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Statement of the NEA on Employment Non-Discrimination Act

June 12, 2012

Submitted to The Committee On Health, Education, Labor And Pensions

The National Education Association (NEA), representing more than three million educators across the nation, thanks the Committee on Health, Education, Labor and Pensions 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.  This invidious discrimination 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.  Now is the time for Congress to end this injurious and indefensible practice.

The purpose of this submission is twofold:  First, to document the long history of official state-sponsored, de jure and de facto, discrimination against gay, lesbian, bisexual, and transgender (GLBT) 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 GLBT teachers.  

Historical Discrimination against GLBT Educators

Historically, GLBT 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 GLBT 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 GLBT 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, state-sanctioned basis for firing GLBT 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 emphasized that, under state law, GLBT 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, enacting 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 GLBT 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 GLBT 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 GLBT 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 GLBT 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 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 GLBT 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, historically, GLBT 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, most GLBT teachers have chosen the safe and prudent route of nondisclosure and simply suffered discrimination in silence. 24

NEA Member Stories

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 be persuaded that appropriate legislation is sorely needed.  This is not legislation that creates “special rights,” but legislation that creates “equal rights” for GLBT employees to be free from discrimination.

  • Joseph Acanfora:

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.  Rather, 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 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

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 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.

  • “John Doe”

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.  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 cause” 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.

  • Kathleen Milligan-Hitt and Kathryn Roberts

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 Milligan-Hitt and Roberts had been previously employed and found out that they were involved in a long-term intimate relationship.  The rumor about their alleged visit to the Victoria’s Secret store was false, but the information about their relationship was true.

A few months later, the superintendent implemented a district-wide “reorganization” that resulted in Milligan-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 to dismiss the two administrators 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 in 2008, 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 their sexual orientation violates the federal constitution, emphasizing that the U.S. Supreme Court has never made such a ruling.  Although they lost their court case, Kathleen Milligan-Hitt and Kathryn Roberts were able to find employment in a different, more-accepting Wyoming school district.

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 on their sexual orientation, and they have no federal remedy, 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 GLBT students that they too are second class citizens, not entitled to legal protection from discrimination or the horrors of gay-bashing perpetrated by their peers.  GLBT students often look to GLBT educators for support and guidance.  And when those supportive adults can lawfully be fired from the public schools, it can have a devastating impact on these students.

Conclusion

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 GLBT 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 discrimination 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.”  A copy of the report is available to the Committee upon request.

For far too long, homophobia 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.

4 Education Commission of the States, Teacher Tenure/Continuing Contract Laws (updated August 2011), posted at: http://www.ecs.org/clearinghouse/94/93/9493.pdf (last visited on 6/5/12) [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).

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).

28 The arbitrator’s decision involving “John Doe” and the Mohawk Area School District case is on file with the NEA Office of General Counsel.

29 523 F.3d 1219 (10th Cir. 2008).