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Court of Appeal, Fourth District, Division 1, California.

Haivor Gerald ADCOCK, Plaintiff and Respondent, v. BOARD OF EDUCATION OF the SAN DIEGO UNIFIED SCHOOL DISTRICT, and Its Secretary, Jack Hornback, Defendants and Appellants.

Civ. 11135.

Decided: August 24, 1972

Thomas A. Shannon, Schools Atty. and Ralph D. Stern, Asst. Schools Atty., San Diego, for defendants and appellants. Levy & Van Bourg, and Howard L. Berman, Los Angeles, for plaintiff and respondent. Harold F. Tyvoll, San Diego, amicus curiae, American Civil Liberties Union of San Diego, on behalf of plaintiff and respondent.


The Board of Education of the San Diego Unified School District and its Secretary Jack Hornback (the Board), appeal from a judgment granting a tenured teacher a writ of mandate ordering the Board to set aside its decision to transfer him from one high school to another within the district, and further ordering the Board to reinstate plaintiff to his former position as teacher of social studies at Clairemont Senior High School.


Plaintiff Halvor Gerald Adcock, a tenured teacher employed by the Sna Diego Unified School District, taught social studies at Clairemont Senior High School from 1958 to June 1968 under a year-to-year contract. Although he appears to have been an unusually effective teacher, Adcock alienated parents, other teachers and administrators at Clairemont by openly and persistently criticizing certain school policies relating to dress and grooming standards, to the outside-speaker program, and to a proposed ‘underground’ student newspaper which had been disapproved by both the school and the district administration. A substantial number of parents who disagreed with Adcock's views and felt he undermined parental authority requested the school not to enroll their children in his classes.

In June 1969 the Principal of Clairemont, Mr. Hale, submitted a written request for Adcock's transfer to another school, stating his conduct and attitudes tended to undermine the authority of teachers, administrators and parents, causing dissent and unrest among them, and that Adcock was unwilling to accept administrative directives. The transfer was approved by the superintendent of schools, and Adcock was reassigned to Roosevelt Junior High School for the school year of 1969–1970.

Adcock appealed to the Board. Pursuant to stipulation, a hearing was held before a state hearing officer to determine whether the transfer from Clairemont High School to Roosevelt Junior High School was discriminatory and involved any misuse of delegated authority. After considering testimony of some 30 witnesses, the hearing officer decided Adcock did accept directives, although unwillingly, and was an excellent teacher; that his open criticism of school policies did not tend to undermine authority, was not in violation of any order and was within the permissible limits of the First Amendment. The hearing officer filed a proposed decision which found the transfer from Clairemont to Roosevelt discriminatory and a misuse of delegated authority and ordered Adcock reinstated at Clairemont.

The Board rejected the proposed decision, reviewed the 1,012 page transcript of the testimony before the hearing officer and came to the opposite conclusion. The Board found Adcock's open and persistent criticism of school policies did tend to undermine the authority of teachers, administrators and parents; alienated some teachers and many parents; adversely affected faculty morale and community attitudes toward the school; and the transfer from Clairemont in the best interest of the school district as a whole. The Board approved Adcock's transfer from Clairemont, finding it was not discriminatory nor a misuse of delegated authority; the Board disapproved his transfer to Roosevelt Junior High School and ordered him reassigned to some senior high school within the district.

After the Board's decision, Adcock was reassigned to a teaching position at Hoover Senior High School, with duties and benefits identical to those he had at Clairemont Senior High School.

Adcock petitioned the superior court for a writ of mandamus under Code of Civil Procedure section 1094.5, seeking a judicial review of the administrative proceedings. He contended his involuntary transfer from Clairemont was premised on conduct protected by the First and Fourteenth Amendments, and that the Board's decision upholding the transfer was an abuse of discretion, unreasonable and void.

The trial judge concluded Adcock was claiming the invasion of a vested constitutional right, requiring the court to exercise its independent judgment in reviewing the administrative record (See Bixby v. Pierno, 4 Cal.3d 130, 93 Cal.Rptr. 234, 481 P.2d 242),1 but signed and filed a memorandum decision finding (1) there was no substantial evidence to support the Board's decision on the grounds stated, and (2) the transfer was made as a means of and with the effective result of denying Adcock his right of free speech. Judgment was entered granting a peremptory writ of mandamus, ordering the Board to set aside its decision and to reinstate Adcock to his former position of teacher of social studies at Clairemont High School.


From the outset, Adcock and the Board have taken divergent views of the perimeters of this litigation. Adcock sees the case as involving a violation of his fundamental constitutional rights, the Board regards it as a simple case of permissible administrative transfer of a teacher from one high school in the district to another. In our own analysis, the case centers upon the rules governing interschool transfer of a teacher, and the constitutional issues are only incidentally involved.

The ultimate power to fix and prescribe the duties to be performed by all teachers within a school district is vested in the governing board of the district. (Ed.Code § 931.) Subject to the approval of the governing board, the superintendent of the district is empowered to assign all teachers to the position in which they are to serve and to transfer a teacher from one school to another when he ‘concludes that such a transfer is in the best interest of the district.’ (Ed.Code § 939 subd. (c).)2 Adcock's tenure as a teacher in the San Diego Unified School District carried with it the vested right to continue teaching in the district at the same level with the same benefits, but gave him no vested right to teach any certain class or subject or in any certain school. (Mitchell v. Board of Trustees, 5 Cal.App.2d 64, 69, 42 P.2d 397; Leithliter v. Board of Trustees, 12 Cal.App.3d 1095, 1100–1101, 91 Cal.Rptr. 215.) ‘Subject only to the requirement of reasonableness, a school district is entitled to assign teachers anywhere within their certificate, according to the needs of the district.’ (Adelt v. Richmond Sch. Dist., 250 Cal.App.2d 149, 152, 58 Cal.Rptr. 151, 153.)

We need not detail here the testimony of 30 witnesses which covered over 1,000 pages of testimony. Substantial evidence supports the finding Adcock's persistent, open and outspoken criticism of school policies caused resentment, unrest and discord among some teachers and a substantial number of parents at Clairemont, who felt his actions tended to undermine teacher and parental authority. Because his conduct came within First Amendment protection did not mean the district could not reasonably act to alleviate the problems which resulted from it, or that transferring him from one school to another within the district was arbitrary or unreasonable.

While government may not condition public employment by the imposition of an unconstitutional requirement, or arbitrarily withdraw a publicly conferred benefit in retaliation for the exercise of a constitutional right, it does not follow ‘government may never condition the receipt of benefits or privileges upon the non-assertion of constitutional rights.’ (Bagley v. Washington Township Hospital Dist., 65 Cal.2d 499, 505, 55 Cal.Rptr. 401, 406, 421 P.2d 409, 414.) When the practical necessity of the employer-employee relationship requires, government may impose conditions relating to and bearing upon the benefits and privileges of employment even though such imposition results in a limitation upon a constitutional right. The need for imposing the restriction must outweigh the resulting impairment of the constitutional right, and the restriction on the exercise of the right must go no further than necessary to maintain the integrity of the governmental function involved. (Bagley v. Washington Township Hospital Dist., supra, 65 Cal.2d 499, 505–507, 55 Cal.Rptr. 401, 421 P.2d 409.)

School districts and school administrators have been given a broad discretion to assign and transfer teachers as the welfare and the best interest of the district require. Courts should be reluctant to interfere with this discretion, and should do so only when it has been clearly abused. (Adelt v. Richmond Sch. Dist., supra, 250 Cal.App.2d 149, 152–153, 58 Cal.Rptr. 151.) On balance, we cannot say the district's need to remedy the situation which had developed at Clairemont did not outweigh the relatively slight curtailment of Adcock's rights which resulted from his transfer to Hoover High School, or that the district acted arbitrarily or unreasonably in ordering the transfer. Substantial evidence supports the Board's finding the transfer was in the district's best interest.

The judgment is reversed.


1.  The quasi-judicial powers of local administrative agencies have long been regarded as constitutionally derived, limiting court review in mandamus to a determination of whether the decision of the administrative agency is supported by substantial evidence in the light of the whole record (5 Witkin, Cal.Proc. (2d), Extraordinary Writs, § 220, p. 3979). Whether this rule still obtains when the decision of the local agency substantially affects a vested fundamental right is not entirely clear (See Bixby v. Pierno, supra, 4 Cal.3d 130, 137, fn. 2, 93 Cal.Rptr. 234, 481 P.2d 242). In any event, as developed in the body of the opinion, the decision of the Board to transfer Adcock from one high school in its district to another, with no loss of benefits, did not substantially affect a vested fundamental right, and the trial court was required to affirm the Board's decision if it was supported by substantial evidence.

2.  The provision in the code specifically authorizing transfer of teachers from one school to another was added in 1970, and became effective while this case was pending. The right to transfer teachers from one school to another is inherent in the power to fix and prescribe duties and to assign them to positions in which they are to serve. We regard the 1970 addition merely as a codification and clarification of existing law.

AULT, Acting Presiding Justice.

COLOGNE, J., and COUGHLIN,* J., concur.

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