San Diego Unified School District v. Commission on Professional Competence: A California Teacher is Fired for Soliciting Sex on Craigslist
by Richard Fossey & Todd A. DeMitchell - November 07, 2011
Can a teacher be fired for soliciting sex on craigslist? A California court says yes.
No state court has done more to protect the private lives of teachers from snooping school boards than the California Supreme Court. In Morrison v. State Board of Education (1969), the court considered the appeal of Marc Morrison, a California teacher whose teaching license was revoked after he told his superintendent that he had engaged in a brief, consensual same-sex affair with another teacher. The state board of education concluded that the affair constituted an act of immoral and unprofessional conduct under California law and stripped Morrison of his livelihood.
On appeal, the California Supreme Court reversed the state boards decision. The Board of Education could not abstractly characterize Morrisons conduct as immoral, unprofessional, or involving moral turpitude, the court ruled, unless that conduct indicates that [Morrison] is unfit to teach (p. 386). The California court then went on to list a number of factors that must be considered before a teachers teaching license can be revoked based on the teachers off-duty activities. In determining whether the teachers conduct indicates unfitness to teach, the court wrote:
[T]he board may consider such matters as the likelihood that the conduct may have adversely affected students or fellow teachers, the degree of such adversity anticipated, the proximity or remoteness in time of the conduct, the type of teaching certificate held by the party involved, the extenuating or aggravating circumstances, if any, surrounding the conduct, the praiseworthiness or blameworthiness of the motives resulting from the conduct, the likelihood of the recurrence of the questioned conduct, and 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. (p. 386)
Thus, the California Supreme Court ruled, the State Board of Education could not revoke Mr. Morrisons teaching license without considering the factors that the court listed. The court concluded its opinion with this ringing affirmation: The power of the state to regulate professions and conditions of government employment must not arbitrarily impair the right of the individual to live his private life, apart from his job, as he deems fit (p. 394).
Other state courts have followed the California Supreme Courts reasoning in the Morrison case, and it is now generally understood that a teachers private life is none of the states business unless that private life demonstrates that the teacher is unfit to teach.
The Lampedusa Case: A California Teacher Who Solicits Sex on Craigslist Is Fired
Morrisons guidance is easy to apply in cases involving a teachers purely private conduct. But some private conduct can become publicly known and achieve such a level of notoriety that the teachers classroom effectiveness can be legitimately called into question. In such instances, may a school district fire a teacher for off-duty behavior?
A California appellate court considered this question recently in the case of San Diego Unified School District v. Commission on Professional Competence (2011), involving Frank Lampedusa, dean of students at a San Diego middle school. In the summer of 2008, Dean Lampedusa posted an ad on Craigslists men seeking men Web page, in which Lampedusa solicited sex (p. 323).
Titled Horned up all weekend and need release, Lampedusas ad contained this text: In shape guy, masc, attractive, 32 waist, swimmers build, horny as f-ck. Looking to suck and swallow masc guys, also looking to get f-cked . . . . White, black, Hispanic, European, all good. Not fats, fems, queens, asians. NO BELLIES. Have pics when you email (p. 323).
Although Lampedusas ad did not list his name or profession, it did contain four photographs of Lampedusa: 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 (p. 323). Someone viewed Lampedusas Craigslist ad and made an anonymous call to the local police. A police detective called San Diego ISD area superintendent Rick Cansdale and informed him of the ad. Cansdale called Lampedusa at school and suggested that he remove the posting. Lampedusa immediately left school, went home, and removed the ad from Craigslist.
About three weeks later, SDUSD put Lampedusa on administrative leave, and a few months later the school district fired him. The school district charged him with immoral conduct and evident unfitness for service (pp. 323-324).
Lampedusa contested the dismissal charges before a three-person panel of the Commission on Professional Competence, which ruled in Lampedusas favor. According to the Commission, Lampedusas conduct was vulgar and inappropriate and demonstrated a lapse in good judgment. Nevertheless, in the Commissions opinion, there was no nexus between Lampedusas behavior and his employment at SDUSD. Apparently, no teacher or student had viewed the Craigslist ad or learned of the incident. Therefore, there was no notoriety connected with Lampedusas behavior. In the Commissions view, Lampedusas motivation in placing the Craigslist ad--to meet someone for a sexual relationship--was neither praiseworthy nor blameworthy under the California Supreme Courts Morrison standard, and Lampedusa was unlikely to engage in similar conduct again. Accordingly, the Commission ordered Lampedusa reinstated to his job.
SDUSD, unhappy with this outcome, challenged the Commissions decision in court, arguing that the Commission had abused its discretion by reinstating Lampedusa. The trial judge sided with the Commission, however, and refused to overturn the Commissions decision.
SDUSD then appealed to the California Court of Appeals, where it found a more sympathetic court. The court analyzed Lampedusas conduct against all the factors that the California Supreme Court had articulated in the Morrison case and concluded that the Commission on Professional Competence had erred when it found no cause for firing Lampedusa.
In particular, the California appellate court took exception to the Commissions conclusion that Lampedusas conduct was neither praiseworthy nor blameworthy. While Lampedusas conduct may not have been blameworthy in the sense he was seeking a date, the court observed, it was extremely blameworthy in the pornographic and obscene manner that he did so (p. 328).
Moreover, the appellate court was disturbed by Lampedusas testimony at the Commission hearing. Lampedusa testified that he did not believe that his conduct was immoral or that the Craigslist incident would have any adverse impact on his ability to teach. Lampedusa argued that the Craigslist site was for adults only and that it was the responsibility of parents to make sure their children did not access the site and view the ad. In the courts view, Lampedusas conduct in posting the ad, together with Lampedusas 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 (p. 329).
In short, the California appellate court concluded, The public posting on a Web site of pornographic photos and obscene text constitute immoral conduct in that it evidences indecency and moral indifference (p. 329). The appellate court instructed the lower court to order the Commission to render a decision finding that Lampedusas conduct constituted grounds for dismissal based on evident unfitness to teach and immoral conduct (p. 329).
What is the significance of the Lampedusa case? First, the court did not depart from the California Supreme Courts guidance in Morrison. Teachers have the right to live their private lives as they choose so long as their private conduct does not indicate an unfitness to teach. But posting pornographic photos on Craigslist, accompanied by obscene text, is a public act that shows a substantial lack of professional judgment and a disregard for a teachers status as a role model for students. The Lampedusa opinion--upholding the dismissal of Lampedusa for immoral conduct--is a wise decision. In the years to come, it seems likely that other courts will adopt the Lampedusa decisions reasoning and uphold school districts that discipline teachers for posting inappropriate photos and text on the Web, at least when a district can show that such postings demonstrate a teachers unfitness to teach.
Morrison v. State Board of Education, 461 P.2d 375 (Cal. 1969).
San Diego Unified School District v. Commission on Professional Competence, 124 Cal. Rptr. 3d 320 (Cal. Ct. App. 2011).