Morrison v. State Board of Education11/20/1969
SUPREME COURT OF CALIFORNIA
L. A. No. 29632
1969.CA.40158 ; 82 Cal. Rptr. 175; 1 Cal. 3d 214; 461 P.2d 375
November 20, 1969
MARC S. MORRISON, PLAINTIFF AND APPELLANT
v.
STATE BOARD OF EDUCATION, DEFENDANT AND RESPONDENT
Superior Court of Los Angeles County, Ralph H. Nutter, Judge.
Melville B. Nimmer for Plaintiff and Appellant.
Thomas C. Lynch, Attorney General, Edward M. Belasco and Anthony M. Summers, Deputy Attorneys General, for Defendant and Respondent.
In Bank. Opinion by Tobriner, J., with Traynor, C.J., and Peters and Mosk, JJ., concurring. Separate dissenting opinion by Sullivan, J., with McComb, J., concurring and Burke, J., generally concurring. Another separate dissenting opinion by Burke, J., with McComb, J., concurring.
Tobriner
For a number of years prior to 1965 petitioner held a General Secondary Life Diploma and a Life Diploma to Teach Exceptional Children, issued by the State Board of Education, which qualified petitioner for employment as a teacher in the public secondary schools of California. (Ed. Code, §§ 12905, 13251.) On August 5, 1965, an accusation was filed with the State Board of Education charging that petitioner's life diplomas should be revoked for cause. On March 11, 1966, following a hearing, and pursuant to the recommendations of a hearing examiner, the board revoked petitioner's life diplomas because of immoral and unprofessional conduct and acts involving moral turpitude as authorized by section 13202 of the Education Code. This revocation rendered petitioner ineligible for
employment as a teacher in any public school in the state. On February 14, 1967, petitioner sought a writ of mandate from the Superior Court of Los Angeles County to compel the board to set aside its decision and restore his life diplomas. After a hearing the superior court denied the writ, and this appeal followed.
For the reasons hereinafter set forth we conclude (a) that section 13202 authorizes disciplinary measures only for conduct indicating unfitness to teach, (b) that properly interpreted to this effect section 13202 is constitutional on its face and as here applied, and (c) that the record contains no evidence to support the conclusion that petitioner's conduct indicated his unfitness to teach. The judgment of the superior court must therefore be reversed.
I. The Facts
For a number of years prior to 1964 petitioner worked as a teacher for the Lowell Joint School District. During this period, so far as appears from the record, no one complained about, or so much as criticized, his performance as a teacher. Moreover, with the exception of a single incident, no one suggested that his conduct outside the classroom was other than beyond reproach.
Sometime before the spring of 1963 petitioner became friends with Mr. and Mrs. Fred Schneringer. Mr. Schneringer also worked as a teacher in the public school system. To the Schneringers, who were involved in grave marital and financial difficulties at the time, petitioner gave counsel and advice. In the course of such counseling Mr. Schneringer frequently visited petitioner's apartment to discuss his problems. For a one-week period in April, during which petitioner and Mr. Schneringer experienced severe emotional stress, the two men engaged in a limited, non-criminal physical
relationship which petitioner described as b
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