holding the student properly stated a free speech claim where the school denied him “the ability to report physical assaults in the locker room,” finding that the school’s “fear of a disturbance stemming from the disapproval associated with [the student’s] unpopular viewpoint regarding hazing in the school’s locker rooms” was insufficient under Tinker
How later courts described this case
- holding the student properly stated a free speech claim where the school denied him “the ability to report physical assaults in the locker room,” finding that the school’s “fear of a disturbance stemming from the disapproval associated with [the student’s] unpopular viewpoint regarding hazing in the school’s locker rooms” was insufficient under Tinker
- finding that the defendants' conduct inextricably intertwined with the locker-room incident, and stating that the "incident was clearly sexual in nature” because the initial assault "clearly derive[s][its] power to embarrass and to intimidate from [its] sexual and sex-based nature.”
- finding that plaintiff had a constitutionally protected interest in receiving a public education, but he did not have a protected interest in participating in specific advanced placement courses and interscholastic activities
- holding that although Title IX does protect against hostile environment sexual harassment in schools, plaintiff failed to state a valid claim because he did not allege that the harassment in question was based on sex
Written by the judges who cited it.
The opinion
McKAY, Circuit Judge,
concurring:
I concur in the court’s opinion except as to the Title IX claim. As to that claim, I concur in the result.
I write separately to express my disagreement with the court’s analysis of Plaintiffs Title IX claim. I cannot agree that the alleged harassment in this case was not based on sex within the meaning of Title IX. The majority writes that statements such as “boys will be boys” and “take it like a man” are not sufficiently sex related to state a claim. I believe, however, that these statements can only be understood as a response to the original hazing incident. In my view, this incident was clearly sexual in nature. Members of the football team taped Plaintiff to a towel rack while he was naked, taped his *1240 genitals, and then displayed their captive to a girl Plaintiff had dated. These actions clearly derive their power to embarrass and to intimidate from their sexual and sex-based nature. It is hard for me to believe that the display of the male genitalia to a female for other than medical or educational reasons has a non-sexual connotation. The coach’s statement that “boys will be boys” clearly relates to and flows out of the original sexual harassment. As such, it may be considered to be a continuation by the school official of the student-initiated sexual harassment, even if the statement by itself is not sexual in nature. See Hicks v. Gates Rubber Co., 833 F.2d 1406, 1415 (10th Cir.1987) (Title VII sexual harassment claim does not require sexual advances or other sexual conduct; rather, conduct which “would not occur but for the sex of the employee” violates Title VII). Thus, although I concur in the result for other reasons, I cannot wholeheartedly accept the court’s reasoning on this one issue.