Morrison v. State Board of Education11/20/1969
med very good work. Federal officials conceded that the "immoral" conduct caused no problems of national security and that the "immorality" had provoked no difficulties with fellow employees. The employee had neither openly flaunted nor carelessly displayed his unorthodox sexual conduct in public. The government justified the dismissal only by a vague
reference to the unsubstantiated possibility that the conduct might tend to embarrass the agency for which the employee had worked. The Court of Appeals for the District of Columbia declined to speculate on the record before it whether the employee might someday prove unfit for government service; the court ruled the dismissal arbitrary and thus invalid.
Respondent relies heavily on Sarac v. Board of Education (1967) 249 Cal. App. 2d 58 [57 Cal. Rptr. 69]. The facts involved in Sarac are clearly distinguishable from the instant case; the teacher disciplined in that case had pleaded guilty to a criminal charge of disorderly conduct arising from his homosexual advances toward a police officer at a public beach; the teacher admitted a recent history of homosexual activities. The court's discussion in that case includes unnecessarily broad language suggesting that all homosexual conduct, even though not shown to relate to fitness to teach, warrants disciplinary action. (Id. at pp. 63-64.) The proper construction of section 13202, however, as we have demonstrated, is more restricted than indicated by this dicta in Sarac, and to the extent that Sarac conflicts with this opinion it must be disapproved.
Although the superior court in the instant case rendered a conclusion of law that petitioner had demonstrated his unfitness to teach, we cannot ascertain with certainty whether or not the court in so ruling relied upon this erroneous dicta in Sarac. (Compare Screws v. United States (1945) 325 U.S. 91, 106-107 [89 L.Ed. 1495, 1505-1506, 65 S.Ct. 1031].) In any event, "the ultimate conclusion to be drawn from undisputed facts is a question of law for an appellate court [citations]." (Yakov v. Board of Medical Examiners, supra, 68 Cal. 2d 67, 74, fn. 7. Even if the trial court's statement were to be construed as a finding of fact it would not permit us to affirm the board's action, since, as indicated, no "credible, competent evidence" supports any such inference of petitioner's unfitness to teach. (Yakov v. Board of Medical Examiners, supra, 68 Cal. 2d 67, 69; Konigsberg v. State Bar, supra, 353 U.S. 252, 262, 273 [1 L.Ed.2d 810, 819, 825, 77 S.Ct. 722]; Schware v. Board of Bar Examiners, supra, 353 U.S. 232, 246-247 [1 L.Ed.2d 796, 805-806, 77 S.Ct. 752, 64 A.L.R.2d 288].)
V. Conclusion
In deciding this case we are not unmindful of the public interest in the elimination of unfit elementary and secondary school teachers. (See Beilan v. Board of Education (1958) 357 U.S. 399, 406-408 [2 L.Ed.2d 1414, 1420-1421, 78 S.Ct. 1317]; Adler v. Board of Education (1952) 342 U.S. 485, 493 [96 L.Ed. 517, 524, 72 S.Ct. 380, 27 A.L.R.2d 472]; Board of Education v. Swan, supra, 41 Cal. 2d 546, 553-554; Vogulkin v. State Board of Education (1961) 194 Cal. App. 2d 424, 429-430 [15 Cal. Rptr. 335].) But petitioner is entitled to a careful and reasoned inquiry into his
fitness to teach by the Board of Education before he is deprived of his right to pursue his profession. (See Report of the Senate Interim Committee on Licensing Business and Professions (1955) App.J. Senate, vol. 2, pp. 38-39, 63; Note, supra, 44 Cal.L.Rev. 403, 405; Note, supra, 15 Hastings L. J. 339, 346; No
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