ELIZABETH K. PETTIT, Plaintiff and Appellant, v. STATE BOARD OF EDUCATION, Defendant and Respondent.
L.A. No. 30094
In Bank. Sept. 7, 1973.
Sept. 7, 1973.
29
Stanley Fleishman and David M. Brown for Plaintiff and Appellant.
Peter T. Galiano, Richard Anthony, A. L. Wirin, Fred Okrand, Laurence R. Sperber and John D. O‘Loughlin as Amici Curiae on behalf of Plaintiff and Appellant.
Evelle J. Younger, Attorney General, Elizabeth Palmer, Assistant Attorney General, Edward M. Belasco and Melvin R. Segal, Deputy Attorneys General, for Defendant and Respondent.
OPINION
BURKE, J.—In this case we are asked to review a judgment denying plaintiff mandate to vacate an order of the State Board of Education revoking her elementary school life diploma on the ground that she engaged in certain acts of sexual misconduct evidencing her unfitness to teach. We have concluded that the conduct complained of furnished ample ground to support the order of revocation.
Plaintiff is an elementary school teacher, having held a California teaching credential since 1957. According to the record, in November 1967 plaintiff (then 48 years old) and her husband applied for membership in “The Swingers,” a private club in Los Angeles evidently devoted primarily to promoting diverse sexual activities between members at club parties. Sergeant Berk, an undercover officer working for the Los Angeles Police Department, investigated the club, was accepted for membership, and, on December 2, 1967, attended a party at a private residence during which he observed the incidents in question. According to Berk, he entered the residence where the party was held and immediately observed a man and woman (not plaintiff) engaging in sexual intercourse in an open bedroom.
Plaintiff was subsequently arrested and charged with violating
Subsequently, in February 1970, the disciplinary proceedings now before us were initiated to revoke plaintiff‘s teaching credential on the grounds (among others) that her conduct involved moral turpitude and demonstrated her unfitness to teach. At the board hearing, Sergeant Berk testified as summarized above. In addition, three elementary school superintendents testified that in their opinion plaintiff‘s conduct disclosed her unfitness to teach.1 Plaintiff did not testify at the hearing. However her husband testified, among other things, that plaintiff realized in advance that sexual activities would occur at the Swingers Club party, and that with her consent he had observed plaintiff engage in sexual intercourse and oral copulation with other men in the past. Mr. Pettit also testified that he and plaintiff had, in 1966, appeared on the Joe Pyne television show and also another similar show a few weeks later, and had on both occasions discussed “nonconventional sexual life styles.” Mr. Pettit recalled that the subjects of adultery and “wife swapping” were discussed and that “probably” the Pettits expressed a “philosophic” attitude on those subjects since they were not “uptight” about them. Although plaintiff and her husband wore a mask
Dr. William Hartman testified on plaintiff‘s behalf. Dr. Hartman is a licensed clinical psychologist, a professor of sociology, and a director of a center for marital and sexual studies. He had also known plaintiff socially for several years prior to the hearing. According to Hartman, plaintiff was well-adjusted, and in view of the trauma and emotional turmoil caused by her suspension, was not likely to repeat the prior offenses. Hartman disputed the testimony of the board‘s witnesses that the nature of the sexual misconduct involved herein would render plaintiff unfit to teach.
Plaintiff introduced an evaluation by her school principal finding her teaching to be satisfactory and commenting upon her classes’ progress and improvement. Plaintiff also introduced a contract of employment with her school district offering to rehire her for the 1968-1969 school year. The record is unclear, however, as to when her employer first learned of her Swingers Club activities.
At the conclusion of the hearing, the hearing examiner found that plaintiff has engaged in acts of sexual intercourse and oral copulation with men other than her husband; that plaintiff appeared on television programs while facially disguised and discussed nonconventional sexual behavior, including wife swapping; that although plaintiff‘s services as a teacher have been “satisfactory,” and although she is unlikely to repeat the sexual misconduct, nevertheless she has engaged in immoral and unprofessional conduct, in acts involving moral turpitude, and in acts evidencing her unfitness for service. Accordingly, the hearing examiner concluded that cause exists for the revocation of her life diploma. The board adopted the findings and conclusions of its hearing officer in toto.
Thereafter, plaintiff sought a writ of mandate from the superior court to review and set aside the board‘s order. (
As stated above, plaintiff was not convicted of the offense of oral copulation but of the misdemeanor offense of outraging public decency, an offense not specified in the foregoing sections as sufficient per se to justify revocation. Therefore, revocation of plaintiff‘s life diploma cannot be upheld solely by reason of the conviction entered against her.4 On the other hand,
tionships between teachers and students require that teachers be held to standards of morality in their private lives that may not be required of others. Parents have the right to demand high standards of conduct in the personal lives of the teachers of their children, and should have the right to expect that the teachers’ concepts of morals and sexual relationships not be at substantial variance with concepts that are generally accepted and approved in the community, and that they not engage in conduct which is proscribed by the criminal laws of this state. It should not be necessary for such unacceptable conduct to manifest itself in the classroom before the Board may, in the best interests of the educational system and of the students, revoke the teaching credentials of one who has evidenced such a disregard of the accepted standards of moral conduct and of the criminal statutes.”
In Morrison v. State Board of Education, supra, 1 Cal.3d 214, this court was faced with the problem whether certain homosexual conduct by a public school teacher justified revocation under the above statutory language. A majority of the court concluded that, in order to save the statute from attack on vagueness grounds, a teacher‘s actions could not constitute “immoral or unprofessional conduct” or “moral turpitude” unless that conduct indicated an unfitness to teach. In view of the total lack of evidence in the record demonstrating Morrison‘s unfitness to teach, the court reversed the superior court‘s judgment denying mandate. We made it clear, however, that in future cases revocation will be upheld if the evidence discloses that the teacher‘s retention within the school system “poses a significant danger of harm to either students, school employees, or others who might be affected by his actions as a teacher.” (P. 235.) The court suggested that a showing of significant “harm” could be based upon adverse inferences drawn from the teacher‘s past conduct as to his probable future teaching ability, as well as upon the likelihood that the publicity surrounding the past conduct “may in and of itself substantially impair his function as a teacher.” (Id., see Comings v. State Bd. of Education, 23 Cal.App.3d 94, 104 [100 Cal.Rptr. 73, 47 A.L.R.3d 742]; Board of Trustees v. Stubblefield, 16 Cal.App.3d 820, 826-827 [94 Cal.Rptr. 318].)
Plaintiff contends that Morrison controls here and that the record contains no substantial evidence of her unfitness to teach. We disagree. Initially, we note several important factors which would distinguish Morrison from the instant case. In Morrison, the unspecified conduct at issue was noncriminal in nature, and the court was careful to point out that oral copulation was not involved. (1 Cal.3d at p. 218, fn. 4.) We further explained that under the Education Code a distinction was made between certain sex crimes (such as oral copulation) which require automatic revocation, and lesser sex offenses which result in “discipline only if it is ‘immoral,’ ‘unprofessional’ or involves ‘moral turpitude.‘” (Id. see Purifoy v. State Board of Education, 30 Cal.App.3d 187, 197 [106 Cal.Rptr. 201].)
A second distinguishing feature between Morrison and the instant case is, of course, that in Morrison the conduct at issue occurred entirely in private and involved only two persons, whereas plaintiff‘s indiscretions involved three different “partners,” were witnessed by several strangers, and
Finally, in Morrison the board acted without sufficient evidence of unfitness to teach. In the instant case, in addition to the evidence of plaintiff‘s misconduct itself and its criminal and semi-public nature, the board heard expert testimony asserting plaintiff‘s unfitness to teach. Unlike Morrison, wherein we noted that “The board produced no testimony from school officials or others to indicate whether a man such as petitioner might publicly advocate improper conduct” (1 Cal.3d at p. 236), in the instant case three school administrators gave their opinion that plaintiff is unfit to teach (see fn. 1, ante). In general, these witnesses expressed concern that plaintiff might attempt to inject her views regarding sexual morality into the classroom or into her private discussions with her pupils, and that plaintiff would be unable effectively to act as a moral example for the children she taught. Plaintiff attacks this testimony as reflecting only the personal opinions of the witnesses regarding unorthodox sexual mores,6 yet the testimony goes further and calls into question plaintiff‘s fitness to teach moral principles. Expert testimony is necessarily based to an extent upon the personal opinion of the witness, supported by his special education and experience.
We see no reason for discrediting the opinion of a school superintendent regarding the fitness of teachers to teach merely because that opinion is based in part upon personal moral views. Many courts have recognized that testimony by other teachers or school administrators may furnish the necessary evidence of unfitness to teach required by Morrison. (See Board of Trustees v. Metzger, 8 Cal.3d 206, 210 [104 Cal.Rptr. 452, 501 P.2d 1172]; Governing Board v. Brennan, 18 Cal.App.3d 396, 402 [95 Cal.
As noted above, the board‘s witnesses testified that in their opinion it was likely that plaintiff would be unable to set a proper example for her pupils or to teach moral principles to them. Yet it is the statutory duty of a teacher to “endeavor to impress upon the minds of the pupils the principles of morality . . . and to instruct them in manners and morals. . . .” (
As this court stated in Board of Education v. Swan, 41 Cal.2d 546, 552 [261 P.2d 261], “A teacher . . . in the public school system is regarded by the public and pupils in the light of an exemplar, whose words and actions are likely to be followed by the children coming under her care and protection.” In the instant case, the board and the trial court were entitled to conclude, on the basis of the expert testimony set forth above and the very nature of the misconduct involved, that Mrs. Pettit‘s illicit and indiscreet actions disclosed her unfitness to teach in public elementary schools.7
The judgment is affirmed.
Wright, C. J., McComb, J., Sullivan, J., and Clark, J., concurred.
Yet in the face of this record, the State Board of Education, branding plaintiff “unfit,” revokes her elementary school life diploma—a ruling that will not only force her discharge from her present employment, but, regardless of the need for a teacher of her experience and qualifications, will also bar any school district in California from hiring her. Looking only to the loss of future earnings, we must recognize that the board inflicts a penalty of well over $100,000; the ruling, moreover, entails immeasurably greater psychological damage. Equally immeasurable is the loss to school districts that are denied the right to employ a skilled and dedicated teacher.
One would expect that before inflicting such injury, the board would insist upon solid and credible evidence that clearly established plaintiff‘s lack of fitness to teach. Instead, as I shall show, the board has acted on the basis of questionable conjecture.1
Our analysis of the issues in this case must begin with Morrison v. State Board of Education (1969) 1 Cal.3d 214 [82 Cal.Rptr. 175, 461 P.2d 375], an opinion of this court that defines the showing required for a revocation of teaching credentials. That decision recognized the general proposition that no person may be barred from a profession upon grounds unrelated to his fitness to perform his professional obligations. (See Board of Trustees v. Metzger (1972) 8 Cal.3d 206, 210 [104 Cal.Rptr. 452, 501 P.2d 1172]; Nightingale v. State Personnel Board (1972) 7 Cal.3d 507, 512 [102 Cal.Rptr. 758, 498 P.2d 1006]; Monroe v. Trustees of the California State Colleges (1971) 6 Cal.3d 399, 412 [99 Cal.Rptr. 129, 491 P.2d 1105]; Perrine v. Municipal Court (1971) 5 Cal.3d 656, 663 [97 Cal.Rptr. 320, 488 P.2d 648].)
Morrison had engaged in a single incident of homosexual activity involving another teacher. Concluding that this activity constituted “immoral conduct,” “unprofessional conduct,” and “acts involving moral turpitude” under
To avoid finding
We then turned to the question whether proof of Morrison‘s homosexual conduct in itself constituted evidence of unfitness to teach. We stated: “Before the board can conclude that a teacher‘s continued retention in the profession presents a significant danger of harm to students or fellow teachers, essential factual premises in its reasoning should be supported by evidence or official notice. In this case, despite the quantity and quality of information available about human sexual behavior, the record contains no such evidence as to the significance and implications of the . . . incident. Neither this court nor the superior court is authorized to rectify this failure by uninformed speculation or conjecture as to petitioner‘s future conduct.” (1 Cal.3d at p. 237.) Concluding that no competent, credible evidence supported any inference of Morrison‘s unfitness to teach, we reversed the judgment of the superior court.
The majority opinion maintains that in the present case, unlike Morrison, substantial evidence supports the superior court‘s finding of unfitness to teach. They base this conclusion on three asserted differences between Morrison and the present case: that plaintiff‘s conduct was criminal in nature; that the acts occurred in a “semi-public atmosphere,” and that the board presented expert opinion that she was unfit to teach. None of these distinctions will stand analysis.
Although the majority‘s whole case rests upon the proposition that one who engages in oral copulation commits a criminal act that constitutes “immoral or unprofessional conduct,” the record does not show any such conviction for such offense by plaintiff. The majority likewise frankly concede that the “revocation of plaintiff‘s life diploma cannot be upheld solely by reason of the conviction [of outraging public decency] entered against her.”
The board in the instant case has been driven to exhume an old and admitted indiscretion in order to lay the basis for the revocation of plaintiff‘s teaching credential. The challenged act was committed on December 2, 1967; the criminal proceedings were thereafter dismissed; subsequently, in February 1970—years later—the disciplinary proceedings were initiated. I am hard-put to understand the motivation of the board in bringing charges on a matter which plaintiff now recognizes as an indiscretion and for which she has paid the penalty—charges brought despite the fact that plaintiff has devoted 13 years to the exemplary and humane teaching of retarded elementary school children—charges designed to bar her permanently from teaching.
The kind of wastefulness of needed human resources that this procedure threatens becomes the more dangerous when we examine it in the context of other professions. If a highly proficient attorney commits an unorthodox sex act and thereafter suffers a misdemeanor conviction that is subsequently dismissed, may he then, years later, be disbarred because he admittedly committed the act and hence was guilty of “immoral” and “unprofessional” conduct? Should the skilled surgeon involved in a parallel situation suffer the same tragedy? The university professor? The danger of the majority‘s doctrine becomes especially onerous when we know that a large proportion of the younger generation do engage in unorthodox sexual activities deemed anathema by some members of the older generation. To what extent will we frustrate highly productive careers of younger persons in order to castigate conduct that is widely practiced by some but regarded by others as abominable? Is the legal standard to be no more definite or precise than that the involved practice is regarded as “immoral” or “unprofessional” or “tasteless” by judges?
The majority opinion does, indeed, proceed on the premise that plaintiff‘s failure to deny the act of oral copulation suffices to make her a confessed criminal and hence subject to cancellation of her certificate. On this ground the majority would distinguish Morrison because there the teacher‘s conduct infringed no penal statute. Yet in Morrison we expressly stated that “[i]n determining whether discipline is authorized and reasonable, a criminal conviction has no talismanic significance.” (1 Cal.3d at p. 219, fn. 4.) This
The principle that a criminal conviction is not ipso facto the basis for revocation of a certificate on the grounds of immoral or unprofessional conduct becomes clear when tested against specific acts of unlawful conduct. Obviously the commission of a misdemeanor, such as a traffic offense, could not seriously be urged as an automatic ground for revocation of a certificate. Convictions of other technical and legal offenses common in the society do not intrinsically constitute “immoral” or “unprofessional” conduct. Hence, in order to resolve the issue, we must examine the nature of the conduct and its relation, if any, to the role and functions of the teacher.
In the instant case the conduct involved consensual sexual behavior which deviated from traditional norms. Yet recognized authority tells us the practice pursued here is, indeed, quite common. An estimated “95% of adult American men and a large percentage of American women have experienced orgasm in an illegal manner.” (McCary, Human Sexuality (2d ed. 1973) p. 460.)3 The 1953 Kinsey report, Sexual Behavior in the Human Female, at page 399 indicates that 62 percent of the adult women of plaintiff‘s educational level and age range engage in oral copulation; more recently, the report‘s co-authors have stated that newer studies suggest the figure now lies around 75 to 80 percent.4
The consensual and, as I shall explain, private act did not affect, and could not have affected, plaintiff‘s teaching ability. The whole matter would have been forgotten and lost in the limbo of the privacy of its occurrence if it had not been clandestinely observed by means of a surreptitious intrusion which reminds one of the surveillance of restrooms which this court has condemned. (People v. Triggs (1973) 8 Cal.3d 884 [106 Cal.Rptr. 408, 506 P.2d 232].) The commission of a sex act, surreptitiously observed, not disclosed to fellow teachers or to pupils, not remotely adversely affecting plaintiff‘s teaching ability, must fail to support revocation of the certificate even though the act is labelled “criminal” on the books.
I am at somewhat of a loss to understand the majority‘s second ground for distinguishing Morrison: that plaintiff‘s acts in the instant case took
Plaintiff‘s acts occurred in the bedroom of a private home. The only persons witnessing the conduct were members of “The Swingers,” a private club limited to persons who expressly attested their desire to view or engage in diverse sexual activity. Consequently, I conclude that plaintiff‘s acts occurred in a private place, not a public one or one open to public view.
By engaging in sexual activity in the presence of other “swingers,” plaintiff, the majority assert, demonstrated “a serious defect of moral character, normal prudence and good common sense.” (Majority opn., ante, p. 35.)5 Yet plaintiff took reasonable precautions to assure that she was viewed only by persons who would not be offended by her conduct; many would argue that under such circumstances her behavior was neither imprudent nor immoral. In essence, the majority are saying that even though her fellow “swingers” were not offended, they—the majority—find plaintiff‘s behavior shocking and embarrassing. Yet this important issue of plaintiff‘s right to teach should not turn on the personal distaste of judges; the test, as this court has announced in the cases, is the rational one of the effect of the conduct, if any, on the teacher‘s fitness to teach.
I turn now to an examination of the underlying expert testimony presented to establish plaintiff‘s unfitness to teach. The first witness, William B. Calton, opined that plaintiff would be unable to teach “moral and spiritual principles.” On cross-examination he limited this opinion to asserting that she would be unable to teach principles of sexual morality. But petitioner teaches retarded elementary school children, and, as Calton affirmed, her teaching duties do not encompass instruction on sexual morality. To sum
The second expert, Sylvester A. Moffet, testified with a broader brush. He stated that any teacher who ever engaged in sexual relations with anyone other than his lawful spouse was lacking in “clean morals,” and thus could not instruct his students in “clean morals.” In Morrison we stated that “[s]urely incidents of extramarital heterosexual conduct against a background of years of satisfactory teaching would not constitute ‘immoral conduct’ sufficient to justify revocation of a life diploma without any showing of an adverse effect on fitness to teach.” (1 Cal.3d at pp. 225-226.) Moffet obviously disagrees, and would raise a standard that would furnish grounds for dismissal of innumerable teachers of this state.
The final expert, Archie Haskins, advanced an idiosyncratic definition of a “dishonest marriage“; honesty, to him, is not a matter of truthfulness and open dealing, but of sexual fidelity. Reasoning from this personal premise, he concludes that petitioner‘s marriage is a dishonest one. On cross-examination Haskins added the interesting note that “possibly sixty or seventy percent of me would feel that she was unfit and thirty percent of me would feel that I would need to give her some latitude personally.” Haskins, however, is willing to subordinate his personal doubts to that which he believes would be the desires of his school board; as he testified “I may have private opinions as a school administrator, but I have five people on the Board of Education that I report to, and again, depending on what you know about that board; how they feel . . . I would probably designate her as unfit.”
As we said in People v. Bassett (1968) 69 Cal.2d 122, 141 [70 Cal.Rptr. 193, 443 P.2d 777]: “Expert evidence is really an argument of an expert to the court, and is valuable only in regard to the proof of the facts and the validity of the reasons advanced for the conclusions.” (Quoting,
It is not surprising that the trial court concluded that the experts’ opinions were not entitled to “great weight.” Justice Cobey of the Court of Appeal put it even more accurately, holding that this expert opinion “does not reasonably inspire confidence nor is it of solid value.”
The unproven premise of both the expert testimony and the majority opinion is that the fact of plaintiff‘s sexual acts at the “swingers” party in itself demonstrates that she would be unable to set a proper example for her pupils or to teach them moral principles; this inability in turn demonstrates her unfitness to teach. This reasoning rests on factual assumptions concerning the relationship of consensual adult sexual behavior to classroom teaching which have absolutely no support in the evidence. If “immoral conduct” ipso facto shows inability to model or teach morals, and this in turn shows unfitness to teach, then we are left with the proposition that proof of “immoral conduct,” whatever it may be, will always justify revocation of a teaching credential.
But in traveling this road the majority overlook constitutional predicates. Under the majority‘s interpretation of
In conclusion, I submit that the majority opinion is blind to the reality of sexual behavior. Its view that teachers in their private lives should exemplify Victorian principles of sexual morality, and in the classroom should subliminally indoctrinate the pupils in such principles, is hopelessly unrealistic and atavistic. The children of California are entitled to competent and dedicated teachers; when, as in this case, such a teacher is forced to abandon her lifetime profession, the children are the losers.
MOSK, J.—I dissent for the reasons thoughtfully and persuasively discussed by Justice Tobriner. I am also impressed with the cogent amici curiae argument presented, significantly, by two respected professional organizations: the National Education Association and the California Teachers’ Association. And I note that a similar considered conclusion was reached by Justices Cobey and Schweitzer for the Court of Appeal.
In my opinion this court is conclusively bound by two unequivocal factual findings of the State Board of Education: that petitioner‘s “services as a teacher have been satisfactory and she was invited back to teach by the tender of a contract from her employer for the school year 1968-69” (subsequent to the incident involved herein); and that petitioner “is unlikely to repeat” the activities charged in the accusation.
In view of those controlling factual determinations the majority opinion is unsupportable.