''National Gay Task Force v. Board of Education of the City of Oklahoma City, Oklahoma'', 729 F.2d 1270 (10th Cir. 1984), is a decision by the Court of Appeals for the Tenth Circuit that upheld in part, and struck down in part, a law allowing schools to fire teachers for public homosexual conduct. It was the first federal appellate court decision to deny that sexual orientation is a suspect classification. It was affirmed by an equally divided vote in the

United States Supreme Court The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point o ...

Case Facts

An Oklahoma state law enacted in 1978Justices Affirm Ruling Upholding Gay Teachers' Rights
Phil Hager, Los Angeles Times, March 27, 1985, accessed via latimes.com July 6, 2012 authorized schools to fire teachers for " ngagingin public homosexual conduct or activity"; and " asbeen rendered unfit, because of such conduct or activity, to hold a position as a teacher, student teacher or teachers' aide. "''National Gay Task Force v. Board of Education'', 729 F.2d 1270 at 1272 (10th Cir. 1984)
citing Okla.Stat. tit. 70, § 6-103.15, (B) 1,2 Via Leagle Accessed July 6, 2012 The

National Gay Task Force The National LGBTQ Task Force is an American social justice advocacy non-profit organizing the grassroots power of the lesbian, gay, bisexual, transgender, and queer (LGBTQ) community. Also known as The Task Force, the organization supports ac ...

filed a facial, class-action challenge to this law on First and Fourteenth Amendment grounds.

District Court Ruling

The Tenth Circuit trial court rejected the legal challenges to the statute. On reaching the First Amendment issue, it read a "material and substantial disruption" test into the statute.

Appellate Court Ruling

The Tenth Circuit affirmed in part and reversed in part the district court ruling. With respect to the provision allowing teachers to be fired for engaging in public homosexual activity, the Court rejected due process and equal protection challenges. It held that since the act imposed adverse consequences solely on the basis of public acts, "the right of privacy, whatever its scope in regard to homosexual acts, is not implicated". In weighing the equal protection challenge, the Court rejected the notion that sexual orientation is a suspect classification. It then rejected the equal protection challenge under rational basis review. On weighing the First Amendment claim, the Court held that the conduct portion of " § 6-103.15 is overbroad, is "not readily subject to a narrowing construction by the state courts," and "its deterrent effect on legitimate expression is both real and substantial."", and the law regulated "pure speech" It held that " e First Amendment does not permit someone to be punished for advocating illegal conduct at some indefinite future time. It used the example of a teacher who went before the Oklahoma legislature or appeared on television to urge the repeal of the Oklahoma anti-sodomy statute would be "advocating," "promoting," and "encouraging" homosexual sodomy and creating a substantial risk that his or her speech would come to the attention of school children or school employees if he or she said, "I think it is psychologically damaging for people with homosexual desires to suppress those desires. They should act on those desires and should be legally free to do so."id. It held that "the statute by its plain terms is not easily susceptible of a narrowing construction" because " e Oklahoma legislature chose the word "advocacy" despite the Supreme Court's interpretation of that word in ''Brandenburg'' 'v. Ohio''" And it held that "the deterrent effect of § 6-103.15 is both real and substantial. It applies to all teachers, substitute teachers, and teachers aides in Oklahoma" Thus, the Court concluded that the statute was "unconstitutionally overbroad". In dealing with the provision that a teacher had to be found unfit before public homosexual conduct can be a basis for termination, it noted that "many adverse effects are not material and substantial disruptions. The statute does not require that the teacher's public utterance occur in the classroom. Any public statement that would come to the attention of school children, their parents, or school employees that might lead someone to object to the teacher's social and political views would seem to justify a finding that the statement "may adversely affect" students or school employees. The statute does not specify the weight to be given to any of the factors listed. An adverse effect is apparently not even a prerequisite to a finding of unfitness"

Appellate Court Dissent

Judge Barrett dissented, arguing that " domy is ''

malum in se ''Malum in se'' (plural ''mala in se'') is a Latin phrase meaning ''wrong'' or ''evil in itself''. The phrase is used to refer to conduct assessed as sinful or inherently wrong by nature, independent of regulations governing the conduct. It is di ...

''; ''i.e.'',

immoral Immorality is the violation of moral laws, norms or standards. It refers to an agent doing or thinking something they know or believe to be wrong. Immorality is normally applied to people or actions, or in a broader sense, it can be applied to g ...

and corruptible in its nature without regard to the fact of its being noticed or punished by the law of the state", and that " y teacher who advocates, solicits, encourages or promotes the practice of sodomy" in a manner that creates a substantial risk that such conduct will come to the attention of school children or school employees "is in fact and in truth inciting school children to participate in the abominable and detestable

crime against nature The crime against nature or unnatural act has historically been a legal term in English-speaking states identifying forms of sexual behavior not considered natural or decent and are legally punishable offenses. Sexual practices that have histo ...

Supreme Court Proceedings

The defendants petitioned for a writ of certiorari, and the United States Supreme Court granted cert. It heard oral arguments on January 14, 1985, with

Laurence Tribe Laurence Henry Tribe (born October 10, 1941) is an American legal scholar who is a University Professor Emeritus at Harvard University. He previously served as the Carl M. Loeb University Professor at Harvard Law School. A constitutional law sc ...

representing the respondents. This was the first oral argument before the Supreme Court on any gay rights issue. In oral argument, Justice

William Rehnquist William Hubbs Rehnquist ( ; October 1, 1924 – September 3, 2005) was an American attorney and jurist who served on the U.S. Supreme Court for 33 years, first as an associate justice from 1972 to 1986 and then as the 16th chief justice from ...

noted that the statute had "never been applied to a single living soul", and Tribe countered that the law was a "chilling" and "Draconian" violation of speech, and the Court may reach the merits. The Supreme Court affirmed by an equally divided vote, 4-4, with Justice Lewis Powell abstaining.High court upholds homosexual appeal in school law case
Houstin Chronicle News Services March 27, 1985 Accessed via Chron.Com July 6, 2012

References