dissenting:
Today's majority, like the trial court below, seemingly does not want to hear the clamoring of the difficult and extremely important legal issue raised by this case. The majority proclaims that the record contains solid support for the district court’s finding that Ms. Naragon’s homosexuality was not a motivating factor in her reassignment. I perceive, however, a critical and inescapable flaw in that support. With all due respect to the wise and sagacious judge writing for the majority, my review of the record leaves me with the “definite and firm conviction that a mistake has been committed.” United States v. Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948).
My quarrel with the majority’s result does not flow from my disbelief of testimony offered by the defendants. University administrators testified that neither Ms. Naragon’s homosexuality nor the homosexual nature of her relationship with Ms. Doe were relevant to administrators’ personal opinions regarding whether Ms. Naragon was conducting herself “professionally” and as a proper “role-model.” I could hardly hold the district court clearly erroneous based on its decision to credit the testimony of the defendants over that of the plaintiff on the issue of the defendants’ own subjective motivations. But that fact alone cannot end the inquiry into whether Ms. Naragon’s sexual preference was a motivating factor in her reassignment. Our equal protection jurisprudence demands a more exacting search for bias when questions of unequal treatment are at issue.
The record contains uncontroverted evidence that the complaints of Ms. Doe’s parents constituted a central factor in the University’s decision to take action. Specifically, Vice Chancellor Hargrave’s testimony suggested that Ms. Naragon would not have lost her teaching responsibilities but for the parents’ complaints.1 Dean *1407Merriman also painted the parents’ complaint as a major element in the reassignment. When questioned by plaintiff’s counsel, he admitted that a previous heterosexual student-teacher relationship within the Music Department had brought no sanctions against the faculty member involved. This was true despite general knowledge of the relationship among faculty members and despite the fact that the teacher was actually living with a student over whom he had grading responsibility, Transcript, p. 97-98. In explaining why the University took no action in the heterosexual -relationship but did in Ms. Naragon’s case, Dean Merriman relied upon, among other factors, the complaint of Ms. Doe’s parents. Transcript, p. 101. Indeed, the record, the findings of the trial court,2 and the majority opinion3 all converge to support the conclusion that the concerns and actions of Ms. Doe s parents constituíed a motivating factor in plaintiff s reassignment.
Moreover, it is impossible to read this record and conclude anything other than that the parents’ opposition to the relationship centered significantly upon the relationship’s homosexual aspect. In describing the parents’ initial complaint to the University, Vice Chancellor Hargrave said, “they were concerned about homosexual activity with their daughter.” 4 Plaintiff described a particular public confrontation with Ms. Doe’s parents.
Well [it included] any nasty phrase you can think of dealing with homosexuality — I mean people were screaming I was the devil, the work of the devil, that I was going to hell, everybody else was going to hell, that I was ruining this person, that I was a homosexual prostitute, that I was enlisting people to be homosexual, and that was being screamed loudly in front of everyone at the mall.
Transcript, p. 82. Professor Patterson of the Music School characterized the controversy regarding the relationship as follows: “Mr. Doe, John Doe, the father of the female student, Jane Doe, who I believe was a freshman, had accused Ms. Naragon, a graduate'assistant in music, of having a homosexual relationship with his daughter; an(j he wanted her assistantship taken from her.” Transcript, p. 62.
jn past cases where equal protection concerns have been raised, the Supreme Court jjas repeatedly refused to accept public or individual hostility to a protected group as justifying governmental actions against the group. In a recent case, the Supreme Court held that a state judge could not consider the real world existence of racial prejudice in deciding whether a child should be taken from its white mother who was living with a black man. Palmore v. Sido-ti, — U.S.-, 104 S.Ct. 1879, 80 L.Ed.2d 421 (1984). The Court held that despite the state’s duty to protect minor children, “private biases and the possible injury they might inflict” are not permissible considerations. Chief Justice Burger, writing for a unanimous court, held that the “Constitu*1408tion cannot control [private] biases but neither can it tolerate them. Private biases may be outside the reach of the law, but the law cannot, directly or indirectly give them effect.” Id. at-, 104 S.Ct. at 1882 (emphasis added).
The University’s consideration of pressure from Mr. and Mrs. Doe unavoidably infects the school’s action with the biases of the parents. The goal of harmony with the parents of University is a laudable one, but so were the goals of avoiding “interracial disturbances, violence, riots, and community confusion,” Watson v. City of Memphis, 373 U.S. 526, 535, 83 S.Ct. 1314, 1319, 10 L.Ed.2d 529 (1963), and avoiding the “possibility of disorder” Wright v. Georgia, 373 U.S. 284, 293, 83 S.Ct. 1240, 1246, 10 L.Ed.2d 349 (1963), advanced by state officials in explaining discriminatory treatment of blacks., I have little doubt that this Court would have difficulty in finding a causative link to discrimination if this case involved a black teacher and parents who' objected to the interracial aspect of the teacher’s relationship with their daughter. In such a case, this Court, like the Supreme Court in Watson, supra, and Wright, supra, surely would not ignore the claim of discrimination. On this basis, I would hold that thé trial judge below was clearly erroneous in his finding that Ms. Naragon’s sexual preference was not a motivating factor in her reassignment.
A very simple objection underlies my dissent today. The majority has refused to acknowledge a legal question which I believe is plainly presented. The extent to which the Equal Protection Clause of the Fourteenth Amendment prohibits or circumscribes discrimination based upon an individual’s sexual preference is a largely unresolved, yet immensely important legal issue of our day.5 But the obvious role of private biases in the University’s action does not ring loudly enough in the majority’s ears to attract their attention. I will not put a maxim silencer on the validated cries of discrimination and the calls to this Court for constitutional justice. Because the majority does not address what I believe is an unavoidable equal protection concern in this case, I must respectfully dissent.
. Q. Dr. Hargrave, it is true, is it not, that a number of the people in the current administration and in previous administrations have had relationships with other members of the teaching faculty?
A. I don’t—I’m not certain what you're asking. What?
Q. Focusing on relations between—I'm trying to determine the extent of the policy, I understood you to be broadening it to also include administrator personnel who are also members of the faculty, if there was any prohibition of policy between administration—members of the administration having relations with *1407members of the teaching faculty, and you said yes, if it impeded the instructional process.
A. Yes, and if it was brought to my attention that it was impeding the instructional — if it was brought to my attention that there were problems, I would certainly look into it.
Q. The only time you would look at it is if there was a complaint being made?
A. That’s right. We’re not going out looking. We assume the high standards of our facul-Transcript, p. 36.
. The findings of the trial court below confirm the centrality of the parents complaints in bringing about the reassignment. The trial court declared that “the same change in assignment would, in all probability, have been made in the case of any mature, 29 year-old teacher, who became romantically involved with a 17 year-old student, whether the involvement was homosexual or heterosexual, particularly if complaints were lodged with the University about the relationship, and particularly if the relationship resulted in spectacles [with the student's parents] such as occurred publicly in this case
- MaJority Opinion, pp. 1405-1406.
> Vice chancellor Hargrave testified later that the parents were also concerned that their daughter was not "thinking independently." Transcript p 37
. See Karst, "The Freedom of Intimate Association”, 89 Yale L.J. 624, 682-86 (1980); L. Tribe, American Constitutional Law, 944-45 n. 17 (1978).