Lambda Legal

Public School Teachers' Right to Be Open Regarding Their Sexual Orientation under Federal and California Law

Public School Teachers' Right to Be Open Regarding Their Sexual Orientation under Federal and California Law ⁽¹⁾

1. Introduction

In the past, many school teachers who are gay, lesbian or bisexual⁽²⁾ found the need to keep information about themselves and their families secret from others at school. Increasingly, however, gay teachers no longer want to hide. A teacher may want to wear a commitment ring, display photos of her partner and family or just talk about her weekend with her family. Being "out" means that a gay teacher is able to behave the same way as most heterosexual teachers do. Contrary to the suggestion of those who seek to keep gay people "in the closet," being "out" does not involve the discussion of sex or sexual acts any more than does being open about being married, for example.

Any discussion of the rights of teachers must begin with the recognition that teachers play a special role in our educational system, imparting values and ideas to students.⁽³⁾ As the courts have explained, the public school system serves an important function in our society: it serves as a "principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him adjust normally to his environment."⁽⁴⁾ While anti-gay forces have tried to use these truths to keep gay teachers silent and in hiding about themselves, fears that openly gay teachers cause students to become gay have been widely discredited.⁽⁵⁾ In fact, the roles played by schools and teachers strongly argue in favor of gay teachers being able to be open about who they are. This is because openly gay teachers can serve as role models and teach the values of honesty, respect and tolerance concerning sexual orientation, in the same way that an Iraqi-American teacher or a Taoist teacher can teach values concerning ethnic diversity or religious diversity.

This memo addresses the legal principles that should apply to a gay public school teacher's decision to be "out" about her sexual orientation in California. Under the First and Fourteenth Amendments to the United States Constitution, under the freedom of speech and equal protection clauses of the California Constitution, and under California statutory law, such a public school teacher should have the right to be open about her sexual orientation in the classroom.⁽⁶⁾

This memo discusses the law as we believe it to be. There are very few cases, however, concerning the issue of openly gay teachers. Any decision to come out runs the risk that employers will not follow the law and that courts may disagree with the views of the law expressed herein. Before raising sexual orientation issues, you should consult with friendly colleagues, union representatives, and administrators and evaluate the tolerance of your particular school district.

2. The Strength of a Teacher's First Amendment Freedom of Speech Varies Depending upon the Forum. The Teacher's Right to Be Open about Her Sexual Orientation Is Strongest Outside of the School Environment and Is Weakest Within the Classroom.

The First Amendment should continue to protect teachers even in the school environment, although a teacher's freedom of speech is the greatest outside of school.⁽⁷⁾ Examination of cases dealing with teachers' freedom of speech reveals that courts decide these cases by balancing the teacher's interests against the school's interests. As a teacher moves from outside the school environment to the school campus to within the classroom, courts recognize that the school's interests in controlling speech grows, and allow the teacher's freedom of speech to be more restricted.⁽⁸⁾ From outside the school environment onto the school campus and into the classroom, teachers always receive at least some legal protection. But in defending its actions, the school's burden decreases from its having to establish a "compelling interest" for restrictions on speech when the teacher is outside school to being able to impose restrictions where this will prevent "substantial interference with school discipline" when the teacher is on campus to only needing to show "legitimate pedagogical concerns" to restrict teacher's speech in class.

a. Outside the School, Teachers Have the Greatest Freedom of Speech and Schools Have the Least Interest in Controlling Their Employees' Speech. A School Must Establish a Compelling Interest That Necessitates Restrictions or Discipline of a Teacher's Off-Campus Speech.

"The state has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general."⁽⁹⁾ For this reason, any restrictions upon teachers' expression is judged by balancing the interests of the teacher as a citizen making comments upon matters of public concern against the state's interest in promoting the efficiency of the public services it performs through its employees. In Pickering v. Board of Education, the U.S. Supreme Court ruled that a school district could not discharge a public school teacher for making comments concerning school expenditures through letters published in the local newspaper. Based on cases such as this, straight and gay teachers should be protected by the First Amendment when they make affirmative statements concerning gay issues as they relate to the school, its faculty, and its students, so long as those statements touch matters of public concern.⁽¹⁰⁾

Public school teachers also have First Amendment protections for their off-duty associations. Public school teachers cannot be dismissed due to their party affiliations or memberships.⁽¹¹⁾ In Keyishian v. Board of Regents, the U.S. Supreme Court held that a university could not punish a teacher for out of school associations without a compelling interest. Under Keyishian, teachers could be members of the Communist Party and even groups that called for the forceful overthrow of the government. Based on such precedent, public school teachers should be able to be members of organizations such as the Gay Lesbian Straight Education Network without risking reprisal.

b. On the Campus, a School Should Be Permitted to Restrict the Speech of Teachers Only When it Can Demonstrate Such Speech Is Likely to Disrupt School Discipline.⁽¹²⁾

When a teacher is on the school campus, other school interests become relevant. For example, the schools have an interest in maintaining school discipline and safety within the school grounds. Hence, speech within the school that can be shown to cause a "substantial interference" with school discipline can be restricted under the First Amendment.⁽¹³⁾

There have been a number of examples where schools were able to restrict the freedom of speech of students to prevent interference with school discipline. The cases have ranged from removing the name of a school mascot to restricting the display of the confederate flag on clothing during instructional hours.⁽¹⁴⁾ Because the Supreme Court in the Tinker case indicated that a similar standard may apply to teachers and students while on campus, schools are likely to be found able to restrict a teacher's speech on campus when it causes a "substantial interference" with school discipline.

But the situation of an "out" teacher should be distinguishable from the cases referred to above. Those cases concerned disruptions that were the result of symbols that expressed intolerance. As we see it, a teacher who comes out actually helps promote tolerance. Although an "out" teacher on campus may cause some heated discussion, the result of such speech is the promotion of tolerance: this teacher shows that teachers can be gay and be role models. Further, the removal of a teacher would not be countenanced because her race or religion caused some consternation on campus. In the same vein, a teacher should not be allowed to be forced to hide her sexual orientation because of homophobia.

Finally, certain forms of speech that could not be censored outside of school (such as vulgar or offensive speech), may be restricted within the school environment, without proof of "substantial interference."⁽¹⁵⁾ Again, however, this is no ground to keep gay teachers in the closet. A teacher's openness about her sexual orientation is in no way equivalent to the use of vulgar language.

c. Even In-class Speech, Which Can Be Construed as State-sponsored Speech, Should Only Be Permitted to Be Restricted Because of Legitimate Pedagogical Concerns.

Teachers have the weakest freedom of speech while in the classroom.⁽¹⁶⁾ This is because the words of a teacher in class may be construed as being school-sponsored. Nevertheless, a school's capacity to restrict a teacher's in-class speech is not unfettered.⁽¹⁷⁾

In-class speech by teachers can be restricted only if a school can show that its actions are reasonably related to legitimate pedagogical concerns.⁽¹⁸⁾ The Supreme Court has held that schools can assure that students "learn whatever lessons the activity is designed to teach, that readers or listeners are not exposed to material that may be inappropriate for their level of maturity, and that the views of the individual speaker are not erroneously attributed to the school."⁽¹⁹⁾ A school should not be allowed to control a teacher's expression of her sexual orientation in class, under these principles, however, because such a restriction would not be reasonably related to legitimate pedagogical concerns.

Hence, although some might argue that a teacher's discussion of her sexual orientation is beyond a classroom's children's maturity level, all students are exposed in an age-appropriate manner to a teacher's sexual orientation when students indirectly learn about a teacher's partner or family. In our view, just as a heterosexual teacher may share information about her partner or family with students, so a gay teacher should be allowed to share similar information about hers. Although coming out should be protected speech in schools, there are no cases that directly have addressed this issue yet. Students should be permitted to learn about the lives of their gay teachers at the same level of knowledge that students learn about their heterosexual teachers. To have a regulation or policy that silences gay teachers would not promote a legitimate pedagogical concern.⁽²⁰⁾

Just as has been held with regard to a teacher's political or philosophical beliefs, a school should not be permitted to silence gay teachers merely because some at the school are uncomfortable with the teacher's sexual orientation. In the words of one Court: "[W]e cannot countenance school authorities arbitrarily censoring a teacher's speech merely because they do not agree with the teacher's political philosophies or leanings. This is particularly so when that speech does not interfere in any way with the teacher's obligations to teach, is not coercive and does not arbitrarily inculcate doctrinaire views in the minds of the students."⁽²¹⁾ In other words, administrators need to be educated so that they stop confusing an "out" teacher with a teacher who is coercive or is trying to convince students that one sexual orientation is better than another. Instead, administrators need to be helped to understand how an "out" teacher is teaching students tolerance.

As further support for gay teachers' rights to be open about their sexual orientation, there are numerous examples of teachers asserting their freedom to express their views in the classroom where the courts have found that the First Amendment requires a school's interest to give way to the teacher's. For example, a probationary high school teacher was not allowed to be dismissed solely for her refusal to comply with a school regulation requiring her to participate with her class in the pledge of allegiance.⁽²²⁾ In Russo v. Central School District No. 1, the teacher stood respectfully facing the flag with her hands at her side. Although the teacher's behavior could have encouraged some of her students also to refuse to pledge allegiance to the flag, the court upheld her right to freedom of speech in refusing to participate in the pledge of allegiance. The court based its ruling on the fact that the teacher's refusal to participate did not result in any interference with the educational process.

In another case, a teacher was permitted to assert his freedom of speech by wearing a black armband to protest the involvement of the United States in a war. In James v. Board of Education, the teacher's First Amendment right to demonstrate his disapproval of the Vietnam War was found to outweigh the school's fear of interference with classroom efficiency.⁽²³⁾

A history teacher likewise could not be dismissed for teaching "Blacks in American history" to her students, although the teaching method evoked strong student feelings on racial issues.⁽²⁴⁾ Despite the controversy raised by the teacher's focus on racial matters, the court found that the teacher's freedom of speech interests outweighed the school's fears.

Like all of the above cases, a gay teacher similarly should be able to share information about her life without any interference with the classroom operation. A school would have to be able to show interference with the efficiency of the school before it could restrict a teacher's right to be "out."⁽²⁵⁾ A teacher's decision to be out could be viewed as very similar to a decision to wear an armband to protest a war or a decision to refuse to pledge allegiance to the flag. Just as those decisions are protected by the First Amendment, a teacher's decision to be out similarly should be protected.⁽²⁶⁾ Further, the fear raised by discussions of sexual orientation are similar to the teacher's decision to discuss racial matters in Kingsville and that teacher's decision was upheld by the court.⁽²⁷⁾

As discussed in the next section, under the Fourteenth Amendment to the federal constitution, gay teachers also have the right to equal protection under the law. Unlike the free speech rights of teachers that depends upon the forum in which the teacher's speech takes place, the rights of gay teachers under the equal protection clause is not similarly dependent upon forum.

3. The Fourteenth Amendment Should Be Held to Require That Schools Allow Gay Teachers to Be Open about Their Sexual Orientation, Similar to Their Straight Colleagues.

Under basic equal protection analysis, recently applied to gay people in Romer v. Evans,⁽²⁸⁾ when a school treats gay teachers differently from the non-gay teachers, it need to be able to show at least a rational reason for the different treatment. If the school discriminates against gay teachers who are open about their sexual orientation without a legitimate justification for doing so, the school should be found to have violated the federal constitutional guarantee of equal protection under the law. At a minimum, the treatment of a teacher's openness cannot be arbitrary. Further, animus against gay, lesbian or bisexual persons is never a legitimate purpose for different treatment. Thus, the dislike or intolerance of parents or students for gay teachers should not be permitted to be the reason for preventing gay teachers from being open about their sexual orientation.

4. The California Constitution Provides Even Broader Protections than Those Afforded Under the Federal Constitution.⁽²⁹⁾

In addition to the U.S. Constitution, gay teachers in California are protected by the California Constitution, which affords even broader protections than its federal counterpart. As discussed earlier, under the First Amendment, a teacher should have the right to be open about her sexual orientation. The California Supreme Court has stated that freedom of speech is afforded greater protection in California under the state constitution⁽³⁰⁾ than under the First Amendment to the Constitution of the United States.⁽³¹⁾ Accordingly, a teachers' rights under the First Amendment is merely a baseline, and not a ceiling under the California Constitution. Therefore, the teacher has an independent source to claim even stronger rights to be open about her sexual orientation.

Similarly, the California Supreme Court has stated that the state equal protection clause of the California Constitution⁽³²⁾ confers rights that are greater than those afforded under the federal constitution.⁽³³⁾ Under these principles, the California Constitution also should afford more stringent demands of equal protection of gay men and lesbians than those afforded by the federal constitution. As discussed earlier, federal decisions should be interpreted to hold that unjustified discriminatory treatment of gay teachers violates the federal guarantees of equal protection.⁽³⁴⁾ Hence, such discrimination also would violate the independent and greater protections found under the California Constitution. Finally, in Gay Law Students, the California Supreme Court announced that public and quasi-public employers could not discriminate against gay employees and that being "out of the closet" was protected political activity.⁽³⁵⁾

5. The Principles Underlying the California Constitution's Protection of Political Activity and Equal Protection Have Been Codified in Labor Code Section 1102.1, Which Represents the Clearest Expression That Schools Should Allow Gay Teachers to Be "Out."

In addition to the federal and California constitution, gay teachers in California also are protected by statutory law. California Labor Code section 1102.1 requires that the school treat gay teachers in the same manner as heterosexual teachers.⁽³⁶⁾ Labor Code section 1102.1 prohibits employers from discriminating against an employee or treating her differently because of her sexual orientation. Because schools allow heterosexual teachers to talk about partners or spouses without penalty, the schools should be compelled to allow gay teachers the same opportunity to talk about their partners as is afforded heterosexual teachers. Any school regulation that required gay teachers to hide their sexual orientation should be held to violate Labor Code section 1102.1.

Labor Code section 1102.1 is the legislative result of combining equal protection for gay employees and protection of the political activity of being "out," as enunciated by the California Supreme Court.⁽³⁷⁾ In Gay Law Students, the California Supreme Court ruled that a public utility could not discriminate against openly gay applicants or employees because being openly gay is protected political activity.⁽³⁸⁾

As a last note, although a number of California Education Code sections refer to "immoral or unprofessional conduct,"⁽³⁹⁾ none of those sections should apply to a teacher's decision to be "out" in the classroom because as noted above sharing one's sexual orientation is not the same as talking about sex. A gay teacher's sharing of information about her identity in itself should not be able to form the basis for a dismissal.⁽⁴⁰⁾ For example, in Morrison v. State Bd. of Educ., the California Supreme Court held that a school teacher could not be removed from his teaching position due to lawful gay relations with another adult when there was no showing that his retention in the profession posed a danger of harm to either students or other employees.⁽⁴¹⁾ Thus, while teachers can be dismissed for violations of the law,⁽⁴²⁾ application of the Education Code to revoke teaching credentials should be applied equally regardless of the teacher's sexual orientation. Unequal enforcement against gay teachers would violate Labor Code section 1102.1, the California Constitution, and the U.S. Constitution. Additionally, consensual sex between adults of the same sex is legal in California.⁽⁴³⁾ Hence, being gay or speech that expresses that sexual orientation should not be permitted to be the ground for school discipline.

6. Conclusion

As the legal, social, and cultural environment changes, more and more gay teachers will decide to be open about their sexual orientation at work. A California public school teacher's decision to be "out" should be protected by the First and Fourteenth Amendments to the U.S. Constitution, the freedom of speech and equal protection clauses of the California Constitution, and the California Labor Code provision prohibiting sexual orientation discrimination. Under these legal protections, public schools in California should not be permitted to prevent gay teachers in California from being open about their sexual orientation.

NOTES

1. This memo focuses on California law because this year's GLSEN Conference is being held in California and because the Western Regional Office of Lambda has performed substantial research to provide answers for the many requests for assistance that it receives from teachers within California. Other states and cities may have different laws -- some will be more protective and others will provide less protection. Do not rely on this memo for specific legal advice because the law constantly changes and is different in different places. This memo does not provide a comprehensive analysis of each state's laws. An attorney familiar with governing local laws must perform a particularized assessment before you can have sound legal advice on how to deal with an actual problem.

2. Hereafter, this memo will use the short-hand term"gay" to refer to individuals who are gay, lesbian or bisexual.

3. The U.S. Supreme Court has written that "Within the public school system, teachers play a critical part in developing students' attitude toward government and understanding of the role of citizens in our society. Alone among employees of the system, teachers are in direct, day-to-day contact with students both in the classrooms and in the other varied activities of a modern school. In shaping the students' experience to achieve educational goals, teachers by necessity have wide discretion over the way the course material is communicated to students. They are responsible for presenting and explaining subject matter in a way that is both comprehensible and inspiring. No amount of standardization of teaching materials or lesson plans can eliminate the personal qualities a teacher brings to bear in achieving these goals. Further, a teacher serves as a role model for . . . students, exerting a subtle but important influence over their perceptions and values. Thus, through both the presentation of course materials and the example he sets, a teacher has an opportunity to influence the attitudes of students toward government, the political process, and a citizen's social responsibilities. This influence is crucial to the continued good health of a democracy." Ambach v. Norwick, 441 U.S. 68, 78-79 (1979).

4. Brown v. Bd. of Educ., 347 U.S. 483, 493 (1954).

5. Numerous studies have documented that children raised by gay parents have the same likelihood to be gay as children raised by heterosexual parents. See, e.g., Charlotte Patterson, "Children of Lesbian and Gay Parents," 63 Child Development 1025 (1992); Susan Golombok et al., "Children in Lesbian and Single-Parent Households: Psychosexual and Psychiatric Appraisal," 24 J. Child Psychology & Psychiatry 551, 564 (1983); Frederick W. Bozett, "Children of Gay Fathers," Gay and Lesbian Parents 39, 47 (Frederick W. Bozett, ed., 1987).

6. A school board or superintendent should not allow the irrational fears or prejudices of parents to keep teachers in the closet. See Romer v. Evans, 517 U.S. 620 (1996). This is true even if the school administrator purports to be acting out of a concern for students. See James v. Bd. Of Educ. Of Central Dist. No. 1, 461 F.2d 566, 575 (2^nd Cir. 1972) ("Under the guise of beneficent concern for the welfare of school children, school authorities, albeit unwittingly, might permit prejudices of the community to prevail.").

7. Tinker v. Des Moines Indep. Community School Dist., 393 U.S. 503, 506 (1969).

8. As noted below, because teachers are government employees, concerns about maintaining an efficient workplace are an additional rationale for controlling a teacher's freedom of speech. Compare Connick v. Myers, 461 U.S. 138 (1983) (district attorney terminated for circulating questionnaire because she spoke as an employee on matters of personal interest rather than issues of public concern) with Rankin v. McPherson, 483 U.S. 378 (1987) (finding a violation of the First Amendment in termination of deputy constable for making positive comments regarding an assassination attempt on the President because the statement did not interfere with the efficient functioning of the office).

9. Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968).

10. A purely personal coming out statement may not be viewed as an issue of public concern under some courts' interpretations of federal constitutional law. See Rowland v. Mad River Local School Dist., 730 F.2d 444 (6^th Cir. 1984), cert. denied, 470 U.S. 1009 (1984) (holding that the First Amendment does not protect a non-tenured counselor who comes out as bisexual because that statement involves only personal interests).

11. Keyishian v. Bd. of Regents, 385 U.S. 589 (1967).

12. "With respect to both teacher and student, the responsibility of school authorities to maintain order and discipline in the schools remains the same. The ultimate goal of school officials is to insure that the discipline necessary to the proper functioning of the school is maintained among both teachers and students. Any limitation on the exercise of constitutional rights can be justified only by a conclusion, based upon reasonable inferences flowing from concrete facts and not abstractions, that the interests of discipline or sound education are materially and substantially jeopardized, whether the danger stems initially from the conduct of students or teachers." James v. Bd. Of Educ. Of Central Dist. No. 1, 461 F.2d 566, 571 (2^nd Cir. 1972).

13. Tinker, supra, 393 U.S. at 509.

14. Crosby ex rel. Crosby v. Holsinger, 852 F.2d 801 (4^th Cir. 1988) (allowing school to remove racially offensive school mascot "Johnny Reb"); Augustus v. School Bd., 507 F.2d 156 (5^th Cir. 1975) (allowing school to ban use of name "Rebel" and confederate flag because of racial tensions and disruptions); Melton v Young, 465 F.2d 1332 (6^th Cir.), cert. denied, 411 U.S. 951 (1972) (upholding student's suspension for refusing to remove confederate flag patch that caused racial disruptions).

15. Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675, 685 (1986).

16. It should be recognized, however, that no U.S. Supreme Court decision has directly addressed the First Amendment rights of teachers in the classroom.

17. But see Boring v. Buncombe County Bd. of Educ., 136 F.3d 364 (4^th Cir. 1998), cert. denied, 67 U.S.L.W. 3229 (1998) (holding that a teacher's dispute with the principal, superintendent, and school board was an ordinary employment dispute even though the drama teacher was disciplined for her choice of a play that involved a lesbian daughter and a daughter with an illegitimate child).

18. Hazelwood School Dist. v. Kuhlmeier, 484 U.S. 260, 273 (1988); accord Ward v. Hickey, 996 F.2d 448, 452 (1^st Cir. 1993) (dealing with a non-tenured biology teacher's discussion of abortion of Down's Syndrome fetuses in class).

19. Hazelwood, supra, 484 U.S. at 271.

20. See Romer v. Evans, 517 U.S. 620 (1996).

21. James v. Bd. Of Educ. Of Central Dist. No. 1, 461 F.2d 566, 573 (2^nd Cir. 1972).

22. Russo v. Central School Dist. No. 1, 469 F.2d 623, 633 (2^nd Cir. 1972), cert. denied 411 U.S. 932 (1973).

23. James v. Bd. Of Educ. Of Central Dist. No. 1, 461 F.2d 566 (2^nd Cir. 1972); accord Los Angeles Teachers Union v. Los Angeles City Bd. Of Educ., 71 Cal.2d 551 (1969).

24. Kingsville Indep. School Dist. v. Cooper, 611 F.2d 1109 (5^th Cir. 1980). See also Keefe v. Geanakos, 418 F.2d 359 (1^st Cir. 1969) (ruling that a teacher could refer to an expletive from a magazine article for educational purposes).

25. Principles of academic freedom should apply to classroom discussions, but a commonsense approach is advisable for issues of sexual orientation. For example, a discussion of lesbian and gay civil rights is more appropriate for a history class than a math class. A school should not be able to flatly prohibit discussion of a topic relevant to the subject matter of a class. See Zykan v. Warsaw Community School Corp., 631 F.2d 1300, 1305-06 (7^th Cir. 1980) (holding that a school board cannot terminate a teacher for every comment in the classroom).

26. One may wish to equate coming out with political speech, because a school cannot discriminate against its employees' speech based on their viewpoint. A content-based regulation is not the same as viewpoint discrimination. All viewpoint discrimination is a subset of content discrimination. Content refers to the subject matter of speech, while viewpoint refers to one's opinion, or position on that topic. Viewpoint discrimination is a form of content discrimination in which "the government targets not the subject matter, but particular views taken by speakers on a subject. . . ." Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 829 (1995). One factor in determining whether an action may involve viewpoint discrimination is whether it favors one side in a debate of public issues. R.A.V. v. City of St. Paul, 505 U.S. 377, 394 (1992). In a nonpublic forum, such as schools, the government may limit the subject matter discussed by speakers in such a forum but it may not distinguish between particular speakers based on their view of the approved subject matter. "Once the school board determines that certain speech is appropriate for its students, it may not discriminate between speakers who will speak on the topic merely because it disagrees with their views." Searcey v. Harris, 888 F.2d 1314, 1324 (11^th Cir. 1989) (holding that a school board could not bar a group's access to career day at high school, because of the group's advocacy against a military career) citing Cornelius v. NAACP Legal Defense and Educational Fund, Inc., 473 U.S. 788, 811 (1985). Although coming out is not yet recognized as a political statement, as discussed in the California law section of this memo, coming out is a protected political activity in California. Straight school teachers in fact can and do talk about their spouses and partners and have pictures of their families in the classroom. Lesbian and gay teachers should be afforded equal consideration and allowed to mention their partners and have pictures of their families in the classroom also. These openly gay teachers make an important political statement that there are gay teachers. This statement about gay teachers counteracts viewpoints that teachers cannot be gay. We believe that to not grant gay teachers the same consideration would violate the First Amendment's prohibition on viewpoint discrimination by allowing schools to discriminate against the viewpoint that teachers can be gay and role models.

27. Kingsville, supra, 611 F.2d at 1113.

28. 517 U.S. 620 (1996). See also Stemler v. City of Florence, 126 F.3d 856, 874 (6^th. Cir. 1997), cert. denied, 118 S.Ct. 1796 (1998) ("the desire to effectuate one's animus against homosexuals can never be a legitimate governmental purpose").

29. The California Constitution consistently affords greater protection to its citizens than the federal constitution. "[T]he California Constitution is, and always has been, a document of independent force." People v. Brisendine, 13 Cal.3d 528, 549-50 (1975); accord Cooper v. California, 386 U.S. 58, 62 (1967); People v. Norman, 14 Cal.3d 929, 939 (1975).

30. The protection of freedom of expression in the California Constitution is found in article I, section 2: "Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press."

31. Robins v. Pruneyard Shopping Center, 23 Cal.3d 899, 908 (1979).

32. The guarantee of equal protection under the California Constitution is found in article I, section 7: "A person may not be deprived of life, liberty, or property without due process of law or denied equal protection o f the laws."

33. For example, the California constitution provides greater equal protection against gender discrimination than the federal constitution. See Sail'er Inn, Inc. v. Kirby, 5 Cal.3d 1, 17 (1971); accord Bobb v. Municipal Court, 143 Cal.App.3d 860, 866 (1983). Cf. United States v. Virginia, 518 U.S. 515 (1996) (providing less scrutiny to gender-based discrimination under federal constitution than under California constitution). "Although our court will consider federal state action decisions with respect to the federal equal protection clause insofar as they are persuasive, we do not consider ourselves bound by such decisions in interpreting the safeguards of our state equal protection clause." Gay Law Students Association v. Pacific Telephone & Telegraph Co., 24 Cal.3d 458, 469 (1979)

34. Romer v. Evans, 517 U.S. 620 (1996).

35. Gay Law Students, supra, 24 Cal.3d at 488 (holding that under the equal protection guarantee of the California Constitution, a state-protected public utility may not discriminate against gay people in its employment decisions and that the struggle for equal rights for gay people involves coming "out of the closet" and as such is a protected political activity).

36. Labor Code section 1102.1 (a) states: "Sections 1101 and 1102 prohibit discrimination or different treatment in any aspect of employment or opportunity for employment based on actual or perceived sexual orientation." Labor Code section 1101 states: "No employer shall make, adopt, or enforce any rule, regulation, or policy forbidding or preventing employees from engaging or participating in politics or from becoming candidates for public office, or controlling or directing, or tending to control or direct the political activities or affiliations of employees." Labor Code section 1102 states: "No employer shall coerce or influence or attempt to coerce or influence his employees through or by means of threat of discharge or loss of employment to adopt or follow or refrain from adopting or following any particular course or line of political action or political activity."

37. Gay Law Students Assoc. v. Pacific Tel. & Tel. Co., 24 Cal.3d 458 (1979).

38. An appellate court has interpreted Education Code section 7055 as giving the school district the power to restrict the political speech of their teachers during working hours by prohibiting teachers from wearing political buttons during school hours. California Teachers Assn. v. Governing Bd., 45 Cal.App.4th 1383 (1996). This case involved partisan political activity, and as such, does not implicate the situations of gay teachers who are "out." In Gay Law Students, the California Supreme Court specifically distinguished partisan political activity from the example of openly gay employees or employees wearing symbolic armbands. Further, a school regulation that allowed heterosexual teachers to reveal their sexual orientation without reprisal, but that prohibited gay teachers from doing so, would not only violate Labor Code section 1102.1, it would violate the gay teacher's guarantee of equal protection under the California and U.S. Constitutions.

39. Education Code section 87732 concerns "Grounds for dismissal of regular employee"; Education Code section 44421 concerns "Power of Commission regarding unprofessional conduct"; and, Education Code section 44422 concerns "Immoral or unprofessional conduct, unfitness, disobedience."

40. Morrison v. State Bd. of Educ., 1 Cal.3d 214 (1969) (a teacher's actions cannot constitute immoral or unprofessional conduct unless such conduct indicates that his future classroom performance and overall impact on his students are unlikely to meet the board's standards, and the board of education may consider such factors as the likelihood that the conduct may have adversely affected students or fellow teachers, the degree of such adversity anticipated, the proximity or remoteness in time of the conduct, the praiseworthiness or blameworthiness of the motives resulting in the conduct, and the extent to which disciplinary action may inflict an adverse impact or chilling effect upon the constitutional rights of the teacher involved or other teachers).

41. See also Bd. of Educ. v. Jack M., 19 Cal.3d 691 (1977) (affirming that arrested teacher did not pose harm to students or fellow teachers) and Oakland Unified School Dist. v. Olicker, 25 Cal.App.3d 1098 (1972) (reversing unfitness determination of teacher who exposed children to obscenity during writing assignment).

42. Moser v. State Bd. of Educ., 22 Cal.App.3d 988 (1972) (affirming dismissal of teacher convicted of public sex); Petit v. State Bd. of Educ., 10 Cal.3d 29 (1973) (affirming revocation of teaching certificate because married teacher was arrested while at a "Swingers" party).

43. See Penal Code sections 286, 288a, and 289.

This article was prepared by Myron Dean Quon of Lambda's Western Regional Office.

© 1998 by Lambda Legal Defense and Education Fund, Inc.