NEA Statement in Support of ENDA
September 30, 2009
STATEMENT OF
THE NATIONAL EDUCATION ASSOCIATION
SUBMITTED TO THE
EDUCATION AND LABOR COMMITTEE
U.S. HOUSE OF REPRESENTATIVES
ON
THE EMPLOYMENT NON-DISCRIMINATION ACT
SEPTEMBER 30, 2009
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NEA Statement in Support of ENDA
September 30, 2009
The National Education Association (NEA), representing 3.2 million educators across the nation,
thanks the Committee on Education and Labor for the opportunity to submit these comments on
the Employment Non-Discrimination Act (ENDA). We commend the Committee for holding a
hearing on this critical civil rights legislation.
Teachers, more than any other profession, have long been the victims of pernicious and irrational
employment discrimination based on sexual orientation.1 It is a protracted and sordid history
that sadly continues to this very day. It is a form of invidious discrimination that not only
destroys the lives and careers of innocent and committed educational professionals, but also does
real harm to the American system of public education and to the children that system serves.
The time is now, for Congress to end this injurious and indefensible practice.
The purpose of this submission is twofold: First, to document the long history of official statesponsored, de jure and de facto, discrimination against LGBT educators. Second, to put a human
face on this American tragedy by telling the true stories of NEA members who were fired from
their jobs in recent years – not for any misconduct – but because of their status as LGBT
teachers.
A. Historically, LGBT educators have always been forced to live a lie, to stay in the closet or
risk being fired. Under applicable state laws, open homosexuality has long been an absolute bar
to employment as a public school teacher because LGBT persons were deemed to be, by
definition, either “immoral” or mentally ill. As discussed below, these archaic statutes both
codified and legitimized the widely-held bias that homosexuals should not be allowed in the
classroom.
As recently as 1961, every state made homosexual conduct a criminal offense punishable by
imprisonment.2 And LGBT teachers were frequently fired and had their teaching licenses
revoked for such “crimes against nature.”3 In addition, virtually every state currently has on the
books statutes providing for the termination of tenured teachers for “immorality,” including
“immoral conduct,” “moral misconduct,” and “immoral character.”4 More to the point,
homosexuality historically has been synonymous with “immorality” and provided an easy, statesanctioned basis for firing LGBT educators. The California Court of Appeals decision in Sarac
v. State Board of Education5 is illustrative. In that case, the court upheld the decision of the
California State Board of Education to revoke the teaching credentials of a gay man on the
statutory ground of “immoral and unprofessional conduct.”6 In reaffirming the accepted rule that
a teacher can be permanently banned from his chosen profession for engaging in homosexual
conduct, the court emphasized that such behavior is “clearly” immoral and constitutes per se
unfitness to teach: “Homosexual behavior has long been contrary and abhorrent to the social
mores and moral standards of the people of California,” the court said, and “constitutes evident
unfitness for service in the public school system” under the California code.7
Similarly, in Board of Education v. Calderon, the court upheld the termination of a gay teacher
on the statutory ground of “immoral conduct” for engaging in homosexual behavior, described
by the court as “indicative of corruption, indecency, depravity, dissoluteness, and shamelessness,
[and] showing moral indifference to opinions of respectable members of the community.”8 As
the court explained, the California code empowers “school boards to shield children of tender
years from the possible detrimental influence of teachers who commit [homosexual] acts” and
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NEA Statement in Support of ENDA
September 30, 2009
emphasized that, under state law, LGBT teachers are presumed to be “unable to teach moral
principles, to act as an exemplar for [their] pupils, or to offer them suitable moral guidance.”9
And in Gaylord v. Tacoma School Dist. No. 1010, the Washington Supreme Court upheld the
termination of a 12-year veteran teacher solely because of his status as a gay man. Despite the
“uncontroverted evidence [that Gaylord] was a competent and intelligent teacher,” the court
ruled that his homosexuality constituted the dismissible offense of “immorality” under state law.
Emphasizing that the “thought of intimate contacts with their own sex disgusts many normal
persons,” the court noted that “homosexuality is widely condemned as immoral and was so
condemned as immoral during biblical times.”11 Gaylord’s status as a gay man irreparably
“impaired” his ability to be a teacher who is “required to teach principles of morality,”12 the court
concluded. Oklahoma has opted for a more direct route, and has enacted a statute providing
simply that teachers will be terminated and denied future employment for engaging in
homosexual conduct.13
These three cases are merely illustrative of the historical and deep-seated animus toward LGBT
teachers and the manner in which that animus has been codified in state laws. As noted, school
boards and state boards of education throughout the country have used statutory prohibitions on
“immoral conduct” to fire and decertify qualified and dedicated LGBT teachers for no reason
other than their sexual orientation or their “depraved” homosexual conduct, which purportedly
rendered them “unfit to teach.”14
“Immorality” has not been the only statutory basis for overt and state-sanctioned discrimination
against LGBT educators. Historically, homosexuality has been treated by the medical profession
and by legislative bodies as a mental illness. The Immigration and Naturalization Act of 1952,
for example, denied admission to the United States any noncitizen who suffered from a
“psychopathic personality.”15 Relying on the legislative history of the 1952 Act, the U.S.
Supreme Court held in Boutilier v. Immigration and Naturalization Service that the term
“psychopathic personality” was intended by Congress to cover “homosexuals and other sex
perverts” who suffer from a “sexual affliction.”16 Accepting Congress’ determination that
homosexuals are, by definition, psychopaths, the Court upheld the legality of an order deporting
a gay man solely because of his sexual orientation.17
Prior to 1973, the well-respected American Psychiatric Association (APA) designated
homosexuality as a “mental disorder” in its Diagnostic and Statistical Manual of Psychiatric
Disorders. Consistent with the APA designation and Congress’ 1952 Act, many states enacted
statutes that separately list “mental disability” or “mental incapacity” as an independent basis for
firing a tenured teacher.18 Although the APA voted in December 1973 to remove homosexuality
from its official list of “Mental Disorders,” that action was not binding on school districts, which
continued to treat LGBT teachers as mentally ill.
In Gish v. Board of Ed. of Borough of Paramus, Bergen County19, for example, the New Jersey
Appellate Division in 1976 upheld an order that a teacher undergo a psychiatric evaluation to
determine if he was fit to teach based solely on his participation in the activities of the Gay
Activists Alliance, activities that included encouraging others to join in a “Hold Hands
Demonstration” on the George Washington Bridge. The board’s order was supported by the
testimony of two psychiatrists who stated that the teacher’s “actions display evidence of
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NEA Statement in Support of ENDA
September 30, 2009
deviation from normal mental health which may affect his ability to teach, discipline and
associate with the students.”20 Such a mentally ill teacher, the court said, may “pose a danger of
harm to students” in the classroom, and school officials “need not wait until the harm occurs”
before taking action against the teacher.21
From time-to-time, animus aimed directly at LGBT teachers has taken the form of popular
referenda. The infamous Briggs amendment, dramatized in the movie Milk, appeared on the
1978 California ballot and would have banned gays from teaching in California public schools.
It was defeated by a large margin. In 1992, Oregon voters defeated a ballot initiative that would
have required every public school in the state to teach school children that homosexuality is
“abnormal, wrong, unnatural, and perverse.”
Also in 1992, Colorado voters approved an amendment to the state constitution that, among other
things, prohibited school districts (and the state legislature) from adopting any policy or law
banning discrimination on the basis of sexual orientation. After a four-year legal battle, the
amendment was struck down by the U.S. Supreme Court in the case Romer v. Evans.22 The
amendment, the Court said, was “born of animosity” toward GLBT persons and “singl[ed] out a
certain class of citizens for disfavored legal status.”23 Such an animus-based enactment, the Court
concluded, lacked any rational basis at all and violated the Equal Protection Clause.
In summary, the foregoing discussion demonstrates that, historically, LGBT teachers who
disclosed their sexual orientation were admitting both that they engaged in criminal and
“immoral” conduct, as defined by state law, and that they were mentally ill, as defined by
Congress, the APA, and other medical authorities. In either event, such teachers were deemed
unfit to teach and not worthy to hire. Since committing a crime, being immoral, or suffering
from a mental illness provided separate and independent statutory bases for termination or the
refusal to hire, virtually every LGBT teacher has chosen the safe and prudent route of
nondisclosure and simply kept his/her mouth shut. 24
B. Over the last 40 years, however, there have been a few heroic exceptions: NEA members
who were willing to put their jobs at risk and their private lives on display in order to challenge
this pervasive and pernicious form of state-sanctioned employment discrimination. While their
efforts were rarely successful, it is important that their stories be told in this legislative forum so
that members of Congress can learn firsthand how ugly and harmful anti-gay discrimination in
the workplace really is and hopefully will be persuaded that appropriate legislation is sorely
needed, not legislation that creates “special rights,” but legislation that creates “equal rights” for
LGBT employees to be free from discrimination.
● It was September 1972, and Joseph Acanfora was only a month into his first teaching job in
Montgomery County, Maryland when he received notice that he was being removed immediately
from the classroom and relieved of his teaching duties. His “crime” wasn’t poor teaching or
misconduct. No, he was expelled from the classroom and ultimately fired simply and solely for
being gay.
As a student at Penn State University, Acanfora had been a visible proponent of gay rights,
actively participating in the activities of the student organization Homophiles of Penn State.
After graduation, he applied for a Pennsylvania teaching certificate, but the dean of the College
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NEA Statement in Support of ENDA
September 30, 2009
of Education refused to sign a form confirming that Acanfora had the “good moral character” to
be a teacher because the dean knew he was gay. The Pennsylvania Secretary of Education
ultimately interceded in the process and issued a teaching certificate to Acanfora. He also called
a press conference to announce his decision granting a teaching certificate to an openly gay man,
a press conference that was covered by the national media, including newspapers in Washington,
D.C. and New York. Two days later, Acanfora was removed from any contact with children and
sent to the central office where he performed mindless busy work.
With NEA’s assistance, Acanfora sued the school district in federal court claiming a violation of
his constitutional rights under the First and Fourteenth Amendments. While the lower court
initially ruled in Acanfora’s favor -- holding that under the constitution, “mere knowledge that a
teacher is homosexual is not sufficient to justify transfer or dismissal”-- the Fourth Circuit Court
of Appeals reversed.25 In a classic case of “Catch-22,” the court held in a 1974 ruling that
Acanfora could not prevail or be reinstated because he had lied on his initial employment
application with the school district by failing to disclose that, as a student, he belonged to the
Homophiles of Penn State. The court reached this conclusion despite the fact that school
officials conceded that, if Acanfora had disclosed his membership in the organization, he would
not have been hired because he was gay. Paradoxically, the school officials admitted that they
would not have hired him had they known he was gay, and the court ruled that they did not have
to give him his job back because he failed to disclose that he was gay.
As one of the very first cases involving an openly gay teacher, Acanfora’s lawsuit garnered
considerable media attention, and he received mounds of hate mail, including this letter: “You
and your type should be put on a six foot raft and set in the middle of the Atlantic Ocean … You
are not fit to mingle with decent human beings… I’ll bet your parents wished many times they
should have aborted you…” And this gem: “[A] homosexual is a wicked – sinfully wicked –
person … God rained Fire and Brimstone from heaven because of evil wicked homosexuals –
please go move on an Island so everybody don’t [sic] have to suffer ….”26 The Supreme Court
refused to hear an appeal in the case, and Joe Acanfora has never returned to the teaching
profession.
● Marge Rowland was a high school guidance counselor (and the divorced mother of three
children) who lost her job because she confided to her secretary that she was bisexual. She had
been employed by the Mad River School District in rural Ohio until the day she walked into her
office exuding high spirits. When her secretary asked her why she was in such a good mood,
Rowland replied, “My love is for a woman.” That was her “crime” and the sole reason she was
removed from any student contact and subsequently dismissed.
NEA provided funding for a lawsuit, and a federal court jury found that school officials had
discriminated against Rowland because of her sexual orientation and awarded her money
damages. In a 1984 decision, however, the U.S. Court of Appeals for the Sixth Circuit reversed
the jury verdict and ruled that the discrimination Rowland suffered did not violate the First
Amendment or the Equal Protection Clause.27 The Supreme Court refused to review the case.
Marge Rowland never returned to her career in education and became a lawyer instead.
● NEA member “John Doe” (he asked that his name not be disclosed) had been a teacher in
Pennsylvania’s Mohawk Area School District for more than 20 years and had a spotless record.
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NEA Statement in Support of ENDA
September 30, 2009
In the summer of 1990, he met a man – later identified as Daniel Vasquez -- in Youngstown and
invited him home for consensual sex. When they arrived, Vasquez tied up Doe with an electrical
cord, gagged him so he could not scream, and beat him severely in the face. He then ransacked
the house, beat Doe a second time, stole a number of personal possessions, set the house on fire,
and drove away in Doe’s car. Alert neighbors saw smoke and called the fire department. Doe
was unconscious when rescued and spent five days in the hospital recuperating.
The local newspaper wrote a story about the crime and the victim, including the circumstances
under which Vasquez gained access to Doe’s home. Instead of sending him flowers or a get well
card, the school board voted to fire Doe immediately for “immorality.” Doe’s conduct, the board
said, “offended the morals of the community” and set “a bad example to the youth whose ideals a
teacher is supposed to foster.” Fortunately, Doe had the job protection of a collective bargaining
agreement. An arbitrator later ruled that the school district lacked “just clause” to terminate Doe
and that his conduct did not render him “unable to perform the requirements of a classroom
teacher.”28 As a result, the arbitrator ordered that Doe be reinstated to his teaching position with
back pay and benefits.
● In many ways, the most compelling reasons for Congress to enact ENDA can be found in the
recent Tenth Circuit Court of Appeals decision in Milligan-Hitt v. Bd. of Trustees of Sheridan
County School District No. 2.29 That case involved two NEA members, Kathleen Milligan-Hitt and
Kathryn Roberts, who lost their jobs as administrators in the Sheridan (Wyoming) County
School District simply because they are gay.
Their employment problems began when the school superintendent received a visit from a
“concerned parent,” who reported a rumor that the two women had been seen holding hands and
walking into a Victoria’s Secret store in Billings Montana. He called Roberts into his office and
angrily confronted her with the rumor. He also told her that he had called the school district
where Hitt and Roberts had been previously employed and found out that they were involved in a
long-term intimate relationship.
A few months later, the superintendent implemented a district-wide “reorganization” that
resulted in Hitt and Roberts losing their jobs, the only two employees who were terminated.
They sued, and the jury found that the superintendant had manipulated the reorganization in
order dismiss the two adminstrators because of their sexual orientation. The jury determined that
the school district had violated their rights to Equal Protection and awarded substantial damages.
The school district appealed the case to the Tenth Circuit, and in a decision handed down just last
year, the appeals court reversed, threw out the damages award, and dismissed the case. The
court held that the school district could not be held liable because the termination decision was
made by the superintendent. The court then held that the superintendent could not be held liable
because the law is not firmly established that firing gay school employees because of the sexual
orientation violates the federal constitution, emphasizing that the U.S. Supreme Court has never
made such a ruling.
In a nutshell, what the Milligan-Hitt decision and the other cases make crystal clear is that
federal law does not currently provide adequate protection for GLBT school employees; they can
be fired and decertified based solely their sexual orientation, and they have no federal remedy,
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NEA Statement in Support of ENDA
September 30, 2009
even if – as in Milligan-Hitt – there is substantial and direct evidence that the decisionmaker was
motivated solely by anti-gay animus.
That is a horrible injustice. A whole class of competent and caring school employees can be
fired from their jobs – not because of any misconduct – but solely because of their status as gay
Americans. Of equal concern, this overt form of employment discrimination sends a terrible
message to LGBT students that they too are second class citizens, that they too are not entitled to
legal protection from discrimination or the horrors of gay-bashing perpetrated by their peers.
LGBT students often look to LGBT educators for support and guidance. And when those
supportive adults can lawfully be purged from the public schools, it can have a devastating
impact on these students.
For these reasons, NEA has long supported federal legislation prohibiting discrimination against
GLBT employees (and students). In 2001, the Association established the NEA Task Force on
Sexual Orientation, which conducted an eight-month study of LGBT school employees and
students and reported its findings. Among other things, the Task Force concluded that,
“Employment discrimination directed at GLBT education employees is commonplace,” that
instances of such discriminations are woefully underreported, and that the cases that do arise “are
surely the tip of the iceberg.” That is so, the report notes, because employees who challenge
such discrimination “draw attention to the victim’s sexual orientation/gender identification and
thus increase[] the risk of further discrimination.” An excerpt of the Task Force report is
attached to this submission. A complete copy of the report is available to the Committee upon
request.
Homophobia is a virulent social disease that for far too long has victimized innocent,
compassionate, and competent educators, often destroying their careers as teachers. Congress
has the power to put an end to this form of invidious discrimination, and NEA strongly urges that
it do so by enacting the Employment Non-discrimination Act.
Endnotes
1
Horenstein, Homosexuals in the Teaching Profession, 20 Clev. St. L. Rev. 125, 125-26 (1961)
(hereinafter “Horenstein”]; Our Straight-Laced Judges: The Legal Position of Homosexual Persons in the
United States, 50 Hastings L.J. 1015, 1078 - 79 (1999) [hereinafter “Straight-Laced Judges”].
2
Bowers v. Hardwick, 478 U.S. 186, 192-93 (1986).
3
E.g., Straight-Laced Judges, supra, n. 1 and cases cited therein. The California Code, for example,
required that the state to revoke the teaching license of any educator convicted or “sodomy” or “oral
copulation.” Id. at 1080.
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NEA Statement in Support of ENDA
September 30, 2009
4
Education Commission of the States, Teacher Tenure/Continuing Contract Laws (1998 study of state
tenure laws), posted at: http://www.ecs.org/clearinghouse/14/41/1441.htm (last visited on 9/28/09)
[hereinafter “ECS study”].
5
249 Cal. App.2d 58, 57 Cal. Rptr. 69 (1967)
6
249 Cal. App.2d 58, 57 Cal. Rptr. 69 (1967)
7
249 Cal.App.2d at 63-64, 57 Cal.Rptr. at 72 – 73.
8
35 Cal.App.3d 490, 493, 110 Cal. Rptr. 916 (1973)
9
35 Cal.App.3d at 496 -497.
10
88 Wash.2d 286, 559 P.2d 1340 (Wash. 1977)
11
88 Wash.2d at 292, 294, and 295.
12
88 Wash. 2d at 298-99.
13
70 Okl.St.Ann. § 6-101.22. The U.S. Court of Appeals for the Tenth Circuit struck down an Oklahoma
statute (70 Okl.St.Ann. § 6-103.15) requiring the dismissal of any teacher who engaged in “public
homosexual conduct,” which was construed to include appearing “before the Oklahoma legislature … to
urge the repeal of the Oklahoma anti-sodomy statute.” National Gay Task Force v. Board of Educ. of
City of Oklahoma City, 729 F.2d 1270, 1274 (10th Cir. 1984), aff’d by an equally divided Court, Board of
Educ. of City of Oklahoma City, Okl. v. National Gay Task Force, 470 U.S. 903, 105 S.Ct. 1858 (1985).
14
E.g., Burton v. Cascade School Dist. Union High School No. 5, 353 F.Supp. 254, 255 (D.C.Or. 1973),
aff’d, 512 F.2d 850 (9th Cir. 1975), cert. denied, 423 U.S. 839, 96 S.Ct. 69 (1975) (high school teacher
fired on the ground of “immorality” after admitting that she was a “practicing homosexual” was not
entitled to reinstatement as a teacher). See generally, Jeffrey F. Ghent, Sexual Conduct as Ground for
Dismissal of Teacher or Denial or Revocation of Teaching Certificate, 78 A.L.R.3d 19 (and cases
discussed therein).
15
8 U.S.C.A. § 1182(a) (4).
16
387 U.S. 118, 87 S.Ct. 1563 (1967).
17
Id.
18
ECS Study, supra, n. 4.
19
145 N.J.Super. 96, 366 A.2d 1337 (N.J.Super.A.D. 1976).
20
145 N.J.Super. at 103-04.
21
145 N.J.Super. at 104.
22
517 U.S. 620 (1996).
23
517 U.S. at 634-635.
24
Fortunately, in recent years, the medical views of health care professionals regarding homosexuality
and mental illness have changed 180 degrees. As of 2006, every respected medical and mental health
organization had agreed that homosexuality is not a mental illness.
http://www.religioustolerance.org/hom_prof.htm (last visited Sept. 28, 2009)
25
Acanfora v. Board of Ed. of Montgomery County, 491 F.2d 498, 501 (4th Cir. 1974), cert. denied, 419
U.S. 836, 95 S.Ct. 64 (1974)
26
http://www.joeacanfora.com/quotes.html (last visited Sept. 29, 2009)
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NEA Statement in Support of ENDA
September 30, 2009
27
Rowland v. Mad River Local School Dist., Montgomery County, Ohio, 730 F.2d 444 (6th Cir. 1984),
cert. denied, 470 U.S. 1009 (1985).
The arbitrator’s decision involving “John Doe” and the Mohawk Area School District case is on file
with the NEA Office of General Counsel.
28
29
523 F.3d 1219 (10th Cir. 2008).
9