# Petition for Writ of Certiorari — Acanfora v. Board of Education > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385607_1995%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1974 - **Citation:** 419 U.S. 836 ## Text LIGRARY 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, v. 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, v. 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). 2 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 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 I. 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: Bi 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. i 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. V. 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385607_1995%3A1. Public record. Not legal advice.