# Amicus Curiae Brief — Acanfora v. Board of Education > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385607_1995%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1974 - **Citation:** 419 U.S. 836 ## Text , 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) — a r * — — — — PPP PPP CC i 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 —— sole NN Pe nm Sa ———— 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 . r neee ue * 3 P 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, : . 8 8 eee CCC r 10 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 PPP r = a 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385607_1995%3A2. Public record. Not legal advice.