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Court of Appeal, Fifth District, California.

Warren RANKINS, Superintendent-Principal of the Ducor Union School District, Joaquin Parsons, Richard Owen, James Flynn, Frank Silva, and Lawrence Southard, members of the Board of Trustees of the Ducor Union School District, and the Ducor Union School District, Plaintiffs and Respondents, v. COMMISSION ON PROFESSIONAL COMPETENCE OF the DUCOR UNION SCHOOL DISTRICT, and the members thereof, Rudolf H. Michaels, Karyl (Cindi) Rubin and Clyde Simpson, Defendants and Appellants; Thomas Edward BYARS, Real Party in Interest and Appellant.

Civ. 3010.

Decided: November 23, 1977

Chain, Younger, Jameson, Lemucchi, Busacca & Williams, and Paul G. Busacca Bakersfield, and Leonard M. Sacks, Encino, for real party in interest and appellant. Evelle J. Younger, Atty. Gen., and William J. Power, Deputy Atty. Gen., Sacramento, for defendants and appellants. Calvin E. Baldwin, County Counsel, Thomas D. Bowman, Asst. County Counsel, County of Tulare, Visalia, for plaintiffs and respondents.


This is an appeal from a judgment granting a peremptory writ of mandamus directing the Commission on Professional Competence of the Ducor Union School District to set aside its decision (Ed. Code, s 13414),1 and enter a decision dismissing Thomas Edward Byars from his position as a permanent certified employee of the Ducor District under Education Code section 13403 subdivision (g).2

The Ducor District, an elementary school district in Tulare County providing classes from kindergarten through seventh grade, acting through its Superintendent-Principal, Warren Rankins, and its Board of Trustees, filed an amended accusation on June 27, 1975, for the dismissal of Thomas E. Byars, a certificated employee, alleging persistent violation and refusal to obey the school laws and regulations of the state and district.

Byars filed a request for hearing pursuant to Education Code section 134123 and the matter was set for hearing before the Commission on Professional Competence, which rendered a two-to-one decision on August 6, 1975.

Respondent school district filed a petition for administrative mandamus in Tulare County Superior Court for review of the decision. The superior court ordered the issuance of a peremptory writ of mandate; and Byars and the commission appealed.

These are the facts:

Thomas E. Byars was hired by the Ducor Union School District as a classroom teacher on August 6, 1969. That contract and succeeding contracts specified that teacher Byars would “be required to render service in the above mentioned position for such length of time during the school year as the Governing Board of the School District may direct.”

Mr. Byars converted to the faith of the Worldwide Church of God in 1971 and thereafter requested that he be given certain days off for holy days observed by members of that church. He was absent without permission on the following dates:

In March, 1973 the District informed Mr. Byars that it strongly disapproved of these absences and advised him that further absences for religious observances would be considered “a persistent failure to abide by the rules of the District” and a cause for dismissal.

Mr. Byars insisted that he had a constitutional right to be absent from the classroom on these days to exercise his adherence to the practices of the Worldwide Church of God.

In May 1975 the board unanimously voted to give Mr. Byars notice of intention to dismiss (Ed. Code, s 13403(g)) and followed the proper procedures for notice and dismissal as set out in the Education Code.4 At the request of Mr. Byars, a hearing was set for July 24, 1975, before the Commission on Professional Competence.

The commission ruled on August 6, 1975, that the acts of the district were unlawful and violated the United States and California Constitutions. The commission found that none of Mr. Byars' absences had a substantial effect upon the school's operation.

On September 3, 1975, the district filed a petition for writ of mandate; after a hearing in the superior court on November 26, 1975, on the commission's transcript and on exhibits introduced, the court held in favor of the district and ordered Mr. Byars' dismissal, finding a compelling state interest in the district's concern in keeping absences of regular teachers to a minimum so as not to interrupt unduly the orderly educational progress of its students.

The Worldwide Church of God has some 50,000 members in the United States and observes as a high holy day each of the days on which Mr. Byars was absent; the members of the church must observe the sabbath and the holy days by absenting themselves from regular work. The sabbath extends from sundown on Friday to sundown on Saturday.

The district excused Mr. Byars from duties involving school activities on Friday evenings and for two high holy days in the 1971-72 term and in the 1972-73 term. The district continued the Friday evening accommodation for Mr. Byars, but thereafter refused his written requests for religious leaves of absence. The trial court found that he left his employment at the school without authorization for his observance of those holy days.

There is no doubt as to Mr. Byars' competence as a teacher. The trial court was convinced that substitute teachers could not supplant Mr. Byars on the staff without diminishing the educational benefit to the students even though Mr. Byars proposed study plans for substitute teachers to follow in his absence. It found that substitute teachers cannot adequately replace the regular classroom teacher in that it takes a period of time for the substitute teacher to become oriented to the pupils and to their respective abilities, to deal with discipline problems, to execute lesson plans, and to gauge accurately past student progress for implementation of daily lessons. The court also found that the absences of Byars and the use of substitute teachers for those absences had a substantial detrimental effect on the educational program of the Ducor Union School District.

The question on appeal is whether the respondents' termination of appellant's employment because of his refusal to work on his religious holidays is a violation of the free exercise clause of the First Amendment of the United States Constitution5 as applied to the states through the Fourteenth Amendment. We are not here concerned with the establishment clause of the First Amendment.

In Reynolds v. United States (1878) 98 U.S. 145, 166, 25 L.Ed. 244, the United States Supreme Court made its first pronouncement on the free exercise clause saying that although laws “cannot interfere with mere religious belief and opinions, they may with practices.”

The court in 1940 held that not only may Congress make no law establishing religion or prohibiting the free exercise of religion, the “Fourteenth Amendment has rendered the legislatures of the states as incompetent as Congress to enact such laws.” Cantwell v. Connecticut (1940) 310 U.S. 296, 303, 60 S.Ct. 900, 903, 84 L.Ed. 1213. The court further said that the First Amendment “embraces two concepts, freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be. Conduct remains subject to regulation for the protection of society.” (Id. at pp. 303-304, 60 S.Ct. at p. 903; see also Comment (1976) Religious Rights of Public School Teachers, 23 UCLA L.Rev. 763, 767.)

While the free exercise clause prevents any governmental regulation of religious beliefs, in this case we are concerned not with Mr. Byars' beliefs but only with his practices in leaving his teaching duties for the purpose of religious observances while under contract with the district.

In 1963 in Sherbert v. Verner, 374 U.S. 398, 403, 83 S.Ct. 1790, 10 L.Ed.2d 965, the Supreme Court held that some religious practices are protected from legislative restriction. (See Clark, Guidelines for the Free Exercise Clause (1969) 83 Harv.L.Rev. 327, 328-329.) In the Sherbert case, the court considered facts involving a member of the Seventh Day Adventist Church who was discharged because she would not work on Saturday which was the sabbath according to her faith, and who was thereafter denied unemployment benefits; the denial was affirmed in the South Carolina courts. In reversing, the court established a two-pronged test: (1) whether the state burdened the free exercise of her religion and, if so, (2) whether there was a compelling state interest justifying the imposition.

The trial court in the present case relied upon Stimpel v. State Personnel Bd. (1970) 6 Cal.App.3d 206, 85 Cal.Rptr. 797.6 It found the facts of that case were similar because Mr. Stimpel and Mr. Byars both refused to work on their religious days, making it necessary for the government employer to find substitutes to fulfill their contractual obligations. Stimpel, a Seventh Day Adventist, was employed by the state as a construction inspector, a job requiring that he inspect certain projects on site during the contractor's hours. He informed his superiors that he would not be available to work on Saturdays because of his religious beliefs. Even though he was told this would not be acceptable, he continued to work for two months, other inspectors taking his place on Saturdays. Eventually, his employment was terminated.

The court of appeal refused to reinstate Stimpel and distinguished the Sherbert case, supra, on the ground that Sherbert could only receive unemployment benefits from the state, whereas Stimpel was free to seek employment from one of “undoubtedly hundreds of other employers of construction inspectors within the state.” (Stimpel v. State Personnel Bd., supra, 6 Cal.App.3d 206, 209, 85 Cal.Rptr. 797, 798.) The opinion ended with the following language:

“The proliferation of religions with an infinite variety of tenets would, if the state is required as an employer to accommodate each employee's particular scruples, place an intolerable burden upon the state. We conclude that if a person has religious scruples which conflict with the requirements of a particular job with the state, he should not accept employment or, having accepted, he should not be heard to complain if he is discharged for failing to fulfill his duties.”

(6 Cal.App.3d at pp. 209-210, 85 Cal.Rptr. at p. 799.)

The trial court in the instant case found a compelling state interest in the orderly educational progress of the district's students. It also correctly noted in its memorandum decision that the case was controlled by the holding in the Stimpel opinion and like Stimpel, it distinguished the present facts and problems from those confronted in Sherbert v. Verner, supra, 374 U.S. 398, 83 S.Ct. 1790.

Appellants contend that the Stimpel case is both “legally unsound and factually distinguishable from the case at bar.” However, in Hildebrand v. Unemployment Ins. Appeals Bd. (1977) 19 Cal.3d 765, 140 Cal.Rptr. 151, 566 P.2d 1297, the California Supreme Court approved the Stimpel reasoning.

In the Hildebrand case the defendant, the Unemployment Insurance Appeals Board, denied plaintiff Hildebrand's application for unemployment benefits on the ground that she left her last employment “voluntarily without good cause” within the meaning of section 1256 of the Unemployment Insurance Code. In 1970 plaintiff had become a member of the Worldwide Church of God and thereafter recognized Saturday as a sabbath day; she discussed her religious beliefs with her employer and was excused from working on Saturdays during the 1970 and 1971 seasons. Before the 1972 season the employer advised her that she and all other employees would be required to work on Saturday, and she worked each Saturday of the 1972 season. At the beginning of the 1973 season the employer notified employees that it was necessary they work six days a week and occasionally even on Sundays and holidays. Plaintiff said she could not work on Saturdays and was told she would not be excused. When she failed to report for work she was replaced. After an administrative hearing, the referee found that plaintiff had left voluntarily without good cause, and that she had accepted employment in 1972 and 1973 knowing that she was required to work six days and perhaps seven days a week. The trial court reversed the holding of the referee on the basis of Sherbert v. Verner, supra, 374 U.S. 398, 83 S.Ct. 1790.

However, the California Supreme Court distinguished the Sherbert case, saying that plaintiff Hildebrand, having initially accepted employment, thereafter left work voluntarily without good cause. The court said that the public policy underlying section 1256 of the Unemployment Insurance Code had been recognized statutorily and judicially by denying unemployment benefits to one who has voluntarily terminated employment without good cause, noting that the state promotes a valid purpose in assuring that unemployment benefits are reserved for persons unemployed through no fault of their own, and reducing involuntary unemployment and the suffering caused thereby to a minimum.

The court in Hildebrand, cited the Stimpel case, supra (6 Cal.App.3d 206, 209-210, 85 Cal.Rptr. 797), pointing out that the issue in Stimpel was the propriety of the absence from work of a state civil service employee because of religious scruples against Saturday employment and that the appellate court there said, “ ‘(I)f a person has religious scruples which conflict with the requirements of a particular job . . . he should not accept employment or, having accepted, he should not be heard to complain if he is discharged for failing to fulfill his duties.’ ” (Hildebrand, supra, at p. 771, 140 Cal.Rptr. at p. 154, 566 P.2d at p. 1300.)

Mr. Byars had entered into a contract with the district under terms made clear to him from the beginning of his employment. Thereafter, it was his choice to absent himself from the classroom for religious purposes without permission from his employer. The district concluded it could not excuse Mr. Byars' absences in its efforts to maintain a proper educational program. We find this concern to be a compelling state interest. The court found that the free exercise clause of the United States and California Constitutions did not protect his conduct in absenting himself from his teaching duties.

The trial judge correctly relied upon present California law.

The judgment is affirmed.



1.  Now Education Code section 44945 (1976 Stats., Ch. 1010, amend. Ch. 1011, effective April 30, 1977).

2.  Now Education Code section 44932 subdivision (g).

3.  Now Education Code section 44943.

4.  Article 5, division 10, chapter 2, Education Code.

5.  See also California Constitution article I, section 4.

6.  Petition for hearing denied, California Supreme Court; certiorari denied, United States Supreme Court (400 U.S. 952, 91 S.Ct. 245, 27 L.Ed.2d 258).

HANSON,* Associate Justice. FN* Assigned by the Chairman of the Judicial Council.

GEORGE A. BROWN, P. J., and GARGANO, J., concur.

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