Sexting Costs Certificated Teacher His Job – Personal Ad on Craigslist for Sexual Relations Deemed “Immoral Conduct” and Evidence of “Unfitness” Under Education Code Section 44932; Court Declares That Teachers, as Role Models, Occupy Special Position and

Sometimes when teachers do what others do, they can get into trouble simply because they are teachers.  A case from San Diego highlights this very problem. In San Diego Unified School District v. Commission on Professional Competence, the court held that a teacher’s act of posting lewd photos and advertising for sex on Craigslist constituted “immoral conduct” and made the teacher “unfit” to continue working in the San Diego school district.

The facts of the case were relatively straightforward, followed by a rather tortuous procedural trail from administrative ruling to trial court decision, and finally to an appellate conclusion.

The teacher in question worked at a district middle school.  The evidence showed that he “did a good job” and “was professional.” There had been talk of the teacher assuming an administrative position at the school.

But he got into trouble when he resorted to Craigslist to advertise for sex.  As the court recounted, the ad was titled "Horned up all weekend and need release," appeared in the “Men Seeking Men” section.  It contained the following text:  

"In shape guy, masc, attractive, 32 waist, swimmer's build, horny as fuck.  Looking to suck and swallow masc guys, also looking to get fucked.  Uncut and huge shooters jump to head of line.  Give my [sic] your loads so I can shoot mine.  White, black, Hispanic, European, all good.  No fats, fems, queens, asians.  NO BELLIES.  Have pics when you email."  

The ad also contained four pictures of the teacher:  the first of his face, torso and abdomen, the second of his anus, the third of his genitalia, and the fourth of his face and upper torso.  The listing did not contain the teacher’s name, contact information, profession, or any mention of his employment by the district or the school where he worked. 

A parent saw the ad and contacted the police who in turn contacted the school principal.  A district area superintendent also was informed of the ad.

When the school principal informed the teacher that she had seen the ad, the teacher immediately took it down.

But district proceeded to place the teacher on administrative leave and served him with a notice of suspension with intent to dismiss, pursuant to section 44941 of the Education Code.  The charges were that the teacher had engaged in “immoral conduct” (Education Code section 44932(a)(1)) and evidenced “unfitness to teach” (Education Code section 44932(a)(5)).

The teacher demanded a hearing and the district thereupon convened a “Commission on Professional Competence” (CPC) per Education Co de section 44944 to hear the charges.

The CPC upheld the teacher’s position, noting that no student had seen the ad and the teacher was simply seeking a person relationship, not sex with a student. The district then sought a writ of mandate from the superior court, but was turned down because the court concluded the CPC had a reasonable basis to rule in the teacher’s favor.

The district then took the case one step further by appealing to the Court of Appeal for the Fourth District.  That court reversed, ruling that there was no substantial evidence to support the CPC’s conclusion and that there was, indeed, ample evidence of “immoral conduct” and “evident unfitness to teach.”  In essence, the appellate court said there was no basis for the CPC or the trial court to order the retention of the teacher.

This is an important case, for the court discussed the special status of school teachers in our society.  Because teachers serve as role models, said the court, they are held to a higher standard of conduct than other citizens. The court’s comments are instructive:

Section 44932, subdivision (a)(5) provides that a permanent employee of a public school district may be dismissed for evident unfitness for service.  In the context of a teacher, " 'evident unfitness for service' . . . means 'clearly not fit, not adapted to or unsuitable for teaching, ordinarily by reason of temperamental defects or inadequacies.'  Unlike 'unprofessional conduct,' 'evident unfitness for service' connotes a fixed character trait, presumably not remediable merely on receipt of notice that one's conduct fails to meet the expectations of the employing school district."  (Woodland Joint Unified School Dist. v. Commission on Professional Competence (1992) 2 Cal.App.4th 1429, 1444, fn. omitted.)
In Morrison v. State Board of Education (1969) 1 Cal.3d 214 (Morrison), our Supreme Court articulated factors relevant to a determination of a teacher's unfitness to teach as follows:  (1) "the likelihood that the conduct may have adversely affected students or fellow teachers [and] the degree of such adversity anticipated;" (2) "the proximity or remoteness in time of the conduct;" (3) "the type of teaching certificate held by the party involved;" (4) "the extenuating or aggravating circumstances, if any, surrounding the conduct;" (5) "the praiseworthiness or blameworthiness of the motives resulting in the conduct;" (6) "the likelihood of the recurrence of the questioned conduct;" and (7) "the extent to which disciplinary action may inflict an adverse impact or chilling effect upon the constitutional rights of the teacher involved or other teachers."  (Id. at p. 229, fns. omitted.)  "These factors are relevant to the extent that they assist the board in determining whether the teacher's fitness to teach, i.e., in determining whether the teacher's future classroom performance and overall impact on his students are likely to meet the [school district's] standards."  (Id. at pp. 229-230.)

To establish a teacher is unfit to teach, Morrison requires a nexus between government employment and alleged employee misconduct stemming from the principle that "[n]o person can be denied government employment because of factors unconnected with the responsibilities of that employment."  (Morrison, supra, 1 Cal.3d at p. 234.) 

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A teacher may be discharged where his conduct "has gained sufficient notoriety so as to impair his on-campus relationships."  (Board of Trustees v. Stubblefield (1971) 16 Cal.App.3d 820, 826.)

Contrary to the Commission's findings, a parent and an educator did see the ad.  The parent who complained viewed the ad and even walked the police dispatcher through the Web site to show her how to view the ad.  [The school principal] also viewed the ad.  [She] testified that based upon [the teacher’s] conduct she had lost confidence in [the teacher’s] ability to serve as a role model for students.  This evidence is substantial evidence of an adverse impact on [the teacher’s] on-campus relationships.  Indeed, even the Commission noted that had a parent or educator viewed the ad "it surely would have washed over into his professional life and interfered with his ability to serve as a role model at school."  However, inexplicably the Commission stated "that simply never happened in this case."  The Commission ignored the evidence that a parent and an educator did view the ad.  Thus, the evidence established [the teacher’s] conduct interfered with his ability to serve as a role model at school.  [The school principal's] testimony, combined with the graphic, pornographic nature of the ad, provided substantial evidence that his relationship with her had been sufficiently impaired to render him unfit for service as a teacher or administrator.

A key portion of the ruling explains the teacher’s role in society:

" ' ". . . [T]he calling [of a teacher] is so intimate, its duties so delicate, the things in which a teacher might prove unworthy or would fail are so numerous that they are incapable of enumeration in any legislative enactment. . . .  His ability to inspire children and to govern them, his power as a teacher, and the character for which he stands are matters of major concern in a teacher's selection and retention." '  [Citation.]  [¶] There are certain professions which impose upon persons attracted to them, responsibilities and limitations on freedom of action which do not exist in regard to other callings.  Public officials such as judges, policemen and schoolteachers fall into such a category.  [¶] . . .  And as our Supreme Court said in Board of Education v. Swan [1953] 41 Cal.2d 546[,] 552 [overruled on other grounds in Bekiaris v. Board of Education (1972) 6 Cal.3d 575, 588, fn. 7], '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 [students] coming under [his] care and protection.' "  (Board of Trustees v. Stubblefield, supra, 16 Cal.App.3d at p. 824.)

The nexus between [the teacher’s] conduct and his fitness to teach has been established.  It is evident that his conduct was "detrimental to the mission and functions of [his] employer."  (City of San Diego v. Roe, supra,  543 U.S. at p. 84.)  The posting on a public Web site of his genitals and anus, accompanied by sexually explicit text, was, in the words of the Commission itself, vulgar, inappropriate and demonstrated a serious lapse in good judgment.  He also failed to recognize the seriousness of his misconduct, and attempted to shift blame to parents and students who might access his ad.  [The school principal] had lost confidence in his ability to serve as a role model based upon the posting.  Most noteworthy is the fact he testified that he did not think it would have any impact on his ability to teach his students if any of them had viewed the ad and that he did not view his posting of the ad as immoral.  The conduct itself, together with [the teacher’s] failure to accept responsibility or recognize the seriousness of his misconduct given his position as a teacher and role model, demonstrates evident unfitness to teach. 

On the issue of “immoral conduct,” the court commented:

A teacher may also be dismissed for "[i]mmoral or unprofessional conduct."  (§ 44932, subd. (a)(1).)  " 'The term "immoral" has been defined generally as that which is hostile to the welfare of the general public and contrary to good morals.  Immorality has not been confined to sexual matters, but includes conduct inconsistent with rectitude, or indicative of corruption, indecency, depravity, dissoluteness; or as wilful, flagrant, or shameless conduct showing moral indifference to the opinions of respectable members of the community, and as an inconsiderate attitude toward good order and the public welfare.' "  (Board of Education v. Weiland (1960) 179 Cal.App.2d 808, 811.)  Moreover, the definition of immoral or unprofessional conduct must be considered in conjunction with the unique position of public school teachers, upon whom are imposed "responsibilities and limitations on freedom of action which do not exist in regard to other callings."  (Board of Trustees v. Stubblefield, supra, 16 Cal.App.3d at p. 824.) 

The public posting on a Web site of pornographic photos and obscene text constitute immoral conduct in that it evidences "indecency" and "moral indifference."  Thus, the District's decision to terminate [the teacher] was also supported on this ground.

This is a noteworthy case, not just because of the quoted comments, but also because the court reversed a both a CPC and a trial court that had both ruled in favor of the teacher.  A complete copy of the court’s opinion is attached for your convenience.

Our firm regularly advises school administrators and teachers on a variety of legal issues and if you have questions about this ruling, or any other aspect of public or private school administration, please feel free to consult our office.