Morrison v. State Board of Education

• Citation: 461 P.2d 375,82 Cal.Rptr. 175,1 Cal.3d 214
• Court: United States State Supreme Court (California)
• Decision Date: 20 November 1969
• Parties: , 461 P.2d 375 Marc S. MORRISON, Plaintiff and Appellant, v. STATE BOARD OF EDUCATION, Defendant and Respondent. L.A. 29632.

Page 175

82 Cal.Rptr. 175

1 Cal.3d 214, 461 P.2d 375

Marc S. MORRISON, Plaintiff and Appellant, v. STATE BOARD OF EDUCATION, Defendant and Respondent.

L.A. 29632.

Supreme Court of California,

In Bank.

Nov. 20, 1969.

Melville B. Nimmer, Los Angeles, for plaintiff and appellant.

Thomas C. Lynch, Atty. Gen., Edward M. Belasco and Anthony M. Summers, Deputy Attys. Gen., for defendant and respondent.

TOBRINER, Justice.

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. ¹ This revocation rendered petitioner ineligible for employment as a teacher in any public school in the state. ² On February 14, 1967, ³ petitioner sought a writ of mandate from the Superior Court of Los Angeles County to compel the board to set aside its decision and restore his life diplomas. After a hearing the superior court denied the writ, and this appeal followed.

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 ⁴ physical relationship which petitioner described ⁵ as being of a homosexual nature. Petitioner has never been accused ⁶ or convicted of any criminal activity whatever, and the record contains no evidence of any abnormal activities or desires by petitioner since the Schneringer incident some six years in the past. Petitioner and Schneringer met on numerous occasions in the spring and summer after the incident and nothing untoward occurred. When Schneringer later obtained a separation from his wife, petitioner suggested a number of women whom Schneringer might consider dating.

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. ⁷

Some 19 months after the incident became known to the superintendent, the State Board of Education conducted a hearing concerning possible revocation of petitioner's life diplomas. Petitioner there testified that he had had some undefined homosexual problem at the age of 13, but that, with the sole exception of the Schneringer incident, he had not experienced the slightest homosexual urge or inclination for more than a dozen years. Mr. Cavalier, an investigator testifying for the board, stated that the Schneringer incident 'was the only time that (petitioner) ever engaged in a homosexual act with anyone.' No evidence was presented that petitioner had ever committed any act of misconduct whatsoever while teaching.

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 ⁸ also contain these rather general terms. This court has not attempted to formulate explicit definitions of those terms which would apply to all the statutes in which they are used. (See Yakov v. Board of Medical Examiners, supra, 68 Cal.2d 67, 73, 64 Cal.Rptr. 785, 435 P.2d 553.) Rather, we have given those terms more precise meaning by referring in each case to the particular profession or the specific governmental position to which they were applicable. ⁹

In Hallinan v. Committee of Bar Examiners (1966) 65 Cal.2d 447, 55 Cal.Rptr. 228, 421 P.2d 76, for example, we considered the meaning of 'acts of moral turpitude' as applied to an applicant for admission to practice law. (See 65 Cal.2d at pp. 452, 461, 55 Cal.Rptr. 228, 421 P.2d 76.) In that case the applicant had been arrested and convicted of a number of minor offenses in connection with peace demonstrations and civil rights 'sit ins'; he had likewise been involved in a number of fist-fights. We held that the applicant could not be denied admission to the bar. The nature of these acts, we ruled, 'does not bear a direct relationship to petitioner's fitness to practice law. Virtually all of the admission and disciplinary cases in which we have upheld decisions of the State Bar to refuse to admit applicants or to disbar, suspend, or otherwise censure members of the bar have involved acts which bear upon the individual's manifest dishonesty and thereby provide a reasonable basis for the conclusion that the applicant or attorney cannot be relied upon to fulfill the moral obligations incumbent upon members of the legal profession. (citations) * * * Although petitioner's past behavior may not be praiseworthy it does not reflect upon his honesty and veracity nor does it show him unfit for the proper discharge of the duties of an attorney.' (Italics added.) (Hallinan v. Committee of Bar Examiners, supra, 66 Cal.2d 447, 471--472, 55 Cal.Rptr. 228, 245, 421 P.2d 76, 93; compare Schware v. Board of Bar Examiners, supra, 353 U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 796.) ¹⁰

In Yakov v. Board of Examiners, supra, 68 Cal.2d 67, 64 Cal.Rptr. 785, 435 P.2d 553, we were also concerned with moral turpitude. In that case a doctor had been convicted of nine counts of violation of section 4227 of the Business and Professions Code (furnishing dangerous drugs without prescription), and the Board of Medical Examiners had revoked his medical certificate. The superior court reversed the board's action; we upheld that court's disposition of the matter, stating, inter alia, 'The purpose of an action seeking revocation of a doctor's certificate is not to punish the doctor but rather to protect the public. * * * (Citations.) While revocation of a certificate certainly works an unavoidable punitive effect, the board can seek to achieve a legitimate punitive purpose only through criminal prosecution. Thus, in this proceeding the inquiry must be limited to the effect of Dr. Yakov's actions upon the quality of his service to his patients.' (Italics added.) (Yakov v. Board of Medical Examiners, supra, 68 Cal.2d 67, 73 fn. 6, 64 Cal.Rptr. 785, 790, 435 P.2d 553, 558.) ¹¹

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, 261 P.2d 261, 268.) ¹² In Owens the Court of Appeal held that in deciding whether certain conduct by a teacher constituted unprofessional conduct which warranted discipline, a trial court must inquire whether that conduct had produced 'any disruption or impairment of discipline or the teaching process * * *.' (206 Cal.App.2d 147, 157, 23 Cal.Rptr. 710, 717.)

In Orloff v. Los Angeles Turf Club (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, 227 P.2d at p. 454.) 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...