Amicus Curiae Brief — Acanfora v. Board of Education

, Supreme Court, U. S.

* | d " 1

148 RARY, FILED

1 0 97 . — * ‘me

Ws PREM — COUR 1 J. .

JUN 17 1974

MICHAEL RODAK, JR CLERK

IN THE

Supreme Court of the United States

October Term, 1973

No. %3=1843

JOSEPH ACANFORA III,

Petitioner,

V.

BOARD OF EDUCATION OF

MONTGOMERY COUNTY, et al.,

_ Respondents,

U

BRIEF AMICUS CURIAE OF LAMBDA

LEGAL DEFENSE AND EDUCATION

FUND, INC., IN SUPPORT OF PETITION

FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

E. CARRINGTON BOGGAN

Lambda Legal Defense and

Education Fund, Inc.

Attorney for Amicus Curiae

30 Grove Street

New York, New York

(4183)

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TABLE OF CONTENTS

Interest of Amicus ...

Opinions Below......

Jurige@iction. -..cecccce

Statement of the Case .

Questions Presented ..

Reasons for Granting the

Writ

RII 6 6 ie als hd

24

ii

TABLE OF CASES

Page

Bates v. Little Rock, 361 U.S. 516

0 ˙ X Rawk 15

Bryson v. Unit ed States, 396 U. S.

r oo Oe * 17

Burs ey v. Unit ed States, 466 F. 2d

1959 (th Cis. ... . . 1, 21

DeGregory v. Attorney General,

383 U.S. S25 (1966)... ceces 21

Dennis v. U.S., 384 U.S. 855 (1966) 17

Elfbrandt v. Russell, 384 U.S. 1118

Cy. ˙m . 19

Gay Students Org. of U. of New

Hampshire v. Bonner, 367 F.

Supp. 1088 (D. N. H. 1974 10

Gayer v. Laird, 332 F. Supp. 169

(D. D. C. „ Susie's 22

Gibson v. Florida Legislative Inves-

tigation Comm., 372 U.S. 539,

c ocho o See x 14

Healy v. James, 408 U.S. 169(1972) 41

Hobbs v. Thompson, 448 F.2d 456

, 19

— ee

iii

TABLE OF CASES (Continued)

Page

James v. Bd. of Ed. of Central Dist.

No. 1, et al., 461 F.2d 566 (2nd

Cir. 1972), cert. denied 409 U.S.

1042 (1972), reh. denied, 410

A 21

Kay v. United States, 303 U.S. 1

en,? be oo wow 17

Kimball, In re, 33 N. T. 2d 586, 347

N. T. 8. 2d 453 (1973). 23

Labady, In re, 326 F. Supp. 924

(S. D. N. Y. „. 23

Louisiana ex rel. Gremillion v.

N. A. A. C. P., et al., 366 U.S.

r ee ote 14

Meyer v. Nebraska, 262 U.S. 390

rc ˙(ç + oe 66 68 ee 6 0 9

Morrison v. State Bd. of Ed., 1 Cal.

3d 214, 461 P.2d 375, 82 Cal.

Rptr. 175 (1969) ee o's © © 6 2-8 Oe „ 23, 24

N. A. A. c. P. v. Button, 371 U.S.

415 (1963) = „„ * W „„ „* E W D „ „ „* 9

N. A. A. C. P. v. State of Alabama,

357 U.S. 449 (1958) “efter eeee 9, 13,

14

iv

TABLE OF CASES (Continued)

Page

Nat'l Student Assoc. v. Hershey.

412 F.2d 1103 (D.C. Cir.

PE cao 6 c AA eee * 19

Norton v. Macy, 417 F.2d 1161

i ae ¾ ͤ ne ae 22

Owles v. Lomenzo, 31 N. v. 2d

965, 341 N. Y. S. 2d 108 (1973). 11

Ricks v. District of Columbia,

414 F. 2d 1097 (5th Cir. 1969). 19

Rodriguez v. Seamans, 463 F. 2d

837 (D.C. Cir. 1972), petition

for cert, dismissed, 409 U.S.

1 ws a ewe eee 8 ee 18

Scott v. Macy, 402 F.2d 644 (D.C.

Cir. o 22

Shelton v. Tucker, 364 U. S. 479

„ iad ear 00000 6

1

Society for Individual Rights v.

Hampton. F. Supp. ___

(N. D. Cal. 1973, No.

C73-O339 ) 22

Thom, In re, 53 N.Y. 2d 609, 347

N. T. 8. 2d S71 (1973) 12

ey ere

thi SOAP Md VAAN A> stone

neee.

TABLE OF CASES (Continued)

Page

United States v. Kapp, 302 U.S. .

214 (1937) 18

Wentworth v. Schlesinger, 490 F.2d

740 (D.C. Cir. 1973) 22

Williams v. United States, 434 F. 2d

1346 (Ct. Cl. 1970) 18

Woods v. Davison, 351 F. Supp. 543 -

(N.D. Ga. 1972) 10

ere

. en ntl

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1973

No.

JOSEPH ACANFORA II,

Petitioner,

v.

BOARD OF EDUCATION OF

MONTGOMERY COUNTY, et al.,

Respondents.

BRIEF AMICUS CURIAE OF LAMBDA

LEGAL DEFENSE AND EDUCATION

FUND, INC., IN SUPPORT OF PETITION

FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

. — —

1 25 3 P ee EM

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as

INTEREST OF AMICUS CURIAE*

Lambda Legal Defense and Educa-

tion Fund, Inc., is a New York corporation

organized to seek, through the legal process,

to insure the legal rights of homosexuals.

It is similar in scope and purpose to the

NAACP Legal Defense and Educational Fund,

Inc., and seeks to function for homosexuals

in the same way the NAACP Legal Defense

and Educational Fund, Inc., has functioned

for black citizens, Lambda Legal Defense

and Education Fund, Inc., (hereinafter

Lambda“) is authorized to practice law by

the courts of New York.

In accordance with its purpose to

*This brief is filed with the con-

sent of the parties. The letters of consent

are filed with the Clerk of the Court.

seek to insure, through the legal process,

the legal rights of homosexuals, Lambda is

interested in and concerned by the decision

of the court below which denied any relief

to the petitioner, Joseph Acanfora III, a

homosexual teacher who was transferred

from his classroom teaching duties to ad-

ministrative duties and whose contract with

respondent was not renewed because of his

homosexuality.

Lambda urges that the aforesaid

action of respondent was a denial of equal

protection of the law and of petitioner's

constitutional right to freedom of speech

and association and his constitutional right

of privacy.

Lambda has taken this *

nary step of filing a brief amicus curiae

BSD sire WF o>

certiorari because of the devastating effect

the refusal of the court below to grant peti-

tioner any relief will have on the exercise

of the constitutional rights of freedom of

association and speech by homosexuals and

because of the encouragement and sanction

the decision of the court below will give to

the invasion of the right of privacy of homo-

sexuals and the denial of equal protection

of the law to them if the court below's

denial of relief is allowed to stand.

OPINIONS BELOW

The opinion of the United States

Court of Appeals for the Fourth Circuit is

reported at 491 F. 2d 498 and is set forth

in the Appendix to the Petition for a Writ

of Certiorari. The opinion of the United

„ ² ÄP

*

States District Court for the District of

Maryland is reported at 359 F. Supp. 843

and is set forth in the Appendix to the

Petition for Certiora ri.

JURISDICTION

The jurisdiction of this Court is

invoked pursuant to 28 U. S. C. 81254(1).

The judgment of the United States Court of

Appeals for the Fourth Circuit was entered

on February 7, 1974. An order granting an

extension of the period of time in which to

file the Petition for Certiorari to June 7,

1974, was issued by Chief Justice Burger

on April 30, 1974. e in the

Unit ed States District Court was g round ed

on 42 U. S. C. 61983 and 28 U.S.C. 88 1331,

1343(3), and 1343 (4).

Tee

wry, we ek

STATEMENT OF THE CASE

Pursuant to Rule 42(5) of this Court,

the statement of the case is omitted in this

brief amicus curiae, and the Court is referred

to the statement of the case in the Petition

for Certiora ri.

QUESTIONS PRESENTED

1. Did the refusal of the Court of Appeals

to grant petitioner any relief because

of his failure to list his membership

in the homophile student organization

violate petitioner's right to freedom of

association and right of privacy?

2. Was the requirement, read into respond-

ent's teaching application form by the

Court of Appeals, that petitioner list all

organizations to which he belonged, in-

cluding the homophile student organiza-

tion, unconstitutionally broad as an

infringement on petitioner's freedom

of association?

3. Is the decision of the Court of Appeals

in conflict with the decision of this

Court in Shelton v. Tucker, 364 U.S,

479 (1960)?

REASONS FOR GRANTING THE WRIT

The Court of Appeals for the Fourth

Circuit has decided an important question of

federal law in a manner which denies homo-

sexuals the right to be free from unwarranted

and impermissible governmental discrimina-

tion as a result of the exercise of their con-

stitutional right of freedom of association

and for seeking to protect their constitutional

right of privacy in their associations. The

court below decided the question adverse to

OS, APTI 1

petitioner, denying him any relief. The ques-

tion of the constitutional protection due homo-

sexuals in their associations has not been

settled by this Court, and it should be, for it

affects the right to life and liberty free from

ae: Cee

governmental discrimination in violation of

the constitutional guarantee of equal protec-

tion of the law of several million homosexuals,

Further, the decision of the Court of Appeals

is in conflict with the decision of this Court in

Shelton v. Tucker, 364 U.S. 479 (1960).

I. The Refusal of the Court of

Appeals to Grant Petitioner

Any Relief Because of His

Failure to List His Member-

ship in the Homophile Stud-

ent Organization Violates

Petitioner's Right to Free-

dom of Association and

Right of Privacy.

1 r 8 ü IY e ee eee

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3

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The right to freedom of association,

in no matter how unorthodox or unconven-

tional a manner, is a fundamental guarantee

under the Constitution. N. A. A, C. P. v.

Button, 371 U.S. 415 (1963). The range of

this interest shields the individual from un-

reasonable governmental interference because

it is "essential to the orderly pursuit of

happiness by free men“, Meyer v. Nebraska,

262 U.S. 390, at 399 (1923). "It is beyond

debate that freedom to engage in association

.. is an inseparable aspect of the liberty“

assured by the Due Process Clause of the

Fourteenth Amendment . . . [and] it is

immaterial whether the beliefs sought to be

advanced by association pertain to political,

economic, religious or cultural matters.

N. A. A. C. P. v. State of Alabama, 357 U.S.

449, at 460 (1958).

AREA AE Nei,

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The critical importance of free

association for homosexuals, either for

their social or political benefit, has begun

to be recognized by some lower courts,

but has not been ruled upon by this Court.

In view of the decision of the court below

which in effect sanctions discrimination

against petitioner for exercising his right

to freedom of association, it is imperative

that this Court declare the right to freedom

of association free from governmental re-

prisals for the homosexual minority.

The District Court for the Northern

District of Georgia, in Woods v. Davison,

351 F. Supp. 543 (N. D. Ga. 1972), and the

District Court for the District of New Hamp-

shire, in Gay Students Org. of U. of New

Hampshire v. Bonner, 367 F. Supp. 1088

(D. N. H. 1974), held that the homosexual

r

11

stud ent groups on these campus es mere en-

titled to access to university facilities and

all other rights attendent to official recog-

nition of any other student group. Follow-

ing Healy v. James, 408 U.S. 169 (1972),

which stated that, absent a lawful justifica-

tion, students groups could not have their

associational rights abridged by denial of

recognition, both courts asserted the im-

portance of organizing for these students

to further their common interests.

In Owles v. Lomenzo, 31 N.Y. 2d

965, 341 N. Y. S. 2d 108 (1973), the New

York Court of Appeals approved incorpora-

tion for the Gay Activists Alliance, Inc.

The group was organized to allow assem-

blage of homosexuals to foster the repeal

of laws which discriminate against them as

a class and the passage of laws which

12

guarantee equal treatment for all persons

regardless of sexual orientation. The New

York Court of Appeals also approved the

application of Lambda Legal Defense and

Education Fund, Inc., as a legal assistance

corporation in In re Thom, 53 N.Y. 2d 609,

347 N. Y. S. 2d 571 (1973). In his concurring

: opinion, Judge Burke acknowledged that

: Lambda's organizing to legally “insure

equal protection of the laws and the pro-

tection of civil rights of homosexuals", Id.

at 611, 347 N. Y. S. 2d at 572, was an essen-

tial part of its First Amendment rights to

further its goals, particularly as homosexuals

were a minority subjected to varied discrim-

inations. The decision of the court below

in the instant case, if allowed to stand,

would vitiate these earlier gains in judicial

recognition of the freedom of association of

13

homosexuals, and would have a devastating

and chilling effect on the exercise of those

rights.

II. The Right to Privacy in Asso-

ciations is Crucial to the Via-

bility of the Freedom of Homo-

sexuals to Associate.

When the N. A. A. C. P. refused to

dis close its membership lists to state offi-

cials, the Supreme Court stated that invio-

lability of privacy in group associations may

in many circumstances be indispensible to

preservation of freedom of association, par-

ticularly where a group espouses dissident

beliefs. N. A. A. C. P. v. State of Alabama,

357 U. S. 449, at 462 (1958). The circum-

stances in which the N. A. A. C. P. was func-

tioning were found to have expos ect

members to economic reprisal, loss of em-

ployment, threat of physical coercion, and

Doe ee

7

eee

14

other manifestations of public hostility", Id.

at 462, if their membership was revealed.

For homosexuals, hidden in their closets“,

these circumstances are everyday realities;

for petitioner, it was explicitly stated at

trial that if he had revealed his membership

in a homosexual group, he would never have

been hired.

The Supreme Court held in N.A.A.C.P.

v. State of Alabama that the organization

could not be compelied to disclose its mem-

bership list because, by dissuading others

from joining or members to quit, these cir-

cumstances adversely affected the effective

pursuit of N. A. A. C. P. is and its members

rights to advocate their beliefs. See also

Gibson v. Florida Legislative Investigation

Comm., 372 U.S. 539, 555-557 (1963);

Louisiana ex rel. Gremillion v. N. A, A. C. P.,

15

et al., 366 U.S. 293, 296 (1961); Bates v.

Little Rock, 361 U.S. 516, 523-524 (1960);

Bursey v. United States, 466 F. 2d 1059,

1083-1086 (9th Cir. 1972). The effect of

compulsory disclosure by petitioner of his

organizational ties is to Sandie, just as

pervasively, the legitimate functioning of

homosexual rights groups. The clear mes-

sage is that, i< individuals are interested

in belonging to one of these organizations,

which is their constitutional right, they will

be compelled to disclose that membership

and expose themselves to serious reprisals,

Therefore, millions of homosexuals will be

dissuaded from exercising their right to

associate, and thus the effectiveness of

these organizations in combating the dis-

crimination visited upon homosexuals will

be destroyed.

16

"It is hardly a novel perception that

compelled disclosure of affiliation

with groups engaged in advocacy

may constitute. . lan] effective

. restraint on freedom of asso-

ciation . . . This Court has recog-

nized the vital relationship between

freedom to associate and privacy

in one's associations. N. A. A. C. E.

v. State of Alabama, supra at 1171

1172.

III. Requiring Petitioner to List All

Organizations and Extracurricu-

lar Activities is Unconstitutionally

Broad

The application form for a teaching

position in the Montgomery County school

system asks for information about one's

professional, service and fraternal organiza-

tions. Petitioner answered this by listing

his student membership in the Pennsylvania

State Education Association, His member-

ship in the Homophiles of Penn State, how-

ever, does not fit into any of the three

above categories. The application also

17

requests information about one's extracur-

ricular activities. Here petitioner listed

swimming, bowling, student council, maga-

zine and newspaper staffs, honor society,

and Naval Reserve Officers Training Corps.

Although he could have included his Homo-

phile membership in this answer. and even

admits that he consciously omitted it from

the application, there is no indication that

this information was required. The oath

which he signed merely stated that the in-

formation included was accurate“, not that

it was complete. In the cases relied on

by the Court of Appeals, in holding that this

omission was prejudicial to his case, all of

the parties being charged had given false

answers to direct questions. Bryson v.

United States, 396 U.S. 64 (1969); Dennis

v. U. S., 384 U.S. 855 (1966); Kay v. United

ees ee

I I SE OR RR PR / EEO ey PE a

OIE FS

PEE te

18

States, 303 U.S. 1 (1938); United States v.

Kapp, 302 U.S. 214 (1937); 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 (Ct. Cl. 1970). That is not the case

here.

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

(1960), an Arkansas statute required public

school teachers to submit an affidavit listing

all organizational memberships during the

preceding five years. The Court noted that

the teachers worked under the "absolute will

of those to whom disclosure must be made”,

Id. at 486, and the lack of confidentiality

concerning the lists allowed for public pres-

sure to be brought on school officials to dis-

charge those "who belong to unpopular or

minority organizations". Id. at 486-487.

PP SF oye a are

19

''Such unwarranted inhibition upon

the free spirit of teachers. .

has an unmistakable tendency to

chill that free play of the spirit

which all teachers ought especially

to cultivate and practice.

Wieman v. Updegraff, supra, at

195 as cited in Shelton, supra, at

487.

The Court held that compulsory disclosure

of every associational affiliation was a

"comprehensive interference with associa-

tional freedom [which] goes far beyond

what might be justified in the exercise of

the State's legitimate inquiry into the fit-

ness and competency of its teachers. Id.

at 490. Cf., Elfbrandt v. Russell, 384 U.S.

11, 18 (1966); Hobbs v. Thompson, 448 F.

2d 456, 460 (5th Cir. 1971); Ricks v. Dis-

trict of Columbia, 414 F. 2d 1097 (5th Cir.

1969); Nat'l Student Assoc. xv. Hershey,

412 F. 2d 1103 (D.C. Cir. 1969). Under

this Court's decision in Shelton, respondent

20

herein could not constitutionally be compelled

to list his membership in the Homophiles of

Denn State. Thus, even aside from the fail-

ure of the application form to specifically

request that information, the question as to

extracurricular activities must, in light of

Shelton, be read as not requesting the listing

of that information. The decision of the

court below is, therefore, in conflict with

this Court's decision in Shelton, and creates

the same unconstitutionally broad requirement

that petitioner list all of his associational

ties as this Court condemned in Shelton.

IV. The Montgomery County Public

School Board Does Not Have a

Sufficient Interest to Compel

Disclosure of All Petitioner's

Associational Ties.

Although the right of association is

not absolute and may be superceded by a

compelling state interest, the state must

ail iat ; LEP IE LEAT DRONA Pe ap NN ALTE AG = EA IE RE SB BD BA Ty Oa a ERE

PF RIESE eee eee

21

show that there is a compelling reason for

disclosure in order to be able to interfere

with petitioner's right of association.

DeGregory v. Attorney General, 383 U.S.

825 (1966); Shelton, supra; Bursey v. United

States, supra; James v. Bd. of Ed. of Central

Dist. No. I, et al., 461 F. 2d 566 (2nd Cir.

1972), petition for cert. denied 409 U.S.

1042 (1972), reh. denied 410 U.S. 947 (1973).

In the instant case, there is not even a rea-

sonable relationship between petitioner's

membership in the Homophiles of Penn State

and his ability to teach. There were find-

ings to show that his performance both as

a student teacher and as a teacher was

satisfactory; that he did not discuss or even

intend to discuss homosexuality in the class-

room; that there was no disruption or even

a possibility of disruption of the school; and

+ AGE OTERO PD EROSION

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22

that many of the students and teachers offered

petitioner their support.

The issue of the relationship between

one's homosexuality and one's ability to func-

tion effectively has recently been seriously

considered in many different areas. The

almost unanimous opinion has been that homo-

sexuality per se does not adversely affect

such ability and the party seeking to show

that it does must sustain the burden of proof.

Wentworth v. Schlesinger, 490 F. 2d 740

(D. C. Cir. 1973) (security clearance);

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

1969) (federal civil service employee); Scott

v. Macy, Il, 402 F. 2d 644 (D.C. Cir. 1968)

(federal civil service applicant); Society for

Individual Rights v. Hampton, F. Supp.

(N. D. Cal. 1973, No, C-73-0139 AJZ):

Gayer v. Laird, 332 F. Supp. 169 (D. D. C.

mura eee e

23

1971) (security clearance); In re Labady,

326 F. Supp. 924 (S.D.N.Y. 1971) (natural-

ization); In re Kimball, 33 N.Y. 2d 586,

347 N. Y. S. 2d 453 (1973) (State Bar appli-

cant); Morrison x. State Bd. of Ed,, 1 Cal.

3d 214, 461 P. 2d 375, 82 Cal. Rptr. 175

(1969) (teacher), Petitioner's own success-

ful teacher certification in Pennsylvania

indicates that he is a fit person to teach

and his homosexuality does not adversely

affect his fitness. The District of Columbia

Board of Education adopted a resolution on

May 23, 1972, of non-discrimination in its

school system on the basis, inter alia, of

"personal sexual orientation". And in

California, the Court of Appeals held that

homosexuality per se could not be grounds

for a teacher's discharge but the school

board must show a reasonable connection

E GTA e Ra A BNI NINES HONS ORR RRA, PEPE

24

between the homosexuality and unfitness to

teach. Morrison, supra. Thus, since homo-

sexuality alone cannot sustain the burden of

proof of unfitness, there is no reasonable

reason for the respondent to compel disclo-

sure of petitioner's membership in homo-

sexual organizations.

CONCLUSION

For the reasons set forth above,

the petition for certiorari should be granted.

Respectfully submitted,

E. CARRINGTON BOGGAN

Lambda Legal Defense and

Education Fund, Inc.

30 Grove Street

New York, New York

Attorney for Amicus Curiae