Amicus Curiae Brief — Board of Education v. National Gay Task Force

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Supreme Court, US.

Office

Fite D

NOV 35 isa

MEXANDES L. STEVAS,

No. 83-2030 liciuieemennen

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983

THE BOARD OF EDUCATION OF

THE CITY OF OKLAHOMA CITY,

STATE OF OKLAHOMA,

Appellant,

-vVs.-

NATIONAL GAY TASK FORCE,

Appellee.

BRIEF OF THE STATE OF OKLAHOMA

AMICUS CURIAE IN SUPPORT

OF THE APPELLANT

MICHAEL C. TURPEN

ATTURNEY GENERAL OF OKLAHOMA

DAVID W. LEE*

ASSISTANT ATTORNEY GENERAL

CHIEF, CRIMINAL AND FEDERAL DIVISIONS

112 State Capitol Building

Oklahoma City, Oklahoma 73105

(405) 521-3921

ATTORNEYS FOR APPELLANT

*Counsel of Record

i

TABLE OF CONTENTS

Page

Interest of the Amicus 2

Summary of Argument 2

Proposition I

HOMOSEXUALITY IS A CRIME IN THE

STATE OF OKLAHOMA; THEREFORE, TO

PERMIT PUBLIC SCHOOL TEACHERS TO

ADVOCATE, ENCOURAGE OR PROMOTE HOMO-

SEXUAL SODOMY WOULD BE TO ALLOW THE

TEACHERS TO ADVOCATE, ENCOURAGE OR

PROMOTE CRIMINAL BEHAVIOR. 4

Proposition II

THE LANGUAGE OF THE STATUTE CLEARLY

DICTATES THAT THE PROSCRIBED CONDUCT

IS THE ADVOCATION, ENCOURAGEMENT OR

PROMOTION OF ACTUAL HOMOSEXUAL SODOMY

WHICH CARRIES A SUBSTANTIAL RISK OF

DETRIMENTALLY AFFECTING THE STUDENT.

NO POLITICAL OR SOCIETAL COMMENTARY

ARE REGULATED BY THIS STATUTE. ll

Proposition III

FOR THE PROTECTION OF ITS YOUTH IN

THE CONTEXT OF THE PUBLIC SCHOOL

SYSTEM, THE STATE MAY REGULATE OB-

JECTIONABLE SPEECH WHICH COULD AD-

VERSELY AFFECT THE WELL BEING OF THE

CHILDREN OR CAUSE THE DISRUPTION OF

THE EDUCATIONAL PROCESS. 15

Conclusion 24

ii

TABLE OF AUTHORITIES

ASES Page

‘2

Arnett v. Kennedy, 416 U.S. 134

(1974) 20

Bookcase, Inc. v. Broderick, 18

N.Y. 2d 71, 271 N.Y.S.2d 947,

218 N.E.2d 668 (1966) 16

Broadrick v. Oklahoma, 413 U.S.

) 19

Brown v. Board of Education, 347

U.S. 483 (1954) 8

Carson v. State, 529 P.2d 499

(Okl.Cr. 1974) 5

Chaplinsky v. New Hampshire, 315

U.S. 568 (1942) 23

Clayton v. State, _P.2d_, 55

5B AJ i786 (5 Sept. 7, 1984) 5

Connick v. Meyers, 461 U.S.

138 (1983) 19,23

CSC v. Letter Carriers, 413 U.S.

) 19,20

Feiner v. New York, 340 U.S.

) ; a

Ginsberg v. New York, 390 U.S.

629 Tise8} 15,16,17

Goss v. Lopez, 419 U.S. 565

T1975)

iii

TABLE OF AUTHORITIES

Page

Johnson v. State, 380 P.2d 284

(Ok1.Cr. 1963) 6

People v. Kahan, 15 N.Y.2d 31l,

258 N.Y.S.2d 391, 206 N.E.2d 333

(1965) 17

Pickening v. Board of Education, 391

U.S. 563 (1968) 19

Rose v. Locke, 423 U.S. 48

(1975) 6

Terminiello v. Chicago, 337 U.S. 1

(1949) 23

Wainwright v. State, 414 U.S. 21

(1973) 6

Warner v. State, 489 P.2d 526

(Ok1.Cr. 1971) 6

STATUTES

Okla. Stat. Ann. tit. 21,

§ 886 (West Supp.1984) 5,6

Okla. Stat. Ann. tit. 70,

§ 6-103.15 (West Supp.1984) 11,14,21,25

iv

OTHER AUTHORITIES

1984 Book of Discipline of the

United Methodist Church

22

No. 83-2030

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983

THE BOARD OF EDUCATION OF

THE CITY OF OKLAHOMA CITY,

STATE OF OKLAHOMA,

Appellant,

-vVsS.-

NATIONAL GAY TASK FORCE,

Appellee.

BRIEF OF THE STATE OF OKLAHOMA

AMICUS CURIAE IN SUPPORT

OF THE APPELLANT

The State of Oklahoma by Michael C.

Turpen, Attorney General, submits its

amicus curiae, brief in support of the

Appellant Oklahoma City Board of Educa-

tion, in the above-entitled cause,

pursuant to Sup.Ct.R. 36.4.

2

INTEREST OF THE AMICUS

The Attorney General has filed this

amicus brief in support of the right of

the legislature of the State of Oklahoma

to enact statutes which allow the remov-

al from the public school system of a

teacher whose advocacy of homosexual

conduct may impair the effeciency of the

school system or undermir.« he relation-

ship between teacher an? student or

cause dissention among the students

themselves.

SUMMARY OF ARGUMENT

The legislature of Oklahoma has

determined that a teacher who advocates

homosexual conduct in a way that adver-

sely affects students or school employe-

es can be discharged for this reason.

Oklahoma requests this Court to uphold

its finding that the activities of such

teachers can interfere with the proper

3

functioning of a school and can cause

dissention among parents and students.

In ~— it is a criminal act to

engage in homosexual conduct. There-

fore, a teacher who advocates such is

advocating disobedience to the law. If

Oklahoma can be required by the federal

judiciary to retain such a teacher, it

could not discharge other teachers who

might advocate non-adherence to other

laws, such as those against possession

or distribution of rarcotics.

A teacher occupies a special role

in society. A teacher communicates to

his or her students not only skills

relating to classroom subjects, but by

example demonstrates moral values as

well. A state should be permitted to

require that a public school teacher

remain neutral with regard to public

advocacy of issues which are controver-

+

sial and which may promote strife within

a school system.

This Court has upheld the govern-

ment's right to impose limitations upon

political activities of their employees

in the interest of maintaining confi-

dence in government. The Court has also

recognized the need to balance the

interests of the employee as a citizen

with those of the government in promot-

ing efficiency and in dispelling dishar-

mony.

PROPOSITION I

HOMOSEXUALITY IS A CRIME IN THE

STATE OF OKLAHOMA; THEREFORE, TO

PERMIT PUBLIC SCHOOL TEACHERS TO

ADVOCATE, ENCOURAGE OR PROMOTE

HOMOSEXUAL SODOMY WOULD BE TO

ALLOW THE TEACHERS TO ADVOCATE,

ENCOURAGE OR PROMOTE CRIMINAL BE-

HAVIOR.

The Constitution of the United

States has reserved to the States the

power to regulate the health, safety,

morals, and general welfare of the

5

public. Within those powers is each

states’ right to regulate conduct which

affects the health, safety, morals or

general welfare of the public. Through

this grant of power, the State of Okla-

homa has declared by legislation that

the commission of “detestable and abomi-

mable” conduct “committed with mankind

er with beast" is a “crime against

mature” and is “punishable by imprison-

ment. . ." Okla. Stat. Ann. tit. 21, §

886 (West Supp.1984).

The Oklahoma Court of Criminal

Appeals has repeatedly confirmed this

statute's constitutional validity

against challenges alleging overbreath

and vagueness. Clayton v. State,

P.2d » 55 O.B.A.J. 1786 (Sept. 7,

1984); Carson v. State, 529 P.2d 499

(Okl.Cr. 1974). The Supreme Court

itself has upheld this type of statute

against attacks on constitutional

grounds. Rose v. Locke, 423 U.S. 48

(1975); Wainwright v. State, 414 U.S. 21

(1973).

Since the commission of homosexual

activity violates Okla. Stat. Ann. tit.

22, § 886, Warner v. State, 489 P.2d 526

(Ok1.Cr. 1971); Johnson v. State, 380

P.2d 284 (Okl. Cr. 1963), therefore, the

advocating, promotion or encouragement

of homosexual conduct is to advocate,

promote or encourage the commission of a

crime.

The Oklahoma legislature has codi-

fied standards which specify the quali-

fications a teacher must hold to be

deemed fit to teach. Legislative control

over a teacher's qualification is predi-

cated upon a rational foundation, that

is, the State's interest in the further-

-

ance of the educationai process of the

children.

The educational process is the

teaching of the basic skills necessary

for the children to function in society.

However, education does not stop with

the teaching of the basic requirements

of reading, writing and arithmetic. The

educational system also has the duty to

teach the children the basic morals and

values of society. The educational

process serves as a fundamental basis of

the socialization of the children.

Public education is a vital part of

the growth of children, teaching the

basic skills as well as the responsibil-

ities that membership in a community

requires. The importance of the educa-

tional process was recognized by the

Supreme Court in 1954 in Brown v. Board

of Education, 347 U.S. 483 # (1954):

"Today, education is rhaps the

most rtant function of state

and aoe vernments. Compulsory

School attendance laws and the

great expenditures for education

both demonstrate our recognition

of the importance of education to

our democratic society. It is

reguired in the performance DE our

most sic public responsibili

ties, even service in the armed

forces. it is the very foundation

Of good citizenship. Today it is

a rinci instrument in

awakening the child to Cultural

values, in preparing him for later

professional training, and in

helping him to adjust normally to

his environment. In these days, it

is doubtful that any child may

reasonably be expected to succeed

in life if he is denied the oppor-

tunity of an education. Such an

Opportunity, where the state has

undertaken to provide it, is a

right which must be made available

to all on equal terms." (Emphasis

added) 347 U.S. at 493.

The State's responsibility to

educate the children of the community

has not been taken lightly for the

simple reason that the responsibility

includes the shaping of young minds. It

9

is that vital responsibility which has

been entrusted in the hands of the

teachers. Teachers are the backbone of

the educational system.

Taking on the responsibility of

educating the young, a teacher has by

choice, placed himself or herself in a

dominant and influential relationship

with the children he or she is instruct-

ing. A teacher is more than simply a

person which recites information to a

classroom of students. A teacher has a

substantial relationship with each child

and holds many different positions in

the eyer of children. As the dissent in

Goss v. Lopez, 419 U.S. 565 (1975)

observed:

"(The normal teacher-student

relationship] is an ongoing rela-

tionship, one in which the teacher

must occupy many roles - educator,

adviser, friend, and, at times,

parent-substitute.” 419 U.S. at

594.

10

Standing in the shoes of such

important and influential position, a

teacher is @ predominant role model for

his students and as such, is, of course

expected to publicly serve as an exem-

plar of those values and skills neces-

sary to é*taining civil order by up-

holding the laws of the state.

Again, homosexual activity is a

crime. Therefore, a teacher who advo-

cates homosexual activity is denigrating

the laws of the state and the morals and

values of the community. Further, such

advocacy conveys a message to the stu-

dents by the teacher that it is accept-

able to disobey any criminal law which

the student believes is wrong or unjust.

The teacher is teaching civil disobedi-

ence. In the interest of educating the

young, the most vital responsibility

that this State carries, the State

11

cannot allow the “advocating, encourag-

ing, Or promoting” of this conduct. To

do so would be to allow the teacher to

advocate, encourage, Or promote criminal

behavior.

PROPOSITION II

THE LANGUAGE OF THE STATUTE CLEAR-

LY DICTATES THAT THE PROSCRIBED

CONDUCT IS THE ADVOCACY, ENCOUR-

AGEMENT OR PROMOTION OF ACTUAL

HOMOSEXUAL SODOMY WHICH! CARKIES A

SUBSTANTIAL RISK OF DETKIMENTALLY

AFFECTING THE STUDENT.

The pertinent language of the

challenged statute, Okla. Stat. Ann.

tit. 70, § 6-103.15 (West Supp.1984),

reads as follows:

"Public homosexual conduct means

» Soliciting, imposing,

or bb as public

Or private homosexual activity in

a manner that creates a substan-

tial risk that such conduct will

come to the attention of school

children or school employees;

B. In addition to any ground set

forth in Section 6-103 of Title 70

of the Oklahoma Statutes, a teach-

12

er, student teacher or a teachers'

aide may be refused employment, or

reemployment, dismissed, or sus-

pended after a finding that the

teacher or teachers’ aide has:

1. Engaged in public homosexual

conduct or activity; and

2. Has been rendered unfit, be-

cause of such conduct or activity,

to hold a position as a teacher,

student teacher or teachers’

aide.” (Emphasis added).

The Court of Appeals for the Tenth

Circuit in the present case held that

"advocating, encouraging or promoting"

homosexual activity was overbroad and

therefore, serverable from the remainder

of the statute which the court held to

be constitutional. 729 F.2d at 1274.

The Court made the following obser-

vation in respect to the challenged

statute:

". .« « The statute does not re-

quire that the teacher's public

utterance occur in the classroom.

Any public statement that would

come to the attention of school

children, their parents, or school

employees that might lead someone

13

to object to the teacher's social

and political views would seem to

justify a finding that the state-

ment ‘may adversely affect' stu-

dents or school employees." Id.

at 1275.

However, the statute merely regu-

lates the advocacy, encouragement or

promotion of actual homosexual sodomy

when the advocacy “creates a substantial

risk that such conduct will come to the

attention of the school children or

school employees."

Purthermore, the below listed nexus

factors which aid school boards in the

requisite determination of fitness of

the teacher after such conduct has been

performed, insure that such conduct has,

in fact, had an adverse affect on the

ability and qualifications of a teacher

to perform his or her duties.

"C. The following factors shall

be considered in making the deter-

mination whether the teacher,

student teacher or teachers' aide

has been rendered unfit for his

position:

14

1. The likelihood that the activ-

ity or conduct may adversely

affect students or school employe-

es;

2. The proximity in time or place

of the activity or conduct to the

teacher's, student teacher's or

teachers’ aide's official duties;

3. Any extenuating or aggravating

circumstances; and

4. Whether the conduct or activ-

ity is of a repeated or continuing

nature which tends to encourage or

dispose school children toward

Similar conduct or activity."

Okla. Stat. Amn. tit. 70, §

6-103.15.

These factors impose a narrowing

construction upon the statute and insure

that the statute be interpreted within

the scope of these well defined nexus

factors. The nexus factors permit

school boards to make individual deter-

minations as to whether the teacher's

activity adversely affects the school

system. Therefore, the statute when

construed as a whole, proscribes only

15

that conduct which, if performed, is

detrimental to the educational progres-

sion of the students.

PROPOSITION III

FOR THE PROTECTION OF ITS YOUTH IN

THE CONTEXT OF THE PUBLIC SCHOOL

SYSTEM, THE STATE MAY REGULATE OB-

JECTIONABLE SPEECH WHICH COULD AD-

VERSELY AFFECT THE WELL BEING OF

THE CHILDREN OR CAUSE THE DISRUP-

TION OF THE EDUCATIONAL PROCESS.

In Ginsberg v. New York, 390 U.S.

629 (1968), this Court upheld the con-

viction of the defendant for selling

constitutionally protected pornographic

material to a sixteen-year-old boy in

violation of a state statute. The Court

reasoned that a state may exercise its

police powers to protect children from

objectionable material.

""(Mjaterial which is protected

for distribution to adults is not

necessarily constitutionally pro-

tected from restriction upon its

dissemination to children .. .

(T)he concept of obscenity or of

unprotected matter may vary ac-

cording to the group to whom the

16

questionable material is directed

or from whom it is quarantined.

n

quoting

iat AR LP 218 WN. E.2d 668

(1966). (Emphas’s added).

..1@ same basic premise outlined in

Ginsberg exists in the present case.

This State enacted legislation to pro-

tect the well-being of the children. As

in Ginsberg, the State's interest is

two-fold. First, the parents of the

children have the right to raise their

children as they see fit, provided, of

course, that the parents do so in the

best interest of the children and

society:

"The legislature could properly

conclude that parents and others,

teachers for example, who have

this primary responsibility for

17

children's well-being are entitled

to the support of laws designed to

aid discharge of that responsibil-

ity.” Id., 390 U.S. at 639%.

Second, the State has its own

interest in protecting the well-being of

the children:

"While the supervision of child-

ren's reading may best be left to

their parents, the knowledge that

parental control or guidance can-

not always be provided = ari

society's transcendent interest in

protecting the welfare of children

justify reasonable regulation of

the sale of material to them.'*

Id., 390 U.S. at 640, quoting

Fie te AN SE

(1965).

The State, through the challenyed stat-

ute, is regulating the conduct of

teachers which could have an adverse

affect upon the students. The-efore, the

State submits that the rationale of

Ginsberg must be applied to the present

action.

Once the Ginsberg special standard

is applied, the State need show only a

18

rational relationship to a legitimate

governmental goal. Id., 390 U.S. at

641-643. The Oklahoma Legislature has

made a finding that teachers who advo-

cate, encourage or promote criminal

homosexual sodomy could impair the mora]

and value development of the children.

The teachers, by their conduct, are

encouraging their students to violate

laws which the students may believe are

unjust. Therefore, in view of the

State's interest in the protection of

the development of children, the conduct

which the challenged statute proscribes

cannot be deemed constitutionally pro-

tected speech.

The Supreme Court has repeatedly

recognized that the State's interests as

an employer “‘differ significantly from

those it possesses in connectior .ith

the regulation of the speech of the

19

citizenry in general.'" Connick v.

Meyers, 461 U.S. 138, 140 (1983); Pick-

ening v. Board of Education, 391 U.S.

563, 568 (1968). The problem is one of

balancing the interests of the employee

as a citizen in commenting upon matters

of public concern and the interest of

the State, as an employer, "‘'in promot-

ing the efficiency of the public ser-

vices it performs through its employe-

es.'" Connick, supra, 461 U.S. at 140.

In CSC v. Letter Carriers, 413 U.S.

548 (1973), this Court upheld the Hatch

Act provisions which prohibited federal

employees trom taking an active part in

political campaigns. In Broadrick

v. Oklahoma, 413 U.S. 601 (1973), a

statute which prohibited state employees

from “tak[ing] part in the management or

affairs of any political party or in any

political campaign, except to exercise

20

his right, as a citizen privately to

expres: his opinion and to cast his

vote." Im CSC in particular, the Court

recognized that forbidding partisan

political activity would reduce the

hazards to fair and effective government

and that:

". « »« it is not only important

that the Government and its em-

ployees in fact avoid practising

political justice, but it is also

critical that they appear to the

public to be avoiding it, if con-

fidence in the system of repre-

sentative Government is not to be

eroded to a disastrous degree.”

413 U.S. at 565.

In the public school system it is

also important that a teacher maintain

political neutrality and be viewed by

the public and students alike as a

dispenser of knowledge, not an advocate

of social causes.

In Arnett v. Kennedy, 416 U.S. 134,

168 (1974), it was observed that the

government, as an employer, must have

21

wide discretion and control over the

management of its personnel and that

"[plrolonged retention of a disruptive

* + « @mployee can adversely affect dis-

Cipline and morale in the work place,

foster disharmony, and ultimately impair

the efficiency of an office or agency."

In Oklahoma the democratically

elected state legislature has made a

judgment that teachers who advocate

homosexual activity may be considered to

be unfit if, based upon four factors set

forth in Okla. Stat. Ann. tit. 70, §

6-103.15(C), the advocacy may advergely

affect students or school employees. It

can be assumed that many -parents would

object to their child being taught by a

teacher who advocates conduct which is

mot only against the law but which is

the subject of widespread societal

disapproval and is against tenets of

22

certain religious teaching as wei1.+

It, therefore, must be conceded

that such an activity undertaken in the

community by a teacher would be extreme-

ly controversial and disruptive of the.

educational process.

The State contends that the legis-

lative judgment of Oklahoma in this

regard should not be set aside by the

federal judiciary. Public schools which

desire to remove “gay rights" activists

from teaching young children should not

be prevented from doing so by the fed-

eral court system. This Court has

lin I Corinthians 6:9-10 and Levit-

icus 18:22 and 20:13, homosexual activ-

ity is strongly condemned. The 1984

Book of Discipline of the United Metho-

dist Church, p. 184, states that the

practice of homosexuality is incompat-

ible with Christian teaching, and avow-

ed practicing homosexuals are not to be

accepted, Or appointed tc serve in the

United Methodist Church.