Court Of Appeal Overturns District’s Dismissal Of Teacher Accused Of Inappropriately Touching A Student

The California Court of Appeal, Fourth Appellate District, recently issued a published decision that overturned a superior court decision in favor of the San Diego Unified School District in a teacher dismissal case.  The decision is fact-specific and demonstrates the complexities that can be involved in dismissing a tenured teacher.  (San Diego Unified School District v. Commission on Professional Competence (--- Cal.Rptr.3d ----, Cal.App. 4 Dist., March 26, 2013).

What This Means To You

Although this decision is highly fact-specific and directed at the standard of review of the superior court, it is nonetheless instructive to school districts when deciding whether to appeal an adverse CPC decision.  The court of appeal noted that the CPC’s findings were to be afforded “great weight” when reviewed by a superior court, which may make reversal of a CPC decision more difficult.  Districts should continue to consult with legal counsel when deciding whether to initiate a dismissal action against a permanent certificated employee.


Thad Jesperson (“Jesperson”) began teaching in the San Diego Unified School District (“District”) in 1998.  He was a third grade teacher at Toler Elementary School (“Toler”) during the 2002-2003 school year when Connie Murphy (“Murphy”), a special education aide, worked with a student in his classroom.  Jesperson conducted math instruction every day for an hour and twenty minutes for Gifted and Talented Education (“GATE”) students, during which he “would give direct instruction and then break the students into group work, give them a worksheet, and afterwards have the students line up at his kidney-shaped table standing while he quickly assessed their work.”  Murphy was regularly present during this time because she worked one-on-one with a student who was part of that math block instruction.  

In 2003, a student’s mother complained that Jesperson had touched her daughter inappropriately.  The District temporarily assigned Jesperson to another job pending the outcome of an investigation.  Jesperson was arrested in April 2003 and faced three criminal trials, and was ultimately sentenced to seven concurrent 15-year-to-life prison terms plus a concurrent six-year term for the conviction in his first trial.  However, all of Jesperson’s convictions were reversed on appeal and the San Diego County District Attorney declined to retry Jesperson. 

In November 2008, the District notified Jesperson of its intent to terminate his employment on grounds of his evident unfitness for employment, immoral conduct, and refusal to obey regulations.  The District specifically alleged that “Jesperson had engaged in certain described lewd and lascivious acts with minor students Emily A., Michelle A., Jaicee S., and Kelcey H.” 

Jesperson requested a hearing with the Commission on Professional Competence (“CPC”).  Only one of Jesperson’s former students, Emily A., testified at the three-day hearing before the CPC.    Emily testified the touching occurred during GATE while Jesperson was checking her work.  Murphy testified she worked in Jesperson’s class daily, including during the GATE session, but that she never saw him “touch Emily in the manner Emily described (on her leg or her buttocks or back below the waistline of her pants outside of her underwear), and Emily never came to her to say she was uncomfortable around Jesperson.” 

The CPC reached a unanimous decision to dismiss the accusation and statement of charges finding the evidence before it “as a whole was insufficient to establish that [Jesperson] touched Emily in the manner to which she testified.”  The CPC also expressed concern regarding the lack of corroboration from any other alleged victim.  It also noted that Emily may have overdramatized the events when she testified and that she originally did not contact the police.  The Commission found “Murphy came across as ‘very credible.’” 

The District filed a petition for writ of mandate asking the superior court to set aside the CPC’s decision.  The superior court “found the evidence established Jesperson touched Emily in the manner to which she testified,” which constitutes immoral conduct that makes him unfit to teach.  The superior court entered a judgment in District’s favor.  The court of appeal reversed the judgment of the trial court. 


The appellate court noted that the pertinent inquiry was “not only whether substantial evidence supports the trial court’s findings as to Emily’s credibility and account of Jesperson’s touching, but also whether substantial evidence supports its conclusion—reached only after the parties had convinced it remand to Commission was not necessary—that Jesperson’s touching constitutes ‘immoral conduct making him unfit to teach.’”  Although there is an independent ground for dismissal based on immoral or unprofessional conduct, when considering fitness to teach, “the terms ‘immoral’ or ‘unprofessional conduct’ are so broad and vague that, standing alone, they could be constitutionally infirm; hence the proper criteria is fitness to teach.”  “Evident unfitness” to teach is defined as “clearly not fit, not adapted to or unsuitable for teaching, ordinarily by reason of temperamental defects or inadequacies” and connotes a character trait that is fixed and “presumably not remediable merely on receipt of notice that one’s conduct fails to meet the expectation of the employing school district.”    

The court noted that there is a strong presumption of correctness that attaches to the CPC’s findings.  The court of appeal concluded that the superior court used perceived inaccuracies in the administrative record to rebut that presumption and reject the decision of the CPC.  The court of appeal found that the superior court “did not give due respect to Commission’s assessment of the weight of the evidence.”  The court of appeal held that “the Commission was not factually inaccurate in its underlying conclusions that went to the plausibility of Emily’s administrative hearing testimony.” 

The court of appeal also found that the superior court failed to give “great weight” to the credibility determinations of the Commission as required by the Administrative Procedures Act.  Although “the trial court is entitled to substitute its own credibility determinations,” that court “cannot ignore its statutory obligation to defer to the Commission’s considered credibility findings in doing so.”  The court of appeal found that the “the superior court’s decision—which is silent as to the Commission's thoughtful reasoning and analysis as to the witnesses’ credibility—did not afford the respect due those findings.”

The court of appeal concluded “that the administrative record evidence does not contain substantial evidence supporting factual findings of Jesperson’s immoral conduct, ‘[e]vident unfitness for service,’ or persistent violation of laws.”  Jesperson must not only be shown to have engaged in misconduct but also that his misconduct met the criteria for unfitness for service and “was derived from a temperamental defect that made his unfitness evident.”  The evidence must show that his “conduct adversely affected students or fellow teachers to a significant degree, and had a great likelihood of recurrence.” 

Although the evidence establishes Jesperson touched Emily and other students while he corrected their work, “there is no substantial, credible or reliable evidence to support a finding that the touching was so offensive, inappropriate or immoral that it rendered him unfit to teach.”  The District did not present evidence that other students were inappropriately touched.  It also presented no evidence that the alleged conduct had an adverse effect on Jesperson’s fellow teachers, his classroom performance, or his ability to teach.  The court concluded that the District failed to show that Jesperson was unfit to teach.  


If you have any questions concerning the content of this Legal Alert, please contact the following from our office, or the attorney with whom you normally consult.

Marie A. Nakamura or Meghan Covert Russell | 916.321.4500

Written by:

Published In:

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Kronick, Moskovitz, Tiedemann & Girard | Attorney Advertising

Don't miss a thing! Build a custom news brief:

Read fresh new writing on compliance, cybersecurity, Dodd-Frank, whistleblowers, social media, hiring & firing, patent reform, the NLRB, Obamacare, the SEC…

…or whatever matters the most to you. Follow authors, firms, and topics on JD Supra.

Create your news brief now - it's free and easy »

All the intelligence you need, in one easy email:

Great! Your first step to building an email digest of JD Supra authors and topics. Log in with LinkedIn so we can start sending your digest...

Sign up for your custom alerts now, using LinkedIn ›

* With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name.