Friday, November 6, 2015
C.A. Upholds Teacher’s Firing on ‘Immoral Conduct’ Charge
Panel Rejects Vagueness Challenge by Teacher Found to Have Made Racist Comments
By KENNETH OFGANG, Staff Writer
The Los Angeles Unified School District may terminate a teacher for misconduct that included making racist remarks about black students, the Court of Appeal for this district ruled yesterday.
Div. Two rejected challenges by Gabriel Galland to 2013 disciplinary proceedings regarding various actions that occurred the previous year. Among the charges sustained by the school board were that Galland called one student a vulgar name and said he would never amount to anything because he was black, and making gorilla noises after asking a black student to leave the classroom.
Other charges included calling a fellow teacher, in front of a class, a “mija” who should be selling tamales; putting his finger in a student’s face and yelling, shouting a profanity at another student, grabbing and pushing yet another student, and pushing one pupil in the chest while kicking him out of class.
Vagueness of Statute
The school board voted to suspend him, finding good cause for dismissal. He then asked the Commission on Professional Competence to dismiss the charges on various grounds, including that Education Code §44939, which allows immediate suspension without pay, pending possible termination, if a teacher engages in “immoral conduct,” is unconstitutionally vague.
The commission denied the motion and Galland sought mandate relief, which was denied by Los Angeles Superior Court Judge James Chalfant.
The Court of Appeal, in an unpublished opinion by Justice Brian Hoffstadt, rejected all of Galland’s challenges.
Hoffstadt said the “immoral conduct” standard is sufficiently certain, both on its face and as applied to Galland. The state high court, he noted, upheld the standard in Morrison v. State Board of Education (1969) 1 Cal.3d 214, construing the term to mean “conduct indicat[ing] that the petitioner is unfit to teach.”
That case enumerated eight different factors bearing on unfitness to teach, including (1) “the likelihood that the conduct may have adversely affected students or fellow teachers,” (2) “the degree of such adversity anticipated,” (3) “the proximity or remoteness in time of the conduct,” (4) “the type of teaching certificate held by the party involved,” (5) “the extenuating or aggravating circumstances, if any, surrounding the conduct,” (6) “the praiseworthiness or blameworthiness of the motives resulting in the conduct, (7) “the likelihood of the recurrence of the questioned conduct,” and (8) “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.”
The justice noted that after he was suspended, Galland and the district agreed to have an administrative law judge, rather than the commission, decide the case, and that the ALJ upheld the dismissal on grounds other than immoral conduct. That renders the as-applied challenge moot, the justice said.
Skelly Rights Observed
The court also rejected Galland’s claim that he had been denied his constitutional right to a pre-termination, or Skelly, hearing. Hoffstadt noted that the teacher received several memoranda explaining the misconduct on which the action was based, that he was allowed to respond, and that the district’s final decision was made by a “reasonably impartial” district official who was not involved in the earlier proceedings.
That official, the justice said, gave Galland “exactly what Skelly [v. State Personnel Board (1975) 15 Cal.3d 194] requires—namely, ‘the right to respond.’”
Ronald C. Lapekas represented Galland; the district was represented on appeal by Gregory M. Bergman, Michele M. Goldsmith, and Mark W. Waterman of Bergman Dacey Goldsmith.
The case is Galland v. Governing Board of the Los Angeles Unified School District, B258018.
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