Board of Education v. Jack M.

• Court: California Supreme Court
• Writing for the Court: TOBRINER; BIRD
• Citation: Board of Education v. Jack M., 19 Cal.3d 691, 139 Cal.Rptr. 700, 566 P.2d 602 (Cal. 1977)
• Decision Date: 21 July 1977
• Parties: , 566 P.2d 602 BOARD OF EDUCATION OF LONG BEACH UNIFIED SCHOOL DISTRICT OF LOS ANGELES COUNTY, Plaintiff and Appellant, v. JACK M., Defendant and Respondent. L.A. 30705.

Page 700

139 Cal.Rptr. 700

19 Cal.3d 691, 566 P.2d 602

BOARD OF EDUCATION OF LONG BEACH UNIFIED SCHOOL DISTRICT OF LOS ANGELES COUNTY, Plaintiff and Appellant, v. JACK M., Defendant and Respondent.

L.A. 30705.

Supreme Court of California, In Bank.

July 21, 1977.

John H. Larson, County Counsel, Louis V. Aguilar and Gregory Houle, Deputy County Counsel, Los Angeles, for plaintiff and appellant.

John S. Williams, Cerritos, for defendant and respondent.

Paul D. Powers, Ventura, as amicus curiae on behalf of defendant and respondent.

TOBRINER, Justice.

On October 19, 1972, defendant was arrested for an alleged homosexual solicitation in a public restroom. Although no charges were ever filed against him, plaintiff school board initiated proceedings in the superior court to establish its right to discharge defendant from his tenured teaching position. The superior court, however, resolved conflicting evidence in defendant's favor and found that his conduct did not demonstrate unfitness to teach. The board appeals from the judgment in favor of defendant.

In accord with the unquestioned principle that trial court findings supported by substantial evidence will be upheld on appeal, we affirm the judgment below. The board's attempt to escape the application of this principle of appellate review by claiming that defendant's conduct in itself proves unfitness to teach must fail, since neither statute nor decisional authority has applied a rule of per se unfitness to persons who were not convicted of specified sex offenses. The board's argument, moreover, conflicts with legislation enacted in 1976 that grants even to a person convicted of a specified sex offense the right to a fitness hearing; consistent with the purpose of that legislation we cannot hold the commission of such acts demonstrates unfitness per se.

1. Proceedings in the trial court

Defendant has been continuously employed for 16 years as a permanently certificated teacher for elementary schools. Until the incident of October 19, 1972, he was recognized as a teacher of fitness, ability and unimpeached moral character. On that date he was arrested for violating Penal Code section 647, subdivision (a), which penalizes as a misdemeanor the solicitation of anyone to engage in or engagement in lewd or dissolute conduct in any public place or in any place open to the public or exposed to public view. Although no charges were filed, defendant immediately reported his arrest to Mrs. Joan White, principal of the elementary school in which he taught the fifth grade. The board filed a complaint in the superior court, pursuant to Education Code section 13412 as it then read, ¹ charging him with 'immoral conduct' and 'evident unfitness for service.'

The only two witnesses to the incident were defendant and the arresting officer. The officer testified to the following sequence of events. Entering a department store restroom equipped with five doorless stalls, he occupied the stall furthest from the door. Defendant entered the adjoining stall, bent down and looked up at the officer from under the partition separating the stalls. The officer dressed and, looking into defendant's stall, observed defendant masturbating. Defendant then beckoned to the officer, saying 'come here. You will like this.' The officer thereupon arrested defendant for lewd conduct in a public place. (Pen.Code, § 647, subd. (a).) Defendant testified that he had not masturbated or solicited the officer, but the trial court upheld the officer's version.

The remaining testimony concerned defendant's fitness to teach. The board presented the testimony of Mrs. White, defendant's principal, and Mr. Lepic, an experienced school principal who did not know defendant but testified as an expert on teaching qualifications. Defendant countered with testimony from Dr. Davis, a psychiatrist who was experienced in examining persons convicted of sexual offenses.

Mrs. White testified that defendant was fit and competent in all respects as a teacher; that she knew that he was under heavy emotional stress at the time in question but that nevertheless she felt that the charged conduct demonstrated 'unusual judgment and improper reaction to stress and pressure.' She stated that she had no reason to believe that he could not now perform his specific duties as a certified teacher but that she was not willing to take the chance that the incident might recur and that, therefore, she felt that defendant was unfit to teach.

Mr. Lepic testified as to the essential qualifications of an elementary school teacher--adequate professional training and development of a close relationship with students, parents and staff. In response to a hypothetical question premised upon the account given by the arresting officer, he gave his opinion that defendant was unfit to teach. As reasons for his opinion he testified that defendant could not provide a behavioral example to students and that his conduct would create uneasiness and an erosion of confidence in those with whom he was in association, such as students, parents and staff. He was unaware of any knowledge by those groups of such conduct or any attendant publicity, but was disturbed by the possibility of recurrence, depending upon the tensions and pressures to which defendant might be subjected in the future.

Dr. Davis' background indicated that he was well experienced as a psychiatrist in the examination and treatment of sexual deviates. He concluded from the history of defendant and his clinical examination of defendant that defendant was not a homosexual; that if the arresting officer's version were true, this account would indicate to the doctor an isolated act of aggressive behavior by one of an otherwise passive sexual disposition precipitated by an unusual accumulation of pressure and stress stemming from his mother's serious illness; that it would be most unusual for an individual with a predisposition to aggressive homosexual behavior to reach middle age without some prior antisocial conduct reflected in a police record, and here there was none; and that even if the incident happened, he believed there was no danger of recurrence because of the trauma to defendant from this arrest and the trial proceedings. He believed that there was no danger to pupils or associates, and no possibility of recurrence, and because of a medically recognized proclivity of sexual deviates to follow a specific pattern, the conduct attributed to defendant would not be consistent with acts endangering children or associates.

The trial court resolved the conflicting testimony on the issue of fitness in favor of defendant. Finding that defendant's conduct did not demonstrate an unfitness to teach, the court entered judgment ordering his reinstatement with back pay.

2. Substantial evidence supports the trial court's finding that defendant's conduct does not demonstrate his unfitness to teach.

Defendant's fitness to teach was the factual issue which faced the trial court. Although defendant was charged with 'immoral or unprofessional conduct' (Ed. Code, § 13403, subd. (a)) and 'evident unfitness for service' (Ed. Code, § 13403, subd. (e)), we have previously held that the determinative test was fitness to teach; the terms 'immoral' or 'unprofessional conduct' are so broad and vague that, standing alone, they could be constitutionally infirm; hence the proper criteria is fitness to teach. (Morrison v. State Board of Education (1969) 1 Cal.3d 214, 82 [19 Cal.3d 697] Cal.Rptr. 175, 461 P.2d 375. ² Observing that a statute can constitutionally bar a person from practicing a lawful profession only for reasons related to his fitness to practice that profession (see Newland v. Board of Governors, Cal., 139 Cal.Rptr. 620, 566 P.2d 254, and cases there cited), we concluded in Morrison that the board cannot 'abstractly characterize the conduct in this case as 'immoral,' 'unprofessional,' or 'involving moral turpitude' within the meaning of section 13202 . . . unless that conduct indicates that petitioner is unfit to teach.' (1 Cal.3d at p. 229, 82 Cal.Rptr. at p. 186, 461 P.2d at p. 386; see Comings v. State Bd. of Education, supra, 23 Cal.App.3d 94, 103, 100 Cal.Rptr. 73 and cases there cited.)

Pursuant to these rulings the trial court found that defendant's conduct did Not demonstrate an unfitness to teach. Our sole task is to determine 'whether the evidence, viewed in the light most favorable to (defendant), sustains these findings.' (Moran v. Board of Medical Examiners (1948) 32 Cal.2d 301, 309, 196 P.2d 20, 25; Board of Trustees v. Metzger, supra, 8 Cal.3d 206, 211, 104 Cal.Rptr. 452, 501 P.2d 1172; Board of Trustees v. Stubblefield, supra, 16 Cal.App.3d at 820, 824, 94 Cal.Rptr. 318.) Moreover, 'in examining the sufficiency of the evidence to support a questioned finding an appellate court must accept as true all evidence tending to establish the correctness of the finding as made, taking into account, as well, all inferences which might reasonably have been thought by the trial court to lead to the same conclusion.' (Bancroft-Whitney Co. v. McHugh (1913) 166 Cal. 140, 142, 134 P. 1157, 1158; see 5 Witkin, Cal. Procedure (2d ed. 1971) p. 4237 and cases there cited.) If appellate scrutiny reveals that substantial evidence supports the trial court's findings and conclusions, the judgment must be affirmed.

Relying upon the foregoing authorities, the trial court accordingly framed the following findings in terms of fitness to teach, and those facts which bear on the subject of fitness: '( ) 6. Defendant's conduct did not come to the attention of the public, students, parents, fellow teachers, and other staff members other than to defendant's immediate superior to whom he reported the incident. ( ) 7. Defendant's conduct was an isolated act precipitated by an unusual accumulation of pressure and stress. There is no danger that defendant will repeat the conduct. ( ) 8. Defendant does...