Board of Trustees v. Metzger

• Court: California Supreme Court
• Writing for the Court: BURKE; WRIGHT
• Citation: Board of Trustees v. Metzger, 104 Cal.Rptr. 452, 8 Cal.3d 206, 501 P.2d 1172 (Cal. 1972)
• Decision Date: 26 October 1972
• Parties: , 501 P.2d 1172 BOARD OF TRUSTEES OF the LOS ANGELES JUNIOR COLLEGE DISTRICT OF LOS ANGELES COUNTY, Plaintiff and Appellant, v. Deena METZGER, Defendant and Respondent. L.A. 29980. In Bank

Page 452

104 Cal.Rptr. 452

8 Cal.3d 206, 501 P.2d 1172

BOARD OF TRUSTEES OF the LOS ANGELES JUNIOR COLLEGE DISTRICT OF LOS ANGELES COUNTY, Plaintiff and Appellant, v. Deena METZGER, Defendant and Respondent.

L.A. 29980.

Supreme Court of California,

In Bank.

Oct. 26, 1972.

John D. Maharg, County Counsel, Ron Apperson, Deputy County Counsel, Harney, Ford & Schlottman, David M. Harney and Robert E. Ford, Los Angeles, for plaintiff and appellant.

Stewart & Finkel and David B. Finkel, Los Angeles, for defendant and respondent.

Hilbert P. Zarky, A. L. Wirin, Fred Okrand and Laurence R. Sperber, Los Angeles, amici curiae on behalf of defendant and respondent.

BURKE, Justice.

Plaintiff Board appeals from a judgment of the Los Angeles Superior Court ordering reinstatment of defendant Deena Metzger, a permanent, certificated employee of the Los Angeles Junior College District. Board had sought to suspend and dismiss defendant on charges of 'immoral conduct' and 'evident unfitness for service' (Ed.Code, § 13403, subds. (a), (e)), but the trial court concluded that these charges were untrue and were insufficient to constitute cause for her discharge or suspension. We have concluded that the trial court's judgment must be affirmed, having the support of substantial evidence in the record.

The Board's charges were based exclusively on defendant's admitted use, in a first-year junior college class in English at Los Angeles Valley College, of a poem entitled 'Jehovah's Child' and an advertising pamphlet or brochure entitled 'You Can Become a Sexual Superman.' The poem, composed by defendant herself, is liberally sprinked with Anglo-Saxon obscenities, slang references to male and female sexual organs and to sexual activity, and profane references to Jehovah and Christ. The brochure, and advertisement for 'The Picture Book of Sexual Love,' contains nine photographs of an entwined nude couple; although these photographs conceal the genitalia, they suggest that the couple is engaging in sexual intercourse.

The record indicates that the basic approved textbook being used in defendant's English class was 'Contemporary Moral Issues' by Girvetz, a book which included a unit dealing with censorship, pornography and obscenity. The poem and brochure referred to above were used by defendant as supplementary reading and discussion materials. Thus, according to defendant, the poem was used to show her students that words which, on their surface, appear vulgar or coarse can be used to produce different impressions upon the reader. The brochure was assertedly used in connection with class discussion of the subject of propaganda, as an example of a blatant form of sex exploitation in advertising.

Prior to distributing and discussing the poem with her class, defendant determined that none of her students were under 18 years of age and she explained to them that they need not participate in the class discussion of the poem but could receive a substitute lesson. Neither the Board, the college administration, nor defendant's immediate superiors had adopted regulations or directives restricting the types of supplementary teaching materials. After defendant had twice used the poem and brochure in English classes, she was for the first time ¹ directed not to make further use thereof. Defendant obeyed this direction. Nevertheless the Board proceeded to dismiss her.

At trial, 14 professors of English testified on defendant's behalf, defending her professional judgment concerning the use of the poem and brochure as supplemantal teaching materials. On the other hand, Dr. Horton, President of Valley College, testified that defendant's use of her poem and the brochure was inappropriate in an English I class. Mr. McGuire, an instructor at Valley College and former Chairman of the English Department, gave his opinion that defendant used poor judgment in the matter. One of defendant's students, Mr. Benshoof, testified that he was offended by the poem and brochure; however, it was stipulated that four other students would testify if called that they had benefited from the discussion and that, to their knowledge, no one in the class had exhibited an 'adverse reaction' except for student Benshoof.

Defendant also introduced evidence showing that her teaching record was otherwise unblemished, that she had received the highest possible rating upon the quality of her teaching and ability to teach, and that she ranked first out of 80 applicants on the English qualifying examinations.

The trial court found the evidence insufficient to show either that defendant acted with an improper motive, that her use of the poem and brochure was 'out of line' with modern academic practice, or that any student was harmed by exposure to these materials. The court concluded that the evidence did not establish either 'immoral conduct' or 'evident unfitness for service,' and that the charges against defendant 'insofar as they refer to immoral conduct and evident unfitness for service, are untrue, and are insufficient to constitute cause for defendant's discharge or suspension.' Accordingly, the trial court ordered plaintiff Board to reinstate defendant with retroactive benefits. The Board appeals from the adverse judgment.

The Board asks us to hold that defendant's conduct, as a matter of law, constituted 'immoral conduct' within the meaning of section 13403, subdivision (a). Board relies upon cases which have approved a broad definition of the term 'immoral' as anything 'hostile to the welfare of the general public and contrary to good morals', and including 'conduct inconsistent with rectitude, or indicative of corruption, indecency, depravity, dissoluteness; or as wilful, flagrant, or shameless conduct showing moral indifference to the opinions of respectable members of the community, and as an inconsiderate attitude toward good order and the public welfare.' (Orloff v. Los Angeles Turf Club, 36 Cal.2d 734, 740, 227 P.2d 449, 453; see Palo Verde etc. Sch. Dist. v. Hensey, 9 Xal.App.3d 967, 971--972, 88 Cal.Rptr. 570; Board of Trustees v. Hartman, 246 Cal.App.2d 756, 763, 55 Cal.Rptr. 144.) It is evident, Board contends, that reasonable men could find that defendant acted 'immorally' in intentionally exposing her students to writings which contained indecent and profane material.

On the other hand, defendant contends that her conduct could not have constituted 'immoral conduct' in the absence of evidence indicating an unfitness to teach. (See Morrison v. State Board of Education, 1 Cal.3d 214, 220--230, 82 Cal.Rptr. 175, 461 P.2d 375, involving revocation of a life teaching diploma for 'immoral or unprofessional conduct,' or for 'any act involving moral turpitude,' under Ed.Code, § 13202.) We msut point out, however, that the record in this case is not totally devoid of evidence indicating defendant's unfitness to teach. As we stated in Morrison, one factor to consider in determining whether a teacher's conduct indicates his unfitness to teach is 'the likelihood that the conduct may have adversely affected students . . ..' (1 Cal.3d at p. 229, 82 Cal.Rptr. at p. 186, 461 P.2d at p. 386.) In the instant case, evidence was introduced that at least some teachers thought the poem and brochure inappropriate for use in defendant's class, and that one student was offended by these materials. (See Governing Board v. Brennan, 18 Cal.App.3d 396, 402, 95 Cal.Rptr. 712; Comings v. State Bd. of Education, 23 Cal.App.3d 94, 103--104, 100 Cal.Rptr. 73.) In any event, we need not reach the question whether substantial evidence existed to support a finding that defendant engaged in 'immoral conduct,' for the trial court made a contrary finding.

In the case of permanent teachers under the law in effect at the time of the proceedings herein, the responsibility for determining the truth of the dismissal charges And their sufficiency as grounds for dismissal was vested in the trial court, not the governing board. (See former Ed.Code, § 13412; ² Midway School Dist. v. Griffeath, 29 Cal.2d 13, 172 [8 Cal.3d 211] P.2d 857.) Unlike dismissal procedures in other civil service systems, the first hearing on the merits of the dismissal of a permanent teacher under the prior law was judicial, not administrative. (See Coan, Dismissal of California Probationary Teachers, 15 Hast.L.Rev. 284, 295; George, Dismissal of Permanent Teachers, 3 Santa Clara Lawyer 164.) The employee, being informed of the school board's decision to dismiss him, could under former section 13412 demand a hearing in superior court to determine whether or not he could be dismissed. 'Thus, in these cases the court conducts what in other areas of the civil service would be an administrative hearing. (Par.) Whether this rather unique procedure amounts to superior court review of an administrative determination, or an ordinary decision of the superior court, the scope of our (appellate) review is the same. (Citations.) We must determine only whether the findings and conclusions of the trial court, as a matter of law, lack support in the record.' (Italics added, Board of Trustees v. Stubblefield, 16 Cal.App.3d 820, 824, 94 Cal.Rptr. 318, 320; see Midway School Dist. v. Griffeath, Supra, 29 Cal.2d 13, 16--18, 172 P.2d...