OVERVIEW: The Case of Joe Acanfora

[This overview has been extracted and modified from the background portion of Acanfora’s legal brief appealing his case to the U.S. Supreme Court.]

Penn State College Days

Acanfora entered Pennsylvania State University in 1968, and majored in education. In his junior year, he joined, and soon became Treasurer of the Homophiles of Penn State (HOPS), a newly formed campus organization dedicated to protecting the civil and constitutional rights of homosexuals and increasing public understanding of homosexuality. When the University refused to grant official recognition to the organization, four of its members, including Acanfora, instituted legal action to compel such recognition. That action, which ultimately was successful, received considerable local publicity, in the course of which Acanfora acknowledged that he was a homosexual.

At the time that this acknowledgment became public, Acanfora was fulfilling the student teaching assignment at a public junior high school near the University that was necessary to obtain his teaching degree from Penn State.. That school system and Penn State immediately suspended his student teaching status upon learning of his homosexuality and membership in HOPS. Acanfora thereupon instituted legal action seeking reinstatement as a student teacher, and obtained an immediate court injunction granting such reinstatement. He successfully completed the student teaching assignment with a grade of “B+’ and graduated from Penn State in June, 1972.

As his senior year was coming to a close Acanfora applied for certification to teach in Pennsylvania. The question was raised by the Penn State dean of the College of Education as to whether a homosexual could have the requisite “good moral character” necessary for certification. This issue became a subject of great controversy, including an interrogation of Acanfora by six Penn State deans comprising the University Teacher Certification Council. When the Council deadlocked on whether or not Acanfora possessed a “good moral character,” the matter was referred to the Pennsylvania Secretary of Education for decision. With his Pennsylvania status in this undecided posture, Acanfora sought and obtained employment as a teacher in Montgomery County Public Schools, Maryland.

Employment in Montgomery County

In April, 1972, Acanfora applied for employment with the Board of Education of Montgomery County, Maryland. The application form which he filled out did not inquire whether he was a homosexual. It asked for a list of his “professional, service and fraternal organizations,” and for a list of “extracurricular activities” he had engaged in as a student. He did not list his membership in the Homophiles of Penn State in response to either question.

At a later court trial, Acanfora would explain his reason for omitting mention of HOPS from his employment application:

“[I]t was based primarily on the experience I had just had with the State College Area School District [the student teaching position]. I realized I had just completed four years of training to become a teacher and was judged perfectly qualified; and I realized had I put down the Homophiles of Penn State as an organization or an extracurricular activity that I would not be given a chance to even go through the normal application process for a teaching job; that I would not be considered on an equal par with all other applicants and, in fact, would guarantee that I would not receive any sort of teaching job. So, I decided not to put it down so that I might be able to be judged on an equal par with everyone else.”

On May 19, 1972, Acanfora was interviewed by a personnel specialist in the Department of Personnel for the Montgomery County Schools. Following the interview, the personnel specialist filled out an “interview and recruitment form” which is a standard part of each applicant’s file. Acanfora was rated above average in each of the seven categories contained on the form (appearance, personality, verbal expression, knowledge of subject area, enthusiasm for teaching, references, and scholarship). In the “comments” section, the interviewer described Acanfora as “an above average earth science applicant.” However, the interviewer had acquired a subjective “gut feeling” during the interview that Acanfora might be a homosexual, and so he added the following comment on the form: “Principal must interview before contracting; reservations.”

Despite this caution, Acanfora was hired without further interviewing by the Assistant Principal of Parkland Junior High School in Rockville, Maryland, and entered into a one-year teaching contract. He was one of 719 new teachers hired in Montgomery County in 1972, out of 10,000 applicants.

Acanfora commenced his duties as an eighth grade earth science teacher on August 29, 1972. His teaching performance was judged entirely satisfactory by his supervisor.

On Friday, September 22, 1972, the Pennsylvania Secretary of Education called a press conference to announce that he had decided to certify Acanfora. That weekend news articles appeared in the New York Times and the Washington Evening Star-News reporting the decision of the Pennsylvania Secretary of Education, and noting that Acanfora was now teaching in Montgomery County.

On the following workday, Monday, September 25, the principal of Acanfora’s school addressed a memo to the Deputy Superintendent of Schools, Donald Miedema, recommending that Acanfora “be considered for removal from his teaching position as soon as possible . . . in anticipation of the disruption which can materialize when this becomes known in the community.” Miedema, in turn, addressed a memo to the Board of Education advising that “one of the alternatives which we are exploring is the reassignment of Mr. Acanfora. with full salary, to a position that does not require contact with youngsters.”

On the following day, Miedema addressed a letter to Acanfora informing him that he had been transferred from his classroom teaching position to “a temporary alternate work assignment” in the headquarters building “while we gather information and assess the circumstances relating to this matter.” The letter stated that the transfer was “in no way to be construed as punitive action.”

At trial, Miedema explained the factors which prompted him to transfer Acanfora. The newspaper stories reporting Acanfora’s certification had recounted his suspension from his student teaching position and the controversy which had attended his request for certification, and Miedema wished to investigate the facts underlying the suspension and delay in certification. Additionally, Miedema was “concerned” that Acanfora might be “an activist, advertised homosexual.” Finally, Miedema was worried about “community concern and reaction” to the newspaper disclosures that a homosexual was teaching in the school.

Acanfora’s “temporary alternate work assignment” proved to be an office job, specially created for him, in which his duties largely were “make-work.” In that position. Acanfora not only was denied the opportunity to teach, but also was deprived of the opportunity to gain experience and receive evaluations which are critical to a teacher’s ability to secure renewal of teaching employment beyond the first year. Although Acanfora’s salary was not reduced, a district court found later find that the transfer breached the “clearly implied promise of continued employment in a classroom teaching capacity for the duration of [his] contract.”

Thereafter, Montgomery County School officials took steps to assure that Acanfora would have no contact whatsoever with students The junior high school needed to have him return to the school to assist in preparing his former students’ grades, but he was instructed not to arrive at the school until the students had left for the day. On another occasion, when he requested the opportunity to participate in a teacher workshop -- an important means by which young teachers are able to enhance their career development -- he was told that he could not attend because some students would be present.

Although Acanfora performed the office work to which he was transferred, he repeatedly requested that he be reinstated to his classroom position. These requests were denied, Acanfora being advised that the transfer would remain in effect pending investigation, but that the transfer was “in no way to be construed as punitive action.”

In fact, as the district court later found, the investigation conducted by respondents was “cursory”. Miedema wrote to Penn State University and to the Secretary of Education for the State of Pennsylvania requesting information about Acanfora’s suspension from his student teaching position and the controversy concerning his certification. Penn State responded that Acanfora had “successfully completed the student teacher assignment”, and that the brief suspension therefrom had been motivated by his joining the lawsuit to obtain accreditation of HOPS, a suspension which all concerned had recognized to be an invasion of Acanfora’s constitutional rights and which had been quickly corrected. The Secretary of Education responded that Acanfora’s performance as a student and as a student teacher had been satisfactory in all respects, and that he had deemed Acanfora to be of “good moral character” in deciding to certify him. Both responses were received by Miedema in late October.

At no time throughout the “investigation” which was the ostensible reason for the “temporary” transfer, did school authorities make any inquiry concerning Acanfora’s conduct as a classroom teacher at Parkland Junior High School, nor was he offered or provided a hearing of any kind.

Although the “investigation” admittedly was completed upon receipt of the letters from Pennsylvania, and although those letters contained nothing but praise for Acanfora, respondents made no move to reinstate him to the classroom.

The transfer of Acanfora became a subject of great public interest, both locally and nationally. Acanfora accepted invitations to appear on several radio and television programs including CBS’ “60 Minutes”, which devoted a 20-minute segment to the case. The substance of his remarks in all those appearances was three-fold: that employment discrimination against homosexuals was unjust, that he would never discuss his sexual orientation with students in or out of school, and that he hoped that greater public understanding of homosexuals would develop.

Proceedings in the District Court in Maryland

On November 7, 1972, Acanfora instituted a lawsuit against the Board of Education, the Superintendent (Elseroad), and the Deputy Superintendent (Miedema), under 42 U.S.C. § 1983. The complaint alleged (1) that Acanfora had been transferred for constitutionally impermissible reasons, and (2) that Acanfora had been denied procedural due process. An extensive trial ensued.

Much of the trial was devoted to eliciting the facts outlined above. Acanfora testified regarding the philosophy which guided him in his professional role as a teacher. He explained that in his view it would be wholly inappropriate for a teacher to discuss his sexual orientation with students. He would not, and had not, discussed any aspects of sexuality either with students or fellow faculty members. He would not advocate, and had not advocated, that any other person participate in homosexual activities. Asked how, if he were reinstated, he would respond to students who might inquire about his homosexuality. Acanfora testified that he would tell students that he did not inquire into their personal lives and that he wished them not to inquire into his. Acanfora’s supervisor testified that his teaching performance had been wholly satisfactory. Students of Acanfora testified that he was a popular and effective teacher and that they hoped he would be reinstated. Indeed, students and faculty alike had sponsored petitions urging respondents to reinstate him. The record contains no evidence that any students, parents, or faculty members objected to his reinstatement.

In addition to testimony concerning the facts, both sides introduced expert testimony concerning the possible effects of Acanfora teaching. The experts were unanimous that there is generally no danger in homosexuals teaching in the public schools. However, Montgomery County School Board’s experts contended that the return of Acanfora to the classroom might conceivably be dangerous because of the conjunction of two additional facts: (1) as a result of the publicity, his students would be aware of his homosexuality, and (2) he taught at a grade level in which students were entering adolescence. In their view, if Acanfora was an effective and popular teacher he would constitute a “role model” for his students. The experts feared that a “relatively few” students who enter adolescence with “extreme emotional disturbances” might be so impressed with Acanfora as a teacher that they would seek to emulate him in all respects, and thus decide to become homosexuals. The experts likened their view that Acanfora be excluded from the classroom to an “inoculation program” even though only a “handful of individuals” might be affected, he should be excluded. They acknowledged that their concerns were wholly speculative, that there was no relevant data on the subject, and that there is no known instance of a homosexual teacher, simply because he was known to be a homosexual, having an adverse effect on even a single adolescent.

Acanfora’s experts disagreed with this speculation, advancing several reasons why Acanfora’s impressiveness as a teacher would not result in students becoming homosexuals to emulate him.

The Superintendent of Schools, Dr. Elseroad, testified that he opposed reinstatement of Acanfora, for three reasons: (1) Acanfora had “withheld information on his application” i.e. his membership in the Homophiles of Penn State, (2) employment of a known homosexual in the classroom “increases the risk of having a good model available for students in the public schools”, and (3) because Acanfora’s homosexuality “has become widely-known and highly publicized,” returning him to the classroom “would involve that school in a swirl of controversy. . .”

On May 1, 1973, after the trial but prior to the district court’s decision, Montgomery County Schools notified Acanfora that his employment would not be renewed for the 1973-74 school year. The notification did not state the reasons for non-renewal, but its issuance came only two weeks after Dr. Elseroad’s testimony as to the reasons why he did not believe Acanfora should be reinstated to the classroom. The district court reopened the record, at Acanfora’s request, to admit the non-renewal notice into evidence.

The District Court’s Opinion

The district court found it “quite clear from the evidence that the essential reason for the transfer was that Acanfora is an admitted homosexual,” and that “the Board of Education would not knowingly hire a homosexual”. “The Board has in no way attacked Acanfora’s classroom performance, nor has it charged Acanfora with bringing up the subject of homosexuality in the school environment. The evidence is that he is competent and that he did not discuss his private life while at school”.

Declaring that “the time has come today for private, consenting, adult homosexuality to enter the sphere of constitutionally protectible interests”, the court ruled that one’s right to be a homosexual is protected by the First Amendment’s freedom of association and by the right of privacy enunciated by this Court in, inter alia, Roe v. Wade, 410 U.S. 113 (1973).

The court concluded, therefore, that Acanfora could be removed from the classroom, and his protected interests thus transgressed, only if there were an overriding state interest justifying that action. The only evidence which had been proffered by respondents going to that issue was the testimony of their experts, and accordingly the court recounted all of the expert testimony in great detail. The court concluded that respondents had not sustained their burden of proving an overriding state interest. While it would be “premature to state definitively that Acanfora’s presence in the classroom would have no deleterious effect,” the risk, albeit “not illusory,” “does not seem as great or as likely as defendants have assumed”. The court concluded that “the ‘board of education’s policy of not knowingly employing any homosexuals is objectionable”; that “mere knowledge that a teacher is homosexual is not sufficient to justify transfer or dismissal”; that a teacher need not hide his homosexuality in order to retain his teaching position; that the transfer was “arbitrary” and “without legal justification as matters then stood”; and that the transfer was a “transgression” by Montgomery County Public Schools.

The district court also held that Acanfora had been denied procedural due process. Acanfora had a “clearly implied promise of continued employment in a classroom teaching capacity for the duration of [his] contract”, and thus a property interest which could not be taken away without procedural due process. Additionally, the precipitous transfer was “an implicit allegation that his homosexuality determines unfitness to teach”, and thus interfered with his liberty interests. Since defendants transferred him without any prior investigation or hearing, and thereafter conducted only a “cursory investigation” without even then providing him any hearing, he was denied procedural due process.

Despite these rulings, the district court held that Acanfora was entitled to no relief for any of the constitutional violations committed against him. With respect to the substantive violations, the court held that Acanfora’s post-transfer appearances on radio and television programs disqualified him from entitlement to relief. Those appearances “were not reasonably necessary” for “self-defense”, and would likely spark unnecessary controversy regarding the subject of “homosexuality and the classroom”.

“Accordingly, despite the initial transgression of the defendants, the Court cannot grant plaintiff the relief for which he prays. Plaintiff’s public activities as herein described are not ‘protectable’ and the Court cannot at this time characterize the refusal to reinstate plaintiff or renew his contract as arbitrary or capricious under either the First Amendment or the Equal Protection Clause of the Fourteenth Amendment.”

With respect to the procedural due process violations, the district court thought them cured by the de nova trial which Acanfora received in his lawsuit: “The parties have shifted their attention to the plenary hearing in this forum”.

The 4th Circuit Court of Appeals’ Decision

On appeal, the 4th Circuit Court of Appeals concluded that Acanfora’s post-transfer public appearances were protected by the First Amendment, and that “they do not justify either the action taken by the school system or the dismissal of his suit [by the district court]”.

Nevertheless, “without reaching Acanfora’s claim that his denial of a teaching position is unconstitutional, we affirm the district court, but on different grounds”. In the view of the court below, Acanfora “is not entitled to relief because of material omissions in his application for a teaching position”.

The court found controlling a series of decisions in which this Court and other courts of appeals have held that one who is prosecuted or otherwise punished for lying to the Government may not defend by attacking the constitutionality of the question which elicited the lie. Acanfora had argued that these cases were inapposite “because the school officials transferred him on account of his homosexuality, not the omission from his application”. The court acknowledged, as the district court had found, that the transfer was not motivated by the omission from the application. Nevertheless, it found the cases controlling for two reasons. First, to limit the cases to prosecution or punishment for lying would constitute “an unduly restrictive application of the principles expressed” in those cases. Second, respondents should not be “prejudiced” by their failure to rely upon the omission as a motivation for transferring Acanfora, for at that time they only suspected that the omission was deliberate and it was not until trial that the suspicion was confirmed. The court noted that at trial the Superintendent had testified that the omission was one of the reasons which made him unwilling to reinstate Acanfora, and concluded that this was sufficient to warrant application of the “lying to the Government” cases.

With respect to the procedural due process issue, the 4th Circuit Court of Appeals merely reiterated the district court’s reasoning that, as there had been a full hearing in court, the failure to furnish an administrative hearing was cured.

U. S Supreme Court Denies Certiorari

Acanfora appealed the decision of the 4th Circuit Court of Appeals to the U. S. Supreme Court at its October Term, 1973. The Court thereafter denied certiorari, effectively upholding the lower court decision and refusing to reinstate Acanfora to his teaching position with Montgomery County Public Schools.