Opposition Brief — Brown v. Hot, Sexy & Safer Productions, Inc.

ry Supreme Court, U.S. :

f Tris

No. 95-1158 oe !

Tn the CLERK

Supreme Court of the United States

OctToser TERM, 1995

RONALD C. BROWN, Er at.,

PETITIONERS,

v.

HOT, SEXY AND SAFER PRODUCTIONS, INC., er at.,

RESPONDENTS.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE FIRST

CIRCUIT

RESPONDENTS’ BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

Mary L. Bonauto JouHN Foskettr

Gay & LEsBIAN ADVOCATES Counsel of Record

& DEFENDERS DeutscH WILLIAMS Brooks

P.O. Box 218 DeRensis HoLLanp &

Boston, MA 02112 DracuMan, P.C.

(617) 426-1350 99 Summer Street

Counsel for Respondents Boston, MA 02110-1235

Hot, Sexy and Safer Productions, (617) 951-2300

Inc. and Landolphi Pau F. DeGNAN

SARAH R. WunscH Nancy M. Kirk

AMERICAN Crvit Liperties UNion KIRBY, O’Brien & von ROsSENVINGE

FouNDATION OF MASSACHUSETTS 160 Federal Street

99 Chauncy Street Boston, MA 02110

Boston, MA 02111 (617) 248-3788

(617) 482-3170 Counsel for Respondents

Chelmsford School Committee,

FRANCES S. COHEN

Hitt & Bartow

One International Place

Boston, MA 02110

(617) 428-3000

Counsel for Respondents

Hass and Gilchrist

Blanchard Press, Inc., Boston, Mass — Law Printers (617) 426-6690

Marcks, et al.

wu Of

QUESTIONS PRESENTED FOR REVIEW

1. Whether any constitutional right of parents to direct the

upbringing of their children has been violated by mandatory

attendance at a high school assembly for ninety minutes where

they were exposed to hearing speech they regard as offensive

but were not required to do anything else and where there

is no prospect of further exposure.

2. Whether parents and their children in high school have

a claim for violation of their right to procedural due process

where the school committee has a mandatory, non-discre-

tionary policy requiring without exception that they be given

notice of an AIDS awareness assembly and the opportunity

to opt out of attending but school officials failed to follow that

policy on one occasion.

RULE 29.1 STATEMENT

Respondent Hot, Sexy and Safer Productions, Inc. is a

California corporation with no parent companies or subsidi-

aries. Respondent the Chelmsford School Committee is a

department of the Town of Chelmsford, Massachusetts, which

is a municipal corporation with no parent companies or sub-

sidiaries.

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW

RULE 29.1 STATEMENT...

TABLE OF AUTHORITIES...

STATEMENT OF THE CASE.... Pant

REASONS FOR DENYING THE PETITION

I.

II,

III.

NO IMPORTANT QUESTION OF FEDERAL

LAW IS RAISED BY THE DISMISSAL OF

PLAINTIFFS ALLEGATIONS OF AN_ISO-

LATED, LIMITED EXPOSURE TO SPEECH

THEY CONSIDER OFFENSIVE, WHICH HAS

NO PROSPECT OF REPETITION ...........

THE LOWER COURTS FOLLOWED THIS

COURT'S PRIOR DECISIONS REGARDING

THE RIGHTS OF PARENTS CONCERNING

THEIR CHILDREN’S EDUCATION..........

THE COURT OF APPEALS’ HOLDING THAT

SCHOOL OFFICIALS’ ISOLATED FAILURE

TO FOLLOW THE SCHOOL COMMITTEE'S

MANDATORY OPT-OUT POLICY WAS A

RANDOM, UNAUTHORIZED ACT IS IN COM-

PLETE HARMONY WITH THE STANDARDS

FOR PROCEDURAL DUE PROCESS CLAIMS

ESTABLISHED BY THIS COURT

COONCLUSION .......

iv

TABLE OF AUTHORITIES

Cases:

Page

Bethel School District No. 403 v. Fraser, 478 U.S. 675

Nas 5 SSE eee a OE Ee tn 6

Easter House v. Felder, 910 F.2d 1387 (CA 7 1990),

cert. denied, 498 U.S. 1067 (1991) ............... 10

FCC vy. Pacifica Foundation, 438 U.S. 726 (1978).... 6

Ginsberg v. New York, 390 U.S. 629 (1968)......... 5

Hartwick v. Board of Trustees of Johnson County Com-

munity College, 782 F.Supp. 1507 (D. Kan. 1692). 9

Hudson v. Palmer, 468 U.S. 517 (1984) .... 8, 9, 10, 11

Johnson v. Louisiana Dep't of Agriculture, 18 F.3d 318

(eS Dee eRe Oa ara kor eke pont he arate? 10

Katz v. Klehammer, 902 F.2d 204 (CA 2 1990) ..... 9

Kentucky Dep't of Corrections v. Thompson, 490 U.S.

Ce CI REE a eee

Lee v. Weisman, 5305 U.S. 577 (1992) ..............

Lowe v. Scott, 959 F.2d 323 (CA 1 1992) ..........

Meyer v. Nebraska, 262 U.S. 390 (1923) ............

Monell v. Department of Social Services of City of New

wo » ©

TOUR, Se ee Ge ib 3 otha ee 10

Parratt v. Taylor, 451 U.S. 527 (1981) ........ 8, 9, 10

Pembaur v. City of Cincinnati, 475 U.S. 469 (1986) . 10

Pierce v. Society of Sisters, 268 U.S. 510 (1925).... 5,6

Prince v. Massachusetts, 321 U.S. 158 (1944) ........ 5

Santosky v. Kramer, 455 U.S. 745 (1982) ........... 5

Vernonia School District v. Acton, 515 U.S. __, 115 S.Ct.

EE sas ra do ea ee aerate ee ae 7

Wisconsin v. Yoder, 406 U.S. 205 (1970) .......... 5, 6

Zinermon v. Burch, 494 U.S. 113 (1990) .......... 8, 9

Statutes and Rules:

Oe Or a ee eee eke cl eee eee 10

8 ook Oy: Ro Bare een re ee ante ei Md <3 1]

Pie. te Ge RO (an hea eau hee bnecoawauupees 4

Supreme Court Rule 10.1(c) ..................... 3, 4

In the

Supreme Court of the United States

OcTOBER TERM, 1995

No. 95-1158

RONALD C. BROWN, Er AL.,

PETITIONERS,

v.

HOT, SEXY AND SAFER PRODUCTIONS, INC., er Ac.,

RESPONDENTS.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE FIRST

CIRCUIT

RESPONDENTS’ BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

STATEMENT OF THE CASE

The Petition omits critical, dispositive facts which were

alleged in the Amended Complaint and upon which the

District Court and the Court of Appeals relied. Paramount are

that the AIDS awareness assembly attended by the two

plaintiff! high school students lasted only ninety minutes; that

neither student was required to do anything other than attend

and listen; and that, immediately after the assembly, school

' Petitioners are referred to herein as “plaintiffs”. Respondents,

defendants in the District Court, are referred to herein either as

“defendants” or by their titles or positions, e.g., “the school committee”.

to

officials took steps to insure that their written Policy requiring

an opportunity to opt out of attending would be followed for

any similar programs in the future. [A.C. § 2, 26, 41, 46,

and Exh. D. p. 2].? Plaintiffs’ ninety-six paragraph pleading

made no allegation that the circumstances would be repeated

or that the plaintiff students faced any prospect of systematic

and required continuing exposure to speech such as occurred

at the assembly. [A.C. 9 1-96].

Moreover, the Petition is apparently crafted to urge this

court to review the content of the assembly. Therefore, it care-

fully culls selected passages from the alleged transcript which

was annexed to the Amended Complaint. Plaintiffs, however,

fail to acknowledge the numerous instances in which the per-

former warned the students about the dangers of drug, alcohol

and tobacco use; admonished them against unprotected sexual

activity; provided information about how the AIDS virus is

transmitted; counseled the students to resist peer pressure to

engage in casual sexual activity; stressed the importance of

communication, honesty and trust in personal relationships;

and urged them to talk with their parents. [Pet. at D-6-12,

-28-29, -46, -51-52, -56, -61]. Defendants otherwise rely on

the facts set forth in the opinions of the District Court and

of the Court of Appeals.

The District Court ruled that none of the five substantive

federal law claims in the Amended Complaint alleging “depri-

vation of privacy rights’, “substantive due _ process”,

“procedural due process”, “free exercise of religion” and

“sexual harassment” stated a cause of action. [Pet. at A-5-20].

The District Court deferred entry of judgment and gave plain-

tiffs an opportunity to cure the defects in their Amended Com-

plaint, but they failed to respond. Dismissal followed, as did

an appeal. The Court of Appeals agreed with the District

Court and affirmed. [Pet. at C-1-30]. Plaintiffs did not file

a petition for rehearing or suggestion of rehearing en banc.

* References to the Petition and its Appendix are designated as “[Pet. |".

Since plaintiffs were allowed to proceed on appeal without an Appendix,

references to the Amended Complaint are designated as “[A.C. €]”.

REASONS FOR DENYING THE PETITION

The Petition should be denied because this case raises no

issues of such importance that this Court's intervention is

required or appropriate; because the courts below have cor-

rectly decided the case; and because the Court of Appeals’

decision conflicts neither with any decision by this Court or

with any decisions by other courts of appeals.

I. NO IMPORTANT QUESTION OF FEDERAL LAW IS

RAISED BY THE DISMISSAL OF PLAINTIFFS’ ALLE-

GATIONS OF AN ISOLATED, LIMITED EXPOSURE

TO SPEECH THEY CONSIDER OFFENSIVE, WHICH

HAS NO PROSPECT OF REPETITION.

In formal deference to Supreme Court Rule 10.1(c), plain-

tiffs assert baldly that “this case presents questions of major

importance to parents, students and public school officials

nationally.” [ Pet. at 4]. In fact, it raises no important question

of federal law which needs resolution by this Court. The Peti-

tion pivots on an isolated failure by local school officials to

follow their own mandatory opt-out policy on one occasion.

Plaintiffs complain merely that the students were exposed for

ninety minutes to speech which they and their parents regard

as offensive. There is no prospect of repetition. Although

nearly four years have elapsed since the assembly, plaintiffs

can point to no other cases involving like circumstances, nor

can they assert additional violations of the policy in defen-

dants’ school system or violations of similar policies in any

other school system. Instead, to support their argument plain-

tiffs trot forward only a single newspaper article. [Pet. at 4

n.1]. The District Court and the Court of Appeals each ruled

on the insufficiency of the particular allegations made, or not

made, in the Amended Complaint. [Pet. at A-2, -13, -17, -18:

C-6, -10, -19, -25]. This Court should resist an invitation to

grant the writ solely to decide whether these fact-specific

assertions included by plaintiffs in their pleading survive scru-

tiny under Fed. R. Civ. P. 12(b)(6).°

Il. THE LOWER COURTS FOLLOWED THIS

COURT'S PRIOR DECISIONS REGARDING THE

RIGHTS OF PARENTS CONCERNING THEIR

CHILDREN’S EDUCATION.

In another effort to bring this case within Rule 10.1(c),

plaintiffs assert that the writ should issue because “(t]he judg-

ments of the lower courts in the instant case are in direct con-

flict with prior important rulings of this Court which clearly

established the fundamental nature of the constitutional right

of parents and families to guide and direct the education and

upbringing of their own children.” [Pet. at 4]. Plaintiffs

anchor their claim on two purported deviations from the

holdings of this Court. First, plaintiffs assert, the Court of

Appeals and the District Court ignored decisions by this Court

recognizing a fundamental right of parents to direct the edu-

cation and upbringing of their children. Second, plaintiffs

argue, the lower courts failed to follow other cases decided

by this Court permitting public officials to restrict sexually

explicit speech. In fact, the courts below decided each of these

questions in a manner entirely consistent with this Court’s

prior decisions.

Plaintiffs’ contention that the Court of Appeals failed to

properly acknowledge “the fundamental right of parents to

direct the education and upbringing of their own children,

a right which this court has consistently upheld” [Pet. at 5]

’ The notion that such limited conduct as is alleged here implicates a

national “weakening of the family” which mandates this Court's attention

[Pet. at 4] is simply absurd. See Lee v. Weisman, 505 U.S. 577, 590-91

(1992) (distinguishing school prayer from offensive secular speech and

expressing confidence in the ability of high school students to learn to endure

offensive speech and to counter it). Even if the staging of the mandatory

assembly warranted corrective action, the prompt response of school offi-

cials the very next day supplied a remedy.

ei |

relies on Meyer v. Nebraska, 262 U.S. 390 (1923) and Pierce

v. Society of Sisters, 268 U.S. 510 (1925). Meyer involved a

statute which mandated that parents send their children to

public schools and prohibited enrollment in private schools.

In Pierce, this Court struck down a statute making it a

criminal act to teach any child below eighth grade in any lan-

guage other than English. The Court of Appeals correctly

noted that Meyer and Pierce stand for the proposition that

the state does not have the power to “completely foreclos/e}

the opportunity to choose a different path of education.” [Pet.

at C-13].

The holdings in Meyer and Pierce, however, do not

“encompass| | a fundamental constitutional right to dictate the

curriculum at the public school to which [parents] have

chosen to send their children.” [Pet. at C-13]. As the Court

of Appeals observed:

(ijf all parents had a fundamental constitutional right to

dictate individually what the schools teach their chil-

cren, the schools would be forced to cater to a curric-

ulum for each student whose parents had general moral

disagreement with the school’s choice of subject matter.

We cannot see that the Constitution imposes such a

burden on state educational systems, and accordingly

find that the rights of parents as described by Meyer and

Pierce did not encompass a broad-based right to restrict

the flow of information in public schools.

Id.‘

Nor do cases concerning the free exercise of religion, such

as Wisconsin v. Yoder, 406 U.S. 205 (1970) [Pet. at 8], compel

* Plaintiffs’ collection of decisions by this Court recognizing “the family”

“as a right of first importance” [sic] [Pet. at 6] contains no cases even

remotely suggesting that mere exposure to speech on one occasion implicates

that right. See, e.g., Prince v. Massachusetts, 321 U.S. 158 (1944); Ginsberg

v. New York, 390 U.S. 629 (1968); Santosky v. Kramer, 455 U.S. 745 (1982):

Meyer; Pierce.

6

a different result on this record. The Court of Appeals specifi-

cally found the allegations of the Amended Complaint to lie

outside the narrow ambit delineated in Yoder. Plaintiffs’ “free

exercise claim” is “qualitatively distinguishable from that

alleged in Yoder” [Pet. at C-24], which turned on a long-

established and highly restrictive way of life. Yoder involved

a convincing demonstration by the Amish defendants of:

the sincerity of their religious beliefs, the interrelation-

ship of belief with their mode of life, the vital role that

belief and daily conduct play in the continued survival

of Old Order Amish communities and their religious

organization, and the hazards presented by the State’s

enforcement of a Statute generally valid as to others.

[Pet. at C-25] [quoting Yoder, 406 U.S. at 235]. Plaintiffs,

in contrast and despite three opportunities, have not alleged

that “the one-time compulsory attendance at the Program

threatened their entire way of life.” [Pet. at C-25]. Indeed,

the Amended Complaint is devoid of any details of plaintiffs’

religious beliefs. Furthermore, like Pierce, Yoder upheld the

right of the Amish to remove their children from public

schools. It did not create a parental right to micromanage the

curriculum in the public schools through lawsuits for

damages.

Equally without merit is plaintiffs’ suggestion that Bethel

School District No. 403 v. Fraser, 478 U.S. 675 (1986) and

FCC v. Pacifica Foundation, 438 U.S. 726 (1978), create a

constitutional cause of action for damages against local school

officials. In Fraser and Pacifica, this Court ruled that, in cer-

tain circumstances, public officials may restrict offensive or

vulgar speech. Those cases, as the Court of Appeals found,

“uphold the state’s limited power to regulate or discipline

speech to protect minors from offensive or vulgar speech”.

[Pet. at C-14] [emphasis added]. No decision of this Court,

however, requires public officials to insulate students from

exposure to offensive language or subjects them to a private

7

right of action when they fail to do so. Thus, the Court of

Appeals properly affirmed the District Court’s conclusion that

“these cases ‘do not create a private cause of action against

state officials for exposure’ to patently offensive language.”

[Pet.at C-14].5

On the record before this Court, “parental notification and

consent” [Pet. at 12] are plainly not constitutional require-

ments. Plaintiffs have failed to cite a single decision of this

Court or of any court of appeals holding that school officials

are liable for failure to give prior notice or obtain parental

consent for a one time assembly. The state court authorities

on which plaintiffs rely (referred to as “cases from varying

circuits” [Pet. at 12-14]) similarly do not hold that an “opt-out

opportunity” is constitutionally mandated. These cases

address ongoing curricular requirements or continuing school

programs and hold that, in some circumstances, parental

notification and consent will negate any constitutional objec-

tions. The record here, involving one time attendance at a

single school assembly and no particularized showing of harm

to religious beliefs, does not compel or support the sweeping

extension of this Court’s prior decisions which plaintiffs seek.

Ill. THE COURT OF APPEALS’ HOLDING THAT

SCHOOL OFFICIALS’ ISOLATED FAILURE TO

FOLLOW THE SCHOOL COMMITTEE’S MANDA-

TORY OPT-OUT POLICY WAS A RANDOM,

UNAUTHORIZED ACT IS IN COMPLETE HAR-

MONY WITH THE STANDARDS FOR PROCE-

DURAL DUE PROCESS CLAIMS ESTABLISHED BY

THIS COURT.

The Petition asserts that the lower courts resolved plaintiffs’

procedural due process claim in a way which conflicts with

5 Plaintiffs also cite Vernenia School District v. Acton, 515 U.S. __, 115

S.Ct. 2386 (1995) [Pet. at 10]. Vernonia, however, was decided in a vein

similar to Fraser and Pacifica, and held merely that the state could subject

students to drug testing in certain circumstances. 115 S.Ct. at 2396.

8

Zinermon v. Burch, 494 U.S. 113 (1990). Both courts con-

cluded that school officials’ failure to follow the mandatory

opt-out provision in their own Policy was a “random,

unauthorized act” for which plaintiffs could not recover under

42 U.S.C. § 1983. [Pet. at A-11-14, C-14-20]. See Parratt v.

Taylor, 451 U.S. 527, 543 (1981); Hudson v. Palmer, 468 U.S.

517, 533 (1984). Those rulings were correct.

Initially, plaintiffs concede that the school committee's

Policy concerning the health curriculum is the state law source

of any liberty interest which the plaintiff students might have

in avoiding mere exposure to “lewd and indecent communica-

tions’. [Pet. at 16; A.C. § 46].° See Kentucky Dep't of Correc-

tions v. Thompson, 490 U.S. 454, 461-64 (1989) [citations

omitted]. The Policy provides that “[p]ositive subscription,

with written parental permission, will be a prerequisite.”

[A.C. Exh. D p. 1] [emphasis added]. It vests no discretion

or judgment in school officials and permits no exceptions.

Plaintiffs acknowledge that the Policy’s procedures were

imperative. [Pet. at 16, 19]. Notwithstanding these critical

concessions, plaintiffs argue that the lower courts wrongly

decided their claim because school officials’ violation of the

mandatory Policy on this occasion was “foreseeable”. [Pet. at

16}.

Plaintiffs’ misunderstanding of the Parratt-Hudson doctrine

and of Zinermon is evident from their own characterization

of defendants’ conduct. Rather than arguing that the Policy

delegated any discretion to school officials, plaintiffs assert

that those officials “made a deliberate policy decision to dis-

obey their own fundamental procedures”. [Pet. at 19].’ In

Zinermon, this court held that a procedural due process claim

was not barred by Parratt-Hudson where the deprivation

® Defendants have at all times assumed that the Policy applied to the

assembly solely for the purposes of their motion to dismiss.

7 In fact, as plaintiffs admit, if the Policy had been followed they not

only would have received predeprivation due process but would have been

able to avoid the alleged deprivation altogether. [Pet. at 16).

9

was foreseeable and where it was possible to require predepri-

vation procedures but where, nonetheless, the state had

chosen to give state officials “broad power” and uncircum-

scribed discretion. 494 U.S. at 135-38. Zinermon, however,

also anticipated claims like plaintiffs’, and strongly indicated

that such cases fall within the “random, unauthorized act”

exception. Accordingly, this Court drew an express (and

explanatory) comparison between the circumstances in

Zinermon and situations where state actors were bent upon

effecting the substantive deprivation and would have done so

despite any and all predeprivation safeguards. 494 U.S. at

137. The lower courts construing Zinermon are therefore in

agreement that the Parratt-Hudson bar applies where the

state provides mandatory predeprivation procedures but the

state actor simply ignores them. See Lowe v. Scott, 959 F.2d

323, 343 (CA 1 1992); Hartwick v. Board of Trustees of

Johnson County Community College, 782 F.Supp. 1507, 1514

(D. Kan. 1992) (a state rule directing officials “ ‘to hold a

hearing before violating any rule or regulation would be sense-

less’ ” [quoting Katz v. Klehammer, 902 F.2d 204, 207 n.1

(CA 2 1990)]}).°

Nor do plaintiffs gain any mileage from the fact that the

implicated state actors included policymakers, i.e., school

committee members. [Pet. at 17, 19]. As the District Court

found, plaintiffs made “no allegation that any one of [the

committee members], or all three acting together, were autho-

rized to circumvent a policy adopted and enacted by the com-

mittee as a whole.” [Pet. at A-14]. At least two other courts

of appeals have concluded that even the involvement of a

policymaking official in the state’s failure to follow its own

* Throughout this litigation, plaintiffs have emphasized that the assembly

was not the result of a carefully planned process and therefore was not in

that sense “random”. [Pet. at 17-18]. As both the District Court and the

Court of Appeals pointed out, however, their focus is wrongly placed

because their claim turns on an unpredictable and unforeseeable failure to

follow the required opt-out procedure in the Policy. [Pet. at A-14, C-19].

10

procedures does not take a due process claim outside the

Parratt-Hudson rule. See Easter House v. Felder, 910 F.2d

1387, 1400-05 (CA 7 1990), cert. denied, 498 U.S. 1067

(1991); Johnson v. Louisiana Dep't of Agriculture, 18 F.3d

318, 321-22 (CA 5 1994).

Plaintiffs cite no decisions to the contrary but rely, instead,

on a doctrine of municipal liability under § 1983 which is

simply irrelevant to this case. The Petition asserts that “[e]ven

a solitary action taken by a person in a position of authority

may be deemed the policy of a municipality, giving rise to

municipal liability”. [Pet. at 18] [citing Pembaur v. City of

Cincinnati, 475 U.S. 469, 470 (1986)]. This rule is derived

from Monell v. Department of Social Services of City of New

York, 436 U.S. 658, 694 (1978) and its progeny, and holds

that although a municipality is only liable for civil rights vio-

lations if those violations result from an official municipal

“policy or custom”, the actions of a policy-making employee

can satisfy that standard. The “random, unauthorized act”

exception, however, applies exclusively to procedural due

process claims and is not concerned with who may be found

culpable but, rather, with when culpability attaches. The

school committee does not dispute that if there had been no

policy, or if it had a policy which vested substantial discretion

in school officials, the actions of at least the committee could

bind the municipality under § 1983. The entirely different

question at bar, however, is whether anyone can be held liable

in a § 1983 action where the state has put in place required

predeprivation procedures and there has been an unautho-

rized failure to use those procedures.

The decision of the Court of Appeals does not conflict with

any decision of this Court, either directly or in principle. Nor

does the Petition identify any conflict between the decision

of the Court of Appeals and those of other federal courts.

Instead, the court correctly decided this case under well-

i cacaialameancaaleiaaiaiaiiliatll

established standards.°*’!°

CONCLUSION

For the reasons set forth herein, the Petition for a Writ of

Certiorari should be denied.

Mary L. BoNAuTO

Gay & LESBIAN ADVOCATES

& DEFENDERS

P.O. Box 218

Boston, MA 02112

(617) 426-1350

Counsel for Respondents

Hot, Sexy and Safer Produc-

tions, Inc. and Landolphi

SARAH R. WuNSCH

AMERICAN CiviL LIBERTIES

UNION FOUNDATION OF

MASSACHUSETTS

99 Chauncy Street

Boston, MA 02111

(617) 482-3170

FRANCES S. COHEN

Hitt & BARLOW

One International Place

Boston, MA 02110

(617) 428-3000

JOHN FoskertT

Counsel of Record

DeutscH WILLIAMS BROOKS

DeRensis HOLLAND &

DRACHMAN, P.C.

99 Summer Street

Boston, MA 02110-1235

(617) 951-2300

Pau. F. DEGNAN

Nancy M. Kirk

KirBy, O'BRIEN & VON

ROSENVINGE

160 Federal Street

Boston, MA 02110

(617) 248-3788

Counsel for Respondents

Chelmsford School Com-

mittee, Marcks, et al.

Counsel for Respondents Hass and Gilchrist

® Plaintiffs point to a possible alternative state law source for their liberty

interest, citing M.G.L. c. 71, § 1. [Pet. at 16 n.3]. In pertinent part, that

statute gives a student an absolute right to opt out of “instruction on disease”

if his parent or guardian objects in writing on the grounds that such instruc-

tion “conflicts with his sincerely held religious beliefs”. Like the Policy, it

delegates no discretion or judgment to school officials. Therefore, even if

§ 1 controls rather than the Policy, plaintiffs: procedural due process claim

suffers the same fate.

'© Plaintiffs never contended that the State does not provide an adequate

postdeprivation remedy. [Pet. at A-14, C-20]. See Hudson, 468 U.S. at

534-35.