Gaylord v. Tacoma School Dist. No. 10

• Decision Date: 20 January 1977
• Docket Number: No. 44078,44078
• Citation: 559 P.2d 1340,88 Wn.2d 286
• Parties: , 16 Fair Empl.Prac.Cas. (BNA) 596, 15 Empl. Prac. Dec. P 7857 James M. GAYLORD, Appellant, v. TACOMA SCHOOL DISTRICT NO. 10 et al., Respondents.
• Court: Washington Supreme Court

Page 286

88 Wn.2d 286

559 P.2d 1340, 16 Fair Empl.Prac.Cas. (BNA) 596,

15 Empl. Prac. Dec. P 7857

James M. GAYLORD, Appellant, v. TACOMA SCHOOL DISTRICT NO. 10 et al., Respondents.

No. 44078.

Supreme Court of Washington, En Banc.

Jan. 20, 1977.

Peterson, Bracelin, Young & Putra, Christopher E. Young, Seattle, for appellant.

Don Herron, Pros. Atty., Roger J. Miener, Deputy Pros. Atty., Tacoma, for respondents.

HOROWITZ, Associate Justice.

Plaintiff-appellant, James Gaylord, appeals a judgment of the trial court upholding Gaylord's discharge from employment as a high school teacher by defendant school district. A prior appeal resulted in a remand to the trial court to enter new findings based upon application of the proper statutory burden of proof of the district. Gaylord v. Tacoma School District No. 10, 85 Wash.2d 348, 535 P.2d 804 (1975). The case now before us is an appeal from the judgment entered on new findings and conclusions entered by the trial court on remand.

Defendant school district discharged Gaylord--who held a teacher's certificate--from his teaching position at the Wilson High School in Tacoma on the ground of 'immorality' because he was a known homosexual. Gaylord appealed this decision to the superior court for de novo trial under RCW 28A.88.015. The court after trial entered findings, conclusions and judgment to the effect there was sufficient cause for discharge. Gaylord then appealed the superior court judgment to this court which in turn remanded the cause back to the superior court for further consideration. It had erroneously construed a statute to require it to give special weight to the testimony of school personnel. Gaylord v. Tacoma School District No. 10, supra. On remand reconsideration, the superior court concluded in substance Gaylord was properly discharged for immorality because he was homosexual, and as a known homosexual, his ability and fitness to teach was impaired with resulting injury to the school. Gaylord again appeals to this court assigning error to various findings, conclusions and judgment.

We need consider only the assignments of error which raise two basic issues: (1) whether substantial evidence supports the trial court's conclusion plaintiff-appellant Gaylord was guilty of immorality; (2) whether substantial evidence supports the findings, that as a known homosexual, Gaylord's fitness as a teacher was impaired to the injury of the Wilson High School, justifying his discharge by the defendant school district's board of directors. The relevant findings of the trial court may be summarized as follows.

Gaylord knew of his homosexuality for 20 years prior to his trial, actively sought homosexual company for the past several years, and participated in homosexual acts. He knew his status as a homosexual, if known, would jeopardize his employment, damage his reputation and hurt his parents.

Gaylord's school superior first became aware of his sexual status on October 24, 1972, when a former Wilson High student told the school's vice-principal he thought Gaylord was a homosexual. The vice-principal confronted Gaylord at his home that same day with a written copy of the student's statement. Gaylord admitted he was a homosexual and attempted unsuccessfully to have the vice-principal drop the matter.

On November 21, 1972, Gaylord was notified the board of directors of the Tacoma School Board had found probable cause for his discharge due to his status as a publicly known homosexual. This status was contrary to school district policy No. 4119(5), which provides for discharge of school employees for 'immorality.' After hearing, the defendant board of directors discharged Gaylord effective December 21, 1972.

The court found an admission of homosexuality connotes illegal as well as immoral acts, because 'sexual gratification with a member of one's own sex is implicit in the term 'homosexual." These acts were proscribed by RCW 9.79.120 (lewdness) and RCW 9.79.100 (sodomy).

After Gaylord's homosexual status became publicly known, it would and did impair his teaching efficiency. A teacher's efficiency is determined by his relationship with his students, their parents, the school administration and fellow teachers. If Gaylord had not been discharged after he became known as a homosexual, the result would be fear, confusion, suspicion, parental concern and pressure on the administration by students, parents and other teachers.

The court concluded 'appellant was properly discharged by respondent upon a charge of immorality upon his admission and disclosure that he was a homosexual' and that relief sought should be denied.

Was Gaylord guilty of immorality?

Our concern here is with the meaning of immorality in the sense intended by school board policy No. 4119(5). School boards have broad management powers. RCW 28A.58. Under RCW 28A.58.100(1) the school board may discharge teachers for 'sufficient cause.' Policy No. 4119(5) adopted by the school board and in effect during the term of Gaylord's teaching contract with defendant school district permits the Tacoma School Board of Directors to treat 'immorality' as sufficient cause for discharge.

'Immorality' as used in policy No. 4119(5) does not stand alone. RCW 28A.67.110 makes it the duty of all teachers to 'endeavor to impress on the minds of their pupils the principles of morality, truth, justice, temperance, humanity, and patriotism . . .' RCW 28A.70.140 requires an applicant for a teacher's certificate be 'a person of good moral character.' RCW 28A.70.160 makes 'immorality' a ground for revoking a teacher's certificate. Other grounds include the commission of 'crimes against the laws of the state.' The moral conduct of a teacher is relevant to a consideration of that person's fitness or ability to function adequately as a teacher of the students he is expected to teach--in this case high school students. See Morrison v. State Bd. of Education, 1 Cal.3d 214, 225, 82 Cal.Rptr. 175, 461 P.2d 375 (1969).

'Immorality' as a ground of teacher discharge would be unconstitutionally vague if not coupled with resulting actual or prospective adverse performance as a teacher. Denton v. South Kitsap School District No. 402, 10 Wash.App. 69, 516 P.2d 1080 (1973); Morrison v. State Bd. of Education, supra at 225, n. 15. The basic statute permitting discharge for 'sufficient cause' (RCW 28A.58.100(1)) has been construed to require the cause must adversely affect the teacher's performance before it can be invoked as a ground for discharge. Gaylord v. Tacoma School District No. 10, supra.

It follows the term 'immorality' is not to be construed in its abstract sense apart from its effect upon teaching efficiency or fitness to teach. In its abstract sense the term is not and perhaps cannot be comprehensively defined although it can be illustrated.

When, as in the case here, the term 'immorality' has not been defined in policy No. 4119(5), it would seem reasonable to give the term its ordinary, common, everyday meaning as we would when construing an undefined term in a statute. New York Life Insurance Co. v. Jones, 86 Wash.2d 44, 47, 541 P.2d 989 (1975); State v. Jones, 84 Wash.2d 823, 830, 529 P.2d 1040 (1974); Glaspey & Sons, Inc. v. Conrad, 83 Wash.2d 707, 711, 521 P.2d 1173 (1974).

Was homosexuality immoral within the meaning of policy No. 4119(5)? We must first examine what the much discussed term 'homosexuality' means. In J. Walinder, Transsexualism, 3 (1967), the author approves the following statement:

The crucial characteristic of the homosexual is the desire for a physical sex relation with a person of his own sex. The eonist is repelled by the physical aspect of a homosexual relationship. (2) Homosexuals do not want to change their sex and identity. This is the fundamental anomaly in eonism.

D. West, in Homosexuality, 10--11 (1967), the author explains:

Homosexuality simply means the experience of being erotically attracted to a member of the same sex, and men or women who habitually experience strong feelings of this kind are called homosexuals. Those who act upon such feelings by participating in mutual sexual fondling or other forms of sexual stimulation with a partner of the same sex are known as 'overt' or practicing homosexuals. Those who erotic feelings for the opposite sex are absent altogether, or slight in comparison to their homosexual feelings, are called exclusive or obligatory homosexuals. This is the type doctors usually have in mind when they refer without further qualification to 'homosexuals', or when they speak of 'true' homosexuals or 'inverts', or when they consider the condition more or less permanent and unchangeable. Indeed, it is this exclusive, obligatory type of homosexual who presents the chief problem for contemporary society, and who is the main concern of this book. The thought of intimate contacts with their own sex disgusts many normal persons but many of these exclusive homosexuals, especially male homosexuals, are even more appalled by the prospect of relations with the opposite sex.

In characterizing homosexuality as immoral, the New Catholic Encyclopedia, for example, defines the term homosexual as:

(A)nyone who is erotically attracted to a notable degree toward persons of his or her own sex and who engages, or is psychologically disposed to engage, in sexual activity prompted by this attraction.

Once friendship between persons of the same sex leads to physical expression, a homosexual act has occurred . . . The danger remains that the individual will yield to desire for the overt act.

7 New Catholic Encyclopedia 116 (1967).

Other observations and definitions of homosexuality are in substance similar to those above quoted. See H. English and A. English, A Comprehensive Dictionary of Psychological and Psychoanalytical Terms (1958); H. Eysenk and W. Wurzburg, Encyclopedia of Psychology 66--67 (1958); 1 R. Goldenson, The Encyclopedia of Human Behavior 553--59 (1970);...