The California 2nd District Court of Appeal upheld a determination by Los Angeles County Superior Court Judge Luis Lavin that the Los Angeles Unified School District’s Commission on Professional Competence erred when it found a gay elementary school teacher who had been arrested in a park sting was “unfit to teach” and authorized termination of his employment. Rodriguez v. Commission on Professional Competence, 2015 Cal. App. Unpub. LEXIS 9062, 2015 WL 8767581 (Dec. 14, 2015). The courts relied heavily on a landmark 1969 California Supreme Court decision, Morrison v. State Board of Education, 1 Cal.3d 214 (1969), which had rejected long-standing precedents, holding that gay people were not necessarily morally unfit to be public school teachers and could not be discharged without a showing of adverse effect on the school and/or students.
The plaintiff had been a teacher with the Los Angeles Unified School District for 24 years at the time of his discharge. He was by all accounts an exceptionally talented and dedicated teacher. He was arrested in Elysian Park on September 1, 2010, by undercover police officers who claimed he had exposed his penis to one of them and nodded at the officer as a signal to follow him. Accounts differed as to whether he was masturbating and whether the location in which he was standing was visible from the nearby Park Row Drive. The teacher later testified that he had been out jogging and had found an isolated place to urinate, which is why his penis was out, that he noticed an attractive man staring at him and thought that contact was desired. In any event, he was arrested and charged with publicly engaging in lewd conduct. Under the state’s Education Code he was placed on compulsory unpaid leave and his teaching credentials were suspended. The misdemeanor complaint was subsequently amended to add a charge of disturbing the peace. The teacher pleaded no contest to the disturbing the peace charge and was placed on two years’ probation. The lewd conduct charge was dismissed and his teaching credentials were reinstated. The guilty plea was later expunged after the probationary period ended without incident. Administrators at the Pacific Boulevard School recommended in December 2010 that he be assigned to teach the fourth-grade gifted class, but the District continued to assign him to non-teaching duties, and a principal leader for the local school district recommended after an informal meeting with the teacher that he be dismissed.
In February 2012 the teacher was notified of the District’s intention to dismiss him and he was suspended without pay. The District filed charges with the Commission on Professional Competence seeking dismissal on grounds of immoral conduct, unprofessional conduct and evident unfitness for service. In June 2012, the Committee on Credentials reviewed the file and determined to close its investigation and recommend no adverse action, but the Commission went ahead with a hearing in January 2013 at which the teacher and the arresting officers testified about what had happened on September 1, 2010, and various administrators and teachers gave opinion testimony about the teacher’s qualifications, emphasizing their fear that his “poor judgment” could affect his ability to be a role model for students and that parents who might learn of what had happened would demand that their children be withdrawn from his classes. The Commission found the police officer’s testimony credible, and found, referring to the %Morrison% decision factors, that even though there was no evidence of an actual adverse effect on students, the District’s witnesses “established that he could not function as an effective role model for students”; “there was evidence that parents would be adversely affected, and it was clear District administrators were as well’: and that in light of his “poor judgment” displayed on that occasion, he “could not be trusted in a classroom to exercise the judgment necessary under his responsibility to properly interact with his young students.” The Commission emphasized that the teacher continued to deny having done anything wrong and thus “did not take responsibility” for the conduct that the Commission concluded had occurred. The Commission granted the District’s request that the teacher be discharged.
The teacher then petitioned the Los Angeles County Superior Court for a writ of mandate to set aside his termination, which was granted by Judge Lavin. As authorized by statute, the court exercised its “independent judgment on the evidence in the administrative record,” finding that the police officer’s credibility was questionable and his “recollection of what transpired highly suspect.” Lavin explained that the police officer “exhibited bias or prejudice against [the teacher] because of his sexual orientation,” shown by the police officer asking the teacher whether he had AIDS and making exaggerated statements in the arrest report that “reflect outdated stereotypes and a strong moral disapproval of homosexuality.” The court doubted that the police officer’s recollection of various precise details of the incident after the passage of several years was reliable.
According to the Court of Appeal opinion by Justice Dennis Perluss, “Following in part from these credibility determinations, the court found, although the weight of the evidence established [the teacher] had exposed his penis to [the officer] and touched it for about 20 seconds, it did not support the Commission’s findings [the teacher] had masturbated or that his conduct was visible from Park Row Drive, 200 feet away and obscured by bushes, shrubs and trees.” As to the Morrison factors, Lavin said the evidence did support a finding that the teacher’s act of exposing himself “to an undercover police officer who he thought was sexually interested in him adversely affected other teachers and students at Pacific Boulevard Elementary,” observing that those findings were based entirely on the personal opinions of the District’s lay witnesses, as the District “called no medical, psychological, or psychiatric experts to testify as to whether a man who had had a single, isolated, and limited encounter with one person would be likely to repeat such conduct in the future. The District also offered no evidence that a man of his background was any more likely than the average adult male to engage in any untoward conduct with a student, teacher, or [District] employee.” The court also noted that the teacher’s “multi-subject teaching credential” would “permit him to teach at more than 400 other schools in the District to the extent his misconduct was sufficiently notorious at Pacific Boulevard School to justify a transfer or reassignment notwithstanding ‘at most, . . . a handful of teachers’” at that school had even “limited knowledge” of what had happened. Judge Lavin concluded that the teacher’s dismissal was improper. “Moral disapproval, by itself, of his actions is not a sufficient reason to deem him a threat to students, teachers, or administrators,” Lavin wrote.
The Court of Appeal affirmed Lavin’s ruling, rejecting the District’s appeal. “When, as here, the superior court has independently reviewed the administrative record and ruled the weight of the evidence fails to support the administrative agency’s order,” wrote Justice Perluss, “our ‘substantial evidence’ review of that conclusion is, in practice, akin to appellate review in civil failure-of-proof cases: If the evidence in the administrative record compels a finding in favor of the agency as a matter of law, we must reverse. . . However, if there is substantial evidence on both sides of the factual issues or a complete absence of evidence, we will affirm the superior court.” In this case, the court concluded, the superior court did not err in concluding that the District presented “insufficient evidence” that the teacher was “unfit to teach.” The court of appeal found that once the superior court’s independent review of the record established that the “factual basis for the District’s penalty decision was properly set aside,” it followed that the decision to terminate him was “necessarily an abuse of discretion.”
The District claimed that the superior court had failed to follow Morrison to the letter. “The District misconceives the purpose of the Morrison factors,” wrote Purless, “which are not inflexible rules with definable boundaries, but broad classes of issues to be considered to assist ‘in determining whether the teacher’s future classroom performance and overall impact on his students are likely to meet standards.’ Even the Morrison court itself, in analyzing whether Morrison was fit to teach, did not focus on several of the key factors. Thus, in holding the record contained no evidence Morrison’s week-long, consensual physical relationship with another man rendered him unfit to teach, the Court analyzed whether ‘his retention in the profession poses a significant danger of harm to either students, school employees, or others who might be affected by his actions as a teacher.’ In doing so, the court ‘inquired whether any adverse inferences can be drawn from that past conduct as to petitioner’s teaching ability, or as to the possibility that publicity surrounding past conduct may and of itself substantially impaired his function as a teacher.’”
In this case, Purless continued, substantial evidence supported the conclusion that “only a handful of administrators and teachers had limited knowledge of the basis for [the teacher]’s arrest and thus his conduct had not ‘gained sufficient notoriety so as to impair his on-campus relationships.’. . . There was no evidence other teachers or student would ever learn of [his] conduct, occurring several years earlier and for which his conviction of disturbing the peace had been expunged.” “The District witnesses’ testimony about what parents might do if they were to learn of the conduct was entirely speculative and of limited value,” wrote Purless.
While noting distinctions between Morrison, which involved private consensual behavior, and this case, which involved an arrest in a public park, the court concluded that “the fact that [the teacher] had been charged with lewd conduct or pleaded no contest to disturbing the peace is not in and of itself a sufficient basis for a determination that he was unfit to teach. Rather, it is simply a consideration. In sum, the superior court in the instant matter understood the law, evaluated the credibility of the witnesses and considered the facts in concluding the District had failed to carry its burden of demonstrating [the teacher] was unfit to teach. We find no basis to rule the court’s legal reasoning was flawed or its conclusions unreasonable.”
The teacher was represented by attorneys Lawrence B. Trygstad and Richard J. Schwab of Trygstad, Schwab & Trygstad.Tags: California 2nd District Court of Appeal, gay school teacher, Justice Dennis Perluss, lewd conduct, Los Angeles Unified School District, Morrison v. State Board of Education, park sting arrest, professional competence of teacher, Rodriguez v. Commission on Professional Competence, Superior Court Judge Luis Lavin, unfit to teach