NAT. GAY TASK FORCE v. BD. OF EDUC. OF CITY, ETC.No. 82-1912.
729 F.2d 1270 (1984)
The NATIONAL GAY TASK FORCE and on behalf of all teachers and principals prospectively and presently employed by the Board of Education of the City of Oklahoma City, State of Oklahoma, and who are similarly situated, Plaintiff-Appellant,
The BOARD OF EDUCATION OF the CITY OF OKLAHOMA CITY, State of Oklahoma, Defendant-Appellee.
The BOARD OF EDUCATION OF the CITY OF OKLAHOMA CITY, State of Oklahoma, Defendant-Appellee.
United States Court of Appeals, Tenth Circuit.
March 14, 1984.
William B. Rogers of the American Civil Liberties Union of Oklahoma, Oklahoma City, Okl. (Leonard Graff and Don Knutson of Gay Rights Advocates, Inc., San Francisco, Cal., with him on the brief), for plaintiff-appellant. Larry Lewis, Oklahoma City, Okl., for defendant-appellee. Sally E. Scott, Oklahoma City, Okl., filed an amicus curiae brief for the Speech Communication Ass'n. Fred Okrand, Laurence R. Sperber, and Susan McGreivy, Los Angeles, Cal., filed an amicus curiae brief for the National Gay and Lesbian Rights Project of the American Civil Liberties Union. E. Carrington Boggan and Rosalyn Richter, New York City, filed an amicus curiae brief for the Lambda Legal Defense and Education Fund, Inc.
Before BARRETT, McKAY and LOGAN, Circuit Judges.
LOGAN, Circuit Judge.
The National Gay Task Force (NGTF), whose membership includes teachers in the Oklahoma public school system, filed this action in the district court challenging the facial constitutional validity of Okla.Stat. tit. 70, § 6-103.15. The district court held that the statute was constitutionally valid. On appeal NGTF contends that the statute violates plaintiff's members' rights to privacy and equal protection, that it is void for vagueness, that it violates the Establishment Clause, and, finally, that it is overbroad.
The challenged statute, Okla.Stat. tit. 70, § 6-103.15, provides:
The trial court held that the statute reaches protected speech but upheld the constitutionality of the statute by reading a "material and substantial disruption" test into it. We disagree. The statute proscribes protected speech and is thus facially overbroad, and we cannot read into the statute a "material and substantial disruption"
We see no constitutional problem in the statute's permitting a teacher to be fired for engaging in "public homosexual activity." Section 6-103.15 defines "public homosexual activity" as the commission of an act defined in Okla.Stat. tit. 21, § 886, that is committed with a person of the same sex and is indiscreet and not practiced in private. In support of their argument that this provision violates their members' right of privacy, plaintiff cites Baker v. Wade,
The trial court correctly rejected plaintiff's contention that the Oklahoma statute is vague in regard to "public homosexual activity." In Village of Hoffman Estates v. The Flipside, Hoffman Estates, Inc.,
455 U.S. at 497, 102 S.Ct. at 1193. Plaintiff makes no such showing. The Oklahoma cases construing the "crime against nature" statute have clearly defined the acts that the statute proscribes.
Plaintiff also argues that the statute violates its members' right to equal protection of the law. We cannot find that a classification based on the choice of sexual partners is suspect, especially since only four members of the Supreme Court have viewed gender as a suspect classification. Frontiero v. Richardson,
The part of § 6-103.15 that allows punishment of teachers for "public homosexual conduct" does present constitutional problems. To be sure, this is a
Section 6-103.15 allows punishment of teachers for "public homosexual conduct," which is defined as "advocating, soliciting, imposing, encouraging or promoting public or private homosexual activity in a manner that creates a substantial risk that such conduct will come to the attention of school children or school employees." Okla.Stat. tit. 70, § 6-103.15(A)(2). The First Amendment protects "advocacy" even of illegal conduct except when "advocacy" is "directed to inciting or producing imminent lawless action and is likely to incite or produce such action." Brandenburg v. Ohio,
"Encouraging" and "promoting," like "advocating," do not necessarily imply incitement to imminent action. A teacher who went before the Oklahoma legislature or appeared on television to urge the repeal of the Oklahoma anti-sodomy statute would be "advocating," "promoting," and "encouraging" homosexual sodomy and creating a substantial risk that his or her speech would come to the attention of school children or school employees if he or she said, "I think it is psychologically damaging for people with homosexual desires to suppress those desires. They should act on those desires and should be legally free to do so." Such statements, which are aimed at legal and social change, are at the core of First Amendment protections. As in Erznoznik, the statute by its plain terms is not easily susceptible of a narrowing construction. The Oklahoma legislature chose the word "advocacy" despite the Supreme Court's interpretation of that word in Brandenburg. Finally, the deterrent effect of § 6-103.15 is both real and substantial. It applies to all teachers, substitute teachers, and teachers aides in Oklahoma. To protect their jobs they must restrict their expression. See Erznoznik, 422 U.S. at 217, 95 S.Ct. at 2276. Thus, the § 6-103.15 proscription of advocating, encouraging, or promoting homosexual activity is unconstitutionally overbroad.
We recognize that a state has interests in regulating the speech of teachers that differ from its interests in regulating the speech of the general citizenry. Pickering v. Board of Education,
The statute declares that a teacher may be fired under § 6-103.15 only if there is a finding of "unfitness" and lists
The parts of § 6-103.15 that deal with "public homosexual conduct" can be severed from the rest of the statute without creating a result that the legislature did not intend or contemplate. See Tulsa Exposition and Fair Corp. v. Board of County Commissioners,
BARRETT, Circuit Judge, dissenting:
I would affirm the district court's finding that 70 O.S. § 6-103.15 passes constitutional muster on every "front" challenged. The majority opinion renders the statute ineffective. It upholds the sanctions of the statute only if there is evidence proving that a teacher has engaged in "public homosexual activity" defined in 70 O.S. § 6-103.15(A.)(1.)(a.) and (b.).
The "punishment" referred to in the majority opinion which the majority holds may not be imposed on Oklahoma teachers is refusal of employment or reemployment, or dismissal or suspension if a teacher advocates, solicits, imposes, encourages or promotes "Public homosexual activity" (which, by specific reference to the Oklahoma criminal code is distinctly identified as "the unnatural, perverse, detestable and abominable act of sodomy") in a manner that creates a substantial risk that such conduct will come to the attention of school children or school employees.
It is fundamental that state legislative bodies, in the exercise of state police power, may enact reasonable regulations in the interest of public health, safety, morals and welfare over persons within state limits. Oklahoma has, by enactment of the subject statute, endeavored to protect its school children and school employees from any teacher who advocates, solicits, encourages or promotes public or private homosexual activity pinpointed as the commission of the unnatural and detestable act of sodomy.
In Wainwright v. Stone,
The majority, unlike the district court, holds that portion of the statute which allows "punishment" for teachers for advocating "public homosexual conduct" to be overbroad because it is "not readily subject to a narrowing construction by the state courts" and "its deterrent effect on legitimate expression is both real and substantial." I disagree. Sodomy is malum in se, i.e., immoral and corruptible in its nature without regard to the fact of its being noticed or punished by the law of the state. It is not malum prohibitum, i.e., wrong only because it is forbidden by law and not involving moral turpitude. It is on this principle that I must part with the majority's holding that the "public homosexual conduct" portion of the Oklahoma statute is overbroad.
Any teacher who advocates, solicits, encourages or promotes the practice of sodomy"in a manner that creates a substantial risk that such conduct will come to the attention of school children or school employees" is in fact and in truth inciting school children to participate in the abominable and detestable crime against nature. Such advocacy by school teachers, regardless of the situs where made, creates a substantial risk of being conveyed to school children. In my view, it does not merit any constitutional protection. There is no need to demonstrate that such conduct would bring about a material or substantial interference or disruption in the normal activities of the school. A teacher advocating the practice of sodomy to school children is without First Amendment protection. This statute furthers an important and substantial government interest, as determined by the Oklahoma legislature, unrelated to the suppression of free speech. The incidental restriction on alleged First Amendment freedom is no greater than is essential to the furtherance of that interest.
Tinker v. Des Moines Independent Community School District,
The Oklahoma legislature has declared that the advocacy by teachers of homosexual acts to school children is a matter of statewide concern. The Oklahoma statute does not condemn or in anywise affect teachers, homosexual or otherwise, except to the extent of the non-advocacy restraint aimed at the protection of school children. It does not deny them any rights as human beings. To equate such "restraint" on First Amendment speech with the Tinker armband display and to require proof that advocacy of the act of sodomy will substantially interfere or disrupt normal school activities is a bow to permissiveness. To the same extent, the advocacy of violence, sabotage and terrorism as a means of effecting political reform held in Brandenburg v. Ohio,
Facial overbreadth challenges are "manifestly strong medicine" which must be employed "sparingly and only as a last resort." Broadrick v. Oklahoma,
In Keyishian v. Board of Regents,
There is nothing abstract about a teacher advocating to school children the commission of the criminal act proscribed by section 886, supra. The expression proscribed by § 6-103.15 is the advocacy of the commission of the very act held to be a criminal act in Canfield. Thus, the deterred speech or conduct concerns "advocating," "promoting"
I would affirm.
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