Filed 11/12/19 Jurupa Unified School Dist. v. Com. on Professional Competence CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

JURUPA UNIFIED SCHOOL DISTRICT,

Plaintiff and Appellant,

v.

COMMISSION ON PROFESSIONAL COMPETENCE,

Defendant and Respondent;

CHARLES BAUGH,

Real Party in Interest and Respondent.

E071552

(Super.Ct.No. RIC1801174)

OPINION

APPEAL from the Superior Court of Riverside County. Sunshine S. Sykes, Judge. Affirmed.

Adams Silva & McNally and Kerrie E. McNally for Plaintiff and Appellant.

No appearance for Defendant and Respondent.

Law Office of Carlos R. Perez, Carlos R. Perez and Alejandra Gonzalez-Bedoy for Real Party in Interest and Respondent.

Plaintiff and Appellant Jurupa Unified School District (District) petitioned for a writ of administrative mandate in the superior court pursuant to Code of Civil Procedure section 1094.5 (Petition) after defendant and respondent Commission on Professional Competence (Commission) refused to grant the termination of real party in interest and respondent Charles Baugh (Baugh), a teacher at one of their schools, who the District sought to terminate based on perceived racist comments posted on Facebook and an inappropriate Halloween costume.

Baugh was a science and drama teacher at Rubidoux High School (RHS). For Halloween in 2015, Baugh came to school dressed as Walter White, a character from the television show “Breaking Bad.” On the television show, Walter White was a chemistry teacher who made and sold methamphetamine. Baugh dressed as the character and also brought bags of rock candy, which looked like methamphetamine, that he handed out to other teachers and staff.

On February 16, 2017, “A Day Without Immigrants” was organized nationwide encouraging immigrants to stay home from work and school. Numerous RHS students were missing from school, including from Baugh’s classroom. Another teacher posted comments on Facebook that the school day was better and that those who missed classes were “lazy” and “drunk.” Several other teachers commented on the post. Baugh commented “I had 49. Quieter classrooms, more productive—let’s do this more often.”

The Facebook postings went viral and the District received over 250 emails from students, parents, community members and others who were upset about the Facebook thread. The next day, over 300 students staged a walkout, disrupting both the school and the surrounding community. The District placed Baugh on leave and sought his termination.

A termination hearing was conducted in front of the three-member Commission. The Commission concluded that Baugh was not unfit to teach and did not engage in immoral conduct within the meaning of Education Code section 44932. The District filed the Petition in the superior court seeking to overturn the Commission’s decision, but the Petition was denied. On appeal, the District contends that substantial evidence does not support the superior court’s decision that Baugh’s unfitness for service was not evident and that his conduct was not immoral.

FACTUAL AND PROCEDURAL HISTORY

A. INTENTION TO DISMISS

On June 22, 2017, the District filed its notice of intent to dismiss and immediately suspend without pay against Baugh. The District charged him with immoral conduct (Ed. Code, § 44932, subd. (a)(1)) and evident unfitness for service (Ed. Code, § 44932, subd. (a)(6)). Baugh requested a hearing. In addition to an administrative law judge from the State of California Office of Administrative Hearings, two teachers were appointed to sit on the Commission to hear evidence. A hearing was conducted starting on October 12, 2017.

B. HEARING BEFORE THE COMMISSION

1. DISTRICT EVIDENCE

Jose Araux was the principal of RHS. He had been the principal for five years at the time of the hearing. Approximately 1,575 students attended RHS during the 2016/2017 school year. Ninety percent of the students at RHS were Hispanic; Araux was aware that some of their parents were immigrants.

Baugh was a science teacher, Robin Riggle was an art teacher, Geoffrey Greer was a social science teacher, Patricia Crawford was a guidance counselor, Rhonda Fuller was an agriculture teacher, and Allen Umbarger was an AVID teacher at RHS. At the beginning of each school year, the District distributed its policies to employees (District Policy). Baugh acknowledged he saw the District Policy.

A Day Without Immigrants was held on February 16, 2017, and Principal Araux understood it to be a day to show the country the importance of immigrants. On that day, the attendance at RHS was significantly lower than usual attendance; 357 students were absent. In Baugh’s class, six to eight students were missing from each class.

That evening, Principal Araux found out about Facebook posts by RHS teachers. Greer posted, “Well. A day without immigrants. Perhaps all the missing workers in all the various industries out there had the intended impact and sent the desired message. I don’t know. As for the public school system, having my class size reduced by 50% all day long only served to SUPPORT Trump’s initiatives and prove how much better things might be without all this overcrowding. That’s want you get when you jump on some sort of bandwagon cause as an excuse to be lazy and/or get drunk. Best school day ever.” Riggle commented on the post, “I had fifty absences today.” Greer responded, “Yup. And I bet your class went a whole lot more smoothly as well.” Riggle responded, “Yes, it was a very pleasant day.” Umbarger then commented, “Unfortunately, statistically my cumulative GPA increased today. Mostly failing students were missing.”

After these comments, Baugh commented “I had 49. Quieter classes, more productive—let’s do this more often.” Crawford also posted, “Cafeteria was much cleaner after lunch, lunch, itself, went quicker, less traffic on the roads, and no discipline issues today. More, please.”

Principal Araux could not believe that the teachers and counselor could make such comments. He felt that Greer’s comments were racist. He interpreted Baugh’s comments as not wanting to have students in his class. A teacher should want his students in class.

In response to the Facebook posts, the District and Principal Araux received approximately 250 emails. Most of the emails complained about the teachers being racist. He responded to the emails.

On February 17, Principal Araux wanted to keep the RHS students safe. He communicated a message to the entire school regarding the Facebook posts. He provided counselors for the students if they needed to talk. When he arrived on that morning, he discovered graffiti in front of the classrooms belonging to Greer and Riggle that stated “Fuck You.” Principal Araux and his office staff were busy that day taking phone complaints from concerned parents and community members. RHS parents come to the office demanding to know what was going to be done about the Facebook posts. Some parents took their children out of school.

Principal Araux personally spoke with five or six of the callers, who asked what he was going to do about the Facebook posts and complained about the posts. He planned a school-wide forum to allow the students to discuss the Facebook posts but the students engaged in a walkout prior to the forum. A group of students first got together outside Riggle’s classroom, then moved to Greer’s classroom. The students pushed against the locked gates surrounding RHS and a student climbed over the gate. Principal Araux had to open the gate to keep anyone from getting hurt. Approximately 300 students walked out of campus. The students were crying, angry and upset. Students who remained on campus had to stay in one class and did not go to other classes. He had to draft an email advising teachers how to handle student questions and how to handle a walkout. Baugh was placed on administrative leave on February 17.

A staff meeting was held on February 21 with all of the teachers to discuss the Facebook posts. They all discussed working together to heal the students and regain their trust. Principal Araux was informed there was another walkout that was being planned by the students for February 21. RHS had extra assistance on that day from the District in order to prevent the walkout. The schedule for the day was modified to try to keep the students at school.

Principal Araux met with approximately six to eight parents at RHS the following week regarding the Facebook posts and he still received telephonic complaints. A student wrote a letter addressed to the teachers expressing her concerns and how she felt. Principal Araux was upset for the students; he was offended by the Facebook posts and the students did not deserve the comments. Principal Araux was contacted by the Anti-Defamation League regarding the Facebook posts and the organization offered assistance and services to RHS. Principal Araux decided to implement a program from the Museum of Tolerance.

In addition to the Facebook posts, Baugh dressed as the television character Walter White from the show Breaking Bad for Halloween in October 2015. The character was a science teacher who manufactured methamphetamine. Principal Araux believed it was inappropriate for Baugh to dress as a person who manufactured drugs. Principal Araux advised Baugh that the costume was inappropriate; Baugh did not think it was a problem and appeared to be proud of his costume. Baugh went home and changed his clothes. Baugh had candy that was supposed to represent methamphetamine that he handed out. Principal Araux never saw Baugh in the costume in front of students. Principal Araux never wrote a letter of discipline based on the incident because Baugh agreed to change.

Principal Araux acknowledged that teachers at RHS sent a letter of support of the teachers and counselor involved in the Facebook post to the District. Several students expressed to Principal Araux that they wanted to move on from the Facebook posts and forgive people. Baugh had not said or done anything prior to the Facebook post that made Principal Araux think he had trouble with immigrants. Principal Araux never spoke with Baugh as to what he meant in the Facebook post.

Gale Hammons was a communication support services provider employed by the District. She helped monitor social media for the District and disseminate information about the District. Hammons took screen shots of the Facebook posts before Greer deleted them. Greer’s Facebook page was public so anyone could read it. Hammons indicated the Facebook posts were transferred to a Twitter account, which had many followers, and the Facebook thread spread quickly on social media. Greer eventually apologized on his Facebook page and took down the post. He then deleted his Facebook account. She could not find a Facebook page for Baugh. She monitored a Jurupa community group that had a Facebook page. She acknowledged that there were differing opinions on the Facebook thread.

Daniel Brooks was the director of personnel for the District. He became aware of the Facebook posts on February 16 by looking at Twitter. It was clear to him that Baugh was referring to Hispanic students as being disruptive and unproductive. He returned approximately 24 phone calls from the community in regards to the Facebook posts; he did not normally respond to parent complaints; the majority of persons he spoke with were upset with the teachers. He did speak with one person who supported the teachers. He admitted that not one of the persons he spoke with expressed concern about Baugh’s comment in particular.

Josh Lewis was the director of technology at the District. RHS teachers were trained on the use of how to create a Twitter account and how to use it appropriately during two different sessions in 2016. He was unsure what was covered in the session as he did not teach the course. He obtained the numerous emails that were received by the District and the teachers about the Facebook posts.

Exhibit 17 contained the emails sent directly to Baugh’s district email. One email mentioned Baugh by name but was also sent to all of the teachers. It did not specifically address the comments by Baugh. There was one email sent directly to Baugh and referenced his Facebook comment. The other emails were sent to all the teachers involved.

Exhibit 14 contained the over 250 emails received by the District after the Facebook posts. Of those posts, only 35 specifically mentioned Baugh’s name but not by himself. Only one email mentioned just Baugh and Greer. The remainder in which Baugh was named or sent the emails, the emails were also sent to some combination of Crawford, Umbarger, Riggle, Greer and Fuller. The superintendent for the District responded to numerous emails; with few exceptions, he sent the same response to each email.

RHS teachers were responsible for delivering the District’s curriculum on appropriate use by students of social media and technology. It dealt with postings on social media and included the posting of inappropriate comments. Baugh had acknowledged delivering the curriculum to his students in the 2016/2017 school year. There was no similar training for teachers on posting on Facebook.

Tamara Elzig was the Deputy Superintendent of the District in charge of human resources, including labor relations and employee discipline investigations. An automatic call was sent to all parents about the Day Without Immigrants encouraging them to have the students attend school. Principal Araux notified her on February 16 regarding the Facebook posts. She felt that Baugh’s comments were discriminatory, interpreting his comment as a statement that Hispanic students were less productive and loud; she admitted he did not specifically reference Hispanic students. She contacted the Jurupa Valley Sheriff’s Station in order to have sheriff’s deputies at RHS the following day and also had administrators throughout the District plan to go to RHS to assist. She also increased private patrol officers.

Elzig went to RHS on February 17 and placed Baugh on administrative paid leave. She was present for the walkout. Students were yelling, crying and throwing bottles and food. They went to the flagpole and tried to take down the American flag and put up a Mexican flag. Students went to a gate that was around the school and began climbing over the fence. The gates were opened and sheriff’s deputies who were outside the school tried to manage the students who went out into the streets. There were over 300 students. Roads had to be closed. They walked to another high school but that school was locked down. The students walked back toward RHS and tried to block the freeway but were stopped. They chanted “Fuck Trump.”

The District sent out a press release that it did not agree with the Facebook posts. Elzig put in extra hours preparing a district-wide plan to prevent the second walkout planned for February 21. Extra staff was sent to RHS.

A District board meeting was conducted on February 21. Numerous news outlets were present. There was a very large group in the audience. Thirty seven members of the public spoke at the meeting. A majority were calling for the termination of the teachers. The group included students, parents and former students. No one supported the teachers. Several news channels and the Riverside Press Enterprise reached out to the District regarding the Facebook posts. Several news stories were printed about the posts. The District was contacted by the ACLU, the Anti-Defamation League and the Department of Justice expressing both concern about the Facebook thread and also concern about the administrators protecting the students’ rights to protest.

The District sought dismissal of Baugh based on the Walter White costume and the Facebook posts because they showed he had poor judgment. Elzig admitted there was no policy on the use of personal computers by teachers. Elzig acknowledged that Baugh had no formal discipline prior to the Facebook posts. She believed that the teachers and counselors were all equally culpable for the disruption of RHS school and other schools. She acknowledged the totality of the Facebook posts caused the walkouts.

Elzig admitted that Baugh had a good evaluation from the District in April 2016. He had either exceeded or met the District standards. He engaged with students and created a positive environment for his students. George Monge was a teacher at RHS and the union representative. He sent a letter to the District on behalf of all of the teachers and staff at RHS stating their support for Baugh and the other teachers.

Several RHS students testified regarding their reaction to the Facebook posts. M.G. was Hispanic and in the tenth grade at RHS. She had been in Baugh’s science class the 2016/2017 school year. Her parents were immigrants. She stayed home from school on the Day Without Immigrants to support the boycott. She had seen the Facebook posts by the RHS teachers on February 16. The comments by the teachers and counselors made her feel insecure. Greer’s post brought her down because she felt he was calling Hispanics lazy and drunk. M.G. also saw Baugh’s post. She never thought Baugh “would say that” because he was her teacher and she felt confident around him. She liked the way he taught her class. When she saw the Facebook post, she was disappointed because she liked him as a teacher. She interpreted Baugh’s comments to be that it was better in the class without immigrants because immigrants made too much noise and were not always paying attention. She did not want to be in his class because she felt “insecure” and “awkward.” She did not consider Baugh a role model for her after seeing the post. She had liked being in his class but after the post she “didn’t know what to think.”

M.G.’s first class on February 17 was Baugh’s science class. She felt awkward but “didn’t really mind.” The other students in the class did not pay attention to Baugh. Prior to the Facebook post, he never said anything negative about immigrants, or that he did not like Hispanics. She agreed Baugh did not state he was referring to immigrants or make any comments about them being lazy or drunk.

R.A. was a Senior at RHS. He was Hispanic and had Baugh as a teacher his Freshman year. The Facebook posts made him feel disappointed. Baugh’s post made him feel “weird” because he did not think that Baugh would say that school would be more productive if Hispanic students were not at school. R.A. went to school the day after the posts but he felt different. R.A. never heard Baugh say anything anti-immigrant while he had him as a teacher. R.A. played soccer and Baugh was an announcer. R.A. was offended by the post by Greer that Hispanics were lazy and drunk. Baugh did not use those terms. R.A. was offended by Baugh’s comment that classes were more quiet and productive. He interpreted it to mean the classes were better without the Hispanic students, but he admitted that most of RHS was Hispanic. He never talked to Baugh about the post.

B.M. was Hispanic and a Senior at RHS. She never had Baugh as teacher. She stayed home from school on the Day Without Immigrants in solidarity with immigrants. She saw the Facebook posts and was disappointed by all of the posts because a majority of the students who were absent were Hispanic. She was “disheartened” and “offended” by Greer’s post. The most offensive comment was that Hispanics were drunk and lazy. She thought Baugh was contributing to the sentiment that having the students absent from the class made the classes better and that he wanted to have them absent again. After reading Baugh’s post, she would not want to have him as a teacher because if he was biased against Hispanics he may grade them harder. She would not consider Baugh a role model because B.M. felt Baugh agreed with Greer’s comment and should have realized the consequences for being involved in the posts.

B.M. and fellow students discussed the posts the following day in class. A lot of students were upset and angry, especially the students who had classes with the teachers. She attended the District board meeting to complain. It was not just what Baugh said in his Facebook post; it was contributing to the racist comment by Greer.

2. BAUGH’S EVIDENCE

Juan Flores had been a student at RHS and graduated in 2010. Baugh had been his drama teacher. Baugh was a great teacher and never said anything to offend him or against immigrants. He cared about his students. He stayed in contact with Baugh after he graduated. Lisa Gonzales was an RHS student from 2009-2013. She had Baugh for both drama and science classes. Baugh was very supportive. He was very understanding about financial problems her family had and he offered to help her. She stayed in touch after graduating. He never made any racist or negative comments about immigrants. Baugh cared about his job and his students. Elyse Johnson attended RHS from 2006-2010 and took Baugh’s drama class. He was great teacher and cared about his students. He was never inappropriate or racist. She had stayed in touch with him. She believed he was a great teacher who should be in the classroom with students.

Doug Morrill was one of Baugh’s friends. He was a retired police officer. Baugh was an honest person and never had made any racist comments or expressed he did not like immigrants. He was very passionate about teaching and always volunteered for extra duties outside the classroom. He started the drama program at RHS and when he was put on leave no other teacher took over the program.

Terri Spencer had been the librarian at RHS since 2006 and her son was a Senior at RHS in February 2017. Right after the Facebook posts, the students wanted the teachers removed, but after several weeks, they commented they wanted the teachers back at school. She felt that the students would welcome back Baugh to RHS. Baugh engaged in activities with the students. The day after the Facebook posts, she had her son picked up early because she was afraid for his safety, because the student walkout was not peaceful and the administration did not do enough to control the students.

Baugh testified on his own behalf. During the school year 2016/2017, Baugh was teaching earth and space science. He no longer taught drama classes because he felt he did not get support from the RHS administration. He was given no rehearsal space and eventually had to discontinue teaching the drama classes in 2013. He had a master’s degree in earth science. He had been a teacher for 20 years. He taught in the District for 11 of those years.

One of the projects in his class was to do a walk through of the solar system on campus so the students could learn the expanse of space and the location of the planets. In the school year 2016/2017 he had a total of 168 students, with an average of 33 students in each class. He agreed that 90 percent were Hispanic. He also kept an updated earthquake map in his classroom so the students could visualize how often there were earthquakes and their magnitude. He loved teaching science to students.

Outside of the classes he taught at RHS, he also was involved in after-school activities with his students. He was an announcer for football games and soccer. He started an astronomy club. He brought his telescope to school for the students to use. He also started a chess club.

He first found out about the Day Without Immigrants the morning of February 16; there were noticeably less students on campus. There had been no notice from the administration. The Day Without Immigrants fell on a Thursday and he had planned to do an in-class presentation to prepare the students for a quiz that was going to be given on Friday. In each class, an average of 10 students were missing. Baugh believed that his syllabus, which he handed out at the beginning of the year, provided that if a student had an unexcused absence, that student would get a zero for any work that was assigned on that day. Rather than have the students study for the quiz, Baugh decided to give the students who were in the class a worksheet so those who missed class would not miss the quiz.

Baugh first saw Greer’s post at around 4:00 p.m. on February 16, 2017, after school, while at home. He responded to the thread, but intended to respond directly to Riggle’s comment. He testified “I liked what Robin Riggle was saying in reference to what Geoff Greer was saying as far as class size.” Riggle had commented that she had 50 students and he responded that he had 49. He did not dispute he posted that he had quieter and more productive classes, and “let’s do this more often.” Baugh explained that rather than having 33 students in each of his classes he had an average of 10 less students. Instead of 33 freshman, he had 23 and this made his classes quieter.

Baugh did not read any of the Facebook comments that followed his comment. He did not check Facebook again that night or the morning before school. He walked by Riggle’s classroom and saw the graffiti. He did not think it was anything unusual as graffiti happened several times each year at RHS. When he got to his classroom, another teacher advised him that the Facebook posts had gone viral. The story had been on major news networks. Baugh was surprised.

Baugh had to walk to the front office before his class started. He noticed several additional administrators in the office. They did not say anything to him about the Facebook posts and he went back to his classroom. He taught his first class without incident; none of the students mentioned the Facebook posts. His second period was his “prep” period, so he had no students. He was in the middle of his third period class when Elzig came to his classroom and told him to leave the classroom. He was escorted to the office. Elzig told him he was being placed on administrative leave because of the Facebook posts and to turn over his keys. Baugh returned to the RHS campus only one day at the end of the school year to retrieve his personal belongings.

Baugh dressed up like Walter White for Halloween in 2015 because he had been told that he looked just like the character. He thought it would be fun to dress up like Walter White, since he looked so much like him. He had purchased a real Hazmat suit and then donated it to the school. RHS did not have a dress code for teachers for Halloween. He also bought rock candy that resembled methamphetamine and put it in small baggies. He did not show them to the students and only gave them to adults. He did not dispute that some of the students may have seen him offer the bags to teachers. Principal Araux called him to the office and told him that the costume was inappropriate because it was promoting drug use. Baugh disagreed that the costume was inappropriate and asked that the school union representative be present. The union representative agreed with Baugh that the costume was not inappropriate but Baugh agreed to change. Baugh’s students loved his costume, Baugh received no write up or discipline based on the incident.

During his time at RHS, Baugh never had a bad evaluation. He had done mission trips to Mexico and Peru to help build housing and outbuildings for those in need during his free time. Before the Facebook posts, he had never been accused of being racist by anyone. He believed immigrants were persons just trying to get a better life and had a right to be in school. He felt he was a role model. He was involved in mission trips and had served in the United States Army. He brought his love of science to the students and community. He believed that his Facebook post had been misinterpreted.

Riggle had sent an email to staff at RHS stating that she had 50 absences and asking if the other teachers were experiencing such absences. The registrar responded, “It’s a Day Without Immigrants Boycott today.” Baugh responded, “Unexcused absences are non-makeupable assignments in my class. Just sayin’.” It was his belief that this was stated in the syllabus he handed out to students in the beginning of the year. He did not intend to upset people with his Facebook post and would not post the same comment again. He only was agreeing with Riggle that smaller class sizes were better.

3. REBUTTAL BY DISTRICT

In rebuttal, Principal Araux explained that the teachers were required to turn in their syllabus each year. He identified Baugh’s syllabus for the 2016/2017 school year, which provided that makeup work for 50 percent credit was allowed for unexcused absences. Principal Araux did not recall any students complaining about not being able to make up work in Baugh’s class.

Elzig was recalled. Baugh had never apologized to the District about his post.

C. DECISION BY THE COMMISSION

On November 16, 2017, the Commission signed its order after hearing. The Commission framed the question “Did Mr. Baugh’s February 16, 2017, post on a Facebook thread or choice of Halloween costume on October 30, 2015, constitute immoral conduct or evident unfitness for service, warranting his dismissal?” Although the Commission concluded that Baugh could have used better judgment, neither incident constituted immoral conduct or evident unfitness for service, applicable law did not permit Baugh’s dismissal.

In reviewing the evidence presented by the District, it noted as to the students who testified, that one student did not address the specific comment by Baugh; another student found parts of the post more offensive than other parts; and one student found Baugh’s post was an agreement with Greer. The Commission also referred to evidence that there was no district-wide policy regarding the use of social media by teachers. Further, it noted that no student testified to seeing Baugh hand out the rock candy. In reviewing the evidence from Baugh, it emphasized the positive evaluations from his superiors.

The Commission referred to relevant case law including Morrison v. State Board of Education (1969) 1 Cal.3d 214, 235 (Morrison) regarding the factors relevant to a finding of unfitness for service and immoral conduct warranting dismissal of a teacher.

The Commission first noted that the District relied upon the viral nature of the post to support Baugh was unfit to serve as a teacher. However, the evidence established reasonable minds could differ as to the nature of Baugh’s post. Moreover, the Commission noted that the “impact” of the conduct alone—the Facebook thread that went viral and sparked protests—did not determine on its own that a teacher is unfit to teach. The Commission considered the Morrison factors to determine a nexus between the conduct and fitness to teach. There was nexus between the “overall Facebook thread,” which Baugh took part in. Baugh’s comment could be construed to adversely affect students and teachers to the extent it was included in a Facebook thread containing racist comments. Baugh should have expected some reaction, when commenting on Greer’s post, by his students and parents, since RHS was predominately Hispanic.

The Commission also noted that Baugh testified he did not intend his comments to be racist; he was only commenting on class size. Baugh showed he had learned from the incident. The Commission found a nexus between Baugh’s Facebook comment and fitness to teach.

However, the Commission also concluded that Baugh had been teaching for 20 years, he participated in after-school activities to help his students, he had no formal discipline in his career, none of the students who testified had heard Baugh be racist at school, and he had “glowing” evaluations. Further, although Baugh was part of a Facebook thread that contained racist comments, his comment was made on his personal computer on his own time. He did not agree with any inappropriate comments and “[h]is comment did not contain strong language or other questionable material that showed an inappropriate temperament, an undesirable character trait, corruption, depravity, moral indignation for any class of persons, or contain any material that suggest Mr. Baugh is unfit to teach science or drama.”

It concluded “[W]hile several of the factors set forth in Morrison . . . arguably may have been satisfied, thus establishing a nexus between the comments and the fitness to teach, ultimately, a preponderance of the evidence did not establish that Mr. Baugh’s single comment on the Facebook thread were attributable to a temperamental defect, inadequacy, or a fixed character trait not remediable merely on receipt of notice that one’s conduct fails to meet expectations of the school district. In other words, he was not shown to be unfit, not adapted to a purpose, unsuitable, incapable, incompetent, or physically or mentally unsound to continue teaching. Thus, his comment [on Facebook] did not constitute evident unfitness for service.”

The Commission also rejected that his Halloween costume showed he was unfit for service as a teacher. While it acknowledged that the costume “glorified a character that was known for illicit drug activity,” Baugh’s testimony showed no improper motive (he wore it because he was “spitting image” of the character); the students liked his costume and there was no testimony they witnessed him hand out the rock candy; his costume did not disrupt the education process; he did not violate any district policy; and he changed when asked by the administration.

The Commission further rejected that his single comment on the Facebook thread constituted immoral conduct as it was not “flagrant, shameless, inconsistent with public decency, or reflective of a moral indifference to the opinions of others.” Although wearing the Walter White costume was not in good judgment expected of a professional educator, it did not constitute immoral conduct.

The Commission concluded that the District only gave it the choice of dismissing Baugh from his employment or dismiss the charges entirely. It stated, “There was no room to choose a suspension or other remedial measure. Given that a preponderance of the evidence did not establish that Mr. Baugh’s conduct was either immoral or rendered him evidently unfit to serve, cause does not exist to dismiss Mr. Baugh pursuant to Education Code section 44932, subdivision (a)(1) or (a)(6).”

D. PETITION FOR WRIT OF MANDATE AND RULING

On January 12, 2018, the District filed its Petition. The District contended there were 21 reasons the Commission’s decision was invalid. Essentially, the District alleged that it did not receive a fair trial and the Commission committed a prejudicial abuse of discretion by ignoring the evidence against Baugh, and there was not substantial evidence supporting the findings of the Commission. The District sought to have the decision of the Commission reversed and order that Baugh be dismissed. The administrative record was lodged with the superior court.

Baugh filed opposition. The District filed a reply. A hearing was conducted on August 10, 2018, wherein the District argued that the Commission reached the wrong decision.

The superior court denied the Petition and provided a notice of ruling. The superior court first noted that its independent review and analysis of the Morrison factors suggests a nexus between Baugh’s conduct and his fitness to teach; however, there was no evidence that Baugh’s conduct was caused by a defect in temperament. The superior court found that “the District fails to meet its burden to convince the court that the Commission’s administrative findings were contrary to the weight of the evidence.”

The superior court noted that the District’s argument focused almost entirely on the impact of the Facebook thread; however, it was beyond dispute that the majority of the complaints were not directed to Baugh or his comments. His comment did not disparage immigrants, did not mention race or national origin, did not express agreement with Greer’s comments and did not show hostility toward the general public. Baugh’s record and history did not show he harbored racist or anti-immigrant sentiments and there was no evidence he ever discriminated against his students on the basis of race. It concluded, “The Commission’s determination that Baugh’s Facebook comment did not constitute ‘evident unfitness for service’ or ‘immoral conduct’ is not contrary to the weight of the evidence.” It further noted that although Baugh’s Halloween costume constituted an error in judgment, it did not amount to evident unfitness for service.

DISCUSSION

The District contends substantial evidence does not support the superior’s court’s decision that Baugh’s conduct does not render him unfit to serve nor constitute immoral conduct.

A. STANDARD OF REVIEW

“[I]n its review of the Commission’s findings, the trial court exercises its independent judgment in assessing the evidence.” (Governing Board v. Haar (1994) 28 Cal.App.4th 369, 378.) Independent review by the trial court is legislatively mandated. (Ed. Code, § 44945.) “Under the independent review standard, the trial court may weigh the credibility of witnesses.” (San Diego Unified School District v. Commission on Professional Competence (2011) 194 Cal.App.4th 1454, 1461 (Lampedusa).)

“ ‘An appellate court must sustain the superior court’s findings if substantial evidence supports them. [Citations.] In reviewing the evidence, an appellate court must resolve all conflicts in favor of the party prevailing in the superior court and must give that party the benefit of every reasonable inference in support of the judgment. When more than one inference can be reasonably deduced from the facts, the appellate court cannot substitute its deductions for those of the superior court.’ ” (Pittsburg Unified School District v. Commission on Professional Competence (1983) 146 Cal.App.3d 964, 978 (Pittsburg); see also Governing Board v. Haar, supra, 28 Cal.App.4th at p. 378.) Since the trial court adopted the findings and conclusions of the Commission, “the issue in this appeal is whether the Commission’s finding, adopted by the trial court, is supported by substantial evidence. If there is substantial evidence, the judgment must be affirmed.” (Lampedusa, supra, 194 Cal.App.4th at p. 1461.) We are bound by the lower court’s resolution of conflicts in the evidence. (Pittsburg, at p. 978.) Once we find that substantial evidence supports the trial court’s findings, “it is of no further significance that evidence contrary to such findings may also exist.” (Id. at p. 979.)

Accordingly, on appeal, we determine whether there is substantial evidence in the record to support the superior court’s finding that Baugh’s conduct did not amount to immoral conduct or that he was not unfit for service as a teacher.

B. FITNESS TO SERVE AS A TEACHER

The District contends that the evidence relied upon by the superior court was not that which a reasonable mind would accept to support its conclusion. The District criticizes the findings by the superior court that (1) the community comments were not directed at Baugh’s Facebook comments; (2) Baugh’s comment did not mention race or national origin, express agreement with Greer or evince hostility toward the general public; and (3) his personal history did not demonstrate he harbored any racist or anti-immigrant sentiments and he had no prior student or staff complaints.

There is a conflict in authority on the definition “ ‘evident unfitness for service,’ as used in [Education Code] section 44932.” (Woodland Joint Unified School District v. Commission on Professional Competence (1992) 2 Cal.App.4th 1429, 1441.) Cases following Morrison have noted that the court stated that “evident unfitness for service” is synonymous with “unprofessional conduct.” (Woodland, at p. 1441.) Another line of appellate court cases states unfitness for services requires that the unfitness be attributable to a defect in temperament. (Id. at pp. 1442, 1444.) Woodland adopted the definition of evident unfitness for service to be “ ‘clearly not fit, not adapted to or unsuitable for teaching, ordinarily by reason of temperamental defects or inadequacies.’ Unlike ‘unprofessional conduct,’ ‘evident unfitness for service’ connotes a fixed character trait, presumably not remediable merely on receipt of notice that one’s conduct fails to meet the expectations of the employing school district.” (Id., at p. 1444, fn. omitted.) We adopt that standard here.

In Morrison, supra, 1 Cal.3d 214, the California Supreme Court set forth factors to consider in determining whether a teacher’s conduct amounts to unfitness to teach including, “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 circumstances, if any, surrounding the conduct, the praiseworthiness or blameworthiness of the motives resulting in the conduct, the likelihood of the reoccurrence of the questioned conduct, and the extent to which disciplinary action may inflict any adverse impact or chilling effect upon the constitutional rights of the teacher involved or other teachers.” (Id. at p. 229, fns. omitted.) It further noted, “These factors are relevant to the extent that they assist the board in determining whether the teacher’s fitness to teach, i.e., in determining whether the teacher’s future classroom performance and overall impact on his students are likely to meet the board’s standards.” (Id. at pp. 229-230.)

First, substantial evidence supported the superior court’s finding that the District’s reliance on the over 250 emails it received after the Facebook posts did not support Baugh’s unfitness for service, as the majority of the Facebook posts were not addressed to Baugh or his comment. Of the over 250 emails received by the District, only 35 of the emails were either sent to Baugh or mentioned his name. In these emails, Baugh was mentioned together with the other teachers involved in the Facebook thread; his comment was mentioned along with Greer and the other teachers. There was very little evidence that the community was outraged specifically by Baugh’s comment.

The District argues there were other emails that referred to “teachers,” “staff” or “colleagues.” However, none of these emails mentioned Baugh by name or mentioned that his comment was specifically hurtful. Additionally, phone calls made to Brooks at the District after the Facebook posts did not specifically mention Baugh by name nor his comment. The superior court properly determined that although there were a number of email and phone complaints, this was not evidence supporting that the community found Baugh’s specific comment particularly offensive to support his evident unfitness for service. There was a community outcry, but little evidence supported that Baugh’s comments were the cause of the adversity to the students and parents. (Morrison, supra, 1 Cal.3d at p. 229.)

Further, substantial evidence supported the superior court’s finding that Baugh’s own comment did not directly disparage students or immigrants, did not mention race or origin, did not express agreement with Greer’s comments and did not evince a hostility toward the general public. His comment did not show he was clearly unfit to teach. While it may not have been good judgment on Baugh’s part to comment in the same thread as Greer, Baugh himself testified that he only was responding to Riggle’s comment regarding class size. “When more than one inference can be reasonably deduced from the facts, the appellate court cannot substitute its deductions for those of the superior court.’ ” (Pittsburg, supra, 146 Cal.App.3d at p. 978.) We cannot second-guess the trial court’s finding that the comment did not directly agree with Greer’s sentiments and was itself not racist. The interpretation by the District that Baugh “celebrated the absences of immigrant students” is not the only interpretation of the evidence.

Moreover, although three RHS students testified they were offended by Baugh’s comment, one of the students returned to Baugh’s class the next morning and had no problems. Students had advised Principal Araux that they wanted to forgive the teachers and move on. Students later wanted the teachers to return.

Additionally, the fact that Baugh contacted the registrar to state that those with unexcused absences could not make up work does not support that he intended to discriminate against Hispanic students who missed school on the Day Without Immigrants. Baugh testified that he changed his class work specifically so those students would not be impacted. This was not evidence that his comments were intended to be racist or disparaging of Hispanic students.

Moreover, substantial evidence appears in the record to support the superior court’s conclusion that the conduct was unlikely to reoccur based on Baugh’s history as a respected teacher and his testimony he would not post these types of comments again. Baugh had glowing evaluations from the District, in which he either met or exceeded expectations. He provided a positive environment for his students. He had the support of all the teachers at RHS. Principal Araux testified that Baugh had no previous complaints that he was racist. All of the students who testified had never heard Baugh make any racist comments and he had not treated them differently because they were Hispanic. Baugh testified that he would not post these types of comments in the future. There was little likelihood of reoccurrence of the questioned conduct. (Morrison, supra, 1 Cal.3d at p. 229.)

Finally, Baugh’s wearing of the Walter White costume did not show an evident unfitness to serve. Baugh did not have an improper motive in wearing the costume. Baugh only wore it because he resembled the character and thought it would be funny. Further, there was no evidence presented that there was adverse student reaction. While he did not dispute that some students may have observed him handing out the rock candy to adults, there simply was no evidence to support that students had observed him. Finally, at the time of the incident, Baugh was not disciplined for the costume. This evidence did not support his unfitness for service and the superior court’s finding of no evident unfitness for service was supported by substantial evidence.

C. IMMORAL CONDUCT

“A teacher may also be dismissed for ‘[i]mmoral or unprofessional conduct.’ [Citation.] ‘ “The term ‘immoral’ has been defined generally as that which is hostile to the welfare of the general public and contrary to good morals. Immorality has not been confined to sexual matters, but includes conduct inconsistent with rectitude, or indicative of corruption, indecency, depravity, dissoluteness; or as willful, flagrant, or shameless conduct showing moral indifference to the opinions of respectable members of the community, and as an inconsiderate attitude toward good order and the public welfare.” ’ [Citation.] Moreover, the definition of immoral or unprofessional conduct must be considered in conjunction with the unique position of public school teachers, upon whom are imposed ‘responsibilities and limitations on freedom of action which do not exist in regard to other callings.’ ” (Lampedusa, supra, 194 Cal.App.4th at p. 1466.)

In Palo Verde Unified School District of Riverside County v. Hensey (1970) 9 Cal.App.3d 967, the teacher said to several Hispanic students in his classroom—who had been to a particular area in Mexico— that the area had “super-syphilis” and they should be careful when they were going to the area. (Id. at p. 969.) The appellate court found that the students could reasonably be found to have interpreted his comments as stating that sexual transmitted diseases were rampant in their culture. (Id. at pp. 973-974.) The appellate court found that the comment alone, while in bad taste, was not evidence of immorality.

We have outlined extensively the support for the superior court’s findings that no substantial evidence supported that Baugh was unfit for service as a teacher. Much of this same evidence is relevant to the determination that Baugh did not engage in immoral conduct. As noted, Baugh did not acquiesce in the comments made by Greer and his comments were not racist in themselves. As in Palo Verde, although Baugh exhibited bad judgment by commenting on the Facebook post, it did not amount to immoral conduct. Further, his motive was not to disparage Hispanic students, but to comment on the class size. Finally, Baugh dressed as Walter White only because he resembled the character and thought it would be funny, rather than based on an attempt to promote drug use. He was not disciplined for his behavior. This was not immoral conduct.

Substantial evidence supports the findings of the superior court that the District did not show that Baugh’s conduct in posting on Facebook and wearing the Walter White costume was immoral conduct.

DISPOSITION

The superior court’s order denying the District’s petition for writ of mandate is affirmed in full. Respondent Charles Baugh is awarded his costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1).)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER

J.

We concur:

McKINSTER

Acting P. J.

FIELDS

J.