Wednesday, November 5, 2025
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C.A. Rejects First Amendment Contention by Professor Fired for Offensive Wisecracks
By a MetNews Staff Writer
First Amendment rights of an attorney at law were not breached by a community college district and its governing board in firing him as a proferssor of economics at Saddleback College in Orange County’s Mission Viejo based on his persistent wisecracks, Div. Three of the Fourth District Court of Appeal held yesterday.
The panel affirmed a judgment by Orange Superior Court Judge Kimberly A. Knill denying a petition for a writ of administrative mandamus filed by Howard Gensler, seeking reinstatement.
Knill backed the decision of Presiding Administrative Law Judge (“ALJ”) Adam L. Berg who determined that Gensler in 2017 said that Iranian women dressed like ‘hookers’; made comments about Middle Easterners hating Persians; and during a lecture on the Iran-Iraq war, said the United States sold weapons to Iraq because Iranians were ‘jerks’ and called Iranians “evil.”
Berg also found that Gensler in 2018 “told a story about a former student in which he described her scant attire and breast size; repeatedly used the word ‘tard’ to describe himself and students; referred to wives as ‘bitches’; wore a jacket containing Playboy insignias to class; and made a crude reference to Ariana Huffington performing oral sex in order to achieve political recognition.”
District’s View
The defendant/respondents, the South Orange County Community College District and the Board of Trustees, asserted in their brief on appeal that Gensler “abused the responsibility associated with his position by making insulting and threatening comments to students.”
They said:
“For brevity purposes, the respondents will not recite the entire litany of unprofessional, demeaning, hostile, inappropriate and derogatory conduct that appellant engaged in, particularly in regard to race, national origin, gender, veterans, and the disabled. However, the record is replete with written complaints made by students, as well as testimony from some of the same students at the 10- day hearing in front of ALJ Berg that was afforded to Gensler….A sampled (but by no means conclusive) highlight includes appellant’s calling people ‘tards’…, commenting on how some women ‘blew their way to the top’…, calling single mothers ‘bitches’…, insulting various races/cultures…, mocking disabled students…, not following accommodations for disabled students…and a repeated use of profanity….Moreover, a majority of this conduct was substantiated in third-party investigations.”
Ninth Circuit Decision
Gensler received his law degree from the University of California at Berekeley and was admitted to the State Bar in 1983. He has been on active status since then, though he was a fulltime faculty member when teaching.
The appellant authored his briefs on appeal.
In putting forth his First Amendment claim, he relied heavily on the Ninth U.S. Circuit Court of Appeals’s 1996 decision in Cohen v. San Bernardino Valley College. A professor at San Bernardino Valley College was fired based on his remarks in an Enfglish class during discourses on pornography and sexuality.
The Ninth Circuit said:
“Neither the Supreme Court nor this Circuit has determined what scope of First Amendment protection is to be given a public college professor’s classroom speech. We decline to define today the precise contours of the protection the First Amendment provides the classroom speech of college professors because we conclude that the Policy’s terms were unconstitutionally vague as applied to Cohen in this case.”
Motoike’s Opinion
Acting Presiding Justice Joanne Motoike said in yesterday’s Court of Appeal opinion that “unlike the policy in Cohen,” the administrative regulation on sexual harassment that Gensler was accused of violating “specifies in significant detail what conduct constitutes harassment.”
She added that “unlike in Cohen,” where the Ninth Circuit said the professor had no notice that a freshly adopted policy ‘would be applied in such a way as to punish his longstanding teaching style,’ Gensler did receive notice in 2016 that the district’s new regulation “could apply to him” and he was given “additional notices warning him of his conduct.”
The justice noted that “[t]he relevant issue in Cohen was whether the sexual harassment policy was unconstitutionally vague” and it did not “address whether the First Amendment protected the professor’s speech.”
Gensler’s Comments
Gensler maintained yesterday:
“The dismissal of the First Amendment issue by dismissing Cohen, an identical case, is unpersuasive, to be polite.”
He also remarked:
“The appellate court failed to address key issues, such as the lack of jurisdiction from no peer review, no student evaluations, no evaluation, and non-compliance with the Faculty Contract. The factual summary failed to resolve the lack of evidence, the lack of required credibility findings, including the bribery issues, and the resolution of conflicts, despite several District witnesses having been found to be unreliable. Again, there is no analysis of the regulation of which I am accused of breaking because there is no evidence that I violated it.”
The appellant added:
“My conviction relies primarily on the unfounded allegation and exaggerations thereof, not the evidence.”
The case is Gensler v. Board of Trustees, G064067.
Batman Fan
A March 25, 2016 artice in the Orange County Register tells of Gensler’s side interests:
“Gensler, 58, leads you into his beige stucco house.
“You see the 5-foot-tall giraffe. Then the replica skull and crossbones from the ‘Pirates of the Caribbean’ movies. Then the replica sword and shield from the movie ‘300.’ He leads you through a doorway and voila, you’re there. It’s a room full of autographed Batman photos and posters.
“He’s got a piece of Robin’s cape from the 1960s Batman TV show. He’s got a life-sized Catwoman mannequin. Other costumed mannequins populate the room—Poison Ivy, Harely Quinn, Wonder Woman.”
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