Adcock v. Board of Education

• Decision Date: 13 September 1973
• Citation: 513 P.2d 900,109 Cal.Rptr. 676,10 Cal.3d 60
• Court: California Supreme Court
• Parties: , 513 P.2d 900 Halvor Gerald ADCOCK, Plaintiff and Respondent, v. BOARD OF EDUCATION OF the SAN DIEGO UNIFIED SCHOOL DISTRICT et al., Defendants and Appellants. L.A. 30074.

Page 676

109 Cal.Rptr. 676

10 Cal.3d 60, 513 P.2d 900

Halvor Gerald ADCOCK, Plaintiff and Respondent, v. BOARD OF EDUCATION OF the SAN DIEGO UNIFIED SCHOOL DISTRICT et al., Defendants and Appellants.

L.A. 30074.

Supreme Court of California,

In Bank.

Sept. 13, 1973.

Levy & Van Bourg, Los Angeles and Howard L. Berman, Hollywood, for plaintiff and respondent.

Harold F. Tyvoll, San Diego, as amicus curiae on behalf of plaintiff and respondent.

Thomas A. Shannon, and Ralph D. Stern, San Diego, for defendants and appellants.

BY THE COURT.

Defendant Board of Education of the San Diego Unified School District (hereinafter 'board') and its secretary, Jack Hornback, appeal from a judgment granting a peremptory writ of mandate. The writ directs the board to set aside its administrative decision transferring Halvor Gerald Adcock (hereinafter 'adcock') from Clairemont High School to another school, and further ordering the board to reinstate Adcock to his former position, that of a tenured teacher of social studies at Clairemont.

For the reasons explained below, we conclude that the trial court was correct not only in making an independent assessment of the record but also in determining that the reason for the transfer was the disapproval by the school administration of Adcock's exercise of First Amendment rights and in concluding that the subsequent transfer was not justified by any compelling state interest.

Adcock taught social studies at Clairemont from 1958 until June 1969. Clairemont is a senior high school located within the San Diego Unified School District, providing instruction for grades 10 through 12. In June 1969, the principal of the school submitted a written memorandum requesting Adcock's transfer to another school because of his criticism of certain school policies and regulations and the effects of the criticism on school staff and parents. The criticisms related to the dress and grooming code, the outside speaker policy, and the administration's refusal to permit publication of a second student newspaper. ¹ The request was granted, and Adcock was reassigned to Roosevelt Junior High School where he taught seventh grade classes during the 1969--1970 school year.

On Adcock's appeal to the board, a hearing was conducted by a state hearing officer of the California Office of Administrative Procedure substantially in accordance with the hearing procedures set forth in the Administrative Procedure Act, section 11500 et seq. of the Government Code. After seven days of hearing which included the testimony of some 30 witnesses, the hearing officer submitted a proposed decision finding the transfer discriminatory and a misuse of delegated authority, and ordering Adcock reinstated at Clairemont High School. ² The board unanimously declined to adopt the proposed decision. Instead, acting pursuant to section 11517, subdivision (c), of the Government Code, ³ it reviewed the record of the hearing without taking additional evidence and afforded each party the opportunity to submit additional written argument. ⁴

The board's findings can be summarized as follows: Adcock's open and persistent criticism of rules and policies tended to undermine the authority of teachers, the administration and parents. He spoke out against administrative directives. His attitudes alienated some of his fellow teachers, administrators, and many parents. This divisiveness became a matter of concern to the principal and his administrative staff because it affected faculty morale and community attitudes toward the school. Adock was never told to desist nor told that if he persisted he would be transferred to another school. The board made no finding concerning the distribution of handbills.

The board concluded that Adcock's transfer was not discriminatory and did not involve a misuse of delegated authority. It approved the transfer. However, the board ordered Adcock transferred to a position of equivalent rank and grade, found that the transfer to a junior high school was not such a transfer and transferred him to another high school within the district.

Adcock petitioned the superior court for a writ of mandamus. (Gov.Code, § 11523; Code Civ.Proc., § 1094.5; Griggs v. Board of Trustees, 61 Cal.2d 93, 96, 37 Cal.Rptr. 194, 389 P.2d 722.) The case was submitted on the record before the hearing officer without additional evidence. The court issued the writ of mandamus concluding that the transfer was made as a means of, and with the effective result of, denying Adcock his First Amendment freedoms.

It is settled that a teacher's right to speak is constitutionally protected as long as it does not result in any disruption, or impairment of discipline or materially interfere with school activities. (Tinker v. Des Moines School Dist., 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731; Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811; Keyishian v. Board of Regents, 385 U.S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629; Bekiaris v. Board of Education, 6 Cal.3d 575, 100 Cal.Rptr. 16, 493 P.2d 480; L.A. Teachers Union v. L.A. City Bd. of Ed., 71 Cal.2d 551, 78 Cal.Rptr. 723, 455 P.2d 827; Board of Regents v. Owens, 206 Cal.App.2d 147, 23 Cal.Rptr. 710; see also Note, Developments in the Law--Academic Freedom (1968) 81 Harv.L.Rev. 1045, 1071--1075; Van Alstyne, Constitutional Rights of Teachers and Professors (1970) Duke L.J. 841.)

Although the 'substantial evidence' rule has been held to be applicable to determinations of local administrative boards, it has been essential to adopt a special rule or standard to review administrative decisions when constitutional rights are assertedly limited. (Bekiaris v. Board of Education, supra, 6 Cal.3d 575, 586--587, 100 Cal.Rptr. 16, 493 P.2d 480; Bixby v. Pierno, 4 Cal.3d 130, 140--141, 93 Cal.Rptr. 234, 481 P.2d 242.) As no party to this action has challenged the continued vitality of the 'substantial evidence' standard of review in most determinations of local administrative boards, we have no occasion herein to reexamine the same.

In order to retain the ultimate responsibility for insuring that constitutional rights not be abridged in the absence of a sufficient compelling public interest, the special rule referred to above requires that the trial court must make an independent assessment of the established factual elements to determine whether the true reason for the board's action was the exercise of constitutional rights and, if so, whether the resulting limitation on the exercise of these rights can be justified by any compelling state interest. On appeal from the decision of the trial court, the appellate court must uphold the trial court's determination as to the basis of the administrative action if supported by substantial evidence. (Bekiaris v. Board of Education, supra, 6 Cal.3d 575, 590, 100 Cal.Rptr. 16, 493 P.2d 480 et seq.; L.A. Teachers Union v. L.A. City Bd. of Ed., supra, 71 Cal.2d 551, 557, 78 Cal.Rptr. 723, 455 P.2d 827.)

In Bekiaris we held that the special standard applies when it is claimed that the administrative action in dismissing an employee was based on official dissatisfaction with the exercise of constitutional rights. This rule is not designed to protect the employee's employment rights but is intended to protect the employee's freedom to exercise First Amendment rights. Accordingly, it has been applied in cases where the employee had no tenure or civil service rights and where the employee could have been dismissed for no reason whatsoever. (Rosenfield v. Malcolm, 65 Cal.2d 559, 564, 55 Cal.Rptr. 505, 421 P.2d 697; Bagley v. Washington Township Hosp. Dist., 65 Cal.2d 499, 504, 55 Cal.Rptr. 401, 421 P.2d 409; Stanton v. Dumke, 64 Cal.2d 199, 207, 49 Cal.Rptr. 380, 411 P.2d 108; see also Hollon v. Pierce, 257 Cal.App.2d 468, 476--478, 64 Cal.Rptr. 808.) Because the rule was established in order to protect constitutional rights and not employment rights, it must apply not only to dismissals but also to all administrative sanctions based on conduct protected by the First Amendment.

Any sanction imposed for the exercise of protected First Amendment conduct must be viewed as having a chilling effect on speech and on the right of teachers to engage in those activities which are protected by the First Amendment. Lesser penalties than dismissal can effectively silence teachers and compel them to forego exercise of the rights guaranteed them by our Constitution.

Thus in Finot v. Pasadena City Bd. of Education, 250 Cal.App.2d 189, 58 Cal.Rptr. 520, a transfer was invalidated because it had been based upon activity of a teacher related to exercise of First Amendment rights. There, a high school teacher was transferred from his classroom assignment to home teaching though his pay and rank remained the same. The court held that even though he could have been assigned to any teaching duty for which he was qualified and for which he was needed (Ed.Code, §§ 931, 939, subd. (c)), his right to engage in such activity was constitutionally protected, and that his transfer from one assignment to another because of the exercise of his constitutional rights violated those rights and constituted a legally remediable detriment.

We concede that the superintendent obviously has and must have very broad discretion in transferring teachers from one school to another, i.e., when it in fact 'is in the best interests of the district' (Ed. Code, § 939, subd. (c)), and his discretion ordinarily will not be reviewed or interfered with by the trial court. It is Only when it is asserted that the motivation for transfer is based on a teacher's exercise of constitutionally protected rights that the trial court will conduct an independent review of the record to determine whether the assertion is true.

The United States Supreme Court has emphasized that 'the vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools' (...