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Court of Appeal, Second District, Division 2, California.

Marc S. MORRISON, Petitioner and Appellant, v. The STATE BOARD OF EDUCATION of the State of California, Defendant and Respondent.

Civ. 32335.

Decided: January 06, 1969

Melville B. Nimmer, Los Angeles, for appellant. Thomas C. Lynch, Atty. Gen., Edward M. Belasco, Deputy Atty. Gen., for respondent.

For Opinion on Hearing, see 82 Cal.Rptr. 461 P.2d 375

This is an appeal from the denial of a writ of mandamus to review a determination of the respondent State Board of Education revolving petitioner's General Secondary Life Diploma and petitioner's Life Diploma to teach exceptional children.   On review pursuant to the provisions of section 1094.5 of the Code of Civil Procedure, the trial court sustained all of the administrative findings made by respondent and the imposition of the penalty of the revocation of petitioner's life diplomas.

The trial court rendered its judgment based upon the Conclusions of Law that petitioner has “committed homosexual acts involving moral turpitude and these acts constituted immoral conduct and unprofessional conduct within the meaning of sections 13202 and 13209 of the Education Code.1

Regularity of the Administrative Proceeding is not an issue.

 The trial court, in reviewing this action, exercised independent judgment on the weight of the evidence and its decision must be sustained if there is any credible, competent evidence to support its findings.   (Tringham v. State Board of Education, 50 Cal.2d 507, 508, 326 P.2d 850;  Sarac v. State Board of Education, 249 Cal.App.2d 58, 60, 57 Cal.Rptr. 69.

Petitioner, while a teacher in the Lowell Joint School District, engaged in certain homosexual acts with a fellow teacher, one Fred J. Schneringer, a married man.   Mr. Schneringer consented to and participated in such acts, but thereafter, Mr. Schneringer reported the occurrence of such acts to the Superintendent of the Lowell School District.

The acts occurred between two consenting adults in the privacy of petitioner's apartment.   The testimony was to the effect that the acts committed did not constitute the statutory offenses or sodomy or oral copulation.   The acts occurred on four separate occasions, all within a period of one week.   No other acts of a homosexual nature occurred between appellant and Schneringer.   Petitioner at the time of the Administrative Hearing was 39 years of age, and testified that except for the four occasions referred to above, he had not engaged in any acts of a homosexual nature with any person whatsoever from the time in his mid-twenties when he had undertaken psychotherapy.   Except for the four occasions with Schneringer, petitioner has neither desired nor engaged in any homosexual practices with anyone at any time after entering the teaching profession.

The acts engaged in by petitioner do not constitute crimes under California statutory law, and it is probable that they would not be considered criminal at common law.  (See Rittenour v. District of Columbia, D.C.Mun.App., 163 A.2d 558.)   None of the acts were committed in public.

The question presented, therefore, is whether the acts in which appellant participated, previously set forth, are “immoral” or “unprofessional” within the meaning of Education Code, § 13202.

The term “immoral” has been defined generally as that which is hostile to the welfare of the general public and contrary to good morals.  * * * ”   (Orloff v. Los Angeles Turf Club, 36 Cal.2d 734, 740, 227 P.2d 449, 453.)   The term itself is primarily associated with sexual matters, although not confined to that subject.  (See Board of Education v. Weiland, 179 Cal.App.2d 808, 811, 4 Cal.Rptr. 286;  Board of Trustees of Mount San Antonio Junior College Dist. of Los Angeles v. Hartman, 246 Cal.App.2d 756, 763, 55 Cal.Rptr. 144.)

This court of appeal in Sarac, supra 249 Cal.App.2d at 63, 57 Cal.Rptr. 69, squarely holds that homosexual behavior is clearly immoral conduct within the meaning of Education code, § 13202, and that it constitutes evident unfitness for service in the public school system within the meaning of that statute.

Petitioner attempts to distinguish Sarac on the ground that the acts committed in that case constituted a Penal Code violation and took place in public.

 The fact that petitioner's conduct did not constitute a crime is not significant to the Board's authority to revoke his license.   The plan set forth in the Education Code on the subject of revocation and suspension of diplomas and certificates provides, among other things, that conviction of crime (Education Code, § 13206) and conviction of sex offenses (Education Code, § 13207) as well as immoral or unprofessional conduct, unfitness and disobedience, are grounds for revocation by the Board.   The immoral and unprofessional conduct sections, therefore, must refer to conduct not amounting to a crime.   It is not a requirement of the Code that a license may be revoked only when a crime has been committed.

 There is no direct evidence that the acts complained of or that the homosexual character of petitioner did in any manner affect petitioner's ability and willingness to perform in a satisfactory manner as a teacher or had any effect at any time on any pupils taught by him.   In our view, the lack of such evidence is not significant.   The School Board has a legitimate interest in maintaining the integrity of the schools and protecting against potential influences on impressionable pupils who may be affected by the conduct of its teachers outside of the classroom.  (See Vogulkin v. State Board of Education, 194 Cal.App.2d 424, 429–30.)

Board of Trustees of Mount San Antonio Junior College Dist. of Los Angeles v. Hartman, 246 Cal.App.2d 756, 763, 55 Cal.Rptr. 144, 148, involved the termination of the employment of a permanent teacher on the grounds of immoral conduct and evidence unfitness for service, stemming from the defendant's relationship with a woman.   The court stated “ * * * in any event, under circumstances such as are presented in this case the evil at which the statutory provision is directed is the harmful impression on others, particularly students, arising from the fact of a teacher and a woman to whom he is not married living together opening as man and wife.   If adherence to a code of proper personal conduct is not essential in all callings, it is in the teaching profession.”

We cannot say here, as in Orloff,2 that “immoral conduct” as used in the statute at bench does not relate to the legislative objective of that statute, to wit:  the general fitness of appellant for service in the public school system.   In view of Sarac, we cannot say there is no rational connection between petitioner's homosexual conduct and his fitness for service in the public school systems.3

Petitioner contends that “moral turpitude” must refer to conduct more serious than mere immoral conduct.   We are of the opinion that petitioner's conduct involves acts of moral turpitude.  “Moral turpitude” has been most often defined as conduct that is contrary to justice, honesty, modesty or good morals.  (Herron v. State Bar, 24 Cal.2d 53, 59–60, 147 P.2d 543;  Fall v. State Bar, 25 Cal.2d 149, 160, 153 P.2d 1;  Otash v. Bureau of Private Investigators & Adjusters, 230 Cal.App.2d 568, 571, 41 Cal.Rptr. 263.)   An act involves moral turpitude when it is ‘’ ‘An act of baseness, vileness or depravity in the private and social duties which a man owes to his fellow men or to society in general, contrary to the accepted and customary rule of right and duty between man and man’.”  (In re Boyd, 48 Cal.2d 69, 70, 307 P.2d 625.)

In re Boyd concerned an attorney's suspension from practice after he had pleaded guilty to violating the vagrancy statute.   The Supreme Court stated at page 70, 307 P.2d at page 625:

“No citation of authority or argument is needed to support the conclusion that the conduct of petitioner fell within the purview of the above definition.   His offense was one of depravity, contrary to the accepted and customary rule of right and duty between man and man, and was therefore an offense involving moral turpitude.   The act was committed in a public place.   Without further recitation of the facts, it is enough to say that such conduct is unworthy of a member of the legal profession.”

It cannot be doubted that the license suspended in Boyd relates to a profession in which a licensee deals almost exclusively with adults.   At bench the certificated teacher deals exclusively with impressionable youngsters.   The probable effect of the character of a teacher on minors would seem to be an even more significant concern of the state than that of a lawyer on clients.

The fact that the acts were privately committed is irrelevant to the question before us.   They did become public information.

Appellant argues that no proof establishes or tends to establish that any acts committed by him adversely affected his capacity, ability or willingness to perform in a satisfactory manner as a teacher in the public schools.   He contends therefore that the trial court improperly took judicial notice of and based its judgment on the fallacious premise that a homosexual is implicitly unfit to teach and is more dangerous to children than a heterosexual.   Medical and sociological authority is cited to show that heterosexuals are just as likely to seduce children as are homosexuals.   Appellant then concludes that to predicate a judgment on such an assumption subjects appellant to an invidious and unjust classification and deprives him of due process of law.

 It is settled, of course, that before a court may take a judicial notice of a fact, that fact must be a matter of common general knowledge, well established and authoritatively settled, not doubtful or uncertain.   The test is whether sufficient notoriety attaches to the fact to make it proper to assume its existence without proof.   If there were any possibility of dispute, the fact cannot be judicially noticed.  (Communist Party of United States of America v. Peek, 20 Cal.2d 536, 546, 127 P.2d 889.)

We do not reach that question.   The record before us does not remotely indicate that the judgment of the trial court was based upon any such premise—or that it took judicial notice of any fact not in the record.   We think that one can properly assume that if appellant were a heterosexual and that if the conduct here complained of and made public were committed with the wife of some member of the faculty, that the right of the State Board to proceed and act would be no different.

We do not have before us the question of whether a homosexual is more dangerous to children than a heterosexual.   We decide only that conduct of one or the other found to be immoral within the meaning of the code section is sufficient ground for discharge.

The judgment is affirmed.


1.   Section 13202 provides:  “The State Board of Education shall revoke or suspend for immoral or unprofessional conduct, or for persistent defiance of, and refusal to obey, the laws regulating the duties of persons serving in the Public School System, or for any cause which would have warranted the denial of an application for a certification document or the renewal thereof, or for evident unfitness for service, life diplomas, documents, or credentials issued pursuant to this code.”Section 13209 provides:  “County boards of education may revoke or suspend, for immoral or unprofessional conduct, evident unfitness for teaching, or persistent definance of, and refusal to obey the laws regulating the duties of teachers the certificates granted by them.”

2.   Orloff construes “Section 53 provides that it is unlawful for the proprietor of any ‘opera-house, theater, melodeon, museum, circus, caravan, race-course, fair or other place of public amusement or entertainment, to refuse admittance to any person over the age of twenty-one years, who presents a ticket of admission acquired by purchase, or who tenders the price thereof for such ticket, and who demands admission to such place.   Any person under the influence of liquor, or who is guilty of boisterous conduct, or any person of lewd or immoral character, may be excluded from any such place or amusement.’ ”It's obvious that loose character of an admittee to a racetrack and that the effect of the loose character of such admittee on the patrons of the track cannot be compared with the effect of a like person in a class-room.

3.   As stated in Sarac, supra, at 63, 57 Cal.Rptr. at 72, “In view of appellant's statutory duty as a teacher to ‘endeavor to impress upon the minds of the pupils the principles of morality.’  (Ed.Code, § 7851) and his necessarily close association with children in the discharge of his professional duties as a teacher, there is to our minds an obvious relation connection between his homosexual conduct on the beach and the consequent action of respondent in revoking his secondary teaching credential on the statutory grounds of immoral and unprofessional conduct and evident unfitness for service in the public school system of this State.”

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