September 16, 2009
The Honorable George Miller, Chairman
Committee on Education and Labor
U.S. House of Representatives
The Honorable John Kline, Ranking Member
Committee on Education and Labor
U.S. House of Representatives
Dear Chairman Miller and Ranking Member Kline:
I write to you as a longtime member of the faculty at both the UCLA Graduate School of
Education & Information Studies and the UCLA School of Law, specializing primarily in
Education Law and Policy. Throughout my years at UCLA, I have maintained ongoing
contact with the K-12 public schools. I served as Director of Teacher Education (19931995), Special Counsel for the California Department of Education (1988-1996), and the
on-site federal court monitor for the San Francisco public schools (1997-2005). I also
train future principals in UCLA‟s Principal Leadership Institute (since 2000).
On the academic front, I am the author of the West casebook Education and the Law,
Second Edition (2009), and Beyond Our Control? Confronting the Limits of Our Legal
System in the Age of Cyberspace, MIT Press (2001). I developed and taught the first and
only course in UCLA‟s education school devoted entirely to lesbian, gay, bisexual, and
transgender (LGBT) issues, and I have recently completed The Right to Be Out in the K12 Public Schools [hereinafter The Right to Be Out], a book focusing entirely on LGBTrelated legal and public policy issues in education. It is scheduled to be published by the
University of Minnesota Press in 2010.
• A Widespread Pattern of Unconstitutional Employment Discrimination
Although great progress is evident across a wide variety of fronts, LGBT persons
continue to face complex circumstances and significant impediments, particularly in the
legal and public policy arenas. Nowhere is the situation more complex and more
challenging than in the K-12 public schools.
Indeed, disclosure of a person‟s sexual orientation or gender identity in many K-12
institutions can still lead to the loss of employment opportunities and the discrediting of
one‟s professional and personal standing in the same way that it did for most people in
the 1950s and 1960s. All too often, LGBT educators today are confronted with the
message that they had better remain as closeted as possible. If they do not heed this
message, they can be made to feel so uncomfortable by administrators, parents, or other
members of the school community that they choose to leave K-12 education.
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Such mistreatment of employees by state and local governments clearly violates the
rights of LGBT educators under the U.S. Constitution. As discussed further below, and
as documented in the attached excerpt from my forthcoming book, there continues to be a
widespread pattern of unconstitutional employment discrimination in this context.
For example, a principled reading of current legal doctrine reveals that – in our pluralistic
society – all persons have a right to be open regarding fundamental aspects of identity,
personhood, and group affiliation. Contextualizing this right to be “out” and reviewing
its development in the public sector today, it is evident that it reflects a classic
combination of First Amendment and Fourteenth Amendment principles. It is both a
right to express an identity and a right to be treated equally as a result of expressing this
identity. Stuart Biegel, “Conceptualizing the Parameters of the Right to Be Out,”
Education and the Law, Second Edition, American Casebook Series (St. Paul, Minn.:
West, 2009), 169-186.
Yet in research conducted for The Right to Be Out over the past seven years, I have found
that K-12 educators still face “a combination of subtle pressure and express admonition
that together limit their ability to be open about who they are. And too often such
limitations continue to be reflected in job placement and promotion decisions that favor
educators whose sexual orientations and gender identities appear to conform to
mainstream norms. Public school educators may have the right to be out under the law,
but in day-to-day educational practice – and particularly in certain communities – that
right may be severely curtailed.”
Since there is overwhelming consensus today in both the research literature and in
reported judicial decisions that sexual orientation and gender identity are not related in
any way to job performance in K-12 schools, adverse employment action based on actual
or perceived LGBT status is nothing less than irrational under Fourteenth Amendment
jurisprudence.
In addition, it must be noted that there is much more employment discrimination against
LGBT education employees than the reported cases and administrative complaints would
indicate, because so many still fear the consequences of disclosing their identities, seek to
cover their identities, and/or have faced administrative agencies and courts that have been
hostile to their claims.
• Multiple and Interrelated Levels of Discrimination Over Time
Discrimination against LGBT education employees continues to occur at every level of
government, local, state, and federal. It is linked inextricably to a history of purges of
actual and perceived LGBT public employees, a history of state laws specifically
prohibiting LGBT persons from teaching, state licensing requirements that included
morality fitness tests that were interpreted to exclude LGBT employees, state laws
criminalizing consensual same-sex relations, and judicial decisions contemptuous of
LGBT persons and cruelly dismissive of their core human characteristics.
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The public record over the past 50-75 years is filled with examples of local
discriminatory treatment of gay and gender non-conforming teachers that is grounded not
only in a history of state discrimination but in individual state laws themselves. See
generally E. Edmund Reutter, Jr., The Law of Public Education, Fourth Edition (New
York: Foundation Press, 1994) at Page 657.
These realities are documented in three widely reported and highly publicized decisions
focusing on teacher licensing at the state level: the Acanfora case out of Maryland, the
Morrison case out of California, and the National Gay Task Force case out of Oklahoma.
--Acanfora v. Bd. of Educ. of Montgomery County, 491 F. 2d 498 (1974). In Acanfora,
state law impacted the plaintiff teacher‟s career on three interrelated levels, his ability to
complete his education in the teacher training program after it was learned that he was the
treasurer of gay student organization at Penn State, his ability to get a license to teach
because of his openness regarding his sexual orientation, and his ability to retain his job
once Montgomery County school officials learned of his gay identity.
Acanfora was removed from his classroom and assigned to an administrative job after the
District discovered his former membership in the Penn State student organization. He
sued for reinstatement, but in the subsequent trial, the judge accepted the school board‟s
argument that Acanfora was terminated not because of his homosexuality but because he
had not included his membership in the gay organization on his employment application.
Moreover, while the Court found the school board‟s policy of not knowingly employing
LGBTs objectionable, it determined that the publicity about Acanfora‟s homosexuality,
including his vigorous self-defense, was “likely to produce imminent effects deleterious
to the educational process” and thus justified the school board‟s dismissal. The Fourth
Circuit Court of Appeals affirmed the lower court decision on behalf of the District.
--Morrison v. State Bd. of Educ., 461 P.2d 375 (Cal. 1969). As discussed in more detail
below in the attached chapter, Marc Morrison was a fully credentialed educator in
Southern California with an unblemished record. During one week in early 1963, he and
a fellow male colleague “engaged in a limited, non-criminal physical relationship.” After
this fact was discovered, Morrison was apparently pressured to resign from the District,
and the State Board of Education followed by revoking his teaching credential, a
revocation that Morrison chose to contest openly. He lost at the lower court, but finally
prevailed in the California Supreme Court, five years after his life had been completely
torn apart by the loss of his job and the stigma accompanying the resulting series of
events.
Morrison never claimed to be gay, never asserted any rights under either the First or
Fourteenth Amendments, and never argued that he was being discriminated against in
any way. His entire argument, which ultimately carried the day, was that what he had
done did not warrant revocation of his teaching credential because it had nothing to do
with his fitness to teach.
--Nat’l Gay Task Force v. Bd. of Educ., 729 F.2d 1270 (10th Cir. 1984). Immediately
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after Proposition 6 -- the 1978 Briggs Initiative documented in the recent film Milk -failed to pass in California, Oklahoma state senator Mary Helm introduced a bill with
similar wording that passed overwhelmingly. The Oklahoma law provided that K-12
public school teachers could be fired or suspended for “public homosexual activity,”
broadly defined as including “advocating…homosexual activity in a manner that creates
a substantial risk that such conduct will come to the attention of school children or school
employers.” The law remained on the books for years, disrupting the lives of LGBT
educators in dramatic and draconian ways. In 1982, in fact, it was upheld in its entirety
by the lower court in the Western District of Oklahoma.
Finally, in 1984, the Tenth Circuit Court of Appeals struck down portions of the law
relating to “advocacy” as overbroad and violative of the First Amendment. But by that
time, for many people in a variety of troubling circumstances, lives had been
transformed, outstanding teachers had left the state, and things would never be the same.
It should be noted that even as the Oklahoma case was reaching the Tenth Circuit in
1983, the West Virginia Attorney General issued an opinion for his state holding that gay
and lesbian teachers could be fired by their districts under a state law that authorized
school officials to fire teachers for “immorality.” 60 W. Va. Op. Atty. Gen. 46, 1983 WL
180826 (W.Va.A.G.), Office of the Attorney General State of West Virginia, *1 February
24, 1983. He stated that homosexuality was immoral in West Virginia even though the
state had decriminalized consensual same-sex relations in 1976, and while he wrote that
homosexuality must be shown to affect the person‟s fitness to teach, he concluded that
this could be shown if the teacher was “publicly known to be homosexual”. Ibid.
• Hostility of the Courts
The pervasive level of discrimination and indeed contempt documented in the previous
pages is reflected not only in the statutory schemes of the past five decades and in the
attendant statements by public officials but also in the writings of judges at every level of
the judicial system. See, e.g., Jack M. Balkin, “The Constitution of Status,” 106 Yale Law
Journal 2313, 2316-2320 (1997) (seeking to provide both an historical and a cultural
context for the various opinions in Romer v. Evans, 517 U.S. 620 (1996)). See also
Robert G. Bagnall, “Burdens on Gay Litigants and Bias in the Court System:
Homosexual Panic, Child Custody, and Anonymous Parties,” 19 Harvard Civil RightsCivil Liberties Law Review 497, 515-46 (1984) (focusing primarily on state court rulings
in its analysis of the challenges faced by gay and lesbian parents who wished to maintain
custody of their children during the decades following World War II); Barbara Ponse,
Identities in the Lesbian World: The Social Construction of Self (Westport, Conn.:
Greenwood Press, 1978) (analyzing the extent to which a lesbian identity during this era
could be seen as shaped by the widely prevalent stigma that so many faced).
An opinion written by former Chief Justice Warren Burger, while serving on the United
States Court of Appeals for the D.C. Circuit in 1965, exemplifies the legal and public
policy terrain of the era. Rejecting the argument of a gay plaintiff that his sexual
orientation should not disqualify him for employment, Burger dismissed “homosexuals”
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as “sex deviates” who suffer from infirmities analogous to those of chronic alcoholics
and former felons. Scott v. Macy, 349 F.2d 182, 190 (D.C. Cir. 1965) (Burger, J.,
dissenting).
See also Laura S. Fitzgerald, “Towards A Modern Art of Law,” 96 Yale Law Journal
2051 (1987), written in the aftermath of Bowers v. Hardwick, 478 U.S. 1039, the 1986
U.S. Supreme Court decision that upheld the constitutionality of a Georgia statute
criminalizing consensual sodomy between adults. In the article, Fitzgerald documents
the legal terrain faced by LGBT persons in the post-World War II era, and highlights
decisions that exemplified the state of the law during that 40-year period.
In addition to the decisions referenced above, examples of consistent and ongoing
hostility toward LGBT litigants -- and particularly toward gay and gender nonconforming teachers at the state court level -- include the following cases out of
Washington and New Jersey.
--Gaylord v. Tacoma School Dist. No. 10, 88 Wash.2d 286, 559 P.2d 1340 (en banc)
(1977). Among the state court opinions cited by Professor Fitzgerald was the
Washington State Supreme Court decision in Gaylord, which upheld the dismissal of a
veteran public school teacher from his position when his openly gay identity became
known in 1972. 96 Yale Law Journal at 2055, n. 19. The lower court had concluded that
despite an impeccable 12-year teaching record, James Gaylord was “properly discharged
for immorality because he was homosexual, and as a known homosexual, his ability and
fitness to teach was impaired with resulting injury to the school.” The state supreme
court, in a lengthy discussion of immorality, found that homosexuality was indeed
immoral, relying in part on a definition from the 1967 edition of the New Catholic
Encyclopedia. The Court concluded that for this reason alone, public knowledge of his
gay identity impaired his ability to teach and thus he could indeed be discharged.
Over thirty years later, this case is not only still on the books, but it has not been
expressly overruled by either court decision or statute. Indeed, it is still included in a
major textbook written by legal experts and used by education schools and future school
site administrators across the country as an example of current law. See Kern Alexander
& M. David Alexander, American Public School Law, Sixth Edition (2005) at Pages 703706 (identifying the Gaylord decision as an example of the assertion that „homosexuality
of teacher is immorality justifying dismissal‟).
--Gish v. Bd. Of Educ., 145 N.J. Super. 96 (1976). A similarly notorious case from the
same era involved the horrific treatment of New Jersey high school English teacher John
Gish, who was ordered by the school board to undergo a psychiatric examination when
they learned about his activism on behalf of gay and lesbian communities. Gish had
played a key role in organizing the Gay Teachers Caucus of the National Education
Association (NEA) in 1972, and he was also active in the Gay Activists Alliance, staging
public events to increase awareness of discrimination.
When Gish refused, the board removed him from his teaching duties and prohibited him
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from having any contact with students or graduates. In 1976, the Superior Court of New
Jersey upheld the school district‟s order that Gish undergo a psychiatric examination,
ruling that the teacher‟s “actions in support of „gay‟ rights displayed evidence of
deviation from normal mental health.”
• Recent Developments and Prognosis
Over the past 15-20 years, LGBT persons have won major victories both in the
courtroom and in state legislatures. Yet it is still the case that employment discrimination
directed against them is widely prevalent.
With regard to litigation, it is important to recognize that while the courtroom victories
have increased, not every LGBT educator has been victorious in this context. See, e.g.,
Schroeder v. Hamilton School District, 282 F.3d 946 (7th Cir. 2002) (a devastating defeat
for a veteran Ohio teacher with an impeccable record who was badly mistreated by
students, parents, and school officials after he came out as gay); Milligan-Hitt v. Board of
Trustees of Sheridan County School Dist. No. 2, 523 F.3d 1219 (10th Cir. 2008)
(concluding that a rural Wyoming school district‟s demotion of two principals who were
living together as a lesbian couple was not discriminatory under the law that existed at
the time, even in light of the acknowledged anti-gay animus presented into evidence).
And it cannot be emphasized strongly enough that even when plaintiffs do prevail in the
courtroom, the process is inevitably accompanied by massive disruptions in people‟s
lives, loss of jobs, loss of stature in the community, the development of physical and/or
psychological maladies, and changes in circumstance that cannot simply or easily be
rectified by the legal victories.
With regard to legislation, it certainly must be acknowledged that a growing number of
states and municipalities have begun the process of expressly prohibiting LGBT-related
employment discrimination. As of July 2009, 12 states plus the District of Columbia
explicitly prohibit workplace discrimination on the basis of both sexual orientation and
gender identity. They include California (1992, 2003), Colorado (2007), District of
Columbia (1977, 2006), Illinois (2006), Iowa (2007), Maine (2005), Minnesota (1993),
New Jersey (1992, 2007), New Mexico (2003), Oregon (Jan. 2008), Rhode Island (1995,
2001), Vermont (1991, 2007), and Washington (2006). In addition, 9 other states
prohibit workplace discrimination on the basis of sexual orientation alone: Connecticut
(1991), Delaware (2009), Hawaii (1991), Maryland (2001), Massachusetts (1989),
Nevada (1999), New Hampshire (1998), New York (2003), and Wisconsin (1982).
These anti-discrimination laws have made a significant difference, but after all this time,
they have been introduced and passed in less than half the states. And even in states that
have them, precise prohibitions are inconsistent, cultural norms are difficult to change,
and local enforcement of the laws may be lax. Discrimination may be subtle and difficult
to pinpoint, such as when people are passed over for promotion but never told why.
Also, the hesitancy of many individuals to come out because of the persistence of
discriminatory attitudes and practices enables state and local government officials to
continue the discrimination because no one may ever complain.
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In sum, for all the aforementioned reasons, a strong and overarching federal Employment
Non-Discrimination Act – with powerful and effective enforcement mechanisms – is
vitally necessary to make it clear that such discrimination is abhorrent and is no longer
acceptable in this country.
Sincerely,
Stuart Biegel
Attachment
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