The opinion
ELKINGTON, J.
I dissent.
With much delicacy and restraint my colleagues very briefly pass over the subject matter leading to this appeal. They say that defendant caused to be reproduced and distributed to her pupils certain “writings containing vulgar references to the male and female sexual organs and the sexual act.”
Since our opinions are published for, and are read almost exclusively by, lawyers and judges who are presumably hardened to such matters, there seems little reason to so charitably outline the basis of the proceedings against defendant. It seems anomalous that we should shield our adult professional readers from matter which we permit a teacher to freely distribute among her grammar school pupils.
The record is not in conflict.' It contains the subject writings, certain stipulations, testimony of defendant, and that of her witnesses who insisted that the disputed conduct was an acceptable grammar school teaching technique. For obvious reasons none of the children were called to testify.
Defendant taught an' eighth grade class of 15 slow readers, 13 and 14 years of age. She testified that one day she told her pupils to “write anything you want to.” The boys and girls started “laughing and talking.” “¡T]hey were enjoying it and they were interested and they were writing and they were reading each other’s stuff.” After a while they turned in their work to the defendant.
*1114 A girl student made this contribution which defendant “thought was very nice.”
“Pussy in the World
“Pussy in the World pussy in the world hey every body they pussy in the
“pussy is sweet pussy is Free hey aver body pussy is Free
“And for all taste it sametime [r/c]”
“Pussy” is common American slang for the female sexual organ (see Webster’s Third New Internat. Diet.).
The handwriting of several of the remaining papers being poor, defendant, for clarity, in her own hand copied them just as they had been written.
One of these papers read:
“Big Bad Hairy Dick
“One day I saw a man with a big bad hairy dick. I ask him, Why did he call it big, bad hairy dick? He said! It all started when I fuck a girl. I said to the girl Will you let me fuck you? She said yes, I said! how big is your pussy hoi? Big enough for you to get in. How big is yóur dick? Big enough to make you bleed. When I get finish with you. You will be bleeding from the ass and your Kotex will be so wet you can ring it out with you hand. I hope you have enough Kotex for when I get fitiish. We were fucking and all of a sudden he farted she said! Get out me you nasty thing! Me no fart me ass just get happier. Wee! Wee! She said with you big bad hairy dick.”
Another stated: *1115 back up I saw harry blacs on her cock. I herd say, you better have a Kotex because you going bleeding a good well. That boy get off the lady and looked at his balls and said my balls is blue! The lady siad I thought I would be bleeding for a good long well. Well your Pussy is to big for my peter lady. So a man seen the lady naked an got on tope of her. He started suck on her tity the lady was pumping harder. The man said my big hairy dick is stuck in your big harry pussy. I think you are bleeding from your ass.”
*1114 “Big harry Stankhold
“One day I seen a lady with a boy Iieing on the ground, the Boy was lieing on top of her going up and down. When the boy went up I seen a little thing with some water come out. His little peter went in there he come
*1115 Yet another read:
“Big Bad Hair Cock
“One night a lady was walking down the street. A man said! Say baby get me some of that hair cock.
“Do you got someing to handle it like a big Dick! hell yeah! hoi with your hair pussy.
“Yeah tell me where and I’ll be there'. At my pad and bring some Kotexs OK
“And wash your tits, be prepared to fuck a wile.”
Defendant selected these four papers and two others for reproduction by herself and some of the children by “Ditto” machine. The next morning she gave each pupil copies of the several writings. They were to form the basis of a class discussion. Defendant explained to the class that the material “could not be kept. It would have to be returned to me at the end of the day and destroyed.” Some disturbance within the school prevented the class’s planned consideration of the papers. But, nevertheless, one or two of the boys became very hostile, apparently “for letting [the class] write this stuff,” and they said, “We are going to turn you in.” Other pupils, who said they didn’t want defendant fired, “grabbed all the copies, [defendant] thought, and ripped them up and threw them away.” But one of the boys “apparently preserved” his copies and “on the way up” put them “in the principal’s box.” Asked, “You didn’t give this to [the boy] with any idea that he was going to take it out of the room at all?”, defendant replied, “No. I told the children at the beginning this could not go out of the room and I did not know he had the copy.” And she explained, “I knew that it was something that you obviously could not circulate in the halls because obviously it is something that is very shocking to people.”
“Obscene” means that to the average person, applying contemporary standards, the predominant appeal of the matter, taken as a whole is to the *1116 prurient interest, i.e., a shameful or morbid interest in nudity, sex, or excretion, which goes substantially beyond customary limits of candor in description or representation of such matters and is matter which is utterly without redeeming social importance. (See Pen. Code, §311 ; In re Giannini, 69 Cal.2d 563 [ 72 Cal.Rptr. 655 , 446 P.2d 535 ].) 1
By this, or any, definition of the word, if the writings here in question are not obscene, then the word is a semantic fiction, wholly unrelated to any reality, and is in fact meaningless.
My colleagues find no obscenity. Comfort is given to defendant’s contention that she was protected by her “academic freedom.” They say— that while “one may [not] assert his or her academic freedom permits conduct that produces disruption or impairment of school discipline or the teaching process”—here there was no such “disruption or impairment of school discipline or the teaching process.”
Reliance for their conclusion is placed on Morrison v. State Board of Education, 1 Cal.3d 214 [ 82 Cal.Rptr. 175 , 461 P.2d 375 ]. Morrison also was charged with “evident unfitness for service” as a public school teacher. He had admitted that 19 months earlier he had “engaged in a limited noncriminal physical relationship” of a homosexual nature. 2 This relationship was wholly unrelated to Morrison’s employment; “No evidence was presented that [he] had ever committed any act.of misconduct whatsoever while teaching.” The court, in a 4 to 3 decision, found no “evident unfitness for service.” But throughout its opinion the majority heavily emphasized that Morrison’s conduct was in no way related to his employment as a teacher. Authority was quoted which said (p. 224): “ ‘The private conduct of a man, who is also a teacher, is a proper concern to those who employ him only to the extent that it mars him as a teacher ...'.’ ” The court stated (p. 225): “[T]he Legislature surely did not mean to endow the employing agency with the power to dismiss any employee whose personal, private conduct incurred its disapproval”; and that “We cannot believe that the Legislature intended to compel disciplinary measures against teachers who committed such peccadillos if such passing conduct did not aifeet students or fellow teachers. . . .”
*1117 The Morrison court then stated (p. 238): “In deciding this case we are not unmindful of the public interest in the elimination of unfit elementary and secondary school teachers. ...” The cause was remanded for a further inquiry whether Morrison’s “limited non-criminal physical- relationship” of a homosexual nature was in fact school related, thereby rendering him “unfit for service.”
My colleagues have extended the rule of Morrison to the very area over which Morrison expressly disclaimed any application. Our court now permits, or at least declares to be beyond school disciplinary redress, a teacher’s exposure of grammar school children to a compulsory sordid, debased and sadistic discussion of the human sexual act. It goes further and finds no disciplinable wrong in the classroom circulation of what must fairly be construed as the little girl’s written invitation to oral copulation.
Today’s majority opinion, as I view it, establishes a new high-water mark in judicially permitted licentiousness—far beyond the purview of Morrison—and of all places, in the classroom of a grammar school.
Until now (my research indicates) the high point seems to have been reached in Barrows v. Municipal Court, 1 Cal.3d 821 [ 83 Cal.Rptr. 819 , 464 P.2d 483 ]. In Barrows another closely divided court held that simulated acts of oral copulation on a public stage between man and woman were constitutionally protected by the First Amendment. Legislative suppression of such things, it was held, would be a tragic “loss to culture.” (Cf. Dixon v. Municipal Court, 267 Cal.App.2d 789 [ 73 Cal.Rptr. 587 ]; In re Mannino (dissent), 14 Cal.App.3d 953, 980 [ 92 Cal.Rptr. 880 ].)
But Barrows concerned a public theatrical production to which, presumably, adults alone and they by their free choice, were admitted. In the case at bench the children were legally compelled to attend school (Ed. Code, § 12101), and to “submit to the authority” of the teacher (Ed. Code, § 10609) in their classroom work and discussions.
The record conclusively shows no hasty ill-considered action by defendant. She herself had painstakingly rewritten the students’ papers. She had kept them overnight and made copies the next morning. When she circulated a complete set to each student she took special care that no real evidence of what was going on would reach the childrens’ parents or the school authorities. As we have pointed out from her own testimony, she explained to her class that the material “could not be kept, but would have to be returned to me at the end of the day and destroyed.” She had “told the children at the beginning that this could not go out of the room” because it was something “that is very shocking to people.”
*1118 Obviously this was no lesson plan of “sound educational approach” as concluded by defendant’s witnesses; nor was it so considered by defendant. It was a clandestine effort to have a filthy forbidden discussion known by her to be unacceptable to the school authorities, the children’s parents, and even to some of the children. No other reasonable inference is derivable from the careful instructions to return the papers at the day’s end so that the evidence might be “destroyed.”
Nor do I find “an extenuating circumstance indicating contriteness,” because defendant “now feels that she may have made a mistake in judgment.” Such feelings are common in persons finding themselves in trouble. And no contrition whatever appears in her present insistent claims that her conduct was proper and permitted under her “academic freedom.”
I must agree with my colleague that it is regrettable that the trial court found it necessary to “brand” defendant with “evident unfitness for service” in her chosen profession. But as was the trial court, we are bound to apply the law. We should not allow feelings of compassion to legitimize her conduct, and thus create new and bad law.
Paraphrasing the conclusion of Justice Sullivan, dissenting in Morrison (1 Cal.3d at p. 250 ): I cannot say that “there is no rational connection between [defendant’s acts] and [her] fitness to teach. As the trial court properly determined, the [District’s] findings were supported by the weight of the evidence and its determination of the issues was supported by its findings. The [District], therefore, did not abuse its discretion. (Code Civ. Proc., § 1094.5, subd. (c).) We have no right to upset its action.” I would affirm the judgment of the trial court.
Respondent’s petition for a hearing by the Supreme Court was denied August 2, 1972. McCcmb, J., was of the opinion that the petition should be granted.
"We hold that obscenity is not within the area of constitutionally protected speech or press.” (Roth v. United States, 354 U.S. 476, 485 [ 1 L.Ed.2d 1498, 1507 , 77 S.Ct. 1304 ].)
The Morrison court also spares the reader the details of Morrison’s admitted act. It simply says (p. 218, fn. 4): “Neither sodomy (Pen. Code, § 286), oral copulation (Pen. Code, § 288a), public solicitation of lewd acts (Pen. Code, § 647, subd. (a)), loitering near public toilets (Pen. Code, § 647, subd. (d)), nor exhibitionism (Pen. Code, § 314) were involved.”