IN THE

Supreme Court of the United States
October Term, 1973
___________

No. ….
____________

JOSEPH ACANFORA, III
Petitioner,

BOARD OF EDUCATION OF MONTGOMERY COUNTY; MONTGOMERY COUNTY PUBLIC SCHOOLS; HOMER L. ELSEROAD, individually and as Superintendent of Schools; DONALD MIEDEMA, individually and as Deputy Superintendent of Schools; WILLIAM C. COLMAN, individually and as President of the Board of Education; JOHN AIRD, individually and as Vice President of the Board of Education; JAMES H. DAUGHERTY, ROSEMARY HILBERG, MARILLYN ALLEN, THOMAS B. COOK, and THOMAS ISRAEL, individually and as Members of the Board of Education of Montgomery County,

Respondents.
_________________

Petition for a Writ of Certiorari
to the United States Court of Appeals
for the Fourth Circuit

_________________

MICHAEL H. GOTTESMAN
GEORGE H. COHEN
Bredhoff, Cushman, Gottesman & Cohen
1000 Connecticut Avenue, N. W.
Washington, D. C. 20036
DAVID RUBIN
JOEL D. GEWIRTZ
1201 16th Street, N. W.
Washington, D. C. 20036

Attorneys for Petitioner


IN THE

Supreme Court of the United States

October Term, 1973
____________
No. ….
____________

JOSEPH ACANFORA, III,

Petitioner,

V.

BOARD OF EDUCATION OF MONTGOMERY COUNTY, ET AL.

Respondents.
____________

Petition for a Writ of Certiorari
to the United States Court of Appeals
for the Fourth Circuit

____________

Petitioner requests that a writ of certiorari issue to review the judgment of the United States Court of Appeals for the Fourth Circuit entered in this case.

OPINIONS BELOW

The opinion of the Court of Appeals is reported at 491 F.2d 498, and is reproduced in the Appendix to this Petition at App. 1-10. The opinion of the District Court is reported at 359 F. Supp. 843, and is reproduced at App. 11-36.

JURISDICTION

The decision and judgment of the Court of Appeals were entered on February 7, 1974. By order dated April 30, 1974, Chief Justice Burger extended the time for filing a petition for writ of certiorari herein to and including June 7, 1974. This Court has jurisdiction to review the judgment by writ of certiorari under 28 U.S.C. § 1254(1).

OUESTIONS PRESENTED

Petitioner, a homosexual, applied for employment as a public school teacher. He did not disclose on his employment application that he had been a member of an organization devoted to advancing the legal rights of homosexuals. After he was hired, the school system discovered that he was a homosexual, and transferred him out of the classroom pursuant to its policy of not knowingly employing homosexuals as teachers. The Court of Appeals held that the non-disclosure on the employment application, although not the reason why petitioner was transferred, disqualified him from challenging the constitutionality of the transfer. The following questions are presented:

1. Whether a public employee who suffers employment discrimination for constitutionally impermissible reasons may be denied judicial relief because there exists another reason, which did not in fact motivate the interference with employment, which would have constituted a permissible reason for such interference.

2. Whether interference with public employment motivated by several considerations, some of which are constitutionally impermissible and some of which are not, violates the federal Constitution.

3. Whether the doctrine enunciated by this Court in several cases* -- that one who lies to the Government may not resist punishment for the lie on the ground that the question which elicited the lie could not constitutionally have been asked -- should be extended to situations in which applicants for public employment conceal their homosexuality

* United States .v Kapp, 302 US 214, 217 (1937); Kay v. United States, 303 U. S. 1, 6 (1938); Dennis v. United States, 384 U S 855 (1966); Bryson v. United States, 396 U.S. 64 (1969).

in completing their employment applications and thereafter suffer employment discrimination because they are homosexuals. Specifically, whether the doctrine of those cases should be applied where:

a. Punishment is imposed not for the concealment of information, but for a different, constitutionally impermissible reason.

b. It is doubtful that the question asked on the employment application sought the information which the applicant did not disclose.

c. There was no way that the employee could protect his constitutional right of privacy other than nondisclosure of the information.

4. Whether the denial of a constitutionally required administrative hearing is cured because the victim is afforded a de novo trial in federal court.

5. Whether removing a public school teacher from his classroom teaching position because he is a known homosexual violates his constitutional rights of privacy and freedom of association.

STATEMENT OF THE CASE

Petitioner, Joseph Acanfora, III, is a public school teacher and a homosexual. Upon graduating from college, he was hired to teach in the Montgomery County, Maryland, school system. Within a month, respondents discovered that he was a homosexual, and immediately transferred him out of his classroom teaching position into an office job. Respondents refused Acanfora’s repeated requests that he be reinstated to the classroom. He thereupon filed the instant lawsuit seeking reinstatement to his classroom teaching position. During the pendency of the lawsuit, respondents advised him that his employment would not be renewed for the following year. The decision below -- denying Acanfora any relief -- poses issues of great significance.

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, 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 a student teaching assignment at a public junior high school near the University. That school suspended his student teaching status upon learning of his homosexuality. Acanfora thereupon instituted legal action seeking reinstatement as a student teacher, and obtained an immediate court order granting such reinstatement. He successfully completed the student teaching assignment, 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 whether a homosexual could have the requisite “good moral character” necessary for certification became a subject of great controversy, and 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 m Montgomery County, 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 trial herein Acanfora explained his reason for omitting mention of the Homophiles 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 (geology) 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 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, the district court found that the transfer breached the “clearly implied promise of continued employment in a classroom teaching capacity for the duration of [his] contract.” (App. 28).

Thereafter, respondents 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 found, the investigation conducted by respondents was “cursory” (App. 28). 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 the Homophiles, 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 regrettable, 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 (App. 4, 15.)

Proceedings in the District Court

On November 7, 1972, Acanfora instituted this lawsuit against the Board of Education, the Superintendent (Elseroad), and the Deputy Superintendent (Miedema), under 42 U.S.C. § 1983. Jurisdiction was founded on 28 U.S.C. §§ 1343(3), 1343(4), and 1331. The complaint alleged (1) that the transfer had been visited 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, respondents’ 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, respondents 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. Else-road’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” (App. 13, see also App. 29), and that “the Board of Education would not knowingly hire a homosexual” (App. 13). “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” (App. 13).

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) (App. 21-25).

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 (App. 16-20). 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” (App. 20). The court concluded that “the ‘board of education’s policy of not knowingly employing any ‘homosexuals is objectionable” (App. 28); that “mere knowledge that a teacher is homosexual is not sufficient to justify transfer or dismissal” (App. 34); that a teacher need not hide his homosexuality in order to retain his teaching position (App. 34); that the transfer was “arbitrary” and “without legal justification as matters then stood” (App. 35); and that the transfer was a “transgression” by the respondents (App. 36).

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” (App. 35), 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 (App. 28).

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” (App. 34-35).

“Accordingly, despite the initial transgression of the defendants, the Court can not 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. (App. 36).

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” (App.29).

The Court of Appeals’ Decision

On appeal, the court below 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]” (App. 3-4).

Nevertheless, “without reaching Acanfora’s claim that his denial of a teaching position is unconstitutional, we affirm the district court, but on different grounds” (App. 2). In the view of the court below, Acanfora “is not entitled to relief because of material omissions in his application for a teaching position” (App. 2).

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.1 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” (App. 7). 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 (App. 8). 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 (App. 8-10). The court noted that at trial the Superintendent had testified that the omission was one of the reasons which made him

1 United States v. Kapp, 302 U.S. 214, 217 (1937); Kay v. United States, 303 U.S. 1, 6 (1938); Dennis v. United States, 384 U.S. 855 (1966); Bryson v. United States, 396 U.S. 64 (1969); Rodriguez v. Seamans, 463 F.2d 837 (D.C. Cir. 1972), petition for cert. dismissed 409 U.S. 1094 (1973) ; Williams v. United States, 434 F.2d 1346, 1354 (Ct. Cl. 1970) (Nichols, J., concurring).

unwilling to reinstate Acanfora, and concluded that this was sufficient to warrant application of the “lying to the Government” cases (App. 9-10).

With respect to the procedural due process issue, the court below 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 (App 8).

REASONS FOR GRANTING THE WRIT

The court below upheld a transfer which it assumed to be motivated by a constitutionally impermissible reason, because there existed another ground, admittedly not the one which actually motivated the transfer, which in the court’s view justified keeping Acanfora from the classroom. That disposition contravenes well-established principles governing the resolution of constitutional claims, as we demonstrate in Part II. Additionally, the court below failed to provide any remedy for a denial of procedural due process, because it believed that the provision of a de novo trial in federal court cured the violation. That holding squarely conflicts with a recent decision of the Court of Appeals for the Third Circuit, as we shown in Part III.

This case has a greater significance, however, than the precise legal issues it poses, important as those are. For this case will likely affect the lifestyles of hundreds of thousands, perhaps millions, of public employees who happen to be homosexuals, and it is this consideration which we first address in Part I.

I

The court below has held that public employees who are summarily removed from their jobs upon discovery that they are homosexuals are disqualified from challenging the constitutionality of that action if, at the time of hire, they concealed their membership in homosexual organizations. That decision will likely alter the lives of an enormous number of homosexuals.

Although precise statistics are not available, it is generally recognized that there are millions, perhaps tens of millions, of homosexuals in the United States.2 Until very recently, homosexuals traditionally concealed their sexual orientation -- they remained “in the closet” -- and in that manner avoided confronting the myriad problems, including risk of employment loss, attendant upon disclosure of their homosexuality.3 It is thus virtually certain that there are enormous numbers of public employees who, in filling out applications for such employment, concealed their membership in homosexual organizations.4

The past few years have seen a major sociological development: a growing willingness on the part of homosexuals to “come out of the closet”, to live their lives openly rather than secretively.5 The decision below is likely to reverse that

2 The Kinsey report, in 1948, concluded from an extensive survey that 4 per cent of white males were exclusively homosexual throughout their adult lives, and that an additional 6 per cent were exclusively or predominantly homosexual for at least three years between the ages of 16 and 55. Kinsey, Pomeroy and Martin, Sexual Behavior in the Human Male, page 651 (W. B. Saunders Co. 1948). This data is still regarded as the most reliable available. National Institute of Mental Health, Task Force on Homosexuality, page 17 (GPO, 1972).

3 Weinberg and Williams, Male Homosexuals: Their Problems and Adaptations, pages 26-30, 177-196, 287-289 (Oxford Univ. Press, 1974); Katz, Coming Out Fighting, in The Nation, July 2, 1973, page 25; Altman, Homosexual: Oppression and Liberation (Outerbridge and Dienstfrey, 1973).

4 It is generally believed that the highest incidence of concealment of homosexuality is among those employed in governmental and educational institutions, as those are the areas where employment discrimination against homosexuals has been most prevalent. Weinberg and Williams, op. cit. supra n. 3, pages 227-228.

5 See sources cited in n. 3 supra.

trend. This case attracted nationwide publicity, and was closely followed in journals devoted to the rights of homosexuals.5a And the lesson taught by the decision below is that homosexuals who are public employees, and who concealed their homosexuality when applying for that employment, have no protection against job loss should they now acknowledge their homosexuality. If the price of acknowledgement is not merely the need to confront potential employment discrimination against homosexuals per se, but a threshold disqualification from even challenging the constitutionality of that discrimination only the financially independent and the foolhardy will opt to abandon their secretive lifestyles.

There was expert testimony in the instant case, and there appears to be general acknowledgment among experts that concealment of one’s homosexuality -- living “in the closet” -- is psychologically harmful, and that the emotional well being of homosexuals is served by their acknowledgment of their sexual orientation.6 The decision below compels homosexuals to elect between their emotional well-being and their financial well-being, and that Hobson’s choice is one which should not be imposed without prior review by this Court.

The most devastating aspect of the decision below is its chilling effect. Aware of the judicial fate which befell Acanfora, others will opt for continued secrecy. Because that choice is almost inevitable, this Court cannot wait to see

5a The homosexual publication with the largest national circulation is The Advocate, which reported the decision below in its March 13, 1974 issue, at page 9. The Advocate also reported Acanfora’s decision to seek certiorari in its April 24, 1974 issue, at page 8: The decision below was also reported in the May, 1974 issue of Gay Liberator, under the caption “Does Your Boss Know You’re Gay?”

6 (App. 18-19); Weinberg and Williams, op. cit, supra n. 3, pages 12, 177-196, 287-289; Weinberg, Society and the Healthy Homosexual, pages 124-125 (Anchor Press/Doubleday, 1973); Katz, op. cit. supra n. 3; Altman, op. cit. supra n. 3; Gould, What We Don’t Know About Homosexuals, in New York Times Magazine, Feb. 24, 1974, page 62.

whether future litigation spawns a direct conflict among Circuits, that conflict may never develop, for this decision will deter potential future litigants from taking the first step -- acknowledgment of their homosexuality -- without which this issue cannot arise.

II

In reaching its decision, the court below thought it was bound by a series of decisions of this and other courts in which persons who lied to the Government, and who thereafter were punished for that lie, were held disqualified from defending on the ground that the question could not constitutionally have been asked in the first place.7 Those cases are inapposite for several reasons, and in ignoring the distinctions the court below violated several well-established constitutional principles.

A. The court below ignored an important factual difference between those cases and the instant case. In all of those cases, punishment (whether in the form of criminal prosecution or interference with employment) was imposed for the very act of lying. The criminal cases all were prosecutions for defrauding the Government. The employment cases involved termination of employment for lying on employment forms. The instant case, by contrast, involves an employment sanction visited not for the misconduct, if any, which attended the completion of the employment application, but rather for the underlying fact which that “misconduct” concealed, i.e. petitioner’s homosexuality. As the district court

7 United States v. Kapp 302 U. S. 214, 217 (1937), Kay v. United States, 303 U. S. 1, 6 (1938), Dennis v. United States 384 U.S. 855 (1966), Bryson v. United States, 396 U.S. 64 (1969), Rodriguez v. Seamans, 463 F.2d 837 (D.C. Cir. 1972), petition for cert. dismissed 409 U.S. 1094 (1973), Williams v. United States, 434 F.2d 1346, 1354 (Ct. Cl. 1970) (Nichols, J., concurring).

found on overwhelming evidence,8 and as the court below acknowledged, Acanfora was transferred because he is a homosexual, not because he concealed that fact on his employment application.

The cases which the court below thought controlling expressly distinguished cases such as this where punishment is visited not for the “lie” but for the underlying fact which it concealed. In Dennis, a prosecution for conspiracy to file false affidavits under Section 9(h) of the Labor-Management Relations Act, this Court, after holding that the defendants could not resist prosecution on the ground that their lies were made m response to questions which the Government could not constitutionally ask, carefully added (384 U.S. at 867):

“This is a prosecution directed at petitioners’ fraud. It is not an action to enforce the statute claimed to be unconstitutional.”

This distinction was reiterated in Bryson, 396 U.S. at 68. And in Rodriguez, in upholding the discharge of a public employee for lying on his employment application, the District of Columbia Circuit distinguished those cases in which it had held that employees cannot be discharged for membership in the communist party (463 F.2d at 837):

8 Miedema testified to the reasons which prompted the transfer, and did not list the omission from the application (see p. 7 supra). Acanfora’s principal recommended the transfer in anticipation of the community reaction to the newspaper stories disclosing that a homosexual was teaching in the school. The original letter to Acanfora transferring him, and the subsequent letters explaining why he would not be reinstated, all contained the assurance that the transfer “is in no way to be construed as punitive action,” and attributed the transfer to a desire to investigate the challenge to his teaching credentials in Pennsylvania. Miedema’s report to the Board of Education, and the subsequent restrictions placed upon Acanfora, manifested a desire to prevent his having any “contact with youngsters.”

“We have had a great deal of litigation involving both freedom of association and loyalty oaths in recent years. Of course, we note that there is a significant difference in those cases and the instant case, as this is a suit brought by a party who, as a result of his falsification of forms and not as a result of his prior memberships and associations, lost his position with the Air Force.” (Emphasis added).

As explained in United States v. Manfredonia, 414 F.2d 760, 765 n.5 (2nd Cir. 1969):

“In all of these cases the constitutionality of the statute pursuant to which the answers were given was held to be irrelevant. . . . This was so because the perjury or false swearing prosecution was one to punish the defendant for false swearing or for fraud on the Government, not one to enforce the invalid statute or regulation pursuant to which the answers were given.”

B. The decisions which do control this case are those which hold that a public employee cannot be punished for exercising a constitutional right, even though other grounds exist which, had they actually motivated the punishment, would have been constitutionally permissible. See, e.g., Perry v. Sindermann, 408 U.S. 593, 596, 598 (1972): Fluker v. Alabama State Board of Education, 441 F.2d 201, 209 (5th Cir. 1971); Cook County College Teachers Union v. Byrd, 456 F.2d 882, 888 (7th Cir. 1972), cert. denied 409 U.S. 848 (1972); Gieringer v. Center School District No. 58, 477 F.2d 1164, 1166 (8th Cir. 1973); Langford v. City of Texarkana, 478 F.2d 262, 266 (8th Cir. 1973). The identical doctrine has evolved in private employment cases arising under Section 8(a) (3) of the National Labor Relations Act, 29 U.S.C. § 158(a) (3) a discharge motivated by union activities is unlawful, even though valid grounds existed for which the employee might have been discharged. I. P. Stevens & Co. v. NLRB, 380 F.2d 292,300 (2nd Cir. 1967), cert. denied 389 U.S. 1005 (1967); Singer Company v. NLRB, 371 F.2d 623, 624 (8th Cir.1967); NLRB v. Murray Ohio Mfg. Co., 326 F.2d 509, 517 (6th Cir. 1964).

Indeed, there are numerous NLRB decisions applying this principle to situations where the employee has flagrantly falsified his employment application, but the NLRB concludes that the reason motivating the discharge was the employee’s union activities, not the falsification.9 Similarly, arbitrators under collective bargaining agreements recognize that an employee’s material falsification of his employment application constitutes “just cause” for discharge,10 but they will not uphold a discharge in fact prompted by other, impermissible reasons simply because the employer can prove that there was such a material falsification.11

The decision below, in sustaining a transfer motivated by constitutionally impermissible reasons because another, arguably permissible reason existed, thus conflicts with numerous decisions of this Court and of other circuits, indeed with a heretofore impregnable principle of constitutional law.

C. The court below thought its approach justifiable because in its view respondents were not sufficiently informed of Acanfora’s “misconduct” when they transferred him, and thus should not be “prejudiced” for having failed to be

9 Rowe Furniture Corp., 200 NLRB No. 1, 81 LRRM 1569, 1571-72 (1972); Collins & Aikman, 195 NLRB No. 26, 79 LRRM 1327 (1971); Weston Shoppers’ City, Inc., 189 NLRB 234 (1971); Jacksonville Paper Co., 182 NLRB 6 (1970); Photoswitch, Inc., 99 NLRB 1366 (1952).

10 See cases digested under headnote 118.6484 in BNA, Labor Arbitration Cumulative Digest and Index.

11 See, e.g., Freuhauf Trailer Co., 58 L.A. 1169, 1171 (1972); Armak Abrasives Division, 60 L.A. 509, 511 (1973); Goodyear Tire and Rubber Co., 52 L.A. 55, 56-57 (1968); Gardner-Denver Co., 51 L.A. 1019, 1022 (1968).

motivated by that misconduct when they decided upon the transfer. The court found sufficient the fact that Superintendent Elseroad listed the omission from the employment application as one of the three reasons for not wanting to reinstate Acanfora. But even if this approach of measuring respondents’ conduct by their reasons for opposing reinstatement rather than their reasons for making the transfer could pass constitutional muster -- a doubtful proposition”11a -- its application in the instant case conflicts with principles enunciated by courts of appeals in five other circuits. For the other two reasons listed by Elseroad for opposing reinstatement both related to Acanfora’s homosexuality (see p. 11, supra), and thus by his own testimony his opposition was motivated in substantial part by reasons which the court below assumed to be unconstitutional. And five circuits have held that interference with public employment motivated even in part by constitutionally impermissible reasons cannot stand. Simard v. Board of Education of Town of Groton, 473 F.2d 988, 995 (2d Cir. 1973); Skehan v. Bloomsburg State College, No. 73-1613 (3d Cir.. May 3, 1974) (slip op., p. 12)12; Fluker v. Alabama State Board of Education, 441 F.2d 201, 210 (5th Cir. 1971); Cook County College Teachers Union v. Byrd, 456 F.2d 882. 888 (7th

11a The approach of the court below on this point conflicts with Rainey v. Jackson State College, 481 F.2d 347. 352 (5th Cir. 1973). In Rainey, the Fifth Circuit held that, once it is determined that employment discrimination was visited for constitutionally impermissible reasons, the “taint ... carrie[s] forward ... by inference and [is], without more, sufficient to make out a prima facie case” that subsequent employment discrimination was imposed for the same impermissible reasons. Accordingly, the public employer has the burden “to overcome this” by proving that those reasons played no part in the subsequent discrimination. Here, the Superintendent far from disclaiming that Acanfora’s homosexuality contributed to his unwillingness to reinstate Acanfora, testified that it was part of his motivation.

12 Because this decision has not yet been officially reported. Ten copies of the slip opinion have been lodged with the Clerk.

Cir. 1972), cert. denied 409 U.S. 848 (1972); Gieringer v. Center School District, 477 F.2d 1164, 1166, n. 2 (8th Cir. 1973); Langford v. City of Texarkana, 478 F.2d 262, 266, 268 (8thCir. 1973).13

Because the decision below creates a conflict on a principle of constitutional law which has heretofore been unanimously followed by the circuits, it deserves review by this Court.

D. The line of cases which the court below deemed controlling is distinguishable in other respects as well, and the question whether the principles there enunciated should be extended to the quite different situation confronting homosexuals is an important one which should be decided by this Court.

(1) Each of the cases relied upon by the court below involved a lie in response to a specific question asked by the Government. In the instant case, the school board did not inquire on the employment application whether the applicant was a homosexual. Indeed, in our experience that question is never asked on employment applications. If it were, the applicant could challenge the question as facially unconstitutional (i.e. as violative of his right of privacy)

13 This doctrine parallels similar rules applied in other contexts. The Labor Act condemns a discharge motivated even partially by anti-Union animus, NLRB v. Jamestown Sterling Corp., 211 F.2d 725, 726 (2d Cir. 1954); NLRB v. Great Eastern Color Lithographic Corp., 309 F.2d 352, 355 (2nd Cir. 1962), cert. denied 373 U.S. 950 (1963); NLRB v. West Side Carpet Cleaning Co., 329 F.2d 758, 761 (6th Cir. 1964). Likewise, a general verdict of guilty in a criminal case cannot stand if one of several possible bases for the verdict is violative of the First Amendment. Eaton v. City of Tulsa, 42 L.W. 3538, n. * (March 25, 1974); Batchellar v. Maryland, 397 U.S. 564, 569-71 (1970); Stromberg v. California, 283 U.S. 359, 363-68 (1931). The rationale for this rule is that where punishment has been imposed on the basis of both permissible and impermissible grounds, it is impossible to determine whether it would have been imposed solely on the basis of the permissible ground, Eaton, supra.

without having to disclose his homosexuality. Because the question is not asked directly, homosexuals confront a more perplexing dilemma, as the facts of the instant case demonstrate. The application asked only that the applicant list the “professional, service, and/or fraternal organizations of which you are a member” and “extracurricular activities you have participated in as a student.” It is well-established that a school board may not ask applicants for employment to list every organization to which they belong. Shelton v. Tucker, 364 U.S. 479 (1960). In recognition of this principle, the respondents asked applicants to list their membership only in “professional, service and/or fraternal organizations”, i.e. those memberships which directly bear upon an applicant’s qualifications for employment. The application pointedly did not ask for membership in political and other non-job-related organizations, thus reflecting appropriate respect for the rights of applicants not to disclose such affiliations. Nor could an applicant be expected to understand that the inquiry about “extracurricular activities” was designed to elicit organizational memberships not sought in the question specifically addressed to such memberships. Acanfora testified that he knew respondents would have regarded his membership in the Homophiles as “significant” (App. 5), but that is a far cry from knowing that the information was called for by the employment application. Thus here, unlike the cases upon which the court below relied, it is doubtful whether there was any misrepresentation at all.

(2) Yet another reason why this case is different from those upon which the court below relied is that the homosexual has no meaningful way, short of forfeiting his constitutional right of privacy, to challenge the propriety of the questions asked in the employment application. If an application asked for a listing of membership in political and other non-job-related organizations, the applicant could mount an attack upon the questions as facially unconstitutional -- a challenge which would be bound to succeed in light of Shelton v, Tucker. But a facial challenge to the question actually asked Acanfora, limited as it was to “professional, service, and/or fraternal organizations,” would have been preposterous. Only by disclosing the organization whose membership he wished to conceal could Acanfora have mounted a respectable constitutional attack. And by that disclosure he would have forfeited the very right to privacy which he sought to protect by non-disclosure.

Of course, Acanfora might have listed the Homophiles, and then brought suit challenging as unconstitutional the school board’s failure to hire him. That approach, however, would have been inadequate for two reasons. First, as noted, Acanfora’s right of privacy would have been forfeited by the disclosure. Second, he would never have been able to prove that the decision not to hire him was motivated by his homosexuality. Montgomery County had 10,000 applications for teaching employment in 1972, and hired only 719 teachers. Absent an extraordinary concession by the school officials, Acanfora would never have been able to rebut the presumption that he was simply among the more than 90 percent of applicants who were deemed less qualified than the small percentage hired.

One of the critical underpinnings of the line of cases relied upon by the court below is that one may not lie with impunity when a reasonable means for protecting his constitutional rights is available (there, by challenging the questions as unconstitutional on their face). Such availability was considered in Dennis to be critical to the principle enunciated, 384 U.S. 865, n. 11:

“In short, petitioners chose not only to evade the statute, but to ignore judicial proceedings likely to clarify their rights. . . In this context, any claim that it is too burdensome to test these statutes in the courts is not entitled to consideration.” (Emphasis added).

Here, as we have explained, Acanfora had no similar option. There was no practical way he could protect his constitutional right of privacy other than that which he chose.

The implications of the decision below are so harsh, for so substantial a segment of the populace, that they should not be allowed to stand absent compelling necessity. Whether the line of cases relied upon by the court below should be extended to the quite different circumstances confronting homosexuals is a question which should be decided by this Court.

III

The disposition of the procedural due process issue by the court below directly conflicts with a subsequent decision of the Court of Appeals for the Third Circuit. Although apparently agreeing with the district court’s holding that Acanfora was denied procedural due process, the court below concluded that the violation had been cured by the provision of a de novo hearing in federal court upon the substantive constitutional claims advanced by Acanfora. A similar conclusion was reached by the Fifth Circuit on a 2-1 vote in Ferguson v. Thomas, 430 F.2d 852. 858 (5th Cir. 1970), cf. Id., pp. 860-861 (dissenting opinion of Judge Thornberry).

These decisions directly conflict with the Third Circuit’s subsequent decision in Skehan v. Bloomsburg State College No. 73-1613 (May 3, 1974).14 In Skehan, the district court had held, as did both courts in the instant case that a failure to afford a constitutionally required administrative hearing was cured because the teacher had advanced a First Amendment claim which was adjudicated on the merits in the district court. On that basis, the district court awarded the teacher one dollar as the remedy for the procedural due process violation. The Third Circuit reversed, with the following analysis:

14 Because Skehan is not yet offi20.10.2006 0:20 opinion with the Clerk.

“[W]hile it was proper for the court to consider [the teacher’s First Amendment] claim … , it was not proper to substitute the finding it made for the in-house hearing which the institution should have afforded.. . . Such a retrospective substitution of the district court’s judgment for that of the administrative hearing officers seriously undermines the hearing requirement. A district court cannot exercise the discretion which is vested in an administrative hearing board, nor can it bring to the dispute the same expert knowledge of the academic environment which should enlighten the deliberations of an academic hearing agency. A board of his academic peers might regard Skehan’s scheduling imbroglio as far more trivial than would a district judge. A board of his academic peers might say he is guilty of misconduct, but he should not be fired for that kind of misconduct. The district judge could not exercise such discretion. Furthermore, if we countenance the practice of making findings which the institution should have made, a substantial incentive for affording procedural due process prior to contract termination will be removed. The result will be to place considerable unreviewable discretion in the hands of the administrators by permitting discriminatory application of the availability of pre-termination hearings. Those discriminated against will be forced to the expense, inconvenience and delay of a lawsuit to get what remains of the due process hearing which should have been provided by the state at the administrative level in the first instance. If the due process protection of contract rights mandated by Board of Regents v. Roth, supra, and Perry v. Sindermann, supra, is to be meaningful, the sanction for deprivation of that protection must be something more than was awarded in this case.” (Slip op.,pp. 14-15).

The Third Circuit thereupon cited a series of decisions of this Court mandating reinstatement and/or backpay as the appropriate remedies for the denial of a procedurally required hearing.15

This square conflict among the circuits on an issue which is bound to arise frequently should be resolved by this Court.

CONCLUSION

For the reasons set forth hereinabove, this petition for writ of certiorari should be granted.

Respectfully submitted,


MICHAEL H. GOTTESMAN
GEORGE H. COHEN
Bredhoff, Cushman, Gottesman &
Cohen
1000 Connecticut Avenue, N. W.
Washington, D. C. 20036
DAVID RUBN
JOEL D. GEWIRTZ
1201 16th Street, N. W.
Washington. D. C. 20036
Attorneys for Petitioner

15 “See, e.g., Greene v. United States, 376 U.S. 149 (1964) Silver v. New York Stock Exchange, 373 U.S. 341, 365-66 n. 18 (1963); Vitarelli v. Seaton, 359 U.S. 535, 545-46 (1959); Service v. Dulles, 354 U.S. 363 (1957).” (Id., p. 15).