STANLEY M. LINDROS, Plaintiff and Appellant, v. GOVERNING BOARD OF THE TORRANCE UNIFIED SCHOOL DISTRICT, Defendant and Respondent.
L.A. No. 30059
In Bank
May 31, 1973
9 Cal. 3d 524
Arthur Grebow and Stephen E. Kalish for Plaintiff and Appellant.
John D. Maharg, County Counsel, Kenneth E. Reynolds, John J. Wagner and Howard R. Gilstrap, Deputy County Counsel, for Defendant and Respondent.
OPINION
TOBRINER, J.—In this case we examine
For the reasons set forth below, we hold that these incidents fail to establish “cause” for termination which is reasonably “relate[d] to the welfare of the schools and pupils thereof” as required by
The Torrance Board employed petitioner as a tenth-grade probationary English teacher at South High School for the 1969-1970 school year. Petitioner‘s record attested to his eminent qualification for the position. Not only did he hold a California teaching credential but also he had studied for, or obtained, advanced degrees in philosophy, theology, and the communication arts. A Catholic priest on leave of absence from the Church, petitioner had enjoyed a wide range of experience: he had served as a parish priest, prison chaplain, resident counselor, and secondary level teacher. Nothing in the record suggests that petitioner had failed to fulfill his promise as an effective English instructor or had been unable to relate well with young people; indeed “teacher evaluation” records indicated that he proved himself “above average” in both competency in subject matter and in rapport with students.
The incident which constituted the main charge against the petitioner occurred early in the school year. In mid-October 1969 petitioner assigned his tenth-grade English classes the task of preparing a short story relating a personal emotional experience. The purpose of this assignment, as later described by petitioner, was to stress “the relationship between good creative writing and personal experience. I believe this to be the key in communicating with students and encouraging better writing.”
At the request of several students that he present them with an example of his own work, Lindros read a short story, “The Funeral,” which he originally wrote as a rough draft for a television play at Loyola University. Autobiographical in nature, the story recorded petitioner‘s emotions at the funeral of one of his students who, during the time Lindros taught at a predominantly black high school in Watts, died of a heroin overdose. The theme contained language later deemed objectionable by South High‘s principal—including a slang expression for an incestuous son. We set forth the full text below:
“The Funeral
“I was mad, disgusted . . . tense. If Agnes hadn‘t reminded me I‘d still be watching Shoes of a Fisherman at the film director‘s studio. But whether it was guilt or concern, I knew I should be at Ed‘s funeral at 2 p.m.
“The highway provided me with nothing but a blanket of mist and melancholy. Splashing past 110th and Compton Ave. I caught sight of Greater Antioch Baptist Church just as four of my students were carrying Ed‘s body into the dismal looking building.
“Water dripped from the ceiling as the small choir intoned, Come Sweet Jesus . . . . Only the appearance of plump Rev. Black, Bible in hand, saved us from their uncoordinated efforts.
“I couldn‘t catch what Black was reading but it was unimportant. I was here, somber, moody, thoughtful; and all to the testimony that I as a white man did care for a young black hipe who died too young . . . too soon.
“Lloyd made it . . . Larry, Fred, Benard, Fuzzy—they were all there. Seemed like every addict in the community was on the scene with his leather jacket and shades, as if to collect . . . or to pay off to Ed. What a lineup! Sargent [sic] Masterson from Precinct 77 would have raised a brow or two at this gathering.
“Kelly had tears streaming down his face; perpetually high . . . who could blame him; deserted father, bitch mother; in and out of jail since thirteen. He shot with Ed for the last time that Saturday night.
“The wailing, so characteristic at a Black funeral did not begin until the second stanza of I Believe, delivered by Hessie Jones. The little Black kid next to me stared at the solitary tear that rolled down my cheek.
“Why are women so goddam hysterical? Did they really know Ed? Did they care? Were they using Ed‘s ‘time’ from their own shackles of welfare and project living? I do not know. I do not live in Watts; but I feel for them now, in their strange melodramatic way.
“Only the obituary read by Sister Maebelle shook me out of my depression. ‘Ed Leavy Pollard. Born in Greenwood, Miss., 1952; Died Jan. 11, 1969. . . .’ She droned on in a pitifully low, uneducated tone.
“Curley, a steady shooter with Ed was moved to bellow out, ‘Louder Lady, I can‘t hear ya.’ Choresetta in the fourth pew from the front
responded to this abrupt remark with a deep shaking sob. The storm grew louder. I noticed at least three leaks from the roof now. God, what a depressing hole; wet, dam [sic] pictureless, peeling paint, worn, dam pews; only the cossack of Ed and us. ‘Only us O Lord,’ I thought ‘but what the hell are we here for?’ “I sit here white, middleclass, secure, while the goddam system rapes these poor people of every vestage [sic] of dignity.
“Rev. Galine, a slick looking ‘Tom’ began the eulogy; Jeremiah was the scapegoat. First there was the woman in the back row. She was joined by three others; then another . . . and another; soon everyone in the drama had his chance to chant a response back to the Baptist Preacher; ‘Oh Lord’ . . . ‘That‘s right’ . . . ‘I‘m listnin’ . . . ‘Speak God.’ . . . Only the periodic gasping signs (sobs) interrupted the Rev‘s show.
“Ed would have rolled over and grimaced if he would have heard the hysterics when David, his classmate, opened his cossack for the finale. The weeping and gnashing lasted long enough for all of us to troop past Ed and glance at his ashen, black face.
“I felt whipped out; this was a strange two hours; strange to a white who had no blackness in him; strange to a white who knew no such poverty and desperation; even stranger outside when I greeted a young Black in a Panther-like outfit: ‘White-mother-fuckin Pig.’ . . .”
Before reading the controversial words at the end of “The Funeral,” petitioner pondered their appropriateness for the classroom, and decided in good faith that their use was permissible in some, but not all, of his classes.3 As petitioner stated, although he recognized that “a few words in ‘The Funeral’ [were] not acceptable in common usage . . . [he] felt that even if one student was to give up or think less of drugs, the reason for
Furthermore, the prevailing practices and conditions at the high school strongly indicated that the inclusion of the language in a literary composition would evoke no concern. The library shelved books, readily available to students, which contained words identical to all of those found in “The Funeral“; school administrators, moreover, as part of the curriculum, had permitted instructors to take students to theatrical performances in which the lines spoken by the actors contained the same or similar words.
No disruption of classroom activities followed petitioner‘s reading of “The Funeral.” As the hearing officer noted, “In considering the seriousness of the use of the offending material . . . these words were presented fully or by their initial letters to five classes of a total of approximately 150 students. No complaint arose from the students and none arose from the parents of these students. This will not establish that the material was appropriate for classroom use but does tend to establish that the context and manner of presentation was not nearly so startling to the students who heard it . . . as the disembodied restatement of the offending words makes it appear.”
Despite this seemingly indifferent reaction, the principal of the high school learned of the incident and reprimanded Lindros. The principal counseled Lindros that the language of the short story did not accord with established classroom usage and that further use of vulgar material should be avoided; petitioner agreed to abide by this directive and signed a statement to that effect. This meeting closed the incident until the end of the school year, some eight months later, when the Torrance Board announced that it would not rehire Lindros. As both the hearing officer and the superior court later found, the reading of “The Funeral” constituted the “gravamen” of the Torrance Board‘s complaint against Lindros.4
After the superintendent of the Torrance School District served notice of an intention not to rehire Lindros because of the aforementioned incidents, the Board held an administrative hearing pursuant to subdivision (b) of
The Torrance Board, without examining the record of the administrative hearing, adopted the hearing officer‘s report as its own; the Board further declared that each charge “separately and collectively” constitute[d] . . . sufficient cause not to reemploy [petitioner].”6
Following the Torrance Board‘s final decision, Lindros petitioned the Los Angeles Superior Court for a writ of mandate under
I. The question whether alleged misconduct establishes “cause” under section 13443, subdivision (d), constitutes a question of law.
The precedents clearly establish that the question whether a particular cause for refusal to rehire relates “solely to the welfare of the schools and the pupils thereof” presents a matter of law that must be determined by the courts, and, ultimately by this court. The Board determines the facts and their sufficiency to support the Board‘s determination but the court decides whether the facts as found—in our case, the conduct of the teacher—reasonably could be said to have adversely affected the welfare of the school or its pupils.
In the fountainhead case of Griggs v. Board of Trustees (1964) 61 Cal.2d 93, a school board refused to rehire a probationary teacher for “lack of self-restraint and tact in dealing with co-workers, pupils, and parents.” (Id. at p. 97.) We interpreted
We more recently examined the division of responsibilities between courts and governing boards under
We further explained that “although the reviewing court must accept evidentiary facts shown by substantial evidence and the sufficiency of those facts to constitute a stated cause, still it remains for the court to determine as a matter of law whether such cause relates to the welfare of the school and its pupils and is therefore adequate under the provisions of section 13443 to justify dismissal.” (Id. at p. 589.) (Italics in the opinion.)
In sum, whether particular conduct establishes cause under
Having demonstrated that the determination of “cause” under
Lindros’ reading of the composition did not constitute “cause” under
A. In reading “The Funeral” petitioner sought to pursue a bona fide educational purpose and in so doing did not adversely affect the welfare of the school or the pupils thereof.
Erroneously applying a per se approach to the controversial epithet at the end of “The Funeral,” the superior court declared that its use was “manifestly coarse and vulgar.” The court, however, apparently failed to make the crucial distinction between unrestricted use of such words in the classroom and their inclusion in teaching material for a class in creative writing.
Petitioner is the first to concede that it would be “outrageous . . . if a teacher simply shouts ‘mother-fucking-pigs’ to his students.” Obviously teachers are not to sanction the use of words as blatantly offensive as these in classroom discussion or even in the personal banter of students. But here the words were used by a character in a story; the story, in turn was presented as an example of expressive writing. The black character utters the words in “The Funeral” as a mark of his anger and disgust at a white‘s presence at the funeral; the words were employed for a definite literary objective. Thus, Lindros read the story to his students as part of a quite obvious teaching technique.
Many classic works seeking to capture the anger of blacks against a society that they consider inexcusably oppressive are peppered with epithets that express outrage in terms at least as violent as that used here. Malamud‘s “The Tenants” is a recent example; “Man-Child in a Promised Land” by Claude Brown is another. Baldwin‘s “The Fire Next Time,” written, as it is, by a black, is the most virulent; we could cite innumerable other examples. The writer of “The Funeral” could not properly convey the fury of the young black at the apparent condescension of a white man in attending the funeral except by the use of an expletive. The outrage of the black had to be mirrored in language that outraged.
The record shows that neither student nor parent complained about this use of the lurid words in Lindros’ composition. The students had been exposed to identical language in books and periodicals in the school library; their teachers had taken them to dramatic productions that used these and other obnoxious terms. That the students were not “shocked” can come as no surprise.
Finally, the United States Supreme Court has recognized the widespread use of current, divergent and distasteful patterns of speech, such as those involved here; indeed, in some situations that court has accorded constitutional protection to similarly shocking and offensive language. For example, the Supreme Court recently held the phrase “fuck the draft” protected by the First Amendment when portrayed on a jacket worn in a courthouse corridor. (Cohen v. California (1971) 403 U.S. 15.) Although Cohen involved a controversial term in expressing a political view in a public forum and is thus distinguishable from the instant situation, we note its reasoning: “How is one to distinguish this from other offensive words? Surely the State has no right to cleanse public debate to the point where it is grammatically palatable to the most squeamish among us. Yet no readily ascertainable general principle exists for stopping short of that result were we to affirm the judgment below. For, while the particular four-letter word being litigated here is perhaps more distasteful than most others of its genre, it is nevertheless often true that one man‘s vulgarity is another‘s lyric.” (Cohen v. California, supra, 403 U.S. at p. 25.)
Three recent cases in which the Supreme Court vacated criminal convictions for offensive speech and remanded in light of Cohen v. California, supra, 403 U.S. 15, illustrate the same point. In Rosenfeld v. New Jersey (1972) 408 U.S. 901, the defendant was convicted of disturbing the peace by indecent and offensive language; he had addressed a school board meeting, attended by some 40 children,
These cases illustrate both the use of such speech in sections of our multifarious society and an increasing immunity from criminal sanction for such expressions. While these rulings by no mean legitimize the general use of offensive language in the classroom, they do explain the background and reasons for the use of such words in literary works depicting realistically the coarse and strident forms of communication that so often attend public dialogue today.9
We conclude that the Board has failed to show that the inclusion of opprobrious language currently used in many subcultures, in a single composition, presented solely for teaching purposes, rises to the level of a legal cause for severance of a teacher from his employment.
B. The reading was only a single incident in the presentation of teaching material which, although later deemed objectionable, was used in the absence of prior reasonable notice that such use would be deemed impermissible by the school authorities.
As we have pointed out, the accepted policy at South High School permitted the selection of instructional material by teachers without submission to administrators for advance approval. Moreover, as we have explained, books and periodicals at the school library contained language as controversial as that found in “The Funeral“; further, students with the sponsorship of their teachers attended plays in which such language was employed. In the previous section we have alluded to the unfortunate current prevalence of language as repulsive as that we face here. The record shows no specific disapproval of the use of written material containing such expres-
We do not believe that one isolated classroom usage of material later deemed objectionable by school administrators, without reasonable prior notice, can constitute “cause” for termination reasonably “relate[d] solely to the welfare of the schools or pupils thereof.” “Cause” under
III. The incident involving dismissal of students on one school day fails to establish “cause” reasonably related to the welfare of the schools and was not the true reason for the Board‘s refusal to rehire Lindros.
We turn to the remaining charge that on one occasion during the school year Lindros permitted students to leave one of his classes “without proper authorization.” A close review of the findings pertinent to the incident reveals that it was not conclusively established that Lindros violated any school rule, and that, in any event, the isolated de minimis violation charged was a mere makeweight that did not constitute the true reason for the Board‘s refusal to rehire Lindros.
As the hearing officer found, however, de facto school policy required a teacher to provide a written authorization when sending more than five students to the library; conceivably, Lindros violated a school regulation, not by dismissing his students, but by failing on this single occasion to furnish a written “hall pass.” The hearing officer‘s decision, however, omitted any findings about this vital fact. The findings therefore do not directly support even the conclusion that Lindros dismissed the students without proper written authorization. (Cf. Almaden-Santa Clara Vineyards v. Paul (1966) 239 Cal.App.2d 860, 867-868.)
Furthermore, to assume that the Torrance Board would have refused to rehire Lindros based solely on the incident of February 6 stretches the credible. The incident at most involved a single, unrepeated infraction of a minor regulation in mid-year, with no showing of any adverse impact on the educational process, and with no showing that it occurred by other than mere inadvertence. We doubt that the Torrance Board would have acted so harshly as to ignore Shakespeare‘s common sense observation that “men are men; the best sometimes forget.” (Shakespeare, Othello, II (1604).)15
The judgment of the superior court denying the writ of mandate is reversed, and the cause is remanded to the superior court for proceedings consistent with this opinion.
Wright, C. J., Mosk, J., Sullivan, J., and Roth, J.,* concurred.
BURKE, J.—I dissent. The majority have wholly emasculated the provisions of
the Board then makes its determination; under the Government Code the Board can either adopt the “proposed decision” in its entirety (
*Assigned by the Chairman of the Judicial Council.
In Griggs, the “cause” for the board‘s decision was the teacher‘s “lack of self-restraint and tact in dealing with co-workers, pupils and parents.” Since substantial evidence existed to support the existence of that cause, and since that cause “is clearly a matter which relates to the welfare of the school and its pupils,” this court held that “the trial court could not properly substitute its own judgment for that of the board on the question of the sufficiency of the cause for Mrs. Griggs’ dismissal.” (p. 97) I stress the fact that this court did not purport to reappraise the “good faith,” “lack of significant adverse impact,” or other possible mitigating factors in Mrs. Griggs’ favor, unlike the majority‘s approach in this case, for such matters were exclusively within the domain of the school board.17
Similarly, in American Federation of Teachers v. San Lorenzo etc. Sch. Dist., 276 Cal.App.2d 132, 136, the court held that a probationary teacher‘s inability to accept responsibility and inadequate supervision of students “certainly relate to the welfare of the schools and the pupils . . . .” Accordingly, the court explained that it “cannot consider whether the charges justify dismissal.” (See also Governing Board v. Brennan, 18 Cal.App.3d 396 [teacher advocated marijuana use]; McGlone v. Mt. Diablo Unified Sch. Dist., 3 Cal.App.3d 17 [failure to supervise students]; Feist v. Rowe, 3 Cal.App.3d 404.)
The two cases which reversed school board decisions in this area are not on point for they merely established that physical characteristics of a teacher, such as advanced age or obesity, cannot constitute “cause” under
pp. 535-537.) Yet the question of adverse effect is precisely the question reserved to the school board by
In the instant case, Lindros used language in his classroom which many persons deem objectionable in any context.18 Indeed, it is well established that even permanent, tenured teachers are subject to appropriate discipline, including dismissal, on account of their classroom use of indecent or profane language. (See Board of Trustees v. Metzger, 8 Cal.3d 206, 212; Palo Verde etc. Sch. Dist. v. Hensey, 9 Cal.App.3d 967.) Accordingly, the district certainly had statutory authority to refuse to reemploy Lindros for the coming year.
The majority stress such factors as Lindros’ “good faith,” his “bona fide educational purpose,” the lack of complaints from his students, and the absence of school rules or regulations prohibiting the use of crude and vulgar language by teachers. Once again, it is apparent to me that consideration of such allegedly mitigating factors is for the school board, not the courts. If the board, in the exercise of its discretion and expertise, chooses not to reemploy a probationary teacher who uses such language, on what basis can this court interfere with that decision? Certainly there is no rule of law, statutory or otherwise, which would require advance publication of elaborate regulations and guidelines anticipating all possible infractions or misconduct which a probationary teacher might commit.19 As the trial court pointed out, Lindros’ language was “manifestly coarse and vulgar.
The Court of Appeal, Second District, in the vacated opinion in this case written by Presiding Justice Ford (103 Cal.Rptr. 188), aptly disposed of plaintiff‘s contention regarding lack of notice: “There is no ironclad rule of law that regulations or rules be promulgated which specify in minute detail the various kinds of misconduct which will subject a teacher to disciplinary action. It is not unreasonable to assume that a person engaged in the profession of teaching will have a reasonable concept of generally accepted standards relating to propriety of conduct, including the avoidance of vulgarity, and will adhere to such standards in his relationship with his pupils. . . .
“Adhering to an objective standard, in the present case it was not unreasonable to determine that the plaintiff was on notice that in teaching his tenth grade English classes the art of writing a short story and in affording his students aid by using as a model a short story written by him, resort to a particular story embodying vulgarity would not serve a substantial educational purpose but would constitute a serious impropriety because of the extraneous matter of an unexemplary nature. Since manifestly inherent in such conduct was the probability of an effect adverse to the welfare of students, it was reasonable to assume that the teacher was aware that he was thereby subjecting himself to the hazard of disciplinary measures. Consequently, his contention as to the lack of adequate notice to satisfy the concept of due process is untenable.”
I would conclude that the trial court properly denied mandate in this case, and, accordingly, would affirm the judgment.
McComb, J., concurred.
Respondent‘s petition for a rehearing was denied July 12, 1973. McComb, J., Burke, J., and Clark, J., were of the opinion that the petition should be granted.