Classify this one under "what could he have been thinking?"
On April 4, the California 4th District Court of Appeal, unanimously reversing a decision by San Diego Superior Court Judge Steven R. Denton, ruled that the San Diego School District was justified in discharging Frank Lampedusa, who had posted a "men seeking men" sex ad on Craigslist that included sexually explicit language and nude photographs showing his genitals and his face.
Again, what could he have been thinking?
Lampedusa, who had a tenured appointment with the School District, has been a teacher there since 1999. In 2004, he began working at Farb Middle School (grades 6-8), and held the position of dean of students, which involves handling disciplinary issues, providing support to students struggling with behavioral problems, meeting with parents, and coordinating with teachers and students to assist struggling students. His Principal, Susan Levy, testified that he "did a good job" and was "professional" and successful in dealing with the problem kids.
But on June 22, 2008, a District police dispatcher received a call from somebody who wouldn't give his name but said he was a parent of a Farb student who had received a call from a friend telling him that the dean of students from Farb had an ad on Craigslist's "men seeking men" page looking for sex. The caller told the dispatcher how to access the ad online, the dispatcher pulled it up and contacted a detective, who asked her to print it out.
The ad, which could only be reached by clicking past an age screening question, had a very explicit text about what the person placing the ad was looking for in a sex partner, and included explicit photos showing the advertiser's face and genitals. There was no indication of the advertiser's name; respondents to the ad would reply through Craigslist which would forward responses. There was nothing in the ad to connect the advertiser to the Farb School or to indicate that he was an educator.
The detective then informed the Area 3 Superintendent who has authority over the Farb school, who reported the ad to Principal Levy. The superintendent also called Lampedusa and suggested that he remove the ad, which he did. (The ad was up for about two days.) A month later, Lampedusa was placed on administrative leave. Principal Levy said she had lost confidence in his judgment. That fall, he received a notice of suspension with intent to dismiss on allegations of "evident unfitness for service" and "immoral conduct," as well as failure to follow Board guidelines concerning conduct of teachers.
Lampedusa decided to fight this and requested a hearing before the Commission on Professional Competence. Lampedusa was contrite, pointed out that he had immediately removed the ad when requested. He didn't think that posting sex ads was wrong, but he agreed that when he placed ads in the future he would be "censoring things a lot more effectively. I might put a picture on there, but it certainly would not be anything that people would necessarily object to." He said that he was assuming that he could post on an adults-only site and count on kids not to falsely click on an age declaration. Evidently it never occurred to him that anybody at school might learn about the ad. . .
The Commission issued a decision on June 12, 2009, finding that Lampedusa's "conduct in placing this sexually explicit ad was vulgar and inappropriate and demonstrated a serious lapse in good judgment." The Commission said it "strongly condemns" his behavior. And yet, the Commission concluded that the District failed to "prove any nexus whatsoever to respondent's employment with the District." In other words, this was off-duty conduct and did not establish that he was unfit to teach by reason of a temperamental defect and or that he had engaged in immoral conduct rendering him unfit. The Commission said that if a student, parent or teacher had viewed the ad, "it surely would have washed over into his professional life and interfered with his ability to serve as a role model at school. However, that simply never happened in this case." Clearly, the Commission was overlooking a key bit of evidence: it was a parent of a Farb student who called the police about the ad.
The Commission, however, did not see any particular problem with letting the now contrite Lampedusa resume his career as a teacher in the San Diego school district, and ordered his reinstatement. The District emphatically disagreed and filed a petition in the San Diego Superior Court, challenging the decision. But Judge Denton found that the weight of the evidence supported the Commission's ruling, concluding: "Lampedusa's conduct did not affect students or other teachers, and by all accounts he was a competent teacher and Dean of Students."
The Court of Appeal seemed to be incredulous at the Commission and trial court rulings. It found "no substantial evidence to support the Commission's decision as the evidence showed an evident unfitness to serve as a teacher, which constituted adequate grounds for termination." The court's opinion goes on for several pages, but the upshot of it is that they thought that Principal Levy's loss of confidence in Lampedusa's judgment as a result of this incident was justified. While they weren't condemning him for seeking sex partners online, the tone of the opinion is along the lines of my opener above: what could he have been thinking? Why would a public school teacher post a vulgarly-worded sex ad on-line with nude pictures (including his face) from which he could be identified? What kind of discretion and judgment does that show? The court pointed out that the public expects high standards from teachers as role models for kids, and observed that it seemed entirely appropriate to boot somebody for doing something like this.
The court concluded that on every factor identified in California case law involving removal of tenured teachers for misconduct, the record failed to support the Commission's conclusions. The opinion is a total wipe-out for Lampedusa's position. In the opinion's peroration, Justice Gilbert Nares wrote: "The posting on a public Web site of his genitals and anus, accompanied by sexually explicit text, was, in the words of the Commission itself, vulgar, inappropriate and demonstrated a serious lapse in good judgment. He also failed to recognize the seriousness of his misconduct, and attempted to shift blame to parents and students who might access his ad. Principal Levy had lost confidence in his ability to serve as a role model based upon the posting. Most noteworthy is the fact he testified that he did not think it would have any impact on his ability to teach his students if any of them had viewed the ad and that he did not view his posting of the ad as immoral. The conduct itself, together with Lampedusa's failure to accept responsibility or recognize the seriousness of his misconduct given his position as a teacher and role model, demonstrates evident unfitness to teach."
The court of appeal instructed the superior court to "issue a writ of mandate instructing the Commission to set aside its decision finding cause did not exist to terminate Lampedusa's employment and render a decision, consistent with this opinion, finding Lampedusa's conduct constituted grounds for dismissal based upon his evident unfitness to teach and his immoral conduct."
Interestingly, the court cited Morrison v. State Board of Education, 1 Cal.3d 214 (1969), an early California Supreme Court decision upholding the dismissal of a gay teacher, as the source of factors to determine the unfitness of somebody to teach. In Morrison, the teacher had a short sexual affair with a married man, who, conflicted and upset about his sexuality, went to school authorities and told them about it. At that time, gay sex was illegal in California, and the school authorities instituted discharge proceedings based on the criminality of the teacher's action. Today, the California Supreme Court would not think of upholding a dismissal under those circumstances, and the citation of Morrison as a basis for the analysis in this case seems ironic. Application of the Morrison factors to Mr. Morrison's case would result in no discipline. But Lampedusa's case seems relevantly different. It will be interesting to see whether he attempts to appeal this ruling to the California Supreme Court. One would not be sanguine about the outcome.
After all, what could he have been thinking…..?