The California 4th District Court of Appeal affirmed a ruling by San Diego County Superior Court Judge Jeffrey B. Barton that a gay middle school teacher in the San Ysidro Unified School District exhibited “evident and characteristic unfitness for service” because of the way he used his classroom computer. The court rulings overturned a decision by a unanimous three-member panel of the Commission on Professional Competence, which had voted to dismiss all disciplinary charges against the teacher. San Ysidro Unified School District v. Commission on Professional Competence, 2013 Cal. App. Unpub. LEXIS 5539 (August 5, 2013). The court insisted that the teacher’s sexual orientation, and the fact that he lived with a same-sex partner, had nothing directly to do with its decision.
The record before the court showed that the teacher had a successful record for a decade, winning “teacher of the year” awards twice, and there were no complaints about his service until a parent went to the school’s principal on December 18, 2009, complaining about a sexually explicit email that had been received by her 8th grade son from his science teacher. The email said, “I will be in Kalamazoo from Dec. 21 to Jan. 3. I want to fuck. Me . . . 32yo, 155 lbs., hairless chest, thick dick, DDF. Interested? His [sic] me up. Erik.” There were two graphic attachments. The student was so astonished at the email that he didn’t know what to do, and hadn’t opened the attachments. His mother opened them, finding a picture of a man in a suit [the teacher] and another picture of a naked man from the neck down.
The principal informed the superintendent of schools, who suspended the teacher pending an investigation. The teacher never sent the email in question. It seems that he was going to Kalamazoo to visit his mother over the Christmas break, and his partner, concerned that he might “play around” while he was gone, went into his home computer, which they shared, and using his password, which he had surreptitiously discovered, placed some ads in the teacher’s name in the “Craigslist men seeking men” category. The teacher’s Hotmail account stored email addresses for about 60 of his students accumulated over the past several years, and the program automatically completed email addresses from the address book. Evidently one of the student’s addresses was mistakenly called up by the Hotmail program when the partner began typing an address and one of these ads was sent to that address.
The investigation included a forensic examination of the classroom computer, on which were discovered about thirty graphic images of vaginas, as well as a manuscript of a novel the teacher had written about a gay teacher in Mexico, nicknamed “The Captain,” who had sexual contact with 14 year old male students. The forensic investigator determined that the manuscript had been on the computer for about a year, and that it had been revised at least twenty times. The teacher’s Hotmail address included the word “captain.” The office computer was not password protected, so theoretically students could have accessed this material, although there was no evidence that students had ever done so, and the teacher had always instructed substitute teachers not to let students use the computer when he was not there. The teacher subsequently explained that he had accessed and stored the pictures of vaginas while researching about a medical problem of his partner’s mother, and some of them looked like illustrations from a medical textbook, but others were of a more erotic or satirical nature.
The school district had a policy on computer use, which the teacher had signed, that limited use of school computers to “employment-related purposes” and required that “student addresses” be treated as confidential information and not be shared with anybody. Upon completing the investigation, school officials decided to discharge the teacher, concluding that his improper storage of student email addresses in his Hotmail account had made possible the erroneous transmission of a sexually-explicit email to a student, and that the other things found on his classroom computer violated the school’s computer use policies and could have come to the attention of students. Officials claimed that discovery of these violations made them lose confidence in his judgment.
The Commission, however, unanimously ruled in favor of reinstating him. It found that the teacher’s partner was responsible for sending the email to the student, who had not, in any event, seen the sexually explicit attachment, although his mother had, and that the teacher was apologetic about what happened and had testified that he would take steps to eliminate student email addresses from his personal Hotmail account so this could not happen again. Indeed, the Commission decided that the somewhat vaguely worded district policy did not clearly forbid keeping student email addresses in a teacher’s private email account, inasmuch as the district did not have a rule prohibiting teachers from communicating with students by email. The district had provided Microsoft Outlook accounts for teachers and students, but the teacher had not switched to Outlook for his communications with students. The Commission believed the teacher’s explanation of why the vagina pictures were on his classroom computer, and decided that neither they, nor the novel, had actually been seen by any students or caused any harm. In effect, the Commission’s attitude seems to have been that although the teacher had clearly violated some district rules on computer use, he had learned his lesson, was contrite, and would not violate the computer policy in the future. And, after all, it is not easy to find effective classroom teachers, which the teacher seems to have been.
The school district, determined not to reinstate the teacher, appealed to the Superior Court, where Judge Barton, undertaking an independent review of the record, decided that the record did not support the Commission’s decision. Clearly, the Commission found that the teacher had violated district rules on computer use, that the objectionable material on his classroom computer could have been accessed by students, and that his inappropriate storage of student email addresses in his Hotmail account had made it possible for his partner to accidently send an inappropriate sexual message to a student. More importantly, Barton concluded “that since students, parents, and educators had become aware of the contents of the student email, the District administrators had justifiably lost confidence in him as a teacher, with regard to his ability to keep students safe and to act as a role model in the school.” Judge Barton also had problems with the teacher’s credibility, as he had changed his story about why the vagina graphics were on the computer. He concluded that the teacher’s conduct “was detrimental to the mission and function of an educator, and was immoral conduct demonstrating a character trait that led to evident unfitness behavior.”
The Court of Appeal agreed with the trial judge, rejecting the teacher’s argument that Judge Barton had not been adequately deferential to the Commission’s determination that he should be reinstated. Writing for the appellate panel, Judge Richard D. Huffman pointed out that the role of the appellate court is particularly limited in this kind of administrative review case, in which the trial court was authorized under California precedents to set aside the Commission’s ruling if the trial court found that it was not supported by the weight of the evidence. The teacher had complained that the trial judge did not give him an opportunity to testify and confront factual findings with which he disagreed, but Huffman concluded that the trial judge acted appropriately, since the teacher got to testify in the administrative proceeding, and the hearing record in an administrative proceeding cannot be supplemented with new testimony after the hearing has closed. The teacher had also complained that Judge Barton had not given adequate weight to his good record as a teacher, but this struck the appellate court as irrelevant.
The issue, ultimately, was whether the hearing record supported the school administrators’ conclusion that the teacher was “unfit” to be in the classroom because of character traits that were irremediable. The trial judge’s review of the hearing record showed that the teacher had kept inappropriate material on his classroom computer for an extended period of time and had violated the school’s policy on computer usage, showing a character trait of unwillingness or inability to comply with reasonable rules for the protection of the students, and the appellate court saw no reason to overturn this conclusion.
“There was sufficient evidence to establish that Appellant’s own conduct and lack of good judgment in this regard rendered him unfit for service,” wrote Judge Huffman, who continued, “The sexually explicit content of some of the passages in the record [from the manuscript of the novel stored on the classroom computer] is most inconsistent with the educational purpose of the policy: to promote teachers’ responsible, appropriate use of technology, for use ‘primarily for purposes related to their employment,’ here, math and science.” Huffman said that “such use of the classroom computer was inconsistent with District policy, and demonstrated such poor judgment in the middle school setting in this regard as to support the finding that Appellant’s defect in temperament as a teacher justified his dismissal.”
As a result of this decision, it is unlikely that the teacher will be able to continue in his profession anywhere in California – or potentially anywhere else, for that matter. The case provides a cautionary note for educators who are provided with classroom technology. None of the teacher’s violations would have come to light had not his jealous partner decided to use his home computer and inadvertently sent a sexually explicit message to a student. One way of looking at this story is to say that the teacher lost his job through no fault of his own; but from the perspective of the court, the entire incident was his fault because he persistently failed to comply with the district’s reasonable restrictions on computer use. Had the student addresses not been in his Hotmail account, accessible to somebody else, none of this would have happened.