The Supreme Court, dividing equally in a widely watched gay rights case, Tuesday affirmed an appellate ruling that had struck down an Oklahoma law that permitted public school districts to fire teachers who openly advocate homosexual activity.
The 4-4 vote, in which Justice Lewis F. Powell Jr. did not participate, affirmed an appellate court decision that invalidated the Oklahoma statute as a violation of teachers' rights to free speech. But the Supreme Court's action, in a summary order without an opinion, does not set a nationally binding precedent.
A ruling in the case (Board of Education of Oklahoma City vs. National Gay Task Force, 83-2030) had been widely awaited by civil libertarians, homosexual rights groups, teachers and school administrators. The Supreme Court in recent years often has refused to hear cases involving the politically and emotionally sensitive issue of gay rights.
Issue of Free Speech
In most respects, however, the Oklahoma case focused on free speech rather than homosexual rights issues. Moreover, the Oklahoma law--which covered statements by teachers outside the classroom as well as in school--was seen as so sweeping and broad that the court's action may indicate relatively little about how the justices might deal with other, more sharply focused questions involving gays.
At least one other potentially significant gay rights case remains on the current court docket: Texas A&M; University's appeal of a federal appellate ruling that the school may not deny official recognition to a gay student group. The university based its refusal on its duty to maintain "a stable learning environment" and a "healthy student body."
Despite its limited effect, Tuesday's action drew both praise and disappointment.
Ron Najman, a spokesman for the National Gay Task Force in New York, said that the court had upheld the right of teachers "to advocate legal and social change, including gay and lesbian civil rights." And Jean O'Leary of Los Angeles, executive director of National Gay Rights Advocates, called the decision a "spectacular victory for the rights of homosexual Americans."
But a lawyer for the Washington Legal Foundation, which had urged the court to uphold the law as a means of maintaining a wholesome school environment, expressed dismay.
"We are especially disappointed," attorney George C. Smith said. "We didn't view this so much a 'gay rights' or 'free speech' case as it was a 'child protection' case. If states can't pass statutes like Oklahoma's, it will be very difficult to have any rules that protect moral values at a school."
The Oklahoma law allowed the dismissal of teachers who make public statements "advocating, encouraging or promoting" homosexual activity in a way that creates a "substantial risk" that they will come to the attention of school children or school employees.
The statute was enacted by the Oklahoma Legislature in 1978--the same year that voters in California turned down Proposition 6, an initiative sponsored by state Sen. John Briggs that would have allowed school boards to fire teachers who practice or advocate homosexuality.
Before the Oklahoma law went into effect, it was challenged by lawyers for the National Gay Task Force in a test case against the Oklahoma City Board of Education. A federal district judge upheld the law, but the U.S. 10th Circuit Court of Appeals in Denver struck it down in a 2-1 decision last year.
The appellate panel said that, although it was permissible to fire teachers for "public homosexual activity," the law prohibiting mere advocacy was so broad that it might be used to prevent a teacher from going before the Legislature to urge a change in laws governing homosexual conduct.
A teacher's right to free speech may be restricted only if administrators can show that the restriction is necessary to "prevent the disruption of official functions or to ensure effective performance by the employee," the appellate court said.
The Supreme Court's action means that the states within the 10th Circuit--Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming--are bound by the appellate court's opinion in the case. The issue could come before the justices later in another case, in which, presumably, all nine members could participate.
Under court procedure, the individual votes of the justices are not recorded in such situations.
In keeping with court tradition, Justice Powell gave no reason for not taking part in the decision. As a former president of the Richmond (Va.) Board of Education, Powell often takes a lead role in court cases involving schools, but he missed oral argument in the case while recovering from prostate surgery he underwent on Jan. 4.
Justices are not barred from participating in cases in which they did not hear oral argument, but, like Powell, most withdraw when they have not been able to do so.
The court on Monday had taken the unusual step of ordering re-argument next month in three other cases in which Powell had missed oral argument. Presumably, his vote is needed to break deadlocks in those cases.
In all, Powell missed oral argument in 60 cases before returning to the bench this week.