Academic journal article Journal of Law and Education

Chalk Talk-Sexual Orientation Discrimination: Teachers as Positive Role Models for Tolerance

Academic journal article Journal of Law and Education

Chalk Talk-Sexual Orientation Discrimination: Teachers as Positive Role Models for Tolerance

Article excerpt

I. Introduction

In December of 1974, the school secretary one day asked guidance counselor Marjorie Rowland why she was in such a "good mood." Rowland eventually responded that she was in love with a woman.1 She later revealed her bisexuality to the school vice principal after a discussion with a homosexual student's angry mother, whom Rowland had counseled to accept her son's sexuality.2 These confidences about her sexuality, combined with those to co-workers with whom she was friendly, resulted in her transfer and the non-renewal of her contract.3 Rowland's subsequent lawsuit against the Mad River School Board led to a jury award to Rowland for personal anguish, mental anguish and suffering, as well as loss of earnings.4 On appeal, the Sixth Circuit reversed this ruling, finding that her sexuality was not a matter of public concern and that she failed to show that she was being treated differently than similarly situated heterosexual employees.5

Unfortunately, a similar story told today may yield a similar result, albeit with possibly a different approach. There is no federal civil rights legislation prohibiting discrimination based on sexual orientation and only eleven states and the District of Colombia have enacted such legislation.6 Furthermore, the Supreme Court has not recognized a fundamental right to homosexual conduct.7

In the Rowland case, the Supreme Court denied certiorari, but Justice Brennan vigorously dissented.8 Justice Brennan criticized the decision of the Sixth Circuit, finding in its "crabbed reading of [the Supreme Court's] precedents and unexplained disregard of ... factual findings" an evasion of the real quesIMAGE FORMULA17tion: "May a state dismiss a public employee based on her bisexual status alone?"9 In his dissent, Justice Brennan outlined the constitutional arguments that victims of sexual orientation discrimination and their supporters would, in the following years, wield in the battle over employment discrimination and sexual orientation: the First Amendment freedoms of expression and association and the Fourteenth Amendment rights to equal protection and Due Process.10

Rowland is remarkable for another reason, however, in that the plaintiff is a homophobic society's archetypal villain, according to anti-gay activists: the homosexual educator.11 Opponents of legislation protecting homosexuals or bisexuals focus on this role in particular, because of the special status of teachers as role models and the amount of time they spend with children during their formative years.12 Believing that homosexuals are "per se immoral," these opponents maintain that they should not be in such positions of influence with children.13 This distinction, drawn by Former Senator, now United States Attorney General John Ashcroft, as well as other Senators, actually mirrors the distinction found in statistics drawn from the public.14

In 1977, public support for equal employment opportunities for gay people was at 56%, while only 27% believed gay people should be "allowed" to teach elementary school.15 Although public support has increased dramatically over the years generally, the difference between support for gay people on the whole and support for gay elementary school teachers has remained about the same.16 In 1999, 83% of the population supported equal employment opportunities for homosexuals, while only 54% felt that gay people should be allowed to teach elementary school.17

All gays and lesbians are in need of protection from employment discrimination. Senator Joseph Leiberman noted in his support of the Employment NonDiscrimination Act that as many as 68% of gay men and lesbians have experienced employment discrimination in their careers.18 It appears to be the gay teachers-those who chose a career that is arguably one of the most difficult, underpaid and the most important to the nation's welfare-who are the "poster IMAGE FORMULA20child villains" of anti-gay activists. …

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