An Oklahoma law that prevents public-school teachers from advocating or encouraging homosexual activity impermissibly tells teachers to “shut up” on the topic or face dismissal, a prominent constitutional scholar told the U.S. Supreme Court last week.
The case, Board of Education of the City of Oklahoma City, Oklahoma, v. National Gay Task Force (Case No. 83-2030), focuses on a 1978 statute stating that any teacher, student teacher, or teacher’s aide who is “advocating, soliciting, imposing, encouraging, or promoting public or private homosexual activity” in a manner that “creates a substantial risk that such conduct will come to the attention of schoolchildren or school employees” may be “rendered unfit for his position.”
Although no teacher has ever been dismissed under the law, the National Gay Task Force challenged it on the grounds that it violates the First Amendment and has a “chilling effect” on teachers’ speech.
The statute was upheld by a federal district court in 1982, but portions of it were overturned in March 1984 by the U.S. Court of Appeals for the 10th Circuit.
At the core of the arguments for both sides was the contention that teachers serve as role models for students, but the lawyers disagreed on exactly what that role model should be.
Schools serve as the “appropriate introduction to fundamental cultural values,” said Dennis W. Arrow, the lawyer for the school board. They have “a duty to promote traditional cultural values, be they moral, social, or political,” as well as “to provide for the psychological as well as physical welfare of the children in their custody.”
However, Laurence H. Tribe, a noted authority on constitutional law who argued the case for the task force, said that “one of the most important values teachers model” is that of “open inquiry and free speech.”
“Part of the lesson teachers impart is that teachers should not be fired for speaking out,” said the Harvard University professor of law.
Mr. Arrow contended that the law specifically applies to a teacher who directly encourages a student to engage in sodomy, which is a felony in Oklahoma, but Mr. Tribe countered that the statute could be interpreted much more broadly to curtail any kind of speech on the subject of homosexuality.
Mr. Tribe said the the law forces teachers to “hedge and trim on every word” regarding homosexuality for fear of being dismissed.
“This law tells the teacher, ‘You better shut up,”’ he told the Justices.
Mr. Tribe said the law does more than simply prohibit teachers from committing sodomy; it prevents them from mentioning it in a positive light, either in school or at home.
“People don’t get up on a soap box and and say, ‘Sodomy now!”’ he said. “The question isn’t what happens if one commits [sodomy] but if one discusses it favorably.”
Mr. Tribe also argued that the state’s concerns are already covered under an existing Oklahoma law that allows teachers to be dismissed for “immorality, willful neglect of duty, cruelty or ... moral turpitude.” Therefore, even if the law in question is struck down, it “leaves in place a whole range of protective laws in the state of Oklahoma,” he said.
Associate Justice William J. Brennan Jr. asked Mr. Arrow whether the statute would apply to a teacher who said openly to one of his colleagues in school, “I wish they would leave those homosexuals alone--they’re not hurting anyone.”
Mr. Arrow said such a statement would be protected under the First Amendment, as would a teacher’s opinion that the law should be repealed.
However, the statute would apply if a teacher directly advocated sodomy, in or out of school, because that would be encouraging students to commit a crime, he said.
Mr. Arrow conceded that there was an “inherent ambiguity” in the statute and said it would have to be applied on a “case-by-case” basis.
The Court is expected to hand down an opinion in the case next spring.
The Justices also heard arguments last week in Springfield Township School District v. Knoll (No. 82-1889), a case involving Pennsylvania’s six-month statute of limitations governing legal actions against government officials.
The case stemmed from a decision by the Springfield Township school superintendent in July 1979 to select a male applicant over a female applicant for the position of administrative assistant. The female school employee filed a complaint with the Equal Employment Opportunity Commission, arguing that she was discriminated against on the basis of her sex in violation of Title VII of the Civil Rights Act of 1964 and Section 1983 of the Civil Rights Act of 1871.
Statute of Limitations
A federal district judge dismissed the employee’s complaint, saying it was filed on an untimely basis. But a federal appeals court reversed that decision, holding that the state’s statute of limitations governing such actions was inconsistent with federal policies fostered by the federal civil-rights laws.
In papers filed with the Court, lawyers for the school district argued that, in reaching its decision, the appeals court did not consider ''the important state policies reflected in the [state] statute of limitations and did not delineate or consider” the federal policies that the court said conflicted with the statute.
Lawyers for the school employee, meanwhile, argued that the six-month statute of limitations provides people who believe they have been discriminated against with too little time to file actions in federal court.
A version of this article appeared in the January 23, 1985 edition of Education Week as Homosexuality Law Weighed by Court