Rowland v. Mad River Local School District, Montgomery County, Ohio/Dissent Brennan

Justice Brennan, with whom Justice Marshall joins, dissenting.

This case raises important constitutional questions regarding the rights of public employees to maintain and express their private sexual preferences. Petitioner, a public high school employee, "was fired because she was a homosexual who revealed her sexual preference--and, as the jury found, for no other reason." 730 F.2d 444, 454 (CA6 1984) (Edwards, J., dissenting). Because determination of the appropriate constitutional analysis to apply in such a case continues to puzzle lower courts and because this Court has never addressed the issues presented, I would grant certiorari and set this case for oral argument.

I
In December 1974, petitioner was suspended from her nontenured position as a high school guidance counselor. In April 1975, the respondent School District acting through its School Board decided not to renew petitioner's contract. A jury later made unchallenged findings that petitioner was suspended and not rehired solely because she was bisexual and had told her secretary and some fellow teachers that she was bisexual, and not for "any other reason." See id., at 460 (Special Verdict VIII). The jury also found that petitioner's mention of her bisexuality did not "in any way interfere with the proper performance of [her or other school staff members'] duties or with the regular operation of the school generally." Id., at 456-458 (Special Verdicts I, II, and III). The jury concluded that petitioner had suffered damages as a result of the decisions to suspend and not rehire her in the form of personal humiliation, mental anguish, and lost earnings.

The trial judge ruled that these findings supported petitioner's claims for violation of her constitutional right to free speech under Pickering v. Board of Education, 391 U.S. 563 (1968), and to equal protection of the laws under the Fourteenth Amendment. He therefore entered a judgment for damages for petitioner.

The Court of Appeals for the Sixth Circuit reversed. The court first ruled that in light of our intervening decision in Connick v. Myers, 461 U.S. 138 (1983), the decision to discharge petitioner based on her workplace statements was unobjectionable under the First Amendment because petitioner's speech was not about "a matter of public concern." 730 F.2d, at 451. While accepting the jury's finding that petitioner's mention of her bisexuality had not interfered "in any way" with the "regular operation of the school," the court concluded that it was constitutionally permissible to dismiss petitioner "for talking about it." Id., at 450. Second, the court held that no equal protection claim could possibly have been made out, because there was presented "no evidence of how other employees with different sexual preferences were treated." Ibid. Without citation to any precedent, the court characterized the judgment for petitioner in the absence of such comparative evidence as "plain error."

II
This case starkly presents issues of individual constitutional rights that have, as the dissent below noted, "swirled nationwide for many years." Id., at 453 (Edwards, J., dissenting). Petitioner did not lose her job because she disrupted the school environment or failed to perform her job. She was discharged merely because she is bisexual and revealed this fact to acquaintances at her workplace. These facts are rendered completely unambiguous by the jury's findings. Yet after a jury and the trial court who heard and evaluated the evidence rendered verdicts for petitioner, the court below reversed based on a crabbed reading of our precedents and unexplained disregard of the jury and judge's factual findings. Because they are so patently erroneous, these maneuvers suggest only a desire to evade the central question: may a State dismiss a public employee based on her bisexual status alone? I respectfully dissent from the Court's decision not to give its plenary attention to this issue.

A
That petitioner was discharged for her nondisruptive mention of her sexual preferences raises a substantial claim under the First Amendment. "For at least 15 years, it has been settled that a State cannot condition public employment on a basis that infringes the employee's constitutionally protected interest in freedom of expression." 461 U.S., at 142. Nevertheless, Connick held that if "employee expression cannot be fairly considered as relating to any matter of political, social, or other concern to the community," disciplinary measures taken in response to such expression cannot be challenged under the First Amendment "absent the most unusual circumstances." Id., at 146, 147. The court below ruled that Connick requires the conclusion that a bisexual public employee constitutionally may be dismissed for "talking about it." This conclusion does not result inevitably from Connick, and may be questioned on at least two grounds: first, because petitioner's speech did indeed "touch upon" a matter of public concern, see id., at 149, and second, because speech even if characterized as private is entitled to constitutional protection which it does not in any way interfere with the employer's business.

Connick recognized that some issues are "inherently of public concern," citing "racial discrimination" as one example. Id., at 148, n. 8. I think it impossible not to note that a similar public debate is currently ongoing regarding the rights of homosexuals. The fact of petitioner's bisexuality, once spoken, necessarily and ineluctably involved her in that debate. Speech that "touches upon" this explosive issue is no less deserving of constitutional attention than speech relating to more widely condemned forms of discrimination.

Connick 's reference to "matters of public concern" does not suggest a strict rule that an employee's first statement related to a volatile issue of public concern must go unprotected, simply because it is the first statement in the public debate. Such a rule would reduce public employees to second-class speakers, for they would be prohibited from speaking until and unless others first bring an issue to public attention. Cf. Egger v. Phillips, 710 F.2d 292, 317 (CA7 1983) (en banc) ("[T]he unpopularity of the issue surely does not mean that a voice crying out in the wilderness is entitled to less protection than a voice with a large, receptive audience"). It is the topic of the speech at issue, and not whether a debate on that topic is yet ongoing, that Connick directed federal courts to examine.

Moreover, even if petitioner's speech did not so obviously touch upon a matter of public concern, there remains a substantial constitutional question, reserved in Connick, whether it lies "totally beyond the protection of the First Amendment" given its nondisruptive character. See 461 U.S., at 147. The recognized goal of the Pickering-Connick rationale is to seek a "balance" between the interest of public employees in speaking freely and that of public employers in operating their workplaces without disruption. See 461 U.S., at 142, 154; Pickering, 391 U.S., at 568-569. As the jury below found, however, the latter interest simply is not implicated in this case. In such circumstances, Connick does not require that the former interest still receive no constitutional protection. Connick, and, indeed, all our precedents in this area, addressed discipline taken against employees for statements that arguably had some disruptive effect in the workplace. See, e.g., 461 U.S., at 151 ("mini-insurrection"); ''Mt. Healthy City Board of Ed. v. Doyle, 429 U.S. 274, 285 (1977) ("dramatic and perhaps abrasive incident"); Pickering, supra'', at 569 ("critical statements"). This case, however, involves no critical statements, but rather an entirely harmless mention of a fact about petitioner that apparently triggered certain prejudices held by her supervisors. Cf. Terminiello v. Chicago, 337 U.S. 1, 4-5 (1949). The Court carefully noted in Connick that it did "not deem it either appropriate or feasible to attempt to lay down a general standard against which all such statements may be judged." 461 U.S., at 154. This case poses the open question whether nondisruptive speech ever can constitutionally serve as the basis for termination under the First Amendment.

B
Apart from the First Amendment, we have held that "[a] State cannot exclude a person from... any...occupation...for reasons that contravene the Due Process or Equal Protection Clause of the Fourteenth Amendment." Schware v. Board of Bar Examiners, 353 U.S. 232, 238-239 (1957). And in applying the Equal Protection Clause, "we have treated as presumptively invidious those classifications that disadvantage a 'suspect class,' or that impinge upon the exercise of a 'fundamental right.'" Plyler v. Doe, 457 U.S. 202, 216-217 (1982) (footnote omitted); see also id., at 245 (Burger, C.J., dissenting) ("The Equal Protection Clause protects against arbitrary and irrational classifications, and against invidious discrimination stemming from prejudice and hostility"). Under this rubric, discrimination against homosexuals or bisexuals based solely on their sexual preference raises significant constitutional questions under both prongs of our settled equal protection analysis.

First, homosexuals constitute a significant and insular minority of this country's population. Because of the immediate and severe opprobrium often manifested against homosexuals once so identified publicly, members of this group are particularly powerless to pursue their rights openly in the political arena. Moreover, homosexuals have historically been the object of pernicious and sustained hostility, and it is fair to say that discrimination against homosexuals is "likely...to reflect deep-seated prejudice rather than...rationality." Id., at 216, n. 14. State action taken against members of such groups based simply on their status as members of the group traditionally has been subjected to strict, or at least heightened, scrutiny by this Court.

Second, discrimination based on sexual preference has been found by may courts to infringe various fundamental constitutional rights, such as the rights to privacy or freedom of expression. Infringement of such rights found to be "explicitly or implicitly guaranteed by the Constitution," San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 33-34 (1973), likewise requires the State to demonstrate some compelling interest to survive strict judicial scrutiny. Plyler, supra, at 217. I have previously noted that a multitude of our precedents supports the view that public employees maintain, no less than all other citizens, a fundamental constitutional right to make "private choices involving family life and personal autonomy." Whisenhunt v. Spradlin, 464 U.S. 965, 971 (1983) (dissenting from denial of certiorari). Whether constitutional rights are infringed in sexual preference cases, and whether some compelling state interest can be advanced to permit their infringement, are important questions that this Court has never addressed, and which have left the lower courts in some disarray. See n. 9, supra; cf. Carey v. Population Services International, 431 U.S. 678, 688, n. 5, 694, n. 17 (1977).

Finally, even if adverse state action based on homosexual conduct were held valid under application of traditional equal protection principles, such approval would not answer the question, posed here, whether the mere nondisruptive expression of homosexual preference can pass muster even under a minimal rationality standard as the basis for discharge from public employment. This record plainly demonstrates that petitioner did not proselytize regarding her bisexuality, but rather that it became known simply in the course of her normal workday conversations. The School District agreed to submit the issue of disruption to the jury, and the jury found that knowledge of petitioner's nonheterosexual status did not interfere with the school's operation "in any way." I have serious doubt in light of that finding whether the result below can be upheld under any standard of equal protection review.

III
The issues in this case are clearly presented. By reversing the jury's verdict, the Court of Appeals necessarily held that adverse state action taken against a public employee based solely on his or her expressed sexual preference is constitutional. Nothing in our precedents requires that result; indeed, we have never addressed the topic. Because petitioner's case raises serious and unsettled constitutional questions relating to this issue of national importance, an issue that cannot any longer be ignored, I respectfully dissent from the decision to deny this petition for a writ of certiorari.