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Divided Court Refuses To Review Bisexual's Firing

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Washington--The U.S. Supreme Court refused last week to review a federal appeals court's decision permitting an Ohio school district to dismiss a bisexual high-school guidance counselor solely on the basis of her sexual preference.

In a lengthy dissent, Associate Justice William J. Brennan Jr., joined by Associate Justice Thurgood Marshall, chastised the Court's majority for not accepting the case for review, contending that it presents issues that "continue to puzzle lower courts."

The case, Rowland v. Mad River Local School District (Case No. 84-532), "starkly presents issues of individual constitutional rights that have ... swirled nationwide for many years," Justice Brennan wrote. ''Discrimination against homosexuals or bisexuals based solely on their sexual preference raises significant constitutional questions. ... This case poses the open question whether disruptive speech can ever constitutionally serve as the basis for termination under the First Amendment."

Earlier this year, the Court heard arguments in another case involving the constitutionality of an Oklahoma law that permits school boards to fire teachers who advocate, solicit, or promote homosexual activity. (See Education Week, Jan. 23, 1985.) A decision in that case will probably be handed down before the Court's current session ends in June.

Acknowleges Bisexuality

According to papers filed with the Court, in November 1974, Marjorie H. Rowland, a guidance counselor at Stebbins High School in Yellow Springs, Ohio, confided to her secretary and several of her friends on the school's faculty that she was bisexual. She also told her secretary that two of the students that she was counseling were homosexual.

A short time later, Ms. Rowland became involved in an "emotional" meeting with the mother of one of the two homosexual students, during which she encouraged the parent to accept her child's sexual orientation. Ms. Rowland discussed the incident with the school's assistant principal, and at that time informed him of her bisexuality. Within one month, the school's principal asked her to resign.

Ms. Rowland refused and was immediately suspended by the local school board. A federal district judge issued an injunction blocking her suspension, and the board responded by placing her in a new position that precluded contact with students. In March 1975, she was advised by the board that her contract would not be renewed.

Jury's Decision Overturned

Following a lengthy trial, a jury determined that the firing violated Ms. Rowland's free-speech and equal-protection rights under the First and 14th Amendments, and the federal magistrate hearing the case awarded her $55,000 in damages. But in March 1984, the U.S. Court of Appeals for the Sixth Circuit reversed that ruling, holding that Ms. Rowland's comments about her bisexuality did not involve "a matter of public concern" and, thus, were not entitled to First Amendment protection.

According to Justices Brennan and Marshall, the Sixth Circuitel5lCourt's ruling was "based on a crabbed reading of our precedents and unexplained disregard of the jury and judge's factual findings."

"I think it impossible not to note that a ... public debate is currently ongoing regarding the rights of homosexuals," wrote Justice Brennan. "The fact of [Ms. Rowland's] bisexuality, once spoken, necessarily and ineluctably involved her in that debate. Speech that 'touches upon' this explosive issue is no less deserving of constitutional attention than speech relating to more widely condemned forms of discrimination."

"Because [the appeals court's findings] are so patently erroneous, these maneuvers suggest only a desire to evade the central question: May a state dismiss a public employee based on her bisexual status alone?" Justice Brennan continued.

"[T]he court of appeals necessarily held that adverse state action taken against a public employee based solely on his or her expressed sexual preference is constitutional," he said. "Nothing in our precedents requires that result; indeed, we have never addressed the topic."

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