personal knowledge, but provided no basis upon which court could conclude that
affiant had personal knowledge of the facts stated); Mirarchi v. Seneca Specialty
Ins. Co., 2013 WL 1187065, at *1 n.1 (E.D. Pa. Mar. 22, 2013) (rejecting portions
of affidavit where affiant “merely [stated] that whatever is written is true” and
averments suggested they were not made upon personal knowledge); Arrowood
Indem. Co. v. Hartford Fire Ins. Co., 774 F. Supp. 2d 636, 648 (D. Del. 2011)
(striking portions of affidavit where there was “no showing in the affidavit that [the
affiant had] personal knowledge of any of the[] alleged facts” and averments
appeared to be based on evidence and pleadings from a related case), especially
where, on the first day of the previous five day trial, the attorneys hotly disputed
whether M. Young had personal knowledge of the nakednews.com clip (Smith
Trial Test. at 20 et seq.), and M. Young’s personal knowledge was never
subsequently established. Under these circumstances, the Court rejects paragraph
49 of M. Young’s affidavit. The Court is willing to give M. Young the benefit of
the doubt on other questionable averments respecting Smith’s speech because it is
likely that M. Young, as Smith’s pupil, heard the speech, and some of the
averments are independently supported in the record.
25

In further support of her position, M. Young offered as exhibits Smith’s
Powerpoint slides related to flappers,18 the social impact of the automobile,19 and
the opening of “Storyville” in New Orleans. (Ex. 80, ECF No. 467-12). She also
offered Smith’s Clinton/Lewinsky-related Powerpoint slide20 and gave another
example of Smith’s too-graphic description of the affair.21 A final slide appears to

18

The slide shows three black and white photographs of flappers
accompanied by the caption: “She drinks, she smokes, she swears, she has sex
when she wants it. She drinks rotgut and has her own ‘jack.’ Her skirts are high
and [she] wears silk underwear.”
19

The slide shows a black and white cartoon – John Held’s “Flaming Youth”
– of a man and woman in evening clothes in the back of an automobile. The man
has his face buried in the woman’s neck, his right hand over the cover of her
evening dress on her right breast, and his left hand midway up her left thy below
the line of her dress. The slide is captioned: “The Car . . . Flaming Youth: Hell
raising teenagers of the 20's.” The caption includes in quotation marks: “The car is
a house of prostitution on wheels,” but the quote is not attributed. Finally, the
caption appears to include a link that, when activated, will play the “Charleston.”
20

The slide shows a late 1990s cover of “Cigar Aficionado” magazine
featuring Monica Lewinsky’s photograph. One story previewed on the magazine’s
cover is entitled “The Truth About Bill . . . Did he smoke it or save it?” Another
photo on the slide shows a parade-sized caricature balloon of Bill Clinton holding
the (blue) breasts of a Smurf-like Statue of Liberty surrounded by protesters. The
caption for the entire slide says: “Most will remember Clinton for his scandals, &
one involving a young intern, Monica Lewinsky. The scandal reflected a society
focused on tabloid journalism & junk food entertainment.”
21

(M. Young Aff. ¶ 17 (“Smith discussed how Monica Lewinsky walked by
President Clinton and she lifted her skirt and Bill Clinton put a cigar in her
vagina.”))
26

include overarching questions Smith expected or hoped students would consider in
relation to his course: “Smith, how are you gonna relate history to my world? Why
does any of this matter to me? Who the hell do I believe? What can be done about
anything? How did this whole mess begin? Does . . . 1/3 of the world really hate
us? Why are people so f****** stupid?!”22
M. Young’s response to Smith’s motion is also noteworthy for what it did
not include. She submitted no evidence to dispute Smith’s testimony regarding the
context in which Tate-LaBianca crime scene photos were shown.23 (Smith Trial
Test. at 616; Pl.’s Facts 2013 ¶ 9). She submitted no evidence to dispute that Smith
showed the photos of the Gein victims in the context of a lesson communicating
that the 1950s were “not as ‘sanitary’ as ‘Leave It to Beaver’ or Happy Days’

22

The asterisks are Smith’s.

23

“[A]lso . . . Susan Atkins [a.k.a. “Sexy Sadie”] was up for parole, in which
she said she had found God and that she should be reprieved and she had ovarian
cancer and she should go home to die.
...
“And it’s like well, Sharon Tate was denied that. And I showed testimony of
[Tate’s] sisters saying the same thing.” (Smith Trial Test. at 616).
27

would suggest.”24 (Def.’s Facts ¶ 12; Pl.’s Facts 2013 ¶ 12). Likewise, in relation to
Smith’s questionable Clinton/Lewinsky-related homework assignment, M. Young
admitted that Smith discussed President Clinton’s quibbling over sex versus oral
sex and submitted no evidence to dispute that “Smith told [students] to go home
and have oral sex in front of their parents” so that students would see “if their
parents would say ‘that’s okay because it’s not sex.’”25 (Def.’s Facts ¶ 13; Pl.’s
Facts 2013 ¶ 13). She submitted no evidence to dispute that “Smith discussed
Victoria’s Secret and push-up bras in the context of the pressures American society
places on women and has placed on women throughout the twentieth century,” or

24

“I made that available at the same time as we were talking about Charles
Manson and the fact that there was this dark side going on which, again, the 1950s,
which was, you know, not correlated with the ‘70s or the ‘60s, the fact is that there
was this belief that everything was Leave it to Beaver, that it was Happy Days, and
that there were these dark things going on underneath . . ..” (Smith Trial Test. at
621).
Other than Smith’s statement about police reports noting semen in the
mouths of Gein’s victims, M. Young cannot recall anything that Smith said in
relation to the photos. (M. Young Trial Test. at 178). (See also n.9 supra).
25

“I said, if you went home and had oral sex and you were caught by your
parents, I said what do you think they’re going to say? Do you think they’re going
to walk in and say, oh, okay, that’s okay because it’s not sex? I said, we all know
what it is.” (Smith Trial Test. at 627).
28

to dispute that the discussion also touched on Barbie Dolls and Marilyn Monroe.26

26

“. . . [A]nd what I did was, I brought up the Gibson Girl.

...
“Well, then I taught my students that not long after this became the adopted
image that women were set to do and follow, then photography came into the
picture and they actually held a nationwide search for a Gibson Girl and they
modeled her on the proportions that were already drawn. And women, when they
saw these photographs, again, a lot of women were trying to emulate these images.
“. . . And what I was mentioning was that the corset is not like today. This
was made of whale bone and iron and that it would compress a women’s interior,
also, as well, to damage them and cause great physical pain. . . . That’s the kind of
pressure that was going on.
“. . . We took this all the way through from the 1920s, the ‘30s, we
mentioned the flappers in the 1920s and the immense pressure on women.
...
“. . . [I]t went through the 1940s and the 1950s, Marilyn Monroe, who
became, also, an icon, in showing how women are basically still marginalized and
that it’s become now, with the advent of plastic surgery – and all you have to do is
turn on the Learning Channel, that’s what they call it, and to see what is going on
here, the Miss America pageants where, again, this is objectification . . ..
...
“Then I went into Victoria’s Secret, and I showed how these people do not
look like this, they’re airbrushed, they’re slimmed down by Photoshop, okay, and
that growing up – I asked students right out, growing up as little girls, especially
my female students, you’re given Barbies, and I said that if you actually took a
human being and made them into the proportions of a Barbie doll, they would look
29

(Def.’s Facts ¶ 16-17; Pl.’s Facts 2013 ¶ 16-17; Smith Trial Test. at 628-). Instead
of submitting specific facts disputing the context in which she experienced Smith’s
speech, M. Young merely reiterated her opinion that Smith’s speech was
inappropriate, asserted that his lessons departed from the curriculum, and reckoned
that Smith was motivated by a desire to discuss sex rather than by bona
fide educational objectives. These facts are deemed admitted for the purposes of
this motion pursuant to Fed. R. Civ. P. 56(e)(2).
IV.

Discussion

(a)

The Court Agrees that M. Young’s Trial Evidence was
Insufficient as a Matter of Law on her § 1983 Claim

Since the Court agrees with Chief Judge Kane’s thoughtful consideration of
the trial evidence (Ct. Mem. & Order in re New Trial at 21-33), as well as her

like an alien, that this is an image that cannot be achieved unless through surgery,
through plastic surgery, liposuction, that now, at a young age, pushup bras are
being created to show this, to show, you know, these images that these girls must
compete with and keep up with.
“And I said, you don’t see the same thing, turnabout is not fair play for a
man. I said, men can get old, they can get bald, they can get fat, and that seems to
be perfectly acceptable, but a woman must keep up appearances.” (Smith Trial
Test. at 628-631).

30

conclusion that “the totality of the allegations, even viewed out of context and in a
light most favorable to Plaintiff, do not reasonably support” M. Young’s § 1983
claim against Smith, the Court will only revisit the issues considered by Chief
Judge Kane summarily (and as necessary thereafter).
To M. Young’s assertion that Chief Judge Kane’s analysis “was a product of
her assessment of Defendant Smith’s credibility and believability” (Pl.’s Opp’n
Br., May 24, 2013, ECF No. 467 at 42-48) (hereinafter, “Pl.’s Opp’n Br.”), the
Court can only reply that this ignores the plain import of Chief Judge Kane’s
words. In any case, to the extent Chief Judge Kane adverted to Smith’s testimony
in discussing the context of his speech, in only two instances does M. Young
genuinely dispute that context,27 and the Court will resolve the dispute in M.

27

Smith asserts that his query as to girls’s pillow-fighting attire was made to
the class generally with the intent of encouraging students to rethink a stereotype.
(Def.’s Facts ¶ 20). M. Young asserts that Smith specifically asker her if she was in
her underwear when she had a pillow fight. (Pl.’s Facts ¶ 20).
Smith asserts that a student in his course, not Smith himself, was the source
of the comment that women should not be president because they get their
“monthly visitor,” and claims that he (Smith) stated in class that it was “one of the
most ridiculous statements [he had] ever heard.” (Def.’s Facts ¶¶ 36-37). M. Young
asserts that Smith talked about “how he didn’t believe women should be
president.” (Pl.’s Facts ¶¶ 36-37).
31

Young’s favor for purposes of this motion (as the Court believes Chief Judge Kane
did in the first place).
These two instances aside, the statement of facts supra, which is based on
the Youngs’s own testimony, admissions, and exhibits, fully supports Chief Judge
Kane’s view that the images (i.e., photos of Manson’s and Gein’s victims; Nazi’s
burning pornography) shown by Smith “ha[d] historical value” in the context of his
course (Ct. Mem. & Order in re New Trial at 26-27), and that a number of Smith’s
questionable comments (i.e., comments respecting Clinton/Lewinsky, flappers, the
automobile, women’s body image, Manson and Gein) were expressed in the
context of making observations about history and society (Id. at 29-30), while
other comments and materials (references to personal sexual exploits and glow-inthe-dark condoms; Smith’s “Memoirs”) were only tangentially relevant or
unarguably irrelevant to Smith’s Twentieth Century History course (Id. at 28-31).28
Considering the totality of images and comments M. Young found troubling, Chief
Judge Kane concluded, no reasonable jury could conclude that Smith created a
sexually hostile classroom environment.

28

The Court places Smith’s decontextualized views on women’s ability to
preside over the free world and his interest in the sartorial aspects of pillowfighting in this third, least exalted, category.
32

In reaching this conclusion, the relationship between Smith’s speech and
defensible course content was important to Chief Judge Kane because “the Court
[was] wary of the chilling effect of subjecting legitimate – or even borderline –
decisions regarding curriculum to routine federal judicial review.” (Id. at 31).
Ultimately, as summarized by Chief Judge Kane:
Even viewing the comments without Defendant Smith’s explanation,
while crude, the Court cannot say they would alter the conditions of the
educational environment. The book [“Memoirs”] was requested by
Plaintiff and those portions she contends she read were mostly stories
about a young child coping with moving to a new school and finding a
father figure. The offending images shown all had historical value.
Plaintiff concedes that most of the offending conduct was done in the
context of a history lesson, albeit one she deemed “inappropriate.”
(Id. at 32). The Court agrees with the Chief Judge that, with or without Smith’s
testimony, no reasonable person who experienced Smith’s questionable classroom
speech (as reflected in the trial evidence construed in M. Young’s favor) could have
considered it so sexually hostile or abusive that she was disadvantaged (relative to the
opposite sex) in her ability to benefit from the edifying aspects of a semester in his
Twentieth Century History course. See Oncale v. Sundowner Offshore Serv., Inc., 523
U.S. 75, 80 (1998) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 25 (Ginsburg,
J., concurring) (“‘The critical issue, Title VII’s text indicates, is whether members of

33

one sex are exposed to disadvantageous terms or conditions of employment to which
members of the other sex are not exposed.’”).29
(b)

Even Considering the Evidence Newly Introduced by M. Young,
Summary Judgment in Smith’s Favor is Warranted

29

The Court adds to Chief Judge Kane’s consideration of the trial evidence,
firstly, that it is hardly clear that the course material M. Young found most
offensive was discriminatory based on sex. “[P]hotographs of Ed Gein’s and
Charles Manson’s victims” may have “made her feel ‘scared,’ ‘sick,’ ‘disgusted,’
and ‘nauseated’” (Ct. Mem. & Order in re New Trial at 34), but these photographs
were not pornography, where the assumption is that men are titillated or indifferent
while women are burdened by the evils that flow from being objectified in the
workplace. See Andrews v. City of Philadelphia, 895 F.2d 1469, 1485-86 (3d Cir.
1990) (internal quotation marks omitted) (reasoning that the “posting of
pornographic pictures in common areas and in the plaintiffs’ personal work
spaces” may serve as evidence of a hostile environment because while “men may
find these actions harmless and innocent, it is highly possible that women may feel
otherwise” because they seek “to deal with [their] fellow employees and clients
with professional dignity and without the barrier of sexual differentiation and
abuse”). These were, rather, grisly photographs of murder victims that would
sexually arouse only the extremely perverse individual and could make anyone,
regardless of sex, feel scared, sick, disgusted, and nauseated to a degree. In other
words, displaying the photographs – even recognizing that Smith admitted he
showed such photographs of women only – was not discriminatory in that an
adverse reaction to the photographs was not more likely in women than men.
Secondly, having viewed the actual slides Smith used to teach about
flappers, the automobile, and the Clinton affair, it is plain that the slides could
serve bona fide pedagogical purposes in the context of a Twentieth Century
History course. (See supra n.18, 19 & 20).
34

Before the Court determines whether M. Young’s post-trial evidence
(considered cumulatively with the evidence Chief Judge Kane found inadequate)
introduces a genuine dispute of material fact in relation to her § 1983 claim, the
Court stresses that M. Young’s claim is based completely on Smith’s classroom
expression. Taking notice of the classroom context is of paramount importance to
understanding a reasonable person’s experience of the images and statements M.
Young found so troubling. See Oncale, 523 U.S. at 81-82 (the hostile environment
“inquiry requires careful consideration of the social context in which particular
behavior occurs and is experienced by its target. . . . The real social impact of
workplace behavior often depends on a constellation of surrounding circumstances,
expectations, and relationships which are not fully captured by a simple recitation
of the words used or the physical acts performed.”).
Smith taught a course in Twentieth Century History, “a subject that,” Chief
Judge Kane recognized, “is fraught with complex, and at times uncomfortable,
questions of race, religion, violence, and also sex and sexuality.” (Ct. Mem. &
Order in re New Trial at 31). More broadly, “free speech rights apply in the
classroom,” and federal anti-discrimination laws are “not [intended] to regulate the
content of speech”; they must, rather, be applied “so as to protect academic

35

freedom and [the] free speech rights” of “students and teachers.”30 U. S. Dept. of
Educ., Office for Civil Rights, Revised Sexual Harassment Guidance: Harassment
of Students By School Employees, Other Students, or Third Parties (Title IX) 22
(2001) (hereinafter “Revised Sexual Harrassment Guidance”). Needless to say,
offensive speech is generally protected. See Sypniewski v. Warren Hills Reg’l Bd.
Of Educ., 307 F.3d 243, 265 (3d Cir. 2002) (“As a general matter, protecting
expression that gives rise to ill will – and nothing more – is at the core of the First
Amendment”). See also “First Amendment: Dear Colleague” letter from the
Assistant Secretary of the Office of Civil Rights of the Department of Education,
ED.gov, (July 28, 2003), http://www2.ed.gov/about/offices/list/ocr/firstamend

30

In the following discussion, the Court should not be misunderstood as
suggesting that Smith has a viable First Amendment claim vis a vis Pleasant Valley
for the sanctions imposed upon him. See Bradley v. Pittsburgh Bd. of Educ., 910
F.2d 1172, 1176 (3d Cir. 1990) (“no court has found that teachers’ First
Amendment rights extend to choosing their own curriculum or classroom
management techniques in contravention of school policy or dictates.”). The issue
in this case is not whether Pleasant Valley could legally discipline Smith or order
him to cease certain classroom practices. The issue, rather, is how Title VII should
apply in the context of a Twentieth Century History course. The Court’s discussion
is merely intended to illustrate the interests, values, and understandings that make
the classroom context unique.
36

.html (“Harassment, however, to be prohibited by the statutes within OCR’s
jurisdiction, must include something beyond the mere expression of views, words,
symbols or thoughts that some person finds offensive.”).
Two decisions from the United States Court of Appeals for the Ninth Circuit
are useful for illustrating the unique complex of values, interests, and
understandings that govern the classroom context where Smith’s expression took
place. The first, Cohen v. San Bernardino Valley Coll., 92 F.3d 968 (9th Cir.
1996), a case cited with approval in the U.S. Department of Education’s Revised
Sexual Harrassment Guidance (at 22 n.116), involved a female student’s claim that
her English professor had violated her community college’s31 sexual harassment
policy, which prohibited “verbal, written, or physical conduct of a sexual nature . .
. [that] has the purpose or effect of unreasonably interfering with an individual’s
academic performance or creating an intimidating, hostile, or offensive learning
environment,” Cohen, 92 F.3d at 971. The student was offended “by Cohen’s

31

For purposes of evaluating the perspective of a reasonable person in M.
Young’s shoes, the Court may “take judicial notice of the progressively higher
levels of intellectual and emotional development of students in the later grades of
secondary school. . . . High school students . . . are at an age approaching both
adulthood and franchise,” and schools need not “shield our children from political
debate and issues until the eve of their first venture into the voting booth.” Seyfried
v. Walton, 668 F.2d 214, 219-20 (3d Cir. 1981) (Rosenn, J., concurring).
37

repeated focus on topics of a sexual nature, his use of profanity and vulgarities, and
by his comments which she believed were directed intentionally at her and other
female students in a humiliating and harassing manner.” Id. at 970. Cohen’s speech
included beginning “a class discussion on the issue of pornography and play[ing]
the ‘devil’s advocate’ by asserting controversial viewpoints”; assigning
“provocative essays such as Jonathan Swift’s ‘A Modest Proposal’ and
discuss[ing] subjects such as obscenity, cannibalism, and consensual sex with
children in a ‘devil’s advocate’ style”; “stat[ing] in class that he wrote for Hustler
and Playboy magazines and [reading] some articles out loud in class”; and
assigning an essay in which student were required to “defin[e] pornography.”
Id. The college agreed with the student that Cohen had violated its sexual
harassment policy and sanctioned Cohen; the district court held that the college had
not violated his First Amendment rights in doing so.
The Ninth Circuit reversed. Conceding that Cohen “use[d] a confrontational
teaching style designed to shock his students” by discussing “controversial” and
“provocative” issues, employing “vulgarities and profanity in the classroom,” and
“plac[ing] substantial emphasis on topics of a sexual nature,” the Ninth Circuit
held that the college’s sexual harrassment policy was “simply too vague as applied

38

to Cohen.” Id. at 172. The Ninth Circuit was especially concerned that “the
College, on an entirely ad hoc basis, applied the [sexual harassment] Policy’s
nebulous outer reaches to punish teaching methods that Cohen had used for many
years,” and which “had apparently been considered pedagogically sound and
within the bounds of teaching methodology permitted at the College” before Cohen
was punished. Id.
In a second case, Monteiro v. Tempe Union High Sch. Dist., 158 F.3d 1022
(9th Cir. 1998), an African-American student claimed she was discriminated
against when the required reading in her high school English course included
Twain’s The Adventures of Huckleberry Finn and Faulkner’s A Rose for Emily,
each of which includes frequent use (over 200 times in Huckleberry Finn) of the
word n***** – “the most noxious racial epithet in the contemporary American
lexicon” – to refer to African-Americans. Id. at 1024, 1029, 1034. The student
sought removal of the works from the curriculum’s mandatory reading list. Id. at
1026.
In holding that “the requirement that students read books that were
determined by the appropriate school authorities to have educational value” could
not form the basis for a discrimination suit under the Equal Protection Clause and

39

Title VI, the Ninth Circuit was guided by its concern that such suits would
“severely restrict” the First Amendment rights of students to receive material that
the “school board or other educational authority determines to be of legitimate
educational value.” Id. at 1028. The mechanism by which restriction would occur
would be the “the threat of future litigation” against schools and school officials,
which “would inevitably lead many . . . to ‘buy their peace’ by avoiding the use of
books or other materials that express messages—or simply use terms—that could
be argued to cause harm to a group of students.” Id. at 1029. The Ninth Circuit
noted that the “range of literary products that might be considered injurious or
offensive” to various groups is “extremely wide—if not unlimited.” Id. at 1030. As
a result,
[t]he number of potential lawsuits that could arise from the highly varied
educational curricula throughout the nation might well be unlimited and
unpredictable. Many school districts would undoubtedly prefer to “steer
far” from any controversial book and instead substitute “safe” ones in
order to reduce the possibility of civil liability and the expensive and
time-consuming burdens of a lawsuit – even one having but a slight
chance of success. In short, permitting [such] lawsuits . . . could have a
significant chilling effect on a school district’s willingness to assign
books with themes, characters, snippets of dialogue, or words that might
offend the sensibilities of any number of persons or groups.
Id. Moreover, by removing books from the curriculum, school authorities “would
likely be vulnerable to First Amendment actions brought by students desiring to study
40

those books . . .. Schools could be caught between those seeking to remove
Huckleberry Finn and those seeking to study it.” Id. at 1030-31. Finally, the Ninth
Circuit reasoned that courts were simply the wrong forum for legitimate debates about
the appropriateness of course materials – “[s]uch judgments are ordinarily best left to
school boards and educational officials charged with educating young people and
determining which education materials are appropriate for which students, and under
what circumstances.” Id. at 1031-32.32
This Court gleans a number of principles from these decisions. First, as
recognized in Cohen, the law of “hostile environments” is a blunt instrument to apply
to classroom speech that colorably serves pedagogical goals. The spectrum of
“pedagogically sound” teaching styles is broad, and unorthodox methods should not

32

The Court recognizes that the Ninth Circuit’s application of its logic to
teachers was inchoate at best. In one breath the court expressed concern that “it is
likely that claims such as these, and their outcomes, could have significant effect
on the First Amendment rights of teachers,” id. at 1030 n.13, and in the next breath
qualified the reach of its opinion, explaining, “[w]e do not, of course, suggest that
racist actions on the part of teachers implementing a curriculum could not comprise
discriminatory conduct for the purposes of Title VI or the Fourteenth
Amendment,” id. at 1032. As this Court discusses Monteiro only for the purpose of
illustrating certain principles, it is not necessary to determine precisely what the
Ninth Circuit meant to convey on this point.
41

be ensnared by the “nebulous outer reaches” of the law.33 In this regard the Court
notes that creating pointed discomfort – or, put differently, a “hostile environment”
– for pupils is a bona fide pedagogical approach that a simplistic application Title VII
addresses inadequately. One need look no further than this case, where in support of
her claim M. Young testified that Smith’s lecture on the Gibson Girl, Victoria’s Secret
Models, Marilyn Monroe, Barbie Dolls, and his associated comments on sagging
breasts and the uncomfortable appearance of push-up bras made M. Young feel
“[in]adequate,” and “horrible” because it caused her to “look around and compare
[her]self to everyone else constantly, more self-aware and just thinking about [her]
body image more and more.” (M. Young Trial Test. at 179-80; Def.’s Facts ¶ 16-17;
Pl.’s Facts 2013 ¶ 16-17; M. Young Aff. ¶ 26).
But creating that discomfort could be precisely the point in the context of what
was admittedly a lesson raising the issue of whether American society has placed

33

The Court notes at this juncture that, although Judge Munley held that
Smith was not entitled to summary judgment on qualified immunity grounds,
teachers in a position analogous to Smith’s have been granted qualified immunity.
See C.F. ex. rel. Farnan v. Capistrano Unified Sch. Dist., 654 F.3d 975, 987 (9th
Cir. 2011) (“nothing in the law would make clear to a reasonable person that he
might violate the Establishment Clause by making . . . statements [highly
disparaging of religion] in the context of a classroom discussion in an Advanced
Placement history course”). The parties did not raise the issue of qualified
immunity on this motion and the Court does not consider it.
42

unrealistic, unnecessary, and unhealthy pressures on women historically and today.
Having created such discomfort does not constitute evidence of a sexually hostile
environment just because the attempt at “consciousness raising” did not succeed in
moving students to the point where they, having recognized their shackles, shook off
the chains.34
Second, applying Title VII to instruction in the arts, humanities and social
sciences without giving due regard to the “classroom [being] peculiarly the
‘marketplace of ideas,’” Keyishian v. Bd. of Regents of Univ. of State of N.Y, 385
U.S. 589, 603 (1967), will eliminate much that is valuable in education. Even the
threat of litigation promises to stifle the employment of innovative, challenging, and
stimulating classroom material and methods, and is likely to distort the presentation
of any course of study that explores diverse ways of life and conflicting viewpoints.
A teacher less dedicated to the quality of the curriculum than wary of avoiding
lawsuits might altogether omit lessons on, for example, flappers – or present flappers
as something less than they were – rather than guess the point at which a student will

34

Likewise, a teacher arguing that media coverage of the Clinton-Lewinsky
“scandal reflected a society focused on tabloid journalism & junk food
entertainment” (see supra n.20) might make the point by discussing in graphic
detail just exactly how much consumers of media learned of the affair.
43

decide when the subject has been discussed excessively (see M. Young Trial Test. at
206 (Q: “So it was okay to talk about flappers?” A: “Not as much as it was in the
classroom.”)), or that certain aspects of the flapper lifestyle were “not appropriate” for
class discussion (id. at 207 (Q: “He talked too much about flappers. Is that what
you’re saying?” A: “The comments about drinking and sex were not appropriate. I feel
like it could have been addressed in a more appropriate manner.”)).
Third, not giving due regard to the nature of pedagogical decisionmaking puts
teachers in a bind, with the possibility that they will embroil themselves and their
institutions in litigation initiated by students seeking to eliminate course materials and
methods on one side, and students claiming the right to learn from them on the other.
See also Seyfried v. Walton, 668 F.2d 214, 218-19 (3d Cir. 1981) (Rosenn, J.,
concurring) (recognizing the “right of students to challenge on first amendment
grounds actions of school officials which circumscribe the range of ideas to which
students are exposed.”). Again, one need look no further than this case – where Smith
was admittedly a very popular, respected teacher (Pl.’s Facts 2013 ¶ 1; M. Young
Trial Test. at 209; M. Young Dep. at 19) whose students nearly unanimously rallied

44

in his support when M. Young’s allegations were publicized35 – to recognize the
reality of this possibility. As another Pleasant Valley parent whose daughter was in
Smith’s course testified at trial (under subpoena, to defense counsel’s question –
“Why did you send an e-mail to [the Pleasant Valley principal]?”): “I was really upset
by the fact that one parent [i.e., the Youngs] could decide what the teaching of the
other 200 kids should be and that Mr. Smith was a great teacher.” (Dalmas Trial Test.
at 574).
Finally, in all but extraordinary circumstances, teachers, administrators and
school boards (with the assistance of parents and pupils), as opposed to litigants,
judges, and juries, are the proper decisionmakers when it comes to the appropriateness
of classroom materials and methods, as well as the level of freedom teachers with
different interests and abilities are permitted in the classroom. See also Sypniewski,
307 F.3d at 267 (quoting Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 273
(1988)) (“the education of the Nation’s youth is primarily the responsibility of parents,

35

(M. Young Trial Test. at 190 (“Well, the pep rally for Mr. Smith, I didn’t
hear about a pep rally for anyone supporting me, they were all supporting the
teacher.”); id. at 197 (“[E]ven three years later there was a Facebook group that
was put together to support the students when I was, I believe, a [college]
sophomore, . . . rallying together to support Mr. Smith. So three years later they
still supported him.”)).
45

teachers, and state and local school officials, and not of federal judges”); Epperson v.
State of Arkansas, 393 U.S. 97, 104 (1968) (“By and large, public education in our
Nation is committed to the control of state and local authorities. Courts do not and
cannot intervene in the resolution of conflicts which arise in the daily operation of
school systems and which do not directly and sharply implicate basic constitutional
values.”); Seyfried, 668 F.2d at 217 (quoting Epperson, 393 U.S. at 104) (affirming
school authorities’s decision where it did not “‘directly and sharply implicate’” First
Amendment rights of students).
Indeed in Smith’s case, prompted by a March 8, 2007 meeting with M. Young’s
parents, Pleasant Valley investigated Smith’s conduct and by March 15, 2007
concluded that Smith, among other things, had provided students with “inappropriate
reading material [i.e., his “Memoirs”],” that included “profanity, sexual and drinking
experiences [sic] and foul language,” and that “failed to follow the social studies
reading initiative” and had “no link to the curriculum,” and that Smith also took
“inappropriate literal liberties in developing and referencing events in history,” even
if the references related to “time periods in the curriculum.” (Pl.’s Ex., ECF No. 4676 (Smith’s “inappropriate literal liberties” related to his overly graphic descriptions
of Manson Family’s activities and the Clinton-Lewinsky affair)). Smith was

46

suspended a total of thirteen days, ten without pay; administrators previewed his
lesson plans and subjected his classes to monitoring (although M. Young disputes
whether the monitoring was adequate); and he received an “unsatisfactory” evaluation
for the school year. (Def.’s Facts ¶¶ 30-32; Pl.’s Facts ¶¶ 30-32).
A jury in this case would act as a sort of ‘super school board’ with the power
to enhance – based on jurors’s views of proper course subject matter – the sanctions
imposed on Smith by Pleasant Valley’s administrators.36 Unsurprisingly, portions of
the previous trial read like debates over the proper makeup of a Twentieth Century
History course curriculum.37
36

The Court can imagine teachers and administrators legitimately
disagreeing with the plaintiffs’s view that Smith’s “job as a professional teacher
[was in every case to] find ways to make it appropriate, not find ways to make it
inappropriate, to . . . make it so the kids love you because you’re talking about stuff
you don’t need to talk about.” (W. Young Trial Test. at 418). Teachers and
administrators may find that a certain amount of edginess and irreverence helps to
engage students whose interests are not piqued by more traditional approaches in
the classroom.
37

In deciding whether Smith’s lectures contributed to a sexually hostile
classroom environment, inevitably jurors will base their decision to some degree
on their view of the subjects that comprise a proper Twentieth Century History
course in the first place, traditionally the province of teachers and school
authorities. Testimony from the first trial speaks directly to these issues:
A:

. . . And it was just – it was all constantly degrading women,
highlighting the bad side of history, but I can’t recall any highlights of
the good side of history . . .
47

(M. Young Trial Test. at 180).
Q:
A:

Q:

A:
Q:
A:
Q:
A:

What do you understand a flapper to be?
The flappers from the 1920s were women who could drink, smoke,
have sex whenever they wanted. They were free to do what women
couldn’t do before in society.
Is that part of a – would you say that that described, you know, a
change or at least an aspect of the role of women in society in the
early 20th century?
Yes, to an extent.
So it was okay to talk about flappers?
Not as much as it was in the classroom.
He talked too much about flappers. Is that what you’re saying?
The comments about drinking and sex were not appropriate. I feel like
it could have been addressed in a more appropriate manner.

(M. Young Trial Test. at 206-207).
Q:
A:

Do you think it would be a better course if they just had eliminated all
the bad stuff in history?
While there are positive and negative points to history, I feel like the
points that this class focused on were inappropriate, and there are
more tactful ways about discussing them and bringing them up in a
classroom conversation, if at all.

(M. Young Trial Test. at 227).
A:

He’s talking – first of all, he’s talking – he’s showing women in their
underwear. What that has to do with 20th century history, I don’t
understand.

(P. Young Trial Test. at 265).
A:

. . . There were also issues of emails coming home that were talking
48

Collectively, these principles govern the specific context in which M. Young
experienced Smith’s speech. Guided by them and the notion that “[t]he real social
impact of . . . behavior often depends on a constellation of surrounding circumstances,
expectations, and relationships which are not fully captured by a simple recitation of

about just HIV and other issues that were totally not what I would see
as a history lesson.
(W. Young Trial Test. at 401).
Q:

A:
Q:
A:

Franklin Delano Roosevelt is alleged to have had and I guess reputed
to have had a long-time affair with his wife’s personal secretary. You
don’t think that that has any relevance to history?
At that age, no. I mean, I’ve learned of that later as an adult.
I mean, is there some age that history changes?
History doesn’t change. What you can show to people changes. What
you can talk to people about – there’s issues about what you can say
to people at what age.

(W. Young Trial Test. at 450). (See also M. Young Aff. ¶ 6 (“Bloody, murdered,
gutted, headless women do not have historic value for a minor to see in a public
classroom . . .”); id. ¶ 12 (“Defendant Smith showed a video of someone being
decapitated, which has no relevance to 20th Century history . . .”); id. ¶ 33
(“Defendant Smith showed a picture when Sharon Tate was alive and asked
whether she was ‘hot’ and then showed her bloodied, dead, murdered body with
only tape around her nipples. That has no relevance to 20th Century history under
any circumstances.”); id. ¶ 45 (“Defendant Smith discussed FDR’s mistress, which
has nothing to do with 20th Century history.”)).
49

the words used or the physical acts performed,” Oncale v. Sundowner Offshore Serv.,
Inc., 523 U.S. 75, 81-82 (1998), the Court holds that no reasonable person in M.
Young’s shoes could experience Smith’s speech – to the extent that it bore a colorable
relationship to understanding aspects of Twentieth Century History over the course
of a semester – as having contributed significantly to the creation of a sexually hostile
classroom environment.38 To hold otherwise – that is, to hold that students may expect
that much of what society values in education generally, and modern history education
in particular, can be bought at a price less than students’s provocation or offense –
would be to ignore the nature of democratic education in a pluralistic society, and
would result in the replacement of decisionmaking by educators with decisionmaking
of an inexpert Court. The Court believes that its holding in this regard demonstrates
the appropriate exercise of judicial restraint.

38

In reaching this conclusion, the Court does not ignore the requirement that
the relevant events be viewed in their totality. See Brown-Baumbach v. B&B
Auto., Inc., 437 F. App’x 129, 134 n.6 (3d Cir. 2011). The Court considers the
relevant question to be whether all of Smith’s questionable speech with a colorable
relationship to Twentieth Century History, taken together, not piece by piece, could
be part of a bona fide semester-long course. The Court also considers Smith’s
speech with a colorable relationship to Twentieth Century History in light of his
questionable speech that did not bear such a relationship, and vice versa.
50

Smith’s speech bearing a colorable relationship to the curriculum includes much
of the evidence considered by Chief Judge Kane, see supra Section IV.(a), as well as
certain averments in M. Young’s post-trial affidavit: Smith’s overly vivid recounting
of Manson Family member Sexy Sadie’s exploits; his comment on “women’s breasts
. . . sag[ging] halfway down their chests as they age” in the context of discussing the
Gibson Girl and other icons of female beauty; and his discussion of FDR’s mistress.
M. Young argues strenuously that the intent behind this expression – which
includes much of what M. Young found most troubling in his classroom – was
Smith’s alleged desire to demean women and discuss sex, but that does not alter the
Court’s holding that no reasonable person in M. Young’s shoes could experience the
speech as significantly hostile or abusive, since the very same speech could be
justified by legitimate educational objectives and advance a student’s understanding
of Twentieth Century History. At the very least, Smith’s expression falls within the
“breathing room” that must be allowed in the classroom in order not to stifle speech
of value. Rosenbloom v. Metromedia, Inc., 415 F.2d 892, 894 (3d Cir. 1969) (“First
Amendment guarantees must be applied broadly lest they suffocate for lack of
breathing room”). For much the same reason, M. Young’s objection that Smith strayed
from what she understood to be the Twentieth Century History curriculum is of little

51

moment. Departing from the curriculum is cause for professional discipline; it does
not necessarily violate the United States Constitution, and so long as the Smith’s
speech could be incorporated into a bona fide Twentieth Century History course
curriculum, the Court cannot hold that M. Young could experience it as significantly
hostile or abusive.
This leaves the Court to consider Smith’s speech that was not colorably
connected to his history course. Construing the evidence in M. Young’s favor, this
includes Smith’s:
•

display of images and discussion of the Borden murders,

•

comment on women’s supposed unfitness for the presidency,

•

distribution of an article reporting that HIV/AIDS was not as easy to get

as may be feared,
•

discussion of glow-in-the-dark condoms,

•

claim that he “bang[ed] the cheerleader in college,”

•

recounting of his lack of interest in sexual relations with “a girl who slept

around at school with all of his guy friends,”
•

decision to make his “Memoirs” available,

52

•

display of a “video in which a woman was shot in the desert as

punishment,”
•

discussion female masturbation in connection with Cindy Lauper,39

•

query regarding the price students, respectively, would accept to cause

them to streak down the hallway,
•

instruction on how to “trick girls into getting in a car near dusk,”

•

discussion of girlfriend swapping under a Communist system,40 and

39

M. Young’s averment does not place Smith’s discussion in context, a
problem throughout this litigation. (See, e.g., M. Young Trial Test. at 178, 212,
213, 226). Smith explained that “it was . . . originated by a student who asked the
question, isn’t – because we were looking at Girls Just Want to Have Fun, the
video from the 1980s by Cyndi Lauper, a student in the class asked, I was told that
that was about female masturbation. And I said, indeed, it is about female
masturbation . . ..” (Smith Trial Test. at 678). The Court nevertheless assumes that
the discussion had no colorable connection to Smith’s course.
40

Again, M. Young’s averment provides too little context. Smith’s comment
was apparently made in the context of explaining concepts related to communism,
an ideology which the Court certainly does not sanction or endorse, where
discussion of so-called “swapping” of significant others could be appropriate.
Indeed, it is discussed in the Communist Manifesto –
But you Communists would introduce community of women, screams
the whole bourgeoisie in chorus.
The bourgeois sees in his wife a mere instrument of production. He hears
that the instruments of production are to be exploited in common, and,
naturally, can come to no other conclusion, than that the lot of being
common to all will likewise fall to the women.
53

•

question directed to M. Young regarding what she was wearing during

a pillow fight.
Taking up the analysis of this speech (considered cumulatively with, and in
relation to, Smith’s speech related to Twentieth Century History), the Court first notes
what is not at issue. See Gleason v. Mesirow Fin., Inc., 118 F.3d 1134, 1145 (7th Cir.
1997) (“[W]e think it important to take into account what [defendant] did not do”).
The record before the Court reveals that Smith never touched M. Young or any other
student in a sexual manner. He did not ask her or any other student to have sex with
him, or even suggest the possibility. He did not display pornography, see supra n.29,
except for two diminutive images from the first half of the 20th century within a larger
image that foregrounded fully-dressed Nazis. M. Young’s claim is completely based

...
Bourgeois marriage is in reality a system of wives in common and thus,
at the most, what the Communists might possibly be reproached with, is
that they desire to introduce, in substitution for a hypocritically
concealed, an openly legalised community of women.
Karl Marx & Frederick Engels, Manifesto of the Communist Party, 40-41 (Frederick
Engels ed. 1908).
Nevertheless, the Court assumes that the comment had no colorable connection
to Smith’s course.
54

on Smith’s in-class lectures and his distribution of reading materials, the most
offensive of which Chief Judge Kane found consisted “mostly [of] stories about a
young child coping with moving to a new school and finding a father figure.” (Ct.
Mem. & Order in re New Trial at 32).
That said, construing the facts in M. Young’s favor, Smith did disparage
women’s intelligence and abilities, as well as discuss sex and topics with sexual
overtones, and it is well settled sexual innuendo and “pervasive use of derogatory and
insulting terms relating to women generally and addressed to female employees
personally may serve as evidence of a hostile environment.” Andrews v. City of
Philadelphia, 895 F.2d 1469, 1485 (3d Cir. 1990).
Nevertheless, the Court holds that a reasonable person in M. Young’s shoes
would not find Smith’s questionable speech so sexually hostile or abusive that she was
disadvantaged (relative to the opposite sex) in her ability to benefit from the edifying
aspects of a semester in Smith’s Twentieth Century History course.
The Court reaches this conclusion largely because, in all but one instance, M.
Young was never the target of Smith’s comments, and his generalized comments were
directed to a classroom of students, not to her (or any other student, apparently)
individually. Andrews contemplates the plaintiff’s cognizance of offensive statements

55

“relating to women generally and addressed to female employees personally,”41 id. at
1485 (emphasis added), and the caselaw shows that courts generally take the view that
statements either not addressed to the plaintiff individually, or not about the plaintiff,
are less significant contributors to a hostile environment. See Caver v. City of
Trenton, 420 F.3d 243, 263 (3d Cir. 2005) (citing Heitzman v. Monmouth Cnty. 728
A.2d 297, 304-305 (N.J. 1999) for the proposition that “[A] derogatory comment
about another person generally does not have the same sting as an ethnic slur directed
at a minority group member.”); Paris v. Christiana Care Visiting Nurse Ass’n, 197 F.
Supp. 2d 111, 117-19 (D. Del. 2002) (comments to plaintiff were “not severe in an
objective sense” because they were not about plaintiff; explicit comment about
Monica Lewinsky was “directed at Ms. Lewinsk[y], not [plaintiff]”); Gautney v.
Amerigas Propane, 107 F. Supp. 2d 634, 644 (E.D. Pa. 2000) (emphasis added)
(although co-worker “discussed the size of his sex organs and his escapades with other
women,” court noted that “[u]nlike other cases involving hostile work environments,

41

The Court recognizes that “personally” could mean merely “in person”
(such that a student in a classroom could say that she was “addressed personally”),
but this does not seem to be the sense in which “personally” is being used in
Andrews. Instead, “personally” would seem to mean “as an individual,” as in the
next sentence in Andrews – “Similarly, so may the posting of pornographic
pictures in common areas and in the plaintiffs’ personal work spaces.” Id. at 1485
(emphasis added).
56

there is no evidence here that [plaintiff] was subjected to extensive inquiries into her
sex life or that comments were made about her physical sexual anatomy ”); CooperNicholas v. City of Chester, 1997 WL 799443, *4 (E.D. Pa. Dec. 30 1997) (granting
summary judgment for defendant, noting “Cooper–Nicholas has submitted no
evidence that the comments were made to her directly or that she was the subject of
those comments.”); Gleason, 118 F.3d at 1145 (“the impact of ‘second-hand
harassment’ is obviously not as great as the impact of harassment directed at the
plaintiff”). Discounting the offensiveness of speech that is not targeted makes sense
because the Supreme Court in Harris v. Forklift Sys., Inc., 510 U.S. 17
(1993), referred to a continuum of defendants’s behavior ranging in seriousness from
that which is “physically threatening or humiliating” to “a mere offensive utterance,”
and speech that is not targeted is, without more, the latter. Id. at 22. Cf. Jennings v.
Univ. of North Carolina, 482 F.3d 686, 695-98 (4th Cir. 2007) (defendant coach
serially “singled out individual players to find out whether, with whom, an how often
they were having sex,” which “provoked in several players acute feelings of
humiliation and degradation that were directly linked to their gender”).
Moreover, in the circumstances of this case, where Smith’s comments were
generally directed towards an audience and did not single out students, the First

57

Amendment limits the scope of the law of hostile environments. “Harassment law
generally targets conduct, and it sweeps in speech as harassment only when consistent
with the First Amendment.” Rodriguez v. Maricopa Cnty. Cmty. Coll. Dist., 605 F.3d
703, 710 (9th Cir. 2010) (Kozinski, J.) (the Honorable Sandra Day O’Connor, retired
Associate Justice of the Supreme Court, sat on the Rodriguez three-judge panel by
designation). When speech is directed at an audience and does not single out audience
members, it is least likely to be offensive because of its non-expressive aspects (if
any), and most likely to be offensive because of its message. See id. See also Saxe v.
State Coll. Area Sch. Dist., 240 F.3d 200, 208 (3d Cir. 2001) (Alito, J.) (reasoning
from R.A.V. v. City of St. Paul, 505 U.S. 377 (1992), “that government may
constitutionally prohibit speech whose non-expressive qualities promote
discrimination,” and giving the example of “a supervisor’s statement ‘sleep with me
or you’re fired,’ which “may be proscribed not on the ground of any expressive idea
that the statement communicates, but rather because it facilitates the threat of
discriminatory conduct.”); DeJohn v. Temple Univ., 537 F.3d 301, 317 (3d Cir. 2008)
(noting that speech on “gender politics and sexual morality” is “core” political
speech). M. Young’s claim is explicitly based on her dislike of what Smith expressed
and how he expressed it, not on the non-expressive aspects of his speech.

58

In addition to not being targeted, Smith’s comments about his sexual past and
sexual matters generally were tepid in comparison with defendants who have said
much worse, and much more frequently, and have nevertheless been granted summary
judgment in their favor. See Hancock v. Barron Builders & Mgmt. Co., Inc., 523 F.
Supp. 2d 571, 574 (S.D. Tex. 2007) (allegations that defendant, on an at least weekly
basis over a 3-5 month period, sometimes several times each week, “described the use
of sex toys and demonstrated which sexual positions he preferred; discussed the
sexual relations he had with his wife, often referring to her in demeaning terms; talked
about videotaping his sexual encounters; talked about the number of sex partners he
had and the occasions on which he had sex; graphically described situations in which
he date-raped women in college; once, asked for an opinion on Hispanics as sex
partners”). Again, it makes sense for courts to view a defendant’s non-directed
discussion of sex, either in the abstract or engaged in with other people (i.e., not the
plaintiff), as less serious in that such speech is generally “merely tinged with offensive
sexual connotations,” not “discrimina[tion] ... because of ... sex.” See Oncale v.
Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998). The Court agrees with M.
Young that a number of Smith’s comments in this regard were inappropriate, but they
did not create a sexually hostile environment.

59

The one instance in which M. Young alleges she was addressed personally,
when it comes down to it, was relatively innocuous. Smith allegedly asked her if she
was pillow-fighting in her underwear. There is no allegation that Smith was using this
query as a segue to more explicit conversation. The most M. Young can say of the
comment is that Smith “did not say it sarcastically but rather to get me to tell him
about whether I was in my underwear.” (M. Young Aff. ¶ 31). But it is simply not that
troubling to have to admit or deny (to the extent M. Young felt coerced) that a nonsexual activity such as pillow-fighting was performed in underwear.
Smith’s most unfortunate comments are those that disparage women’s
intelligence and abilities. But these comments were few and far between and could not
have bothered M. Young terribly. See Faragher v. City of Boca Raton, 524 U.S. 775,
788 (1998) (teasing, offhand comments, and isolated incidents (unless extremely
serious) will not amount to discriminatory changes in the terms and conditions of
employment). She was living proof of their falsity: a respected member of her church
and one of the best students at Pleasant Valley, with a bright future ahead at one of our
nation’s finest universities.
It is regrettable that M. Young’s experience in Bruce Smith’s Twentieth
Century History was neither as she anticipated or desired. Be that as it may, the Court

60

holds that no reasonable jury considering the totality of the circumstances could find
that Mr. Smith sexually harassed her.
V.

Conclusion

For the foregoing reasons, the Court grants defendant Smith’s motion for
partial summary judgment on M. Young’s Section 1983 claim.
s/Matthew W. Brann
Matthew W. Brann
United States District Judge