Gay Teacher Prevails in Morality Discharge Dispute

California Second District Court of Appeal Justice Dennis Perluss. | CALIFORNIA SECOND DISTRICT COURT OF APPEAL

California Second District Court of Appeal Justice Dennis Perluss. | CALIFORNIA SECOND DISTRICT COURT OF APPEAL

BY ARTHUR S. LEONARD | California’s Second District Court of Appeal upheld a lower court judge’s determination 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.

Both the appeals court and Los Angeles County Superior Court Judge Luis Lavin before that relied heavily on a landmark 1969 California Supreme Court decision, Morrison v. State Board of Education that –– rejecting long-standing precedents –– held 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 its students.

The plaintiff had been a teacher with the Los Angeles school system for 24 years at the time of his discharge, and was by all accounts an exceptionally talented and dedicated teacher. He was arrested in Elysian Park in September 2010 by undercover police officers who claimed he 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 where he was standing was visible from the nearby Park Row Drive.

LA district fails to show park sting victim “unfit to teach,” appeals court rules

The teacher later testified he had been out jogging and found an isolated place to urinate, which is why his penis was out, when he noticed an attractive man staring at him and thought that contact was desired. He was arrested and charged with publicly engaging in lewd conduct, a charge later supplemented by one of disturbing the peace.

Under the state’s Education Code, he was placed on compulsory unpaid leave and his teaching credentials were suspended. 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 a 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 school district continued to assign him non-teaching duties, and a district official, after an informal meeting with the teacher, recommended that he be dismissed.

The district, in February 2012, notified the teacher of its intention to seek his dismissal, and he was suspended without pay. Charges of immoral conduct, unprofessional conduct, and evident unfitness for service were then filed with the district’s Commission on Professional Competence. Despite the fact that a Committee on Credentials recommended no adverse action, the Commission went ahead with a hearing in January 2013 at which the teacher and the arresting officers testified about what had happened during 2010 incident, and several administrators and teachers also testified, emphasizing their fear that his “poor judgment” could affect his ability to be a role model for students and that parents, when learning of the incident, might demand that their children be withdrawn from his classes.

The Commission found the police officer’s testimony credible and, looking to the 1969 “Morrison” decision factors, concluded that, despite no evidence of an actual adverse effect on students, the district’s witnesses had “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 the “poor judgment” he displayed, he “could not be trusted in a classroom to exercise the judgment necessary under his responsibility to properly interact with his young students.”

Noting that the teacher continued to deny having done anything wrong, the Commission faulted him because he “did not take responsibility” for his conduct. The Commission granted the district’s request that the teacher be discharged.

In reviewing the teacher’s subsequent petition to the Los Angeles County Superior Court seeking to have his termination set aside, Judge Lavin found that the police officer’s credibility was questionable and his “recollection of what transpired highly suspect” several years after the incident. The police officer, in the judge’s view, “exhibited bias or prejudice against [the teacher] because of his sexual orientation,” demonstrated by the officer asking him whether he had AIDS and making exaggerated statements in the arrest report that “reflect outdated stereotypes and a strong moral disapproval of homosexuality.”

According Justice Dennis Perluss’ opinion for the Court of Appeal, “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 not 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 lay witnesses for the district, which “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.”

Even if the teacher’s conduct “was sufficiently notorious at Pacific Boulevard School to justify a transfer or reassignment notwithstanding ‘at most,… a handful of teachers’” at the school had even “limited knowledge” of the 2010 incident, the court noted, the teacher’s “multi-subject teaching credential” would “permit him to teach at more than 400 other schools” within the LA district.

“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, finding 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 fire him was “necessarily an abuse of discretion.”

Substantial evidence, Perluss wrote for the appeals panel, 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.”

Perluss added, “The District witnesses’ testimony about what parents might do if they were to learn of the conduct was entirely speculative and of limited value.”

Given the court’s emphasis on the improbability of students and colleagues learning of the teacher’s behavior and that knowledge impairing his on-campus relationships, Gay City News is not using the teacher’s name in this story.

While noting distinctions between the 1969 Morrison ruling, which involved private consensual behavior, and this case, which involved an arrest in a public park, Perluss wrote 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.”

The teacher was represented by attorneys Lawrence B. Trygstad and Richard J. Schwab of Trygstad, Schwab & Trygstad.

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