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

i> FILED

No. 83-2030 DEC g4 1994

ALEXANDER L. STEVAS,

Oftice-Supreme Court, US. |

IN THE CLERK

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1984

THE BOARD OF EDUCATION OF THE CITY

OF OKLAHOMA CITY,

STATE OF OKLAHOMA,

Appellant,

Vv.

THE NATIONAL GAY TASK FORCE,

Appellee,

ON APPEAL FROM THE UNITED STATES

COURT OF APPEALS FOR THE TENTH CIRCUIT

BRIEF AMICUS CURIAE OF THE CENTER FOR

CONSTITUTIONAL RIGHTS, THE NATIONAL

LAWYERS GUILD, AND GAY FRIENDS &

NEIGHBORS, INC. IN SUPPORT OF APPELLEE

NATIONAL GAY TASK FORCE

RHONDA COPELON ANNE E. SIMON

Volunteer (Counsel of Record)

Staff Attorney SARAH WUNSCH

for The Center for CENTER FOR

Constitutional CONSTITUTIONAL

Rights RIGHTS

C LAW SCHOOL 853 Broadway

AT QUEENS COLLEGE 14th Floor

200-01 42nd Avenue New York, N.Y. 10003

Bayside, N.Y. 11361 (212) 674-3303

(718) 357-7584

Attorneys for Amici Curiae

December 24, 1984

4 pe

TABLE OF CONTENTS

I. EFFORTS TO SUPPRESS TEACHERS’

RIGHTS OF EXPRESSION HAVE

A LONG AND DISCREDITED HISTORY...

A. Anti-Slavery.........--ee06:

B. McCarthyism..........esee00:

II. OKLA. STAT. TIT.70,§6-103.15

IS A CONTENT-BASED RESTRICTION

ON SPEECH IN VIOLATION OF THE

FIRST AMENDMENT AND THE EQUAL

PROTECTION CLAUSE OF THE

III. OKLA. STAT. TIT.70,§6-103.15

IS IMPERMISSIBLY VAGUE AND

A. The Statute Permits the

Presumption that Mere Know-

ye po a Teacher's Advocacy

ay Rights Is Equivalent

to Harm to the Operation of

the School System..............

B. The speeete erates

a oy ny oe BR ill Engage-

ment by Teachers as Citizens

in a Variety of Public Advocacy

COMSEMES. ccccccccccesecccesesecs

-ii-

C. The Statute Impermissibly

Chills Teachers’ gement in

Scholarly Pursuits Essential

to Their Educational Mission.......

IV. THE STATUTE'S OFFICIAL CONDEM-

NATION OF PARTICULAR BELIEFS,

FAR FROM FURTHERING LEGITIMATE

GOALS, UNDERMINES IMPORTANT

CONSTITUTIONAL AND EDUCATIONAL

CONCLUSION... 2. cece cece cece eeereeeesses

iii

TABLE OF CASES AND AUTHORITIES

Cases Page

Adler v. Bd. of Educ. of City

of New York

ee ae EROS GD cece cicicccccces 53

Baggett v. Bullitt

35 ST MED. ccc cccccceces passim

Board of Educ., Island Trees, v.

ico

EE 32, 47

Brandenburg v. Ohio

395 U.S. Eri EEE 25

Communist Party of U.S. v.

Subversive Activities Control Bd.

367 U.S. | (1961) *esreoweeeeeeee#e8e8e#e#eee 26

Connick v. wyers

_ U.5. . Ct. 1684 (1983)..30, 34

Cr v. Bd. of Public Instruction

368 DE Me EEUUERScccccccoccccce 43

Crandall v. State of Connecticut

onn. 4 14

Fricke v. Lynch

491 F.Supp. 381 (D.R.1I. 1980)..... 56

G.A.A. v. Bd. of Regents

635 P.2d 1116 (Okla. 1981)........ 56

Gay Alliance of Students v.

tthews

544 F.2d 162 (4th Cir. 1976)...... 56

iv

Gay Lib v. Univ. of Missouri

st3 F.2d0 848 (8th Cir. 1977),

cert. denied sub nom.

Gay Student Services v. Texas A.&M.

Univ.

737 F.2d 1317 (5th Cir. 1984)....56

Grayned v. Rockford

Peccccccccccces 28

Griswold v. Connecticut

Healy v. James

Cir. I97Z)...... 31

M.P. v. S.P., 169 N.J. Super 425,

LOG A.Zd IZ56 (1979)... .. ee eeees 60

NAACP v. Alabama

Nat. Gay Task Force v. Bd. of Educ.

of the City of Oklahoma 4551

729 F.2d 1570 (10th Cir. 4)...passim

New York Times v. Sullivan

mepebenréseoesees 26

Palmore v. Sidoti

_ Wee 5 104 S$.ct. 1879 (1984)..60

Pickering v. Bd. of Ed. of

ati H.S.Dist.

gg. EE 34, 43

Police Dept. of the City of Chicago

v. Mosle

oBe 9S CUBIS). ccccceccccccce 26, 27

Schneider v. State

° ° 9) oeeeeeeeeeeeee 29

Shelton v. Tucker

PR eee ee passim

Slochower v. Bd. of Ed. of City of

N.Y.

Be ae. SSSR. CASSSD Fi dawn cdevices 17

Tinker v. Des Moines Independent

om. Sch, st.

4 = eg, ee ee 29, 30,

West Virginia State Bd. of Ed. v.

~ Barnette

ie ee ORR Ol. cueene 61, 62

Wieman v. Updegraff

DD i eats oS buh be a Ge

a7. Sa

Constitution and Statutes

See GOMORc, GRR « Badwdic cnacccsar passim

SEO BSG. a vccccccccsvcveccccsseees 10

Okla. Stat. tit. 70 §1-116 (1982).54

vi

Okla. Stat. tit. 70 §6-103.15..... passim

Okla. Stat. tit. 70 §6-103.3

FPO TT TTTTETTTLTTiTy 40

1820 S.C. Statutes at Large VII,

460 (Law of 1820, §VI).......06.- 10

Bae ee. 4006. BF, Wireocordeceve 10

1835-36 Va. Acts §44......cccceees 11

Other Authorities

Q. Bell, Virginia Woolf (1972)....50

Carlsen, American Literature

(McGraw-Hill Literature Ser les)

CRGSEP so cccceeeesoeeeweewe ees cece 50

Carlsen, British and Western Liter-

ature (McGraw-Hill Literature

ER RE oe ae 50

H. Carpenter, W. H. Auden (1981)..50

D. Caute, The Great Fear (1978)...passim

Countryman, Washington in The

States and subversion 282

(W. Gellhorn ed. 1952)........006. 18

C. ce (6 & F. Rice, English Liter-

ature (Ginn Literature Series) -

L. DeSalvo, Lighting the Cave: The

Relationshi Sotccen Vita

Sackville-west and Virginia Woolf,

gns

2 Dictiona of American Biograph

(A. Johnson & D. Malone 2d -

1958) wc cccccccccccccccccccscceeces 14

vii

K. Dover, Greek Homosexuality

(197G caasésue 4nd abebee bbb C66 6c 49

J. Early, Adventures in American

Literature, Classic Edition

(Adventures in Literature Series)

(19GB). cccccccccccccccccccccscccce 50

L. Edel, Bloomsbury: A House of

LAame (iGo ieascdeseianedsbasesecce 54

D. Faber, The Life of Lorena

Hickock, E. R.*s Friend (1980)....49

D. Farnan, Auden in Love (1984)...50

Gellhorn, A General View in The

States and Subversion 375

(W. Gellhorn ed. 1952)............ 16

Harsha, Illinois in The States and

Subversion 54 (W. Gellhorn ed.

BGS odie wed etcovees dbkubibaddaaene 18

(2GUEOL LAL. cote ete alteobat celebs 54

A. Hodges, Alan Turing: The Enigme

(19GBS) occcccccesecves a TEITTTTTTT

R. Hofstadter & W. Metzger, The

Development of Academic Freedom in

the ve Teese ees eet vescenad etc o. ane

13, 15

P. Lazarsfeld & W. Thielens, Jr.,

The Academic Mind (1958).......... Bae we

53

viii

R. Martin, The Homosexual Tradition

in American Poetry (1979)......... G9, 51

H. McFarland, Psychological Theo

and Educational Feactins (1971)... 52

V. Navasky, Naming Names (1981)...17

R. Nye, Fettered Freedom: Civil

Liberties and the Slave

Controversy 1530-1500 11963) cccces passim

O'Brien, "The Thing Not Named":

Willa Cather as a P-sbian Writer,

O Signs 576 (1984).... 0... 49

Okla. City Times, Jan.26, 1978....58

T. om et Racially Separate or

Together? (1971). 0... cece cece ee eee 59

Plato, The §S osium (W. Hamilton

Ss. Stee eacendéccetéeces 49

Prendergast, Maryland in The States

and Subversion 140 (W. Gellhorn ed.

S9GES oaen ©is cadboemerusd evvnc caus 18

Richmond Enquirer, Aug. 29, 1856..10

P. Robinson, Willa: The Life of

Willa Cather (1983)............... 50

W. S. Sevese » The Controversy Over

The Distribution of Abolition

terature -1860 (1938)....... 7 10,

1

Schmidt, Visions of Violence:

Rimbaud and Verlaine in

Homosexualities and French

Literature 228 (G. Stambolian &

De ee Ge Bee e céocecccccecece 49

ix

C. Summers, E. M. Forster (1983)..50

C. Willie & S. Greenblatt,

Community Politics and Educational

one UIN1)..--.-- ——e 59, 60

P. ee SR Walt Whitman: The Making

of the Poet (1984)... . 0... ee ee eee

whe

INTEREST OF AMICI™

THE CENTER FOR CONSTITUTIONAL RIGHTS

(CCR) is a non-profit legal and educa-

tional corporation founded in 1966,

dedicated to advancing and protecting the

rights and liberties guaranteed by the

Bill of Rights. CCR has been involved in

numerous cases challenging interference

with first amendment rights, particularly

where the government has sought to

restrict the expression of unpopular

opinions and ideas. See, e.g., United

States v. United States District Court,

407 U.S. 297 (1972) (internal security

wiretaps subject to warrant procedures) ;

People v. Uplinger, 460 N.Y.S.2d 514

(N.Y. 1983), cert. dismissed as improvi-

dently granted, U.S. , 104 S.Ct. 2332

*

The parties have given written

consent to the filing of this brief

amicus curiae; letters of consent have

been filed with the Clerk of this Court.

afie

(1984) (invalidating state law punishing

y-— Public speech by gay people),

THE NATIONAL LAWYERS GUILD (NLG) is

an organization of nearly 8,000 lawyers,

law teachers, law students and legal

workers. Since its inception in 1937,

the NLG has worked consistently on behalf

of groups seeking equality and social

justice. Some NLG members are teachers

who take part in public discussion and

efforts to end discrimination against gay

men and lesbians. They are harmed by

statutes such as Okla. Stat. tit 70

§ 6-103.15 which threaten them with job

loss for exercising their first amendment

rights of speech and association.

GAY FRIENDS AND NEIGHBORS, INC.

(GFN) is an organization of approximately

400 gay men and lesbians in the New York

area, including teachers in both public

and private schools. GFN is representa-

tive of many grassroots organizations

_~

throughout the country that provide the

local lesbian and gay community with a

place to discuss topics of common

interest. Through outreach programs to

the larger community it has established

lesbians and gay men as a part of the

diverse neighborhood in which its members

live. These activities are impermissibly

threatened by government restrictions

which cut off communication about the

rights of gay people and the realities of

being gay.

SUMMARY OF ARGUMENT

The test of freedom of expression is

the ability of this nation to tolerate

startling ideas and stand up against

campaigns of intolerance. Our history is

a checkered one: early critics of

government were punished under the Alien

ale

and Sedition Laws, later ones, by the

anti-Communist or anti-"subversive” laws

and purges of the McCarthy period.

Expression of heretical ideas was banned

during the abolitionist period and again

during the fundamentalist upsurge of the

late nineteenth century. On the other

hand, largely due to the timely inter-

vention of the federal judiciary and this

Court, some efforts to quash dissenters,

such as opponents of the Vietnam War,

have been cut short by vigorous enforce-

ment of the first amendment.

School teachers have often been

prime targets in campaigns against

heterodoxy. But efforts--most particu-

larly content-based ones--to deny teach-

ers their rights as citizens and scholars

to participate in advocacy and inquiry

outside the school, as well as to engage

in responsive discussion within, are

a3e

deadly to the central goals of education

at every level.

It is the special task of teachers

to foster those habits of

-mindedness and critical inquiry

ich alone make for responsible

citizens, who, in turn, make

possible an enlightened and

effective lic opinion. Teachers

must fulfill their function by

precept and practice, by the very

atmosphere which they generate; they

must be exemplars of open-mindedness

and free inquiry. They cannot carry

out their noble task if the

conditions for the practice of a

responsible and critical mind are

denied to them.

Wieman v. Updegraff, 344 U.S. 183, 196-97

(1952) (Frankfurter, J. concurring).

The Oklahoma statute which punishes

and stigmatizes teachers for speaking on

issues of homosexuality and gay rights is

an old problem in new guise. It singles

out non-condemnatory speech about homo-

sexuality for proscription, although the

issues such speech addresses are of great

public importance. This prohibition does

not implement any proper neutral rule of

discipline in public or school

=e

employment; rather, it acts only as a

means to suppress a particular point of

view.

The statute's negative impact on

first amendment rights is effected both

through singling out a special disfavored

content and by relying on an impermis-

sibly vague, as well as overbroad,

statutory structure. The teacher is put

at risk of losing her/his job simply

because someone else has reported to the

authorities that she/he said certain

things. This triggering mechanism, in

combination with the yague and open-ended

nature of the disfavored speech,

encourages reporting to school

authorities of what teachers say off the

job, in their capacity as citizens. The

sweep of the statute's substantive

prohibition is so broad as to encompass

peaceful advocacy of civil rights and

changes in the law, at the core of first

_™

amendment protections. Because of its

encouragement of informing, the statute

even reaches to private discussions of

public issues.

The statute clearly puts teachers at

risk in a variety of settings. Seeking

to avoid trouble resulting from the

expression of their views, teachers will

choose not to express them. The chill

thus imposed by the statute also extends

to the scholarly and professional activ-

ities of teachers, since it penalizes

utterances in any context that might

reflect the forbidden views on

homosexuality.

None of the adverse consequences of

the statute has any legitimate justifica-

tion. On the contrary, the statute

impoverishes the educational experience

of children by silencing and intimidating

their teachers. Instead of transmitting

the importance of our constitutional

heritage, it denies and contradicts the

fundamental constitutional and social

values of open discussion, tolerance, and

advocacy of change.

ARGUMENT

I. EFFORTS TO SUPPRESS TEACHERS' RI. HTS

OF EXPRESSION HAVE A LONG AND

DISCREDITED HISTORY

The various campaigns to stifle

thought and protect orthodoxy in the U.S.

shared certain characteristics. They

have involved ideas which quest.on the

status quo and were experienced as deeply

threatening to personal or political

security or the hegemony of a particular

moral code. They have sometimes emerged

when the hated ideas had achieved the

status of an issue of public importance.

Sometimes they have served as a device to

delegitimate advocacy on a broad range of

social issues. Each campaign that has

oe

not been quickly undercut by the courts

silenced educators, distorted education

and touched off ideological witch-hunts

and vilifications. Each, in turn, has

been repudiated when the dangers to

freedom were finally recognized.

A. Anti-Slavery

The South responded to a series of

slave insurrections in the 1830s by broad

and sweeping attempts to control anything

which might foster insurrections.

A

prime candidate for such control was

education, both of Blacks and whites. At

root, however, this campaign was not

directed simply at preventing uprisings,

lror treatments of this period, see

Nye, Fettered Freedom: Civil Liberties

and the Slavery Controversy 1830-1860

; W. Savage, er

the Distribution of Abolition Literature

+ mMorstaacter an .

= ;

wien, noe The Develo t of Academic

Free in the U.S., TSICbT (1955).

-10-

but at teaching in "(e]very school and

college in the South. . . that Slave

Society is the common, natural, rightful,

and normal state of society. .. wn To

this end, it was deemed necessary to

forestall any mention or discussion of

even the mildest criticism of slavery by

teachers, in schools, or in textbooks.

Statutes were passed forbidding

slaves or free Blacks to teach, the

distribution of anti-slavery literature, *

or the questioning of a slave owner's

Richmond Enquirer, Aug. 29, 1856;

cited in Nye, supra n. 1, at 90.

3z.g., 1832 Va. Acts § 1,20; Revised

Statutes of North Carolina, 1836-37, p.

: cited in Savage, supra n. l,

at 5 n. 25).

4Eog., 1832 Va. Acts, § 7, 21;

Statutes at Large of South Carolina, VII,

460 (Law of 1870 Section Vl) (cited in

Savage, supra n. 2 at 6 n. 28); on the

statutory attempts to circumvent the

intent of the federal Mails Law of 1836,

see Nye, supra n. 1, at 80-81.

-ll-

property right in his slaves. Enforce-

ment of these controls on the content and

manner of expression was relatively

simple in the lower schools "since these

schools were closely controlled by the

community they served." Nye, supra,

n. 1, at 90. Control in colleges

required greater vigilance, but "by 1840

a rigorous regimentation of

opinion [existed] concerning slavery and

topics related to it." Id. at 91.° A

University of Virginia professor noted in

1857 that "a funeral pall" had been drawn

over rational discussion; critical views

that had previously been openly expressed

E.g., 1835-36 Va. Acts § 44.

Sr g., Judge Nathan Green of

Cumberland University (Tennessee), a

slave owner, expressed antislavery views

in his law class and was attacked as "a

dangerous man to the South, not fit to

95 te - saa youth.” Nye, supra

mn. 1, at .

-12-

were now withheld or whispered in

confidence. Hofstadter and Metzger, supra

n. 1, at 256.’

Savage Observes that the pall

extended to written expressions as well.

The South attempted to close every

avenue through which objectionable

literature might reach it. There

was little fear of these books

reaching slaves. ... [Tjhe

real fear was that [anti-slavery]

doctrines would circulatg among

the whites in the South.

Savage, supra n. 1, at 101.

In the North, the effort to forbid

antislavery speech lost ground after

tt is interesting to note, however,

that even given the intensity of the

campaign to silence anti-slavery speech,

high state courts were sometimes

reluctant to prohibit mere speech without

direct incitement. Savage, supra n. l,

at 101-02, 113-17.

8) iterature committees condemned

leading texts in history and philosophy

and The Southern Educational Journal

announced a series of "revise

textbooks. Savage, supra n. l, at

118-19; Nye, supra n. 1, at 96-97.

-13-

1840. Nonetheless, a distinction was

usually made between those who "condemned

slavery abstractly on moral grounds or

proposed gradual or ultimate emancip:-

tion, and the ‘immediate’ abolitionists”

Hofstadter and Metzger, supra n.1l, at

259. A number of student abolitionist

societies were suppressed and some

anti-slavery faculty were pressed to

resign, Nye, supra n.1, at 107-13, in

order “to keep order, to avoid the

agitation of an unpopular question." Id.

at 113.7

Special hostility was shown to those

who sought to educate Blacks. In 1833,

thus, when a faculty and student

abolitionist discussion group at Lane

Seminary (Cincinnati, Ohio) began working

with local Blacks to organize clubs and

schools, the Board outlawed discussions

which might “excite party animosities,"

forbade meetings, and outlawed public

addresses. Forty students and two

professors withdrew in protest. Nye,

supra n.l, at 110-12.

slibe

Prudence Crandall admitted a Black girl

to her girls’ school, and announced her

intention of opening a school exclusively

for Black girls. Her home was attacked

and she narrowly escaped physical vio-

lence. The legislature passed a law

designed to prevent the opening of the

school, by requiring that non-inhabitant

Blacks could be admitted to Connecticut

schools only by permission of the local

selectmen. Crandall was arrested and

imprisoned. 2 Dictionary of American

Biography 503-04 (A. Johnson & D. Malone,

2d ed. 1958) She was convicted, but the

conviction was reversed on appeal for

insufficiency of the indictment.

Crandall v. State of Connecticut, 10

Conn. 339 (1834).

This brief sketch indicates how fear

of the effects of anti-slavery ideas led

to attempts to control the range of their

impact in Northern schools and to a broad

-15-

and sweeping attempt to control any

contact with them in Southern schools.

It led ultimately to a complete

misunderstanding of the plantation

system, and fostered intolerance

of frank discussion of other

problems connected with

pena EE By 1855 the South had

lest all sense of proportion in

regard to slavery, ing claims

for the system that few

intelligent slaveholders thirty

years earlier would have accepted

as reasonable. Because Southern

teachers and scholars had been

denied their function for thirty

years, the South could neither

understand nor tolerate self

criticism.

Nye, supra n. 1, at 100-01.

Not only the South suffered the

loss. “The suppression of academic

discussion was a token of a more general

and more important suppression of thought

and criticism that in the end took the

entire subject [of abolition] out of the

sphere of discussion and inte the realm

of force." Hofstadter and Metzger, supra

n. 1, at 261.

-16-

B. McCarthyism

In the 1940s and 1950s, the intense

scrutiny of beliefs produced by "“an-

ti-subversive" campaigns affected people

in all walks of life, 10 but "nowhere

[was] concern about subversive activities

. more steadily manifest than in the

educational process." Gellhorn, A

General View, in The States and Subver-

sion 375 (W. Gellhorn, ed. 1952) (herein-

after, "States and Subversion"). It was

expressed in legislation in over 30

states requiring some form of "loyalty"

ll

oath by teachers;°*state legislative

10, partial listing of occupations

affected was given by Justice Black in

his concurrence in Speiser v. Randall,

357 U.S. 513, 531 ¢ ,

11p, Caute, The Great Fear 404

(1978). The uncometteatieaatity of these

oaths was established in tt v.

Bullitt, 377 U.S. 360 (1 , more than a

decade after they had been instituted.

-17-

12

committees”; and in actions by local

school authorities. +?

Official condemnation and suspicion

of “subversion” called forth a vast array

of informants, both amateur and profes-

sional, and engendered efforts to encour-

age or coerce reporting on other people

in a wide variety of circumstances. 4

1 Detailed histories of several such

investigations are set forth in States

and Subversion, supra p. 16.

13the New York City device of

dismissing teachers who had invoked the

fifth amendment in response to questions

about their political views and

associations was held unconstitutional in

Slochower v. Bd. of Ed. of City of W.Y.,

350 U.S. S51 (1936), six years after New

York began fir teachers on that basis.

Caute, supra n. 11, at 434. Slochower

did not —"héuever, result in the

reinstatement of teachers fired for

invoking the wee + Id. at 439. Not

until 1973 were pension rights restored

to some of the teachers who had been

fired. Id. at 442.

14) Navasky, Naming Names, (1981),

provides an in-depth s ° e

destructive effects of the systen of

(Footnote Continued)

-18-

Professional informants were crucial to a

number of investigations; many of them

were later discredited. See Caute, supra

n. 11, at 111-38; Harsha, Illinois in

States and Subversion, supra p. 16, at

90-91 (role of professionals in

investigation of University of Chicago

and Roosevelt College); Countryman,

Washington, in id. at 299-301 (role of

professionals in investigation of

University of Washington). No less

important, and even more unpredictable,

were private individuals who made occa-

sional complaints about alleged subver-

sive activities. Many of them were

“likely to be trivial and irrelevant."

Prendergast, Maryland, in id. at 168. +?

(Footnote Continued)

reporting about the alleged ideas and

associations of others.

15the particular prosecutor

mentioned in this article carefully

(Footnote Continued)

-19-

The open-endedness of the official

inquiries and their legitimation of any

and all suspicions sanctioned extensive

reporting efforts.

These concerted efforts had dev-

astating effects on many individuals.

Hundreds of teachers lost their jobs

outright. Caute, supra n. 11 at 406.

Many of them never returned to teaching

and wer’. barely able to survive finan-

cially. Id. at 551-56.

Several large public educational

systems, notably New York, Philadelphia,

and Los Angeles, as well as the Universi-

ty of California, were in turmoil for

years as wave after wave of

(Footnote Continued)

screened and dismissed such allegations.

But reliance on the good will and good

sense of prosecutors or legislative

investigators was often insufficient

rotection. Cf. tt v. llitt ,377

.S. at 373. “See wees Trr. a taf ra.

-20-

investigations and restrictions was

imposed.+® In New York City, the years

from 1949 to 1956 saw numerous

investigations, interrogations, firings,

and resignations. There was even a

period during which the Board of

Education adopted a policy requiring

teachers to “inform on their colleagues

when commanded to do so by the

Superintendent." Caute, supra n. 11, at

439-40. By the end of the decade, over

400 teachers had been fired, had re-

signed, or had been declared to be

16puring a year of constant crisis

in 1950-51 quae the attempted imposition

of a loyalty oath by the ts of the

University of California, 26 teachers

were fired, 37 resigned in protest, and

47 refused appointments were

offered; 55 courses had to cancelled.

Caute, supra n. 11, at 422-24.

«2l-

rehabilitated after intensive interro-

gation. Id. at 441.27

The investigations, interrogations,

and sanctions had severe and lasting

effects on many teachers who were not

directly attacked, and on the profession

as awhole. In 1955--as the worst was

ending--the Columbia University Bureau of

Applied Social Research conducted a

national survey of college teachers of

social science. !® P. Lazarsfeld and W.

17 the ae ote tectanes’’ the

"Feinberg Law," was clared

enamaetinghans’ in ishian v. Board of

Regents, 385 U.S. 58

18th sample included both tenured

and untenured teachers at public and

rivate institutions. This does not,

feomver. vitiate its application to the

situation of public elementary and

secondary schools. If anything, the

respondents to the survey were in more

secure positions, since many of them were

not subject to local school authorities,

and many of them were tenured. Cf.

Shelton v. Tucker, 364 U.S. 479, 482

sence of tenure system for

teachers).

-22-

Thielens, Jr., The Academic Mind (1958).

The survey showed that over one-third of

the 2,451 respondents had noticed an

increase in their colleagues’ unwilling-

ness, compared to six or seven years

earlier, to express unpopular views in

the community. Teachers were clearly

concerned about the negative effects of

exercising their rights as citizens. Id.

at 195. Twenty percent of the respon-

dents also reported that they noticed

that their colleagues had become less

willing to express unpopular political

views in the classroom. 1a.}?

Not surprisingly, attacks on a few

teachers had an in terrorem effect on

19since faculty members rarely sit

in on each other's classes, this figure

probably represents extremely obvious

retrenchments, noticeable to someone not

in close contact with the behavior. More

subtle changes defy recording in this

way.

=23-

many teachers. It is precisely this

aspect: of suppression of expression that

undergirds the legal recognition of the

chilling effects of such attacks, which

lead people to “avoid the risk of loss of

employment, and perhaps profession, only

by restricting their conduct to that

which is unquestionably safe." Baggett

v. Bullitt, 377 U.S. at 372.29 ome

aspect of this phenomenon is of particu-

lar interest here. The reported appre-

hension experienced by respondents in the

Academic Mind study increased as they

learned of more attacks on teachers in

their area. Their apprehensive response

20nchi11" is sometimes too mild a

description. One New York teacher was

threatened with discharge in 1949 because

she asked for time to consult a lawyer

before answering questions about her

gene associations in 1940 and 1941.

e night after she was questioned, she

rere suicide. Caute, supra n.1ll, at

=2h-

increased, however, independent of their

own political views. Even teachers who

had no reason to think that the content

of their views would meet with disap-

proval nevertheless were made appreciably

more nervous by content-based attacks on

their colleagues. Id. at 257-60. In

short, a concerted effort to silence

teachers about major public issues

affected virtually the entire political

spectrum within the profession.

TAT. TIT. 70 §6-103.15 IS A

a STENT -BASED RESTRICTION ON SPEECH

IN VIOLATION OF THE FIRST AMENDMENT

AND THE EQUAL PROTECTION CLAUSE OF

THE FOURTEENTH AMENDMENT.

The Oklahoma statute penalizes

speech affirming or even examining the

permissibility of homosexuality, if it is

likely to come to the attention of a

=25-

school employee or student. 72

As a

classic content-based regulation of

speech, it reflects one of the most

dangerous and destructive forms of

21,4. the Tenth Circuit makes clear,

the terms "advocating,... encouraging or

promoting public or private homosexual

activity" cannot be confined, as

m ge argue, to speech which urges

the performance of homosexual sodomy

still criminal in Oklahoma. See, NGTF v.

Board of Education of the Cit 73 .

, -7

r. 1984). ppybare Brandenberg v.

Ohio, 395 U.S. 444, 69). To

advocate that homosexual sodomy be

decriminalized "promotes," by

undercutting the condemnation of

homosexuality.

On the other hand the Brandenbur

issues raised by the "soliciting™ and

“imposing" terms of the statute are not

before the Court on this appeal. Under

Brandenburg, 395 U.S. 444 (1969),

adjudication of the constitutionality of

these sections requires that the distinct

uestions of the constitutionality of

lahoma's criminal homosexual sodomy law

be considered. Though the Circuit left

these provisions — it did not

decide their validity. ince appellees

did not cross-appeal the Circuit's

failure to decide, the issue must await

consideration in a separate case where

the privacy issues are fully and squarely

before the Court.

-26-

censorship which the first amendment was

designed to prohibit:

To permit the continued building

of our politics and culture and to

assure self-fulfillment for each

individual, our people are guaran-

teed the right to express any

thought, free from government

censorship. The essence of this

forbidden censorship is content

control. Any restriction on

expressive activity because of its

content would c etely undercut

the ‘profound national commitment

to the pmeneye that debate on

public issues should be uninhibit-

ed, robust and wide-open.’

Police Dept. of the City of Chicago v.

Mosley, 408 U.S. 92, 95-96 (1972),

quoting New York Times v. Sullivan, 376

U.S. 254, 270 (1964). Justice Powell

struck the same chord in Healy v. James:

The Court has previously de-

termined that the State may not

restrict speech or association

simply because it finds the views

ressed by any group to be

abhorrent... ‘the freedoms of

speech, press, petition and

assembly guaranteed by the First

Amendment must be accorded to the

ideas we hate or sooner or later

they will be denied to the ideas

we cherish.’

408 U.S. 169, 188 (1972) quoting

-27-

Communist Party of the U.S. v. Subversive

Activities Control Bd., 367 U.S. 1, 137

(dissent).

The justification given for the

content-based regulation of § 6-103.15 is

that the forbidden non-hostile views of

homosexuality may disrupt the school's

functioning when co-employees or students

learn that a teacher made these comments.

A similar justification was rejected in

Police Dept. v. Mosley, where the ordi-

nance, allegedly aimed at preventing

disruption in the schools, prohibited all

picketing near schools during school

hours, with the exception of labor

picketing. 2 The goal of preventing

22

The view that Mosley is

inapposite on the ground that it contains

an absolute prohibition on other than

labor picketing, whereas the Oklahoma

statute purports to establish more

particularized criteria for disruption,

(Footnote Continued)

-28-

disruption in the schools was obviously

deemed valid but the content-based manner

in which the state pursued that goal

violated the first amendment and the

equal protection clause of the fourteenth

amendment.

By contrast, the general antinoise

regulation in Gra v. City of

Rockford, 408 U.S. 104 (1972), was upheld

because it was directed at the actual

disruptive evil, noise, and no

presumptions were made that particular

thoughts were noisier than others. The

statute here, however, is aimed at

content, rather than at general,

content-neutral evil, and is therefore

impermissible. The very existence of

(Footnote Continued)

is fallacious. The structure and

presumptions of the statute operate just

as effectively to eliminate an entire

onan of communications. See Sec. III,

ra.

-29-

this special law directed at gay rights

advocates denies them equal protection of

the laws in relation to the exercise of

their first amendment rights.

The state's disapproval or “undif-

ferentiated fear or apprehension,” Tinker

v. Des Moines Indep. Com. Sch. Dist., 393

U.S. 503, 508 (1969), of non-condemnatory

speech about homosexuality which may come

to the attention of other school

=ployees or students cannot be equated,

as .“e statute doer, with interference

with legitimate school functions. "'Mere

legislative preferences or

beliefs...{are] insufficient to justify

such (regulation) as diminishes the

exercise of rights so vital to the

maintenance of democratic institutions.'"

Shelton v. Tucker, 364 U.S. at 489,

quoting Schneide: v. State, 308 U.S. 147,

161 (1939).

-30- -3l-

In Tinker, school officials could interference or disruption in the

not prohibit "a particular expression of normal activities of the school.

opinion” without demonstrating that it (emphasis in original). NGTF v. Board of

Education, 729 F.2d at 1276 (Barrett, J.

would "materially and substantially

interfere with the requirements of dissenting. )

appropriate discipline in the operation The disagreement that speech may

of the school.” 393 U.S. at 509.

fertainly broad restrictions on teacher

likewise engender cannot suffice to

23,

establish the kind of disruption r

expression outside the school must be even prediction of disruption required to

justified by substantial disruption of restrict the teacher from offering

school requirements as well. The comments considered sympathetic to gay

Ok statute roqeires , people in public discussions and debates.

Instead the statute makes the See Connick v. Meyers, __U.S. , 103

S.Ct. 1684, 1693 (1983); James v. Board

of Education, 461 F.2d 566, 572 (2d Cir.

1972) (prediction of disruption from

presumptive equation of dislike of an

_idea with harm. The dissenting judge

below expressed that view in his

statement that a teacher who “advocates” teacher expression within school cannot

or "encourages" homosexual behavior be based on disagreement about ideas

..-is in fact and in truth agit” eqquesqee) .

ing school children to partic = e

the abominable and detestable

crime against nature.. = > -

no need to demonstrate that suc Justice Black's catal of such

conduct would bring about a “disruptions"”,"” 393 U.S. at 517-18, was

material or substantial rejected by the Tinker Court.

-32-

To insist that the first and four-

teenth amendments protect the right of

teachers to speak on this subject in

numerous contexts outside the schools as

well as informally within does not

threaten, even on the broadest view, the

legitimate power of school authorities to

select on the basis of content among

subjects and books. This statute--by

operating against teachers in all con-

texts on the basis of explicit hostility

toward or fear of the content of their

speech--qualifies under the narrowest

definition of “suppression of ideas,”

Board of Educ. of Island Trees v. Pico,

102 §.Ct. at 2835 (Rehnquist, J. dissent-

ing). The policy of the Oklahoma statute

is not only akin to “férbidding the

criticism of United States policy...."

-33-

Id. at 2834.°4 It also exerts external

control--beyond the confines of the

school--to stifle participation in

community activities and public debate on

this single issue.

The cases involving public employees

who speak out about their employer's

policies or supervisors, either within

the workplace or outside do not apply

here. They do not involve content-based

restrictions. Nor are they relevant to a

statute restricting teacher speech

outside the workplace on issues of public

concern. However, even those cases make

clear that public employers may not

interfere with employee speech on matters

of substantial public concern absent some

demonstration that serious disruption of

24

lso on v sas, 393

U.S. 97 Sie ose (Stevect.

concurring).

-34-

legitimate workplace concerns is likely

to occur. Pickering v. Board of Ed. of

Tp. H.S. Dist., 391 U.S. 563 (1968).

In Connick v. Myers, 103 S.Ct. at

1692-93 (1983), substantial disrwption

was not required to uphold the firing of

an assistant district attorney because

the employee's speech “touch(ed] upon

matters of public concern in only a most

limited sense." Connick at 1693.

Rather, the employee's speech, was viewed

at heart as an employee complaint about

internal office policies.

In sum, while the state has a right

to determine the fitness of its teachers,

“that purpose cannot be pursued by means

that broadly stifle fundamental personal

liberties when the end can be more

narrowly achieved." Shelton v. Tucker,

364 U.S. 479, 488.

-35-

III. OKLA. STAT. TIT. 70, §6-103.15 IS

IMPERMISSIBLY VAGUE AND OVERBROAD.

A. The Statute Permits the Presumption

that Mere Knowledge of a Teacher's

Advocacy of Gay Rights Is Equivalent

to darm to the Operation of the

School System.

The Tenth Circuit properly held that

the factors to be considered under

§ 6-103.15(c) in determining unfitness do

not save the statute from unconstitution-

ality. 729 F.2d at 1275. In addition to

the reasons set forth by the Circuit,

amici wish to emphasize that, in

practice, the statute permits mere

knowledge of teacher advocacy on the part

of an employee or student to trigger the

dismissal process. Accordingly, a

teacher will easily fear that almost any

mention of homosexuality or gay issues

could come to the attention of the school

authorities.

The vice of this statute thus is not

only the fact that a teacher can be fired

for unfitness becausé some expressional

-36-

activity relating to gay rights came to

the attention of school children or

personnel, but also that merely for

making a non-condemnatory statement about

homosex- uality, a teacher's fitness can

be called into question. The law thus

encourages the reporting of expressional

activity that might otherwise remain

unnoticed or insignificant, and, there-

after, sets into motion a process in

which a teacher's integrity, morality,

and beliefs are stigmatized and subject

to inquisition.

The statute--in its procedural

operation as well as its blanket

censorial admonition--is reminiscent of

the schemes devised during the McCarthy

period to stifle protected expression of

beliefs relating to social conditions and

-37-

social change. 2° This statute does not

create a state apparatus for discovery

and reporting of offending comments

(compare Shelton v. Tucker, 364 U.S. 479,

480-81 (1960); Keyishian v. Board of

Regents, 385 U.S. 589, 594 (1967)), but

it encourages both crusading officials

and private groups and individuals to

broadly invade realms of protected

association and expression. See Sec.

1.B., supra.

Despite Appellant's attempt to make

it appear so (Br. at 31), the so-called

250ne aspect of that process was

stigmatizing people who expressed

particular ideas or had particular

associations by inferring, from the ideas

and associations, membership in a 7

disfavored group, e.g., the Communist

Party. In this case, there is a similar

attempt to equate protected advocacy of

gay rights with the (presumed to bed

isfavored status of being homosexual.

See, e.g., Brief Amicus Curiae of

Concerned Women for America Education and

Legal Defense Foundation at 16-20.

-38-

"unfitness" or "nexus" factors in the

statute do not in fact require any

showing beyond the receipt of knowledge

of the speech at issue. Not only is it

not mandatory that an additional adverse

effect be shown, but a school board

convinced that homosexuality is malum in

se is not foreclosed from treating

knowledge alone as satisfying the adverse

impact test, much as Judge Barrett's

dissent suggests. 729 F.2d at 1276.

Moreover, the proximity criteria

(§ 6-103.15(c)(2)) could, as the amicus,

Concerned Women for America Education and

Legal Defense Foundation, implicity

concedes, make actionable any statement

made within the community in the last ten

years. Brief at 14. The criteria of

extenuating or aggravating circumstances

detract nothing from the chilling effect.

They would not exculpate the teacher who

spoke out publicly. §6-103.15(c)(3).

-39-

Finally, § 6-103.15(c)(4) does not

establish a test for permissible, albeit

continuing statements; rather it creates

a presumption that continuing statements

are harmful per se.

The breadth of the statute is

further expanded by allowing mere know-

ledge of a stat2ment and impact on an

adult school employee to trigger

dismissal. Thus, if a school

employee--deliberately or inadvertently--

hears, witnesses, overhears, or receives

a report about a co-worker's protected

expression, and reports it to the

superintendent, the teacher can be

suspended or dismissed. Few teachers

will be willing to take the risk of such

inquiry and stigmatization.

Nor can it be assumed that either

the school superintendant, who recommends

dismissal in the first instance, or the

local Board of Education, which approves

-40-

26

the action, will exercise discretion

under the statute to confine its applica-

tion to circumstances that warrant it.

Both the superintendant and the elected

board are subject to local pressures to

mount an anti-homosexual campaign where

that seems desirable. As Justice White

said in Baggett v. Bullitt, “well-inten-

tioned prosecutors and judicial safe-

guards do not neutralize the vice of a

vague law." 377 U.S. at 373.

Thus the statute does not even

require a minimal showing of harm. The

potential for inhibition of protected

conduct is thus sweeping; the potential

for persecution--for reviving in a new

guise the various “witch” trials that

have marred our history--is enormous.

26ocla. Stat. tit. 70, §§6-103.3 et

seq.

-4]-

But “first amendment freedoms need

breathing space to survive..." Keyishian,

385 U.S. at 604. That breathing space is

choked off under the Uklahoma statute.

But, in our system, undifferentiated

fear or appre ion of disturbance

is not enough to overcome the right

to freedom of ression. Any

departure from absolute regimenta-

tion may cause trouble. Any varia-

tion from the majority's opinion may

inspire fear. Any word spoken, in

class, in the lunchroom, or on the

campus that deviates from the views

of another person may start an

argument or cause a disturbance.

But our Constitution says we must

take this risk, Terminiello v.

pyicage 337 U.S. T (1949); and our

story says that it is this sort of

hazardous freedom--this kind of

ss--that is the basis of our

national strength and of the

independence and vigor of Americans

who grow up and live in this

relatively permissive, often

disputatious, society.

Tinker v. Des Moines Independent

Com.Sch.Dist., 393 U.S. at 508-09.

-42-

B. The Statute Operates Impermissibly

To Chill Engagement By Teachers as

Citizens in a Variety of Public

Advocacy Contexts.

The Court has made clear that the

teacher as citizen cannot be required by

content-based regulation to forego the

exercise of first amendment rights in the

community outside the school as the price

of keeping a job. See, e.g: Wieman v.

Updegraff,. 344 U.S. 183 (1952); Shelton

v. Tucker, 364 U.S. 479 (1960); Keyishian

vw. Board of Regents, 385 U.S. 589 (1967).

These cases establish the strong

protection given to public school teach-

ers when they exercise first amendment

rights in the public sphere on matters of

public concern.

The statute applies most obviously

to advocacy in the public arena,

including speaking, writing, testifying

at legislative hearings, and attending

meetings and demonstrations that support

-43-

the rights of lesbians and gay men. */

This is precisely the kind of expression

that is classically guaranteed to all

citizens, including teachers, yet it is

gravely endangered by the statute. See

Keyishian v. Board of Regents, 385 U.S.

589 (1967); Pickering v. Bd. of Ed. of

Tp. H.S. Dist., 391 U.S. 563 (1968).2°8

Because the statute can be triggered

simply by a report of having heard a

27 such advocacy issues are on the

public agenda ages gt the country.

Decriminalization of private, consensual,

adult homosexual acts; civil rights

protection for lesbians and gay men and

non-discrimination in public employment

have been undertaken at all levels of

government and are under active

discussion in many areas.

28rar from being an example of

disregard for law, as Appellant suggests

(Br. at 34), the advocacy prohibited in

this case is almost exclusively that

which seeks change and acceptance of gay

rights through constitutionally protected

channels or petition for redress. See

Baggett v. Bullitt, 377 U.S. at 368;

Cr

2 v. Bd. of Public Instruction, 386

o4h-

teacher say certain things, it reaches

discussions of homosexuality in a wide

variety of semi-public yet protected

associational contexts. Whether or not

discrimination against lesbians and gay

men should be prohibited is the topic of

discussion in churches and church-related

groups, in unions, in political parties,

in medical, psychiatric, psychological

and social work organizations. See

generally, Amicus Curiae Brief on Behalf

of the Appellee by Lambda Legal Defense

and Education Fund. An advocate of gay

rights might wish to join a gay rights

organization or subscribe to journals

which advocate or discuss gay rights.

See, e.g., NAACP v. Alabama, 357 U.S. 449

(1958); Shelton v. Tucker, 364 U.S. 479

(1960). Any of these activities, if

publicized or reported to school author-

ities, could enmesh a teacher in the

statutory process.

-45-

The statute also presents a substan-

tial risk of exposure even from more

private informal gatherings and social

occasions. A restaurant conversation

erupts into a heated debate about gay

rights; a serious discussion is overheard

by the occupants of a neighboring booth.

In the face of these risks, caution and

silence may govern.

In Keyishian v. Board of Regents,

385 U.S. 589 (1967), state laws and

regulations permitting the dismissal of

public school teachers for pure speech

were struck down. The vague and poten-

tially overbroad scope of the banned

speech and the investigatory machinery

created to ferret it out for examination

were deemed by the Court to constitute 2

method of terrorizing teachers so as to

constrict their expression of political

ideas.

It would be a bold teacher who would

not stay as far as possible from

«4h<

utterances or acts which might

jeopardize his living by enmeshing

him in this intricate machinery.

The uncertainty as to the utterances

and acts proscribed increases that

caution in ‘those who believe the

written law means what it says.’

Keyishian, 385 U.S. at 601, quoting

Baggett v. Bullitt, 377 U.S. at 374.

Indeed the Court has repeatedly

stréssed the importance of preserving

such freedom in light of the particular

and important role played by teachers in

society:

The vigilant protection of constitu-

tional freedoms is nowhere more

vital than in the community of

American schools.... But, in view

of the nature of the teacher's

relation to the effective exercise

of the ae which are safeguarded

by the Bill of Rights and by the

Fourteenth Amendment, inhibition of

freedom of thought, in the case of

teachers brings the safeguards of

those amendments vividly into

operation.

Wieman v. Updegraff, 344 U.S. 183, 195

(1958) (Frankfurter, J. concurring).

Faced with the “threat of dismissal

from public employment" which is "a

-47-

potent means of inhibiting speech",

Pickering, 391 U.S. at 574, a group of

generally well educated adults with

knowledge of children's development will

not dare to share their ideas in the

world at large.*? The state of Oklahoma

has set forth no substantiated justifica-

tion for this sweeping result. Rather,

the statute is a prime example of the

“government as educator...seek[ing] to

reach beyond the confines of the school."

Bd. of Ed.,Island Trees v. Pico, 102

S.Ct. at 2833 (Powell, J., dissenting. )

Cc. The Statute Impermissibly Chills

Teachers’ Engagement In Scholarly

Pursuits Essential To Their Educa-

tional Mission.

The statute's impact on teachers'

ability to maintain or improve their

29the harm to the world outside the

school is great. For that world, "the

spectrum of available knowledge" will be

contracted. Griswold v. Connecticut, 381

U.S. 479, 482 (1965).

-48-

competence through professional activ-

ities outside of the school building is

sharp and deleterious. An understanding

of homosexuality can be essential to

understanding literature, interpreting

and applying the social sciences, or

illuminating history. Many teachers read

current scholarship in their fields and

discuss it with their colleagues. Many

teachers take advanced courses, both to

aid in their work and to prepare then-

selves for advancement in their jobs. Is

a copy of an article or book on homosexu-

ality impermissible "promotion"? Cf.

Keyishian, 385 U.S. at 599 (carrying a

copy of the Communist Manifesto on a

public street). This statute truncates

full participation in these activities,

and in some situations makes any partici-

pation impossible.

A particularly clear example is the

situation of high school teachers of

-49-

30

literature. A teacher who wants to

explore dispassionately the life and

works of widely anthologized authors runs

a serious risk of falling afoul of the

statute. The works of Walt Whitman, >!

32 33

Willa Cather, E. M. Forster, W. H.

30nhis is by no means the only

example. Teachers of U.S. history may

want to learn more about Eleanor

Roosevelt. See D. Faber, The Life of

Lorena Hickock, E.R.'s Friend (1980)

Teachers of French Language and

literature may want to deepen their

understanding of Verlaine, see Schmidt,

Visions of Violence: Rimbaud and

Verlaine, in Homosexualities and French

Literature 228-42 (G. Stambolian and E.

Marks, eds. 1979). Teachers of world

history and philosophy may want to

understand c posteat Greek culture and

social relations. See Plato, The

Symposium (W. Hamilton trans. 1951); K.

Dover, Greek Homosexuality (1978). Any

teacher may want to take courses in

women's studies, psychology, sociology,

or the history of sexuality.

31566 R. Martin, The Homosexual

Tradition in American Poetry 3-89 (1979);

. oweig, Walt Whitman: The Making of the

Poet (1984).

32

See O'Brien, "The Thing Not

(Footnote Continued)

-50-

34 and Virginia Woolf>> have been

Auden,

taught for years to students throughout

the u.s. 26 Must a teacher fear that

(Footnote Continued)

Named": Willa Cather as a Lesbian Writer,

gns ; P. Robinson, Willa:

The Life of Willa Cather (1983).

33566 C. Summers, E. M. Forster,

(1983). Forster, whose novel A Passage

to India is widely read, is also the

author of Maurice (Macmillan edition

1971), a novel with an explicitly

homosexual theme.

34See H. Carpenter, W. H. Auden

(1981); D. Farnan, Auden in Love (1984).

35se6 Q. Bell, Virginia Woolf

(1972); L. DeSalvo, Lighting the Cave:

The Relationship between Vita

Sackville-West and Virginia Woolf, 8

Signs 195 (1982).

36 For example, C. Craig and F.

Rice, English Literature (Ginn Literature

Series) (1964) contains works by Woolf,

Forster, and Auden. J. Early, et al,

Adventures in American Literature

Classic Edition (Adventures in Literature

Series) (1968) includes Whitman, Cather,

and Auden. Carlsen, et al, American

Literature (McGraw-Hill Literature

Series) (1984) contains Whitman and

Cather. Carlsen, et al, British and

Western Literature (McGraw-Hill

Literature Series) (1984) collects

(Footnote Continued)

aSite

discussing homosexuality and great

authors in the same breath would be

construed to violate the statute? The

statute clearly endangers a teacher's

ability to discuss--in any context--any

scholarly work that draws a positive

connection between an author's work and

her or his homosexuality. See, e.g.,

DeSalvo, supra n. 35, Martin, supra

n. 31. It therefore makes it impossible

for teachers to think. openly and effec-

tively. "It has an unmistakable tendency

to ehill that free play of the spirit

which all teachers ought especially to

cultivate and encourage." Wieman v.

(Footnote Continued)

Forster, Woolf, and Auden. Editions of

Adventures in American Literature and

both McGraw-Hill books are approved for

use in Oklahoma schools.

-§2-

Updegraff, 344 U.S. 183, 195 (1952)

37

(Frankfurter, J. concurring).

Finally, although the statute is

aimed primarily at speech outside the

school, it also muzzles the teacher's

ability to discuss or respond to issues

of homosexuality as they may be raised by

the curriculum or by the students

themselves. Just as this Court in

Keyishian, 385 U.S. at 600, implicitly

criticized the Feinberg Law for deterring

a teacher from informing a class about

the precepts of Marxism, here the statute

chills a teacher from even mentioning the

existence of homosexuality, its relevance

to the subject under study, or particular

views that it is an acceptable life

style. See also Epperson v. Arkansas, 393

37Se6 also, H. McFarland,

Psychological Theory and Educational

Practice 201 (1971).

—t™

U.S. 97, 116 (1968) (Stewart, J.

concurring in the result).

The Oklahoma statute constrains

discussion by alerting colleagues and

students to look for every allegedly

homosexual nuance in presentation. ©

Thus, the statute encourages the hearer

to participate in "a system which

searches for hidden meanings in a

teacher's utterances," Adler v. Board of

Education of City of New York, 342 U.S.

485, 510 (1952) (Douglas, J. dissenting),

and the speaker to “steer far wider of

the unlawful zone," Speiser v. Randall,

38the analogues to the McCarthy era

are not far to seek. “One historian gave

a reading assignment on the constitution

of the Soviet Union, ‘only to find that

the mere fact that I said they had a

constitution made the students think that

I was a Commie.'" Lazarsfeld and

Thielens, supra p. 16, at 197. Teachers

in the survey reported a wide range of

negative effects on their professional

functioning, both in class and outside.

Id. at 197-213.

-54-

357 U.S. 513, 526 (1958). For example:

What was the significance of the history

teacher's comments about the breadth of

John Maynard Keynes's interests, as

illustrated both by his marriage to a

Russian ballerina, Lydia Lopokova, and

his long relationship with an English

painter, Duncan Grant?>? Why did the

mathematics teacher talk at length about

Alan Turing, who developed the idea on

which modern computers are based? “9

In addition, the statute makes it

impossible for a trusted instructor or

41

guidance counselor” to respond

39 see L. Edel, Bloomsbury: A House

of Lions 145-47 (1979); C. Hession, John

Maynard Keynes (1984).

4066 A. Hodges, Alan Turing: The

Enigma (1983).

41 the statute incorporates b

reference the definition of "teacher"

found at Okla. Stat. tit. 70, §1-116

(1982): “Any person who is employed to

(Footnote Continued)

~ «55-

evenhandedly or perhaps even at all to

student requests for counseling in regard

to issues of homosexuality that arise for

members of their family, friends, or for

themselves.

These are only some examples of the

potential scope of a law which singles

out content-based expression for poten-

tial punishment. Indeed, the statute

reflects an effort, reminiscent of the

prohibitions on discussions of slavery,

to hermetically seal the public schools

from exposure to legitimate protected

expression about an issue of major public

importance. The effort is futile, since

the issue is important in public debate

and participation of students in gay

rights advocacy in and outside the

(Footnote Continued)

serve as district superintendent, county

superintendent, principal, supervisor,

counselor, librarian, school nurse or

classroom teacher..."

aSiq

schools is both common and protected. “4

Yet the statute is nonetheless dangerous

to the fundamental values of the First

Amendment. By denying to teachers the

freedom to say anything in any context

420, numerous occasions, the courts

have upheld the constitutional rights of

gay student organizations denied official

recognition by their universities. See,

e.g., G.A.A. v. Bd. of Regents, 638 P.2d

Tits (Okla. I98I); Gay Alliance of

Students v. Matthews, (4th

Cir. 1976); Gay Lib v. Univ. of

Missouri, 558 F.2d 848 (8th Cir. 1977),

cert. denied sub nom. Ratchford v. Gra

Lib, 434 U.S. 1080 (1978); Cay Student

Services v. Texas A&M Univ. 7 F.2d 1317

(5th Cir vB) In each of these cases,

it was held that the policies and

purposes of the student organization did

not “'infringe reasonable campus rules,

interrupt classes or substantially

interfere with the opportunity of other

students to obtain an education,'" Ga

Lib v. Univ. of Missouri, 558 F.2d at 856

quoting Healy v. James, 408 U.S. 169, 189

In Fricke v. Lynch, 491 F.Supp. 381

(D.R.1. I980), the court overturned a

A school principal's decision not to

allow a student to escort his male lover

to the senior prom. The Court rejected

as a basis for exclusion the principal's

assertec fear of a violent reaction from

other students.

=37-

that might come to the attention of

school children or personnel, if it does

a, ree homosexuality and the gay

rights movement, the state denies

teachers the right to express their

commitments to social change and

scholarship outside the classroom, just

as it denies students the right to a

non-d.storted, non-intimidating

education.

IV. THE STATUTE'S OFFICIAL CONDEMNATION

OF PARTICULAR BELIEFS, FAR FROM

FURTHERING LEGITIMATE GOALS,

UNDERMINES IMPORTANT CONSTITUTIONAL

AND EDUCATIONAL VALUES

The mechanism by which this statute

operates may be more subtle but is no

less deadly to free discussion that the

loyalty oaths and mandatory investiga-

tions struck down by this Court in the

“subversive” teacher cases. By penaliz-

ing expression of views opposing a

particular bias, it in effect sanctions

-58-

the biased position. Fear and outrage at

homosexuality and the gay rights movement

are volatile and dangerous, given their

roots in religion and the conviction of

moralistic truths.’ The same fervor

that attended the anti-communist

witchhunts can be incited as to

44 Thus speech that might

homosexuality.

be unknown or disregarded or, at most,

the subject of interested or even hostile

comment, can explode into a major

controversy about the fitness of a

previously impeccable teacher.

Difference of opinion, even disgust, can

be transformed into unnecessarily

disruptive confrontation.

43Sce, e. the dissenting opinion

below, 725° “at 1276; Brief of the

State of Oklahoma Amicus Curiae, at 22.

44 H schools are not immune. See,

igh

National Kla*. Leader Terms Cit

Ton th Recruiting Good Good, Okla. City Times,

ate pootnote ter omens A

-59-

In short, the statute teaches

intolerance, because the perception of

official tolerance for or encouragement

of intolerant behavior can have a power-

ful effect. A substantial literature

suggests that indications of official

resistance to court-ordered school

desegregation remedies encouraged hos-

tile, and sometimes violent, community

reactions to the desegregation process.

C. Willie and S. Greenblatt, Community

Politics and Educational Change 324-28,

331 (1981); T. Pettigrew, Racially

Separate or Together? 130 (1971).

Reduction in hostility seems not to

require officials to go out of their way

to endorse the desegregation process, but

(Footnote Continued)

Jan. 26, 1978, at 1, col. 1, reporting on

anti- ond organizing by the Ku Klux Klan

in Oklahoma high schools.

-60-

merely to uphold normal legal processes.

Willie and Greenblatt at 324.

This Court has noted that "([p]rivate

biases may be outside the reach of the

law, but the law cannot, directly or

indirectly, give them effect." Palmore

v. Sidoti, U.S. _, 104 S.Ct. 1879,

1882 (1984).°> Indeed, the central

wisdom of the First Amendment is that:

[s]peech is often provocative and

challenging. It may strike at

ge goes 9 and preconceptions and

ave profound unsettling effects as

7 presses for acceptance of an

idea.

4>palmore dealt with racial

prejudice. Court around the country have

applied the same principle in cases where

societal prejudice against lesbian

mothers was advanced as a reason to

remove children from their custody. See,

e.g., M.P. v. S.P., 169 N.Super. 425, 404

wc 1 " .J. Super. 1979)(if

children remain with mother, despite

societal prejudice, they may "emerge

better eres to search out their own

standards of right and wrong, better able

to see that the majority is not always

correct in its moral judgments....").

le

Terminiello v. City of Chicago, 337 U.S.

1, 4 (1949). The Oklahoma statute defies

this basic constitutional principle.

Moreover, it undermines the importance of

the Constitution at a crucial point in

the training of citizens. The fact that

local public schools

are educating the young for citizen-

ship is reason for scrupulous

protection of Constitutional free-

doms of the individual, if we are

not to strangle the free mind ac its

source and teach youth to discount

important principles of our govern-

ment as mere platitudes.

West Virginia State Bd. of Ed. v.

Barnette, 319 U.S. 624, 637 (1943).

Should we subject our children to

the spectre of hatred and intolerance or

plant the seeds for tolerance and freedom

of spirit? The most fundamental

aspirations of the first amendment demand

that we cast our lot with the tasks of

tolerance and the free play of ideas.

The bleaker experiences of this nation

-62-

confirm that this is the only safe

course.

Freedom to differ is not limited

to things that do not matter much.

That would be a mere shadow of

freedom. The test of its

substance is the right to differ

as to things that touch the heart

of the existing order.

West Virginia State Board of Education v.

Barnette, 319 U.S. 624, 642 (1943).

CONCLUSION

For the foregoing reasons, this

Court should enforce the first amendment

and affirm the judgment of the court

below.

Rhonda Copelon

Volunteer Staff

Attorney for

Center for Consti-

tutional Rights

CUNY Law School at

Queens College

200-01 42d Avenue

Bayside, NY 11361

(718) 357-7584

Respectfully

submitted,

Anne E. Simon

(Counsel of

Record)

Sarah Wunsch

Center for

Constitutional

Rights

853 Broadway,

14th Floor

New York, NY

10003

(212) 674-3303

Attorneys for

Amici Curiae

*

Counsel gratefully acknowledge the

assistance of John Copoulos and Johnathan

Katz, Center for Constitutional Rights;

Julia Devin, American University School

of Law; Paris Baldacci, David Barr,

Alicia Fagan, Laura Gentile, Deborah

Greenberg, Sandy Lowe, and Amy Pearlman,

CUNY Law School at Queens College; Phil

Bratnober; George Chauncey; and Andrea

Dworkin, in the preparation of this

brief.