Joe Acanfora

Joseph Acanfora, III was born in 1950 to Leonore and Joseph Acanfora, II. At the age of five, Acanfora and his family moved from Jersey City to Brick Town, New Jersey.[2] Acanfora is the oldest of three children, with a sister being born in 1961 and another sister born 1964.[3] As a young child, Acanfora was interested in the weather, and this interest turned into a passion for meteorology. His mother said that Acanfora "...once tried to eat chicken wings so he could fly up to the clouds and look at them close up."[2] This passion was also spurred by Acanfora's seventh grade science class teacher, who was a former Navy meteorologist.[2] Acanfora graduated as valedictorian of his class from Brick Township High School, in Brick Township, New Jersey in 1968.

Acanfora entered Pennsylvania State University in fall 1968, with the intent to major in meteorology and participate in the Naval Reserve Officers Training Corps.[2] At the end of his sophomore year, Acanfora realized he wanted to teach and decided to major in secondary education.[2] In his junior year, he joined, and soon thereafter became Treasurer of the Homophiles of Penn State (HOPS), a newly formed campus organization dedicated to protecting the civil and constitutional rights of homosexuals and increasing public understanding of homosexuality. When the university refused to grant official recognition to the organization, four of its members, including Acanfora, instituted legal action to compel such recognition. That action, which ultimately was successful, received considerable local publicity, in the course of which Acanfora acknowledged that he was a homosexual.

At the time that his acknowledgment became public, Acanfora was fulfilling the student teaching assignment that was necessary to obtain his teaching degree from Penn State at Park Forest Junior High School located in State College, Pennsylvania. That school system and Penn State immediately suspended his student teaching status upon learning of his homosexuality and membership in HOPS. Acanfora thereupon instituted legal action seeking reinstatement as a student teacher, and obtained an immediate court injunction granting such reinstatement. He successfully completed the student teaching assignment with a grade of "B" and graduated from Penn State in June 1972.[4]

As his senior year was coming to a close Acanfora applied for certification to teach in Pennsylvania. The question was raised by the Penn State dean of the College of Education, Dean Abram VanderMeer, as to whether a homosexual could have the requisite "good moral character" necessary for certification.[5] This issue became a subject of great campus, county, and statewide controversy, including an interrogation of Acanfora by six Penn State deans who made up the University Teacher Certification Council. When the Council deadlocked 3–3 on whether or not Acanfora possessed a "good moral character", the matter was referred to the then Pennsylvania Secretary of Education, John C. Pittenger, for decision.[6] With his Pennsylvania status in this undecided posture, Acanfora sought and found employment as a teacher with the Montgomery County Public Schools in Maryland.

On November 7, 1972, Acanfora instituted a lawsuit against the Board of Education, the Superintendent (Dr. Elseroad), and the Deputy Superintendent (Dr. Miedema), under 42 U.S.C. § 1983 in the U.S. District Court for the District of Maryland. The complaint alleged that:

1. Acanfora had been transferred for constitutionally impermissible reasons, and
2. he had been denied procedural due process.

An extensive trial ensued in the federal District court in Baltimore, Maryland.

Much of the trial was devoted to eliciting the facts outlined above. Acanfora testified regarding the philosophy that guided him in his professional role as a teacher. He explained in his testimony that in his view it would be wholly inappropriate for a teacher to discuss his sexual orientation with students. He would not, and had not, discussed any aspects of sexuality either with students or fellow faculty members. He would not advocate, and had not advocated, that any other person participate in homosexual activities. Asked how, if he were reinstated, he would respond to students who might inquire about his homosexuality. Acanfora testified that he would tell students that he did not inquire into their personal lives and that he wished them not to inquire into his. Acanfora's supervisor testified that his teaching performance had been wholly satisfactory. Students of Acanfora testified that he was a popular and effective teacher and that they hoped he would be reinstated. Students and faculty alike had sponsored petitions urging Montgomery county Schools to reinstate him. (Both the local Montgomery County Education Association and the National Education Association, the largest teachers' group in the U.S., lent their support.[10]) The record contained no evidence that any students, parents, or faculty members objected to his reinstatement at the time.

In addition to testimony concerning the facts, both sides introduced concerning the possible effects of Acanfora teaching in the classroom. The experts were unanimous that there is generally no danger in homosexuals teaching in the public schools. However, Montgomery County School Board's experts contended that the return of Acanfora to the classroom might conceivably be dangerous because of the conjunction of two additional facts:

1. as a result of the publicity, his students would be aware of his homosexuality, and
2. he taught at a grade level in which students were entering adolescence.

In their view, if Acanfora was an effective and popular teacher he would constitute a "role model" for his students. The experts feared that a "relatively few" students who enter adolescence with "extreme emotional disturbances" might be so impressed with Acanfora as a teacher that they would seek to emulate him in all respects, and thus decide to become homosexuals. The experts likened their view that Acanfora be excluded from the classroom to an "inoculation program" even though only a "handful of individuals" might be affected, he should be excluded. They acknowledged that their concerns were wholly speculative, that there was no relevant data on the subject, and that there is no known instance of a homosexual teacher, simply because he was known to be a homosexual, having an adverse effect on even a single adolescent.

Acanfora's experts disagreed with this speculation, advancing several reasons why Acanfora's impressiveness as a teacher would not result in students becoming homosexuals to emulate him.

The Superintendent of Schools, Dr. Elseroad, testified that he opposed reinstatement of Acanfora, for three reasons:

1. Acanfora had "withheld information on his application" i.e. his membership in the Homophiles of Penn State,
2. employment of a known homosexual in the classroom "increases the risk of having a good model available for students in the public schools", and
3. because Acanfora's homosexuality "has become widely-known and highly publicized", returning him to the classroom "would involve that school in a swirl of controversy. . ."

On May 1, 1973, after the trial but prior to the district court's decision, Montgomery County Schools notified Acanfora that his employment would not be renewed for the 1973–74 school year. The notification did not state the reasons for non-renewal, but its issuance came only two weeks after Dr. Elseroad's testimony as to the reasons why he did not believe Acanfora should be reinstated to the classroom. The district court reopened the record, at Acanfora's request, to admit the non-renewal notice into evidence.

The district court found that it was "quite clear from the evidence that the essential reason for the transfer was that Acanfora is an admitted homosexual", and that "the Board of Education would not knowingly hire a homosexual". "The Board has in no way attacked Acanfora's classroom performance, nor has it charged Acanfora with bringing up the subject of homosexuality in the school environment. The evidence is that he is competent and that he did not discuss his private life while at school".

Declaring that "the time has come today for private, consenting, adult homosexuality to enter the sphere of constitutionally protectible interests", the court ruled that one's right to be a homosexual is protected by the First Amendment's freedom of association and by the right of privacy enunciated by this Court in, inter alia, Roe v. Wade, 410 U.S. 113 (1973).

The court concluded, therefore, that Acanfora could be removed from the classroom, and his protected interests thus transgressed, only if there were an overriding state interest justifying that action. The only evidence which had been proffered by respondents going to that issue was the testimony of their experts, and accordingly the court recounted all of the expert testimony in great detail. The court concluded that respondents had not sustained their burden of proving an overriding state interest. While it would be "premature to state definitively that Acanfora's presence in the classroom would have no deleterious effect", the risk, albeit "not illusory", "does not seem as great or as likely as defendants have assumed". The court concluded that "the 'board of education's policy of not knowingly employing any homosexuals is objectionable"; that "mere knowledge that a teacher is homosexual is not sufficient to justify transfer or dismissal"; that a teacher need not hide his homosexuality in order to retain his teaching position; that the transfer was "arbitrary" and "without legal justification as matters then stood"; and that the transfer was a "transgression" by Montgomery County Public Schools.

The district court also held that Acanfora had been denied procedural due process. Acanfora had a "clearly implied promise of continued employment in a classroom teaching capacity for the duration of [his] contract", and thus a property interest which could not be taken away without procedural due process. Additionally, the precipitous transfer was "an implicit allegation that his homosexuality determines unfitness to teach", and thus interfered with his liberty interests. Since defendants transferred him without any prior investigation or hearing, and thereafter conducted only a "cursory investigation" without even then providing him any hearing, he was denied procedural due process.

Despite these rulings, the district court held that Acanfora was entitled to no relief for any of the constitutional violations committed against him. With respect to the substantive violations, the court held that Acanfora's post-transfer appearances on radio and television programs disqualified him from entitlement to relief. Those appearances "were not reasonably necessary" for "self-defense", and would likely spark unnecessary controversy regarding the subject of "homosexuality and the classroom".

"Accordingly, despite the initial transgression of the defendants, the Court cannot grant plaintiff the relief for which he prays. Plaintiff's public activities as herein described are not 'protectable' and the Court cannot at this time characterize the refusal to reinstate plaintiff or renew his contract as arbitrary or capricious under either the First Amendment or the Equal Protection Clause of the Fourteenth Amendment."

With respect to the procedural due process violations, the district court thought them cured by the de nova trial which Acanfora received in his lawsuit: "The parties have shifted their attention to the plenary hearing in this forum".

On appeal, the 4th Circuit Court of Appeals issued its decision concluding that Acanfora's post-transfer public appearances were protected by the First Amendment, and that "they do not justify either the action taken by the school system or the dismissal of his suit [by the district court]".

Nevertheless, "without reaching Acanfora's claim that his denial of a teaching position is unconstitutional, we affirm the district court, but on different grounds". In the view of the court below, Acanfora "is not entitled to relief because of material omissions in his application for a teaching position".

The court found controlling a series of decisions in which this Court and other courts of appeals have held that one who is prosecuted or otherwise punished for lying to the Government may not defend by attacking the constitutionality of the question which elicited the lie. Acanfora had argued that these cases were inapposite "because the school officials transferred him on account of his homosexuality, not the omission from his application". The court acknowledged, as the district court had found, that the transfer was not motivated by the omission from the application. Nevertheless, it found the cases controlling for two reasons. First, to limit the cases to prosecution or punishment for lying would constitute "an unduly restrictive application of the principles expressed" in those cases. Second, respondents should not be "prejudiced" by their failure to rely upon the omission as a motivation for transferring Acanfora, for at that time they only suspected that the omission was deliberate and it was not until trial that the suspicion was confirmed. The court noted that at trial the Superintendent had testified that the omission was one of the reasons which made him unwilling to reinstate Acanfora, and concluded that this was sufficient to warrant application of the "lying to the Government" cases.

With respect to the procedural due process issue, the 4th Circuit Court of Appeals merely reiterated the district court's reasoning that, as there had been a full hearing in court, the failure to furnish an administrative hearing was cured.

Acanfora appealed the decision of the 4th Circuit Court of Appeals to the United States Supreme Court at its October Term, 1973. The Court thereafter denied certiorari, effectively upholding the lower court decision and refusing to reinstate Acanfora to his teaching position with Montgomery County Public Schools.

Acanfora never taught after he was not reinstated at Montgomery County Public Schools. Instead, he found work in Washington, D.C. and later moved to California. Once in California, Acanfora stayed within higher education, working at the University of California, in contract and grant administration and in patents and intellectual property management.[6] These days, Acanfora lives in Saigon with his husband, and they blog about their food experiences there.

• The Case of Joe Acanfora Webpage
• Penn State University Commission on Lesbian, Gay, Bisexual, Transgender Equity
• Queers Anonymous: Lesbians, Gay Men, Free Speech, and Cyberspace, Harvard Civil Rights – Civil Liberties Law Review, Vol 38, No. 1, Winter 2003 Copyright © 2003 by the President and Fellows of Harvard College
• Section of Individual Rights and Responsibilities,American Bar Association Human Rights,Volume 24 Number 3 Summer 1997,Where Are the Civil Rights for Gay and Lesbian Teachers?
• Power, Prejudice, and the Right to Speak: Litigating "Outness" under the Equal Protection Clause Bobbi Bernstein, Stanford Law Review, Vol. 47, No. 2 (Jan., 1995), pp. 269-293 doi:10.2307/1229228
• "How Diversity is Measured: Sexual Orientation". DeLoggio Admissions Achievement Program.