High Court Split On Homosexual Teachers’ Rights

By Tom Mirga — April 03, 1985 3 min read
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A divided U.S. Supreme Court last week let stand a lower-court ruling that struck down a controversial Oklahoma law permitting school boards to fire teachers who publicly advocate homosexual activity.

The Justices announced their 4-4 split on the constitutionality of the statute in a one-sentence decision handed down on March 26. Associate Justice Lewis F. Powell Jr., who was recovering from surgery when the case was argued on Jan. 14, declined to cast a tie-breaking vote.

The Court’s failure to muster a majority in Board of Education of the City of Oklahoma City v. National Gay Task Force (Case No. 83-2030) resulted in the automatic affirmation of a March 1984 ruling of the U.S. Court of Appeals for the 10th Circuit. The decision, however, is not binding outside the six states that make up the 10th Circuit.

In a 2-1 decision, the appeals court declared the 1978 law unconstitutionally broad, stating that it had a “substantial” deterrent effect on teachers’ legitimate expression.

Although no teacher had ever been dismissed under the law--the only one of its kind in the nation--the National Gay Task Force challenged it on the grounds that it violated the First Amendment.

Powell’s Decision

Justice Powell’s decision not to become involved in the case--which prevented the Court from speaking in clear terms on the issue of homosexual teachers’ free-speech rights--took many observers by surprise.

Earlier in the week, the Court took the unprecedented step of scheduling for reargument three other cases that were also heard in Justice Powell’s absence. This unusual move suggested that the Justices were as divided on the issues presented in those cases as they were on the issues in the Oklahoma case, and either needed or desired Justice Powell’s views.

Despite the lack of clear direction from the Court on the issue, homosexual-rights groups applauded the decision as a major victory for both homosexual and heterosexual teachers.

‘A Spectacular Victory’

“It’s a spectacular victory,” said Leonard Graff, legal director of the National Gay Rights Advocates Inc., a legal-aid society based in San Francisco that represented the plaintiffs in the lawsuit. “It is significant not only for gay men and women who want to be secure, but also for the free-speech rights of all teachers.”

Mr. Graff said he was somewhat disappointed that the Court did not speak more clearly on the issue of homosexual teachers’ rights. Nonetheless, he said he expected the ruling “to put a damper on similar moves” in other states.

The lawyer who represented the Oklahoma City school board in the case could not be reached for comment on the decision. A spokesman for the Washington Legal Foundation, a public-interest law center that filed a friend-of-the-court brief in the case on behalf of the board, termed the ruling “disappointing.”

“We felt the parties on our side made a very strong case that the state’s position should have been upheld, that the law was not overly intrusive and attempted to protect the well-being of children,” said George C. Smith, the group’s associate general counsel.

“On the other hand, it could have been worse,” Mr. Smith added. “All this does is affirm the decision of the 10th Circuit.”

Other Cases

In other action last week, the Court upheld a federal appeals court’s ruling that a Georgia school board impermissibly denied a school administrator unpaid political leave to serve in the state legislature. The administrator alleged that the school district changed its policy on such leaves of absence without the permission of the Justice Department, in violation of the Voting Rights Act of 1965.

The case is White v. Dougherty County Board of Education (No. 83-1868).

The Court also declined to review a case involving a dispute over mineral rights to a parcel of land owned by a Louisiana school district.

In August 1984, the Louisiana Second Circuit Court of Appeals ruled that a 1958 state law regarding such rights applied retroactively to the school district’s purchase of the land four years earlier. As a result of the ruling, the district lost its rights to royalties from natural gas pumped from a well on the property to the parcel’s former owner. The case was Caddo Parish School Board v. Bryan (No. 84-1303).

A version of this article appeared in the April 03, 1985 edition of Education Week as High Court Split On Homosexual Teachers’ Rights


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