Ames Moot Court Competition 1976
Articles,  Blog

Ames Moot Court Competition 1976


[SIDE CONVERSATION] MARSHAL: All rise. Oyez, oyez, oyez. The Honorable Supreme
Court of the United States is now in session. Justices McGowan, Gesell,
and Chief Justice Stevens presiding. All persons having business
before this honorable Court shall draw near and
give their attention, and they shall be heard. God save the United States
and this honorable Court. [SIDE CONVERSATION] JOHN PAUL STEVENS: The first
case we’re going to hear is Roanoke School
Board against Kiley. Are counsel ready? You may proceed. GREG A. ROSENBAUM: Mr.
Chief Justice, and may it please the Court. My name is Greg Rosenbaum. My colleague, Mr.
Schiffman, and I represent the appellant in
this action, the Roanoke School Board and its members in
their official capacities. The case comes to this
court on direct appeal from a decision of a
three-judge court in the Western District of Virginia,
which held invalid the school board’s discharge
of Harriet B. Kiley, Appellee. The school board had discharged
Appellee, a Roanoke Central High School teacher,
for two reasons. After a brief
statement of the facts, I will consider one
reason for the discharge– that Appellee refused to
agree to a school board policy prohibiting the
teaching of subjects which work to undermine
the moral and legal values of the community. Mr. Schiffman will deal with
the other and completely independent ground for
Appellee’s discharge, that she was a
practicing homosexual. The facts are these. Appellee’s discharge resulted
from statements she made to her 11th grade civics class. In discussing the nature of
law, Appellee advised her class that many laws are
based on values not reflective of moral truth
but of subjective opinion. As examples of laws designed to
protect the established order, Appellee discussed punishment
of and discrimination against homosexuals. She stated unequivocally that
private homosexual relations between consenting
adults harmed no one and advocated that the law
should not impose or sanction punishment or discrimination– JOHN PAUL STEVENS: Counsel,
you say she advocated this. Did the district court find that
she advocated this practice? GREG A. ROSENBAUM:
Yes, your honor. The district court found that
she advocated or at least intimated. And in this case, I think
that it’s clear that– JOHN PAUL STEVENS: Well,
did it differentiate between discussing
and advocating? GREG A. ROSENBAUM: It
did not differentiate beyond the statement, that
the facts as the court found it were these,
that Appellee advocated or at least intimated that
private consensual homosexual activities– JOHN PAUL STEVENS: Well, is
a finding that she advocated or at least intimated
equivalent to a finding that she advocated? GREG A. ROSENBAUM: I think,
your honor, that it is. If we avoid dealing with the
semantic distinctions that can be made between the word
intimation and advocacy, I think that it’s quite clear
that the term intimation is much closer to advocacy than
it is to inquiry or discussion. I think that in the flow and
context of the district court’s opinion, the
finding of advocacy, if we are to characterize
it as a one-word finding, is much closer to
what the district court found than any
statement of discussion. JOHN PAUL STEVENS:
Does it matter whether she advocated
or merely discussed in your theory of the case? GREG A. ROSENBAUM: Your honor,
in our theory of the case, it does not really
matter whether she advocated or discussed. JOHN PAUL STEVENS:
Well, then you can accept us to just assume
the district court merely found discussion, then. GREG A. ROSENBAUM: We could
assume that, your honor, but I think– JOHN PAUL STEVENS: It would
not make any difference to your argument. GREG A. ROSENBAUM: I
think that our case is stronger in the event
that she advocated. JOHN PAUL STEVENS: Why? GREG A. ROSENBAUM:
And therefore– JOHN PAUL STEVENS:
Why is it stronger? GREG A. ROSENBAUM: I
think, your honor, that when we discuss the
balance that must be made in academic freedom issues– that is, between the
interests of a teacher to speak and the interests
of the school board to maintain the school system
and the interest of parents to bring their children up
in the moral development way that they wish– that the teacher’s rights are
much more limited in a First Amendment context when she
advocates something contrary to the moral legal values
of the community as opposed to when she merely
discusses them. JOHN PAUL STEVENS: Do you
think the First Amendment gives less protection
to advocacy than it does to discussion? Is that your point? GREG A. ROSENBAUM:
I think, your honor, that in the school context,
when a delicate balance must be struck by the court in
considering the facts– JOHN PAUL STEVENS: Your
answer is yes, I think. GREG A. ROSENBAUM: Yes,
it does make a difference. Appellee at the
next class session publicly proclaimed
her own homosexuality. After an interview with
her department head, the high school principal and
the school board president, followed by a formal hearing
before the school board at– CARL E. MCGOWAN: Can I
interrupt for a moment? GREG A. ROSENBAUM:
Yes, your honor. CARL E. MCGOWAN:
Is the proclamation of a preference
for homosexuality or that she was a
practicing homosexual? GREG A. ROSENBAUM: Your
honor, the second reason for the discharge
which Mr. Schiffman will address himself
to is that she was a practicing homosexual. It is noted in– CARL E. MCGOWAN: Did
district court find that? GREG A. ROSENBAUM:
The district court found that– in a
footnote to its opinion, it found in a
post-trial memorandum that Appellee had testified
before the school board that she was a
practicing homosexual. And as a footnote to our
original brief points out, the distinction between
preferences and practices is made clear, and
she was clearly fired for being a practicing
homosexual, something with which Appellee
does not take issue. GERHARD ALDEN GESELL: Well,
who determined the values? GREG A. ROSENBAUM:
I’m sorry, your honor? GERHARD ALDEN GESELL: Who
determined the human values that you’re talking about? The school board or
the parents or who? GREG A. ROSENBAUM:
Your honor, the values which the schools are meant
to protect and defend. GERHARD ALDEN GESELL:
Yes, who determined them? Who determined them? GREG A. ROSENBAUM: The
school board did, your honor. GERHARD ALDEN GESELL:
How do they know? GREG A. ROSENBAUM: Well,
the traditional role of school boards
in our society has been one of determining just
precisely what local school systems are going to do. They determine what subjects
will be taught, what subjects will not be taught. And under Virginia school
law, individual school boards are challenged
with the authority to ensure that moral
instruction and training exists in every subject matter that
is presented to students in the school system. GERHARD ALDEN GESELL: Well,
how did they determine them? GREG A. ROSENBAUM:
Well, your honor, I cannot specifically
speak for the individual members of the
school board or how they arrived at a consensus. GERHARD ALDEN
GESELL: But you have the record in front of you. How did they determine it? GREG A. ROSENBAUM: There is
some evidence, your honor, that they determined the
values of the community from a referendum passed by
the Roanoke Central High School Parents Association. That was just a statement
which they took as support for their initial
feelings, that those were the values of the community. But furthermore– GERHARD ALDEN GESELL: Are the
values the values in Roanoke, or are they values– since we’re in a
constitutional area– are they values in the country? GREG A. ROSENBAUM:
Your honor, I think, as this court has
consistently recognized, the educational
system of this country relies on local officials and
local control over education. GERHARD ALDEN GESELL:
And local values– GREG A. ROSENBAUM: Therefore I
would submit that the values– GERHARD ALDEN GESELL:
Local values– GREG A. ROSENBAUM:
Yes, I would submit that the values and the
decisions of the school board should be the local values. And those values must
be weighed, then, against the constitutional
values that Appellee asserts in that local context. Otherwise– JOHN PAUL STEVENS:
Well, Mister– GREG A. ROSENBAUM:
Yes, your honor? JOHN PAUL STEVENS:
Mr. Rosenbaum, are you saying we might decide
this case in one way arising from Roanoke and another way if
it was a Boston school board? GREG A. ROSENBAUM: I’m
saying, your honor, that that may indeed be the
case, given the fact that you must strike that balance. GERHARD ALDEN GESELL: Well,
the figures in Washington, where we all three sit, were
just released in this area that you’re talking about. JOHN PAUL STEVENS:
Yes, your honor. GERHARD ALDEN GESELL:
There are more abortions than there are births. There are more
illegitimate births than there are
legitimate births. What is the family value there? [CHUCKLING] GREG A. ROSENBAUM:
Well, your honor– [APPLAUSE] Hating to cast aspersions on the
place from which you’ve come– [CHUCKLING] –I think that the
values in Washington could fairly be said to be
less old-fashioned than they may be in Roanoke, Virginia. But we don’t mind the claim– CARL E. MCGOWAN: Now,
relevant to this question, it seems to me, is that you
purport in your argument to balance the interests of
the teachers, the students, the board, and the parents. But the record indicates
that the reason given for the board’s rejection was
they rejected any teaching– quote, “any teaching of subject
matter that works to undermine the acceptance by
students of the values their parents have
trained them to follow.” So it seems to me that– that the way the
case comes to us is, it’s really the parents who
the board felt constrained to follow, nobody else. GREG A. ROSENBAUM: Your
honor, the term that we use, the community and
parental values, is a shorthand way of expressing
the values of the parents which make up the polity
of Roanoke, Virginia, and the Roanoke School Board. We’re talking about community
values are those values which are shared by those parents,
by the adults in the community. CARL E. MCGOWAN:
But if the emphasis is on the parents, what is
your feeling about Planned Parenthood v Danforth, where
the parents say in this matter it was not regarded
by the Supreme Court as of any significance. GREG A. ROSENBAUM:
Your honor, I believe that the facts of Planned
Parenthood v Danforth, taking place as it did in an area
where the court had found a fundamental right
in an individual woman to terminate her pregnancy
are quite different and can be easily distinguished. What I would point out is that
the Supreme Court of the United States, in its
decision in Roe v Wade found that in the first
trimester of pregnancy, there was a fundamental
right of an individual to terminate her pregnancy. There could be no legitimate
state interference in the first trimester. In deciding Danforth, with
Mr. Chief Justice, then Justice Stevens, dissenting
on specifically this point, the court held that
the state could not delegate to the parents a
power that it legitimately could not hold itself. Mr. Justice Stevens
then respectfully dissented on just that issue. JOHN PAUL STEVENS:
But Rosenbaum, if I might interrupt– [LAUGHTER] –if I understand
you correctly, you’re saying that the discussion of
the subject of homosexuality in the classroom
is not permissible because that’s not
a fundamental right, like the right the
abortion decision is. Now, if you’re right on
that, don’t your two points merge into just one point? GREG A. ROSENBAUM: You mean with
regard to the privacy issue? JOHN PAUL STEVENS:
You’re going to argue– your colleague, Mr.
Schiffman, is going to argue the basic right point. And it seems to me from
what you just said, that’s a critical part
of your argument as well. GREG A. ROSENBAUM: I
think, your honor, we’re discussing two rights here. One is the question
of whether or not a fundamental right exists to
engage in homosexual practices. The other is– JOHN PAUL STEVENS: And
you’re saying it does not. It’s unlike the abortion issue. GREG A. ROSENBAUM:
That’s correct. And that is the position
Mr. Schiffman will argue– JOHN PAUL STEVENS: And that’s
what Mr. Schiffman is also going to argue? GREG A. ROSENBAUM:
That’s correct. In the case of the
teacher’s rights to speak in the
classroom, we’re dealing with rights and privileges
that a teacher may have in a different area, the
First Amendment area, where we think the precedents
of this court clearly indicate a
teacher’s right is quite limited, so
as not to encompass speaking about homosexuality. There are two basically
different rights here– the right of privacy,
derived however it may be, in the First Amendment– JOHN PAUL STEVENS:
Would she have the right to speak about abortion? GREG A. ROSENBAUM:
I think, your honor, that she would have
the right to discuss abortion, as long as
it was found that– JOHN PAUL STEVENS:
Would she have a right to say she had had an abortion? Could she be discharged for
saying “I’ve had an abortion”? GREG A. ROSENBAUM:
Your honor presents a very difficult case,
certainly, and one quite different from our own. JOHN PAUL STEVENS:
Well, does it differ from this case in any
respect except this respect in which your colleague
is going to argue? GREG A. ROSENBAUM:
Yes, your honor. I think that it does
differ in the sense that the moral and legal
values of the community, according to the opinion of
Mr. Justice Blackmun in Roe v Wade are such that there
is no fundamental value system against abortion. JOHN PAUL STEVENS: What if
all the parents in Roanoke went on record in saying
they opposed abortion? GREG A. ROSENBAUM: In
that case, your honor– JOHN PAUL STEVENS: Then
it’d be the same case? GREG A. ROSENBAUM:
–the school board would be able to remove
the discussion of abortion from the curriculum, as Mr.
Justice Black found, himself a believer that the
First Amendment was an absolute prohibition against
limitations of the right to speak in his concurring
opinion in Epperson v Arkansas. GERHARD ALDEN GESELL: Are
you talking just marital and sexual matters? Or would your argument
go just the same way if a town went
entirely for Mr. Ford, that you couldn’t discuss Mr.
Carter’s program, or if the– or what would you say with
respect to the Vietnam War, if the majority of the
family thought that– parents thought that there shouldn’t be
a war or there should be a war? That couldn’t be discussed? Those are values,
aren’t they, just as important as
the other values. GREG A. ROSENBAUM: Yes,
Your honor, they are values. And our position
on this issue would be quite simply
that if the school board, in its role as
the elected, politically accountable representatives
of the people, determine that some
subject should not be part of the curriculum
of the public school system, then a teacher
could not in class discuss those values
or those subjects. GERHARD ALDEN GESELL: Well,
that’s just McCarthyism, isn’t it? That’s straight
McCarthyism, isn’t it? GREG A. ROSENBAUM: I
think not, Your honor. GERHARD ALDEN GESELL: Well,
what’s the difference? GREG A. ROSENBAUM: I think that
McCarthyism suggests that one cannot speak at all
to certain subjects– GERHARD ALDEN GESELL: Yes. GREG A. ROSENBAUM:
–in any circumstance. GERHARD ALDEN GESELL:
In the classroom. GREG A. ROSENBAUM: And I
think as this court clearly pointed out, there is a
distinction between the rights of a teacher to
speak as a citizen, commenting on matters
of public concern and outside the classroom,
and the teacher’s right to speak on matters
inside the classroom. That was the decision the
court drew in Pickering. GERHARD ALDEN GESELL:
In the corridors, you include classroom
[INAUDIBLE].. On the playground– GREG A. ROSENBAUM: Your honor,
we admit that certainly– GERHARD ALDEN GESELL:
–in the drug store, that’s all near children, right? GREG A. ROSENBAUM: In
discussion with other teachers in the corridor, in the
playground, certainly we would not suggest
that Appellee’s rights of free speech
should be constrained in the political arena. Rather we suggest that when
she faces a captive audience in the classroom of
impressionable young people that she should not
be allowed to present values contrary to the moral and
legal values of the community. GERHARD ALDEN GESELL: Even
though she presents both sides? GREG A. ROSENBAUM: In the
event that she presents both sides, Your honor– GERHARD ALDEN GESELL: Well,
that’s what she was doing here. GREG A. ROSENBAUM: –we have
a completely different case than we have here. GERHARD ALDEN GESELL: That’s
what she was doing here. She presented both sides. GREG A. ROSENBAUM:
No, your honor, I think the record points out
that Appellee took one position and never suggested
that there was another side to the position. GERHARD ALDEN GESELL: She said
there was a law the other way. And the law wasn’t correct. GREG A. ROSENBAUM: She
admitted that there was a law, and her entire discussion
went to the view that there was no support
at all for said law. JOHN PAUL STEVENS: Well,
didn’t her acknowledgment of her own practices,
wasn’t that made for the very
purpose of indicating that there might be two sides,
and that they should evaluate the fact that she was a
homosexual in appraising what she said? GERHARD ALDEN GESELL: Precisely. GREG A. ROSENBAUM:
Your honor, Appellee may, by her admission of
being a practicing homosexual, have indicated that
there may be two sides. That admission,
if it was designed to serve just that purpose,
came somewhat too late, three days after
she had presented but one side of the issue. And if you’ll look
at the testimony– JOHN PAUL STEVENS:
Do you think she would have been
discharged had she not said anything on Monday? GREG A. ROSENBAUM: I
think, your honor, yes, she should have been
discharged if she refused to agree to the policy
of the school board not to say the things
that she said Friday again in the future. However, she
steadfastly resolved, the district courts
found, in light of warnings that her job
was at stake, to refrain from making Friday’s
comments again to her classes in the future. CARL E. MCGOWAN: You keep
referring to the moral values of the community. And you argue, for example,
that the right to privacy cannot comprehend homosexual conduct
because that conduct is not rooted in the
collective conscience. Do you think that the
right to have an abortion was rooted in the collective
conscience of the United States before the Supreme Court
decided the abortion cases? Do you think that
desegregation of public schools was rooted in the conscience
of the American public before the Brown
case was decided? This raises the question,
at least in my mind, which comes first– Does the Supreme Court educate
and is ahead of the consensus? Or is it always
behind the consensus, as you apparently indicate
that it should be? GREG A. ROSENBAUM: Your honor– GERHARD ALDEN GESELL:
He doesn’t want there to be any chance for there
to be anything but a consensus, do you? GREG A. ROSENBAUM:
If I may address both questions
simultaneously, let me deal with them in three parts. [LAUGHTER] CARL E. MCGOWAN: Who
was that third judge that asked the third part? GREG A. ROSENBAUM:
Actually, your honor, I have a two-part answer to your
question and a one-part answer to Justice Gesell’s. Let me address myself
to your question, merely because you
asked it first. First of all, with regard to
the test of a value being rooted in the collective
conscience of our people, that is the second test that
we set forth with regard to whether or not something
is a fundamental right. The first test, of course,
is the paradigm of marriage, family, and procreation. With regard to values that– in my second part of
the answer, with regard to values that are rooted
in the collective conscience of our people, I deal with
your two examples thusly. First of all, the example
of the abortion decision, when we read Mr. Justice
Blackmun’s opinion for the court, we find that the
largest portion of the opinion was devoted to proving that
the values contrary to abortion were not rooted in the
collective conscience and history of our people. Hence I would say that the
Supreme Court in deciding the abortion decision paid
heed to the second test we set forth. JOHN PAUL STEVENS: 100 years
ago of anti-abortion statutes? GREG A. ROSENBAUM: 100 years
of anti-abortion statutes, your honor, Mr. Justice
Blackmun considered was not sufficient to be rooted
in the collective conscience and history of our people. CARL E. MCGOWAN:
Then my question is– GREG A. ROSENBAUM:
200 years, your honor, might have been different. CARL E. MCGOWAN: –what
does it take to root? JOHN PAUL STEVENS:
Mr. Rosenbaum, what part of the
Constitution do you find the language about
the collective conscience of the people in? GREG A. ROSENBAUM: Your honor– JOHN PAUL STEVENS: What is
the constitutional provision we’re talking about here? GREG A. ROSENBAUM: Your honor,
just as the right to privacy is not rooted in any specific
language in the Constitution, nor also are its contours. Since the Constitution, as
this court has often found, never explicitly says that there
is a right to privacy, nor does it say where that
right to privacy exists and where does not exist
with specific language. So I cannot point any more
than Appellee could point to specific language in the
Constitution granting a right to privacy to any
limitations on it. CARL E. MCGOWAN: But
isn’t the right to privacy that’s rooted in
the Constitution and what that right is
changes and grows and develops from time to time and the
Constitution, as viewed by the Supreme Court, is not
always behind the consensus but maybe in advance of it? GREG A. ROSENBAUM: Your honor,
with regard to that question, let me again answer
in two parts. First of all, I would say that
where this court has derived the right to
privacy specifically in the Constitution has varied
with pluralities and majorities in differing decisions. Mr. Justice Goldberg looked
to the Ninth Amendment. Many other justices, Mr.
Justice Brandeis, for example, looked to the Fourth and
the Fifth Amendments. Other justices have
looked to the First and the 14th Amendments. It seems that the
right to privacy exists in some form of zones or
penumbras from many amendments. That seemed to be the
consensus that emerged in the Griswold decision. The Griswold decision
drew very heavily on Mr. Justice Harlan’s
dissent in Poe v Ullman. And it is there where
Mr. Justice Harlan, in discussing the
origins or emanations of the right to privacy
from the various penumbras of the amendments to
the Bill of Rights, said that there
was this limitation of the right to things that were
in the collective conscience of our people. But secondly, with
regard to whether or not the Supreme Court is ahead,
equal to, or behind the times, I think that we have to look
at the situation in terms of the Supreme
Court’s jurisdiction to hear cases or controversies
that come before it. Certainly the Supreme Court, at
any time in the past 100 years hearing an abortion case,
might have decided the same way it decided in Roe v Wade. The situation was not
presented to the court, or at least the
court decided not to hear the situation until
Roe v Wade came before it. Hence it’s not a question
that the Supreme Court must necessarily always
be behind the time. It may be equal
to the consensus. But it has to wait until a
specific case or controversy comes before it in order
to make said adjudica– adjudication, excuse me. JOHN PAUL STEVENS:
Mr. Rosenbaum, I interrupted you before when
you didn’t really have a chance to give the third
part of your answer to the simultaneous question. I wonder if you can do that now. CARL E. MCGOWAN:
I’ve been waiting. GREG A. ROSENBAUM:
If your honor would allow me to ask Mr. Justice
Gesell to repeat again his question, I’ll be
happy to answer it. GERHARD ALDEN GESELL:
You’re anxious to have a consensus so there can’t be
any disagreement, aren’t you? All children taught the
way their parents believed, no change, no chance for
thought, no chance for change in moral or social values– it makes it easier for
the court, doesn’t it? There isn’t any problem, then. GREG A. ROSENBAUM: It
does make it easier for the court, your honor, but
I think that your proposition– GERHARD ALDEN
GESELL: Do you think that’s the kind of society
the Constitution envisaged? GREG A. ROSENBAUM: No, I don’t. And I don’t think that’s
the kind of society that our position
envisions, your honor. I think that what we’re– GERHARD ALDEN GESELL:
You think they’re just too young to think at 17? GREG A. ROSENBAUM: I
don’t think that they are too young to
think at 17, but I do think that we must
draw a line, your honor. And that line, this
court has recognized, can be drawn by the
legislature where it decides the line ought to be drawn. This court where the
legislature has not drawn a line in making
its decisions with regard to parochial school funding
has drawn a bright line between high school and college
with regard specifically to the impressionability
of young people and their
susceptibility to views which may be contrary to their
own or similar to their own, and yet they are not
free to respond to them. And that is the citation
that we point out to compare Tilton v Richardson
with Lemon v Kurtzman, where Mr. Chief Just– Former Chief Justice Burger
makes clear the distinction. Essentially, your
honor, we believe that it’s clear from
this court’s precedence that a teacher’s rights
to free expression are not unlimited in
the classroom setting. In Pickering versus
The Board of Education, the court recognized the
teacher’s right to speech is more limited when she
speaks as an employee of the state than when she
speaks as an average citizen. JOHN PAUL STEVENS: Mr.
Rosenbaum, just one more First Amendment question. You do concede that the First
Amendment has some application to what a teacher may say
in the classroom, do you? GREG A. ROSENBAUM:
Certainly, your honor, we believe that the
First Amendment has application in the classroom. JOHN PAUL STEVENS:
And then, I take it, it’s your position that what
the First Amendment protects depends on the content
of what is said. GREG A. ROSENBAUM: Your honor,
we believe that given due notice that certain
subjects ought not to be discussed in the classroom– JOHN PAUL STEVENS:
So say everything– GREG A. ROSENBAUM: –individuals
should not discuss them. JOHN PAUL STEVENS: –complete
notice on everything. But there’s still some
things that the teacher has a right to say,
notwithstanding all the notice. Isn’t that what
you just conceded? GREG A. ROSENBAUM:
Teacher has the right to comment on matters
of public concern, as long as the interests of
the state do not outweigh them. I think that’s the
lesson of the Pickering case with regard to a teacher’s
First Amendment rights. GERHARD ALDEN GESELL:
She clearly couldn’t say the governor was a crook. GREG A. ROSENBAUM: Well,
it depends, your honor. As you pointed out,
the citizens of Roanoke might have a moral
and legal value that the governor was a crook. GERHARD ALDEN GESELL:
Well, would you have to take a Gallup poll
first before she could discuss the conduct of the governor? GREG A. ROSENBAUM:
No, your honor, and I think that is precisely
the point that we make. The court cannot be
responsive to public opinion. It cannot commission Gallup
polls to determine the values of the community in order
to strike this balance. Rather it should defer in
its judgment as to the values that the school board seeks to
defend to the school board– political,
accountable people who are educational experts, whose
entire training, purpose, and institutional capability
is directed toward determining what those values may be. If the school board– JOHN PAUL STEVENS: Is
it your understanding that all school board members
have full-time employment on the board? Is that your– GREG A. ROSENBAUM:
No, your honor. I don’t think that they
have full-time employment on the board, nor do state
legislatures necessarily have full-time employment
as legislators, nor members of Congress
have full-time employment as Congressmen. [APPLAUSE] As recent events all
too sorely point out. CARL E. MCGOWAN:
Suppose the teacher is an enthusiastic heterosexual
and likes to share her– [APPLAUSE] –and likes to consume amounts
of the classroom time sharing her happiness in that
regard with the– [LAUGHTER] –[INAUDIBLE]. Do you think the board would
be justified in dismissing her, although she is enthusiastic
about family values? [LAUGHTER] GREG A. ROSENBAUM:
I think, your honor, that if the school board made a
determination that such subject matter should not be
discussed in the classroom, that the school board’s
wishes should be obeyed. In other words, we don’t
think that it necessarily is a matter of heterosexuality
versus homosexuality. It is a question of what
curriculum and course content ought be. CARL E. MCGOWAN:
Any kind of sex, don’t talk about it, right? GREG A. ROSENBAUM:
Well, it depends, again, on the situation. And in college, of course,
we have not the problems of a captive audience. JOHN PAUL STEVENS: Mr.
Rosenbaum, your time has expired. And if your counsel– your co-counsel is
to have his share, I think perhaps we should let
him try to take on from here. GREG A. ROSENBAUM: Thank
you, Mr. Chief Justice. And I thank the court. [SIDE CONVERSATION] JOHN PAUL STEVENS:
Mr. Schiffman. DAVID M. SCHIFFMAN:
Mr. Chief Justice, and may it please the court. My name is David
Schiffman, and I too represent the school board. My purpose is to defend the
school board’s policy of not employing as a teacher
any individual who engages in homosexual practices. We contend first that there is
no fundamental constitutional right to engage in
homosexual practices; second, that the school
board’s policy of not employing practicing homosexuals
as teachers does not deny equal
protection of the law; and third, that this
policy is justified by compelling state interests. GERHARD ALDEN
GESELL: Do you think it makes any difference
that the policy was decided as a means of getting
rid of this woman rather than being a policy
decided that the woman had an opportunity to be
aware of, before she went to work for the school board? DAVID M. SCHIFFMAN: There
are criminal statutes in the Commonwealth of Virginia
dealing with homosexuality. GERHARD ALDEN GESELL: Oh, sure. DAVID M. SCHIFFMAN:
And there are also– there is also a teacher
dismissal statute, which explicitly states
that grounds for dismissal for a teacher are things
like immorality or crimes of moral turpitude or
conduct unbecoming a teacher. So I think that there was
ample notice to the appellee that her practicing
homosexuality was adequate grounds for dismissal. I would like to
begin by addressing the first issue,
which I think will dispose of this entire case. There is no– [LAUGHTER] There is no fundamental
constitutional right to engage in
homosexual practices. GERHARD ALDEN GESELL: Or not to
engage in homosexual practices. DAVID M. SCHIFFMAN:
There are too many negatives in that
sentence for me, your honor. GERHARD ALDEN
GESELL: That’s right. DAVID M. SCHIFFMAN: This
court has repeatedly endorsed two tests– one general and one specific– for delimiting the scope of
constitutional protection in this area. According to the
more general test, only personal
rights which can be deemed fundamental or
implicit in the concept of ordered liberty are
held to be entitled to constitutional protection. According to the
more specific test, the Constitution
protects the intimacies and the basic
decisions associated with family, marriage,
and procreation, as well as child rearing and education. JOHN PAUL STEVENS: With
regard to the second test, how do you explain
the Eisenstadt case? DAVID M. SCHIFFMAN: I read the
Eisenstadt case, your honor, as exclusively an
equal protection case. At one point in the
court’s discussion– JOHN PAUL STEVENS: What is the
class that was discriminated against in that case? DAVID M. SCHIFFMAN:
Unmarried individuals. JOHN PAUL STEVENS:
And what right did they seek to assert
that the court protected? DAVID M. SCHIFFMAN: The court
held that whether or not there was a right among
marriage for married people to use contraceptive devices
that the state could not discriminate as between
married individuals and unmarried
individuals in fashioning its laws in that area. I view it exclusively as an
equal protection case and not– JOHN PAUL STEVENS:
And it discriminated against unmarried individuals? Why are they a class
that’s any more entitled to protection than homosexuals? DAVID M. SCHIFFMAN:
In that case, the court explicitly applied
a rational relationship test. It did not view the
group as entitled to extraordinary
constitutional protection. JOHN PAUL STEVENS: Well, I’m not
sure you answered my question. Why is the class of
unmarried persons entitled to more constitutional
protection than homosexuals? Or do you think it is not? DAVID M. SCHIFFMAN: I think that
they are entitled to exactly the same protection– namely,
that state legislation drawing a line on the basis
of whether a– JOHN PAUL STEVENS: Well, what
did that state legislation do? It interfered with their right
to engage in illicit sex, didn’t it? DAVID M. SCHIFFMAN: No. The state statute
was merely a statute governing the distribution
of contraceptive devices. JOHN PAUL STEVENS:
Does Virginia have a statute against fornication? DAVID M. SCHIFFMAN: Yes,
it does, your honor. JOHN PAUL STEVENS: Well, then
what did that statute do? What did the case hold on? DAVID M. SCHIFFMAN:
The Eisenstadt case? JOHN PAUL STEVENS:
Yes, with respect to– what right did it
protect in the people– the unmarried group? The right to do what? DAVID M. SCHIFFMAN:
It protected– [LAUGHTER] –my reading– JOHN PAUL STEVENS: Was it
anything more than the right to fornicate? And if not, why
isn’t that right? DAVID M. SCHIFFMAN: I think– my reading of the
Eisenstadt case is that it said that
unmarried individuals have exactly the same rights
as married individuals, in the sense that
the state may not draw lines between
being married and being unmarried on the basis– in its statutes, without
a rational relationship. They were claiming to
be treated equally. And that is my reading
of the Eisenstadt case. The court in that
case explicitly declined to hold that there is
a fundamental constitutional right to use
contraceptive devices. But even if the
court had so held, I would nevertheless
argue that it fits within the paradigm
of marriage, family, and procreation with an
emphasis on the last element, because throughout history,
an individual’s decision whether or not to
procreate has always been thought of as beyond
the power of the state except in extraordinary
circumstances. This is to be contrasted
with homosexuality, where throughout history,
there have been laws saying that homosexual
practices are illegal. And that is the
crucial distinction between these two areas. JOHN PAUL STEVENS:
Well, haven’t there been laws throughout
history saying that sexual activity
between unmarried persons is disapproved of? DAVID M. SCHIFFMAN:
Yes, your honor. JOHN PAUL STEVENS: Now, again– tell me again what
the distinction is. DAVID M. SCHIFFMAN: I think
that homosexual practices are entitled to no more
protection than any other– JOHN PAUL STEVENS:
But, I mean, insofar as you’re talking about
tradition and history, don’t the two come
out about the same? DAVID M. SCHIFFMAN:
In the United States, there has almost always been– have almost always been
statutes against fornication and adultery. And those activities
are entitled to no more
constitutional protection than are homosexual practices. CARL E. MCGOWAN: Doesn’t
this emphasis you put on the long history of
anti-homosexual attitudes in this country–
doesn’t that run you right in, then, to the question
that the homosexuals are a suspect class? DAVID M. SCHIFFMAN:
No, your honor. In this particular
area of suspect class– CARL E. MCGOWAN: They
have a long history of being discriminated against. You would say that? DAVID M. SCHIFFMAN: Oh, yes. CARL E. MCGOWAN: Well, isn’t
that one of the earmarks of a suspect class? DAVID M. SCHIFFMAN:
I don’t think that that is a sufficient
condition for a suspect class. I would analogize to the area
of race, because with respect to race, there has been
a societal judgment repudiating a history
of discrimination on the basis of race. The 13th, 14th, and 15th
Amendments to the Constitution represent the clearest and
the most profound statement of our people, repudiating
the history of discrimination. In contrast, even today,
the majority of states has fiercely resisted even
liberalizing laws with respect to homosexual practices,
and thus there is a crucial distinction
between rights and homosexual practices. I would, in addition,
like to point out that as recently as last term, in
the case of Matthews v Lucas, the court once again declined
to find illegitimate children to be a suspect class over
the chief justice’s dissent. And that group too
had been subjected to a history of discrimination. But even if one were to endorse
the Chief Justice’s viewpoint with respect to suspect
classes, in that area, that would not apply here,
because a number of members of this court have
expressed concern with legislation based
on outmoded stereotypes and overbroad generalizations
which are based on habit rather than analysis. GERHARD ALDEN
GESELL: But the only act you have here
is speech, isn’t it? You don’t have anything else? There’s no active
homosexuality involved. She didn’t commit
homosexuality in the school with any children. DAVID M. SCHIFFMAN:
No, your honor. GERHARD ALDEN GESELL:
She didn’t do anything. She just spoke. DAVID M. SCHIFFMAN:
She admitted to being a practicing homosexual. GERHARD ALDEN GESELL: Well,
she said she was, yes. DAVID M. SCHIFFMAN: Yes. GERHARD ALDEN
GESELL: But what act? What act did she engage in? DAVID M. SCHIFFMAN: The act– GERHARD ALDEN GESELL: The state
can outlaw acts, but it can’t– but there’s no act here. What act did she engage
in except to speak? DAVID M. SCHIFFMAN: She
spoke in the school. She committed her
homosexual practices outside of the school. GERHARD ALDEN
GESELL: Well, I know. But she just spoke, didn’t she? DAVID M. SCHIFFMAN:
Nevertheless, the expert testimony which
we have presented shows– at least there is substantial
evidence from which the school board could conclude that
the presence of a known homosexual teacher
in the classroom could result in impaired sexual
development and orientation of her students. JOHN PAUL STEVENS: Well,
now is that evidence– does the record show that that
evidence in which you rely was actually before
the school board? Or is that evidence you
put in at the trial? DAVID M. SCHIFFMAN:
The evidence that is in the record
was put in at trial. JOHN PAUL STEVENS:
So how can you say the school board relied on it? DAVID M. SCHIFFMAN: I didn’t– if I said that, I didn’t
mean it, your honor. The school board–
evidence exists from which the school
board could reasonably conclude that this is true. JOHN PAUL STEVENS: But even
after you put that evidence, the district court didn’t make
a finding that the evidence was correct, did it? DAVID M. SCHIFFMAN: The
district court found– JOHN PAUL STEVENS: Found the
evidence equally balanced? DAVID M. SCHIFFMAN: That
is correct, your honor. JOHN PAUL STEVENS:
So what should we do? Should we make an independent
review of that evidence? DAVID M. SCHIFFMAN: I do
not believe so, your honor. JOHN PAUL STEVENS: Then
why are we talking about? [LAUGHTER] DAVID M. SCHIFFMAN:
I do not believe that it would be
appropriate for this court to try to resolve complex
empirical questions of this nature. The causes of homosexuality
are very subtle, and they are
difficult to explain. And there is a great deal
of controversy about it. For that reason, I do not think
that it would be appropriate for the courts to try to
arrive at their own judgment, because courts lack the
expertise in this area. GERHARD ALDEN
GESELL: But aren’t we supposed to have a
little common sense? And don’t we know that if
you don’t tell young people anything about sex,
you’re going to have just as much trouble as if you
tell them something about it? DAVID M. SCHIFFMAN: That
could quite possibly be true. GERHARD ALDEN GESELL: Can
we take judicial notice of that obvious fact? [APPLAUSE] DAVID M. SCHIFFMAN: This
court can most certainly take judicial notice of that fact. GERHARD ALDEN GESELL:
Well, then the testimony isn’t worse anything, is it,
whether they relied on it or not? Some people think it’s
bad to tell them about it. Other people say it’s bad for
them not to be told about it. There’s Wish issue. DAVID M. SCHIFFMAN:
Well, your honor has shown that there is very
much an issue of disagreement among the psychologists. GERHARD ALDEN GESELL: Fine. DAVID M. SCHIFFMAN: And
I think that it is better not to decide this
case, obviously, as to decide the
controversy by saying that there is an insubstantial
relationship there. So if this court were
to hold against us, the court would in
effect be agreeing with the appellee’s experts. But I do not think that it
is appropriate for this court to resolve the empirical
matters but rather to defer to the judgment
of the politically accountable group of
educational experts who sit on the school board. GERHARD ALDEN GESELL: Even
though their view contradicts everything anybody knows and can
think of common knowledge of, just walking down the street? DAVID M. SCHIFFMAN:
I must respectfully disagree with your honor’s
view of common knowledge, with all due respect. GERHARD ALDEN GESELL:
You think that there has to be a compelling state
interest or a rational state interest? DAVID M. SCHIFFMAN: That depends
upon how this court decides– GERHARD ALDEN GESELL: Well, no. That’s where we are. I’m asking for your help. DAVID M. SCHIFFMAN: Oh. There must– GERHARD ALDEN GESELL:
We have to find a compelling state
interest, or simply a rational state interest? DAVID M. SCHIFFMAN:
I do not believe that there is a fundamental
interest in engaging in homosexual practices. And accordingly, I believe that
a rational relationship test is all that need be applied here. GERHARD ALDEN
GESELL: Well, there’s a possible relationship between
everything, isn’t there? DAVID M. SCHIFFMAN:
It’s difficult for me to answer your honor’s
question except metaphysically. The scientist which we
presented in the court below suggested that there very
definitely is a relationship. In addition, there is– JOHN PAUL STEVENS: A
relationship between what? I lost you, Mr. Schiffman. DAVID M. SCHIFFMAN: OK. That the presence of a
known homosexual teacher in the classroom could
impair the sexual development and orientation of students,
that if the teacher is respected, the students
would accept the teacher and accept her as a person and
accept all of her attributes, including her
homosexuality and accept the idea that there is nothing
wrong with being a homosexual. JOHN PAUL STEVENS: Now,
some people so testified. And now what conclusion do
we draw from that again? DAVID M. SCHIFFMAN:
The conclusion is that Appellee’s continued
employment as a teacher would endanger the sexual
development and orientation of the students. JOHN PAUL STEVENS:
Is it necessary for us to make that finding
to sustain your position? DAVID M. SCHIFFMAN:
If this court applies a rational relationship test– in other words, if it finds
that no fundamental rights or suspect classifications
are involved– then a rational relationship
will uphold this. We argued other rational– other justifications in
the brief which we believe are rationally related to
the appellee’s discharge. JOHN PAUL STEVENS: Let
me be sure I understand your argument, Counselor. I sometimes get quite
confused on what a rational relationship is. Rational relationship
between what? What are we trying to do? DAVID M. SCHIFFMAN: Between
Appellee’s discharge and the state’s
policy of protecting the sexual development and
orientation of its children. JOHN PAUL STEVENS:
And you say if there is some rational rela–
some conceivably rational relationship, then unless
she has a fundamental right to be a homosexual that the
discharge must be upheld. DAVID M. SCHIFFMAN: I think so. If I could rephrase
it in my own words, I’d be a little bit more
confident in agreeing. If there is no fundamental
relationship involved, then the discharge
must be upheld if it is rationally related
to a legitimate state purpose. If fundamental
interests are involved, then the discharge can
be upheld, only if the– JOHN PAUL STEVENS:
Are we talking about fundamental interests of
the person who is a homosexual? Or are we talking about
fundamental interest of the state? DAVID M. SCHIFFMAN:
Fundamental interests– JOHN PAUL STEVENS: Or
fundamental interests of the children? What is their point of– DAVID M. SCHIFFMAN: Of the
individual who is a homosexual. JOHN PAUL STEVENS:
And the question is whether she has a compelling
motivation to be a homosexual? Is that it? DAVID M. SCHIFFMAN: The
issue is whether there is a fundamental
constitutional right to engage in
homosexual practices. JOHN PAUL STEVENS: And that
turns on the compelling nature of the interest as in the frame
of reference of the person in the class, if anything. DAVID M. SCHIFFMAN: Ordinarily,
this court’s methodology is first to consider the interests
of the plaintiff and to decide whether they’re– whether those interests are
constitutionally fundamental. And then only if
it finds that there is a fundamental
interest, to consider what the state’s offsetting
policy justifications are. So the typical methodology
is first to consider whether there is a
fundamental interest and if there is,
then to consider whether the state
has compelling policy justification for its action. We believe that there is
no fundamental interest under either of the two general
tests which this court has endorsed in the privacy area. Under the general test,
those personal liberties which can be deemed
fundamental or implicit in the concept of ordered
liberty, it is, I think, clear that homosexual
practices have no claim to such special protection. CARL E. MCGOWAN:
Isn’t it conceivable that a particular group
can have at least some of the characteristics of the
suspect class without having all of the full-fledged
characteristics that maybe another group has? But if they have some of the
characteristics of the suspect class, in the sense of having
a history of opposition and discrimination
against them, is it conceivable there could
be a standard intermediate between the rational
relationship and the compelling interest
to which ought injustice to be applied to that group? DAVID M. SCHIFFMAN: Well, this
court could so hold, of course. I don’t believe that
the court ever– CARL E. MCGOWAN: Well, don’t
you think that some of the sex discrimination cases,
like Reed v Reed and Weinberger v Wiesenfeld
maybe fall into that category? DAVID M. SCHIFFMAN: Those
cases could be read that way. And I have no
substantial quarrel with this court reading those
cases that way, because all that those cases asked for
was a fair and substantial relationship between
means and ends. And I’m absolutely
confident that we can produce that and that we have. However, I would like to
distinguish this situation involving homosexuality from
the situation involving sex or involving, say, illegitimate
children, because this statute is not drawn on the basis
of overbroad generalizations or outmoded stereotypes. It is not a product of
habit rather than analysis. What the school board did was to
make a specific judgment which we believe was
scientifically supported in this particular case– that the presence of a known
homosexual in the classroom could impair the normal sexual
development and orientation of her children. JOHN PAUL STEVENS: Well, are you
saying the scientific evidence had more impact on
the school board than the resolutions adopted
unanimously by the parents? DAVID M. SCHIFFMAN:
There is no way to tell from the record
what influence the school board, to what extent. The members of the school
board made that decision given their backgrounds in education. They may know things
about this area, and thus it is impossible
to know the precise basis for their decision. However, the rational
relationship test– GERHARD ALDEN GESELL:
What’s the difference between this and a parent
committee insisting on the burning of books
in the school library? What’s the difference? DAVID M. SCHIFFMAN: In
what sense, your honor? GERHARD ALDEN
GESELL: Books that– books that teach evolution. Or books that
discuss a theory that is, in some other respects,
contrary to fundamental belief in the Bible? We have a large number of
communities of that kind aren’t the country. And aren’t you saying that
if the parents don’t like it, they can then burn the books as
well as discharge the teachers? DAVID M. SCHIFFMAN:
No, your honor. GERHARD ALDEN GESELL: So
what’s the difference? DAVID M. SCHIFFMAN: We
have been advocating the use of a balancing test. GERHARD ALDEN GESELL:
Well, what’s balanced here? Nothing’s balanced here. They say little
children shouldn’t hear about homosexuality. DAVID M. SCHIFFMAN: They should
not be taught by an individual whom they respect and
who is a homosexual. In Roanoke, we
believe that teachers should be upright
members of the community and set an example
for their students. That is a different
consideration completely than your honor’s
example of burning books. GERHARD ALDEN GESELL: Well, but
if the teacher uses the books and assigns them to the children
to read, it’s the same thing, isn’t it? They respect the
teacher because she told them to look in the library. DAVID M. SCHIFFMAN: A
teacher is a role model. A book is not. If the teacher says that the
book represents her views, then to a substantial
extent, it is as if she had said what was in the book. But merely assigning
a book does not stamp it with the
teacher’s approval for all of its contents. And that is why I conclude
that it is the teacher that is the role model. GERHARD ALDEN GESELL: So
that it’s really the fact that the teacher admitted
homosexuality rather than she talked about it. DAVID M. SCHIFFMAN:
Well, the district court found that there were
two independent grounds– JOHN PAUL STEVENS: No, I’m
asking you in your theory, not the district court’s theory. DAVID M. SCHIFFMAN:
Well, I think the district court was
right and that there were two independent grounds. First, the fact that
she was a practicing homosexual, and second the fact
that she talked about subjects and she refused to obey
the school board’s order to refrain from
talking about those subjects in the future,
which conflicted with the moral and legal
values of the community. We believe that it is the
obligation of the school to reinforce moral values. Others may disagree. But I don’t think the judgment
of the Roanoke School Board is unconstitutional
because of disagreements in educational theory. JOHN PAUL STEVENS:
Mr. Schiffman, let me ask you a
more basic question. You’ve emphasized the difference
between a rational basis test and a compelling
state interest test. How do we go about deciding
which test to apply? DAVID M. SCHIFFMAN: That turns
upon whether fundamental rights are involved. JOHN PAUL STEVENS:
How do we decide whether fundamental
rights are involved? DAVID M. SCHIFFMAN: This
court has adopted two tests for deciding whether
fundamental rights are involved in this area. The more general
tests turns upon whether the right is implicit in
the concept of ordered liberty. JOHN PAUL STEVENS:
What does that mean? DAVID M. SCHIFFMAN: It means– the roots go back
real far, your honor. It means that
measured by history, by culture, and by the
law, whether in interest it goes back that far,
whether it is that deeply ingrained in the traditions
and the collective conscience of our people– JOHN PAUL STEVENS:
Well, is there a long tradition in
Roanoke or any place in the country of
discharging people who acknowledge
they’re homosexuals? DAVID M. SCHIFFMAN: The
tradition to which I refer, your honor, is the policy
against homosexuality. Given that the state can
criminalize homosexuality, I don’t think that one could
claim that there is more constitutional protection– JOHN PAUL STEVENS: Well,
there’s a tradition over the years of discriminating
in certain respects against illegitimates. I take it that’s in the
same standard, then? DAVID M. SCHIFFMAN:
And if a discrimination against illegitimates is
not rationally related– or reasonably related,
to use the term which the court used in the– JOHN PAUL STEVENS: Well,
we’re addressing the question of which standard do apply. I’m trying to find out from you
how you decide which standard. And you’re saying that
you first find out if it’s a fundamental
interest, and you find out if it’s a fundamental
interest in finding out whether it’s been
traditionally regarded as important or
justified discrimination. So I suppose, then,
anything that’s been traditionally accepted over
the years would be fundamental. DAVID M. SCHIFFMAN:
Something which is rooted in traditions and
conscience of our people is fundamental, according to
the decisions of this court. The fact that it is important
to the individual is not enough. For example, in
the Rodriguez case, this court held that
education is not fundamental, even though it’s obviously
important to the individual. What is required is
more than importance to the individual,
more than a resemblance to other constitutional rights. What is required is a source
of constitutional doctrine looking to the basic
values of our nation. The history of this court’s
due process adjudication has sometimes looked
to one test which is, is it found in a specific
guarantee of the Constitution, and sometimes it’s looked to a
more transcendent test, looking to those values which are
implicit in the concept of ordered liberty. But the appellee asked this
court to go another step and to hold that homosexual
practices are entitled to special
constitutional protection even though it is not tied to
any constitutional guarantee or to any value which
our people have endorsed, as measured by history,
culture, and law. Homosexual practices have
been historically forbidden and culturally abhorred
and legally forbidden for centuries. And one would have to invert
the values of our society to hold that homosexual
practices are in any meaningful
sense fundamental. That being so, since there
is no fundamental interest, the question is, is
there a suspect class? We don’t believe
that this is really an equal protection case. We believe that the
equal protection argument turns on the due
process argument of whether the state has a
substantive and valid interest in deterring homosexual conduct. For if it is conceded that
the state may legitimately forbid homosexual
conduct, then there is nothing inherently suspect
about taking into account in fashioning state policies the
fact that a person has engaged in such forbidden conduct. So, if there is no
fundamental interest and there is no suspect
class, then the discharge must be upheld if
it is rationally or perhaps reasonably related
to a legitimate state purpose. One such purpose is protecting
the normal sexual development and orientation of children. We argue others in the brief– preserving the moral
values of society and strengthening family values. And any of those certainly will
meet the rational relationship test. And we would argue
that the interest in protecting our children and
safeguarding them from abuses will almost assuredly meet even
a compelling state interest test. I thank the court. JOHN PAUL STEVENS: Thank
you, Mr. Schiffman. [SIDE CONVERSATION] JOHN PAUL STEVENS: Mr. Roach. ARVID E. ROACH II: May
it please the court, my name is Arvid Roach. My colleague is Marc Johnston. We propose to divide
the argument as follows. I will give attention
to the constitutionality of Appellee’s
discharge on the basis of her homosexuality in terms
of both equal protection and privacy analysis. My colleague will give attention
to the constitutionality of her discharge for her
classroom statements. I will hold myself
open to questions on the vagueness
issue, and my colleague will hold himself
open to questions on whether federal power
existed to grant back pay in this action. The equal protection standard
that this court applies in determining whether
or not a class is suspect was outlined in Matthews
v Lucas this year, repeating a standard
from San Antonio case. It contains three components–
a history of purposeful discrimination– here the
appallants concede that component– a cause not within the
individual’s control and substantially immutable,
and a characteristic which bears no relationship to
the individual’s ability to perform in society. Again, they concede
that third component. So, the issue in
this case reduces to whether homosexuality
results from a cause not within the
individual’s control and substantially immutable. JOHN PAUL STEVENS:
Well, Mr. Roach, is it quite accurate to say
they concede the third point? They concede that she was
competent as a teacher before anyone knew
she was homosexual. But as I understood
their position, they say that the mere
fact that the children know she’s a homosexual in
effect disqualifies her from performing
effectively as a teacher. ARVID E. ROACH II:
They do not contend that the fact of
her homosexuality affects her effectiveness
as a teacher. They contend that the
knowledge on the part of the students that
she is a homosexual affects her performance
as a teacher. In terms of the general analysis
of whether homosexuality is a suspect class, we only
need the part that they concede. Now, turning to the issue– CARL E. MCGOWAN:
Could I interrupt you for a moment to ask you, the
concept of a class at least suggests to me that it
covers a suspect class. It covers everybody who
falls within that class. And the homosexuals is a class. If there are instances where
a homosexual can be dismissed because of homosexuality– and I put to you the cases
of the military or national security jobs, the Foreign
Service, for example, things like that– if there are any instances
in which homosexuals can have their
employment terminated, do you then have a
true suspect class? ARVID E. ROACH II:
Your honor, it’s conceivable that members of
any of the recognized suspect classes might as a result
of the property that makes them a member
of that class have a disability
in some respect. If the court, for example, had
found that sex was a suspect class, I’m sure it
would not have gone on to hold that there
would never be a rational basis
for excluding women or men from certain employment. If it could be
shown that members of a certain religious
group or members of a certain national
origin had a disability in a particular
employment, I think that would have to be
weighed into the balance. But the first level
of analysis has to be whether the
members of the class deserve the protection of the
courts of the United States against state impositions
and burden upon them. And that is where we have
to look at it in terms of whether it’s a discrete and
insular minority, as was said in the Carolene Products case. GERHARD ALDEN GESELL:
But you’re forgetting the children, aren’t you? This thing has to
do with children. This has to do with
how you teach children. Now, you have a client
here that hasn’t even undertaken to present both sides
of this problem to her class. She’s a propagandist
for a point of view that is against the law. Now, doesn’t that have something
to do with this problem? It’s just verbiage to talk
about suspect classes. As a teacher, she has
not taught properly. She’s taught only one
side of the story. Now, isn’t that the nub of this
case, as far as all the fancy words of the school board? The parents don’t like
it, and the school board doesn’t like it,
because all she’s doing is talking about
one point of view. And there are two
points of view, and she’s supposed
to be a teacher. ARVID E. ROACH II: In terms
of the discharge for her being a homosexual or
known to be a hom– someone in the class, as far
as the evidence indicates in this case raised the
issue of homosexuality as another possible
illustration of the disjunction between law and morality. And the appellee then offered
as what she called a conclusion to focus class discussion,
a statement that sometimes legal prescriptions and
moral values don’t co-align and that homosexuality is
such a case, in her opinion. She stated explicitly
in the Friday class that this was her view,
aside from the question of whether or not it was
moral or immoral, abhorrent or not abhorrent, to the
members of the class. She thought about it some
more over the weekend. She came in on Monday,
congratulated the class for their mature treatment
of the discussion at the end of the
Friday class, but then went on to say that she was
still concerned that they were not able to evaluate her
position without understanding that she had an interest. Now, if that sounds
to you, your honor, like impassioned
advocacy, then I think that we have
some difficulties in prevailing on this appeal. But we have, it seems to me,
all the facts in this case indicate that this is a
professional, responsible teacher, discussing a
curriculum assigned to her by the school board– JOHN PAUL STEVENS: But Mr.
Roach, doesn’t the mere fact that she came in
and acknowledged that she was a homosexual
indicate that she had merely presented one point
of view before and she just wanted the
argument to be evaluated in the light of
the fact that she might have an interest
in that point of view? ARVID E. ROACH II: She
concluded the class by presenting a point of view. The class began
with a discussion of the nature of law– JOHN PAUL STEVENS:
But isn’t Judge Gesell correct, that she only
presented one point of view? ARVID E. ROACH II: She did not
get up and say in words, now, there is also a view
that homosexuality hurts everyone and is evil and should
be proscribed by society. But that was clearly implicit
in the first half of the class, where they discussed
the nature of law and the duty of obedience. And then the
discussion generated by the students
themselves, where they considered how the social
consensus ought to be arrived at that’s enforced through law. JOHN PAUL STEVENS: Mr.
Roach, let me take you back to the first question
you want to discuss, about whether there’s
a constitutional right to practice homosexuality. You indicated that one of the
three standards in determining whether there’s a
compelling interest– or suspect class,
I guess it is– was the immutability of the– ARVID E. ROACH II:
Yes, your honor. JOHN PAUL STEVENS: –of
the characteristic. Does the evidence in
this case indicate that there’s anything immutable
about being a homosexual? ARVID E. ROACH II:
The evidence indicates that only a tiny
minority of homosexuals ever submit themselves– at this point, they can’t
be compelled by society– ever submit themselves
to any form of treatment. And that of them– JOHN PAUL STEVENS: Now, did
the district court so find? ARVID E. ROACH II: The
district court did not consider the question of immutability. JOHN PAUL STEVENS:
So we don’t have a finding one way or another on
the question of immutability, then, do we? ARVID E. ROACH II: We don’t have
a finding on equal protection at all. The issue was raised
in the district court. We are raising– JOHN PAUL STEVENS: Well, can
we address it without a finding of fact on that issue? If you say in your
own presentation that we must find immutability
to find a suspect class and we don’t have a factual
determination on immutability, what are we supposed to
do as an appellate court? ARVID E. ROACH II:
Our position is that the facts are so
unambiguous that it’s an area where judicial
notice is appropriate. And as I was outlining– JOHN PAUL STEVENS: Well,
wasn’t there contrary testimony before
the district court? ARVID E. ROACH II:
There was no testimony on this issue, your honor. The equal protection
claim was not considered by the district court. JOHN PAUL STEVENS:
Well, should we address it in the
first instance, when we haven’t had the benefit
of the views of the district court? ARVID E. ROACH II: When
there is a vital question of equal protection law before
this court, when it has been fully briefed by both sides
who had ample opportunity to marshal the evidence,
and when all that’s at issue is whether judicial
notice should be taken, this court is as competent
to come to that conclusion as the lower courts. Of course, it’s always
open to this court to leave an issue to generate
different findings in the lower courts, but our position, as
I hope you can understand, has to be that the evidence
is clear enough to find now. JOHN PAUL STEVENS:
Well, you necessarily rely on equal protection, then? That’s critical to your case. ARVID E. ROACH II: It is not. There are two
alternative grounds for invoking the
compelling state interest test, as regards the
discharge for homosexuality. And of course the second
ground is our position that homosexual
practices are encompassed within any principled,
reasoned elaboration of the personal autonomy values
that this court has shorthanded as the right to privacy. And I will turn to that,
if you wish, at this point. I do commend you to examine
once again the medical evidence in both briefs,
and I think you’ll find that it’s unambiguous. The issue of– CARL E. MCGOWAN: What
about your medical evidence with respect to the
fact that homosexuals are predetermined to
be such in their genes and that they have no
control over whether they are homosexuals or not? But is there a difference
between a homosexual preference and a homosexual act? Does it follow necessarily
that because you have a homosexual preference you
are unable to restrain yourself committing a homosexual act? There may be a lot of
people that are heterosexual and have strong
urges, but they don’t let it issue in the violation
of criminal statutes. ARVID E. ROACH II: Well, no. Nor does it follow from
the fact that human beings are capable of
procreation that they have to engage in procreation. But that doesn’t overturn the
holding in Skinner v Oklahoma, that it’s a fundamental
human interest to be able to preserve
your power to procreate. In the same sense,
we have argued that sexuality under this
right to privacy analysis, when it’s accompanied
by incidents of privacy, of intimacy,
of emotional significance, of innermost importance
to the individual, just can’t be put outside
a reasoned line elaborating the constitutional
value of privacy. Now, the beginning of the
modern development of the right to privacy– as
we pointed out, it has longstanding antecedents
in Supreme Court decisions– was the case, of course,
of Griswold v Connecticut, which involved the right
of marital partners to use contraceptives. That case, as we point
out in the brief, did not turn on
the vulnerability or orthodoxy of the marriage
relationship or its value to society. The court instead
spoke of values of intimacy, bilateral
loyalty, the right to express one’s attitudes,
the privacies of life. Six years later, the court,
as we have discussed already tonight, decided
Eisenstadt v Baird, finding that the moral and
health interests alleged by the state of Massachusetts,
which the Supreme Court of the State of
Massachusetts had said were sufficient to
sustain this statute, were not sufficient
to sustain it. And all the commentators agree
that the court was applying a heightened scrutiny
at the very least and in fact was finding
that the right to privacy extended to unmarried partners. And that’s what the penultimate
sentence of the Eisenstadt case said. It said the right of the
individual, underscored, married or single, to be free
from unwarranted governmental intrusion into matters
so fundamentally affecting a person
as the decision whether to bear or
beget a child was protected by the Constitution. And the Roe decision and
the Kelly v Johnson decision just this year cite
Eisenstadt v Baird as one in a line of fundamental
interest privacy decisions. The court in Eisenstadt
referred to the decision in Stanley v Georgia,
which involved the right to possess obscene literature
in the privacy of one’s home again. Again, the court
in Stanley said it was an aspect of a larger right
called, in that case, the right to be free except in very
limited circumstances from unwarranted governmental
intrusions into one’s privacy. Then, of course– GERHARD ALDEN GESELL: Now,
there isn’t any intrusion on this woman’s privacy. Nobody’s intruded on
her privacy at all. ARVID E. ROACH II: The state– GERHARD ALDEN GESELL:
There’s been nothing done with respect to her acts. Now, she shot her
mouth off in class, and she got into trouble. But there isn’t anybody
trying to tell her she can’t be a homosexual back home. ARVID E. ROACH II:
The state of Virginia alleges a right to
discharge at the moment that it discovers the fact
any teacher who is known to be a homosexual, known to them. That was their
allegation in this case. They go on to try to argue
some sort of rational basis in terms of the effect
on the students of known homosexuality. But their claim is that
if anyone is a homosexual, he can be discharged at once. So they certainly are concerned
with the acts in question. They think that those acts in
themselves are sufficient basis to discharge teachers. GERHARD ALDEN
GESELL: Who teach it? ARVID E. ROACH II: Who teach. GERHARD ALDEN
GESELL: Who teach it. ARVID E. ROACH II: I’m sorry. GERHARD ALDEN GESELL: Teachers
who teach homosexuality. ARVID E. ROACH II: I
think I’ve responded to that point, your honor. I think it’s very
clear in this case that there was no advocacy
that homosexuality itself was desirable. There was no effort
to proselytize. There was certainly no overt
sort of sexual practice or act or manifestation
in the classroom. At the very most, at
the strongest case the appellants
have, Appellee was advocating a right
similar to the right we’re advocating in this court– not to practice homosexuality,
encourage homosexuality, but not to have the state
sanction private behavior that can’t be distinguished from
other kinds of privacy that are fundamental. Now, the– JOHN PAUL STEVENS: Mr.
Roach, perhaps this is a repeat of what Judge
Gesell was driving at, but does it necessarily
follow that if she has a constitutional right
to practice homosexuality that the school board must
keep her in their employ? ARVID E. ROACH
II: No it doesn’t. We have to turn then
to the state interest. And I think I will turn
to the state interest. The core of the
state’s argument, as they’ve really conceded
here by de-emphasizing their other claims,
is that there is some sort of,
as we’ve called, carbon copy effect
that takes place. If a teacher happens to
be a very good teacher and admired by her
students, they’re afraid she’s going to turn
them into homosexuals. Now, we first pointed
to six cases– JOHN PAUL STEVENS: Well,
can we take judicial notice of the fact that
students sometimes admire their teachers? ARVID E. ROACH II:
We certainly can. We can take judicial– JOHN PAUL STEVENS: And
sometimes try to imitate them in certain respects? ARVID E. ROACH II:
Yes, I think we can take judicial notice of that. JOHN PAUL STEVENS:
Well, then haven’t you admitted that there is some
potential causal connection between her admission
of homosexuality and the possibility that some
impressionable young student might decide that’s a
good example to follow? ARVID E. ROACH II: No. I don’t think that we
can take judicial notice that one of the respects
in which students try to imitate their teachers
is their sexual practices. JOHN PAUL STEVENS: Just
everything else except that. ARVID E. ROACH II:
Not everything else except that either. Not everything else
except that either. JOHN PAUL STEVENS:
Well how do we know there is this exception? ARVID E. ROACH II: Well, we have
expert evidence in this case. JOHN PAUL STEVENS: But
the district court didn’t credit that expert evidence. ARVID E. ROACH II: The district
court most certainly did. The district court
said the opinions were balanced on the privacy
question, which goes back to the quality of
homosexuality in general, that medical evidence that we’ve
talked about already tonight. They said “There was
no concrete basis,” in fact– that’s a quote– for any finding of sexual
influence on the students. JOHN PAUL STEVENS: On
these particular students. ARVID E. ROACH II: On these
students– on students. There was no evidence. There’s no evidence
in the record. There are two experts
that appellants called– JOHN PAUL STEVENS:
Would the case be different if
the record showed that there had been a
homosexual in some other part of the country
who was a teacher, and some student in that
class had decided to follow the teacher’s example? Would the case be any different? ARVID E. ROACH II:
The issue is, does the evidence of a
sexual influence rise to the level of– JOHN PAUL STEVENS: No, no. The question is,
can the school board rely on not yet
demonstrated concern that something might happen to
their children by this example? GERHARD ALDEN GESELL: You’re
being asked whether, wasn’t she fired too soon? That as soon as some
child became a homosexual in her class, then
they could fire her. ARVID E. ROACH II: No, I’m– GERHARD ALDEN GESELL: That’s
the question that’s being asked. ARVID E. ROACH II: I’m trying– I’m trying to apply
the principles of analysis and reason. I’m saying that if you– if you accord to the
state the power to say there is no evidence that X
harmful effect will occur, but this hypothetical
harm is great enough that the possibility
which we hereby posit is sufficient to take
action against you, then I think that you
have violated reason, if the state can’t point to
any causal mechanism for which any evidence exists in a
community of scientists as advanced as ours. And we had scientific
evidence in this case. And we’ve marshaled
lots more in the briefs. We cited a study done
in Buffalo, New York, on a unit on homosexuality in
schools, much more extensive than any discussion
in this case, involving taped discussions
by homosexuals themselves of the right to
practice homosexuality involving what was called
value clarification activities, which must have been the
same kind of discussion of pros and cons that
we saw in this case. And the conclusion
that that study came to was that there was simply no
basis for parental concerns that there would be any
impact on sexual or gender identity of the students. That’s the conclusion. That’s scientific evidence. JOHN PAUL STEVENS: Now again,
just so I can sort it out in my mind, is that evidence
that the court– the court makes such a finding? ARVID E. ROACH II: The court
made a finding that there– JOHN PAUL STEVENS: It
just made a finding as to these particular students
in this particular class, didn’t it? ARVID E. ROACH II: It also made
a finding that the possibility was not de minimis but that
it had not been established in this case generally– not
just in this case with respect to– JOHN PAUL STEVENS:
Would the parents have a right to be concerned
about a possibility that’s something more de minimis
but not demonstrable? ARVID E. ROACH II: No. The court looked–
the court referred to the decision of the District
Court of Maryland in Acanfora, and that decision
had said that there was some evidence– it canvassed
a lot of evidence, called a lot of witnesses–
that there was some evidence that a known
homosexual who was also an advocate, a homosexual rights
advocate, and who was teaching pre-adolescent
children might have a harmful effect on those
children’s sexual development. And that comports with what
we’ve said in this case, because we’ve analyzed the
ideology of homosexuality. We’ve agreed that it’s
not clear that it’s caused physiologically entirely. We’ve agreed that the early
childhood period is also significant in its causality. And therefore there
is a basis for concern about certainly aggressive
and probably known homosexual teachers teaching
pre-adolescent children. But that isn’t this case. And again, I just have to
be assertive in saying that if the state is allowed to
invoke what the Tinker court called an undifferentiated
apprehension or fear against any defendant– or any, as
we had, plaintiff, victim, if you like– then the state has no
limits on its action. And especially in a context
where we’ve presented reasoned argumentation that
for two different reasons the state has got to do better
than rational relationship. It’s got to reach the
compelling interest level. JOHN PAUL STEVENS: Well,
you mentioned no limits on the state’s action. What are the limits
on this court’s power if we buy your argument? When can we knock out any
tradition or any statute that we think doesn’t really
square with our views of what should be done in society? ARVID E. ROACH II: Well,
I think the discussion to this point in
the oral argument has missed a central feature
of the fundamental interest business. We are concerned here with
the dimensions of the right to privacy, not with
some abstract concern with where fundamental interests
might or might not pop up. And we spend a number
of pages in our brief pointing out that the court
has drawn lines and put things inside and outside
on a reasoned basis, and that since Griswold,
in the last 10 years, the lower courts have been
going great guns deciding privacy cases. And they’ve had a consistent
and principled understanding of what fits into
this right and what doesn’t fit into this right. JOHN PAUL STEVENS: Is that
principled understanding derived from the
Constitution in any way? What’s the limit on the
expansion of this concept? ARVID E. ROACH
II: It’s derived– JOHN PAUL STEVENS:
Does it include, for example, the right to have
a particular medical procedure performed, or a right to have
your husband in the operating room when the child is
born, something like that? ARVID E. ROACH II: Well, it
doesn’t include the latter. I remember the case. But– JOHN PAUL STEVENS:
Well, why not? It should, shouldn’t it? ARVID E. ROACH
II: I think I have to give a little bit
of a detailed answer to that in two steps. I’m hesitant to tell
you how many steps. But the first issue is, is there
an underlying constitutional commitment to the integrity
of the individual, to, as justice Brandeis called
it in Olmstead, the right to be let alone,
to human autonomy, at least when innermost,
most intimate, vital aspects of human individuality
are concerned? The second step is then,
is that consistent enough that we can put things
inside and outside a line? I don’t think the
problem is whether or not there’s constitutional
basis for it, because although there is some
disagreement where it lies, there is no disagreement
that it’s always been vital to Americans,
that it’s protected by the Third, Fourth, Fifth
Amendments, that it’s probably implicit in the Ninth Amendment,
and in the 14th Amendment concept of human
liberty, of autonomy, integrity, human liberty. Now, if we look to specific
decisions, pro and con, we have, as I’ve said, the
decisions of this court. We have additional
decisions, for example, in California Bankers
Association a couple of years ago. The court– not the court,
Justice Powell in concurrence, agreed with by
another four justices, including the dissenters, said
that financial transactions can reveal much about a person’s
activities, associations, and beliefs. At some point, governmental
intrusion upon these areas– JOHN PAUL STEVENS:
Well, Mr. Roach, how can you call
this a privacy case when the only disclosure was one
that your client made herself? ARVID E. ROACH II:
What I’m saying is that there are
broader principles. There are principles
of innermost importance as a human being. There are principles
of autonomy. There are principles
of not having the most vital aspects
of your humanity either revealed to everyone
else or invaded by the state. I’m saying that there
are consistent lines, and outside those lines
are commercialism, outside those lines are
force, outside those lines are harmful effects on
third parties, and possibly other things. The issue before this court is
deciding whether homosexuality can be rationally distinguished
from the principles underlying the privacy decisions to date. Whether other things fit in
or not can be decided later. GERHARD ALDEN GESELL: Aren’t
you overlooking that you’re talking about a teacher? ARVID E. ROACH II:
Well, yes, I am. I’m overlooking it in the
sense that whether she has fundamental rights
to privacy, which include the right to practice
her form of sexuality, doesn’t turn on whether
she’s a teacher. Then, if she’s a
teacher, and if that causes harms that outweigh her
rights, she can be terminated. GERHARD ALDEN GESELL: Well,
now, isn’t that clear? Isn’t it possible that the
status of the individual must place some restraints
on their exercise of their liberties? Supposing the faculty
of Harvard Law School decided that all of it
would teach the nude. [APPLAUSE] Wouldn’t the Harvard Corporation
have some concern about that? Now, they’re practicing
their liberties. And we can’t say that
anybody can stop someone from being a nudist. But the position
of teacher carries with it responsibilities. ARVID E. ROACH II: I don’t think
that the position of teacher is vital to that example. I think that the teacher I
mentioned of harmful effects on third parties is
one vital aspect. No court has held anything more
as regard to nudism, no lower court, than that there’s a
right to consensual practice of nudism among nudists, not
to go out and commit nudism with people who don’t
want to commit it. Secondly, quite
seriously, secondly, there is certainly an argument
that the Harvard overseers would have in terms
of teaching effectiveness. If it’s going to– GERHARD ALDEN GESELL: Isn’t
that all this case is about? The school board has
a pretty clear idea it’s not very effective to
have teachers standing up and saying, I’m a homosexual. These laws against
homosexuality are very bad. And we’ve got poor
moral standards. And your family has poor
moral standards in believing that homosexuality is bad. What’s the difference? ARVID E. ROACH II: Whether an
aggressive advocate position would be ineffective teaching
is not the issue in this case. I can revert to my statement as
to whether there was advocacy. Second of all, this
school board has not shown there was any ineffectiveness. They have ignored
the cases we cited, which held quite squarely–
a number of cases– that mere alleged
immorality can’t, in itself, mean ineffectiveness. You have to show a nexus to
some goal of the organization. GERHARD ALDEN GESELL: Even
in teaching of minors? Even in teaching of
adolescents and teaching of people that are not of age? ARVID E. ROACH II: If they
can’t show, as they have not, that the practices have
any impact on the students or have any undermining
influence on family life or have any other harmful impact
on the effective operation of the school, disruption
of discipline, et cetera, they haven’t shown anything
sufficient to terminate this teacher. We can’t allow public
organizations in this society which, in fact, employ some very
high percentage of Americans to decide who they are going
to give jobs to on the basis of some group’s concept of
what’s moral and what isn’t. That really reverts to the
vagueness issue in this case– that nobody knows
what immorality is. CARL E. MCGOWAN: Let’s
suppose the right to privacy, assume for a moment,
would operate to invalidate the
criminal statutes, making homosexual act
between consenting illegal. The decriminalization
of conduct doesn’t mean that that conduct,
in certain contexts, is not a desirable thing. The decriminalization of
gambling statutes, for example, doesn’t follow from that. And in some contexts,
people could be fired for gambling, even
though it’s perfectly legal. ARVID E. ROACH II: I
think that’s right. CARL E. MCGOWAN:
And the same here. ARVID E. ROACH II: Well, I
think I’ve conceded willingly that if any concrete
harm can be shown to flow from the practices,
then that harm has to be weighed in the balance. We think it’s a compelling
interest balance. GERHARD ALDEN GESELL: But
can’t you use common sense before the horse is stolen? Just like you say bank tellers
shouldn’t go to horse races. You don’t wait until that bank
teller has dipped in the till before you fire him. You keep him from
going to horse races. ARVID E. ROACH II: If you
have evidence suggesting a correlation, and
if that evidence satisfies a level of scrutiny
defined by the courts. We are addressing, A, the
issue of whether there’s any evidence of a correlation– GERHARD ALDEN GESELL: Well,
who’s to decide it better than the parents? ARVID E. ROACH II: The
parents are to decide whether there’s a harm. The parents are always
going to decide– GERHARD ALDEN GESELL: Yes,
they know there’s a harm. They protested it. ARVID E. ROACH II:
The parents are always going to decide that what
disagrees with their strongly felt moral views is harmful. GERHARD ALDEN GESELL: Right. ARVID E. ROACH II: Whether
that’s accurate cannot be left beyond any re-examination
by the judicial branch of our government. That’s the issue in this case. The parents do not have
a self-contained power. JOHN PAUL STEVENS:
Well, Mr. Roach, let me give you a
somewhat similar case. Supposing instead
of homosexuality we’re dealing with marijuana. And a teacher came
into the class and said she thought the
criminal laws relating to marijuana were all wrong
and they should be repealed– ARVID E. ROACH II: Yes. JOHN PAUL STEVENS: –and
made a strong statement to that effect, at least
a discussion of it. Then the following Monday
she came back and said, oh, I probably
should explain to you that I regularly and
habitually smoke marijuana. But I want you to
just evaluate– take that into account in
evaluating what I said. Could she be discharged? ARVID E. ROACH II: The first
issue would be– and this, again, goes forward to the
First Amendment analysis that my colleague will address– whether her discussion
of marijuana had anything to do
with the curriculum. JOHN PAUL STEVENS:
Well, assume it did. Assume she’s talking
about immoral laws, and the prohibition against
marijuana, she says, is an immoral law. ARVID E. ROACH II: Then
I see no distinction in terms of whether a harm– JOHN PAUL STEVENS:
But the point being that the parents
might be concerned that that example might increase
the probability that children in the class would want to
experiment with marijuana. Would that justify
her discharge? ARVID E. ROACH II: Understood. And we have the same two issues. We have the issue of
whether the harm exists, and we have the issue of what
level of harm has to be shown. We are not contending
in this case that the right to privacy– JOHN PAUL STEVENS: Let me
give you one more effect. Let me give you one more. In the trial of the case,
there is no proof whatsoever that any child was
persuaded to smoke marijuana as a result of this activity. But there was a trial
in a distant part of the country in
which one child was persuaded to smoke
marijuana as a result of this kind of situation. ARVID E. ROACH II: Well,
the facts themselves don’t produce a yes or no answer. If you’re applying a rational
basis level of scrutiny, it’s conceivable that that
would justify termination. It would depend on whether
there were sufficient analogies between the two places
and whether there is some concept of causal factors. I think rationality
means more than, frankly, some of the decisions of this
court in the economic area indicate it does. But we’re arguing that
more than rationality is required where privacy
interests are at stake. JOHN PAUL STEVENS: Well, but
smoking marijuana at home is a privacy interest, isn’t it? ARVID E. ROACH II:
I don’t think it is. I don’t think– JOHN PAUL STEVENS: Why not? ARVID E. ROACH II:
Because I don’t think it goes to the same level
of intimacy and significance to the individual– GERHARD ALDEN GESELL:
Makes for happy families. [APPLAUSE] ARVID E. ROACH II: I think– Let me take this opportunity
to respond to a previous point of Justice Gesell. The question was,
aren’t the parents the most competent to decide? And I submit to this court
that if the parents decided that any teacher who
exercised her First Amendment rights to advocate
certain values or to take certain
positions was thereby disqualified from
being employed, that would be overturned. It has been overturned. That’s what the balancing test
in Pickering was all about. JOHN PAUL STEVENS: In what
case has it been overturned? ARVID E. ROACH II: That’s what– I’m sorry, that’s what the
issue was in Pickering, and that’s what the balance– JOHN PAUL STEVENS: Did
Pickering involve discussion in the classroom by a teacher? ARVID E. ROACH II: No. But what was positive
by Justice Gesell was, the parents are
the competent ones to decide, a priori
across the board, what goes to teaching confidence. And I submit that’s not
the end all of the issue. Are there constitutional
rights being infringed by that decision,
is the second question you have to ask. JOHN PAUL STEVENS: Well, the
question I was asking really wasn’t concerned with
the First Amendment right to teach in the classroom,
but rather the question of the causal connection
between the parents’ concern of impact on
students by reason of the teacher’s example. And I’m wondering if there’s
any different causal connection issue in the
marijuana hypothetical I gave you, as opposed
to the homosexual example we have before us. ARVID E. ROACH II:
I think you just have to go and find out whether
there’s any evidence, expert testimony that can be taken
judicial notice of, witnesses that can be brought in, analysis
of causal relationships. If it’s credible to believe
that everything a teacher says or does is going to proselytize
inherently or implicitly her students or his
students, then I think we’re in
serious difficulty as far as any academic freedom
and any personal freedom of teachers in this country. My time is up. I thank the court. JOHN PAUL STEVENS:
Thank you, Mr. Roach. [SIDE CONVERSATION] JOHN PAUL STEVENS: Mr. Johnston. MARC JOHNSTON: May
it please the court. As Mr. Roach said, I would like
to address the First Amendment issues in this case
and then hold myself open to take any
questions you may have on the jurisdiction
of the court below to grant the relief
which it did. Let me begin by stating
that contrary to Appellant’s assertion, we do not contest
the power of the school board to prescribe the curriculum
of the public schools. Our position is simply
that while it may prescribe the curriculum, the First
Amendment places limits on the board’s power
of control over what is said in the schools
by a teacher who is, in fact, teaching
the curriculum she has been assigned to teach. Nor do we dispute that
the school board has important interests
at stake in what occurs in the public
schools and that there must be a balancing between
the teacher’s First Amendment interests and the school
board’s legitimate interests. JOHN PAUL STEVENS: Let me
just be sure I understand you, Mr. Johnston, on that. You, then, concede
that the school board may limit to a certain
extent what the teacher may say in the classroom. MARC JOHNSTON: We
agree that the school board can decide whether or
not to teach social studies. And if they decide not
to teach social studies, a teacher has no right to
demand under the First Amendment that she be allowed– JOHN PAUL STEVENS: Well, if they
decide to teach social studies, can they limit what she
says about social studies in any way? Well, MARC JOHNSTON: Your honor– JOHN PAUL STEVENS:
As long as it’s tangentially related
to social studies, she can say anything
she pleases? MARC JOHNSTON: Not necessarily. That’s where we get
into the balancing test. JOHN PAUL STEVENS: Well, how
do we draw this line now? It’s a line, I take it, we draw
based entirely on the content of what she says. Your opponents seem
to agree to that, and I guess you agree too. MARC JOHNSTON: Not necessarily. I don’t think they
had to allow their– CARL E. MCGOWAN: If a
school board doesn’t need to offer social
studies at all, can it not attach
conditions to teaching social studies if it decides to
have a social studies program? MARC JOHNSTON: As
I say, your honor, that’s where we get
into the balancing test. A teacher’s First
Amendment rights must be weighed against the
school board’s interests in deciding what is to be taught
and how it’s to be taught. And we would submit that this is
a balancing test as appellants have argued, but that when
the teacher puts her First Amendment rights into the
balance, rights which weighs heavily as any in our
constitutional system, a heavy burden is placed
upon the school board to circumscribe her
exercise of those– justify circumscribing her
exercise of those rights. We submit that the Tinker
test, that test laid out by this court in Tinker, sets
out the model of this burden that they must bear. They must show that her exercise
of her First Amendment rights are disrupting the
educational process. They must show that because the
teacher has said something– has, in this case, uttered
her opinion on a subject– what she’s supposed to
teach isn’t being taught. The students have been
embarrassed, upset, classroom discipline
has been threatened, or that she has
abused her position– JOHN PAUL STEVENS: Well, do
you mean that the school board cannot eliminate sex education
from the curriculum unless they’re convinced it
would disrupt the class? MARC JOHNSTON:
Your honor wouldn’t be referring to the Mercer case
cited by appellants, would he? JOHN PAUL STEVENS: I haven’t
read the Mercer case. MARC JOHNSTON: Well– CARL E. MCGOWAN: Court
doesn’t answer questions. It asks them. MARC JOHNSTON: Yes. Your honor, I agree that a
school board could determine to have a sex
education class or not to have a sex education class. JOHN PAUL STEVENS:
Well, could they determine to eliminate
the discussion of any sexual education
in a social studies class? Could they say,
that’s probably not a part of that broader subject? And could they take
it more precisely? Could they say,
we don’t want you to say anything at all about
homosexuality in whatever class you teach? MARC JOHNSTON: No, your honor. We do not believe they
could consistently with the First Amendment. If what the teacher says about
sex education or homosexuality has a proper place in
teaching the subject she was assigned to teach–
if it’s not something that’s just totally off the wall that
she’s drug in because she’s interested in it, and if it
is not done in such a way as to disrupt the
educational process, to subvert the
legitimate goals which the school board has set out. JOHN PAUL STEVENS: What
is your authority for, Mr. Johnston, any
decision by this court that holds that the teacher
has any First Amendment right with regard to what she
may say in a classroom context? MARC JOHNSTON: Well,
I start with Tinker, which says that teachers,
just as students, do not leave their First Amendment
rights at the schoolhouse door. I would go on to Epperson. Although that was technically
grounded on the Establishment Clause, I think we can
say that the Establishment Clause isn’t the only thing
in the First Amendment. There’s been dicta coming
down from this court for a good many years
now, saying that teachers do have First Amendment
rights, calling that the right to academic freedom,
that those rights extend into the classroom,
and that they are of value, and that a heavy
burden exists when those rights are to be infringed. Now, I admit that a
lot of that is dicta. But the question isn’t
whether it’s dicta or not. It’s whether it’s true or not. And I would submit that there
is no better case in which to decide that it is true and
that it should be applied than the case here, because here we
have a case where everything said was highly relevant–
“undeniably relevant” was the phrase used
by the court below– to the subject the teacher
was assigned to teach, where everything said was said
in a modulated and appropriate manner. That’s also the finding
of the court below. JOHN PAUL STEVENS:
Well, if she had said “I’m a
prostitute,” could she have had a First
Amendment right not to be discharged for that statement? MARC JOHNSTON: Your honor, it’s
not a simple absolutist test. It’s not “you can say this
and you can’t say that, and that’s the end of it.” You have a right to say things. But then we have to
look and see what the effect is when you say it. We have to see if you
embarrass the students, if you disrupt the
educational process. JOHN PAUL STEVENS:
Well, say there’s no evidence of embarrassment
in the case I put. MARC JOHNSTON: There’s
no evidence here either, your honor. GERHARD ALDEN GESELL:
I don’t understand the embarrassment proposition. Some of the best teaching
is going to embarrass. MARC JOHNSTON:
Again, your honor– [CHUCKLING] GERHARD ALDEN GESELL: I don’t
understand the trouble with it. MARC JOHNSTON:
Again, your honor, I couldn’t agree with you more. It is not an either/or,
absolute test. GERHARD ALDEN GESELL:
Well, why are you taking such a narrow point of view? In this court on the
First Amendment– MARC JOHNSTON: Your honor– GERHARD ALDEN
GESELL: You’re taking one of the most
narrow points of view that this court has ever
heard from an advocate dealing with First Amendment rights? Why hasn’t she got
an absolute right to say what she thinks
about homosexuality, if it’s within the
curriculum, as it is? MARC JOHNSTON: I don’t
believe this court has seen any right, including
First Amendment rights, no matter how important they
are, as ever being absolute. There’s always got to
be some way to process. GERHARD ALDEN GESELL:
Well, take the broad view. Why can’t she talk about
homosexuality or Vietnam or marijuana or nudity or
any of these things we’ve been talking about? Who is to say she can’t? JOHN PAUL STEVENS: And
taking it a step further, if there’s a
constitutional right to practice homosexuality,
why shouldn’t she be permitted to
advocate openly and urge the members of the
class to practice or to exercise their
constitutional rights? MARC JOHNSTON: I don’t like to
make appellant’s case for them, your honor, but just out
of some kind of sense of professional
integrity, I will. It seems to me, as I said,
that the school board has any number of legitimate
interests in what goes on inside the classroom. JOHN PAUL STEVENS: Well,
let me just rephrase the question a little bit. I’m really asking why, if she
has the constitutional right that your partner contends
she has, why should there be a First Amendment
objection to her advocating that her
students exercise that constitutional right? MARC JOHNSTON:
Because, your honor, a teacher who attempted
to indoctrinate her students into thinking
in one particular way, whether that way
is popular or not, is a teacher who has abused
his teaching position. And when a teacher abuses
his teaching position, no matter what First
Amendment rights he has, perhaps
probably, I think, the school board
has a valid reason for discharging that teacher. But that is not the case here. GERHARD ALDEN
GESELL: Well, now are you saying that because
they’re adolescents? Or are you saying that our
teachers just never can do it? That a teacher never can
take a point of view? MARC JOHNSTON: Your honor– GERHARD ALDEN GESELL:
Is it because you can’t take a point of
view with adolescents or that you can’t take a
point of view with anybody? That Harvard Law School
can’t teach a point of view about the role of the Supreme
Court or a point of view about the rights of prisoners? MARC JOHNSTON: I believe
they can, your honor. GERHARD ALDEN GESELL:
Well, then what’s the– MARC JOHNSTON: I think
it comes down to the fact that there is no
hard and fast line. There is no either and or. You have to look at the facts. You have to see, did the
teacher abuse his position here? Did he subvert what was
supposed to be going on. JOHN PAUL STEVENS: But Mr.
Johnston, has this court ever held that there is a subject
of discussion protected by the First Amendment in which
a particular point of view may not be advocated? MARC JOHNSTON: No, your honor. JOHN PAUL STEVENS:
Well, then you have an entirely unique
proposition you’re asking us to adopt tonight. GERHARD ALDEN GESELL: First time
in the history of the court. MARC JOHNSTON: No,
your honor, that’s not what I’m asking you to adopt. I think that that is perhaps the
most fatal flaw in the standard which appellants
have set up to try to limit Appellee’s exercise
of her First Amendment rights. The standard they
have set up is, we will not allow you to
express any point of view that undermines parental values. In other words, they have
taken a standard of community orthodoxy and said,
anything that you say that doesn’t fall
within this standard you can get discharged for it. And it’s that kind
of favoritism– JOHN PAUL STEVENS: Yes,
but their standard, as I understand, their
real fair reading of the parental values
standard, as narrowed by the way this school
board went about it, is anything that violates
a statute enacted by the legislature which
condemns a certain practice. CARL E. MCGOWAN: A sexual
practice, we’ll say. MARC JOHNSTON: I think
they might like to limit their standard that way. That’s not what they
fired Appellee for. They said, “including but
not limited to talking about homosexuality.” Anything that works to undermine
parental values you can get fired for. That’s what they
fired Appellee for. JOHN PAUL STEVENS:
Yes, but the only thing that this record describes that
undermined parental values is something expressly
prohibited by a statute that’s been on the books for
years and years and years. And you mean to say a
teacher has a First Amendment right to advocate the
violation of a criminal law to its students,
to her students? MARC JOHNSTON: I think a teacher
has a First Amendment right to express her opinion
that the law is wrong. I think we all have that right. Now, I don’t think the
teacher has the right to try to indoctrinate
her students into her political or
social or moral attitudes. But I think she has the right
to tell her students what those attitudes are
so long as it comes up in the course of
what she’s supposed to be doing in the classroom. I think that’s
what happened here. And I think that because
that’s what happened here, Appellee was
unconstitutionally discharged. GERHARD ALDEN GESELL: Can she
teach and advocate respect for fathers and mothers? MARC JOHNSTON: I
think she can express her opinion that we
should have respect for fathers and mothers? GERHARD ALDEN
GESELL: Well, she’s indoctrinating that, isn’t she? MARC JOHNSTON:
There’s a difference between indoctrinating
and expressing your opinion, your honor. What Appellee did here was– GERHARD ALDEN GESELL:
Suppose she says, I never respected my father
and mother, but you all should. MARC JOHNSTON:
That’s her opinion. That’s fine. When she starts
taking 45 minutes out of the 45-minute class
instead of 8 to 10 and using all that time to say,
respect your father and mother, respect your father and mother,
over and over and over, when she starts flunking students
because on the exams they turned back to say, no,
I don’t respect my father and mother, when
she starts saying there’s only one point of
view and all others are wrong, then she’s abusing her position. But that’s not
what happened here. She said, here’s
my point of view. Other people disagree. I’m biased. So keep that in mind when you’re
assessing my point of view. And she took a tiny
fraction of the class time she was assigned to use. And everything she said came up
in the context of her teaching exactly what the textbook
told her to teach, inquiring into what
law is, why we have it, what is the duty of obedience. Now, I don’t see how she
abused her position here. I think that’s why what
she did is protected by the First Amendment. Again, not an
absolutist analysis. There are a lot of
legitimate interests the school board could invoke. None of them are
present here, though. JOHN PAUL STEVENS:
Mr. Johnston, I wanted to inquire as to
whether there was jurisdiction in this case to order back pay. As I read your brief, you
argued that the school board was a person within the
meaning of the statute. But you didn’t really
meet the grounded decision that the district
court relied on for refusing to grant relief
against the school board. MARC JOHNSTON: Your
honor, the reason we raise this issue at all
and the appellants didn’t, questioning our
own jurisdiction, is because we read the opinion
of the court below on it as being extremely confused. In one breath, the
court below granted us back pay and in the
next it denied us damages. It denied us damages
because it said it didn’t have jurisdiction
under 1983-1343 because the school board wasn’t
a parent, it wasn’t a person. And it denied us
damages because it said we could not state a
Bivens-type cause of action and invoke 1331 jurisdiction. JOHN PAUL STEVENS: What
was the argument that the– why did the district court say
there was no Bivens-type cause of action here? MARC JOHNSTON: I believe
the primary argument made by the court below was
that since we had 1983 and that seemed to
extend liability to organs of state government– JOHN PAUL STEVENS: And since
the legislature had acted, that more or less preempted– MARC JOHNSTON: Right. Exactly. JOHN PAUL STEVENS: –an implied
constitutional cause of action. Well, what’s the
response to that? I don’t think you responded
to it in your brief. MARC JOHNSTON: I
think the response has got to be that
when you’re talking about constitutional rights
and the protection of them, you don’t infer preemption. Congress hasn’t preempted
anything by passing 1983 unless it does so explicitly. And I would say that
there is a good reason why we can have a
Bivens-type jurisdiction cause of action right alongside
a 1983-type cause of action. And that is simply
because you’ve got $10,000 in controversy
jurisdictional amount bar to a Bivens-type
cause of action. You don’t to a 1983-type
cause of action. Therefore, maybe it
makes sense to expand the number of possible
defendants for violations. GERHARD ALDEN
GESELL: Couldn’t we have equity jurisdiction
in any constitutional case? Why do we have to read
all those statutes? We have equity
jurisdiction, don’t we? MARC JOHNSTON: Certainly
the court can do– GERHARD ALDEN GESELL:
Equity can do what’s right, and isn’t it right
to give back pay? MARC JOHNSTON: Your
honor, that argument’s been made by a lot of courts. I don’t think it’s
tenable anymore after the decision of this
court in City of Kenosha– GERHARD ALDEN GESELL: Why not? MARC JOHNSTON: –in which
Justice Rehnquist held that the attempt– JOHN PAUL STEVENS: Well, Justice
Rehnquist didn’t hold anything, did he? The court held something. MARC JOHNSTON: Justice Rehnquist
speaking for the court. I’m sorry. At any rate, what
he said there was– JOHN PAUL STEVENS:
What the court said. MARC JOHNSTON: I am– I am sorry. I wasn’t sure you wanted to
be identified with it or not. [APPLAUSE] I apologize for that. What the court said
was that the attempt to rationalize giving
retroactive monetary relief as just another form
of equitable relief just wouldn’t do. The court said, it comes
out of the treasury. It’s the same thing as damages. It’s not equitable relief. Now, maybe Kenosha was right. Maybe Kenosha was wrong. But it stands there,
and I don’t think we can just say, well,
giving back pay was a form of equitable damages. CARL E. MCGOWAN: Isn’t
there an 11th Amendment problem involved here? MARC JOHNSTON: No, your
honor, there isn’t. Again, referring to
the Kenosha opinion. Municipalities are not states
for 11th Amendment purposes, and a school board would be
on the level of municipality. That’s just precedent–
hundreds of years old and over 100 years old. But that’s the answer. JOHN PAUL STEVENS:
Your distinction on whether a municipal
corporation is a person or not turned on
whether they had the responsibility
for maintaining order, as I remember it. MARC JOHNSTON: No, your honor. What we said is that the
reason that municipalities have been determined
not to be persons within the meaning of 1983– Monroe v Pape did that,
made that decision– is that Congress rejected
something called the Sherman Amendment back when
it was passing all the Reconstruction legislation. The Sherman Amendment
would have specifically made municipalities
vicariously liable for breaches of the peace committed
within their jurisdiction. Congress rejected this. The Supreme Court
in Monroe v Pape interpreted this
rejection as Congress expressing its opinion, its
desire, that municipalities not be persons for 1983 purposes. Now, we have argued two
things in response to this. First, that the court was
incorrect in Monroe v Pape, that you just can’t read
the rejection of the Sherman Amendment that way. What Congress objected
to in rejecting this– in rejecting the
Sherman Amendment– JOHN PAUL STEVENS: What’s
your second argument? Let’s assume we’re
bound by Monroe v Pape. How do you distinguish it then? MARC JOHNSTON: I think
the second argument has got to be that even if
municipalities are not persons for 1983 purposes,
there’s a distinction between a municipality
and a school board. A school board
who are not trying to hold vicariously liable for
the actions of someone else, but who are trying to hold
liable for its own actions. The courts below,
the lower courts, are split on the question
of whether a school board is a person for 1983 purposes. JOHN PAUL STEVENS:
Is that the argument you made in your brief? MARC JOHNSTON: Yes
sir, your honor. If I could refer you to– let me get the page– page 41, footnote 36. We point out the lower
courts are divided. This court has taken action
consistent with the holding that school boards are persons. We refer you to your decision
in Cohen v Chesterfield County. But you have admittedly
reserved the question in Mayor of Philadelphia. You refused to decide
it at that time. Now, this is all in
spite of Monroe v Pape. This is not attempting
to overrule Monroe v Pape, simply to distinguish it. JOHN PAUL STEVENS:
Well, but on page 43, you went on to say that the
argument for such vicarious liability was that such
local government units had, as Representative Shellenberger
said, an affirmative obligation to keep the peace,
and that that was the distinction between a
municipality and something like a school board. And I was wondering
if the school board doesn’t have any
obligation to keep the peace in the classroom. MARC JOHNSTON: Well, not under
the Virginia Constitution it doesn’t, your honor. It has a duty to establish
schools and run schools. Keep the peace in the classroom,
I think, is playing word games. JOHN PAUL STEVENS: Well, I’m
just using your words is all. MARC JOHNSTON:
What Congress was– [CHUCKLING] What Congress was concerned
with in the Sherman Amendment was the idea that since
municipalities have a duty, or Congress thought maybe it
could impose a duty on them, to keep the peace,
to protect people from civil disorder,
when someone was the victim of civil
disorder, of crime, the municipality had
failed to do its duty and therefore should be liable. Now, that’s all the Sherman
Amendment was about. Congress decided that
just wouldn’t do. It wasn’t sure it had the
constitutional authority to create that
kind of liability, and it knew that that
kind of liability would be ruinous to
municipalities, many of which didn’t even have police forces
at the time in question. JOHN PAUL STEVENS: Mr.
Johnston, did you cross appeal on the person issue? MARC JOHNSTON: Did we cross
appeal on the person issue? We do have it in our
brief, your honor. I guess that’s a cross appeal. JOHN PAUL STEVENS:
Is that adequate? It Putting it in your
brief, is that enough to give us jurisdiction
to decide the question? MARC JOHNSTON: I
believe, your honor, that this is the kind of
question the court could raise sua sponte. That’s why we put
it in our brief. We were afraid if we didn’t
put it there you’d bring it up, and we’d have nothing to say. I’m not sure whether the
person requirement in 1983 is properly a jurisdictional
consideration. To me, it sounds like a cause
of action consideration. But again, referring
to Kenosha, it was treated as a jurisdictional
consideration there. The court raised it sua sponte. OK. The alternative basis
for jurisdiction is under 28 USC 1331, with a
Bivens-type cause of action. Now, it seems clear from this
court’s decision in Bell v Hood that we’ve got
1331 jurisdiction. We have alleged a non-frivolous
federal claim, arising directly under the US Constitution. The only question, and the
question the court below decided against us
on, is whether we can have a Bivens-type
cause of action– that is, a cause of action arising
directly from the Constitution. Our argument here has
been that there is simply no principle basis for
limiting Bivens to redress of 4th Amendment violations. This court has been very
free in inferring remedies for violations of
constitutional rights. There is nothing inherent
in the logic of Bivens that limits it to the 4th Amendment. And we think the
constitutional rights violated here are as important as the
4th Amendment rights which Bivens attempted to protect. Bivens outlined
two considerations which might counsel a
court against inferring a constitutional
cause of action. One would be the fact– one would be the fact that
there might be some policy considerations,
considerations of prudence, considerations of
federalism, which might make it
inappropriate for the court to create a cause of
action arising directly under the Constitution. JOHN PAUL STEVENS:
Well, Mr. Johnson, if your argument
is correct, am I correct in believing that the
only significant of section 1983 is it eliminated the
$10,000 jurisdictional amount requirement for
civil rights claims? MARC JOHNSTON: I would argue
that that is probably not the only significance of it. I’d say that’s half of it. The other is that it established
the color of law theory, which I think arguably extends the
reach of the 14th Amendment beyond just activities
that are actually committed by the state and its
agencies to activities that are committed by private
people under color of law. I think that’s a
valid distinction. JOHN PAUL STEVENS:
Well, if that’s a valid distinction, what about
the defendants in the Bivens case itself. Weren’t they accused of acting
of color of law in substance? MARC JOHNSTON: They
were federal agents. JOHN PAUL STEVENS:
Federal agents, but weren’t they– they
were not authorized to do that which was accused
to be wrong in that case, were they? MARC JOHNSTON: Well,
1983 doesn’t apply to under color of federal law. JOHN PAUL STEVENS:
No, I understand. But what I’m saying is, if
the constitutional claim is an original source
of the cause of action, isn’t it broad enough to
cover an agent merely acting under color of law,
as the FBI agents were alleged to have done in Bivens? And if it’s broad
enough to cover under color of law
in the 4th Amendment, why not under the
14th Amendment? MARC JOHNSTON: The answer
is, your honor, I don’t know. I don’t know. The Bivens theory of a cause
of action arising directly from the Constitution
just hasn’t been developed far enough. Perhaps this court will
be willing to extend it to actions taken
under color of law as well as actions that
are directly perpetrated by the state and its agencies. But if that is so, I would
suggest that it’s probably so because we have a
long history of 1983 litigation which
already paves the way for that kind of a theory. In conclusion, then, your
honor, I would like to say that we’d like to ask this court
to affirm the decision of the court below,
but we can’t. When it was granting
relief, the court below denied us attorneys fees. Since that time, Congress
has passed the Civil Rights Attorney’s Fees
Act of 1976, which indicates that Congress
has established a policy that attorneys
fees be awarded in actions such as this. The act is retroactive. Therefore we would
urge this court to remand the case
for consideration of whether attorneys fees– CARL E. MCGOWAN: You
don’t want to explore all the considerations
that bear on retroactivity versus non-retroactivity? MARC JOHNSTON: Not really. GERHARD ALDEN GESELL:
In your remaining time. MARC JOHNSTON: Not really. My understanding is that the
legislative history of the act indicates Congress wants it
to have retroactive effect. I would urge this
court to follow that legislative history. Of course, it’s up to
you to interpret the act. Thank you very much. JOHN PAUL STEVENS:
Thank you, Mr. Johnston. The court will take the
case under advisement and– GERHARD ALDEN GESELL:
There’s a rebuttal. JOHN PAUL STEVENS: Oh,
is there a rebuttal? Pardon me. I’m sorry. Mr. Schiffman, is it? MARC JOHNSTON: Sorry about that. JOHN PAUL STEVENS:
Mr. To Schiffman. I didn’t mean to deprive you
of your First Amendment rights. DAVID M. SCHIFFMAN: The Appellee
is entitled to attorneys fees only if she should
prevail in this action. And there are
several reasons why I believe that she will not. In terms of the
academic freedom issue, the appellee’s argument
that she is entitled to select any relevant
teaching method is deeply disturbing to
us as a school board. We’re not sure if that means
that she can teach the New Math if we want the Appellee
to teach the old math, and we’re not very
sure exactly what she means by a teaching method. The reason why we find
her claim very disturbing is that she has a
captive audience. The coercive power
of the state has been used to bring Appellee’s
students into the classroom. They must listen to her. And I think that the state
has a legitimate interest in dictating to a
substantial extent what goes on in the classroom. We believe that the parents’
constitutional interest to direct the moral
upbringing of their children does not end at the
schoolhouse door. GERHARD ALDEN GESELL: Or
begin there, doesn’t it? In there, what’s it got
to do with the schools? DAVID M. SCHIFFMAN:
I think the parents have a substantial interest in
what goes on in the schools. GERHARD ALDEN GESELL:
Don’t the taxpayers have a greater interest? DAVID M. SCHIFFMAN:
That is true. And I don’t see the taxpayers’
interest as particularly distinct from the parents’
interest, at least with respect to the
issues in this case. I also think that
constitutional lines can be drawn with respect to
what goes on in the classroom. First of all, we
believe that a teacher has no constitutional
right to advocate positions which are contrary to the
moral and legal values of the community. At least that’s true in high
school and in the lower grades. I don’t think that
anyone would seriously contend that a second
grade teacher has a constitutional right to parade
her homosexuality in front of the class or to advocate
legalization of heroin. A line has to be
drawn somewhere. And we believe that this court
has drawn a constitutional line in between high
school and college in terms of the religious
cases upholding certain types of federal aid to colleges– JOHN PAUL STEVENS:
Well, you concede, then, that this teacher could not
have been discharged if she’d been teaching a college class? DAVID M. SCHIFFMAN:
The case would have been considerably
more difficult, and I’m not sure if we
would prevail there. I think we will here. A second constitutional
line which can be drawn is the line which was
drawn by Mr. Justice Black, a strong proponent
of First Amendment values, when he said that he saw no
constitutional difficulty at all in removing an emotional
or controversial subject from the classroom. And that’s all that
the school board has tried to do in this case. In terms of the school
board’s interests in removing the appellee
from the classroom, the appellee has raised the
fact that we had not brought up any evidence showing
that any of her students has yet suffered impaired
sexual development or had an impaired
sexual orientation. Of course, that does not refute
the existence of a danger that her future students or her
current students in the future could suffer impaired
sexual development, nor as Mr. Justice
Gesell pointed out, should we be forced to wait
helplessly until someone does suffer impaired development as
a result of Appellee’s continued employment. The state has a
solemn obligation to safeguard its
children from abuses. Finally, I would like to add
that the school board should not even try to demonstrate
that any particular student has suffered impaired
sexual development. I’m not exactly sure
what the appellee would have us do, whether
the Appellee wants us to subject students
to cross-examination about their sexual orientation. This sort of evidence
is very difficult to prove in the individual case. That is because the
causes of homosexuality are very subtle and not
very easily understood. But there is a substantial
body of thought which suggests that a
homosexual teacher could influence students, could
impair their sexual development. Dr. Alfred Vanderbilt
testified in the trial below that when a
teacher is respected, students will accept
all of that teacher and all of her attributes,
as I pointed out previously. They would accept for themselves
the idea that it is all right to be a homosexual. In addition, there is a
substantial psychological literature which
supports our position. Dr. William Galen of
the Columbia University Psychoanalytic Clinic, who we
quote in our principal brief, says that when an authority
figure permits a practice, that is almost tantamount to
approval and perhaps even to seductive encouragement,
that what the law does counts and what authority
figures say count. And when they say that
a practice is permitted, they may mean that
it’s acceptable or even improved, or at
least a young person could so understand that. CARL E. MCGOWAN: Aren’t
you now in the area that the district court
said in Its judgment, having heard the evidence,
that the problem was very close balance? DAVID M. SCHIFFMAN:
Well, the evidence in the district court
presented by the appellee was not really directed
at the question of the impact of a known
homosexual in the classroom. Rather, it was directed at the
question of whether homosexuals can make good teachers. And it did not, as I
read the testimony, discuss the question
of what happens when the students know that
the teacher is a homosexual? What happens when she tells
them that she is a homosexual? But in any event,
I do not believe that either this court
or the district court should try to resolve
complex scientific questions of this nature. With all due respect,
I don’t think the courts have the
institutional competence or the expertise to decide
these sorts of questions, nor do I think that these
overarching scientific questions in support
of a state policy should be decided
under the clearly erroneous standard with
respect to a district court. I think that would
give the district courts too much
power with respect to overall scientific
provisions. Either– JOHN PAUL STEVENS: Your
argument, as I understand it, is that as long as there is
some evidence in the record, we must recognize that
there is a rational basis for the premise. And therefore, then,
that’s all you need. DAVID M. SCHIFFMAN: Well,
whether one characterizes the standard as a fair and
substantial relationship or substantial evidence from
which the school board could reasonably conclude,
I think that’s all we think that we have to meet. Either under the compelling
state interest test or under the rationale
relationship test. JOHN PAUL STEVENS: Well,
under that analysis, wouldn’t it be possible
for a school board to discharge a teacher
for teaching evolution, as long as they
could get some expert witnesses to come in and testify
that Darwin was all wrong? DAVID M. SCHIFFMAN:
The question is not whether Darwin was
right or wrong, but whether it would impair
the students in any respect. The question also is whether– JOHN PAUL STEVENS:
Well, but the test is whether there is some factual
support for the board’s action, as I understand you. And you’re asking us to rely
on evidence that the district court said wasn’t conclusive. But the mere existence
of the evidence shows there’s a rational
basis, as I understand you. And that seems to me would let
anybody win a case by getting the right witness to
come in, and then you’ve got some kind of
a rational basis. DAVID M. SCHIFFMAN: I’m
prepared to accept a tougher standard than that, your honor. When the evidence is
really closely balanced, if one accepts the district
court’s finding that it’s 50/50 either way, then I
don’t see any real reason for the court to intervene. Instead, it should defer
to the educational experts and not substitute
its own judgment. This is more than just
a scintilla of evidence. This is evidence balancing out. And under those
situations, I think the court should defer, just
as the court in the Buckley v Valeo case did not
try to scrutinize all of the evidence in terms
of corruption and impairing the integrity of the
political process, but instead deferred
to Congress, even though fundamental
rights were involved. Finally, turning to what I think
is the most important issue, the privacy issue,
I’m struck by the fact that the appellee has
offered this court no source of constitutional
doctrine other than the subjective values
of individual judges. In asserting that there
is a fundamental right to engage in
homosexual practices, Appellee does not rely
on any specific provision of the Constitution– [NO AUDIO] –that adults have a
constitutional right to engage in
homosexual practices. But even if they do,
appellee has no right to continue teaching,
when in so doing she might impair the sexual
development of children. This case is not about
Appellee’s private sexual life. We have not– GERHARD ALDEN GESELL:
I don’t understand how you say that their sexual
development is impaired in they learn about homosexuality. DAVID M. SCHIFFMAN: It’s not
learning about homosexuality that we object to. It is the fact that
an authority figure admits to being a homosexual. GERHARD ALDEN GESELL: How does
that impair sexual development? DAVID M. SCHIFFMAN: We
think that there are– Dr. Irving Bieber suggests
that 10% of all boys enter adolescence with
homosexual potential, and that what they need is
reinforcement of moral values telling them that it is– GERHARD ALDEN GESELL:
Well, wait a minute. You’re talking moral values. You’re not talking impairment. They may have greater sexual
satisfaction in homosexuality. DAVID M. SCHIFFMAN:
I’m not referring, your honor, to satisfaction. GERHARD ALDEN
GESELL: Well, you’re talking about impairment
of sexual expression. DAVID M. SCHIFFMAN: May I
answer your honor’s question, even though the time has ended? GERHARD ALDEN GESELL: Yes. DAVID M. SCHIFFMAN:
Dr. Bieber says that a substantial
number of boys enter adolescence
in a state where they could become homosexuals
and they might not, depending upon what
they are exposed to. GERHARD ALDEN GESELL: Mm-hmm. [INAUDIBLE] DAVID M. SCHIFFMAN: If they
are exposed to teachers– [LAUGHTER] I’ve gone through 35
minutes without a word slip. I’m sorry. JOHN PAUL STEVENS:
Thank you Mr. Schiffman. DAVID M. SCHIFFMAN:
I thank the court. JOHN PAUL STEVENS:
Your time has expired, and the court will take a
brief recess in order to decide the weighty issues at hand. [APPLAUSE] [SIDE CONVERSATION] JOHN PAUL STEVENS: Although
the clock might not reveal it, we’ve actually been
deliberating for several hours and found the issues most
difficult to resolve, and therefore we will
not resolve the merits. With respect to the
presentation of the case, we first should say that
we’re unanimous in having a very high regard for the
caliber of the presentation by both sides, which
includes both the written and the oral presentation. We thought it was exceptional. I should also say that
the task of judging the quality of the advocacy
in a matter such as this is one that has
always troubled me. I’ve sat on other
moot courts before, and it’s inevitable
that the questioning of the different advocates is
uneven to a certain extent, because the judges
interrupt one another and get interested in
a line of questioning. And so inevitably some advocates
have a better opportunity than others to
display their talents, and that can just sometimes make
the result to a certain extent fortuitous. But we were all very
favorably impressed both with the way the
counsel handled themselves and addressed the court
and responded to questions, even though they were
interrupted and divided into subparts and
one thing or another. But our conclusion on the
winner– on the overall winners is that we’re
persuaded that weighing both the briefs and
the oral argument that the appellant is
the prevailing side. [APPLAUSE] And on the specific, that the
best oral presentation– which, again, was a terribly
difficult decision– we have unanimously agreed
that Mr. Schiffman was the– [APPLAUSE] Now I’d like to ask my
colleagues on the bench to make a comment or two. CARL E. MCGOWAN: Well, perhaps
the best comment I can make is that this is the best
argument I’ve heard today. And that may mean
more than you thought, because I heard five
others this morning. I think it’s really quite
a remarkable performance and the presence and skill with
which all four of the counsel performed for us. And I think I
congratulate all of them on this fine performance. I’d like to say one word. I think one of the reasons
that the performances here are so good is due to the fact
that the Ames competition gets such tremendous support from
the law school community. This is my third time I’ve been
here on the Ames competition, and I keep thinking that
surely the next time there won’t be a turnout that fills
the whole room and the aisles as well. And I think that the
reason the performances are, from year to year, so
good is due in large part to this tremendous support which
the law school community gives to the Ames competition. And I want to congratulate
both the students who run the competition
and the audiences who add so much to it, for
what has been a very enjoyable experience for me. GERHARD ALDEN GESELL: This
is the first time I’ve ever been to Harvard Law School. [APPLAUSE] Literally the first time. And I certainly want to agree
with Judge McGowan’s comments. I think that I tend to agree
with what Justice Harlan used to say, that the best arguments
are made at the district court level, the next best at the
level of the court of appeals, and that the worst
arguments that are made are made in the Supreme Court. That was certainly my
experience over quite a period of years at the bar,
and I think it’s the experience of many others. Appellate argument is difficult
with the tendency of the judges to show off, as
we all did today. And in addition–
in addition, it confronts a great
number of restrictions that aren’t perhaps as apt to
be present at the district court level, where the matter
is of first impression. As you perhaps also know, that
when a case gets to the Supreme Court, it’s not unusual for
the least qualified person in the law firm to feel that
he’s the proper person to argue before the august body
of the Supreme Court. Maybe he’s the only one
who has a morning cold. I remember that famous story
about Justice Frankfurter leaning over to one
fellow who wasn’t used to being there very much,
said, how did you get here, thinking in procedural terms. And he was told, by the B&O. Now, I do want to say one
thing of a negative character. And it may result from
the fact that this is my first trip to Harvard Law. I felt the briefs
were not nearly as effective or nearly as
valuable as the oral argument. And I think it is
because there seemed to be in both teams a sense
that the job was to parade cases rather than to be advocates. And I think a brief is
nowadays, with courts at least at the district
court level and at any times that I have been
in the neighborhood of a court of appeals, they
are really advocacy documents. Time is being more
and more restricted. Arguments are being increasingly
interrupted, as you saw. And a brief is an
advocacy document and not simply a catalog of precedents. And I’ve felt that
both of the briefs, while they showed enormous
work, enormous diligence, incomparable ability to find
quotes, whether in context or not, that seemed
to suit the case, I didn’t think that they
were advocates’ documents. And I thought that both
sides downplayed the facts. I also felt that it was somewhat
bizarre that in an argument intended to be an argument
for the Supreme Court that the emphasis wasn’t
more strongly on the First Amendment. Those aren’t negative comments. I said they were. They’re just comments. This has been a great
experience for me, and I’m delighted to have been
in such distinguished company and to learn a lot of
things that I wish I’d known when I decided Matlovich. Thank you. [APPLAUSE] JOHN PAUL STEVENS:
Thank you all. I was requested to
announce that there is–

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