For a number of years prior to 1965 petitioner held a General Secondary Life Diploma and a Life Diploma to Teach Exceptional Children, issued by the State Board of Education, which qualified petitioner for employment as a teacher in the public secondary schools of California. (Ed. Code, §§ 12905, 13251.) On August 5, 1965, an accusation was filed with the State Board of Education charging that petitioner's life diplomas should be revoked for cause. On March 11, 1966, following a hearing, and pursuant to the recommendations of a hearing examiner, the board revoked petitioner's life diplomas because of immoral and unprofessional conduct and acts involving moral turpitude as authorized by section 13202 of the Education Code.
For the reasons hereinafter set forth we conclude (a) that section 13202 authorizes disciplinary measures only for conduct indicating unfitness to teach, (b) that properly interpreted to this effect section 13202 is constitutional on its face and as here applied, and (c) that the record contains no evidence to support the conclusion that petitioner's conduct indicated his unfitness to teach. The judgment of the superior court must therefore be reversed.
I. The Facts
For a number of years prior to 1964 petitioner worked as a teacher for the Lowell Joint School District. During this period, so far as appears from the record, no one complained about, or so much as criticized, his performance as a teacher. Moreover, with the exception of a single incident, no one suggested that his conduct outside the classroom was other than beyond reproach.
Sometime before the spring of 1963 petitioner became friends with Mr. and Mrs. Fred Schneringer. Mr. Schneringer also worked as a teacher in the public school system. To the Schneringers, who were involved in grave marital and financial difficulties at the time, petitioner gave counsel and advice. In the course of such counseling Mr. Schneringer frequently visited petitioner's apartment to discuss his problems. For a one-week period in April, during which petitioner and Mr. Schneringer experienced severe emotional stress, the two men engaged in a limited, non-criminal
Approximately one year after the April 1963 incident, Schneringer reported it to the Superintendent of the Lowell Joint School District. As a result of that report petitioner resigned his teaching position on May 4, 1964.
Some 19 months after the incident became known to the superintendent, the State Board of Education conducted a hearing concerning possible
The Board of Education finally revoked petitioner's life diplomas some three years after the Schneringer incident. The board concluded that that incident constituted immoral and unprofessional conduct, and an act involving moral turpitude, all of which warrant revocation of life diplomas under section 13202 of the Education Code.
II. Petitioner's actions cannot constitute immoral or unprofessional conduct or conduct involving moral turpitude within the meaning of section 13202 unless those actions indicate his unfitness to teach.
Section 13202 of the Education Code authorizes revocation of life diplomas for "immoral conduct," "unprofessional conduct," and "acts involving moral turpitude." Legislation authorizing disciplinary action against the holders of a variety of certificates, licenses and government jobs other than teaching
Board of Education v. Swan (1953) 41 Cal.2d 546 [261 P.2d 261], and Board of Trustees v. Owens (1962) 206 Cal.App.2d 147 [23 Cal.Rptr. 710], dealt with the term "unprofessional conduct" as applied to teachers. In Swan we stressed: "One employed in public service does not have a constitutional right to such employment and is subject to reasonable supervision and restriction by the authorized governmental body or officer to the end that proper discipline may be maintained, and that activities among the employees may not be allowed to disrupt or impair the public service." (Italics added.) (41 Cal.2d 546, 556.)
In Orloff v. Los Angeles Turf Club, Inc. (1951) 36 Cal.2d 734 [227 P.2d 449], we dealt with a statute authorizing the exclusion from theaters, museums, and race courses of persons of "immoral character." We reasoned that the objective of the statute was "the protection of others on the premises." (Id. at p. 740.) Accordingly we held that a person might be excluded if, for example, he committed a lewd act or an act inimical to the public safety or welfare after gaining admittance to the place of entertainment. But we stressed that no sweeping inquiry could be made into the background and reputation of each person seeking admission. "[T]he private business, the personal relations with others, the past conduct not on the premises, of a person applying for or admitted to the [race] course, whether or not relevant to indicate his character, are immaterial in the application of the statutory standards...." (Orloff v. Los Angeles Turf Club, Inc., supra, 36 Cal.2d 734, 741.)
In Jarvella v. Willoughby-Eastlake City School Dist. (1967) 12 Ohio Misc. 288, 41 Ohio Ops.2d 423 [233 N.E.2d 143], the court faced the issue of whether a teacher could be dismissed for "immorality" merely because he
By interpreting these broad terms to apply to the employee's performance on the job, the decisions in Hallinan, Yakov, Swan, Owens, Orloff and Jarvella give content to language which otherwise would be too sweeping to be meaningful. Terms such as "immoral or unprofessional conduct" or "moral turpitude" stretch over so wide a range that they embrace an
Nor is it likely that the Legislature intended by section 13202 to establish a standard for the conduct of teachers that might vary widely with time, location, and the popular mood. One could expect a reasonably stable consensus within the teaching profession as to what conduct adversely affects students and fellow teachers. No such consensus can be presumed about "morality." "Today's morals may be tomorrow's ancient and absurd customs." (Note, supra, 14 U.C.L.A.L.Rev. 581, 587.)
That the meaning of "immoral," "unprofessional," and "moral turpitude" must depend upon, and thus relate to, the occupation involved finds further confirmation in the fact that those terms are used in a wide variety of contexts. Along with public school teachers, all state college employees (Ed. Code, § 24306, subd. (a)), all state civil service workers (Gov. Code, § 19572, subd. (1)), and all barbers (Bus. & Prof. Code, § 6582)
III. If interpreted in this manner section 13202 can be constitutionally applied to petitioner.
Petitioner urges three substantive reasons to support his contention that section 13202 upon its face or as construed by the board deprived him of his constitutional rights. As we shall show, however, that section, as we have interpreted it, could constitutionally apply to petitioner.
Petitioner first suggests that the terms "unprofessional," "moral turpitude," and particularly "immoral" are so vague as to constitute a denial of due process.
Orloff also indicated, however, that such vagueness could be resolved by a more precise judicial construction and application of the statute in conformity with the legislative objectives. (Id. at p. 740.) In this manner we upheld in Orloff a provision authorizing the exclusion from certain public accommodations of a person of immoral character. We sustained in a similar way the term "unprofessional conduct" against a challenge of vagueness in Board of Education v. Swan, supra, 41 Cal.2d 546, 553-554.
Petitioner secondly contends that the ban on immoral conduct in section 13202 violates his constitutionally protected right to privacy. It is true that an unqualified proscription against immoral conduct would raise serious constitutional problems.
Finally, petitioner urges that the board cannot revoke his life diplomas because his questioned conduct does not rationally relate to his duties as a teacher.
IV. The record contains no evidence that petitioner's conduct indicated his unfitness to teach.
As we have stated above, the statutes, properly interpreted, provide that the State Board of Education can revoke a life diploma or other document of certification and thus prohibit local school officials from hiring a particular teacher only if that individual has in some manner indicated that he is unfit to teach.
This lack of evidence is particularly significant because the board failed to show that petitioner's conduct in any manner affected his performance as a teacher. There was not the slightest suggestion that petitioner had ever attempted, sought, or even considered any form of physical or otherwise improper relationship with any student.
Before the board can conclude that a teacher's continued retention in the profession presents a significant danger of harm to students or fellow teachers, essential factual premises in its reasoning should be supported by evidence or official notice. In this case, despite the quantity and quality of information available about human sexual behaviour,
The facts in this case closely resemble those in Norton v. Macy, supra, 417 F.2d 1161. In Norton a federal employee was dismissed for homosexual behavior outside of working hours which the United States Civil Service Commission labeled "immoral." The court held that he could be dismissed only if he had committed or was likely to commit some act with an "ascertainable deleterious effect on the efficiency of the service." (P. 1165.) The employee's immediate superior testified that he was competent and performed very good work. Federal officials conceded that the "immoral" conduct caused no problems of national security and that the "immorality" had provoked no difficulties with fellow employees. The employee had neither openly flaunted nor carelessly displayed his unorthodox sexual conduct in public. The government justified the dismissal only by a vague
Respondent relies heavily on Sarac v. Board of Education (1967) 249 Cal.App.2d 58 [57 Cal.Rptr. 69]. The facts involved in Sarac are clearly distinguishable from the instant case; the teacher disciplined in that case had pleaded guilty to a criminal charge of disorderly conduct arising from his homosexual advances toward a police officer at a public beach; the teacher admitted a recent history of homosexual activities. The court's discussion in that case includes unnecessarily broad language suggesting that all homosexual conduct, even though not shown to relate to fitness to teach, warrants disciplinary action. (Id. at pp. 63-64.) The proper construction of section 13202, however, as we have demonstrated, is more restricted than indicated by this dicta in Sarac, and to the extent that Sarac conflicts with this opinion it must be disapproved.
Although the superior court in the instant case rendered a conclusion of law that petitioner had demonstrated his unfitness to teach, we cannot ascertain with certainty whether or not the court in so ruling relied upon this erroneous dicta in Sarac. (Compare Screws v. United States (1945) 325 U.S. 91, 106-107 [89 L.Ed. 1495, 1505-1506, 65 S.Ct. 1031].)
In deciding this case we are not unmindful of the public interest in the elimination of unfit elementary and secondary school teachers. (See Beilan v. Board of Education (1958) 357 U.S. 399, 406-408 [2 L.Ed.2d 1414, 1420-1421, 78 S.Ct. 1317]; Adler v. Board of Education (1952) 342 U.S. 485, 493 [96 L.Ed. 517, 524, 72 S.Ct. 380, 27 A.L.R.2d 472]; Board of Education v. Swan, supra, 41 Cal.2d 546, 553-554; Vogulkin v. State Board of Education (1961) 194 Cal.App.2d 424, 429-430 [15 Cal.Rptr. 335].) But petitioner is entitled to a careful and reasoned inquiry into his
The power of the state to regulate professions and conditions of government employment must not arbitrarily impair the right of the individual to live his private life, apart from his job, as he deems fit. Moreover, since modern hiring practices purport to rest on scientific judgments of fitness for the job involved, a government decision clothed in such terms can seriously inhibit the possibility of the dismissed employee thereafter successfully seeking non-government positions.
Our conclusion affords no guarantee that petitoner's life diplomas cannot be revoked. If the Board of Education believes that petitioner is unfit to teach, it can reopen its inquiry into the circumstances surrounding and the implications of the 1963 incident with Mr. Schneringer.
The judgment of the superior court denying the writ of mandate is reversed, and the cause is remanded to the superior court for proceedings consistent with this opinion.
Traynor, C.J., Peters, J., and Mosk, J., concurred.
We deal here with the right and duty of respondent State Board of Education (Board) to discipline public schoolteachers for immoral or unprofessional conduct. The precise question before us is this: Did the Board properly revoke petitioner's life diplomas upon determining that petitioner, while employed as a teacher, had committed homosexual acts and engaged in a homosexual relationship with a fellow teacher and that such acts constituted immoral and unprofessional conduct within the meaning of sections 13202 and 13209 of the Education Code?
The record is clear and without dispute. Petitioner, while employed as a teacher in the Lowell Joint School District, engaged in homosexual acts with Fred Schneringer, also a public schoolteacher. The acts took place in petitioner's apartment on four separate occasions, over a period of one week, in April 1963; both parties consented. It would serve no useful purpose to describe or detail them except to note that they did not fall within the statutory offenses of sodomy or oral copulation. Nor is it necessary to set forth the somewhat longer history of the relationship between the two men or interpret the overtones of petitioner's testimony concerning it. Petitioner admitted the commission of the acts and acknowledged that they were homosexual acts; he makes the same admissions on this appeal. Nevertheless it should also be noted that although making these admissions before the hearing officer, petitioner specifically denied that what he had done was an immoral act or unprofessional conduct or "a situation of moral turpitude." He also testified that he had become a homosexual at the age of 13, that he
In August 1965 an accustation was filed against petitioner with respondent Board alleging the foregoing incidents or at least one of them
The hearing officer concluded (under "Determination of Issues") that petitioner violated sections 13202 and 13129 of the Education Code in that he (1) "Committed acts involving moral turpitude; (2) Committed acts involving unprofessional conduct." Revocation of petitioner's life diplomas was recommended. On March 11, 1966, the Board adopted the decision of the hearing officer.
On February 14, 1967, petitioner sought in the superior court a writ of mandate commanding the Board to set aside its decision. In those proceedings, petitioner was represented by the same counsel who appears for him on this appeal. Upon the issuance of an alternative writ, the matter was submitted upon the administrative record which was received in evidence. The trial court, the Honorable Ralph Nutter, Judge, exercising its independent judgment on the evidence (Code Civ. Proc., § 1094.5, subd. (c); see Merrill v. Department of Motor Vehicles (1969) 71 Cal.2d 907, 913-916 [80 Cal.Rptr. 89, 458 P.2d 33]) found, so far as is here material, as
The trial court concluded that petitioner committed homosexual acts involving moral turpitude and that such acts constituted immoral and unprofessional conduct within the meaning of sections 13202 and 13209 of the Education Code; and that the action of the Board in revoking the life diplomas was correct "in that petitioner demonstrated he was unfit for service as a teacher in the California public school system within the meaning" (italics added) of the above sections. The court entered judgment discharging the alternative writ and denying the petition for the peremptory writ.
On appeal the Court of Appeal, Second Appellate District, Division Two, affirmed the denial of mandate in an opinion prepared by Presiding Justice Roth and concurred in by Justice Herndon and Justice Fleming, in which they declared that "we cannot say there is no rational connection between petitioner's homosexual conduct and his fitness for service in the public school system." I am firmly convinced that the superior court and the Court of Appeal correctly disposed of the matter. I must disagree with the analysis proffered by the majority opinion of this court. I would affirm the judgment.
Section 13202 of the Education Code which is at the center of this controversy provides in pertinent part: "The State Board of Education shall revoke or suspend for immoral or unprofessional conduct, ... or for any cause which would have warranted the denial of an application for a certification document or the renewal thereof, or for evident unfitness for service, life diplomas, documents, or credentials issued pursuant to this code." Section 13129 of the same code provides that the Board "... may deny any application for the issuance of a credential or a life diploma ... made by an applicant who ... (e) Has committed any act involving moral turpitude...." Although the first section is couched in mandatory terms and the second in permissive terms (§ 36),
The crucial question before us is whether the homosexual acts and relationship in which petitioner engaged constituted immoral or unprofessional conduct within the meaning of section 13202.
In Sarac v. State Board of Education (1967) 249 Cal.App.2d 58 [57 Cal.Rptr. 69], the court upheld the Board's revocation of a general secondary teaching credential pursuant to section 13202 upon the rationale that homosexual acts constituted immoral and unprofessional conduct within the compass of that section. In that case the acts were committed on a public beach and the teacher was arrested for violation of Penal Code section 647, subdivision (a), and convicted, on his plea of guilty, of violation of a municipal ordinance. However, the accusation filed before the Board charged that he was unfit for service in the public school system under section 13202 because of his conduct as well as because of the criminal proceedings occasioned by his conduct. There, as in the instant case, the trial court on review of the administrative proceedings concluded that the teacher had committed a homosexual act involving moral turpitude which conduct constituted both immoral and unprofessional conduct within the meaning of section 13202. There, as in the instant case, the trial court concluded that the teacher had demonstrated that he was unfit for service in the public school system. There, as in the instant case, on appeal from the trial court's denial of a writ of mandate, the teacher challenged the Board's action on the ground among others that it had failed to establish any rational connection between his homosexual conduct and "... immorality and unprofessional conduct as a teacher on his part and his fitness for service in the public schools; ..." (249 Cal. App.2d at p. 62.)
The court's rejection of the appeal in that case is a convincing answer to the question now confronting us: "... Homosexual behavior has long been contrary and abhorrent to the social mores and moral standards of the people of California as it has been since antiquity to those of many other peoples. It is clearly, therefore, immoral conduct within the meaning of Education Code, section 13202. It may also constitute unprofessional conduct within the meaning of that same statute as such conduct is not limited to classroom misconduct or misconduct with children. (See Beilan v. Board of Public Education, 357 U.S. 399, 406-408 [2 L.Ed.2d 1414, 78 S.Ct. 1317].) It certainly constitutes evident unfitness for service in the public school system within the meaning of that statute. (Cf. Ed. Code,
The majority argue that Sarac is distinguishable from the instant case on its facts. It is asserted that the teacher's homosexual conduct occurred on a public beach, whereas this petitioner's conduct occurred in the privacy of his apartment. Apparently this asserted difference reflects the view that, absent a criminal offense, petitioner's private life is his own business and the state "... must not arbitrarily impair the right of the individual to live his private life, apart from his job, as he deems fit...." But the clandestine character of petitioner's acts did not render them any the less homosexual acts. These still remained, to borrow the language of Sarac "... contrary and abhorrent to the social mores and moral standards of the people of California...." (Sarac v. State Board of Education, supra, 249 Cal.App.2d 58, 63.) It would be fatuous to assume that such acts became reprehensible only if committed in public. One would not expect petitioner and Schneringer to commit the acts here involved (which, as I have said, need not be detailed) in full view of the citizenry.
It is also asserted by the majority that the teacher in Sarac pleaded guilty to and was convicted of a criminal charge. However, as I have pointed out, the accusation filed with the Board in that case was based primarily on the teacher's homosexual conduct.
The court in Sarac also sustained the trial court's finding that the homosexual act there committed was one involving moral turpitude. As already stated, a similar finding and determination were made in the instant matter not only in the administrative proceedings but also in the superior court proceedings on review. The determination is unassailable. Although we have recognized on occasion that the problem of defining moral turpitude is not without difficulty (In re Hallinan (1954) 43 Cal.2d 243, 247 [272 P.2d 768]; In re Hatch (1937) 10 Cal.2d 147, 150-151 [73 P.2d 885]), nevertheless this court has for many years followed the lodestar of Matter of Coffey (1899) 123 Cal. 522, 524 [56 P. 448], which relying on Bouvier, defined moral turpitude as "... everything done contrary to justice, honesty, modesty or good morals...." (See for example: Marlowe v. State Bar (1965) 63 Cal.2d 304, 308 [46 Cal.Rptr. 326, 405 P.2d 150]; Arden v. State Bar (1959) 52 Cal.2d 310, 321 [341 P.2d 6]; Call v. State Bar (1955) 45 Cal.2d 104, 109 [287 P.2d 761]; In re McAllister. (1939) 14 Cal.2d 602, 603 [95 P.2d 932]; In re Hatch, supra, 10 Cal.2d 147, 150-151 [73 P.2d 885]; Jacobs v. State Bar (1933) 219 Cal. 59, 64 [25 P.2d 401]; Lantz v. State Bar (1931) 212 Cal. 213, 218 [298 P. 497].)
In In re Boyd (1957) 48 Cal.2d 69 [307 P.2d 625] this court ordered the suspension from the practice of law of an attorney convicted on his plea of guilty of a violation of former Penal Code section 647, subdivision 5, providing that "... [e]very lewd or dissolute person is a vagrant...." The court held that the acts constituting the offense in question involved moral turpitude, declaring: "Moral turpitude has been defined as: `An act of baseness, vileness, or depravity in the private and social duties which a man owes to his fellow men or to society in general, contrary to the accepted and customary rule of right and duty between man and man.' [Citations.] [Par.] No citation of authority or argument is needed to support the conclusion that the conduct of petitioner fell within the purview of the above definition. His offense was one of depravity, contrary to the accepted and customary rule of right and duty between man and man, and was therefore an offense involving moral turpitude. The act was committed in a public place. Without further recitation of the facts, it is enough to say that such conduct is unworthy of a member of the legal profession." (48 Cal.2d at p. 70.)
If the foregoing applies to an attorney whose professional contacts presumably are almost invariably with adults, how much more significant is the rationale when applied to a school teacher whose professional duties are directed exclusively towards the moral as well as the intellectual, social and civic development of young and impressionable minds. Section 13556.5
In view of the foregoing, as I have already said, I am in agreement with the trial court and the Court of Appeal, and like them, I cannot say on this record that there is no rational connection between petitioner's homosexual acts and his fitness for service in the public school system.
A considerable part of the majority opinion is devoted to a consideration of the terms "immoral conduct," "unprofessional conduct," and "moral turpitude" in a wide variety of contexts other than that of the teaching profession and in reference to numerous occupations having no relevance to the instant problem, which need not be enumerated and require no attention other than to say they cover a range from barbers to veterinarians. After a survey of this catalogue, the majority posit the following views, among others: That in using the above-quoted terms, "the Legislature surely did not mean to endow the employing agency with the power to dismiss any employee whose personal, private conduct incurred its disapproval"; that unless a reasonable and restrictive interpretation of the term is adopted, the statutes before us would possibly "subject to discipline virtually every teacher in the state"; that the Legislature for example did not intend to compel disciplinary action against teachers for "peccadillos" or "passing conduct" if it "did not affect students or fellow teachers"; that "incidents of extramarital heterosexual conduct against a background of years of satisfactory teaching would not constitute `immoral conduct' sufficient to justify revocation of a life diploma without any showing of an adverse effect on fitness to teach"; that by enacting section 13202 the Legislature did not intend "to establish a standard for the conduct of teachers that might vary widely with time, location, and the popular mood"; that the meaning of the above terms "must depend upon, and thus relate to, the occupation involved...."; and that the Board "cannot abstractly characterize the conduct in this case as `immoral,' `unprofessional,' or `involving moral turpitude.'"
Finally from this extensive disquisition the majority arrive at the conclusion
Faced with this decision made by the Board with its expertise in educational matters upon a record vividly disclosing the homosexual acts involved, the majority nevertheless maintain that the record "contains no evidence whatsoever" indicating petitioner's unfitness to teach. Initially they assert that the Board called no medical, psychological, or psychiatric experts for an opinion as to the likelihood of petitioner's repeating the acts. Nowhere do I find in the Education Code, nor does the majority point out, that such evidence is indispensable to proceedings under the statute. The majority further argue that the Board offered no evidence that petitioner would be more likely to act improperly towards a student "than the average adult male"
Petitioner made no attempt to introduce any of the evidence which the majority now deem so crucial and even indispensable and the Board found that the showing he did make did not establish extenuation or mitigation. While I realize that he chose to appear before the Board without counsel, nevertheless he did have counsel at all times during the proceedings in the trial court. Nevertheless at no time in the trial court did he offer to produce any additional evidence (see Code Civ. Proc., § 1094.5, subd. (d); see also Merrill v. Department of Motor Vehicles, supra, 71 Cal.2d 907, 914, fn. 10 and accompanying text), much less any evidence which the majority deem so essential, contenting himself with submitting the matter on the administrative transcript.
In sum, the majority opinion boils down to this: "... the Board failed to show that petitioner's conduct in any manner affected his performance as a teacher" and "petitioner is entitled to a careful and reasoned inquiry into his fitness to teach by the Board of Education before he is deprived of his right to pursue his profession." Taking this position, the majority remand this case to the superior court presumably, although they do not say so, to be remanded by that court in turn to the Board.
I feel it my duty to observe, with all due respect to the majority, that this action is taken without proper recognition of our function of review in cases of administrative boards as recently spelled out by this court unanimously in the Merrill case. (See Merrill v. Department of Motor Vehicles, supra, 71 Cal.2d 907.) To recapitulate: The Board in this case found on overwhelming evidence, indeed on the frank but unrepentant admissions of petitioner, that he had committed homosexual acts with another teacher and concluded that these acts constituted immoral and unprofessional conduct and acts involving moral turpitude. The trial court reached the same conclusion. The majority opinion is silent on this point. Yet I would respectfully suggest that it is an essential step in any process of reasoning which seeks to strike down the Board's action. Were petitioner's acts immoral or not? Or was he perhaps correct after all in maintaining they were not? The majority do not answer this question; nevertheless they reverse the judgment and remand the cause to the trial court for further proceedings. I would think that under the circumstances the question should be answered for the guidance of the court below on retrial; that court, as well as the Board, should be told whether or not they were in error in concluding that petitioner's homosexual acts were immoral and involved moral turpitude. As I said at the beginning, this is the pivotal question and I think it was correctly answered by the Board, the trial judge and the three appellate justices.
This brings me to the next step in the record. The Board, possessing
Finally, I am unable to understand how the majority can reject the pertinent precedent and compelling rationale of the Sarac case (Sarac v. State Board of Education, supra, 249 Cal.App.2d 58) as being distinguishable, which it is not, and embrace the out-of-state decision of Norton v. Macy (D.C. Cir.1969) 417 F.2d 1161 as one closely resembling the instant case, which it definitely does not. Norton involved a federal employee charged with off-duty homosexual conduct. He was not a school teacher, much less one who had committed the acts with a fellow teacher; he was not, like this petitioner, a person charged with the responsibility of impressing the principles of morality on young minds; so far as appears, he had no dealings with children at all, nor, so far as appears, was he a person like petitioner, who while frankly admitting homosexual acts, insisted nevertheless that he had done nothing immoral. In Norton the court stated that "the employer agency must demonstrate some `rational basis' for its conclusion that a discharge `will promote the efficiency of the service.' `The ultimate criterion [is] whether the employer acted reasonably....'" It found the dismissal arbitrary because the employer had shown no such basis.
In the instant case, both the Board and the trial court concluded that petitioner was unfit. I cannot say there is no rational connection between petitioner's homosexual acts and his fitness to teach. As the trial court properly determined, the Board's findings were supported by the weight of the evidence and its determination of the issues was supported by its findings. The Board, therefore, did not abuse its discretion. (Code Civ. Proc., § 1094.5, subd. (c).) We have no right to upset its action. I would affirm the judgment of the trial court.
McComb, J., concurred.
I concur generally with the dissenting opinion of Justice Sullivan, but I am impelled to express an additional view.
The majority opinion of this court contains an elaborate discussion of varying factual situations in which homosexual acts could occur, states that
Beyond that issue, however, lie the continuing difficulties inherent in a system of judicial review that requires courts to reweigh the evidentiary matters that are presented to it in the cold record of an administrative proceeding. This case, and other recent cases,
In California, unlike most other jurisdictions, trial courts are presently required to exercise their own independent judgment, based upon the weight of the evidence, in reviewing those decisions of statewide, legislatively created administrative agencies that are alleged to deprive one of his "vested rights." However, our trial courts are permitted to employ the ordinary substantial evidence review of all other administrative decisions, including
Apart from the artificiality of any distinction which makes the applicable scope of review dependent upon the type of agency involved and the type of rights affected, each of the above-quoted phrases has raised its own peculiar interpretive problems, thereby requiring an undesirable "case-by-case" approach to deciding what kind of judicial review is appropriate.
McComb, J., concurred.
Conviction of such offenses would have resulted in the mandatory revocation of all diplomas and life certificates issued by the State Board of Education. (Ed. Code, §§ 12912, 13206, 13207; see also Ed. Code, §§ 13216, 13218, 13255, 13586, and 13742.)
The Education Code thus draws an important distinction between different types of sexual indiscretions by teachers, dealing with such conduct in two different parts of the code. Conviction of certain sex crimes entails automatic dismissal. (Ed. Code, §§ 13192, 13206.) But other sexual misconduct results in discipline only if it is "immoral," "unprofessional" or involves "moral turpitude." (Ed. Code, §§ 13202, 13129, subd. (e).) A teacher is entitled to a hearing if charged under section 13202, but not if charged with conviction of a crime under section 13206. DiGenova v. State Board of Education (1955) 45 Cal.2d 255 [288 P.2d 862].) A rule that homosexual conduct was "immoral" or "unprofessional" per se would obliterate the distinction between criminal convictions and other sexual misconduct, since discipline for immoral or unprofessional conduct is mandatory, and would substantially reduce the significance of the hearing contemplated by statute. (Ed. Code, § 13203.) With regard to the possibility of such a per se rule, moreover, we note that the Assembly subcommittee which proposed sections 12912, 13206, 13207, 13216, 13218, 13255, 13586, and 13742 of the Education Code dealing with sex crimes, questioned whether even persons "convicted of sex offenses" could always be deprived of their teaching credentials under section 13202. (See Report of the Subcommittee on Sex Crimes of the Assembly Interim Committee on Judicial System and Judicial Process, Journal of the Assembly (1952) Second Ex. Sess., pp. 136, 171-175.)
As to whether non-criminal sexual conduct can be "immoral" within the meaning of federal civil service regulations, see Pelicone v. Hodges (Dist. Col. 1963) 320 F.2d 754, 757 fn. 8 [116 App. D.C. 32]. The federal government apparently takes the position that even criminal sexual behavior is not ground for dismissal unless it is widely regarded as repugnant. (See Note (1969) 82 Harv.L.Rev. 1738, 1742.) In determining whether discipline is authorized and reasonable, a criminal conviction has no talismanic significance. (See, e.g., Yakov v. Board of Medical Examiners (1968) 68 Cal.2d 67 [64 Cal.Rptr. 785, 435 P.2d 553]; Lorenz v. Board of Medical Examiners (1956) 46 Cal.2d 684 [298 P.2d 537]; In re Hallinan (1954) 43 Cal.2d 243 [272 P.2d 768].)
Under the interpretations given to the terms "immoral conduct," "unprofessional conduct," and "moral turpitude," these terms substantially overlap one another. They also cover much the same conduct as "evident unfitness for service," which is also a ground for revocation of certificates under section 13202. We noted such redundancy in Board of Education v. Swan (1953) 41 Cal.2d 546, 551 [261 P.2d 261].) (See also Board of Education v. Weiland (1960) 179 Cal.App.2d 808 [4 Cal.Rptr. 286].) This overlap has also been recognized by the Legislature, which has, for example, provided in various contexts that unprofessional conduct includes both gross immorality (Bus. & Prof. Code, §§ 1680, 2361, 3105, and 4350.5, subd. (a)) and acts involving moral turpitude (Bus. & Prof. Code, § 4350.5, subd. (e)). A recent study stated: "Throughout the hearings, specific examples of `unprofessional conduct' were cited. The committee believes, however, that in every case, the charges could have been subsumed under one or another of the specific charges contained in Section 13403 [relating to dismissal of permanent teachers] such as dishonesty, incompetency or evident unfitness for service. No cases were brought to the committee's attention which clearly required the use of an undefined category such as "unprofessional conduct.'" (Report of the Subcommittee on Personnel Problems of the Assembly Interim Committee on Education, Appendix to the Journal of the Assembly (1965) vol. 2, p. 26.) Discussing the meaning of "moral turpitude," Justice Jackson has written, "If we go to the dictionaries, the last resort of the baffled judge, we learn little except that the expression is redundant, for turpitude alone means moral wickedness or depravity and moral turpitude seems to mean little more than morally immoral." (Jordan v. De George (1951) 341 U.S. 223, 234 [95 L.Ed. 886, 893, 71 S.Ct. 703] (dissenting opinion).)
An approach similar to our own was taken by the court in Norton v. Macy, supra, 417 F.2d 1161, 1165-1166: "[A] finding that an employee has done something immoral or indecent could support a dismissal without further inquiry only if [the] immoral or indecent acts of an employee have some ascertainable deleterious effect on the efficiency of the service.... the sufficiency of the charges against [the employee] must be evaluated in terms of the effects on the service of what in particular he has done or has been shown likely to do."
"Gross immorality" constitutes ground for disciplinary measures against doctors (Bus. & Prof. Code, § 2361, subd. (d)), dentists (Bus. & Prof. Code, § 1680, subd. (8)), optometrists (Bus. & Prof. Code, § 3105), pharmacists (Bus. & Prof. Code. § 4350.5, subd. (a)), funeral directors and embalmers (Bus. & Prof. Code, § 7698) and guardians (Prob. Code, § 1580, subd. (4)).
Although we reiterate that petitioner was not convicted of any crime, we note that the most common basis for revocation of licenses and certificates is conviction of a crime involving moral turpitude. Among those covered by such a provision are trainers of guide dogs for the blind (Bus. & Prof. Code, § 7211.9, subd. (d)), chiropractors (Bus. & Prof. Code, § 1000-1010), laboratory technicians and bioanalysts (Bus. & Prof. Code, § 1320, subd. (k)), dentists (Bus. & Prof. Code, § 1679), doctors (Bus. & Prof. Code, § 2361, subd. (e)), physical therapists (Bus. & Prof. Code, § 2660, subd. (d)), registered nurses (Bus. & Prof. Code, § 2761, subd (f)), vocational nurses (Bus. & Prof. Code, § 2878, subd. (f)), psychologists (Bus. & Prof. Code, § 2960, subd. (a)), optometrists (Bus. & Prof. Code § 3094), pharmacists (Bus. & Prof. Code, § 4354), psychiatric technicians (Bus. & Prof. Code, § 4521, subd. (f)), veterinarians (Bus. & Prof. Code, § 4882, subd. (b)), attorneys (Bus. & Prof. Code, § 6101), barbers (Bus. & Prof. Code, § 6576), engineers (Bus. & Prof. Code, § 6775, subd. (a)), collection agency officials (Bus. & Prof. Code, § 6930), private detectives (Bus. & Prof. Code, § 7551, subd. (d)), shorthand reporters (Bus. & Prof. Code, § 8025, subd. (a)), geologists (Bus. & Prof. Code, § 7860, subd. (a)), social workers (Bus. Prof. Code, § 9028, subd. (a)), and employment agency officials (Bus. & Prof. Code, § 9993, subd. (e)).
A particular sexual orientation might be dangerous in one profession and irrelevant to another. Necrophilism and necrosadism might be objectionable in a funeral director or embalmer, urolagnia in a laboratory technician, zooerastism in a veterinarian or trainer of guide dogs, prolagnia in a fireman, undinism in a sailor, or dendrophilia in an arborist, yet none of these unusual tastes would seem to warrant disciplinary action against a geologist or shorthand reporter.
Concerning the possibility that a teacher might be disqualified for certain types of work but not others, note the action taken by school officials in Finot v. Pasadena City Board of Education (1967) 250 Cal.App.2d 189 [58 Cal.Rptr. 520]; Board of School Directors of School Dist. v. Gillies (1942) 343 Pa. 382 [23 A.2d 447, 448]; Note, supra, 82 Harv.L.Rev. 1738, 1745. Compare Norton v. Macy, supra, 417 F.2d 1161, 1166 & fn. 21.
The board's discretion to consider remorse for misconduct does not include a right to revoke a teacher's certificate because he happens to disagree with the board as to the morality of any particular type of conduct. "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein." (Schware v. Board of Bar Examiners, supra, 353 U.S. 232, 244-245, fn. 15 [1 L.Ed.2d 796, 804-805, 77 S.Ct. 752, 64 A.L.R.2d 288], quoting West Virginia State Board v. Barnette (1943) 319 U.S. 624, 642 [87 L.Ed. 1628, 1639, 63 S.Ct. 1178, 147 A.L.R. 674].)
"MR. MORRISON (Resumes): The questions I have, Mr. Coffman, involves the terminology in sections III and IV of the Accusation. I am asked to respond to the term `Moral turpitude.' Could you give me some kind of legal definition of what `moral turpitude' is?
"A. [by Mr. Coffman, counsel for the board called as a witness by petitioner] Well, this is a question. I would object to it as being a question pertaining to argument as to whether your act constitutes `moral turpitude,' and I will engage in argument subsequent to the submission of this case, that the alleged conduct does constitute [amoral] conduct, but I don't think — I would object to these type of questions.
"HEARING OFFICER: It is sustained. I realize that you are here without counsel. Of course, that is a calculated risk every respondent takes that appears in a proceeding of this kind without counsel, who may not be familiar with the law under which it is being prosecuted. At the same time, counsel for the Department cannot be put on the witness stand and interrogated, as part of the proof of the case, as to his interpretation of the law. So, the objection is sustained.
"MR. COFFMAN: I might add, for Mr. Morrison's benefit, that this is a matter to be determined by the State Board of Education, whether or not your conduct is moral conduct, and involves moral turpitude. It is my opinion — my opinion is not relevant, except that I may argue that it does and you may argue it does not. It is a matter for the Board, and you may feel free to argue it. But, assuming that you admit to certain conduct — I don't know if you do — that it does not involved [sic] moral turpitude.
"MR. MORRISON: My whole case revolves around the question of `what is moral turpitude?' what is involved, and what is `unprofessional conduct?'
"A. These are terms you can argue to the Hearing Officer and the State Board."
As to whether, as a philosophical proposition, the law ought to prohibit acts merely because they are "immoral," regardless of whether any secular interest of the society is harmed by that "immorality," compare H.L.A. Hart, Law, Liberty and Morality, supra; J.S. Mill, On Liberty (1859); with Devlin, The Enforcement of Morals (1959); J.F. Stephens, Liberty, Equality, Fraternity (1873).
According to the United States Civil Service Commission's Director of Personnel Investigations, homosexual employees are in general as efficient as heterosexual employees. (Note, supra, 82 Harv.L.Rev. 1738, 1741.)
Section 12912 provides: "`Sex offenses' as used in [section] 13207 ... means any one or more of the offenses listed below:
(a) Any offense defined in Sections 266, 267, 285, 286, 288, 288a, 647a, subdivision 3 or 4 of Section 261, or subdivisions (a) or (d) of Section 647 of the Penal Code.
(b) Any offense defined in former subdivision 5 of former Section 647 of the Penal Code repealed by Chapter 560 of the Statutes of 1961, or any offense defined in former subdivision 2 of former Section 311 of the Penal Code repealed by Chapter 2147 of the Statutes of 1961 if the offense defined in such sections was committed prior to September 15, 1961, to the same extent that such an offense committed prior to such date was a sex offense for the purposes of this section prior to September 15, 1961.
(c) Any offense defined in Section 314 of the Penal Code committed on or after September 15, 1961.
(d) Any offense defined in former subdivision 1 of former Section 311 of the Penal Code repealed by Chapter 2147 of the Statutes of 1961 committed on or after September 7, 1955, and prior to September 15, 1961.
(e) Any offense involving lewd and lascivious conduct under Section 272 of the Penal Code committed on or after September 15, 1961.
(f) Any offense involving lewd and lascivious conduct under former Section 702 of the Welfare and Institutions Code repealed by Chapter 1616 of the Statutes of 1961 if such offense was committed prior to September 15, 1961, to the same extent that such an offense committed prior to such date was a sex offense for the purposes of this section prior to September 15, 1961.
(g) Any attempt to commit any of the above-mentioned offenses.
(h) Any offense committed or attempted in any other state which, if committed or attempted in this State, would have been punishable as one or more of the above-mentioned offenses."