Petition for Writ of Certiorari — Acanfora v. Board of Education

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SUPREM: COURT, U. &

Supreme Court. U. S$.

,rsi£2£

IN THE

Supreme Court of the Gn

October Term, 1973

N. @3- 1843

JosepH Acanrora, III,

Boarp OF EDUCATION OF MONTGOMERY CouNTY; MoNT-

GOMERY County Pus ic ScHoots; Homer L. ELseroap,

individually and as Superintendent of Schools; DonaLp

MIeEDEMA, individually and as Deputy Superintendent of

Schools; Wiit1am G. CoLman, individually and as Presi-

dent of the Board of Education; JoHn Arp, individually

and as Vice President of the Board of Education; JAMEs

H. DauGHERTy, RosEMARY HILBERG, MARILLYN ALLEN,

Tuomas B. Cook, and THomas IsraE1, individually and

as Members of the Board of Education of Montgomery

County, Respondents.

Petitioner,

Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Fourth Circuit

MicHae. H. GotresMAN

Georce H. CoHEN

Bredhoff, Cushman, Gottesman &

Cohen

1000 Connecticut Avenue, N. W.

Washington, D. C. 20036

Davip RusBIn

Joe. D. Gewitz

1201 16th Street, N. W.

Washington, D. C. 20036

Attorneys for Petitioner

=>-

OO SE, PERS" EOE

TABLE OF CONTENTS

Page

II core re he os ee 1

eee Nae ae A tae 1

QUESTIONS PRESENTED ............................... 2

STATEMENT OF THE CASE .............................. 3

REASONS FOR GRANTING THE WRIT .................. 15

ge eos ah NY COE IE an aa 28

Appendix:

Opinion of the Court of Appeals ....................... App. 1

Opinion of the District Court .......................... App. 11

TABLE OF CITATIONS

Cases

Armak Abrasives Division, 60 L.A. 509 SE arenes Se 21

Batchellar v. Maryland, 397 U.S. 564 (1970) ................. 23

Board of Regents v. Roth, 408 U.S. 564 (1972) ............... 27

Bryson v. United States, 396 U.S. 64 ( ss ee 2, 14, 18, 19

Collins & Aikman, 195 NLRB No. 26, 79 LRRM 1327 (1971) .. 21

Cook County College Teachers Union v. Byrd, 456 F.2d 882 (7th

Cir. 1972), cert. denied 409 U.S. 848 (1972) ......... 20, 22-23

Dennis v. United States, 384 U.S. 855 (1966) .... 2, 14, 18, 19, 25

Eaton v. City of Tulsa, 42 L.W. 3538 (1974) ................ 23

Ferguson v. Thomas, 430 F.2d 852 (5th Cir. SE eshte ccc. 26

Fluker v. Alabama State Board of Education, 441 F.2d 201 (5th

ENE so ar idedouitdsoucr ewer uyoiexccscn 20, 22

a Bees RATELY PALES OED I LR ; tinisini

Page

Freuhauf Trailer Co., 58 L.A. 1169 (1972) ..........-- 2. eee ees 21

Gardner-Denver Co., 51 L.A. 1019 (1968) .........-...+-04-- 21

Gieringer v. Center School District No. 58, 477 F.2d 1164 (8th Cir.

oie nce c eA inkedibawss hatakas bebaereweneer v4 20, 23

Goodyear Tire and Rubber Co., 52 L.A. 55 (1968) ..........--- 21

Greene v. United States, 376 U.S. 149 (1964) ............---- 28

J. P. Stevens & Co. v. NLRB, 380 F.2d 292 (2nd Cir. 1967), cert.

denied 389 US. 1005 (1967) ........ cece ccc eee eeeecees 20-21

Jacksonville Paper Co., 182 NLRB 6 (1970) .......------++-+5- 21

Kay v. United States, 303 U.S. 1 (1938) ..........-++++- 2, 14, 18

Langford v. City of Texarkana, 478 F.2d 262 (8th Cir. 1973) . 20, 23

NLRB v. Great Eastern Color Lithographic Corp., 309 F.2d 352

(2nd Cir. 1962), cert. denied 373 U.S. 950 (1963) .........-. 23

NLRB v. Jamestown Sterling Corp., 211 F.2d 725 (2nd Cir. 1954) 23

NLRB v. Murray Ohio Mfg. Co., 326 F.2d 509 (6th Cir. 1964) .. 21

NLRB v. West Side Carpet Cleaning Co., 329 F.2d 758 (6th Cir.

RE coisas haces bee esa weieredesewekyssasinctsnseseaes 23

Perry v. Sindermann, 408 U.S. 593 (1972) ....-----+-++++- 20, 27

Photoswitch, Inc., 99 NLRB 1366 (1952) .........----2eee eres 21

Rainey v. Jackson State College, 481 F.2d 347 (Sth Cir. 1973) ... 22

Rodriguez v. Seamens, 463 F.2d 837 (D.C. Cir. 1972), petition for

cert. dismissed 409 U.S. 1094 (1973) .........--- 14, 18, 19-20

Roe v. Wade, 410 U.S. 113 (1973) ......-.-- eee ee eee eee eee 12

Rowe Furniture Corp., 200 NLRB No. 1, 81 LRRM 1569 (1972) 21

Service v. Dulles, 354 U.S. 363 (1957) ......--e eee ee eee eee 28

Shelton v. Tucker, 364 U.S. 479 (1960) ........------eee 24, 25

Silver v. New York Stock Exchange, 373 U.S. 341 (1963) .....- 28

Simard v. Board of Education of Town of Groton, 473 F.2d 988

(2nd Cir. 1973) ....... 22 cee cece cee ee cee re eeececeeceeces 22

Singer Company v. NLRB, 371 F.2d 623 (8th Cir. 1967) ...... 21

RSPEI

SEE Raaiatctaenetnes 5 SRE. 9 PY DPR RE IR

Page

Skehan v. Bloomsburg State College, No. 73-1613 (3rd Cir. 1974) 22,

26-28

Stromberg v. California, 268 US. $59 (1981) ......ccccccccces 23

United States v. Kapp, 302 U.S. 214 (1937) .........-6- 2, 14, 18

United States v. Manfredonia, 414 F.2d 760 (2nd Cir. 196%) .... 20

Vitarelli v. Seaton, 359 U.S. 535 (1959) 22.2... ee cece eee eens 28

Weston Shoppers’ City, Inc., 189 NLRB 234 (1971) ........-.-+- 21

Williams v. United States, 434 F.2d 1346 (Ct. Cl. 1970) .... 14, 18

Statutes

Civil Rights Act of 1866, 42 U.S.C. § 1983 ...........--.++-- 9

Judicial Code:

28 U.S.C. § 1254(1) ....... cc ccccccccccncvcccccescccces 1

GR UIGG. B TDN cnc viccescsdcscesecssscdsnceresevesese 9

2B USC. § 1948S) ....ccccccsccvcccccccscecssecesccces 9

2B UBC. § 194B(4) ....-cccccccccccccccvccvecccessvecss 9

National Labor Relations Act, Section 8(a)(3), 29 U.S.C. §

STIG) ovine nce cidsceeccvscscnscectetesesscedesedenes 20

Miscellaneous

Altman, “Homosexual: Oppression and Liberation” (Outerbridge

and Dienstfrey, 1978 ........cccccccccccccecccsecceess 16, 17

“Gay Liberator,” May, 1974 issue ..........seeeeeeeeceeceees 17

Gould, “What We Don’t Know About Homosexuals,” in New York

Times Magazine, Feb. 24, 1974 ...........eeeeeeeeeeeeeeees 17

Katz, “Coming Out Fighting,” in The Nation, July 2, 1973 .. 16, 17

Kinsey, Pomeroy and Martin, “Sexual Behavior in the Human

Male (W. B. Saunders Co. 1948) ......... eee eee eeeeeeeee 16

TEP IE ee PORES

Page

National Institute of Mental Health, “Task Force on Homosexual-

ity (GPO, 1972) ....... SG Raa eaten ees kis MEE Ehekeceae iN 16

“The Advocate,” issues of March 13, 1974 and April 24, 1974 .... 17

Weinberg, “Society and the Healthy Homosexual” (Anchor Books/

NE, HEUOY. bon vicadecvcncecacnsconendss ssenvesceses 17

Weinberg and Williams, “Male Homosexuals: Their Problems and

Adaptations” (Oxford Univ. Press, 1974) .......-.++.5+- 16, 17

IN THE

Supreme Court of the Anited States

October Term, 1973

No.

JoserH Acanrora, III,

Petitioner,

Boarp oF EpUCATION OF MONTGOMERY COUNTY, ET AL.

Respondents.

Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Fourth Circuit

Petitioner requests that a writ of certiorari issue to review

the judgment of the United States Court of Appeals for the

Fourth Circuit entered in this case.

OPINIONS BELOW

The opinion of the Court of Appeals is reported at 491

F.2d 498, and is reproduced in the Appendix to this Petition

at App. 1-10. The opinion of the District Court is reported

at 359 F. Supp. 843, and is reproduced at App. 11-36.

JURISDICTION

The decision and judgment of the Court of Appeals were

entered on February 7, 1974. By order dated April 30, 1974,

Chief Justice Burger extended the time for filing a petition

for writ of certiorari herein to and including June 7, 1974.

This Court has jurisdiction to review the judgment by writ

of certiorari under 28 U.S.C. § 1254(1).

QUESTIONS PRESENTED

Petitioner, a homosexual, applied for employment as a

public school teacher. He did not disclose on his employ-

ment application that he had b@en a member of an organi-

zation devoted to advancing the legal rights of homosexuals.

After he was hired, the school system discovered that he was

a homosexual, and transferred him out of the classroom pur-

‘suant to its policy of not knowingly employing homosexuals

as teachers. The Court of Appeals held that the non-dis-

closure on the employment application, although not the

reason why petitioner was transferred, disqualified him from

challenging the constitutionality of the transfer. The fol-

lowing questions are presented:

1. Whether a public employee who suffers employment

discrimination for constitutionally impermissible reasons may

be denied judicial relief because there exists another rea-

son, which did not in fact motivate the interference with

employment, which would have constituted a permissible

reason for such interference.

2. Whether interference with public employment moti-

vated by several considerations, some of which are consti-

tutionally impermissible and some, of which are not, violates

the federal Constitution.

3. Whether the doctrine enunciated by this Court in

several cases*—that one who lies to the Government may

not resist punishment for the lie on the ground that the

question which elicited the lie could not constitutionally

have been asked—should be ¢xtended to situations in. which

applicants for public employment conceal their homosex-

- * United States v. Kapp, 302 US. 214, 217 (1937) Kay v. United

‘States, 303 U.S. 1, 6 (1938) ; Dennis v. ‘United States, 384 US. 855

' (1966) ; Bryson v. United States, 396 U.S. 64 (1969).

” VER 2 <w

. . SPL GE TA eee VLE AE

uality in completing their employment applications and

thereafter suffer employment discrimination because they

are homosexuals. Specifically, whether the doctrine of those

cases should be applied where:

a. Punishment is imposed not for the concealment

of information, but for a different, constitutionally im-

permissible reason.

b. It is doubtful that the question asked on the em-

ployment application sought the information which

the applicant did not disclose.

c. There was no way that the employee could pro-

tect his constitutional right of privacy other than non-

disclosure of the information.

4, Whether the denial of a constitutionally required ad-

ministrative hearing is cured because the victim is afforded

a de novo trial in federal court.

5. Whether removing a public school teacher from his

classroom teaching position because he is a known homo-

sexual violates his constitutional rights of privacy and free-

dom of association.

STATEMENT OF THE CASE

Petitioner, Joseph Acanfora, III, is a public school teacher

and a homosexual. Upon graduating from college, he was

hired to teach in the Montgomery County, Maryland, school

system. Within a month, respondents discovered that he was

a homosexual, and immediately transferred him out of his

classroom teaching position into an office job. Respondents

refused Acanfora’s repeated requests that he be reinstated to

the classroom. He thereupon filed the instant lawsuit seek-

ing reinstatement to his classroom teaching position. Dur-

ing the pendency of the lawsuit, respondents advised him

ite coer a Na lake rss oe Nea te per Re aa an DA ee De nate MERE. orn a Ee eatteds Cu teeter cette net a ee . MPSA

that his employment would not be renewed for the following

year. The decision below—denying Acanfora any relief—

poses issues of great significance.

College Days

Acanfora entered Pennsylvania State University in 1968,

and majored in education. In his junior year, he joined, and

soon became Treasurer of, the Homophiles of Penn State, a

newly formed campus organization dedicated to protecting

the civil and constitutional rights of homosexuals and in-

creasing public understanding of homosexuality. When the

University refused to grant official recognition to the organi-

zation, four of its members, including Acanfora, instituted

legal action to compel such recognition. That action, which

ultimately was successful, received considerable local pub-

licity, in the course of which Acanfora acknowledged that

he was a homosexual.

At the time that this acknowledgment became public,

Acanfora was fulfilling a student teaching assignment at a

public junior high school near the University. That school

suspended his student teaching status upon learning of his

homosexuality. Acanfora thereupon instituted legal action

seeking reinstatement as a student teacher, and obtained an

immediate court order granting such reinstatement. He suc-

cessfully completed the student teaching assignment, and

graduated from Penn State in June, 1972.

As his senior year was coming to a close, Acanfora applied

for certification to teach in Pennsylvania. The question

whether a homosexua! could have the requisite “good moral

character” necessary for certification became a subject of

great controversy, and the matter was referred to the Penn-

sylvania Secretary of Education for decision. With his Penn-

sylvania status in this undecided posture, Acanfora sought

and obtained employment as a teacher in Montgomery

County, Maryland.

Employment in Montgomery County

In April, 1972, Acanfora applied for employment with

the Board of Education of Montgomery County, Maryland.

The application form which he filled out did not inquire

whether he was 2 homosexual. It asked for a list of his “pro-

fessional, service and fraternal organizations,” and for a list

of “extracurricular activities” he had engaged in as a stu-

dent. He did not list his membership in the Homophiles of

Penn State in response to either question.

At trial herein Acanfora explained his reason for omitting

mention of the Homophiles from his employment applica-

tion:

“[I]t was based primarily on the experience I had just

had with the State College Area School District [the

student teaching position]. I realized I had just com-

pleted four years of training to become a teacher and

was judged perfectly qualified; and I realized had I

put down the Homophiles of Penn State as an organiza-

tion or an extracurricular activity that I would not be

given a chance to even go through the normal applica-

tion process for a teaching job; that I would not be

considered on an equal par with all other applicants

and, in fact, would guarantee that I would not receive

any sort of teaching job. So, I decided not to put it

down so that I might be able to be judged on an equal

par with everyone else.”

On May 19, 1972, Acanfora was interviewed by a person-

nel specialist in the Department of Personnel for the Mont-

gomery County Schools. Following the interview, the

personnel specialist filled out an “interview and recruit-

ment form” which is a standard part of each applicant’s

file. Acanfora was rated above average in each of the

seven categories contained on the form (appearance,

personality, verbal expression, knowledge of subject area,

enthusiasm for teaching, references, and scholarship). In

the “comments” section, the interviewer described Acanfora

as “an above average earth science applicant.” However,

the interviewer had acquired a subjective “gut feeling”

during the interview that Acanfora might be a homosexual,

and so he added the following comment on the form: “Prin-

cipal must interview before contracting; reservations.”

Despite this caution, Acanfora was hired without further

interviewing by the Assistant Principal of Parkland Junior

High School in Rockville, Maryland, and entered into a one-

year teaching contract. He was one of 719 new teachers

hired in Montgomery County in 1972, out of 10,000 appli-

cants.

Acanfora commenced his duties as an eighth grade earth

science (geology) teacher on August 29, 1972. His teach-

ing performance was judged entirely satisfactory by his

supervisor.

On Friday, September 22, 1972, the Pennsylvania Secre-

tary of Education called a press conference to announce that

he had decided to certify Acanfora. That weekend, news

articles appeared in the New York Times and the Washing-

ton Evening Star-News reporting the decision of the Penn-

sylvania Secretary of Education, and noting that Acanfora

was now teaching in Montgomery County.

On Monday, September 25, the principal of Acanfora’s

school addressed a memo to the Deputy Superintendent of

Schools, Donald Miedema, recommending that Acanfora

“be considered for removal from his teaching position as

soon as possible . . . in anticipation of the disruption which

can materialize when this becomes known in the commu-

nity.” Miedema, in turn, addressed a memo to the Board of

Education advising that “one of the alternatives which we

are exploring is the reassignment of Mr. Acanfora, with full

salary, to a position that does not require contact with

youngsters.”

On the following day, Miedema addressed a letter to

Acanfora informing him that he had been transferred from

his classroom teaching position to “a temporary alternate

work assignment” in the headquarters building “while we

gather information and assess the circumstances relating to

this matter.” The letter stated that the transfer was “in no

way to be construed as punitive action.”

At trial, Miedema explained the factors which prompted

him to transfer Acanfora. The newspaper stories reporting

Acanfora’s certification had recounted his suspension from

his student teaching position and the controversy which had

attended his request for certification, and Miedema wished

to investigate the facts underlying the suspension and delay

in certification. Additionally, Miedema was “concerned”

that Acanfora might be “an activist, advertised homosex-

ual.” Finally, Miedema was worried about “community

concern and reaction” to the newspaper disclosures that a

homosexual was teaching in the school.

Acanfora’s “temporary alternate work assignment”

proved to be an office job, specially created for him, in

which his duties largely were “make-work.” In that position,

Acanfora not only was denied the opportunity to teach, but

also was deprived of the opportunity to gain experience and

receive evaluations which are critical to a teacher’s ability

to secure renewal of teaching employment beyond the first

year. Although Acanfora’s salary was not reduced, the dis-

trict court found that the transfer breached the “clearly im-

plied promise of continued employment in a classroom

teaching capacity for the duration of [his] contract.” (A pp.

28).

Thereafter, respondents took steps to assure that Acan-

fora would have no contact whatsoever with students. The

junior high school needed to have him return to the school

to assist in preparing his former students’ grades, but he

was instructed not to arrive at the school until the students

had left for the day. On another occasion, when he re-

quested the opportunity to participate in a teacher work-

shop—an important means by which young teachers are able

to enhance their career development—he was told that he

could not attend because some students would be present.

Although Acanfora performed the office work to which

he was transferred, he repeatedly requested that he be re-

instated to his classroom position. These requests were de-

nied, Acanfora being advised that the transfer would re-

main in effect pending investigation, but that the transfer

was “in no way to be construed as punitive action.”

In fact, as the district court found, the investigation con-

ducted by respondents was “cursory” (App. 28). Miedema

wrote to Penn State University and to the Secretary of Edu-

cation for the State of Pennsylvania requesting information

about Acanfora’s suspension from his student teaching po-

sition and the controversy concerning his certification. Penn

State responded that Acanfora had “successfully completed

the student teacher assignment”, and that the brief suspen-

sion. therefrom had been motivated by his joining the law-

suit to obtain accreditation of the Homophiles, a suspension

which all concerned had recognized to be an invasion of

Acanfora’s constitutional rights and which had been quick-

ly corrected. The Secretary of Education responded that

Acanfora’s performance as a student and as a student teach-

er had been satisfactory in all respects, and that he had

deemed Acanfora to be of “good moral character” in de-

ciding to certify him. Both responses were received by

Miedema in late October.

At no time throughout the “investigation” which was the

ostensible reason for the “temporary” transfer, did school

authorities make any inquiry concerning Acanfora’s con-

duct as a classroom teacher at Parkland Junior High School,

nor was he offered or provided a hearing of any kind.

Although the “investigation” admittedly was completed

CBr ae Peartargy~ + & SRW POSer ere pe Arges WE he Ties

upon receipt of the letters from Pennsylvania, and although

those letters contained nothing but praise for Acanfora,

respondents made no move to reinstate him to the classroom.

The transfer of Acanfora became a subject of great pub-

lic interest, both locally and nationally. Acanfora accepted

invitations to appear on several radio and television pro-

grams including CBS’ “60 Minutes”, which devoted a 20-

Icinute segment to the case. The substance of his remarks

in al! those appearances was three-fold: that employment

discrimination against homosexuals was regrettable, that he

would never discuss his sexual orientation with students in

or out of school, and that he hoped that greater public

understanding of homosexuals would develop (App. 4,

15.)

Proceedings in the District Court

On November 7, 1972, Acanfora instituted this lawsuit

against the Board of Education, the Superintendent (Else-

road), and the Deputy Superintendent (Miedema), under

42 U.S.C. § 1983. Jurisdiction was founded on 28 U.S.C.

§§ 1343(3), 1343(4), and 1331. The complaint alleged

(1) that the transfer had been visited for constitutionally

impermissible reasons, and (2) that Acanfora had been

denied procedural due process. An extensive trial ensued.

Much of the trial was devoted to eliciting the facts out-

lined above. Acanfora testified regarding the philosophy

which guided him in his professional role as a teacher. He

explained that in his view it would be wholly inappropriate

for a teacher to discuss his sexual orientation with students.

He would not, and had not, discussed any aspects of sex-

uality either with students or fellow faculty members. He

would not advocate, and had not advocated, that any other

person participate in homosexual activities. Asked how,

if he were reinstated, he would respond to students who

might inquire about his homosexuality, Acanfora testified

FEE NE LS LEB INE DI PRL LEE ERLE MOTELS, WEEE LEIA TIT iE RS

PF OPE

that he would tell students that he did not inquire into their

personal lives and that he wished them not to inquire into

his.

Acanfora’s supervisor testified that his teaching per-

formance had been wholly satisfactory. Students of Acan-

fora testified that he was a popular and effective teacher

and that they hoped he would be reinstated. Indeed, stu-

dents and faculty alike had sponsored petitions urging re-

spondents to reinstate him. The record contains no evidence

that any students, parents, or faculty members objected to

his reinstatement.

In addition to testimony concerning the facts, both sides

introduced expert testimony concerning the possible effects

of Acanfora teaching. The experts were unanimous that

there is generally no danger in homosexuals teaching in the

public schools. However, respondents’ experts contended

that the return of Acanfora to the classroom might con-

ceivably be dangerous because of the conjunction of two

additional facts: (1) as a result of the publicity, his

students would be aware of his homosexuality, and (2) he

taught at a grade level in which students were entering

adolescence. In their view, if Acanfora was an effective and

popular teacher he would constitute a “role mod ” for his

students. The experts feared that a “relatively few” stu-

dents who enter adolescence with “extreme emotional dis-

turbances” might be so impressed with Acanfora as a teacher

that they would seek to emulate him in all respects, and

thus decide to become homosexuals. The experts likened

their view that Acanfora be excluded from the class-

room to an “innoculation program”: even though only a

“handful of individuals” might be affected, he should be ex-

cluded. They acknowledged that their concerns were wholly

speculative, that there was no relevant data on the subject,

and that there is no known instance of a homosexual teacher,

simply because he was known to be a homosexual, having an

adverse effect on even a single adolescent.

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Acanfora’s experts disagreed with this speculation, ad-

vancing several reasons why Acanfora’s impressiveness as a

teacher would not result in students becoming homosexuals

to emulate him. .

The Superintendent of Schools, Dr. Elseroad, testified

that he opposed reinstatement of Acanfora, for three rea-

sons: (1) Acanfora had “withheld information on his ap-

plication” i.e. his membership in the Homophiles of Penn

State, (2) employment of a known homosexual in the class-

room “increases the risk of having a good model available

for students in the public schools”, and (3) because Acan-

fora’s homosexuality “has become widely-known and highly

publicized,” returning him to the classroom “would involve

that school in a swirl of controversy . . .”

On May 1, 1973, after the trial but prior to the district

court’s decision, respondents notified Acanfora that his em-

ployment would not be renewed for the 1973-74 school

year. The notification did not state the reasons for non-

renewal, but its issuance came only two weeks after Dr. Else-

road’s testimony as to the reasons why he did not believe

Acanfora should be reinstated to the classroom. The dis-

trict court reopened the record, at Acanfora’s request, to

admit the non-renewal notice into evidence.

The District Court’s Opinion

The district court found it “quite clear from the evidence

that the essential reason for the transfer was that Acanfora

is an admitted homosexual” (App. 13, see also App. 29),

and that “the Board of Education would not knowingly hire

a homosexual” (App. 13). “The Board has in no way at-

tacked Acanfora’s classroom performance, nor has it

charged Acanfora with bringing up the subject of homo-

sexuality in the school environment. The evidence is that

he is competent and that he did not discuss his private life

while at school” (App. 13).

Declaring that “the time has come today for private, con-

senting, adult homosexuality to enter the sphere of consti-

tutionally protectible interests”, the court ruled that one’s

right to be a homosexual is protected by the First Amend-

ment’s freedom of association and by the right of privacy

enunciated by this Court in, inter alia, Roe v. Wade, 410

U.S. 113 (1973) (App. 21-25).

The court concluded, therefore, that Acanfora could be

removed from the classroom, and his protected interests

thus transgressed, only if there were an overriding state in-

terest justifying that action. The only evidence which had

been proffered by respondents going to that issue was the

testimony of their experts, and accordingly the court re-

counted all of the expert testimony in great detail (App.

16-20). The court concluded that respondents had not sus-

tained their burden of proving an overriding state interest.

While it would be “premature to state definitively that

Acanfora’s presence in the classroom would have no deleteri-

ous effect,” the risk, albeit “not illusory,” “does not seem as

great or as likely as defendants have assumed” (App. 20).

The court concluded that “the board of education’s policy

of not knowingly employing any homosexuals is objection-

able” (App. 28); that “mere knowledge that a teacher is

homosexual is not sufficient to justify transfer or dismissal”

(App. 34) ; that a teacher need not hide his homosexuality

in order to retain his teaching position (App. 34) ; that the

transfer was “arbitrary” and “without legal justification as

matters then stood” (App. 35); and that the transfer was

a “transgression” by the respondents (App. 36).

The district court also held that Acanfora had been de-

nied procedural due process. Acanfora had a “clearly im-

plied promise of continued employment in a classroom

teaching capacity for the duration of [his] contract”, and

thus a property interest which could not be taken away

without procedural due process. Additionally, the precipi-

a REPO yA

SB SA PAA ES RTE SRT SRE” eames ee ene Te |

‘tous transfer was “an implicit allegation that his homosex-

uality determines unfitness to teach” (App. 35), and thus

interfered with his liberty interests. Since defendants trans-

ferred him without any prior investigation or hearing, and

thereafter conducted only a “cursory investigation” without

even then providing him any hearing, he was denied pro-

cedural due process (App. 28).

Despite these rulings, the district court held that Acanfora

was entitled to no relief for any of the constitutional viola-

tions committed against him. With respect to the substan-

tive violations, the court held that Acanfora’s post-transfer

appearances on radio and television programs disqualified

him from entitlement to relief. Those appearances “were

not reasonably necessary” for “self-defense”, and would like-

ly spark unnecessary controversy regarding the subject of

“homosexuality and the classroom” (App. 34-35) :

“Accordingly, despite the initial transgression of the de-

fendants, the Court can not grant plaintiff the relief

for which he prays. Plaintiff’s public activities as here-

in described are not ‘protectable’ and the Court cannot

at this time characterize the refusal to reinstate plain-

tiff or renew his contract as arbitrary or capricious un-

der either the First Amendment or the Equal Protec-

tion Clause of the Fourteenth Amendment. (App.

36).

With respect to the procedural due process violations, the

district court thought them cured by the de novo trial which

Acanfora received in his lawsuit: “The parties have shifted

their attention to the plenary hearing in this forum” (App.

29).

The Court of Appeals’ Decision

On appeal, the court below concluded that Acanfora’s

post-transfer public appearances were protected by the First

Amendment, and that “they do not justify either the action

taken by the school system or the dismissal of his suit [by

the district court]” (App. 3-4).

Nevertheless, “without reaching Acanfora’s claim that his

denial of a teaching position is unconstitutional, we affirm

the district court, but on different grounds” (App. 2). In

the view of the court below, Acanfora “‘is not entitled to re-

lief because of material omissions in his application for a

teaching position” (App. 2).

The court found controlling a series of decisions in which

this Court and other courts of appeals have held that one

who is prosecuted or otherwise punished for lying to the

Government may not defend by attacking the constitution-

ality of the question which elicited the lie." Acanfora had

argued that these cases were inapposite “because the school

officials transferred him on account of his homosexuality,

not the omission from his application” (App. 7). The court

acknowledged, as the district court had found, that the

transfer was not motivated by the omission from the appli-

cation. Nevertheless, it found the cases controlling for two

reasons. First, to limit the cases to prosecution or punish-

ment for lying would constitute “an unduly restrictive ap-

plication of the principles expressed” in those cases (App.

8). Second, respondents should not be “prejudiced” by

their failure to rely upon the omission as a motivation for

transferring Acanfora, for at that time they only suspected

that the omission was deliberate and it was not until trial

that the suspicion was confirmed (App. 8-10). The

court noted that at trial the Superintendent had testified

that the omission was one of the reasons which made him

1 United States v. Kapp, 302 U.S. 214, 217 (1937) ; Kay v. United

States, 303 U.S. 1, 6 (1938); Dennis v. United States, 384 U.S. 855

(1966) ; Bryson v. United States, 396 U.S. 64 (1969); Rodriguez v.

Seamans, 463 F.2d 837 (D.C. Cir. 1972), petition for cert. dismissed

409 U.S. 1094 (1973) ; Williams v. United States, 434 F.2d 1346, 1354

(Ct. Cl. 1970) (Nichols, J., concurring).

unwilling to reinstate Acanfora, and concluded that this was

sufficient to warrant application of the “lying to the Govern-

ment” cases (App. 9-10).

With respect to the procedural due process issue, the court

below merely reiterated the district court’s reasoning that,

as there had been a full hearing in court, the failure to fur-

nish an administrative hearing was cured (App. 8).

REASONS FOR GRANTING THE WRIT

The court below upheld a transfer which it assumed to

be motivated by a constitutionally impermissible reason, be-

cause there existed another ground, admittedly not the one

which actually motivated the transfer, which in the court’s

view justified keeping Acanfora from the classroom. That

disposition contravenes well-established principles govern-

ing the resolution of constitutional claims, as we demon-

trate in Part II. Additionally, the court below failed to pro-

vide any remedy for a denial of procedural due process, be-

cause it believed that the provision of a de novo trial in

federal court cured the violation. That holding squarely

conflicts with a recent decision of the Court of Appeals for

the Third Circuit, as we shown in Part III.

This case has a greater significance, however, than the

precise legal issues it poses, important as those are. For this

case will likely affect the lifestyles of hundreds of thousands,

perhaps millions, of public employees who happen to be

homosexuals, and it is this consideration which we first

address in Part I.

The court below has held that public employees who are

summarily removed from their jobs upon discovery that they

are homosexuals are disqualified from challenging the con-

stitutionality of that action if, at the time of hire, they con-

cealed their membership in homosexual organizations. That

decision will likely alter the lives of an enormous number of

homosexuals,

Although precise statistics are not available, it is generally

recognized that there are millions, perhaps tens of millions,

of homosexuals in the United States.* Until very recently,

homosexuals traditionally concealed their sexual orientation

—they remained “in the closet”—and in that manner avoid-

‘ed confronting the myriad problems, including risk of em-

ployment loss, attendant upon disclosure of their homosex-

uality.’ It is thus virtually certain that there are enormous

numbers of public ernployees who, in filling out applications

for such employment, concealed their membership in homo-

sexual organizations.*

The past few years have seen a major sociological devel-

opment: a growing willingness on the part of homosexuals

to “come out of the closet”, to live their lives openly rather

' than secretively.° The decision below is nus to reverse that

2'The Kinsey report, in 1948, concluded from an extensive survey

that 4 per cent of white males were exclusively homosexual throughout

. their adult lives, and that an additional 6 per cent were exclusively or

predominantly homosexual for at least three years between the ages of

16 and 55. Kinsey, Pomeroy and Martin, Sexual Behavior in the

Human Male, page 651 (W. B. Saunders Co. 1948). This data is still

regarded as the most reliable available. National Institute of Mental

Health, Task Force on Homosexuality, page 17 (GPO, 1972).

8 Weinberg and Williams, Male Homosexuals: Their Problems and

Adaptations, pages 26-30, 177-196, 287-289 (Oxford Univ. Press,

1974) ; Katz, Coming Out Fighting, in The Nation, July 2, 1973, page

25; Altman, Homosexual: Oppression and Liberation (Outerbridge

and Dienstfrey, 1973). .

*It is generally believed that the highest incidence of concealment

of homosexuality is among those employed in governmental and edu-

cational institutions, as those are the areas where employment dis-

crimination against homosexuals has been most prevalent. Weinberg

, and Williams, op. cit. supra n. 3, pages 227-228.

5 See sources cited in n. 3 supra. '

trend. This case attracted nationwide publicity, and was

closely followed in journals devoted to the rights of homo-

sexuals. And the lesson taught by the decision below is that

homosexuals who are public employees, and who concealed

their homosexuality when applying for that employment,

have no protection against job loss should they now acknowl-

edge their homosexuality. If the price of acknowledgement

isnot merely the need to confront potential employment dis-

crimination against homosexuals per se, but a threshhold

disqualification from even challenging the constitutionality

of that discrimination, only the financially independent and

the foolhardy will opt to abandon their secretive lifestyles.

There was expert testimony in the instant case, and there

appears to be general acknowledgment among experts, that

concealment of one’s homosexuality—living “in the closet”

—is psychologically harmful, and that the emotional well-

being of homosexuals is served by their acknowledgment of

their sexual orientation.* The decision below compels homo-

sexuals to elect between their emotional well-being and their

financial well-being, and that Hobson’s choice is one which

should not be imposed without prior review by this Court.

The most devastating aspect of the decision below is its

chilling effect. Aware of the judicial fate which befell Acan-

fora, others will opt for continued secrecy. Because that

choice is almost inevitable, this Court cannot wait to see

5@ The homosexual publication with the largest national circulation

is The Advocate, which reported the decision below in its March 13,

1974 issue, at page 9. The Advocate also reported Acanfora’s decision

to seek certiorari in its April 24, 1974 issue, at page 8. The decision

below was also reported in the May, 1974 issue of Gay Liberator,

under the caption “Does Your Boss Know You're Gay?”

* (App. 18-19) ; Weinberg and Williams, op. cit, supra n. 3, pages

12, 177-196, 287-289; Weinberg, Society and the Healthy Homosexual,

pages 124-125 (Anchor Press/Doubleday, 1973) ; Katz, op. cit. supra

n. 3; Altman, op. cit. supra n. 3; Gould, What We Don’t Know About

Homosexuals, in New York Times Magazine, Feb. 24, 1974, page 62.

whether future litigation spawns a direct conflict among

Circuits; that conflict may never develop, for this decision

will deter potential future litigants from taking the first step

—acknowledgment of their homosexuality—without which

this issue cannot arise.

In reaching its decision, the court below thought it was

bound by a series of decisions of this and other courts in

which persons who lied to the Government, and who

thereafter were punished for that lie, were held disquali-

fied from defending on the ground that the question

could not constitutionally have been asked in the first place."

Those cases are inapposite for several reasons, and in ignor-

ing the distinctions the court below violated several well-

established constitutional principles.

A. The court below ignored an important factual differ-

ence between those cases and the instant case. In all of those

cases, punishment (whether in the form of criminal prosecu-

tion or interference with employment) was imposed for the

very act of lying. The criminal cases all were prosecutions

for defrauding the Government. The employment cases in-

volved termination of employment for lying on employment

forms. The instant case, by contrast, involves an employ-

ment sanction visited not for the misconduct, if any, which

attended the completion of the employment application, but

rather for the underlying fact which that “misconduct” con-

cealed, i.e. petitioner’s homosexuality. As the district court

T United States v. Kapp, 302 U.S. 214 217 (1937) ; Kay v. United

States, 303 U.S. 1, 6 (1938); Dennis v. United States, 384 U.S. 855

(1966) ; Bryson v. United States, 396 U.S. 64 (1969); Rodriguez v.

Seamans, 463 F.2d 837 (D.C. Cir. 1972), petition for cert. dismissed

409 U.S. 1094 (1973) ; Williams v. United States, 434 F.2d 1346, 1354

(Ct. CL 1970) (Nichols, J., concurring) .

gt ere es ee

_ = < 1S 8 CARAT Ps ute Ar aga te

found on overwhelming evidence,* and as the court below

acknowledged, Acanfora was transferred because he is a

homosexual, not because he concealed that fact on his em-

ployment application.

The cases which the court below thought controlling ex-

pressly distinguished cases such as this where punishment is

visited not for the “lie” but for the underlying fact which it

concealed. In Dennis, a prosecution for conspiracy to file

false affidavits under Section 9(h) of the Labor-Manage-

ment Relations Act, this Court, after holding that the de-

fendants could not resist prosecution on the ground that

their lies were made in response to questions which the Gov-

ernment could not constitutionally ask, carefully added (384

US. at 867) :

“This is a prosecution directed at petitioners’ fraud. It

is not an action to enforce the statute claimed to be un-

constitutional.”

This distinction was reiterated in Bryson, 396 U.S. at 68.

And in Rodriguez, in upholding the discharge of a public

employee for lying on his employment application, the Dis-

trict of Columbia Circuit distinguished those cases in which

it had held that employees cannot be discharged for mem-

bership in the communist party (463 F.2d at 837):

* Miedema testified to the reasons which prompted the transfer,

and did not list the omission from the application (see p. 7 supra).

Acanfora’s principal recommended the transfer in anticipation of the

community reaction to the newspaper stories disclosing that a homo-

sexual was teaching in the school. The original letter to Acanfora

transferring him, and the subsequent letters explaining why he would

not be reinstated, all contained the assurance that the transfer “is in

no way to be construed as punitive action,” and attributed the transfer

to a desire to investigate the challenge to his teaching credentials in

Pennsylvania. Miedema’s report to the Board of Education, and the

subsequent restrictions placed upon Acanfora, manifested a desire to

prevent his having any “contact with youngsters.”

RO ee ee eee SET IE EER RE BPI LL ENDS, LIA SOLOS ERLE AS AP CELT ROIS

“We have had a great deal of litigation involving both

freedom of association and loyalty oaths in recent years.

Of course, we note that there is a significant difference

in those cases and the instant case, as this is a suit

brought by a party who, as a result of his falsification of

forms and not as a result of his prior memberships and

associations, lost his position with the Air Force.” (Em-

phasis added).

As explained in United States v. Manfredonia, 414 F.2d

760, 765 n. 5 (2nd Cir. 1969) :

“In all of these cases the constitutionality of the statute

pursuant to which the answers were given was held to

be irrelevant. . . . This was so because the perjury or

false swearing prosecution was one to punish the de-

fendant for false swearing or for fraud on the Govern-

ment, not one to enforce the invalid statute or regula-

tion pursuant to which the answers were given.”

B. The decisions which do control this case are those

which hold that a public employee cannot be punished for

exercising a constitutional right, even though other grounds

exist which, had they actually motivated the punishment,

would have been constitutionally permissible. See, e.g.,

Perry v. Sindermann, 408 U.S. 593, 596, 598 (1972) ; Fluker

v. Alabama State Board of Education, 441 F.2d 201, 209

(5th Cir. 1971) ; Cook County College Teachers Union v.

Byrd, 456 F.2d 882, 888 (7th Cir. 1972), cert. denied 409

U.S. 848 (1972); Gieringer v. Center School District No.

58, 477 F.2d 1164, 1166 (8th Cir. 1973) ; Langford v. City

of Texarkana, 478 F.2d 262, 266 (8th Cir. 1973). The

identical doctrine has evolved in private employment

cases arising under Section 8(a) (3) of the National Labor

Relations Act, 29 U.S.C. § 158(a) (3): a discharge moti-

vated by union activities is unlawful, even though valid

grounds existed for which the employee might have been

discharged. J. P. Stevens & Co. v. NLRB, 380 F.2d 292,

vad

300 (2nd Cir. 1967), cert. denied 389 U.S. 1005 (1967);

Singer Company v. NLRB, 371 F.2d 623, 624 (8th Cir.

1967); NLRB v. Murray Ohio Mfg. Co., 326 F.2d 509,

517 (6th Cir. 1964).

Indeed, there are numerous NLRB decisions applying this

principle to situations where the employee has flagrantly

falsified his employment application, but the NLRB con-

cludes that the reason motivating the discharge was the em-

ployee’s union activities, not the falsification.* Similarly, ar-

bitrators under collective bargaining agreements recognize

that an employee’s material falsification of his employment

application constitutes “just cause” for discharge,” but they

will not uphold a discharge in fact prompted by other, im-

permissible reasons simply because the employer can prove

that there was such a material falsification.”

The decision below, in sustaining a transfer motivated by

constitutionally impermissible reasons because another, ar-

guably permissible reason existed, thus conflicts with numer-

ous decisions of this Court and of other circuits, indeed with

a heretofore impregnable principle of constitutional law.

C. The court below thought its approach justifiable be-

cause in its view respondents were not sufficiently informed

of Acanfora’s “misconduct” when they transferred him, and

thus should not be “prejudiced” for having failed to be mo-

® Rowe Furniture Corp., 200 NLRB No. 1, 81 LRRM 1569, 1571-

72 (1972); Collins & Aikman, 195 NLRB No. 26, 79 LRRM 1327

(1971) ; Weston Shoppers’ City, Inc., 189 NLRB 234 (1971) ; Jack-

sonville Paper Co., 182 NLRB 6 (1970) ; Photoswitch, Inc., 99 NLRB

1366 (1952).

1 See cases digested under headnote 118.6484 in BNA, Labor Arbi-

tration Cumulative Digest and Index.

™ See, eg., Freuhauf Trailer Co., 58 L.A. 1169, 1171 (1972) ;

Armak Abrasives Division, 60 L.A. 509, 511 (1973) ; Goodyear Tire

and Rubber Co., 52 L.A. 55, 56-57 (1968) ; Gardner-Denver Co., 51

L.A. 1019, 1022 (1968).

tivated by that misconduct when they decided upon the

transfer. The court found sufficient the fact that Superin-

tendent Elseroad listed the omission from the employment

application as one of the three reasons for not wanting to

reinstate Acanfora. But even if this approach of measuring

respondents’ conduct by their reasons for opposing reinstate-

ment rather than their reasons for making the transfer could

Pass constitutional muster—a doubtful proposition’**—its

application in the instant case conflicts with principles enun-.

ciated by courts of appeals in five other circuits. For the

other two reasons listed by Elseroad for opposing reinstate-

ment both related to Acanfora’s homosexuality (see p. 11,

supra), and thus by his own testimony his opposition was

motivated in substantial part by reasons which the court be-

low assumed to be unconstitutional. And five circuits have

held that interference with public employment motivated

even in part by constitutionally impermissible reasons can-

not stand. Simard v. Board of Education of Town of Gro-

ton, 473 F.2d 988, 995 (2d Cir. 1973) ; Skehan v. Blooms-

burg State College, No. 73-1613 (3d Cir., May 3, 1974)

(slip op., p. 12)**; Fluker v. Alabama State Board of Edu-

cation, 441 F.2d 201, 210 (5th Cir. 1971); Cook County

College Teachers Union v. Byrd, 456 F.2d 882, 888 (7th

118 The approach of the court below on this point conflicts with

Rainey v. Jackson State College, 481 F.2d 347, 352 (5th Cir. 1973).

In Rainey, the Fifth Circuit held that, once it is determined that em-

ployment discrimination was visited for constitutionally impermissible

reasons, the “taint . . . carrie[s] forward . . . by inference and [is],

without more, sufficient to make out a prima facie case” that subse-

quent employment discrimination was imposed for the same imper-

missible reasons. Accordingly, the public employer has the burden “to

overcome this” by proving that those reasons played no part in the

subsequent discrimination. Here, the Superintendent, far from dis-

claiming that Acanfora’s homosexuality contributed to his unwilling-

ness to reinstate Acanfora, testified that it was part of his motivation.

12 Because this decision has not yet been officially reported, ten

copies of the slip opinion have been lodged with the Clerk.

Cir. 1972), cert. denied 409 U.S. 848 (1972) ; Gieringer v.

Center School District, 477 F.2d 1164, 1166, n. 2 (8th Cir.

1973) ; Langford v. City of Texarkana, 478 F.2d 262, 266,

268 (8th Cir. 1973).%

Because the decision below creates a conflict on a prin-

ciple of constitutional law which has heretofore been unani-

mously followed by the circuits, it deserves review by this

Court.

D. The line of cases which the court below deemed con-

trolling is distinguishable in other respects as well, and the

question whether the principles there enunciated should be

extended to the quite different situation confronting homo-

sexuals is an important one which should be decided by this

Court.

(1) Each of the cases relied upon by the court below in-

volved a lie in response to a specific question asked by the

Government. In the instant case, the school board did not

inquire on the employment application whether the appli-

cant was a homosexual. Indeed, in our experience that

question is never asked on employment applications. If it

were, the applicant could challenge the question as facially

unconstitutional (i.e. as violative of his right of privacy)

18 This doctrine parallels similar rules applied in other contexts. The

Labor Act condemns a discharge motivated even partially by anti-

Union animus, NLRB v. Jamestown Sterling Corp., 211 F.2d 725, 726

(2d Cir. 1954) ; NLRB v. Great Eastern Color Lithographic Corp., 309

F.2d 352, 355 (2nd Cir. 1962), cert. denied 373 U.S. 950 (1963) ;

NLRB v. West Side Carpet Cleaning Co., 329 F.2d 758, 761 (6th Cir.

1964). Likewise, a general verdict of guilty in a criminal case cannot

stand if one of several possible bases for the verdict is violative of the

First Amendment. Eaton v. City of Tulsa, 42 L.W. 3538, n. * (March

25, 1974); Batchellar v. Maryland, 397 U.S. 564, 569-71 (1970);

Stromberg v. California, 283 U.S. 359, 363-68 (1931). The rationale

for this rule is that where punishment has been imposed on the basis of

both permissible and impermissible grounds, it is impossible to deter-

mine whether it would have been imposed solely on the basis of the

permissible ground, Eaton, supra.

without having to disclose his homosexuality. Because the

question is not asked directly, homosexuals confront a more

perplexing dilemma, as the facts of the instant case demon-

strate. The application asked only that the applicant list

the “professional, service, and/or fraternal organizations of

which you are a member” and “extracurricular activities you

have participated in as a student.” It is well-established

that a school board may not ask applicants for employment

to list every organization to which they belong. Shelton v.

Tucker, 364 U.S. 479 (1960). In recognition of this prin-

ciple, the respondents asked applicants to list their member-

ship only in “professional, service and/or fraternal organi-

zations”, i.e. those memberships which directly bear upon an

applicant’s qualifications for employment. The application

pointedly did not ask for membership in political and other

non-job-related organizations, thus reflecting appropriate

respect for the rights of applicants not to disclose such af-

filiations. Nor could an applicant be expected to understand

that the inquiry about “extracurricular activities” was de-

signed to elicit organizational memberships not sought in the

question specifically addressed to such memberships. Acan-

fora testified that he knew respondents would have regarded

his membership in the Homophiles as “significant” (App.

5), but that is a far cry from knowing that the information

was Called for by the employment application. Thus here,

unlike the cases upon which the court below relied, it is

doubtful whether there was any misrepresentation at all.

(2) Yet another reason why this case is different from

those upon which the court below relied is that the homo-

sexual has no meaningful way, short of forfeiting his con-

stitutional right of privacy, to challenge the propriety of

the questions asked in the employment application. If an

application asked for a listing of membership in political

and other non-job-related organizations, the applicant could

mount an attack upon the questions as facially unconstitu-

tional—a challenge which would be bound to succeed in

light of Shelton v. Tucker. But a facial challenge to the

question actually asked Acanfora, limited as it was to “pro-

fessional, service, and/or fraternal organizations,” would

have been preposterous. Only by disclosing the organization

whose membership he wished to conceal could Acanfora

have mounted a respectable constitutional attack. And by

that disclosure he would have forfeited the very right to

privacy which he sought to protect by non-disclosure.

Of course, Acanfora might have listed the Homophiles,

and then brought suit challenging as unconstitutional the

school board’s failure to hire him. That approach, however,

would have been inadequate for two reasons. First, as noted,

Acanfora’s right of privacy would have been forfeited by the

disclosure. Second, he would never have been able to prove

that the decision not to hire him was motivated by his homo-

sexuality. Montgomery County had 10,000 applications for

teaching employment in 1972, and hired only 719 teachers.

Absent an extraordinary concession by the school officials,

Acanfora would never have been able to rebut the presump-

tion that he was simply among the more than 90 percent of

applicants who were deemed less qualified than the small

percentage hired. ’

One of the critical underpinnings of the line of cases re-

lied upon by the court below is that one may not lie with

impunity when a reasonable means for protecting his con-

stitutional rights is available (there, by challenging the ques-

tions as unconstitutional on their face). Such availability

was considered in Dennis to be critical to the principle enun-

ciated, 384 U.S. 865, n. 11: .

“In short, petitioners chose not only to evade the stat-

ute, but to ignore judicial proceedings likely to clarify

their rights. ... In this context, any claim that it is too

burdensome to test these statutes in the courts is not

entitled to consideration.” (Emphasis added).

Here, as we have explained, Acanfora had no similar option.

There was no practical way he could protect his constitu-

tional right of privacy other than that which he chose.

The implications of the decision below are so harsh, for

so substantial a segment of the populace, that they should

not be allowed to stand absent compelling necessity.

Whether the line of cases relied upon by the court below

should be extended to the quite different circumstances con-

fronting homosexuals is a question which should be decided

by this Court.

III

The disposition of the procedural due process issue by the

court below directly conflicts with a subsequent decision

of the Court of Appeals for the Third Circuit. Although

apparently agreeing with the district court’s holding that

Acanfora was denied procedural due process, the court be-

low concluded that the violation had been cured by the

provision of a de novo hearing in federal court upon the sub-

stantive constitutional claims advanced by Acanfora. A

similar conclusion was reached by the Fifth Circuit on a 2-1

vote in Ferguson v. Thomas, 430 F.2d 852, 858 (5th Cir.

1970), cf. Id., pp. 860-861 (dissenting opinion of Judge

Thornberry).

These decisions directly conflict with the Third Circuit’s

subsequent decision in Skehan v. Bloomsburg State College

No. 73-1613 (May 3, 1974).* In Skehan, the district court

had held, as did both courts in the instant case, that a failure

to afford a constitutionally required administrative hearing

was cured because the teacher had advanced a First Amend-

ment claim which was adjudicated on the merits in the dis-

trict court. On that basis, the district court awarded the

teacher one dollar as the remedy for the procedural due

process violation. The Third Circuit reversed, with the fol-

lowing analysis:

14 Because Skehan is not yet officially reported, we have lodged ten

copies of the slip opinion with the Clerk.

Mey _

“(While it was proper for the court to consider [the

teacher’s First Amendment] claim . . ., it was not proper

to substitute the finding it made for the in-house hear-

ing which the institution should have afforded. . . . Such

a retrospective substitution of the district court’s judg-

ment for that of the administrative hearing officers

seriously undermines the hearing requirement. A dis-

trict court cannot exercise the discretion which is vested

in an administrative hearing board, nor can it bring to

the dispute the same expert knowledge of the academic

environment which should enlighten the deliberations

of an academic hearing agency. A board of his aca-

demic peers might regard Skehan’s scheduling im-

broglio as far more trivial than would a district judge.

A board of his academic peers might say he is guilty

of misconduct, but he should not be fired for that kind

of misconduct. The district judge could not exercise

such discretion. Furthermore, if we countenance the

practice of making findings which the institution should

have made, a substantial incentive for affording pro-

cedural due process prior to contract termination will

be removed. The result will be to place considerable

unreviewable discretion in the hands of the administra-

tors by permitting discriminatory application of the

availability of pre-termination hearings. Those dis-

criminated against will be forced to the expense, incon-

venience and delay of a lawsuit to get what remains of

the due process hearing which should have been pro-

vided by the state at the administrative level in the first

instance. If the due process protection of contract

rights mandated by Board of Regents v. Roth, supra,

and Perry v. Sindermann, supra, is to be meaningful,

the sanction for deprivation of that protection must be

something more than was awarded in this case.” (Slip

op., pp. 14-15).

The Third Circuit thereupon cited a series of decisions of

PEELE AT LEME ALTA LIE AS ALE EE MOLE SENG ILL ONS OES TIES EONS TED MO E LL KILI LORE SLITS SITE UT Sat eae RR

this Court mandating reinstatement and/or backpay as the

appropriate remedies for the denial of a procedurally re-

quired hearing.”

This square conflict among the circuits on an issue which

is bound to arise frequently should be resolved by this Court.

CONCLUSION

For the reasons set forth hereinabove, this petition for writ

of certiorari should be granted.

Respectfully submitted,

MicHaeEL H. GotTesMAN .

Georce H, CoHEN

Bredhoff, Cushman, Gottesman &

Cohen

1000 Connecticut Avenue, N. W.

Washington, D. C. 20036

Davip RusBin

Joe. D. Gewirtz

1201 16th Street, N. W.

Washington, D. C. 20036

Attorneys for Petitioner

15 “See, e.g., Greene v. United States, 376 U.S. 149 (1964) ; Silver

v. New York Stock Exchange, 373 U.S. 341, 365-66 n. 18 (1963);

Vitarelli v. Seaton, 359 U.S. 535, 545-46 (1959); Service v. Dulles,

‘354 U.S. 363 (1957).” (Id., p. 15).

PN IE LIE AE NS OE RE EEN TE Ye ERROR MYR RR 2 SE yo

Fare NET RIT SLE AL TSE TIBI AR,

Appendix 1

APPENDIX

Unitep States Court or APPEALS

FOR THE

FourtH Circurr

No. 73-1788

JoserH Acanrora, III,

Appellant,

Boarp or EpucaTion oF MontcoMErRY County, et al.,

Appellees.

Appeal from the United States District Court for the District

of Maryland, at Baltimore. Joseph H. Young, District Judge.

Argued November 6, 1973

Decided February 7, 1974

Before CLARK, Associate Justice,* BOREMAN, Senior

Circuit Judge, and BUTZNER, Circuit Judge.

Michael H. Gottesman (George H. Cohen, Darryl J. An-

derson, Dennis D. Clark, and Bredhoff, Cushman, Gottes-

man and Cohen on brief) for appellant; Robert S. Bour-

bon for appellees; (Melvin L. Wulf, Marilyn G. Haft and

Elsbeth Bothe on brief for American Civil Liberties Un-

ion, amicus curiae) ; (Stephen J. Pollak, John D. Aldock,

David Rubin, Joel D. Gewirtz, and Shea and Gardner on

brief for National Education Association, Maryland State

Education Association, and Montgomery County Educa-

tion Association, amici curiae).

* Supreme Court of the United States, retired sitting by designation.

PHOS INSTI, BAY MOR TA CRP URINE NARS NEN, Put MBAS ASRSA GN NA SAR PORE FS PMP ONIN PERE MAS SH EON ATES HE TY GOR

2 Appendix

BUTZNER, Circuit Judge:

Joseph Acanfora III appeals from an order of the district

court denying him reinstatement to a teaching position in

Montgomery County, Maryland. The district court held

that the school officials wrongfully transferred Acanfora to a

non-teaching position when they discovered that he was a

homosexual, but it denied relief because of Acanfora’s sub-

sequent press and television interviews. We hold that Acan-

fora’s public statements were protected by the first amend-

ment. We conclude, however, that he is not entitled to re-

lief because of material omissions in his application for a

teaching position. Consequently, without reaching Acan-

fora’s claim that his denial of a teaching position is unconsti-

tutional, we affirm the district court, but on different

grounds.

While Acanfora was a junior at Penn State University he

joined an organization known as the Homophiles of Penn

State, which had as its purpose the development of public

understanding about homosexuality. Acanfora not only at-

tended Homophile meetings, but he served as the group’s

treasurer and joined other members in bringing a lawsuit

that established it as an official university organization. His

public acknowledgement of homosexuality ultimately led to

his suspension from a student teaching assignment, but a

state court promptly ordered that he be reinstated. When

Acanfora applied for teacher certification, however, Penn

State officials differed as to his qualifications and forwarded

his application to the Pennsylvania Secretary of Education

without recommendation.

In the meantime, Montgomery County school officials,

unaware that Acanfora was a homosexual, employed him as

a junior high school science teacher. They didn’t learn of

his homosexuality until several weeks after school opened in

the fall, and only then as a result of a widely publicized

eer yn. Tes ee

Appendix 3

press conference at which the Pennsylvania Secretary of Ed-

ucation announced favorable action on Acanfora’s applica-

tion for teacher certification in that state. Shortly after this

disclosure, the Montgomery County deputy superintendent

of schools transferred Acanfora, without reduction in pay,

from teaching to administrative work in which he had no

contact with pupils. When the school officials did not ac-

cede to Acanfora’s demands that he be returned to his class-

room assignment, he commenced this action.

II.

Following his transfer to an administrative position, Acan-

fora granted several press and television interviews. The

district court characterized the television programs as tend-

ing to spark controversy, and noted an element of sensation-

alism in Acanfora’s remarks. It held that Acanfora’s ap-

pearances were not reasonably necessary for self-defense, but

instead exhibited an indifference to the bounds of propriety

governing the behavior of teachers. Consequently, the court,

ruling that the refusal to reinstate Acanfora or renew his

contract was neither arbitrary nor capricious, dismissed his

suit.

The Supreme Court has explained the general principles

that govern the intricate balance between the rights of a

teacher to speak as a citizen on public issues related to the

schools and the importance the state properly attaches to the

uninterrupted education of its youth. Balancing these inter-

ests, the court has ruled that a teacher’s comments on public

issues concerning schools that are neither knowingly false nor

made in reckless disregard of the truth afford no ground for

dismissal when they do not impair the teacher’s performance

of his duties or interfere with the operation of the schools.

Pickering v. Board of Education, 391 U.S. 563 (1968). Cf.

Johnson v. Branch, 365 F.2d 177 (4th Cir. 1966), cert. de-

nied 385 U.S. 1003 (1967). Acanfora’s public statements

must be judged by these constitutional principles, and not, as

NOE Phe ee EL DEE SRA eS hE LOIRE ES MYST PES

4 Appendix

the district court suggested, by the common law doctrine of

self-defense to defamation.

At the invitation of the Public Broadcasting System,

Acanfora appeared with his parents on a program designed

to help parents and homosexual children cope with the prob-

lems that confront them. Acanfora also consented to other

television, radio, and press interviews. The transcripts of the

; television programs, which the district court fouud to be

) typical of all the interviews, disclose that he spoke about the

aa id aa iret ian ee senda dae — “

difficulties homosexuals encounter, and, while he did not

advocate homosexuality, he sought community acceptance.

He also stressed that he had not, and would not, discuss his

sexuality with the students.

In short, the record discloses that press, radio, and tele-

: vision commentators considered homosexuality in general,

and Acanfora’s plight in particular, to be a matter of pub-

lic interest about which reasonable people could differ, and

Acanfora responded to their inquiries in a rational manner.

There is no evidence that the interviews disrupted the school,

substantially impaired his capacity as a teacher, or gave the

school officials reasonable grounds to forecast that these

results would flow from what he said. We hold, therefore,

that Acanfora’s public statements were protected by the

first amendment and that they do not justify either the ac-

tion taken by the school system or the dismissal of his suit.

Cf. Tinker v. DesMoines Independent Sch. Dist., 393 U.S.

503 (1969); Pickering v. Board of Educ., 391 U.S. 563

(1968) ; James v. Board of Educ., 461 F.2d 566 (2d Cir.)

cert. denied 409 U.S. 1042 (1972).

ITI.

On his application for a teaching position in the Mont-

gomery County Schools, Acanfora responded to a request

for information about his professional, service and fraternal

organizations by mentioning only his student membership

in the Pennsylvania State Education Association. In re-

eet A a ne ee PLEO ALES PRE eae ere rae Ps PREVA IY ATP TGS Se ADORE RY Rpt a -"

RS sarrms

FALSE OIE I OB RG IRS LIE II! EINE NE OE LES TEEN, eS

Appendix 5

sponse to a request for information about his extracurricular

activities, he listed swimming, bowling, student council,

magazine and newspaper staffs, honor society, and Naval

Reserve Officers Training Corps. He made no mention of

his membership and official position in the organization

known as the Homophiles of Penn State. Nevertheless, he

verified that the information he submitted was accurate to

the best of his knowledge.’ His omission of the Homophiles

was not inadvertent. To the contrary, he realized that this

information would be significant, but he believed disclosure

would foreclose his opportunity to be considered for em-

ployment on an equal basis with other applicants.

Acanfora protests that refusal to employ or retain him as a

teacher violates the first and fourteenth amendments. He

contends that the school system cannot defend on any de-

ficiency in his application because it was his homosexuality,

not omissions from the application, that led to the unconsti-

tutional discrimination against him. The school officials ad-

mit that if Acanfora had revealed his affiliation with the

Homophiles they would not have employed him. They as-

sert, however, that Acanfora’s intentional omission of his

connection with the Homophiles bars his attack on the con-

stitutionality of the school system’s employment policy. In

its written opinion, the district court dealt only inferentially

with this aspect of the school system’s defense. It found that

to avoid rejection, Acanfora intentionally did not disclose his

1 The application form for employment in the Montgomery County

school system, which Acanfora signed, contained the following para-

graph:

“Read Carefully Before Signing:

The information as submitted on this application is accurate to

the best of my knowledge, I concur in the above statements and

requirements. I understand that falsification of any information

submitted on this application shall be cause for dismissal from

service. I have signed this application form in the presence of a

notary public, whose signature and seal appear below.”

HTT? SF nop betek.

a lle ity

dE Sia 5 Fatal Gi d Lod igh Setuiden A FRI mS AL Ww!

Oe Cn ee

ee gs

TP eet ee ee

6 Appendix

homosexuality in his application. It also found that the es-

sential reason for Acanfora’s transfer was his admitted

homosexuality. However, it expressed no conclusion about

the effect of Acanfora’s misrepresentation, resting its deci-

sion instead on his public appearances after he was trans-

ferred.

IV.

In a number of criminal cases, the Supreme Court has

held that a defendant charged with fraud may not challenge

the constitutionality of the statute which required him to

furnish the information that he misrepresented. Thus, in

United States v. Kapp, 302 U.S. 214, 217 (1937), a defend-

ant who was indicted for furnishing false information to se-

cure benefits under the Agriculture Adjustment Act could

not assert the invalidity of the Act as a defense. Similarly, a

person charged with making false statements in connection

with a loan lacked standing to question the constitutionality

of the Home Owners Loan Act. Kay v. United States, 303

U.S. 1, 6 (1938). The subject was critically reexamined in

Dennis v. United States, 384 U.S. 855 (1966), and Bryson v.

United States, 396 U.S. 64 (1969), which dealt with the of-

fense of filing false non-Communist affidavits to satisfy the

requirements of the Taft-Hartley Act. Reaffirming earlier

cases, the Dennis Court refused to consider the defendant’s

attack on the constitutionality of the statutory requirement

for the affidavit:

“It is no defense to a charge based upon this sort of

enterprise that the statutory scheme sought to be evaded

is somehow defective. Ample opportunities exist in this

country to seek and obtain judicial protection. There is

no reason for this Court to consider the constitutionality

of a statute at the behest of petitioners who have been

indicted for conspiracy by means of falsehood and de-

ceit to circumvent the law which they now seek to chal-

Appendix 7

lenge. This is the teaching of the cases.” 384 U.S. at

866.

In Bryson, the Court rejected the argument that the mis-

representation was of no consequence because the govern-

ment could not constiiutionally elicit the information:

“But after Dennis it cannot be thought that as a gen-

eral principle of our law a citizen has a privilege to an-

swer fraudulently a question that the Government

should not have asked. Our legal system provides

methods for challenging the Government’s right to ask

questions—lying is not one of them. A citizen may de-

cline to answer the question, or answer it honestly, but

he cannot with impunity knowingly and willfully an-

swer with a falsehood.” 396 U.S. at 72.

The principles stated in Kapp, Kay, Dennis, and Bryson

have not been confined to criminal cases. In at least two in-

stances, Rodriguez v. Seamans, 463 F.2d 837 (D.C. Cir.

(1972) petition for cert. dismissed 409 U.S. 1094 (1973)

and Williams v. United States, 434 F.2d 1346, 1354 (Ct. Cl.

1970) (Nichols, J., concurring), courts have sustained dis-

charges of government employees for furnishing false infor-

mation pertaining to their qualifications despite the fact that

the government’s questions were considered to be an unwar-

ranted intrusion into constitutionally protected rights.

Acanfora asserts that the principles governing the fore-

going cases do not apply to his situation because the school

officials transferred him on account of his homosexuality,

not the omission from his application. He relies on the prin-

ciple that review of administrative action must be confined

to the reasons assigned by the administrative agency. See

e.g., Securities and Exchange Com. v. Chenery Corp., 332

U.S. 194, 196 (1947); Johnson v. Branch, 364 F.2d 177

(4th Cir. 1966) cert. denied 385 U.S. 1003 (1967). This

argument fails, however, because it lacks a clear factual

8 Appendix

basis and because it is predicated on an unduly restrictive

application of the principles expressed in Dennis and Bryson.

Before instituting this action, Acanfora did not exhaust

his administrative remedies, and the school officials con-

ducted no formal hearing. The district court, however, de-

clined to tax either party with these procedural lapses. It

ruled that a remand for an administrative hearing “would

be pointless as the substantive rift has widened and the

parties have shifted their attention to a plenary hearing in

this forum.” Therefore, the district court did not purport

simply to review administrative action of the school officials.

At the instance of both parties, it conducted an extensive

trial on the merits of the case, admitting a great deal of evi-

dence that had not been considered administratively. Under

similar circumstances, we have ruled that a remand for an

administrative hearing was unnecessary. See e.g., Horton v.

Orange County Board of Educ., 464 F.2d 536 (4th Cir.

1972) ; Barker v. Hardway, 399 F.2d 638 (4th Cir. 1968) .?

Accordingly, the consequences of Acanfora’s intentional

omission of significant information from his application must

be determined by examining the entire record of the district

court proceedings, not just the administrative file that was

compiled before the suit was instituted.

After Montgomery County school officials learned that

Acanfora was a homosexual, the deputy superintendent

wrote him that he was being transferred to a non-teaching

position “while we gather information and assess the circum-

stances of the matter.” At the same timc, the school offi-

cials realized that Acanfora’s application was incomplete be-

cause he had failed to include information about his affilia-

tion with the Homophiles. They adverted to this omission

during the course of this litigation, and it is apparent that

2 We do not, however. approve of the parties’ failure to use admin-

istrative remedies to resolve their differences. An effective grievance

procedure might have eliminated this expensive, protracted litigation.

Appendix 9

they suspected Acanfora had purposely misled them.* How-

ever, during the administrative phase of the controversy, be-

fore institution of the suit, they had no proof that his act was

intentional. Not until Acanfora testified at the trial could

the school officials confirm their suspicions that he con-

sciously omitted the Homophiles from his application for a

teaching position to avoid rejection.*

It was Acanfora’s testimony that furnished the school sys-

tem a factual basis for the defense of misrepresentation.

After Acanfora testified, the superintendent of schools un-

’ For example, in an affidavit opposing Acanfora’s motion for sum-

mary judgment, a school official asserted :

“This litigation by reason of plaintiff’s false application, is con-

trived in every sense of the word. He ought not to bootstrap his

way into a constitutional issue out of such untruthfulness. Had

he been truthful, defendants would not have been involved in this

litigation as they would not have hired him in the first place.”

* The deputy superintendent of schools testified :

Q In other words, would it be fair to say that neither the de-

cision to transfer him nor the decision not to return him to the

classroom had anything to do with his competency as a teacher?

A I think the central issue, by that point in time, and we are

talking about late October and November, and so on, was that

what appeared to us to be the fact that he was an advertised,

activist homosexual.

I think there was one other point that I had mentioned earlier.

At least I thought I did, that was of concern to us, and that was

why Mr. Acanfora had not indicated his membership in the

Homophile Society on his application form, and I don’t know that

I ever really knew the answer to that until in this courtroom yes-

terday when Mr. Acanfora indicated that he had consciously de-

cided to withhold that information.

Q Do you recall him further indicating that, in his judgment,

had he written Homophile Society of Penn State University down

as a social, fraternal or extracurricular activity on his application

that in his judgment, that would have ended his opportunity for

employment with the Montgomery County school system?

A Yes, I recall him mentioning that. That was new informa-

tion to me, also.

<p, bts Met

Di Be WS So ta

Oe, Tay Mey ee Ty EET Eee, UE

10 Appendix

equivocally assigned the conscious withholding of informa-

tion as a reason for his unwillingness to reassign Acanfora to

a teaching position.* We conclude, therefore, that the school

system should not be prejudiced because it did not include

in the administrative file, as a reason for denying Acanfora a

teaching position, information about his motives that were

known to Acanfora but unknown to the school officials until

he testified.

Not every omission of information in an employment ap-

plication will preclude an employee from attacking the con-

stitutionality of action taken by the governing body that em-

ploys him. But here Acanfora wrongfully certified that his

application was accurate to the best of his knowledge when

he knew that it contained a significant omission. His inten-

tional withholding of facts about his affiliation with the

Homophiles is inextricably linked to his attack on the con-

stitutionality of the school system’s refusal to employ homo-

sexuals as teachers. Acanfora purposely misled the school

officials so he could circumvent, not challenge, what he con-

siders to be their unconstitutional employment practices. He

cannot now invoke the process of the court to obtain a ruling

on an issue that he practiced deception to avoid. “When

one undertakes to . . . mislead [government officials] by

false statements, he has no standing to assert that the opera-

tions of the government in which the effort to . . . mislead

is made are without constitutional sanction.” Kay v. United

States, 303 U.S. 1, 6 (1938). AFFIRMED.

5 The superintendent of schools testified:

Q Under the circumstances of this matter, as you understand

them, would you reinstate Mr. Acanfora at this time?

A No.

Q What are your reasons for not doing so?

A You mean reinstate or reassign?

Q Reassign to the classroom setting.

A There are several reasons. Mr. Acanfora did not provide

and consciously withheld information on his application which he

was required to provide in the employment process. . . .”

Appendix 11

United States District Court

for the

District of Maryland

[Issued May 31, 1973]

[Caption Omitted]

MEMORANDUM OPINION AND ORDER

In an action brought pursuant to the Civil Rights Act of

1871, 42 U.S.C. §1983 (1970) with jurisdiction founded on

28 U.S.C. §§1343(3), 1343(4), and 1331 (1962, 1966),

plaintiff Joseph Acanfora, III, a teacher under contract with

the Montgomery County Board of Education, alleges that his

transfer on September 26, 1972, from a classroom teaching

position to a non-teaching position in the Department of

Curriculum and Instruction resulted from the discovery of

plaintiff's admitted homosexuality and, as such, violated his

constitutional rights.

Defendants include the Board of Education—as well as its

President, Vice-President and members individually—the

Superintendent of Schools, and the Deputy Superintendent

of Schools, all of Montgomery County, Maryland.

Acanfora attended public schools in New Jersey, and,

after graduation from high school, entered Penn State Uni-

versity in the autumn of 1968. Having initially pursued

studies in meteorology, he switched to an education major in

his junior year, inclined more to a profession where he might

work with people. Approximately at the same time, in the

autumn of 1970, a homophile group was organized on cam-

pus, dedicated to ending discrimination against homosexuals

and developing understanding of homosexuality. Acanfora,

aware of his own homosexuality, joined and became Treas-

12 Appendix

urer. In January, 1971, the group sought official recognition

from the University. When the request was approved by the

student government but denied by the administration, legal

action followed in which Acanfora agreed to participate as a

plaintiff, along with three other students. In the spring of

1971, during press interviews relating to the litigation, he

stated publicly his homosexuality, and emphasized his belief

in the unconstitutionality of the action of the University.

While on assignment as a student teacher in the State Col-

lege Area School District, Acanfora taught for six and one-

half weeks before suspension by the Dean of the College of

Education in late February, 1972, on the grounds of mem-

bership in the homophile organization. Following a new

lawsuit, he was reinstated and completed his student teach-

ing assignment, receiving a satisfactory evaluation. Plaintiff

alleges he did not discuss homosexuality. with students or col-

leagues, inside or outside the classroom.

In the spring of 1972, Acanfora applied for a teaching

position with a number of different school systems, including

Montgomery County. Following several interviews, he re-

ceived an offer to teach eighth-grade earth science at Park-

land Junior High School in Montgomery County. The offer

was followed by a contract dated July 13, 1972 for the 1972-

73 school year. Acanfora intentionally did not disclose his

homosexuality during the interviews or in the official appli-

cation form which provides for disclosure of membership in

organizations and extracurricular activities, motivated by a

desire to avoid rejection in light of his student-teaching ex-

perience in Pennsylvania.

During the spring of 1972, Acanfora also applied for certi-

fication to teach in Pennsylvania, a prerequisite to which is a

finding of “good moral character.” After a hearing at which

plaintiff explained the professional relationship necessary

between student and teacher, the intention never to discuss

or encourage homosexuality, and the belief that homosexuals

should gain legal rights and be free from specific hatred and

Appendix 13

fear, a special six-member panel split evenly and turned the

matter over to the Pennsylvania Secretary of Education,

John Pittenger. Plaintiff’s exhibit 4 (PX-4).

On August 29, 1972, plaintiff began teaching at Parkland

and initial reports from the resource teacher in science

(equivalent to the Chairman of the Department), indicate

that his performance was satisfactory. On September 22,

1972, Secretary Pittenger held a news conference in Harris-,

burg to announce that Acanfora would be certified in Penn-

sylvania. News reports of the tie-breaker appeared in the

New York Times'and Washington Post; and on September

26, 1972, having learned of the reports and consulted col-

leagues, Deputy Superintendent Dr. Donald Miedema in the

absence of the Superintendent and with no opposition from

the Board of Education transferred plaintiff to a non-teach-

ing position, at no loss in salary, pending investigation.

The subsequent investigation can best be described as

cursory, including a brief discussion with the psychiatrist for

the school system. It is quite clear from the evidence that ,

the essential reason for the transfer was that Acanfora is an

admitted homosexual. Moreover, Dr. Miedema stated that

the Board of Education would not knowingly hire a homo-

sexual. That Acanfora is the only member of the Depart-

ment of Curriculum and Instruction lacking more than a

baccalaureate degree and several years professional experi-

ence is simply corroborative of this.policy. The Board has in

no way attacked Acanfora’s classroom performance, nor has

it charged Acanfora with bringing up the subject of homo-

sexuality in the school environment. The evidence is that he

is competent and that he did not discuss his private life

while at school.

The transfer, in addition to sparking this litigation neces-

sarily had an impact within the school community. Students

and faculty separately petitioned for reinstatement. [Several

teachers in the Montgomery County’ School System called

plaintiff to encourage him, but noted that they would re-

SSeS ee ees an ea OE eee O ee Saaen fry tnt nad wren ees

14 Appendix

frain, under the ciechiantaons, from associating themselves

with him and his cause. ]

More significant, as has been the pattern in controversial

cases of recent years, plaintiff took his case to the people. He

accepted offers, before and after the institution of this law-

suit on November 7, 1972, to discuss his case on a number of

local and national television and radio shows, ahd with sev-

eral newspapers, including:

1. ‘A 15-minute interview on the Metropolitan Wash-

ington television program “Panorama” with Maury Po-

vich, on October 26, 1972.

, 2. A 45-minute interview on the Metropolitan Wash-

ington WWDC radio program Bi ace on Novem-

ber 1, 1972.

3. An interview on, the educational television show

“How Do Your Children Grow” on the Public Broad-

casting System, the second week of November, 1972.

4. Participation in a 20-minute segment on the Co-

lumbia Broadcasting System national news review “60

Minutes” on February 25, 1973.

5. Telephone interviews with The Montgomery

‘County Sentinel and The Montgomery County Tribune.

Transcripts of the two national television broadcasts are a

part of the record. PX-7, 8.

The edition of “How Do Your Children Grow” is unique

in that, moderated by psychiatrist Eda Leshan, it deals only

peripherally with plaintiff’s transfer and this litigation. De-

signed to educate children and parents in situations similar

to that of the Acanfora family, the program gives thoughtful

and serious insight into a problem which merits considéra-

tion. The segment on “60 Minutes,” representative in sub-

ject matter of the other media coverage, albeit the most re-

cent, focuses on the circumstances of this particular lawsuit.

In the course of his television exposure, Acanfora stresses

2 - Lee ail sree fortes. —_ = von

Sil a et tA nett Catt ie aT TT

Appendix 15

again his disinclination to discuss matters of sexuality in the

school environment, saying:

No, I have never brought my private life into the

classroom—my sexuality or any other part of my private

life into the classroom—or discussed sexuality with any

of my students, either here or in Pennsylvania. And so,

in fact, I would say I’ve never even talked to other

teachers about it, and there was no way—known in the

school system that I was gay until the school system de-

cided to transfer me... .

I never went out of my way to say, ‘Here I am, a

homosexual. What are you going to do with me?”

Transcript of “60 Minutes,” p. 12.

Neither is Acanfora inclined to hide his homosexuality.

Many of my friends have asked me why I’m doing

this, why I just don’t go some place and be a teacher

and not let the gayness enter into it at all. But the fact

is that I’m gay, just like the fact is that other teachers

are straight or heterosexual. But I’m sure a heterosex-

ual teacher isn’t going to live his life a complete lie and

hide what he is and I have no intentions of doing that

either. I have every right to be what I am. I have every

right to be a teacher. And I plan on doing both.

Ibid. p. 8

_ The defendants declined to participate in media coverage,

or to alter the decision to deny plaintiff reinstatement and

have refused to renew the 1972-73 contract.

The evidence further establishes that Parkland has an

equal representation of sexes on the faculty and that a stu-

dent in plaintiff’s earth science class would be under his tute-

lage for one fifty-minute period every day out of seven or

eight class periods, including homeroom.

To complete the story, plaintiff recently became a mem-

ber and delegate of the gay caucus of the National Educa-

L eee SAA ACS HARARE MN LNB RPI LAE ONES HE BANE URE HENNE NGAP LGN AUBIN RENE ASE DEES SPATS

id > om re aS x ] be ioe

16 Appendix

tion Association, in anticipation of the upcoming conven-

tion. He has attended meetings, but is not active, in the

Washington Gay Activists Alliance, which pleaded his cause

to the Montgomery County Board of Education. Finally,

plaintiff has received his certification to teach in Maryland.

The Court appreciates the substantial expert evidence di-

rected toward the effect of a known homosexual teacher on

students in the circumstances of this case. The experts have

impressive curricula vitae, which are a part of the record

and will not be reproduced in detail here. (It is noteworthy

that defendants did not contact their experts until shortly

before trial.)

Dr. Reginald Spencer Lourie, a pediatrician and child

psychiatrist, Professor of Child Health and Development at

George Washington University Medical School and Director

of Psychiatry at the Hillcrest Children’s Center in Washing-

ton, emphasized the importance of the adolescent period as

the stage at which a child overcomes the transitional homo-

sexuality typical of the preadolescent period. For the popu-

lation of children with bisexual tendencies, estimated at

about 3%, it is a period of decision or choice. Convinced

that a known homosexual teacher might serve as a model for

such children, Dr. Lourie suggested that the removal of

plaintiff would result in freer choice. An awareness that

homosexuality may specifically cause mental and emotional

problems in a culture which stigmatizes it underlies this as-

sumption, and that of most experts, that prevention of homo-

sexuality is a worthwhile goal. Dr. Lourie relied on his years

of clinical and academic experience to support his argument

that Acanfora might serve as a model for adolescents. He

referred to no data on point, but noted that the theoretical

determinants of homosexuality are still substantially a matter

of controversy. In the context of social reality, he analogized

the removal of Acanfora from the classroom to a vaccina-

tion, admitting that one does not know precisely how many

subjects are affected.

nnd

Appendix 17

That there are other determinants of homosexuality and

of mental and emotional disturbance, including some kinds

of relations between heterosexual teachers and students, does

not change the conclusion. Dr. Lourie maintained that one

cannot escape the cultural definition of homosexuality as

abnormal and the need to give children the utmost oppor-

tunity to be essentially normal in this important phase of life.

He narrowed his opinion, however, to known homosexuals

who teach at the junior high school level, excluding private

homosexuals, and known homosexuals who teach at the ele-

mentary or high school level. In other words, homosexuality

does not preclude competence.

Dr. Felix P. Heald, Professor of Pediatrics at the Univer-

sity of Maryland Medical School, took essentially the same

position for the same reasons. He suggested it would be im-

possible for the students to separate Acanfora’s homosexual

identity from his identity as an earth science teacher, and

that Acanfora’s presence would necessarily give rise to an un-

due influence, as would the presence of a heterosexual teach-

er who makes known facts concerning private life. Dr. Heald,

moreover, would draw the line at junior high and high

school. -

Dr. Stanford B. Friedman, Professor of Pediatrics and

Psychiatry at the University of Rochester Medical School,

and to assume a similar position at the University of Mary-

land as Director of the Human Development program, took

a sharply different position. Noting the paucity of data on

point, he opined that the influence of Acanfora would be

marginal in the complex school and home environment of

the student, and in addition felt that Acanfora’s role as a

teacher could drastically be distinguished from his role as a

homosexual in terms of model choice. In other words, the

real problem for Dr. Friedman is the projection of societal

and parental fear on to the teacher. In support of his view,

Dr. Friedman alluded to the greater importance of parent-

child relationships in the early childhood years, demonstrat-

18 Appendix

ed by the research of Dr. John Money. He furthermore at-

tributed importance to the idea that any teacher may pose a

risk to a particular portion of the student population. For

example, a bisexual child might feel threatened by a very

masculine heterosexual teacher. As to the model theory, in

addition to noting the existence of many other possible

models, Dr. Friedman observed that the students might re-

act that Acanfora is a good teacher in spite of his homosex-

uality because of the strong peer group and social pressure

directed against this minority. Given that there is much to

be learned about adolescent psychosexuality, he would not

single out any one hypothesis as the more likely.

Dr. William R. Stayton, a psychologist, holder of a doc-

torate in theology, and instructor in Family Psychology at

the University of Pennsylvania Medical School, also ques-

tioned the conclusion that Acanfora’s presence would have a

deleterious effect on students. From his experience in coun-

seling persons regarding homosexuality, and given his ac-

ceptance of the view that persons are sexually predisposed

by the age of five or six, Dr. Stayton adds that Acanfora

would have a beneficial effect by serving as a role-model for

homosexuals, aiding bisexuals in bringing into the open their

problems with the appropriate counselor, and possibly re-

solving them. In other respects, he echoed in substance the

opinion of Dr. Friedman.

Dr. John Money, Professor of Medical Psychology and As-

sociate Professor of Pediatrics at the Johns Hopkins Univer-

sity Medical School, nationally known for his research on the

etiology of homosexuality, or “the differentiation and dimor-

phism of gender identity,” took the position that a person’s

sexual orientation is determined by the age of five or six.

Dr. Money documented and explained his research in Man

& Woman, Boy & Girl, Johns Hopkins University Press, Bal-

timore and London, 1972, with Anke A. Ehrhardt as co-

author. Analogizing the development of sexual identity to a

program or relay, Dr. Money traced the “message” from the

Appendix 19

genes and chromosomes, to the gonads, to the hormonal sec-

tions of the gonad cells, to the body and brain, and through

the early childhood environment. As in the teaching of a

language, each component plays its part. The child-rearing

stage serves normally to show the child the importance of

identifying with the parent of the same genetic sex and com-

plementing the opposite. Dr. Money’s findings are impres-

sive and appear to expand the frontiers of knowledge of the

differentiation of gender identity.

Corresponding to these findings is his opinion that, at the

eighth grade level, Acanfora is not likely to cause a higher

incidence of homosexuality. As to possible psychological con-

sequences to bisexual and homosexual adolescents Dr. Money

began by noting that students already face a wide variety of

imputs, including social, parental and peer group taboos on

homosexuality. A bisexual may then possibly feel a sense of

freedom to disclose his anxiety to a parent or physician and

thereby gain the best chance to turn to heterosexuality. In

addition, although a homosexual teacher is no more likely

than a heterosexual to serve as a model generally, and less

likely to be sexually attractive to a homosexual, Acanfora

might serve the function of demonstrating to students that a

homosexual can meaningfully participate in society. This is

obviously constructive for homosexuals and also encourages

a more reasonable attitude from heterosexuals.

In discussing the cause of homosexuality in prisons or

schools for boys, Dr. Money stressed the importance of dis-

tinguishing homosexual behavior as a substitute for normal

sexual drives from homosexuality as a gender identity. In

concluding an essential predisposition by the age of five, he

directed his remarks toward the latter.

He also noted that from three to five per cent of the adult

population is homosexual to varying significant degrees. This

appears to be the rough consensus of experts.

Finally, counsel have supplied a copy of the National In-

stitute of Mental Health Task Force on Homosexuality: Fi-

20 Appendix

nal Report and Background Papers (1972). Evelyn Hooker’s

article on Homosexuality, written in 1968, expresses the view

that a combination of biological, cultural, psychodynamic,

structural and situational factors cause and impinge on

homosexuality. Professor Edwin M. Schur in his article,

Sociocultural Factors in Homosexual Behavior, underlines

those titled factors. The Task Force also includes an earlier

article of Dr. Money, along with a supplement from his lat-

est book. The Task Force recommends a thoughtful reassess-

ment of employment policies, but does not specifically deal

with the case of homosexual teachers. There were several

dissents to the recommendations generally on the ground

that not enough is known about the causes, characteristics

and effects of different kinds of homosexual behavior to reach

reasoned scientific conclusions.

Upon the above expert evidence, while Dr. Money’s re-

search and opinion deserve special recognition, it would be

premature to state definitively that Acanfora’s presence in

the classroom will have no deleterious effect. It is fair to state

that factors present in the embryonic and early childhood

stages appear to have the greatest impact, but that the book

is by no means closed on the possible behavioral and socio-

cultural impact stressed by Drs. Lourie and Heald and Pro-

fessor Schur. A finding that sexual orientation is in large

part predisposed by age five or six does not preclude an in-

cremental effect of a teacher on a bisexual adolescent. Al-

though speculation has drifted to the numerous possible posi-

tive and negative effects different kinds of teachers may have

on particular students, the Court cannot ignore the specific

danger noted by defendant’s experts. The danger does not

seem as great or as likely as defendants have assumed, but it

is not illusory. In conjunction with the attitudes of parents

and interested citizens in the school community, the instruc-

tion of an eighth-grade earth science class by a known homo-

sexual poses sensitive problems, both for relationships among

students and between students and parents.

Appendix 21

The Superintendent of Schools in each Maryland county

may transfer a teacher as the needs of the school system re-

quire, pursuant to Article 77, §62 of the Maryland Anno-

tated Code (1969 Replacement Volume). While the in-

formed judgments of educational administrators usually de-

serve due deference, see San Antonio School District v. Rod-

riguez, 41 U.S.L.W. 4407 (U.S. March 21, 1973), the law

does not permit the impairment of constitutionally protected

interests. Perry v. Sindermann, 408 U.S. 593 (1972), Pick-

ering Vv. Board of Education, 391 U.S. 563 (1968). A state

may not condition government employment on the surrender

of a constitutional freedom. Keyishian v. Board of Regents,

385 U.S. 589 (1967); Shelton v. Tucker, 364 U.S. 479

(1960). It is “self-evident” in this Circuit that objections by

a Board of Education to the exercise of personal and associa-

tional liberty, for example with respect to civil rights activ-

ism, would not justify non-renewal of a contract so long as

the activities do not interfere with the educational process.

Johnson v. Branch, 364 F.2d (4th Cir. 1966). And it is no

defense that the Board merely transferred Acanfora, for the

measurement of abridgment of constitutional rights is not

confined to dollars and cents. To rule otherwise would fa-

cilitate subtle circumvention of the law so carefully devel-

oped by the highest court of this land.

II.

The guarantee of liberty in the Fourteenth Amendment is

greater than the sum of particular rights guaranteed in the

first eight amendments. The substantive doctrine of due

process, advancing this proposition, originated in cases sus-

taining the individual right to contract and to work against

unreasonable state legislation. Allgeyer v. Louisiana, 165

U.S. 578 (1897); Lochner v. New York, 198 U.S. 45

(1905) ; Adair v. United States, 208 U.S. 161 (1908) ; Cop-

page v. Kansas, 236 U.S. 1 (1915); Adkins v. Children’s

Pier aee

SR PREPAY POT! FEET ROE ORI Re ek oe Speryreennk

: 22 Appendix

Hospital, 261 U.S. 525 (1923); See Jacobson, Federalism

and Property Rights, 15 N.Y.U.L.Q. Rev. 319 (1938). Op-

posed to this doctrine is the thought that the Constitution

does not dictate any particular economic theory, that courts

} should not sit as “super legislatures,” subjectively deciding

on fundamental fairness. This also interrupted, but did not

‘ destroy, the growth of the idea that in matters touching per-

sonal liberty, the Fourteenth Amendment expresses an inte-

gral philosophy of liberal democracy, not simply an amal-

: gam of differentiated clauses. Meyer v. Nebraska, 262 U.S.

390 (1923); Palko v. Connecticut, 302 U.S. 319 (1938);

Griswold v. Connecticut, 381 U.S. 479 (1965) ; Loving v.

Virginia, 388 U.S. 1 (1967) ; Eisenstadt v. Baird, 405 U.S.

438 (1972) ; Roe v. Wade, 41 U.S.L.W. 4213, (US. Jan. 22,

; 1973). The quest for judicial objectivism, proposed as most

; nearly attainable by the incorporation of the particular lan-

; guage of the first eight amendments by the Fourteenth,

; proved illusory, for that language itself is subject to varying

interpretation. See Griswold, supra (Harlan, J., concurring

opinion) and cases there discussed. See, for example, Mapp

v. Ohio, 367 U.S. 643 (1961) ; Miranda v. Arizona, 384 U.S.

436 (1966) ; Katz v. United States, 389 U.S. 347 (1967).

While a court must necessarily bear a sense of proportion,

with respect to precedent and social mores, a rigidly re-

strictive theory of interpretation, avoiding the dangers of ju-

dicial activism, is open to criticism for abdication of the duty

to expound the Constitution.

In this spirit, the Supreme Court has created a sphere of

protectable interests, including, but not limited to, the inter-

ests specifically designated in the first eight amendments, as

“essential to the orderly pursuit of happiness by free men.”

Meyer, supra, 262 U.S., at 399. It is noteworthy that this

sphere includes the right to pursue a career, Meyer, supra;

the right to freely associate for the promotion of political and

social ideas, Wiemann v. U pdegraff, 344 U.S. 183 (1952);

Sweezy v. New Hampshire, 354 U.S. 234 (1957) ; Shelton,

PLT YS CLOPELELOIE AE ONI P NEES RS Oe SE 2

Appendix 23

supra; Keyishian, supra; Bruns v. Pomerleau, 319 F.Supp.

58 (D. Md. 1970) ; the right to procreate, Skinner v. Okla-

homa, 316 U.S. 535 (1942) (Stone, C.J., concurring opin-

ion) ; the right to marital privacy and choice, Griswold, su-

pra; Loving, supra; and the right to contro! matters affecting

reproduction, regardless of marital status, Eisenstadt, supra;

Roe, supra. State action impinging on a protectable interest

draws especially careful judicial review.

As autonomous and rational beings, individuals are capa-

ble of reasoned decisions in pursuit of chosen goals. Given

man’s imperfect knowledge, full freedom of thought and

association is imperative for individual self-development and

social progress. So long as the freedoms of others are not

affected, a government intended to promote the life, liberty

and happiness of its citizens must abstain from interference

with individual pursuits, no matter how unorthodox or re-

pulsive to the majority. As social animals, individuals neces-

sarily place importance on friendships and relationships of

trust. Hence the development of a right of privacy. Gris-

wold, Katz, Eisenstadt, Roe, supra.

Great concepts like . . . ‘liberty’ . . . were purposely

left to gather meaning from experience. For they relate

to the whole domain of social and economic fact, and

the statesmen who founded this Nation knew too well

that only a stagnant society remains unchanged. Na-

tional Mutual Ins. Co. v. Tidewater Transfer Co., Inc.,

337 U.S. 582 (1948) (Frankfurter, J., dissenting opin-

ion). See Roe, supra (Stewart, J., concurring opinion).

In this context, the time has come today for private, con-

senting, adult homosexuality to enter the sphere of constitu-

tionally protectable interests. Intolerance of the unconven-

tional halts the growth of liberty.

This case would be different if homosexuals were generi-

cally psychotic or suffering from such emotional disturbance

as to impair everyday functioning. It is debated whether

SE SLIP LEAL RAE OPE IEMA OSL MT GE Sn

24 Appendix

homosexuality is a sexual character disorder resulting from

abnormal development. See Note, Government-Created Em-

ployment Disabilities of the Homosexual 82 Harv. L.Rev.

1738, 1743 (1969), (cited hereafter as Disabilities) ; Fisher,

The Sex Offender Provisions of the New Maryland Criminal

Code: Should Private Consenting Homosexual Behavior be

Excluded. 30 Md. L.Rev. 91, 100-02 (1970) (cited here-

after as Sex Offender Provisions). It is undisputed, however,

that homosexuality per se does not preclude successful job

performance. See Norton v. Macy, 417 F.2d 1161 (D.C.

Cir. 1969), Morrison v. State Board of Education, 1 Cal.3d

314, 461 P.2d 375 (1969), In Re Labady, 326 F.Supp. 924

(S.D.N.Y. 1971), Disabilities, supra; Sex Offender Provi-

‘ sions, supra.

: This case would likewise be different if homosexuality pre-

: sented a threat to the survival of the species.

Accordingly, it bears restatement that

. . an opinion on a point of conduct, not supported by

: reasons, can only be one’s personal preference, and if

the reasons when given are a mere appeal to a similar

preference felt by other people, it is still only many

people’s liking instead of one. J. S. Mill, “On Liberty”

132 (reprinted in The Six Great Humanistic Essays of

John Stuart Mill, Washington Square Press, New York,

1963)

Two important recent studies reached similar conclusions,

The Wolfenden Report, prepared for the British Parliament

by the “Committee on Homosexual Offenses and Prostitu-

tion” (1957) and enacted into law in 1967, dictates that pri-

vate adult homosexuality not be a criminal offense.

There remains one additional counter argument

which we believe to be decisive, namely, the importance

which society and the law ought to give to individual

freedom of choice and action in matters of private mo-

rality. Unless a deliberate attempt is to be made by

pRB neato es: ONS EE OS TELL MELA LLY GILLIES ION ES CLR ALRITE ANTE:

Appendix . 25

society, acting through the agency of the law, to equate

the sphere of crime with that of sin, there must remain

a realm of private morality and immorality which is, in

brief and crude terms, not the law’s business. Wolfen-

den Report, at 48.

On a broader scale, a study of American penal law under-

taken by the American Law Institute suggested exclusion

from criminal law of all sexual practices not involving force,

adult corruption of minors, or public offense. Absent harm

to the secular community, this area is of distinct concern to

spiritual authorities, in conformity with the spirit of separa-

tion of church and state. See Model Penal Code §207.5(1),

Comment (Tent. Draft No. 4, 1955). Illinois and Connecti-

cut were first to adopt this position, followed in substance by

New York. See Sex Offender Provisions, supra, at 104-05.

The Court is cognizant that numerous states prohibit pri-

vate, consenting homosexuality. Maryland arguably is among

them, prescribing criminal sanctions for sodomy and unnat-

ural or perverted sexual practices. Md. Ann. Code Art 27,

§554 (1971 Replacement Volume). It is of great import,

however, that despite the substantial activity, no reported

case reveals the enforcement of this law against private

homosexuality. See Sex Offender Provisions, supra, at 95-97.

Such lack of enforcement is not peculiar to Maryland. Proj-

ect, the Consenting Adult Homosexual and the Law: An

Empincal Study of Enforcement and Administration in Los

Angeles County, 13 U.C.L.A. L.Rev. 643, 688-89 (1966) ;

Ploscowe, Sex Offenses in the New Penal Law, 32 Brooklyn

L.Rev. 274, 284 (1966). The sweeping invasion of privacy

which would necessarily accompany enforcement explains

this phenomenon, raising severe questions regarding the in-

ner morality of a law beset by internal contradictions and a

lack of congruence between official action and declared rule.

See L. Fuller, The Morality of Law, 65-70, 81-90, Yale Uni-

versity Press (Rev. Ed. 1969). Assuming further no signifi-

cant decline in homosexuality since the famous Kinsey re-

REE PRIA EE PMY REE TNE LIE LITRES TE TEER IS MELD TLL IELTS ENE NITE OT BREE G

Py Een See eT et Pe eae

LE eee nee er TR

26 Appendix

port, the law raises additional concern over the impossibility

of compliance, contributing to contempt for the legal system.

See L. Fuller, of cit. 70-79. A. Kinsey, W. Pomeroy, and C.

Martin, Sexual Behavior in the Human Male (1948), Mor-

rison, supra.

It is no less true now than when written in 1859 that al-

though society no longer puts heretics and sinners to death, «

nor does it act so vigorously as to stamp them out, it cannot

flatter itself as free from the stain of legal persecution. The

chief harm in these laws is the perpetuation of social stigma,

cramping mental development, cowing reason, and repress-

ing human expression for fear of social disfavor. See J. S.

Mill, op cit. 154-58.

Such are the differences in the nature of human beings

that unless there is a corresponding diversity in their modes

of life, they neither obtain their fair share of happiness nor

grow up to the mental, moral and aesthetic stature of which

their nature is capable. Ibid. 192. Preservation of the at-

mosphere of freedom in an imperfect world is furthermore

essential to the advancement of mankind. Ibid. 181. The

practical application of these principles is most urgent for

those who differ from the prevailing mode, for it is the ma-

jority which defines common conceptions and morality.

Il.

Corollary to the proposition that ordered liberty protects

private, consenting, adult homosexuality is the notion that

discrimination directed at such activity is “suspect” under

the Equal Protection clause of the Fourteenth Amendment.

Should the conclusion reached in Section II of this opinion

be incorrect, however, it would be necessary to consider inde-

pendently the application of the law of equal protection.

Speaking for four members of the Court, Mr. Justice

Brennan recently announced that sex is a “suspect” classifica-

tion, arguably joined by Mr. Justice Stewart in a brief con-

curring opinion. Frontiero v. Richardson, 41 U.S.L.W. 4609

Appendix =

(U.S. May 14, 1973). While from this, it does not necessar-

ily follow that sexual preference is similarly “suspect” as a

classification, the broad thrust of the opinion of the Court

substantially supports extrapolation,

. since sex, like race and national origin, is an im-

mmitable characteristic determined solely by the accident

of birth, the imposition of special disabilities upon the

members of a particular sex because of their sex would

seem to violate ‘the basic concept of our system that

legal burdens should bear some relationship to individ- |

ual responsibility’ . . . And what differentiates sex

from such nonsuspect statutes as intelligence or physical

disability, . . . is that the sex characteristic frequently

bears no relation to ability to perform or contribute to

society. (Emphasis supplied, citation omitted.) Fron-

tiero, supra, 41 U.S.L.W. at 4612.

- Assuming, however, that the sense of history relied on by

Mr. Justice Brennan to supplement this analysis would not

support such an extension of the law, it is appropriate to re-

state the more usual standard of equal protection, that, at

the very least, :

A classification must be reasonable, not arbitrary, and

must rest upon some ground of difference having a fair

and substantial relation to the object [of the state ac-

tion], so that all persons similarly circumstanced are

treated alike. Reed v. Reed, 404 U.S. 71 (1971).

IV.

The principles basic to liberty are appropriate to the ma-

ture, reasoning individual. Society, however, has an interest

in protecting children from themselves as they develop their

ability to think and act independently in the surrounding

culture. For the purpose of education, responsible officials

and parents necessarily have considerable discretion.

28 Appendix

_ It is true that state control of education runs a consider-

able danger of yielding to the dictates of the majority on

matters deserving full academic discussion. Thus, the Su-

preme Court has found it necessary to protect freedom of

: academic discussion and expression of minority views on

4 numerous occasions in recent years, especially in political

matters. Sweezy, supra; Keyisshian, supra; Tinker v. Des

Moines Independent School District, 393 U.S, 503 (1969),

Cohen v. California, 403 U.S. 15 (1971). On matters be-

yond the sphere of academic or political expression, the

Court indicated that speech would be protected absent a

deleterious or disruptive effect on children or the educational

_ process. Pickering, supra.

dic as ME CR ACO tet naa

. At the first level of analysis, it is entirely clear that if

Anite s homcsexuality had remained undiscovered to the

general school commnity, there could have been no dele-

terious effect. For example, if Acanfora had admitted con-

fidentially on his application that he is a homosexual, but

that he had no intention of publicizing the fact, denial of

employment for that reason would be unconstitutional. In

this centext, the Board of Education’s policy of not know-

ingly employing any homosexuals is objectionable.

At the second level of analysis, the Court must consider

the legitimacy of the transfer on September 26, in the con-

text of the subsequent cursory investigation and the failure

to provide first an administrative hearing. °

A state educational institution must afford a transfer hear-

ing to a teacher whom it has hired under formal contract

with the “clearly implied promise” of continued employment

in a classroom teaching capacity for the duration of that

contract. See Roth v. Board of Regents, 408 U.S. 564

(1972), Connell v. Higginbotham, 403 U.S. 207, 208

(1971). It must likewise afford a hearing in order that the

appellant might refute charges which tend to damage his

reputation in the community. Roth, supra. While the facts

dN a a aa nents ene te TE EERIE SBE TON IY IES

Appendix 29

here are undisputed, the implications are open: to contro-

versy.

At this time, however, a remand for administrative pro-

cedural due process would be pointless, as the substantive

rift has widened and the parties have shifted their attention

to the plenary hearing in this forum. The prejudgmer:t of

the controversy by defendants casts doubt on the prespective

fairness of such a procedure. Cf. Kelly v. Board of Educa-

tion of the City of Nashville, 159 F. Supp. 272 (M.D. Tenn.

1958), Amos Treat & Co. v. Securities and Exchange Com-

mission, 306 F.2d 260 (D.C. Cir. 1962) ; see the discussion in

Gibson v. Berryhill, 41 U.S.L.W. 4576, 4581 (U.S. May 7,

1973).

The doctrine requiring exhaustion of administrative reme-

dies by a plaintiff does not apply to this case. The cognate

argument belatedly made by the defendants, that the plain-

tiff is estopped from raising procedural objections because of

his failure to take advantage of an administrative complaint

procedure operative for involuntary transfers, is insufficient

since the burden under Roth is not on the teacher. More-

over, the effectiveness of this procedure is questionable. De-

fendants never apprised plaintiff of its existence and did not

appear to be aware of it until the filing of post trial briefs.

As the matter stood on September 26, 1972, the transfer

was occasioned by the fact that Acanfora became a known

homosexual. The cause of the publicity was, in the imme-

diate sense, independent of plaintiff's speech and action.

There is no evidence that during the period of his empioy-

ment prior to transfer, Acanfora made his homosexuality

known to the school community.

While it might be argued that the newspaper reports can

be traced ultimately to Acanfora’s decision to join the homo-

phile organization at Penn State as first cause, this Court is

unwilling to penalize plaintiff for lawful membership in a

college student group which led to publicized legal entangle-

ment over certification in Pennsylvania. In other words, a

—

ers BERRA NPE SIAR INL IL ALT IMPALED ED HANLON NAR OE 8 PRS RDI NNN OT CT

30 Appendix

different standard will apply in this case to plaintiffs speech

and action after his college graduation and the signing of the

contract to teach.

The analysis must finally stretch to the post-transfer pub-

licity in which plaintiff had a role. If private, consenting

adult homosexuality is “protectable,” it follows from the

First Amendment that public speech, organization and as-

sembly in support of that goal by ordinary citizens is also

protectable. This syllogism does not, however, encompass

the definition of the boundaries of protectable speech and

association of teachers, who hold a special position of trust

and responsibility in the educational process.

The exchange of views in the market place of ideas oc-

cupies the most brilliant orbit in the constitutional solar

system. New York Times v. Sullivan, 376 U.S. 254 (1964).

Political thought is especially fundamental, and

may indeed serve its best purpose when it induces a

condition of unrest, creates dissatisfaction with things

as they are, or even stirs people to anger.

Terminiello v. Chicago, 337 U.S. 1, 4 (1949).

Nor does freedom of speech stop at the schoolhouse door.

. . - in our system undifferentiated fear or apprehen-

sion of disturbance is not enough to overcome the right

of freedom or expression. Any departure from absolute

regimentation may cause trouble. Any variation from

the majority’s opinion may inspire fear. Any word

spoken in class, in the lunchroom, or on the campus,

prcieesjoreniree pene: ste, cea apt

start an argument or cause a disturbance . . . . But our

Constitution says we must take this risk.

Tinker, supra, 393 U.S., at 508.

Appendix 31

See also James, supra; Massie v. Henry, 455 F.2d 779

(4th Cir. 1972) ; Cohen, supra.

With this goes the caveat that,

. . . the State has interests as an employer in regulating

the speech of its employees that differ significantly from

those it possesses in connection with regulation of the

speech of citizenry in general.

Pickering, supra, 391 U.S., at 568.

‘Otherwise stated, the Board of Education has an interest in

the regulation of activity detrimental to the educational

process. Cf. Quarterman v. Byrd, 453 F.2d 54 (4th Cir.

1971).

Indeed, freedom of speech is subject to reasonable regula-

tion as to time, manner and place; and speech which is “in-

separable” from action does not enjoy the same degree of

protectability.

Thus, the law does not protect “fighting words.” Chap-

linsky v. New Hampshire, 315 U.S. 568 (1942). The law

permits reasonable regulation of political and labor demon-

strations, United States v. O’Brien, 391 U.S. 367 (1968),

Cameron v. Johnson, 390 U.S. 611 (1968), Adderley v.

Florida, 385 U.S. 39 (1967), Cox v. Louisiana, 379 U.S. 559

(1965), Giboney v. Empire Storage Co., 336 U. S. 490

(1949), See Thornhill v. Alabama, 310 U.S. 88 (1941),

Amalgamated Food Employees Local Union 590 v. Logan,

391 U.S. 308 (1968), Brandenburg v. Ohio, 395 U.S. 444

(1969) (Douglas, J., concurring opinion) ; reasonable con-

trol of noise, Kovacs v. Cooper, 336 U.S. 77 (1949); and

reasonable allocation of the scare resources of public broad-

casting. Red Lion Broadcasting Co. v. Federal Communi-

cations Commission, 395 U.S. 367 (1969). ;

Ever since Justice Oliver Wendell Holmes’ classic illustra-

tion of the shout of “fire” in a crowded theater, the courts

have struggled with the limits of the Fitst Amendment and/

or the boundary between speech and action. ‘See Schenck

v. United States, 249 U.S. 47 (1919). Despite the apparent

32 Appendix

lack of connection, it is perhaps noteworthy that the “panic”

of the crowded theater in the illustration has some similarity

to the reaction of parts of the school community in this case.

The instruction of children carries with it special respon-

sibilities, whether a teacher be heterosexual or homosexual.

The conduct of private life necessarily reflects on the life in

public. There exists then not only a right of privacy, so

strongly urged by the plaintiff, put also a duty of privacy. It

is conceded that it would be improper for any teacher to

discuss his sex life in the school exvironment. Plaintiff has

taken the position that he has not engaged, and will not en-

gage, in such discussion. The more difficult question is the

limitation on the outside activities of the plaintiff.

An evaluation of Acanfora’s public appearances in the

Context of the educational process must recognize to a degree

that homosexuality is sui generis in contemporary America.

First of ali, the subject of homosexuality is peculiarly sensi-

tive and of special concern to the American family. This is

not a question of race relations (Johnson, supra), of the

wearing of armbands (Tinker, James, supra), of long hair

(Massie, supra), or of the allocation of educational funds

(Pickering, supra). The consensus of the experts and of the

Task Force of the National Institute of Mental Health is

that prevention of homosexuality is a desirable goal, essen-

tially because of the cultural stigma and repression for which

it is the target. Even assuming the antipathy of parents, and

of school officials, to be unreasonably intolerant, the Court

notes that immediate aggravation of anxiety and conflicts

between students, parents, faculty and officials varies directly

with the notoriety of this case and detracts from the educa-

tional process. Secondly, a difference of expert opinion ex-

ists as to the influence of a known homosexual teaching in

junior high school on the differentiation of gender identity,

especially of bisexuals. Thus, the fear of parents cannot be

definitively characterized as “undifferentiated apprehension

or fear of disturbance.” Tinker, supra.

Appendix 33

In a series of cases relating to the advocacy of revolution

and/or violence by ordinary citizens, the Supreme Court has

drawn a boundary in an analogously perplexing area of the

law. After first taking the position, in essence, that active

advocacy, as opposed to discussion, of violent revolution is

subject to criminal sanctions—that the government need not

wait until the putsch is about to be executed, the plans have

been laid, and the signal executed—the court modified its

holding to distinguish advocacy of abstract doctrine from

advocacy in preparation for future violent action, or ex-

hortation to immediate action. Compare Dennis v. United

States, 341 U.S. 494 (1951) with Yates v. United States,

354 U.S. 298 (1957). The urging must be to do, rather than

believe in, before the state may intervene. In Brandenburg

v. Ohio, supra, the court restated the doctrine in broad

language,

... that the constitutional guarantees of free speech and

free press do not forbid a state to forbid or proscribe

advocacy of the use of force or of law violation except

where such advocacy is directed to inciting or produc-

ing imminent lawless action and is likely to incite or

produce such action. 395 U.S., at 447.

As a result of the distinguishing obligations which a person

assumes upon signing a contract to teach children, the stand-

ard must shift to accord with the goals of the educational

process. The question becomes whether the speech is likely

to incite or produce imminent effects deleterious to the edu-

cational process. Such speech is not within the bounds of the

“protectable” and the Board of Education is not precluded

from taking reasonable action with respect to it.

It is true that freedom of speech may best serve the politi-

Process, when it induces a condition of unrest, stirs people to

anger, or inspire fear. Terminiello, Johnson, Tinker, supra.

It is likewise true that the promotion of legal rights for

34 Appendix

homosexuals is a political undertaking. When undertaken

publicly by a known homosexual teacher, however, upon the

evidence presented in this case, it does not best serve the pur-

poses of sexual adjustment, maturation-and_student-parent———___—

relationships in the educational context. These questions are

charged with emotion and of such a delicate and sensitive

nature that the injection of controversy tends to breed mis-

understanding, alarm and anxiety.

As indicated earlier, mere knowledge that a teacher is

homosexual is not sufficient to justify transfer or dismissal.

In addition, the homosexual teacher need not become a

recluse, nor need he lie about himself. Like any other teach-

er, he may attend public gatherings and associate with

whomever he chooses. But a sense of discretion and self-

restraint must guide him to avoid speech or activity likely to

spark the added public controversy which detracts from the

educational process.

This case does not involve an admission of homosexuality

in response to an individual question put to the plaintiff, but

rather the repeated, unnecessary, appearances on local and

especially national news media. Granted that plaintiff did

not advocate homosexuality, but concentrated on his opinion

of the injustice and discrimination practiced against homo-

sexuals in this country, his appearances nevertheless inevi-

tably sparked additional controversy regarding the subject

of homosexuality and the classroom. The point is that to

some extent every teacher has to go out of his way to hide

his private life, and that a homosexual teacher is not at lib-

erty to ignore or hold in contempt the sensitivity of the sub-

ject to the school community. Indeed, it is the very lack of

necessity or appropriateness for the public appearances

which contribute substantially to their inflammatory char-

acter, and hence, to the likelihood of incitement or produc-

tion of effects deleterious to the educational process.

The plaintiff advances the proposition, not without some

grounds, that his public appearances amount to no more

Appendix 35

than a defense of his legal rights against the arbitrary action

of the defendants. As indicated earlier, the instantaneous

and visceral reaction of the defendants merits no. praise.

_—_While neither of the two sides may claim a monopoly on the

proper exercise of discretion, plaintiff’s offense lies in his ex-

ceeding the bounds of reasonable self-defense.

It was not reasonably necessary to plaintiff's defense, to try

his case to the public. The concept of self-defense sweeps

broadly across the common law. Elementary tort and crimi-

nal law dictates that one may take reasonable steps to defend

his person and property against attack. See Baltimore

Transit Co. v. Faulkner, 179 Md. 598 (1941), Maddran v.

Mullendore, 206 Md. 291 (1955), Brown v. State, 6 Md.

App. 631 (1969). \

The decision to transfer plaintiff without a hearing is, at

heart, the functional equivalent of an injury inflicted upon

plaintiff's reputation, an implicit allegation that his homo-

sexuality determines unfitness to teach. To defend reputa-

tion, one may publish, in an appropriate manner and to the

appropriate parties, anything which reasonably appears to

be necessary to respond to the defamation of another, includ-

ing, of course, consultation of an attorney. See Prosser, Law

of Torts §115, 786 (4th Ed. 1971). As Professor Prosser

carefully indicates, however, the privilege is subject to abuse,

. And this is as it should be. If the communication

is made, not at all for the purpose of protecting inter-

ests legally cognizable, nor in the performance of a duty

which the law encourages, ‘the pretense under which it

is made, instead of furnishing a defense, will aggravate

the case .. . .” Orrison v. Vance, 262 Md. 285, 294

(1971), quoting from 1 Harper and James, The Law

of Torts, §5.27, 452 (1956).

The arbitrary transfer of September 26, 1972, without

legal justification as matters then stood, did not excuse the

plaintiff from exercising discretion in his public life. Nor did

36 Appendix

the alleged arbitrary action necessarily render “protectable”

subsequent speech or conduct which otherwise would not be

so protected.

The substance of plaintiff's remarks on “60 Minutes” had

an element of sensationalism. Furthermore, the design and

function of the programs in which plaintiff participated

tended to spark controversy. Quite obviously, the television

and radio audience was in no position to give legitimate as-

sistance. Plaintiff's actions were not reasonably necessary for

self-defense. Indeed the media appearances were likely to

incite or produce imminent effects deleterious to the educa-

tional process, and “instead of furnishing a defense, [aggra-

vated] the case.”

It is noteworthy that the fault in plaintiff’s public appear-

ances does not lie with the possibility of arousing sympathy

to the prejudice of a fair trial, but rather with an indiffer-

ence to the bounds of propriety which of necessity must gov-

ern the behavior of any teacher, regardless of sexual tenden-

cies.

Accordingly, despite the initial transgression of the de-

fendants, the Court can not grant plaintiff the relief for

which he prays. Plaintiff’s public activities as herein de-

scribed are not “protectable” and the Court cannot at this

time characterize the refusal to reinstate plaintiff or renew

his contract as arbitrary or capricious under either the First

Amendment or the Equal Protection Clause of the Four-

teenth Amendment.

Accordingly, it is this 3lst day of May, 1973, by the

United States District Court for the District of Maryland,

ORDERED that the injunctiye relief requested by the

plaintiff be and the same is hereby DENIED.

/s/ J. H. Young

United States District Judge

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