Petition for Writ of Certiorari — Howard Gensler, Petitioner v. South Orange County Community College District Board of Trustees, et al.
Supreme Court briefApr 14, 2026
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31 n tlje Supreme Court of tlje Slniteb States
HOWARD GENSLER,
Petitioner,
v.
BOARD OF TRUSTEES OF THE SOUTH
ORANGE COUNTY COMMUNITY COLLEGE
DISTRICT,
Respondent(s).
On Petition for Writ of Certiorari
to the Court of Appeal of California
Fourth Appellate District, Division Three
appendix
Howard Gensler
12 Merrimac
Irvine, CA 92620
batcomm57@gmail.com
(951) 640-4590
Pro Se Petitioner
March MMXXVI________________________________
United States Commercial Printing Company • www.uscpc.us • (202) 866-8558
App-i
APPENDIX
TABLE OF CONTENTS
Appendix A
Opinion [not precedential] Court of Ap
peal of California for the Fourth Appel
late District, Howard Gensler v. Board of
Trustees of the South Orange County
Community College District, et al.,
No. G064067 (Nov. 3, 2025)........................App-1
Appendix B
Order Denying Petition for Writ of Man
date, Superior Court of California for the
County of Orange, Howard Gensler v.
Board of Trustees of the South Orange
County Community College District and
Orange County Community College Dis
trict,
No. 30-2021-01177691 (Feb. 27, 2024) .. App-42
Appendix C
Legal Conclusions, Office of Administra
tive Hearings for the California Depart
ment of General Services, In the case of
the Termination of Howard Gensler,
No. 2019040965 (Oct. 14, 2020)
App-62
App-ii
Appendix D
Order [discretionary review denied], Su
preme Court of California, Howard
Gensler v. Board of Trustees of the South
Orange County Community College Dis
trict, et al.
No. S294180 (Jan. 14, 2026)
App-92
App-1
Appendix A
[Filed: Nov. 3, 2025]
NOT TO BE PUBLISHED IN
OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), pro
hibits courts and parties from citing or relying
on opinions not certified for publication or or
dered 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 This opinion has not been certified
for publication or ordered published for purposes of rule 8.1115.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 THREE
HOWARD GENSLER,
Plaintiff and Appel
lant,
v.
BOARD OF TRUSTEES
OF THE SOUTH OR
ANGE COUNTY COM
MUNITY COLLEGE
DISTRICT et al.,
Defendants and Respondents.
G064067
(Super. Ct. No. 302021-01177691)
OPINION
App-2
Appeal from a judgment of the Superior Court of Or
ange County, Kimberly A. Knill, Judge. Affirmed.
Howard Gensler, in pro. per., for Plaintiff and Ap
pellant.
Walsh & Associates, Dennis J. Walsh and Wendy K.
Marcus for Defendants and Respondents.
Howard Gensler appeals from a judgment entered
after the trial court denied his petition for writ of man
date. In 2019, the Board of Trustees of the South Or
ange County Community College District (Board) and
the South Orange County Community College District
(District) (collectively, respondents) terminated Gensler’s employment as a tenured faculty member at Sad
dleback College. On appeal, Gensler challenges the
termination decision, arguing: (1) respondents acted
in excess of their jurisdiction when the District dis
missed Gensler without conducting a performance
evaluation; (2) the administrative law judge (ALJ)
erred by finding Gensler was evidently unfit for ser
vice under Education Code section 87732, subdivision
(d) (all undesignated statutory references are to this
code), and the court did not conduct the required judi
cial review; (3) the ALJ erred by finding Gensler “‘per
sistently violated, or refused to obey . . . reasonable
regulations’” under section 87732, subdivision (f), and
the court did not perform the required judicial review;
(4) the District and the ALJ contravened Gensler’s
First Amendment rights and academic freedom, and
the court failed to conduct the required judicial
App-3
review; and (5) respondents’ actions and the adminis
trative proceedings were biased and unfair.1
We affirm. We conclude respondents substantially
complied with the evaluation requirement in section
87671 and in the District’s master agreement with the
faculty association. We decline to address any argu
ments the ALJ erred because, on appeal, we review
only the trial court’s findings. (Shenouda v. Veterinary
Medical Bd. (2018) 27 Cal.App.5th 500, 512.)
We determine the court performed the proper judicial
review of the ALJ’s findings under section 87732, sub
divisions (d) and (f). We also find Gensler fails to es
tablish a First Amendment violation and to show how
respondents or administrative proceedings were bi
ased and unfair.
FACTUAL AND PROCEDURAL BACKGROUND
I.
Employment Termination and Administrative
Proceedings
Gensler started working for the District as a regular
academic employee in January 2003, and was a fac
ulty member at Saddleback College during the, rele
vant time periods. He has undergraduate degrees
from the University of California, Irvine, in five disci
plines; a master of public policy and a juris doctor from
the University of California, Berkeley; and a master
of arts and doctor of philosophy in economics from the
University of California, Irvine. He has been an aca
demic for nearly his entire career. He has a California
1 For ease of reading, we have omitted some formatting (such
as boldface, underlining, or capitalization) from quoted material
found in the record and briefs.
App-4
community college teaching credential in various sub
ject matters, including economics, law, social science,
public services and administration, and government.
A. Employment Termination
In December 2018, the District put Gensler on ad
ministrative leave and notified him of its intent to ter
minate his employment. In January 2019, Gensler at
tended a Skelly hearing, conducted by Dr. Elliot Stern,
who had become president of Saddleback College only
two days before.2 After considering Gensler’s evi
dence, Stern affirmed the termination decision.
On January 31, 2019, Stern signed the statement of
charges and recommendation for termination. On the
same day, Dr. Kathleen Burke, the District’s chancel
lor, signed a concurrence. In February 2019, the Dis
trict sent these documents, along with Gensler’s latest
performance evaluation covering the period between
October 17, 2012, and November 2, 2015, to the Board.
In February 2019, the Board voted to give notice to
Gensler the District would terminate his employment
30 days from the service of the notice unless he asked
for a hearing. After receiving the notice, Gensler re
quested a hearing.
In June 2019, Stern filed a 25-page accusation with
42 exhibits in support, alleging two grounds for dis
missal: (1) “[e]vident unfitness for service” (§ 87732,
subd. (d)), and (2) “[p]ersistent violation of, or refusal
to obey, the school laws of the state or reasonable reg
ulations prescribed for the government of the commu
nity colleges by the board of governors or by the gov
erning board of the community college district
2 Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194.
App-5
employing him or her” (§ 87732, subd. (f)). The accu
sation alleges multiple instances of misconduct. The
Board certified the matter to the Office of Administra
tive Hearings for the appointment of an ALJ under
section 87678.
B. Administrative Hearing and Decision
In February 2020, the ALJ held a 10-day hearing on
the matter. The ALJ received testimonial and docu
mentary evidence and the parties’ arguments.
In October 2020, the ALJ issued a 137-page deci
sion, affirming the District’s decision to terminate
Gensler’s employment. The ALJ found, “Cause exists
to dismiss [Gensler] pursuant to [s]ection 87732,
subdivisions (d) and (f). The [District's decision to dis
miss [Gensler] from employment is reasonable and
supported by a preponderance of the evidence.”
1. Section 87732, Subdivision (f)
The ALJ first discussed how Gensler persistently
violated or refused to obey policies and regulations un
der section 87732, subdivision (I). The relevant policy
and regulation were: board policy 4000.5 (‘“Harass
ment and Discrimination Prevention and Com
plaints’”) and administrative regulation 4000.5 (‘“Har
assment and Discrimination Prevention and Com
plaints Procedures’”). The ALJ explained board policy
4000.5 “reflects the [District's commitment ‘to provid
ing an academic and work environment that respects
the dignity of individuals and groups.’ The policy pro
hibits harassment and discrimination based on any le
gally protected characteristic, including ‘race, color,
ancestry, national origin, physical disability, mental
disability, medical condition, marital status, sex,
App-6
gender, or the perception that a person has one or
more of the foregoing characteristics.’ The policy ap
plies to any aspect of the academic environment, in
cluding classroom conditions, grades, and participa
tion in any community college activity. The policy re
quires the [c]hancellor to adopt regulations pursuant
to the policy.”
The ALJ explained administrative regulation
4000.5 “provides specific definitions and complaint
procedures for harassment and discrimination. Like
the board policy, the regulations prohibit harassment
based on a protected characteristic. It provides addi
tional guidance on gender-based harassment and
states it ‘does not necessarily involve conduct that is
sexual. Any hostile or offensive conduct based on gen
der can constitute prohibited harassment.’ [Citation.]
Forms of prohibited harassment for all categories in
clude, but are not limited to the following:
“1. Verbal: HI] Inappropriate or offensive
remarks, slurs, jokes or innuendoes
based on a person’s race, gender, sexual
orientation, or other protected status.
This may include, but is not limited to,
inappropriate comments regarding an
individual’s body, physical appearance,
attire, sexual prowess, marital status, or
sexual orientation; unwelcome flirting or
propositions; demands for sexual favors;
verbal abuse, threats or intimidation; or
sexist, patronizing or ridiculing state
ments that convey derogatory attitudes
based on gender, race, nationality,
App-7
sexual orientation or other protected sta
tus. m... [|]
“4. Environmental: [T|] A hostile aca
demic or work environment may exist
where it is permeated by sexual innu
endo; insults or abusive comments di
rected at an individual or group based on
gender, race, nationality, sexual orienta
tion or other protected status; or gratui
tous comments regarding gender, race,
sexual orientation, or other protected
statuses that are not relevant to the sub
ject matter of the class or activities on
the job. A hostile environment can arise
from: ffl] an unwarranted focus on sexual
topics or sexually suggestive statements
in the classroom or work environment;
ffi] an unwarranted focus on, or stereo
typing of particular racial or ethnic
groups, sexual orientations, genders, or
other protected statuses [.] An environ
ment may be hostile toward anyone who
merely witnesses unlawful harassment
in their immediate surroundings, alt
hough the conduct is directed at others.
The determination of whether an envi
ronment is hostile is based on the totality
of the circumstances, including such fac
tors as the frequency of the conduct, the
severity of the conduct, whether the con
duct is humiliating or physically threat
ening, and whether the conduct
App-8
unreasonably interferes with an individ
ual’s learning or work activities.”
Although the ALJ rejected certain allegations by
the District, the ALJ found Gensler made the follow
ing comments during a Fall 2017 American Govern
ment class: “[Gensler] 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 weap
ons to Iraq because Iranians were ‘jerks’ and called
Iranians evil.” The ALJ determined: “[T]he [District
established that the story about Iranian women dress
ing like prostitutes violated [board policy] 4000.5 and
[administrative regulation] 4000.5. The reference to
‘hookers’ constituted ‘inappropriate or offensive’ re
marks based on gender and national origin.”
The ALJ also found Gensler made the following
comments during a Spring 2018 American Govern
ment class: “[Gensler] told a story about a former stu
dent in which he described her scant attire and breast
size; repeatedly used the word ‘tard’ to describe him
self and students; referred to wives as ‘bitches’; wore
a jacket containing Playboy insignias to class; and
made a crude reference to Ariana Huffington perform
ing oral sex in order to achieve political recognition.”
The ALJ concluded: “These comments cumulatively
constituted hostile or offensive conduct in violation of
[board policy] 4000.5 and [administrative regulation]
4000.5, as inappropriate or offensive remarks, jokes or
innuendoes based on a person’s gender or other pro
tected status. They also constituted inappropriate
comments regarding an individual’s body, physical
appearance, attire, and/orQ were patronizing or
App-9
ridiculing statements that conveyed derogatory atti
tudes based on a protected status. The gratuitous
comments created a hostile academic environment
that interfered with the learning or work activities of
several students.”
After finding the violation of board policy 4000.5
and administrative regulation 4000.5 evidenced “un
fitness to teach” based on the factors in Morrison v.
State Board of Education (1969) 1 Cal.3d 214, 229,3
the ALJ considered whether Gensler’s refusal to fol
low regulations was persistent. The ALJ concluded:
“Although the evidence established that [Gensler] vi
olated the harassment/discrimination rules in the
course of a single school year, the violations were per
meated with an attitude of continued insubordination
or willful disobedience to the [D]istrict’s directives. As
such, the continuous use of inappropriate language,
that violated [District harassment policies was per
sistent.”
3 “In determining whether the teacher’s conduct thus indicates
unfitness to teach the board may consider such matters as 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 teach
ing certificate held by the party involved, the extenuating or ag
gravating circumstances, if any, surrounding the conduct, the
praiseworthiness or blameworthiness of the motives resulting in
the conduct, the likelihood of the recurrence of the questioned
conduct, and 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.” (Morrison v. State
Board of Education, supra, 1 Cal.3d at p. 229, fns. omitted.)
App-10
2. Section 87732, Subdivision (d)
The ALJ also concluded Gensler was evidently un
fit for service under section 87732, subdivision (d).
The ALJ applied the Morrison factors and found Gens
ler was unfit to teach. The ALJ then considered
whether the unfitness was “‘evident.’” The ALJ ex
plained: “The single most important consideration is
that the [District provided [Gensler] with multiple
opportunities to remediate his behavior. [Gensler] ob
stinately refused, believing that all the complaints
against him were meritless. [Gensler] even ignored
the simple directive to refrain from using profanity
with students because he did not believe the [District
had the authority to issue him such a directive.”
The ALJ elaborated: despite Gensler’s several “pos
itive attributes,” he nevertheless “expressed no re
morse or acceptance of responsibility for his conduct.
He maintains the erroneous position that in order to
be effective, he needs to maintain the conversational,
and often crude, language that one might overhear in
a student dining room or on the sports field. The fact
is, if [Gensler] elected to do so, he could engage his
students with the material, maintain participation,
and exhibit the professionalism expected of a profes
sor with [Gensler]’s academic pedigree. There are
plenty of examples of educators across many different
media platforms who do just that. [Gensler]’s belief
that the binary decision of being ‘off-the-wall Jerry
Springer’ or ‘boring textbook-reading Mr. Rogers’ is
simply a fallacy. Finally, and most concerning, is the
way [Gensler] dealt with students he deemed to be a
problem. [Gensler] might be correct that most com
plaints were from ‘D’ or ‘F’ students. But the
App-11
responsibility of a college professor is for all stu
dents—not just the ones who do well or personally re
late to [Gensler], [Gensler]’s often derisive and dis
missive attitude to those who questioned his authority
highlight the fact that he lacks the temperament to be
in a community college classroom. Accordingly, over
whelming evidence established that [Gensler] does
not have the temperament to comport his behavior to
the professional standards expected by the [District
and is thus evidently unfit for service.”
3. The ALJ Rejected Gensler’s Defenses
Notwithstanding Gensler’s defenses, the ALJ found
the District provided Gensler a timely evaluation un
der section 87663 and therefore the District complied
with section 87661 when it terminated Gensler’s em
ployment. The ALJ determined, even if the District
did not strictly comply with section 87661 or the Dis
trict’s master agreement with the faculty association,
the doctrine of substantial compliance applied to the
instructor evaluation requirements. Additionally, the
ALJ rejected Gensler’s argument the District violated
his First Amendment rights.
II.
Petition for Writ of Mandate
“In January 2021, Gensler filed a [petition for writ
of mandate], naming the Board and the District as re
spondents, in which he sought the issuance of a writ
‘to vacate the termination decision of [the ALJ] and
order the reinstatement of Gensler with back pay.’
The petition asserted six causes of action.
“In the first cause of action, Gensler asserted re
spondents provided defective notice and lacked
App-12
jurisdiction, [because they violated:] sections 87671,
subdivision (a) (failure to conduct a current evalua
tion) [;] 87663, subdivision (c) (failure to include a peer
review)[;] 87663, subdivision (g) (failure to include
student evaluations)[;] 87031, subdivision (b)(1) (fail
ure to allow Gensler to provide written comments to
derogatory material placed in his personnel file which
was used in the termination process) [;] 87680 (consid
ering and relying upon evidence older than four
years)[;] and 87672 (failure to provide notice of the
complete and precise decision of the governing board
and the reasons for the termination).
“In the second cause of action in the petition, Gens
ler asserted the ALJ erred by concluding Gensler had
engaged in unprofessional conduct justifying the ter
mination of his employment.
“In the third cause of action, Gensler asserted the
ALJ erred by concluding Gensler’s statements were
not protected by the First Amendment to the United
States Constitution and his right to academic free
dom.
“In the fourth cause of action, Gensler asserted he
was deprived of a fair trial. He asserted the ALJ
abused his discretion by precluding opening state
ments and closing argument, committing evidentiary
error, relying on cases the Board had not cited in its
briefing, ignoring pretrial motions and the Board’s al
leged discovery abuses, and denying Gensler’s re
quests for sanctions and continuances.
“In the fifth and sixth causes of action, Gensler as
serted the ALJ’s findings of Gensler’s ‘“evident unfit
ness’” and ‘“persistent failure to follow rules,”’ respec
tively, should be reversed.
App-13
“In the petition’s prayer for relief, Gensler stated he
“respectfully prays that the court enter judgment
against [respondents as follows:
‘“1. For a [writ of mandate] to be issued under Code
of Civil Procedure section 1094.5 under seal of this
•court, ordering the Board ....
“‘a. to reinstate . . . Gensler as a full-time tenured
faculty member of Saddleback College[;] and
‘“b. to reimburse . . . Gensler for lost wages and ben
efits arising from this action[;]
“‘2. For . . . Gensler’s costs in this action, including
attorneys’ fees[;]
“‘and
‘“3. For such other relief as the court considers just
and proper.” (Some capitalization omitted.)
“Respondents filed an answer to the petition.”
(Gensler v. Bd. of Trustees of the South Orange County
Community College Dist. (Aug. 22, 2023, No.
G061503) [nonpub. opn.].)
III.
Trial Court’s December 2021 Order and Appeal
In December 2021, after considering the parties’ ev
idence and arguments, Judge Derek W. Hunt re
manded the matter to respondents to perform a peer
review evaluation. Gensler appealed, and a panel of
this appellate court held the order was not appealable.
(Gensler v. Board of Trustees of the South Orange
County Community College District, supra, G061503.)
App-14
IV.
Trial Court’s October 2023 and January 2024 Mi
nute Orders
In an October 2023 minute order, Judge Kimberly
A. Knill noted, during a status conference, both par
ties asserted no additional briefing was necessary and
that she would not remand for a peer review.4 In a
January 2024 minute order, Judge Knill took the mat
ter under submission, explaining no'argument was re
quired.
V.
Trial Court’s Denial of Petition for Writ of Man
date
In February 2024, the trial court denied the petition
for writ of mandate. While exercising its independent
judgment on the evidence, the court concluded the fol
lowing. Respondents did not act in excess of their ju
risdiction because the ALJ properly found respond
ents substantially complied with the evaluation re
quirement in section 87671. The ALJ did not abuse his
discretion by considering Gensler’s unprofessional
conduct in reviewing the charge for evident unfitness
to teach. The ALJ did not abuse his discretion by re
jecting Gensler’s First Amendment and academic free
dom arguments. Gensler had a fair trial before the
4 In April 2023, Judge Knill was assigned to the present case,
due to the retirement of Judge Hunt. As the prior judge was un
available, Judge Knill was able to reconsider Judge Hunt’s prior
ruling. (See In re Marriage of Oliverez (2015) 238 Cal.App.4th
1242, 1247 [“A trial court’s discretion to reconsider another
judge’s prior ruling is necessarily narrow and usually only appro
priate when the prior judge is unavailable”].)
App-15
ALJ. The ALJ did not abuse his discretion by finding
Gensler was evidently unfit for service under section
87732, subdivision (d) and Gensler persistently failed
to follow the rules under section 87732, subdivision (f).
The court entered judgment in favor of respondents.
Gensler timely appealed.
DISCUSSION
I.
Governing Statutory Scheme
“The terms and conditions of employment for com
munity college employees are governed by a compre
hensive statutory scheme set forth in the Education
Code. (§ 87660 et seq. [governing ‘the evaluation of,
the dismissal of, and the imposition of penalties on,
community college faculty’].) Contract or regular em
ployees ‘may be dismissed or penalized for one or more
of the grounds set forth in Section 87732.’ (§ 87667.)
‘A “regular” employee is . . . one who has achieved ten
ure. “Contract” status is the first step toward tenure.’
[Citation.] Section 87732 provides multiple independ
ent bases upon which an employer may take action
against an employee.” (Ricasa u. Office of Administra
tive Hearings (2018) 31 Cal.App.5th 262, 272
(Ricasa).) The relevant bases here are: “[e]vident un
fitness for service” (§ 87732, subd. (d)) and “[persis
tent violation of, or refusal to obey, the school laws of
the state or reasonable regulations prescribed for the
government of the community colleges by the board of
governors or by the governing board of the community
college district employing him or her” (Id., subd. (f)).
“The governing board determines whether an em
ployee is to be dismissed or penalized and whether the
App-16
dismissal or penalty shall be imposed immediately or
postponed. (§ 87669.) The employee ‘may be dismissed
or penalized if one or more of the grounds set forth in
Section 87732 are present and the following are satis
fied: H] (a) The employee has been evaluated in ac
cordance with standards and procedures established
in accordance with the provisions of this article, ffl] (b)
The district governing board has received all state
ments of evaluation which considered the events for
which dismissal or penalties may be imposed, ffl] (c)
The district governing board has received recommen
dations of the superintendent of the district and, if the
employee is working for a community college, the rec
ommendations of the president of that community col
lege. [T[] (d) The district governing board has consid
ered the statements of evaluation and the recommen
dations in a lawful meeting of the board.’ (§ 87671.)
“‘If a governing board decides it intends to dismiss
or penalize a contract or regular employee, it shall de
liver a written statement, duly signed and verified, to
the employee setting forth the complete and precise
decision of the governing board and the reasons there
for.’ (§ 87672.) The employee then has 30 days to ob
ject to the governing board’s decision. (§ 87673.)
“If the parties do not agree to an arbitrator (§
87674), then the governing board must certify the
matter to the [Office of Administrative Hearings] (§
87678). An ALJ conducts proceedings ‘in accordance
with Chapter 5 (commencing with Section 11500) of
Part 1 of Division 3 of Title 2 of the Government Code.’
(§ 87679.) ‘The written notice delivered to the em
ployee pursuant to Section 87672 shall be deemed an
accusation. The written objection of the employee
App-17
delivered pursuant to Section 87673 shall be deemed
the notice of defense.’ (§ 87679.)
“The ALJ must determine whether cause exists to
dismiss or penalize the employee and whether to dis
miss or penalize the employee. (§ 87680.) The govern
ing board or the employee may petition the court for
review of the ALJ’s decision. (§ 87682.)” (Ricasa, su
pra, 31 Cal.App.5th at pp. 272-273.)
II.
Standard of Review
A. Trial Court’s Standard of Review of the Adminis
trative Decision
A trial court exercises its independent judgment in
reviewing an administrative decision. (§ 87682.) “In
exercising its independent judgment, a trial court
must afford a strong presumption of correctness con
cerning the administrative findings, and the party
challenging the administrative decision bears the bur
den of convincing the court that the administrative
findings are contrary to the weight of the evidence.”
(Fukuda v. City of Angels (1999) 20 Cal.4th 805, 817.)
“[T]he presumption provides the trial court with a
starting point for review—but it is only a presump
tion, and may be overcome. Because the trial court ul
timately must exercise its own independent judgment,
that court is free to substitute its own findings after
first giving due respect to the agency’s findings.” (Id.
at p. 818.)
App-18
B. Standard of Review on Appeal
On appeal, “[w]e review the trial court’s determina
tion under the substantial evidence test.”5 (Ricasa, su
pra, 31 Cal.App.5th at p. 282.) “Our focus is on the
trial court’s findings.” (Shenouda v. Veterinary Medi
cal Bd., supra, 27 Cal.App.5th at p. 512.) Therefore,
we do not consider any of Gensler’s arguments assert
ing the ALJ erred.
“[T]o the extent pure questions of law (e.g., juris
diction) were decided at the trial court upon undis
puted facts, a de novo standard will apply at the ap
pellate level.” (Anserv Ins. Services, Inc. v. Kelso
(2000) 83 Cal.App.4th 197, 204.) ‘““A challenge to the
procedural fairness of the administrative hearing is
reviewed de novo on appeal because the ultimate de
termination of procedural fairness amounts to a ques
tion of law.’”” (Boermeester v. Carry (2023) 15 Cal.5th
72, 85.)
m.
The District Substantially Complied with Sec
tion 87671
Gensler argues respondents acted in excess of their
jurisdiction because they were required to conduct a
performance evaluation before terminating Gensler’s
employment. “A ... regular employee may be dis
missed ... if one or more of the grounds set forth in
Section 87732 are present and” several criteria “are
satisfied,” including, inter alia: “The employee has
5 On appeal, Gensler presents no substantial evidence argu
ments. His appeal is focused on how the ALJ erred and how the
trial court did not conduct the proper judicial review of the ALJ’s
findings.
App-19
been evaluated in accordance with standards and pro
cedures established in accordance with the provisions
of this article.”6 (§ 87671, subd. (a).) Pursuant to these
standards and procedures, “[r]egular employees shall
be evaluated at least once in every three academic
years.” (§ 87663, subd. (a).) “Evaluations shall in
clude, but not be limited to, a peer review process.”
(Id., subd. (c).) “It is the intent of the Legislature that
faculty evaluation include, to the extent practicable,
student evaluation.” (Id., subd. (g).)
“[F]acuity evaluation procedures may be negotiated
as part of the collective bargaining process” (§ 87663,
subd. (e)), and “the evaluation shall be conducted in
accordance with the standards and procedures estab
lished by the rules and regulations of the governing
board of the employing district” (id., subd. (b)). The
master agreement here provides a somewhat different
evaluation cycle than section 87663, requiring the
District to start the evaluation process every three
years (rather than academic years): “1. The vice pres
ident or dean will initiate the tenured faculty evalua
tion process every three . . . years, ffl] 2. The evalua
tion process must be completed within one year of its
initiation, or the process must begin anew.”
Here, Gensler’s last evaluation covered the period
between October 17, 2012, and November 2, 2015. As
the master agreement requires the evaluation process
to be initiated every three years, his next evaluation
needed to be initiated no later than November 2, 2018.
6 ‘“Regular employee’ or ‘tenured employee’ means an em
ployee of a district who is employed in accordance with subdivi
sion (c) of Section 87608, subdivision (c) of Section 87608.5, or
Section 87609.” (§ 87661, subd. (d).)
App-20
Respondents do not represent they initiated the eval
uation process by then. The District therefore did not
adhere to the evaluation procedures outlined in the
master agreement and statute.
Nonetheless, we find respondents substantially
complied with the statute (and master agreement).
“The rules governing the doctrine of substantial com
pliance are well settled. [Citation.] As it is used in the
decisions of this state, the doctrine excuses literal
noncompliance only when there has been ‘actual com
pliance in respect to the substance essential to every
reasonable objective of the statute.’ [Citations.] Thus,
the doctrine gives effect to our preference for sub
stance over form, but it does not allow for an excuse to
literal noncompliance in every situation.” (Robertson
v. Health Net of California, Inc. (2005) 132
Cal.App.4th 1419, 1430.)
Miller v. Chico Unified School Dist. (1979) 24 Cal.3d
703 (Miller) is instructive. In early 1976, the plaintiff,
a junior high school principal, received notice of his
reassignment to a teaching position. (Id. at p. 709.) He
sought reinstatement to his position as principal, ar
guing, inter alia, the school board failed to comply
with section 44664 (Miller, at p. 706), which is analo
gous to section 87663. “Section 44664, a provision of
the Stull Act (former §§ 13485-13490, now §§ 44660—
44665), provides: ‘Evaluation and assessment of the
performance of each certificated employee shall be
made on a continuing basis, at least once each school
year for probationary personnel, and at least every
other year for personnel with permanent status. The
evaluation shall include recommendations, if neces
sary, as to areas of improvement in the performance
of the employee. In the event an employee is not
App-21
performing his duties in a satisfactory manner accord
ing to the standards prescribed by the governing
board, the employing authority shall notify the em
ployee in writing of such fact and describe such unsat
isfactory performance. The employing authority shall
thereafter confer with the employee making specific
recommendations as to areas of improvement in the
employee’s performance and endeavor to assist him in
such performance.’” (Id. at p. 716.) The school board
also had guidelines providing “for annual evaluations
of supervisory personnel.” (Id. at p. 717.)
While the trial court in Miller found the school
board violated section 44664 by neglecting to notify
the plaintiff in writing that his performance was un
satisfactory, the California Supreme Court held “the
school board substantially complied with the Stull
Act’s mandate that the board fix performance guide
lines for its certificated personnel, evaluate plaintiff
in light of such guidelines, inform plaintiff of the re
sults of any evaluation, and suggest to plaintiff ways
to improve his performance.” (Miller, supra, 24 Cal.3d
at p. 717.) The Supreme Court explained the school
board had evaluated the plaintiff annually in 1973,
1974, and 1975 in accordance with the guidelines.
(Ibid.) In the 1974 evaluation, the school board sug
gested areas of improvement. (Ibid.) In April 1975, the
school board also informed the plaintiff that his per
formance was a concern and reiterated suggestions for
improvement. (Ibid.) In the June 1975 evaluation, the
school board provided written notice of plaintiff s un
satisfactory conduct and gave his supervisors an op
portunity to recommend improvements. (Ibid.) The
school board scheduled an evaluation for the 1975 to
1976 school year, but the plaintiff refused to
App-22
participate. (Ibid.) Nevertheless, the school board met
with him at least twice and suggested strategies to im
prove. (Ibid.) Thus, the “plaintiff knew of the board’s
close attention to his performance and of specific ways
in which he could alleviate their concerns.” (Ibid.)
The Supreme Court rejected the trial court’s “overly
restrictive interpretation of the requirements of sec
tion 44664.” (Miller, supra, 24 Cal.3d at p. 717.) The
Supreme Court considered the purpose of section
44664 and determined: “The obvious objective of the
Legislature was to protect the individual employee, in
this case, the principal of a high school, against arbi
trary action by the institution, here the school board,
in order to preserve the individual’s rights against
their improper severance. The individual would be
helpless against the institution’s wrongful reassign
ing him to an inferior position unless he had the op
portunity to know, and if possible, to counter the rea
sons for it. At the same time if the trial court in the
present case should find that the board in any event,
even in the absence of unproven accusations against
the principal’s conduct, would still have reassigned
him, for its own good reasons, the principal cannot
justly complain.” (Id. at p. 718.)
Here, as the trial court found, respondents gave
Gensler several notices of his unsatisfactory perfor
mance. First, in July 2016, the District gave Gensler
a “90-Day Notice of Unprofessional Conduct and/or
Unsatisfactory Performance—Notice to Correct Defi
ciencies.” The notice cited administrative regulation
4000.5, inter alia. It informed Gensler regarding un
professional and unsatisfactory performance due to
“threatening and derogatory comments to [a] stu
dent,” who was a military veteran, and “disparaging
App-23
remarks based on students’ religious views.” The Dis
trict issued the following directive to assist Gensler
“in overcoming these deficiencies: “A. You will imme
diately stop your unprofessional conduct, ffl] B. You
will treat all students with respect, dignity, and civil
ity. ffi] C. You will neither retaliate against nor con
front students or employees concerning the aforemen
tioned complaints. [T|] D. You will attend anti-discrim
ination and harassment training of at least two hours
to be provided by or approved by the District at a fu
ture date, ffl] E. You will adhere to all District policies
and regulations referred to in this notice, ffl] F. You
will establish a classroom environment conducive to
learning; model effective critical thinking by being
open to differences of opinion; invite students to think
independently; stimulate your students’ interest and
desire to learn; provide a positive learning environ
ment for all student populations; and demonstrate
sensitivity in working with students and employees
with diverse backgrounds and needs.” The District
warned: “Your performance will be monitored each
week to evaluate whether you have improved with re
spect to the problems outlined in this notice. Should
you continue to demonstrate the types of behavior dis
cussed in this notice, you will be subject to further dis
ciplinary action, up to and including dismissal from
employment.”
Second, in October 2016, Dean Cadence Wynter met
with Gensler regarding “an informal student com
plaint” and memorialized the meeting in a memoran
dum to Gensler. In the memorandum, Wynter wrote
the complainant alleged Gensler “demean [ed] and
use[ed] derogatory comments throughout [his] class
sessions.” Wynter also told Gensler he had
App-24
embarrassed a student by admonishing her in front of
the class for incorrectly writing her name. Gensler re
plied by stating he “knew who the student was, that
she was ‘Chinese’ and that she was ‘hyper sensitive
and pampered.’” Wynter advised: “Calling the student
‘pampered’ is derogatory and subjective. While I know
this is not an isolated incident, I expect it to be the
last one. Effective immediately, you are to treat stu
dents with respect and not [publicly] castigate them.
More importantly, you are not to make assumptions
about students based on their national origin.”
Third, in September 2017, Denise Whittaker, in
terim president of Saddleback College, met with
Gensler, after the Board denied an appeal of a dis
crimination and harassment claim against him. She
memorialized the meeting in a memorandum to Gens
ler. She wrote the Board wanted to ensure Gensler
“understood the seriousness of [the] situation,” and
Whittaker offered to discuss it with him. Whittaker
warned Gensler: “I am concerned that if another com
plaint against you occurs which results in yet another
finding of unprofessional conduct (even if the evidence
does not rise to a level of discriminatory behavior), I
am concerned that the District would have no choice
but to take disciplinary action, up to and including
termination, against you.” She gave him a copy of sec
tion 87732. Whittaker recorded: “After much discus
sion, you assured me that you understand that I was
App-25
alerting you to potential future action if student com
plaints result in findings of unprofessional conduct.”7
This history shows Gensler knew respondents were
monitoring his performance, particularly his insensi
tive and inappropriate language in the classroom. Re
spondents warned him at least a couple of times he
could face disciplinary action if another complaint oc
curred and provided opportunities to address his con
duct. Here, as in Miller, supra, 24 Cal.3d at page 718,
“[t]he obvious objective of the Legislature was to pro
tect the individual employee . . . against arbitrary ac
tion by the institution ... in order to preserve the in
dividual’s rights against their improper severance.”
Gensler cannot assert the charges surprised him or
respondents failed to give him an opportunity to fix
his problematic conduct. It is not reasonably possible
Gensler would have received a more favorable out
come had the District performed an evaluation by No
vember 2018.8
7 We also note, in Gensler’s 2012 to 2015 evaluation, which he
signed in December 2015, he was “advised to be more thoughtful
about some of his public comments to students that can and have
[led] to student complaints.”
8 We note the issue of substantial compliance was properly be
fore the trial court. The District raised the issue, citing Miller, in
its posthearing briefs before the ALJ, and the ALJ addressed the
issue in the administrative decision. Contrary to Gensler’s asser
tions, the court did not concoct its own substantial compliance
theory. Respondents argued in the court the doctrine of substan
tial compliance applied, citing Miller. In its order, the court drew
from Miller for its substantial compliance analysis. Gensler had
opportunities to address the doctrine of substantial compliance,
including here before us.
App-26
IV.
The Trial Court Conducted the Proper Judicial
Review of the ALJ’s Findings Under Section
87732, Subdivision (d)
Gensler argues the trial court failed to conduct a
proper judicial review of the ALJ’s finding that Gens
ler was evidently unfit for service under section
87732, subdivision (d). He first asserts the court pro
vided a “list of distorted allegations, including several
even [the ALJ] had rejected, without citation to any
supporting evidence.” Gensler suggests this list mis
represents the ALJ’s findings. But as he recognizes, it
is merely a list of allegations, not findings. Even if the
specified allegations are “distorted,” the purported
distortion did not impact the court’s analysis of the
ALJ’s findings.
Gensler next asserts: “There is no acknowledge
ment that Gensler had contested the allegations in the
bullet list, or that [the ALJ] had rejected several as
either false or improper attempts to punish acceptable
speech, much less any attempt to address and resolve
the conflicting evidence. There is not a single citation
to the hearing transcripts to support [the trial court]’s
statements, any credibility determinations, or factual
findings.” Gensler does not cite any legal authority re
quiring the trial court to include such information in
its order. We therefore deem this argument forfeited.
(See Pinter-Brown v. Regents of University of Califor
nia (2020) 48 Cal.App.5th 55, 95 (Pinter-Brown)
[“When legal argument is not supported by. citation to
legal authority on a particular point, ‘we may treat the
point as forfeited and pass it without consideration’”].)
App-27
Gensler also contends the trial court failed to review
the evidence because the court’s order lacks citations
to the record and provides a list of “distorted and disproven allegations.” But these do not necessarily indi
cate the court failed to consider the evidence. Some
thing more would be needed. For example, in Ocheltree v. Gourley (2002) 102 Cal.App.4th 1013, 10171018, a case cited by Gensler, it was apparent the
court did not review the administrative record, be
cause it made its decision on a petition for writ of man
date before the administrative record was prepared.
The trial court here reviewed the ALJ’s findings
and, after exercising its independent judgment, found
the ALJ did not err. The court considered whether the
ALJ properly evaluated the Morrison factors and the
ALJ’s examination of whether Gensler’s unfitness was
evident. Nothing in the record shows the court im
properly reviewed the ALJ’s findings pursuant to sec
tion 87732, subdivision (d).
V.
The Trial Court Conducted the Proper Judicial
Review of the ALJ’s Findings Under Section
87732, Subdivision (f)
Gensler argues the trial court failed to perform a
proper judicial review of the ALJ’s finding that Gens
ler persistently refused to follow the rules under sec
tion 87732, subdivision (f). He asserts: “A proper re
view would have (1) construed the District’s regula
tion and identified its essential elements, (2) exam
ined the entire administrative record, including the
hearing testimony, to determine the facts, (3) identi
fied and resolved the factual disputes and explained
the bases for those determinations, and then (4)
App-28
ft
analyzed whether the factual findings satisfied the
criteria of the regulation.” Except for number “(2),”
Gensler does not cite any legal authority in support of
his assertions. We therefore deem them forfeited (see
Pinter-Brown, supra, 48 Cal.App.5th at p. 95), except
for number “(2),” which we discuss next.
In support of his contention the trial court failed to
consider all the evidence, he asserts the court’s order
did not include any citations to the hearing transcript,
nor did it acknowledge factual disputes or evidence in
his favor. But, as we explained ante, these do not nec
essarily show the court did not consider the evidence.
The trial court here acknowledged the ALJ’s find
ings and concluded: “The evidence reflects [Gensler]’s
conduct establishes a persistent violation of, or refusal
to obey the District rules.” The court also concluded:
“[Gensler] has not demonstrated the ALJ committed
legal error constituting an abuse of discretion, or that
the findings are not supported by the weight of the ev
idence.” These statements indicate the court consid
ered the evidence in rendering its decision and, after
reviewing the administrative' decision under the inde
pendent judgment test, it found the ALJ did not err.
VI.
Gensler’s Constitutional Arguments Fail
Gensler argues the District violated his First
Amendment rights, and the trial court did not conduct
the required judicial review of the administrative
App-29
decision.9 He also appears to argue administrative
regulation 4000.5 is unconstitutionally vague. We dis
agree.
A. Gensler Fails to Show Unconstitutional Vagueness
We begin by noting Gensler’s arguments on uncon
stitutional vagueness are somewhat ambiguous. In
his discussion of the First Amendment in his opening
brief, Gensler starts by stating general First Amend
ment principles and then asserts in a subheading:
‘Vague Regulations Addressing Sexual Harassment
And Racial Discrimination Are Not Valid Substitutes
For A Constitutional Language Policy.” He next sum
marizes Cohen v. San Bernardino Valley College (9th
Cir. 1996) 92 F.3d 968 (Cohen).
In Cohen, a tenured professor at a community col
lege taught an English class. (Cohen, supra, 92 F.3d
at p. 970.) A student, Ms. M., was offended with the
professor’s “repeated focus on topics of a sexual na
ture, his use of profanity and vulgarities, and by his
comments which she believed were directed intention
ally at her and other female students in a humiliating
and harassing manner.” (Ibid.) In this class, the pro
fessor held a “discussion on the issue of pornography
and played the ‘devil’s advocate’ by asserting
9 Gensler asserts the District violated his academic freedom.
But Gensler does not provide any substantive arguments.
‘“[W]here a point is merely asserted by [appellant] without any
[substantive] argument of or authority for its proposition, it is
deemed to be without foundation and requires no discussion.’ [Ci
tation.] ‘Issues do not have a life of their own: if they are not
raised or supported by [substantive] argument or citation to au
thority, we consider the issues’” forfeited. (Holden v. City of San
Diego (2019) 43 Cal.App.5th 404, 418.) We therefore consider this
argument forfeited.
App-30
controversial viewpoints.” (Ibid.) He disclosed “he
wrote for Hustler and Playboy magazines and he read
some articles out loud in class.” (Ibid.) He then as
signed his students to compose “essays defining por
nography.” (Ibid.) Ms. M. asked for a different assign
ment, but the professor refused. (Ibid.) She stopped
attending the class and failed it. (Ibid.) She filed a
complaint regarding the professor’s statements and
conduct asserting the professor sexually harassed her.
(Ibid.)
The community college had a new sexual harass
ment policy, providing: “Sexual harassment is defined
as unwelcome sexual advances, requests for sexual fa
vors, and other verbal, written, or physical conduct of
a sexual nature. [I]t includes, but is not limited to, cir
cumstances in which: ffl] 1. Submission to such con
duct is made explicitly or implicitly a term or condi
tion of a student’s academic standing or status,
2.
Such conduct has the purpose or effect of unreasona
bly interfering with an individual’s academic perfor
mance or creating an intimidating, hostile, or offen
sive learning environment. [^] 3. Submission to or re
jection of such conduct is used as the basis for aca
demic success or failure.” (Cohen, supra, 92 F.3d at
pp. 970-971.) The community college determined the
professor “engaged in sexual harassment which un
reasonably interfered with an individual’s academic
performance and created an intimidating, hostile, or
offensive learning environment,” and it imposed cer
tain disciplinary penalties. (Cohen, supra, 92 F.3d at
p. 971.)
The Ninth Circuit Court of Appeals held the com
munity college’s sexual harassment policy was uncon
stitutionally vague as applied to the professor.
App-31
(Cohen, supra, 92 F.3d at p. 972.) It explained: “There
are three objections to vague policies in the First
Amendment context. First, they trap the innocent by
not providing fair warning. Second, they impermissi
bly delegate basic policy matters to low level officials
for resolution on an ad hoc and subjective basis, with
the attendant dangers of arbitrary and discriminatory
application. Third, a vague policy discourages the ex
ercise of [F]irst [A]mendment freedoms.” (Ibid.) In Co
hen, the professor’s “speech did not fall within the core
region of sexual harassment as defined by the policy.
Instead, officials of the college, on an entirely ad hoc
basis, applied the policy’s nebulous outer reaches to
punish teaching methods that Cohen had used for
many years. Regardless of what the intentions of the
officials of the college may have been, the conse
quences of their actions can best be described as a le
galistic ambush. Cohen was simply without any notice
that the policy would be applied in such a way as to
punish his longstanding teaching style—a style
which, until the college imposed punishment upon Co
hen under the policy, had apparently been considered
pedagogically sound and within the bounds of teach
ing methodology permitted at the college.” (Ibid., cap
italization omitted.) Because the court held the policy
was unconstitutionally vague as applied to the profes
sor, it “decline [d] to define today the precise contours
of the protection the First Amendment provides the
classroom speech of college professors.” (Id. at
pp. 971-972.)
After summarizing Cohen in his opening brief,
Gensler asserts: “the District’s ‘hostile environment’
regulation requires that the District prove the exist
ence of numerous elements, including (1) a specific
App-32
victim, who must be (2) subjectively and (3) objectively
offended by conduct which (4) must permeate the class
and not be (5) related to the curriculum or (6) pro
tected by the First Amendment. As a harassment pol
icy, it may be reasonably detailed. However, it is not
intended to be a policy governing speech and it does
not acknowledge, or attempt to comply with, the con
stitutional strictures of such regulations.”
‘“[T]o demonstrate error, an appellant must supply
the reviewing court with some cogent argument sup
ported by legal analysis and citation to the record.’
[Citation.] ‘We are not obliged to make other argu
ments for [appellant] [citation], nor are we obliged to
speculate about which issues counsel intend to raise.’
[Citations.] We may and do ‘disregard conclusory ar
guments that are not supported by pertinent legal au
thority or fail to disclose the reasoning by which the
appellant reached the conclusions he wants us to
adopt.’” (Hernandez v. First Student, Inc. (2019) 37
Cal.App.5th 270, 277.)
Here, Gensler does not explain why the regulation
does not “attempt to comply with[] the constitutional
strictures of such regulations,” nor does he explicitly
connect his assertions to Cohen. His assertions do not
constitute a cognizable argument that the District vi
olated Gensler’s First Amendment rights. We there
fore deem these arguments forfeited. (See Hernandez
v. First Student, Inc., supra, 37 Cal.App.5th at p. 277.)
Nonetheless, elsewhere in his opening and reply
briefs, it appears Gensler is arguing the District’s har
assment policy in administrative regulation 4000.5 is
unconstitutionally vague, because it resembles the
language in the sexual harassment policy in Cohen. In
particular, Gensler points out both policies contain
App-33
language regarding how the offending conduct “unrea
sonably interfere [s]” with learning. (Cohen, supra, 92
F.3d at p. 971.)
‘“Vagueness doctrine is an outgrowth not of the
First Amendment, but of the [d]ue [p]rocess [c]lause
of the Fifth Amendment.’ [Citation.] ‘[T]he underlying
concern is the core due process requirement of ade
quate notice”’ (Wilson v. San Luis Obispo County
Democratic Central Com. (2009) 175 Cal.App.4th 489,
499.) “A law is unconstitutionally vague if it fails to
meet two basic requirements: (1) The regulations
must be sufficiently definite to provide fair notice of
the conduct proscribed; and (2) the regulations must
provide sufficiently definite standards of application
to prevent arbitrary and discriminatory enforcement.”
(Snatchko v. Westfield LLC (2010) 187 Cal.App.4th
469, 495.) “‘Only a reasonable degree of certainty is
required.’ [Citation.] If a reasonable and practical con
struction can be given, the law will not be held void
for uncertainty.” (Ibid.)
As the trial court found, unlike the policy in Cohen,
administrative regulation 4000.5 specifies in signifi
cant detail what conduct constitutes harassment. Ad
ministrative regulation 4000.5 defines prohibited ver
bal harassment: “Inappropriate or offensive remarks,
slurs, jokes or innuendoes based on a person’s race,
gender, sexual orientation, or other protected status.
This may include, but is not limited to, inappropriate
comments regarding an individual’s body, physical
appearance, attire, sexual prowess, marital status, or
sexual orientation; unwelcome flirting or propositions;
demands for sexual favors; verbal abuse, threats or in
timidation; or sexist, patronizing or ridiculing state
ments that convey derogatory attitudes based on
App-34
gender, race, nationality, sexual orientation or other
protected status.” In conjunction with the definitions
of prohibited harassment, administrative regulation
4000.5 also explains in sufficient detail what consti
tutes a hostile academic environment. It specifies a
hostile academic environment exists “where it is per
meated by sexual innuendo; insults or abusive com
ments directed at an individual or group based on gen
der, race nationality, sexual orientation or other pro
tected status; or gratuitous comments regarding gen
der, race, sexual orientation, or other protected sta
tuses that are not relevant to the subject matter of the
class or activities on the job.” And, unlike in Cohen,
supra, 92 F.3d at page 972, where the professor had
no notice the new sexual harassment policy “would be
applied in such a way as to punish his longstanding
teaching style,” Gensler received notice that adminis
trative regulation 4000.5 could apply to him in July
2016 and additional notices warning him of his con
duct. We therefore find Cohen inapplicable here.
B. Gensler Fails to Demonstrate How the Trial Court
Erred
Gensler next contends the trial court erred for sev
eral reasons. First, he asserts: “While [the court] cited
a small portion of the regulation [citation], [the court]
made no effort to identify the required elements, or
what evidence supposedly established the existence of
each element, or that no defenses applied.” Gensler
does not cite any legal authority in support. We there
fore consider this argument forfeited. (See PinterBrown, supra, 48 Cal.App.5th at p. 95.)
Second, Gensler argues the trial court’s distinguish
ing of Cohen from the present case (i.e., the District’s
App-35
regulation specified in greater detail proscribed con
duct compared with the policy in Cohen) “has no basis
in fact.” He claims, “Cohen does not provide the full
text of the San Bernardino Community College Dis
trict policy, so one cannot make the comparison.” This
argument is misguided. Nothing in Cohen suggests
the Cohen court did not set forth the entire sexual har
assment policy in its decision.
Third, Gensler contends: “[T]he issue of whether the
District’s regulation is more detailed than that in Co
hen is irrelevant. The issue is whether the District’s
regulation is sufficiently detailed to pass constitu
tional standards to be employed as a language policy.
[The trial court] does not address that issue. [The
court]’s statement that Gensler had not provided any
legal authority that a language policy is required is
demonstrably incorrect, as Gensler cited and dis
cussed Cohen in his trial brief.” This contention is mis
guided too. The relevant issue in Cohen was whether
the sexual harassment policy was unconstitutionally
vague. As the court correctly observed, Cohen does not
address language policies. Nor did Cohen address
whether the First Amendment protected the profes
sor’s speech. (Cohen, supra, 92 F.3d at p. 972.)
Fourth, Gensler argues the trial court misplaced its
reliance on Demers v. Austin (9th Cir. 2012) 746 F.3d
402 and Pickering v. Board of Education (1968) 391
U.S. 563, because these cases involved “out-of-classroom speech.” That distinction is unpersuasive.
Demers suggests the Pickering test applies to teach
ing: “We conclude that Garcetti [u. Ceballos (2006) 547
U.S. 410] does not—indeed, consistent with the First
Amendment, cannot—apply to teaching and academic
writing that are performed ‘pursuant to the official
App-36
duties’ of a teacher and professor. We hold that aca
demic employee speech not covered by Garcetti is pro
tected under the First Amendment, using the analysis
established in Pickering.”10 (Demers, at p. 412.)
C. Gensler Fails to Establish a First Amendment Vio
lation
Even if the trial court committed error, Gensler
does not offer any substantive arguments explaining
how the District violated the First Amendment. In
Gensler’s opening brief, under the heading regarding
First Amendment violations, he does not identify any
purported protected speech or conduct under the First
Amendment, except two: his statement concerning
Iranian women “‘dress [ing] like hookers’” and his com
ment regarding a student’s physical appearance and
attire during a jail tour. But he does not provide any
substantive argument with citation to authority. Ad
ditionally, in his reply brief, under the heading re
garding First Amendment violations, he asserts an
additional instance of purported protected conduct:
wearing a jacket with a Playboy logo. In support, he
cites his opening brief and Tinker u. Des Moines
School Dist. (1969) 393 U.S. 503, but he fails to
10 “The Pickering test has two parts. First, the employee must
show that his or her speech addressed ‘matters of public concern.’
[Citations.] Second, the employee’s interest ‘in commenting upon
matters of public concern’ must outweigh ‘the interest of the
State, as an employer, in promoting the efficiency of the public
services it performs through its employees.’” (Demers v. Austin,
supra, 746 F.3d at p. 412.)
App-37
explain how that authority applies here.11 We there
fore decline to address these arguments.12 (See Doe v.
McLaughlin (2022) 83 Cal.App.5th 640, 654.)
VII.
Gensler’s Bias and Fairness Arguments Are Una
vailing
Gensler presents several arguments regarding bias
and fairness. We address them in turn.
A. The Accusation Complied with Section 87672
Gensler argues the accusation failed to give fair no
tice and contains vague allegations. Aside from citing
the pertinent statute, section 87672, Gensler does not
cite any authorities, and we are unaware of any au
thorities addressing this question.
Section 87672 provides in pertinent part: “If a gov
erning board decides it intends to dismiss or penalize
a contract or regular employee, it shall deliver a
11 California Rules of Court, rule 8.204(a)(1)(B) requires every
brief to “[s]tate each point under a separate heading or subhead
ing summarizing the point, and support each point by argument
and, if possible, by citation of authority.” To the extent Gensler
believes he presented substantive First Amendment arguments
elsewhere in his briefs under other headings, we would disregard
such arguments and treat them as forfeited. (See Tsakopoulos
Investments, LLC v. County of Sacramento (2023) 95 Cal.App.5th
280, 310 [‘“Failure to provide proper headings forfeits issues that
may be discussed in the brief but are not clearly identified by a
heading’”].)
12 For the first time in his reply brief, Gensler argues the trial
court failed to conduct a First Amendment analysis on each indi
vidual statement. We consider this argument forfeited, as “we
will not consider matters raised for the first time in the reply
brief.” (Sachs v. Sachs (2020) 44 Cal.App.5th 59, 66.)
App-38
written statement, duly signed and verified, to the
employee setting forth the complete and precise deci
sion of the governing board and the reasons therefor.”
Here, the accusation was “complete and precise.” (§
87672.) It alleged Gensler “engaged in [e]vident
[u]nfitness for [d]uty and [p]ersistent violations of, or
refusal to obey, the school laws of the state or reason
able regulations prescribed for the government of the
community colleges by the governing board of the
[District] as set forth in . . . section 87732.” The accu
sation, which is 25 pages and contains 42 exhibits in
support, then spelled out in detail multiple alleged in
cidents in support, providing general dates and a sum
mary of the conduct. For example, one allegation
states: “In Fall 2017 and Spring 2018, Gensler told
his . . . students about having taken a prior group
of. . . students on a tour of a jail. He spoke about a
female student who dressed inappropriately for the
jail. In Fall 2017, he told his class that a former female
student wore shorts to the jail and the prisoners made
noises and whistled at her. During his Spring 2018
class, he told his . . . students that this female former
student wore a revealing shirt to the jail tour and that
she had a chest ‘out to here,’ while he cupped his
hands out in front of his chest to simulate large
breasts. He also said that the former student’s pants
were ‘painted on.’ Gensler referred to a female student
as ‘really good looking,’ and her ‘boobs just popping
out.’” Contrary to Gensler’s assertions, the accusation
was far from vague.
App-39
B. Gensler Forfeited His Argument Regarding Al
leged Bias and Time-Barred Allegations
For the first time on appeal, Gensler argues the ALJ
was biased because the ALJ allowed respondents’ ev
idence regarding time-barred allegations in the accu
sation but prohibited Gensler from introducing evi
dence to disprove them. Gensler cites section 87680,
which provides in relevant part: “No testimony shall
be given or evidence introduced relating to matters
which occurred more than four years prior to the date
of the filing of the notice. Evidence of records regularly
kept by the governing board concerning the employee
may be introduced, but no decision relating to the dis
missal or suspension of any employee shall be made
based on charges or evidence of any nature relating to
matters occurring more than four years prior to the
filing of the notice.” (§ 87680.)
‘“It is axiomatic that arguments not raised in the
trial court are forfeited on appeal.’” (People v. Graham
(2024) 102 Cal.App.5th 787, 798.) We therefore con
sider this argument forfeited and decline to address it.
C. Gensler Fails to Provide Any Citations to Authori
ties in Support of Several Arguments
Gensler presents several arguments without citing
any legal authorities in support. First, he argues the
District stonewalled the discovery process, and this
stonewalling prejudiced him. He asserts the District
refused to answer over 150 interrogatories. He also as
serts he filed a motion to compel discovery, which the
ALJ denied, and a pretrial motion for evidentiary
sanctions, which the ALJ denied.
Second, Gensler argues the District sought to con
ceal witnesses and block him from contacting them.
App-40
He asserts the District refused to disclose the last
names of student witnesses for more than three
months, and the District did not disclose the sub
stance of their, projected testimony 19 days before
trial. He posits, “Through these stratagems and oth
ers, [respondents successfully prevented Gensler
from learning what evidence would be presented
against him and preparing to meet it.”
Third, Gensler contends the ALJ improperly denied
his request to continue the hearing. He asserts he ex
plained to the ALJ that discovery abuses hindered his
preparation.
Fourth, Gensler argues the ALJ demonstrated bias
and abused his discretion by limiting the number of
witnesses he could call but allowing respondents to
call as many witnesses as it wished.
Fifth, Gensler asserts the ALJ showed bias and
abused his discretion by relying “on his own specula
tion to bolster his ‘evident unfitness’ conclusion.”13
Because Gensler does not provide any legal author
ities in support of these arguments, we decline to
13 Gensler also argues the trial court did not address his un
fairness and bias arguments. We disagree. Even if the court did
not, we have addressed Gensler’s arguments ante.
App-41
address them.14 (See Pinter-Brown,
Cal.App.5th at p. 95.)
supra,
48
DISPOSITION
The judgment is affirmed. Respondents are entitled
to costs.
MOTOIKE, ACTING P. J.
WE CONCUR:
SANCHEZ, J.
GOODING, J.
14 In his reply brief, Gensler contends respondents fail to ad
dress the misconduct and therefore concede the existence of the
misconduct. Gensler “misperceives his role as appellant: it is”
his, rather than respondents’, “burden to affirmatively demon
strate error. [Citation.] This burden remains the same whether
or not” respondents file “a brief or provided argument or author
ity on an issue.” (Doe v. McLaughlin, supra, 83 Cal.App.5th at p.
654.) Additionally, in his reply brief, Gensler argues respondents
misstate the evidence in the ‘“Statement of Facts’” of their brief.
As Gensler does not cite any legal authorities in support of his
argument, we deem them forfeited. (See Pinter-Brown, supra, 48
Cal.App.5th at p. 95.)
App-42
Appendix B
[Filed: Feb. 27, 2024]
SUPERIOR COURT OF
THE STATE OF CALIFORNIA
COUNTY OF ORANGE - CENTRAL JUSTICE
CENTER
HOWARD GENSLER,
Petitioner,
30-2021-01177691
ORDER
DENYING
PETITION FOR WRIT
OF MANDATE
BOARD OF TRUSTEES
OF THE SOUTH OR
ANGE COUNTY COM Hon. Kimberly A. Knill
MUNITY
COLLEGE Dept. C31
DISTRICT
and
THE
SOUTH
ORANGE
COUNTY COMMUNITY
COLLEGE DISTRICT,
Respondents
The case was extensively briefed (ROAs 69, 94, 96),
and no party requested a hearing, oral argument or
statement of decision. After considering the adminis
trative record and written argument, the court now
rules.
•
The petition for writ of mandate is denied.
App-43
•
I.
Respondents’ counsel is ordered to submit
a proposed judgment for the court’s re
view and signature within 5 days. (Code
Civ. Proc., § 1094.6, subd. (f).)
Factual and Procedural History1
Petitioner, Howard Gensler holds undergraduate
degrees from UC Irvine in five disciplines, a Master of
Public Policy and Juris Doctor from UC Berkeley, and
a Master of Arts and Doctor of Philosophy (Ph.D.)
from UC Irvine. Respondent, South Orange County
Community College District (District)O employed pe
titioner as a regular academic employee from 1/1/2003
until his 2019 termination by respondent, Board of
Trustees of the South Orange County Community Col
lege District (Board). Petitioner was a full-time fac
ulty member in the Economics and Political Science
Departments, Social and Behavioral Sciences Division,
at Saddleback College. Petitioner held a life California
community college teaching credential in economics,
law, social sciences, public services and administra
tion, and government.
On 6/12/2019, Dr. Elliot Stern, Saddleback College’s
President, signed a 25-page Accusation alleging
causes for dismissal against petitioner for evident un
fitness for service (Ed. Code, § 87732, subd. (d)2); and
persistent violation of, or refusal to obey, the school
laws of the state or reasonable regulations prescribed
for the government of the District’s board (id. at subd.
(f).) The Accusation specifies multiple instances of
1 Additional legally significant facts are referenced, infra.
2 All statutory references are to the Education Code unless
otherwise specified.
App-44
alleged misconduct from the Fall 2015 through Spring
2018 semesters.
After a 10-day hearing, on 10/15/2020, Administra
tive Law Judge Adam L. Berg (ALJ) issued an opinion
concluding cause exists to dismiss petitioner pursuant
to section 87732, subdivisions (d) and (f), and respond
ents’ decision to dismiss petitioner from employment
is reasonable and supported by a preponderance of ev
idence.
On 1/6/2021, petitioner filed a verified petition for
writ of mandate pursuant to Code of Civil Procedure
section 1094.5 [review of an adjudicatory decision].
The petition, an appeal from the ALJ’s decision, al
leges six causes of action styled more aptly as argu
ment headings. In his prayer for relief, petitioner re
quests a writ of mandate ordering respondents to re
instate him as a full-time tenured faculty member of
Saddleback College, to reimburse him for lost wages
and benefits, and for costs and attorney fees.
The petition was tried to the court (Hon. Derek
Hunt) on 10/22/2021. Petitioner requested a state
ment of decision, and on 12/6/2021, the court issued a
one, remitting the cause to respondents for a review of
petitioner’s employment evaluation. The court later
issued a 3/21/2022 order remanding the proceedings
in accordance with the statement of decision.
Petitioner appealed (Case No. G061503). On
8/22/2023, the Court of Appeal dismissed the appeal
for lack of jurisdiction, finding the trial court’s remand
order was not appealable. The Court of Appeal re
manded to this court for further proceedings.
App-45
II. Standard of Review
The inquiry into the validity of an administrative
order or decision
shall extend to questions whether the re
spondent has proceeded without, or in
excess of, jurisdiction; whether there was
a fair trial; and whether there was any
prejudicial abuse of discretion. Abuse of
discretion is established if the respond
ent has not proceeded in the manner re
quired by law, the order or decision is not
supported by the findings, or the findings
are not supported by the evidence.
(Code Civ. Proc., § 1094.5, subd. (b).)
Where it is claimed that the findings are
not supported by the evidence, in cases
in which the court is authorized by law
to exercise its independent judgment on
the evidence, abuse of discretion is estab
lished if the court determines that the
findings are not supported by the weight
of the evidence. In all other cases, abuse
of discretion is established if the court
determines that the findings are not sup
ported by substantial evidence in the
light of the whole record.
(Id., subd. (c).)
In a proceeding on a writ of administra
tive mandate, the party challenging the
administrative decision bears the bur
den of convincing the court that the
App-46
administrative findings are contrary to
the weight of the evidence. Though the
trial court is required to exercise its in
dependent judgment on the evidence, it
is to give a strong presumption of correct
ness to the [agency]’s findings.
(Crawford v. Commission on Professional Competence
of Jurupa Unified School Dist. (2020) 53 Cal.App.5th
327, 336.)
III. Respondents Did Not Act in Excess of
Jurisdiction
Petitioner contends respondents lacked jurisdiction
to terminate him, because they did not conduct a stat
utorily required faculty evaluation within three years
preceding the initiation of termination proceedings.
Section 87671 states in pertinent part, "A contract
or regular employee may be dismissed or penalized if
one or more of the grounds set forth in Section 87732
are present and the following are satisfied: (a) The em
ployee has been evaluated in accordance with stand
ards and procedures established in accordance with
the provisions of this article."
Having charged petitioner with violation of sections
87732, subdivisions (d) and (f), respondents were re
quired to comply with the evaluation requirement of
section 87671. Section 87663 addresses the standards
and procedures for evaluations. Section 87663, subdi
vision (a), states, "Regular employees shall be evalu
ated at least once in every three academic years."
Petitioner's last evaluation was completed on
11/2/2015, and covered the period from 10/17/2012 to
11/2/2015. The ALJ found since the last evaluation
was during the 2015-2016 academic year, an
App-47
evaluation needed to be completed before the end of
the 2018-2019 academic year, or May 2019. The ALJ
further found the notice of termination in January
2019 preempted the need for another evaluation and
there was no violation of Section 87663. (Office of Ad
ministrative Hearings Clerk's Record (OAH) pp. 47444745.)
Petitioner argues the termination proceedings were
void ab initio, citing Tarquin v. Comm 'n on Prof. Com
petence (1978) 84 Cal.App.3d 251 (Tarquin). Peti
tioner is correct the ALJ incorrectly applied Tarquin,
because unlike former section 13407 at issue in Tar
quin, the statute applicable here, section 87671, sub
division (a), requires a current faculty evaluation for
dismissal for any of the grounds set forth in Section
87732, including "evident unfitness for service" and
"persistent violation of, or refusal to obey" as alleged
against petitioner.
However, the ALJ also found respondents had juris
diction because they substantially complied with the
evaluation requirement, relying on Miller v. Chico
Unified Sch. Dist. Bd. Of Educ. (1979) 24 Cal.3d 703,
717 (Miller). The doctrine of substantial compliance
excuses literal noncompliance when there has been
"actual compliance in respect to the substance essen
tial to every reasonable objective of the statute." (Rob
ertson v. Health Net of California, Inc. (2005) 132
Cal.App.4th 1419, 1430 (citation omitted).)
The ALJ did not err in finding substantial compli
ance with the evaluation requirement. Although peti
tioner's last performance evaluation was completed on
11/2/2015, it was signed on 2/11/2016, which is within
three years of the Statement of Charges and Recom
mendation for Termination dated 1/31/2019. (OAH pp.
App-48
19, 4744.) Moreover, after petitioner's last evaluation,
respondents provided numerous notices of his unsat
isfactory performance.
On 7/7/2016, Dean Cadence Wynter gave petitioner
a 90-day Notice of Unprofessional Conduct and/or Un
satisfactory Performance - Notice to Correct Deficien
cies. The letter included six directives to petitioner:
immediately stop his unprofessional conduct; treat all
students with respect, dignity, and civility; neither re
taliate against nor confront students or employees
concerning the complaints discussed in the letter; at
tend anti-discrimination and harassment training of
at least two hours provided by or approved by the Dis
trict; adhere to all District policies and regulations re
ferred to in the letter; and establish a classroom envi
ronment conducive to learning, model effective critical
thinking by being open to differences of opinion, invite
students to think independently, stimulate students'
interest and desire to learn, provide a positive learn
ing environment for all student populations, and
demonstrate sensitivity in working with students and
employees with diverse backgrounds and needs. The
90-day Notice directed petitioner to correct the defi
ciencies immediately and warned should petitioner
"continue to demonstrate the types of behavior dis
cussed in this notice, you will be subject to further dis
ciplinary action, up to and including dismissal from
employment." (OAH p. 482.)
On 10/12/2016, Wynter again met with petitioner to
address an informal student complaint. In an email
dated 10/13/2016, Wynter summarized the meeting
stating: "Calling the student 'pampered' is derogatory
and subjective. While I know this is not an isolated
incident, I expect it to be the last one. Effective
App-49
immediately, you are to treat students with respect
and not publicly castigate them. More importantly,
you are not to make assumptions about students
based on their national origin." (OAH p. 579)
On 9/13/2017, Interim President Denise Whittaker
met with petitioner and on 9/19/2017 sent him a memo
stating, "After much discussion, you assured me that
you understand that I was alerting you to potential
future action if student complaints result in findings
of unprofessional conduct." (OAH p. 582)
Based on the above notices and meetings, even
though no formal performance evaluation was com
pleted for the relevant time period, respondents sub
stantially complied with the evaluation requirement,
and, like in Miller, petitioner thereby knew of re
spondents' close attention to his performance and spe
cific ways in which he could alleviate their concerns.
(Miller, supra, 24 Cal.3d at p. 717; see Governing Bd.
v. Comm'n On Pro. Competence (1985) 171 Cal.App.3d
324, 333 ["To allow hypertechnical procedural over
sights to thwart the orderly process delineated by the
statutory scheme would be to exalt form over sub
stance and would result in an abuse of the judicial pro
cess."].)
Petitioner has not demonstrated the ALJ erred in
determining respondents did not act in excess of juris
diction
IV. The ALJ Did Not Abuse His Discretion in
Considering Petitioner’s “Unprofessional Con
duct”
Petitioner contends the ALJ committed legal error
when, after the hearing and on his own initiative, he
constructed an unprofessional conduct charge, which
App-50
was not charged by respondents, and which consti
tutes a separate ground for termination under section
87732, subdivision (a).
The ALJ acknowledged petitioner was not charged
with unprofessional conduct under section 87732, sub
division (a), but found instances of unprofessional con
duct are relevant to a charge for evident unfitness to
teach, citing Perez v. Commission on Professional
Competence (1983) 149 Cal.App.3d 1167,1174, Shea v.
Bd. Of Medical Examiners (1978) 81 Cal.App.3d 564,
575 and Bd. Of Education v. Swan (1953) 41 Cal.2d
546, 553. (OAH p. 4646, fn. 18.)
Petitioner relies on Woodland Joint Unified Sch.
Dist. V. Comm’n on Pro. Competence (1992) 2
Cal.App.4th 1429 {Woodland) to argue the ALJ erro
neously equated unprofessional conduct with evident
unfitness for service. The Woodland court found “Un
professional conduct is, as it were, often a lesser in
cluded form of proscribed behavior within evident un
fitness for service. Thus, conduct constituting evident
unfitness for service requires that unfitness for ser
vice be attributable to a defect in temperament—a re
quirement not necessary for finding of unprofessional
conduct.” (Id. at p. 1445 (cleaned up).)
The ALJ's treatment of petitioner's unprofessional
conduct is not inconsistent with Woodland. Petitioner
has not demonstrated the ALJ committed legal error
constituting an abuse of discretion.
App-51
V. The ALJ Did Not Abuse His Discretion in
Finding Petitioner’s Action Are Not Protected
by the First Amendment and Academic Free
dom Rights
Petitioner contends the ALJ committed legal error
in holding petitioner's classroom statements are not
protected by his First Amendment and academic free
dom rights. He argues his speech was directly rele
vant to the curriculum or could be characterized as
playful familiarity and trivial profanity intended to be
humorous and used as interjection.
The District alleged during the Fall 2017 American
Government class, Petitioner said that Iranian
women dressed like "hookers." The ALJ found,
"[b]ased on the totality of the circumstances, the
[District established that the story about Iranian
women dressing like prostitutes violated [Board Pol
icy (BP)] 4000.5 and [Administrative Regulation (AR)]
4000.5. The reference to 'hookers' constituted 'inap
propriate or offensive' remarks based on gender and
national origin." (OAH p. 4739.)
The District alleged during the Spring 2018 Ameri
can Government course, petitioner continued to vio
late multiple directives. The ALJ found a preponder
ance of the evidence established petitioner told a story
about a former student in which he described her
scant attire and breast size; repeatedly used the word
"lard" (short for retarded) to describe himself and stu
dents; referred to wives as "bitches"; wore a jacket con
taining Playboy insignias to class; and made a crude
reference to Ariana Huffington performing oral sex in
order to achieve political recognition. The ALJ found
these comments cumulatively constituted hostile or
App-52
offensive conduct in violation of BP 4000.5 and AR
4000.5. (OAH p. 4739-4740.)
Petitioner relies on Cohen v. San Bernardino Com
munity College District (9th Cir. 1996) 92 F.3d 968,
971-972 (Cohen), which found the college’s sexual har
assment policy unconstitutionally vague as applied.
Petitioner contends Bp 4000.5 on harassment and dis
crimination prevention is similarly unconstitutionally
vague, because it lacks content detail and does not
substantially elucidate what speech is forbidden.
Unlike the sexual harassment policy in Cohen
which vaguely proscribed “intimidating, hostile, or of
fensive learning environment,” (Cohen, supra, 92 F.3d
at p. 971) the District’s harassment policy provided in
AR 4000.5 specifically describes conduct which consti
tutes harassment and is not unconstitutionally vague.
The District specifically states verbale harassment is
prohibited and may include:
Inappropriate or offensive remarks,
slurs, jokes or innuendoes based on a
person's race, gender, sexual orientation,
or other protected status. This may in
clude, but is not limited to, inappropriate
comments regarding an individual's
body, physical appearance, attire, sexual
prowess, marital status, or sexual orien
tation; unwelcome flirting or proposi
tions; demands for sexual favors, verbal
abuse, threats or intimidation; or sexist,
patronizing or ridiculing statements that
convey derogatory attitudes based on
gender,
race,
nationality,
sexual
App-53
orientation or other protected status.
(OAHp. 1155.)
Further, unlike Cohen, here petitioner was on no
tice AR 4000.5 could be applied to petitioner’s teach
ing style. The 90-Day Notice of Unprofessional Con
duct and/or Unsatisfactory Performance dated
7/7/2016, notified petitioner of BP and AR 4000.5 and
noted his comments to the military veteran and com
ments based on students’ religious views violate AR
4000.5. (OAH p. 484.)
As to petitioner’s argument the District should have
an “offensive language” policy distinct from an antiharassment/discrimination policy, Cohen does not ad
dress it, and petitioner has not submitted any rele
vant legal authority in support.
Petitioner also argues the ALJ improperly applied
the analysis set forth in Pickering v. Board of Educa
tion (1968) 391 U.S. 563, 568 (Pickering) to find peti
tioner’s comments were not protected by the First
Amendment.
The Ninth Circuit has held “teaching and academic
writing that are performed pursuant to the official du
ties of a teacher and professor ... is protected under
the First Amendment, using the analysis established
in Pickering. The Pickering test has two parts. First,
the employee must show that his or her speech ad
dressed matters of public concern. Second, the em
ployee’s interest in commenting upon matter of public
concern must outweigh the interest of the State, as an
employer, in promoting the efficiency of the public ser
vices it performs through its employees.” (Demers v.
Austin (9th Cir. 2014) 746 F.3d 402, 412 (cleaned up)
(Demers).)
App-54
Petitioner disputes the applicability of Pickering
and Demers, arguing neither case involved or ana
lyzed the First Amendment and free speech rights ac
corded a college professor in the classroom. It is a dis
tinction without a difference. In Demers, the Ninth
Circuit held the Pickering analysis is applicable to ac
ademic speech. (Demers, supra, 746 F.3d at p. 412.)
Petitioner has not attempted to establish his speech
meets the Pickering test as applied in Demers. Nota
bly, petitioner appears to concede some of his speech
was unrelated to the curriculum, but he believes it
amounted to playful familiarity and trivial profanity,
intended to be humorous and used as interjection.
Petitioner next contends he did not violate BP
4000.5 and AR 4000.5. Many of petitioner's comments
were directed to an individual's body and physician
appearance. Others were inappropriate or offensive
based on students' protected status (race, gender, etc.).
(See OAH p. 1154 et seq.) (See also discussion under
Part VII, infra.)
Petitioner has not demonstrated the.ALJ commit
ted legal error constituting an abuse of discretion, or
that the findings are not supported by the weight of
the evidence.
VI. Petitioner Received a Fair Trial
Petitioner contends he did not receive a fair trial,
because the District failed to provide complete and
precise notice of the charges against him in compli
ance with section 87672 which provides, "If a govern
ing board decides it intends to dismiss or penalize a
contract or regular employee, it shall deliver a written
statement, duly signed and verified, to the employee
setting forth the complete and precise decision of the
App-55
governing board and the reasons therefor." The Dis
trict's statement of charges is a 25-page document
with 892 pages of exhibits. Although the statement of
charges is lengthy, the court determines it sufficiently
provided "complete and precise" notice to petitioner of
charges against him. (OAH p. 222, et seq.)
Petitioner contends respondents acted unfairly by
submitting a witness list identifying 33 witnesses
even though they called only 18 witnesses, eight of
whom were students. Petitioner has not shown the
uncalled witnesses were listed on the witness list for
an improper purpose. Petitioner complains the Dis
trict refused to provide the students' contact infor
mation. Initially, the District only provided the first
name and last initial of the students, but on
12/16/2019, the ALJ ordered the District to provide
identifying information for the students respondents
intended to call. (OAH pp. 1240-1241.) The identifying
information was provided to petitioner the following
day. (Id. at p. 1254-59.) Petitioner had six weeks be
fore the hearing to depose or interview the witnesses.
Petitioner contends the ALJ improperly character
ized his percipient student witnesses as character wit
nesses which caused petitioner to cancel several other
student witnesses and instead call only five student
witnesses to testify on his behalf. Although the ALJ
indicated having five students testify generally to the
same topic would be sufficient, it was petitioner's de
cision to not call the additional witnesses. Further,
the ALJ's view the testimony was character evidence
and cumulative was not error. The student witnesses
who testified on behalf of petitioner all offered testi
mony concerning petitioner's reputation and whether
petitioner made racist or sexist comments.
App-56
Petitioner has not established the ALJ failed to con
duct a fair trial.
VII. The ALJ Did Not Abuse His Discretion in
Finding Petitioner’s “Unfitness to Teach”
Petitioner contends the ALJ committed legal error
in finding petitioner violated section 87732, subdivi
sion (d), which authorizes dismissal for evident unfit
ness for service. The ALJ found petitioner's comments
created a hostile environment that interfered with the
learning or work activities of several students. (OAH
p. 4740.) Petitioner argues the ALJ cobbled together a
hypothetical hostile environment charge not included
in the Accusation.
The Accusation in paragraph 83 alleges the District
has provided training to Gensler regarding its harass
ment policy and harassment prevention. Despite at
tending this training, Gensler's conduct continues to
repeatedly violate District policy. (OAH p. 244.) The
Accusation in paragraph 86 further alleges the con
duct disrupts the educational process, because Gens
ler persistently violates District policies and proce
dures and creates a hostile environment for students.
(OAH p. 244.) The ALJ did not cobble together a hy
pothetical hostile environment charge not included in
the Accusation.
Petitioner also argues the ALJ improperly applied
the Morrison v. State Board of Education (1969) 1
Cal.3d 214 (Morrison) factors. In Morrison, the Su
preme Court articulated factors relevant to a determi
nation of a teacher's unfitness to teach, as follows: (1)
the likelihood that the conduct may have adversely af
fected students or fellow teachers and the degree of
such adversity anticipated, (2) the proximity or
App-57
remoteness in lime of the conduct, (3) the type of
teaching certificate held by the party involved, (4) the
extenuating or aggravating circumstances, if any, sur
rounding the conduct, (5) the praiseworthiness or
blameworthiness of the motives resulting in the con
duct, (6) the likelihood of the recurrence of the ques
tioned conduct, and (7) the extent to which discipli
nary action may inflict an adverse impact or chilling
effect upon the constitutional rights of the teacher in
volved or other teachers. (Id. at p. 229.) "These factors
are relevant to the extent that they assist the board in
determining ... 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. 22930.) "[N]ot all Morrison factors need be examined, only
the pertinent ones." (Governing Board v. Haar (1994)
28 Cal.App.4th 369, 384.)
Petitioner argues the ALJ determined in a conclusory manner the factors set forth in Morrison were es
tablished when the "ALJ's 137-page decision is devoid
of any explanation as to how those factors should be
analyzed and applied." Not so. The ALJ extensively
analyzed Morrison and how the factors applied to this
matter in pages 106 through 110. (OAH pp. 47244728.)
Petitioner also incorrectly argues the Morrison fac
tors do not apply to a charge of evident unfitness for
service. Petitioner contends the Morrison factors
weigh immoral behavior to see if they affect one's
teaching ability which is a different question from the
actual prohibition on evident unfitness for service.
The court in Woodland discussed this issue and found
the Morrison factors apply as well to actions based
App-58
only on evident unfitness for service. (Woodland, su
pra, 2 Cal.App.4th at p. 1445.) "Our conclusion does
not mean that the criteria for unfitness set out in Mor
rison ... may be disregarded where ‘evident unfitness
for service' is at issue. These criteria must be analyzed
to determine, as a threshold matter, whether the cited
conduct indicates unfitness for service. If the Morrison
criteria are satisfied, the next step is to determine
whether the 'unfitness' is 'evident'; i.e., whether the
offensive conduct is caused by a defect in tempera
ment." (Ibid, (citation omitted}.)
The ALJ properly applied the Morrison factors.
(OAH pp. 4724-4728.) The ALJ analyzed petitioner's
behavior concerning five students (Adrian, Anand,
Jordan, Pardis, and Emma), including, inter alia:
• petitioner telling a military veteran he was
wasting his life and asking, "How many people
did you have to kill to get into this class?" and
"Come over here so I can slit your throat.";
• petitioner demeaning students in class, laugh
ing at students, and telling a student, "That's a
rude thing to say to your professor" when the
student said she felt intimidated to ask peti
tioner a question in class;
• petitioner telling a student if she could not keep
up with assignments, maybe college was not for
her, when there was a glitch in Blackboard, an
online program, and asking the student if her
parents had graduated from college, stating, "I
wasn't sure because of your last name." (Jordan
has a Hispanic last name);
• petitioner telling class that women in Iran
dressed like hookers and all Iranian women
were hookers, Middle Easterners hate Israel and
App-59
Persians (Pardis is Middle Eastern and Persian),
Iranians are jerks and deserve to have U.S.
weapons sold to Saddam Hussein to use against
them, i.e., "Iranians deserve it";
• petitioner telling a story about a female student
who arrived for a tour of the jail wearing
"painted [on] clothing" and talking about the
student's hair color and breasts;
• during an exercise about the cost of living in Cal
ifornia and how much a single mother would
have to budget for life, petitioner including fem
inine hygiene products in the budget and mak
ing a statement about women being swindled by
auto mechanics because they know nothing
about cars and referring to single mothers as
bitches;
• petitioner referring to Arnold Schwarzenegger
as a Nazi;
• petitioner referring to rape excessively in class;
• petitioner referring to Spanish people who used
to be beautiful with blond hair and blue eyes un
til they were colonized by another people and be
came ugly with black hair and big noses;
• petitioner saying Russians were horrible at rap
ing people, but the Japanese are worse;
• petitioner calling students who were too slow
"tards."
As provided by Woodland, the ALJ also examined
whether the unfitness is evident. (OAH pp. 4742-4743.)
The ALJ concluded petitioner does not have the tem
perament to comport his behavior to the professional
standards expected by the District. (OAH pp. 47434744.)
App-60
Petitioner has not demonstrated the ALJ commit
ted legal error constituting an abuse of discretion, or
that the findings are not supported by the weight of
the evidence.
VIII.
The ALJ Did Not Abuse His Discretion I
Finding Petitioner’s Persistent Failure to Fol
low Rules
Petitioner contends the ALJ committed legal error
in finding Petitioner violated section 87732, subdivi
sion (f) which authorizes dismissal for persistent vio
lation of, or refusal to obey, the school laws of the state
or reasonable regulations prescribed for the govern
ment of the community colleges by the board of gover
nors or by the governing board of the community col
lege district employing him.
The ALJ found the violation of the District's harassment/discrimination policy and regulation evidences
unfitness to teach, which was persistent. (OAH pp.
4740-4741.) The ALJ found petitioner "ignored direc
tives in 2010 and 2016 to comply with district policies
and regulations. Although the evidence established
that [petitioner] violated the harassment/discrimination rules in the course of a single school year, the vi
olations were permeated with an attitude of continued
insubordination or willful disobedience to the
[District's directives. As such, the continuous use of
inappropriate language that violated [District har
assment policies was persistent." (OAH p. 4741.)
The evidence reflects petitioner's conduct estab
lishes a persistent violation of, or refusal to obey the
District rules. Continuing or repeated refusal, as op
posed to isolated behavior, is sufficient to establish
persistent conduct. (Governing Board of the Oakdale
App-61
Union School Dist. v. Seaman (1972) 28 Cal.App.3d 77,
82 [persistent "has been interpreted to mean 'contin
uing or constant' "].)
Petitioner has not demonstrated the ALJ commit
ted legal error constituting an abuse of discretion, or
that the findings are not supported by the weight of
the evidence .
App-62
Appendix C
[Filed: Oct. 14, 2020]
In the case of the
Termination of Howard Gensler.
Office of Administrative Hearings Case No.
2019040965.
LEGAL CONCLUSIONS
1. A community college district that seeks to dis
miss a tenured academic employee bears the burden
of establishing the appropriateness of that action by a
preponderance of the evidence. (Evid. Code, §§ 115;
500; Gardner v. Commission on Professional Compe
tence (1985) 164 Cal.App.3d 1035.) “Preponderance of
the evidence” means evidence that has more convinc
ing force than that opposed to it. If the evidence is so
evenly balanced that one is unable to say that the ev
idence on either side of an issue preponderates, the
finding on that issue must be against the party who
had the burden of proving it. (People v. Mabini (2000)
92 Cal.App.4th 654, 663.)
Applicable Law
2. Education Code sections 87667 provide that a
regular employee may be dismissed for one or more of
the grounds set forth in Section 87732. In addition,
Section 87671 requires the following conditions to be
satisfied:
(a) The employee has been evaluated in
accordance with standards and proce
dures established in accordance with the
provisions of this article.
App-63
(b) The district governing board has re
ceived all statements of evaluation
which considered the events for which
dismissal or penalties may be imposed.
(c) The district governing board has re
ceived recommendations of the superin
tendent of the district and, if the em
ployee is working for a community col
lege, the recommendations of the presi
dent of that community college.
(d) The district governing board has con
sidered the statements of evaluation and
the recommendations in a lawful meet
ing of the board.
3. Education Code section 87663, subdivision (a),
provides that regular employees shall be evaluated at
least once in every three academic years. The govern
ing board of the district must adopt rules and regula
tions establishing the specific procedures for the eval
uation of its contract and regular employees. (Ed.
Code, § 87664.)
4. A regular academic employee may be dismissed
for “Evident unfitness for service” and “Persistent vi
olation of, or refusal to obey, the school laws of the
state or reasonable regulations prescribed for the gov
ernment of the community colleges by the board of
governors or by the governing board of the community
college district employing him or her.” (Ed. Code, §
87732, subds. (d) & (f).)
5. If a board decides it intends to dismiss a regu
lar employee, it must deliver a verified written state
ment to the employee setting forth the complete and
precise decision of the board and the reasons therefor.
App-64
(Ed. Code, § 87672.) “A governing board may postpone
the operative date of a decision to dismiss or impose
penalties for a period not to exceed one year, subject
to the employee’s satisfying his or her legal responsi
bilities as determined by statute and rules and regu
lations of the district. At the end of this period of pro
bation, the decision shall be made operative or perma
nently set aside by the governing board.” (Ibid.)
6. The ALJ shall determine whether there is
cause to dismiss or penalize the employee, and if so,
determine whether the employee shall be dismissed
and determine the precise penalty to be imposed, and
shall determine whether the decision should be im
posed immediately or postponed pursuant to Section
87672. (Ed. Code, § 87680.) “No testimony shall be
given or evidence introduced relating to matters
which occurred more than four years prior to the date
of the filing of the notice. Evidence of records regularly
kept by the governing board concerning the employee
may be introduced, but no decision relating to the dis
missal or suspension of any employee shall be made
based on charges or evidence of any nature relating to
matters occurring more than four years prior to the
filing of the notice.” (Ibid.')
Applicable District Policies, Regulations
7. District Board Policy (B.P.) 4000.5 “Harass
ment and Discrimination Prevention and Complaints”
(Rev. 9/24/12) reflects the district’s commitment “to
providing an academic and work environment that re
spects the dignity of individuals and groups.” The pol
icy prohibits harassment and discrimination based on
any legally protected characteristic, including “race,
color, ancestry, national origin, physical disability,
App-65
mental disability, medical condition, marital status,
sex, gender, or the perception that a person has one or
more of the foregoing characteristics.” The policy ap
plies to any aspect of the academic environment, in
cluding classroom conditions, grades, and participa
tion in any community college activity. The policy re
quires the Chancellor to adopt regulations pursuant
to the policy.
8. Administrative Regulation (A.R.) 4000.5 “Har
assment and Discrimination Prevention and Com
plaints Procedures” (6/28/10) provides specific defini
tions and complaint procedures for harassment and
discrimination. Like the board policy, the regulations
prohibit harassment based on a protected character
istic. It provides additional guidance on gender-based
harassment and states it “does not necessarily involve
conduct that is sexual. Any hostile or offensive con
duct based on gender can constitute prohibited har
assment.” (Id., subd. H.A.2..) Forms of prohibited har
assment for all categories include, but are not limited
to the following:
1. Verbal:
Inappropriate or offensive remarks,
slurs, jokes or innuendoes based on a
person’s race, gender, sexual orientation,
or other protected status. This may in
clude, but is not limited to, inappropriate
comments regarding an individual’s
body, physical appearance, attire, sexual
prowess, marital status, or sexual orien
tation; unwelcome flirting or proposi
tions; demands for sexual favors; verbal
abuse, threats or intimidation; or sexist,
App-66
patronizing or ridiculing statements that
convey derogatory attitudes based on
gender, race, nationality, sexual orienta
tion or other protected status.
m. ffl
4. Environmental
A hostile academic or work environment
may exist where it is permeated by sex
ual innuendo; insults or abusive com
ments directed at an individual or group
based on gender, race, nationality, sex
ual orientation or other protected status;
or gratuitous comments regarding gen
der, race, sexual orientation, or other
protected statuses that are not relevant
to the subject matter of the class or activ
ities on the job. A hostile environment
can arise from:
an unwarranted focus on sexual topics or
sexually suggestive statements in the
classroom or work environment;
an unwarranted focus on, or stereotyp
ing of particular racial or ethnic groups,
sexual orientations, genders, or other
protected statuses;
An environment may be hostile toward
anyone who merely witnesses unlawful
harassment in their immediate sur
roundings, although the conduct is di
rected at others. The determination of
whether an environment is hostile is
App-67
based on the totality of the circum
stances, including such factors as the fre
quency of the conduct, the severity of the
conduct, whether the conduct is humili
ating or physically threatening, and
whether the conduct unreasonably inter
feres with an individual’s learning or
work activities.
Academic Freedom1
The policy will be implemented in a man
ner that recognizes principles of free
speech and academic freedom. {Id., subd.
(II.B)
9. Administrative Regulation 5413 “Nondiscrimi
nation” (6/28/10) affirms the District’s commitment to
providing an academic and work environment free of
unlawful discrimination in educational programs and
employment and provides “designated officers”
charged with receiving complaints.
10. The Saddleback “Faculty Code of Ethics and
Professional Standards” (10/14/98) (Code of Ethics)
approved by the Academic Senate provides standards
of conduct for faculty members and is based on the
standards set forth by the American Association of
University Professors. The document provides ethical
principles and standards of conduct faculty must ex
hibit in relation to students, colleagues, their disci
pline, the college, and the community. The
1 In its closing argument, the district cites language in the regu
lation related to academic freedom. However, this language was
added in an October 2019 revision, and is inapplicable to this
case.
App-68
Saddleback “Faculty Handbook” (Rev.8/16) published
by the Academic Senate references the Code of Ethics
and gives “fair notice to all that departures from these
standards may rise to disciplinary proceedings.” {Id.
at p. 31.)
Persistent Violation/Refusal
11. The district alleges that respondent is subject
to dismissal for persistent violation of, or refusal to
obey, laws or the district’s regulations. (§ 87732, subd.
(f).) As grounds for dismissal, the district generally
contends that respondent persistently violated direc
tives regarding his behavior; board policy and admin
istrative regulations relating to harassing and dis
criminatory behavior; the Faculty Code of Ethics and
Faculty Handbook; and the Statement of Mutual Re
spect and Collegial Behavioral.
Specifically, the district contends respondent failed
to comply with the directives contained in the 90-day
notice issued in 2010 by failing to refrain from the use
of profanity in the classroom, physically assaulting a
student in class, continuing to violate district policies,
and intimidating students. The district further con
tends respondent failed to comply with the directives
contained in the 90-day notice issued in 2016, and di
rectives issued by Whittaker in 2017, with regards to
complaints by Anand, Jordan, Pardis, Emma, Carrissa, and Michael. Finally, the district contends that
Reilly’s investigation uncovered additional examples
where respondent’s conduct violated directives.
App-69
RESPONDENT PERSISTENTLY VIOLATED
DISTRICT REGULATIONS
12. Section 87732, subdivision (f), authorizes re
spondent’s dismissal for persistent violation of, or re
fusal to obey, the school laws of the state or reasonable
prescribed by the district’s board (persistent violation/refusal).
The district argues that respondent violated multi
ple directives by college administrators to modify his
behavior, which constitutes persistent violation/refusal under Section 87732, subdivision (f). In this re
gard, the district appears to conflate this provision
with that of “insubordination” or “willful disobedience,”
which are frequently grounds for dismissal in other
public employment (cf. Gov. Code, § 19572, subd. (e) &
(o)) but are not included for academic employees un
der the Education Code. While the district contends
that respondent repeatedly disregarded directives
contained in the two 90-Day Notices, in order to con
stitute cause for discipline under Section 87732, sub
division (f), those directives must relate to a school law
or “reasonable regulations prescribed for the govern
ment of the community colleges by the board of gover
nors or by the governing board of the community col
lege district.” Put another way, unless violation of the
directive also violates a law or district regulation, sub
division (f) is not implicated. For example, the district
alleges that respondent violated the directive to cease
using profanity in the classroom. It is uncontested
that respondent refused (persistently) to follow this
directive. Yet, refusal to follow the directive is not dis
positive of a violation. In order to constitute grounds
for dismissal under this charge, the use of profanity
App-70
must have violated a law or policy/regulation promul
gated by the board. The district cites no such policy.
In fact, the only policies and regulations cited by com
plainant are B.P. 4000.5 and A.R. 4000.5 and 5413.
Although the district also cites the Faculty Code of
Ethics, Faculty Handbook, and Statement of Mutual
Respect, none of these documents qualifies as a regu
lation prescribed by the board. The Faculty Senate is
not the district’s governing board, and unless the
board expressly delegated it rulemaking authority,
neither the Code of Ethics nor Faculty Handbook can
constitute a district regulation within the meaning of
subdivision (f). Accordingly, the directives contained
in the two 90-day notices are largely superfluous for
purposes of discipline under subdivision (f), unless the
conduct independently violates a law or regulation.2
13. Turning to the specific allegations contained in
the Accusation and the district’s closing argument,
the district alleges respondent used frequent profan
ity in the classroom, including “shit,” “what the fuck,”
“horseshit,” and “bitches.” As previously discussed,
there was no evidence that the board has adopted a
policy or authorized regulations related to the use of
profanity in the classroom. The district did not explic
itly contend that the use of profanity constituted a vi
olation of either the harassment/discrimination policy
or regulation. None of the examples of profanity cited
in the accusation implicate this policy/regulation. The
2 Of course, this does not render directives issued in accordance
to a 90-Day notice meaningless; failure to follow the directives
could result in charges of unprofessional conduct, unsatisfactory
performance, or evident unfitness. (§ 87732, subds. (a), (c), & (d).)
However, failure to adhere to the directives only constitute per
sistent violation/refusal if a law or regulation is also violated.
App-71
reference to wives as “bitches” in the “punchline” of a
lecture on the banking system is discussed in relation
to other comments.
14. The district alleges respondent assaulted
Adrian by threatening to kill him. The claim that re
spondent assaulted Adrian lacks merit and is belied
by the fact that had the district seriously believed re
spondent assaulted a student, it would not have
waited four years to take any disciplinary action. As
discussed extensively in the evaluation related to
Adrian’s complaint, the evidence did not establish re
spondent committed an assault, and thus violated a
school law or district regulation (neither of which
were cited).
The district also alleges that the statement, “How
many people did you have to kill to get into this class?”
violated a law or regulation. Although not conclusive,
the district previously denied Adrian’s unlawful dis
crimination complaint, which is strong evidence that
even the district concluded that respondent did not
discriminate or harass Adrian as a result of a pro
tected status. The district offers no compelling argu
ment to the contrary.
15. The district contends that respondent contin
ued to use class rules that violate the 2010 90-day no
tice and district rules and regulations. Specifically, it
argues that provisions regarding the use of humor in
class, the requirement that students first meet with
respondent before making a complaint with the dis
trict, and various other provisions respondent was di
rected to remove, remained in the class syllabus. The
district cites examples from respondent’s class rules
from the Spring 2016 semester that violate the 2010
directive.
App-72
Although, the district correctly notes that the rules
continued to violate the 2010 directive, the district
failed to establish that respondent violated a law or
district regulation. It is true that respondent’s com
plaint procedures could conflict with the district’s discrimination/harassment complaint procedures, which
do not require a student to first attempt to resolve the
issue with the subject of the complaint. The district
clearly has the authority to direct respondent to cease
using the provision in his rules. While continued use
of this provision could be cause for other statutory ba
ses for discipline, it is not persistent violation/refusal.
16. The district alleges respondent violated the
2010 directive not to impede a district investigation
and not to have students sign a statement or contract
regarding their conduct in class. The district cites re
spondent’s use of his own student evaluation and al
leges respondent impeded the Roth investigation into
complaints by Adrian, Jordan, and Anand. The dis
trict cites the February 8, 2017, letter from Bugay di
recting respondent to appear for an investigative in
terview. The letter also states that respondent’s “ex
cuses for attempting to circumvent this investigation
are not justified.”
These allegations are not contained in the Accusa
tion. Even if they were, the district failed to establish
respondent violated a law or district regulation. Even
if there exists a regulation requiring respondent’s co
operation with a district investigation (none was
cited), respondent did appear for the investigative in
terview after being directed to do so. The district
failed to establish that respondent was under any le
gal obligation to meet with Roth until he was ordered
to do so by Bugay.
App-73
17. The district alleges respondent violated district
policies and procedures as it relates to Ben. Neither
the Accusation, nor the district’s closing, specify what
regulation respondent violated. The Accusation only
references Roth’s conclusion that respondent “failed to
take a proactive approach to assist a student with a
physical disability by denying Ben P. class attendance
points when Ben P.’s disability required his absence
from class.” While the district objects to the manner
in which respondent dealt with the situation, none of
the facts fall within the ambit of a violation of a dis
trict regulation, specifically harassment/discrimination.
18. The district alleges that after respondent re
ceived the 90-day notice on July 7, 2016, he continued
to violate district directives the following semester. In
the case of the Fall 2016 Economics class, the district
asserts respondent demeaned of students, embar
rassed a student who was asking Anand a question
during class, embarrassed a foreign student by writ
ing her name on the board to highlight that she wrote
her name incorrectly, and made disparaging remarks
about the military.
Again, the district did not cite a regulation respond
ent violated. The allegation that respondents made
disparaging remarks about the military is not con
tained in the Accusation. Regardless, Anand’s testi
mony on this issue is not credible. The district failed
to establish that respondent’s conduct in the class, as
alleged in the accusation, violated district regulations.
19. The district alleges that in the Fall 2016, re
spondent’s interaction with Jordan violated district
directives. No violation of any district regulation was
established.
App-74
20. The district alleges that during the Fall 2017
American Government class, respondent said that
Iranian women dressed like “hookers”; made com
ments 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.
Based on the totality of the circumstances, the dis
trict established that the story about Iranian women
dressing like prostitutes violated B.P 4000.5 and A.R.
4000.5. The reference to “hookers” constituted “inap
propriate or offensive” remarks based on gender and
national origin.
21. The district alleges that during the Spring 2018
American Government course, respondent continued
to violate multiple directives. A preponderance of evi
dence established that respondent told a story about
a former student in which he described her scant at
tire. and breast size; repeatedly used the word “tard”
to describe of himself and students; referred to wives
as “bitches”; wore a jacket containing Playboy insig
nias to class; and made a crude reference to Ariana
Huffington performing oral sex in order to achieve po
litical recognition. These comments cumulatively con
stituted hostile or offensive conduct in violation of B.P.
4000.5 and A.R. 4000.5, as inappropriate or offensive
remarks, jokes or innuendoes based on a person’s gen
der or other protected status. They also constituted in
appropriate comments regarding an individual’s body,
physical appearance, attire, and/or, were patronizing
or ridiculing statements that conveyed derogatory at
titudes based on a protected status. The gratuitous
comments created a hostile academic environment
App-75
that interfered with the learning or work activities of
several students.
THE VIOLATIONS RELATE TO FITNESS TO
TEACH
22. A violation of section 87732, subdivision (f),
must also be established by reference to the Morrison
factors. (San Dieguito, supra, at pp. 1182-83 (address
ing Section 44932, subdivision (a)(7), applicable to
public school teachers).) Application of the Morrison
factors to the conduct that violated the district’s har
assment/ discrimination policies yield the same con
clusions established in factual finding numbers 99
and 100 and indicate an unfitness to teach. The viola
tion of the district’s harassment/discrimination policy
and regulation evidences unfitness to teach.
RESPONDENT’S REFUSAL TO FOLLOW REG
ULATIONS WAS PERSISTENT
23. If unfitness to teach is shown, then the district
must further establish that respondent’s refusal to fol
low the laws or regulations was “persistent,” i.e.,
“stubborn and continuing.” (San Dieguito, supra at p.
1183; Governing Board of the Oakdale Union High
School District v. Seaman (1972) 28 Cal.App.3d 77, 82
(Oakdale').') Courts interpreting the same provision for
public school teachers (§ 44932, subd. (a)(7)) have fo
cused obey rules and whether an employee was inten
tionally insubordinate. For example, in Oakdale, the
Court of Appeal reversed a judgment for a school dis
trict in an action for dismissal where a special educa
tion teacher requested a leave of absence to accom
pany her husband abroad to study foreign special ed
ucation programs. The district never responded to her
App-76
request, and she returned to school a month after the
school year started. The Court of Appeal held that un
der the circumstances, the teacher’s violation of the
school’s regulations was not “persistent.” (Id. at p. 82.)
In doing so, the Court of Appeal rejected as “specious”
the district’s argument that every day she was absent
was a separate violation and demonstrated the “per
sistent” requirement of the statute.
Unlike in Oakdale, respondent ignored directives in
2010 and 2016 to comply with district policies and reg
ulations. Although the evidence established that re
spondent violated the harassment/discrimination
rules in the course of a single school year, the viola
tions were permeated with an attitude of continued
insubordination or willful disobedience to the dis
trict’s directives. As such, the continuous use of inap
propriate language that violated district harassment
policies was persistent.
Evident Unfitness for Service
24. Section 87732, subdivision (d), “evident unfit
ness for service is established by conduct demonstrat
ing that the teacher is “clearly not fit, not adapted or
suitable for teaching, ordinarily by reason of temper
amental defects or inadequacies.” (Woodland, supra
at p. 1444.) As a threshold matter, the Morrison crite
ria must be examined to ascertain whether the con
duct in question indicates unfitness for service. “If the
Morrison criteria are satisfied, the next step is to de
termine whether the ‘unfitness’ is ‘evident’; i.e.,
whether the offensive conduct is caused by a defect in
temperament.” (Id. at p. 1445.)
Respondent’s unfitness to teach was established
pursuant to the Morrison factors, by reason of factual
App-77
finding numbers 99 and 100. Since unfitness to teach
was established, it is necessary to examine whether
such unfitness is “evident.” The single most important
consideration is that the district provided respondent
with multiple opportunities to remediate his behavior.
Respondent obstinately refused, believing that all the
complaints against him were meritless. Respondent
eVen ignored the simple directive to refrain from using
profanity with students because he did not believe the
district had the authority to issue him such a directive.
Respondent’s repeated assertion that the district’s
complaint investigation process was flawed because it
did not contain the procedural protections investiga
tions, those conducted by Roth in particular, this is
not sufficient to nullify the associated with formal dis
ciplinary action was misplaced. While there is some
justification for respondent’s frustration with some of
the district’s findings or justify defiance of directives
issued hither. Likewise, respondent’s belief that most
of the complaints were made in “bad faith” because
the complainant had ulterior motives is rejected.
While an individual’s subjective motivation in filing a
complaint relates to his or her credibility and deter
mination of adversity under Morrison, it has no bear
ing on the validity of the complaint itself. For example,
respondent’s contention that Anand had no “standing”
to complain about respondent’s interactions with re
gards to La is unpersuasive. Whatever motivation
Anand had in complaining about respondent, the fact
is respondent engaged in behavior that was inappro
priate and unbecoming a tenured faculty member. Fi
nally, while it is clear that respondent has had a con
tentious relationship with the district that started
well before the period subject to the Accusation, his
App-78
belief that he has always followed the rules and the
district’s directives is wholly unsupported by the evi
dence.
Weighed against these considerations are respond
ent’s many positive attributes. He has an impeccable
educational background, is well-published, and has
extensive academic experience. It is also established
that many students had exceedingly positive things to
say about respondent, and that he had a positive im
pact on their education, not a majority, of students
viewed respondent positively and believed he was an
effective In fact, the evidence from respondent’s wit
nesses, evaluations, and students interviewed by
Reilly spanning two semesters established that many,
if instructor.
However, respondent expressed no remorse or ac
ceptance of responsibility for his conduct' He main
tains the erroneous position that in order to be effec
tive, he needs to maintain the conversational, and of
ten crude, language that one might overhear in a stu
dent dining room or on the sports field. The fact is, if
respondent elected to do so, he could engage his stu
dents with the material, maintain participation, and
exhibit the professionalism expected of a professor
with respondent’s academic pedigree. There are
plenty of examples of educators across many different
media platforms who do just that. Respondent’s belief
that the binary decision of being “off-the-wall Jerry
Springer” or “boring textbook-reading Mr. Rogers” is
simply a fallacy. Finally, and most concerning, is the
way respondent dealt with students he deemed to be
a problem. Respondent might be correct that most
complaints were from “D” or “F” students. But the re
sponsibility of a college professor is for all students —
App-79
not just the ones who do well or personally relate to
respondent. Respondent’s often derisive and dis
missive attitude to those who questioned his authority
highlight the fact that he lacks the temperament to be
in a community college classroom. Accordingly, over
whelming evidence established that respondent does
not have the temperament to comport his behavior to
the professional standards expected by the district
and is thus evidently unfit for service.
Respondent’s Defenses
DISTRICT’S FAILURE TO TIMELY
COMPLETE EVALUATION
25. Respondent contends the district failed to com
ply with Section 8761 because the district had not
evaluated his performance in the previous three years
in accordance with Section 87663, subdivision (a),
which provides that “regular employees shall be eval
uated at least once in every three academic years.”3
Respondent’s last evaluation was completed No
vember 2, 2015, and covered the period from October
12, 2012, to November 2, 2015.4 Section 87663, subdi
vision (a), requires one evaluation every three aca
demic years. Respondent’s last evaluation was during
the 2015/2016 school year. In order to comply with the
3 Subdivision (b), provides that the evaluation “shall be con
ducted in accordance with the standards and procedures estab
lished by the rules and regulations of the governing board of the
employing district.” The district’s “Academic Employee Master
Agreement 2015-2018” governs faculty evaluations and provides
that the district will initiate the tenured faculty evaluation pro
cess every three years.
4 The evaluation was signed by the Saddleback President on Feb
ruary 11, 2016.
App-80
statute, the district was required to again evaluate re
spondent three academic years following the last eval
uation, which would be during the 2018/2019 aca
demic year. Thus, compliance with Section 87663,
subdivision (a), would have been maintained so long
as an evaluation was completed before the end of the
2018/2019 academic year, or May 2019. Respondent’s
notice of termination in January 2019 preempted the
need for another evaluation. No violation of Section
87663 was established, and the district complied with
the requirements of Section 87661.
Even had there not been strict compliance with Sec
tion 87661 based on failure to initiate the evaluation
process every three years as specified in the district’s
collective bargaining agreement, the doctrine of sub
stantial compliance may be applied to the instructor
evaluation requirements. (Miller v. Chico Unified Sch.
Dist. Bd. OfEduc. (1979) 24 Cal.3d 703, 717 (rejecting
an “overly restrictive” interpretation of similar evalu
ation requirements in the Education Code).) In this
regard, the district substantially complied with the
statutory requirements. Finally, even if there were a
technical violation of the instructor evaluation re
quirements, such a violation does not prohibit the dis
trict from pursuing respondent’s dismissal on grounds
other than instructor incompetence. (Tarquin v. Com
mission On Professional Competence (1978) 84
Cal.App.3d 251, 26O.)5
5 In Tarquin, a teacher was charged with incompetency, evident
unfitness for service, and persistent violation of, or refusal to
obey, the school rules. (Id.at p. 255.) The teacher objected in part
because the district had not complied with the requirements of
former section 13407 and was therefore without jurisdiction to
proeeed with the charges. (Id. at p. 256.) Former section 13407
App-81
VIOLATION OF RESPONDENT’S FIRST
AMENDMENT RIGHTS
26. While respondent frames his dismissal as a
“profanity” case, the causes for discipline extend be
yond his actual speech in the classroom. Nevertheless,
respondent contends that the district may not proceed
with termination because it violated his rights under
the First Amendment of the United States Constitu
tion. In support of his position, respondent cites Cohen
v. San Bernardino Community College District (9th
Cir. 1996) 92 F.3d 968. The following summarizes the
facts from the Cohen decision:
Cohen was a tenured professor at the College who
taught English and Film Studies there since 1968. In
the Spring of 1992, Cohen taught a remedial English
class, which was a prerequisite to other college-level
English classes. One student in the class became of
fended by Cohen’s repeated focus on topics of a sexual
nature, his use of profanity and vulgarities, and by his
comments which she believed were directed intention
ally at her and other female students in a humiliating
and harassing manner. During this class Cohen began
required that the District provide the teacher with an evaluation
of his performance and allow the teacher an opportunity to cor
rect the faults and overcome the grounds for the charges of in
competency. (Ibid.) In rejecting the teacher’s claim, the Court of
Appeal held that the district’s failure to comply with the evalua
tion requirement precluded it only from proceeding against re
spondent on the charge of incompetency. (Id. at p. 260.) As to the
remaining charges (evident unfitness for service and persistent
violations of school laws and regulations), the evaluation require
ments were inapplicable, and the district had jurisdiction to pro
ceed on those grounds for removal which did not involve incom
petency. (Ibid.)
App-82
a class discussion on the issue of pornography and
played the “devil’s advocate” by asserting controver
sial viewpoints. Cohen has for many years typically
assigned provocative essays such as Jonathan Swift’s
“A Modest Proposal” and discussed subjects such as
obscenity, cannibalism, and consensual sex with chil
dren in a “devil’s advocate” style. During classroom
discussion on pornography in the remedial English
class in the Spring of 1992, Cohen stated in class that
he wrote for Hustler and Playboy magazines and he
read some articles out loud in class. Cohen concluded
the class discussion by requiring his students to write
essays defining pornography. When Cohen assigned
the “Define Pornography” paper, the student asked for
an alternative assignment, but Cohen refused to give
her one.
The student Stopped attending Cohen’s class and
received a failing grade for the semester. She subse
quently complained about Cohen’s statements and
conduct to the chair of the English Department, as
serting that Cohen had sexually harassed her. She
subsequently filed a formal written student grievance
against Cohen.
Following a hearing before a grievance committee,
the Board found that Cohen engaged in sexual harass
ment which unreasonably interfered with an individ
ual’s academic performance and created an intimidat
ing, hostile, or offensive learning environment. The
College took adverse employment action against Co
hen based on this conclusion. Cohen asserted that his
First Amendment rights have been violated. (Id. at pp.
969 -971.)
The Ninth Circuit Court of Appeals concluded that
the College’s sexual harassment policy was
App-83
unconstitutionally vague as applied to Cohen but de
clined to define “the precise contours of the protection
the First Amendment provides the classroom speech
of college professors.” (Id. at pp. 971-972.) In this case,
the College punished Cohen based on his teaching
methods under the provision of the sexual harassment
policy that prohibited conduct having the “effect of un
reasonably interfering with an individual’s academic
performance or creating an intimidating, hostile, or
offensive learning environment.” (Id. at p. 972.) The
Court noted that Cohen used a confrontational teach
ing style designed to shock his students and make
them think and write about controversial subjects.
(Ibid) He assigned provocative essays and discussed
controversial subjects. At times, he used vulgarities
and profanity in the classroom and placed substantial
emphasis on topics of a sexual nature. (Ibid.)
The court stated, “We do not decide whether the
College could punish speech of this nature if the Policy
were more precisely construed by authoritative inter
pretive guidelines or if the College were to adopt a
clearer and more precise policy. Rather, we hold that
the Policy is simply too vague as applied to Cohen in
this case.” (Ibid) The court highlighted that Cohen’s
speech did not fall within the core region of sexual
harassment as defined by the Policy, but instead, offi
cials of the College, on an entirely ad hoc basis, ap
plied the Policy to punish teaching methods that Co
hen had used for many years. “Cohen was simply
without any notice that the Policy would be applied in
such a way as to punish his longstanding teaching
style—a style which, until the College imposed pun
ishment upon Cohen under the Policy, had apparently
been considered pedagogically sound and within the
App-84
Respondent argues that the district does not have an
offensive language policy, and the “vague” policies
cited in the Accusation are inadequate as a matter of
law to apply to college instructors who approach con
troversial topics that might offend students and in
spire complaints. Respondent also argues that the
conduct by Cohen was “orders of magnitude” beyond
what is alleged by respondent.
Respondent’s reliance on Cohen is misplaced. The
Ninth Circuit expressly declined to decide whether
the College could punish Cohen’s speech if the sexual
harassment policy “were more precisely construed by
authoritative interpretive guidelines or if the College
were to adopt a clearer and more precise policy.” (Id.
at p. 972.) Moreover, the court determined that Cohen
was never placed on notice that the sexual harass
ment policy would be applied to Cohen until he had
been punished. (Ibid.) In this case, the constitutional
ity of the district’s harassment/discrimination policy
and regulation is outside the jurisdiction of the admin
istrative hearing process. (See Cal. Const, art. Ill, §
3.5 (administrative agency has no power to refuse to
enforce a statute, on the basis of its being unconstitu
tional unless an appellate court has decided that such
statute is unconstitutional).) Notwithstanding, the
district’s harassment/ discrimination regulations are
far more specific and precise than the one at issue in
Cohen. Moreover, unlike in Cohen, respondent was
placed on notice on multiple occasions that the district
believed his classroom conduct to be inappropriate. Fi
nally, because the Cohen court held that the College’s
harassment policy was unconstitutionally vague, it
did not analyze whether Cohen’s speech fell within
First Amendment protections.
App-85
The Ninth Circuit has ruled that a public university
professor’s academic speech is protected by the First
Amendment under the analysis set forth in Pickering
v. Board of Education (1968) 391 U.S. 563, 568.
(Demers v. Austin (9th Cir. 2014) 746 F.3d 402, 411—
14.) The Pickering test contains two essential inquir
ies. First, for a public employee’s speech to receive pro
tection under the First Amendment, the employee
must show that his or her speech addresses “matters
of public concern.” (Pickering, supra, at p. 568.) Sec
ond, an employee’s interest “in commenting upon mat
ters of public concern” must outweigh “the interest of
the State, as an employer, in promoting the efficiency
of the public services it performs through its employ
ees.” (Ibid). Under this inquiry, the burden shifts to
the government to show that its “legitimate adminis
trative interests outweigh the employee’s First
Amendment rights.” (Thomas v. City of Beaverton (9th
Cir. 2004) 379 F.3d 802, 808.)
Along with these two essential inquiries, the Ninth
Circuit has established several additional showings
that a public employee must make in order to prevail
on a First Amendment retaliation claim. (Eng v. Coo
ley (9th Cir. 2009) 552 F.3d 1062, 1070) A public em
ployee must also show that the government “took ad
verse employment action ... [and that the] speech was
a ‘substantial or motivating’ factor in the adverse ac
tion.” (Id. at p. 1071 (citing Coszalter v. City of Salem
(9th Cir. 2003) 320 F.3d 968, 973).) And finally, if the
government fails the balancing test, it alternatively
bears the burden of demonstrating that it “would have
reached the same [adverse employment] decision even
in the absence of the [employee’s] protected conduct.”
(Id. at p. 1072 (internal citations omitted).)
App-86
In this case, then, there is a four-step series of ques
tions in order to determine whether the district disci
plined respondent for exercising his free speech rights
under the First Amendment: (1) whether respondent’s
speech involves a matter of public concern; (2)
whether the district’s legitimate administrative inter
ests outweigh respondent’s First Amendment rights
to free speech; (3) whether respondent’s protected
speech was a substantial or motivating factor in an
adverse employment action; and (4) whether the dis
trict would have subjected respondent to the adverse
employment action even absent the protected speech.
(Demers, supra, at p. 417.)
The first step in determining whether respondent’s
speech is protected under the First Amendment is to
determine whether it addresses a matter of public
concern. (Pickering, supra, at p. 568.) Public concern
is “defined broadly.” (Demers, supra, at pp. 415-16.)
“Speech involves a matter of public concern when it
can fairly be considered to relate to ‘any matter of po
litical, social, or other concern to the community.’”
(Johnson v. Multnomah Cnty (9th Cir. 1995) 48 F.3d
420, 422 (citation omitted).) The fundamental ques
tion is “whether the speech addressed matters of pub
lic as opposed to personal interest.” (Demers, supra,
at p. 415.) “Whether an employee’s speech addresses
a matter of public concern must be determined by the
content, form, and context of a given statement, as re
vealed by the. whole record.” (Connick v. Myers (1983)
461 U.S. 138, 147-48.)
There is little question that respondent’s lectures on
subjects such as America’s involvement in the IranIraq war, Ariana Huffington’s rise to power, and the
evolution of the banking system, as a whole, pertain
App-87
to matters of public concern. However, the content of
the lectures is not at issue. Rather, the questionable
speech at issue is respondent’s repeated use of profan
ity for no academic reason, use of derogatory slang
such as “tards,” reference to wives as “bitches,” use of
the term “hookers” to describe Persian dress, refer
ence to Huffington “blowing” her way to the top, dis
cussion of a student’s appearance and large chest un
related to an academic subject, and “jokes” about kill
ing students who ask math questions. Statements
that clearly do not constitute matters of public con
cern include the joke about killing students who ask
math questions, the story about a previous student’s
physical appearance on a jail tour, the repeated use of
profanity without any educational purpose, and call
ing himself and students “tards” or “retarded.” Re
spondent does not have a constitutional right to em
ploy such statements in a classroom setting where
they are not germane to the subject matter or are in
contravention of the district’s harassment/ discrimi
nation policy. (See FCC v. Pacifica (1978) 438 U.S. 726,
747 (finding speech that is ‘“vulgar,’ ‘offensive,’ and
‘shocking’... is not entitled to absolute constitutional
protection under all circumstances”).)
The remaining statements were all within the con
text of lectures that do qualify aS a public concern.
Free speech protections of the First Amendment trig
ger even when other aspects of a communication do
not qualify as a public concern. (Connick, supra, at
p.149.) Therefore, even if certain components of re
spondent’s lectures do not constitute a matter of pub
lic concern, some part of the lecture did address a mat
ter of public concern, so it meets the public concern
requirement under Pickering.
App-88
The fact that respondent’s speech touched on a
matter of public concern does not end the inquiry. The
“public concern” prong is a necessary, but not a suffi
cient, condition of constitutional protection under the
First Amendment. “It merely brings the claim within
the ‘coverage’ of the First Amendment and ensures
that a court will test the reasons for restrictions
against First Amendment standards.” (Gilbrook v.
City of Westminster (9th Cir. 1999) 177 F.3d 839, 867
(internal citation and quotations omitted).) Once a
plaintiff shows that his or her statements were of pub
lic concern, the burden shifts to the defendant to show
that, under the balancing test, its legitimate adminis
trative interests in regulating the speech outweigh
the plaintiffs First Amendment rights. (Bauer v.
Sampson (9th Cir. 2001) 261 F.3d 775, 784.) The bal
ancing “requires full consideration of the govern
ment’s interest in the effective and efficient fulfill
ment of its responsibilities to the public.” (Voigt v.
Saveli (9th Cir. 1995) 70 F.3d 1552, 1561.)
The Ninth Circuit has listed five factors for use in
the balancing analysis: (1) whether the employee’s
speech disrupted harmony among co-workers; (2)
whether the relationship between the employee and
the employer was a close working relationship with
frequent contact which required trust and respect in
order to be successful; (3) whether the employee’s
speech interfered with performance of his or her du
ties; (4) whether the employee’s speech was directed
to the public or to a colleague; and (5) whether the em
ployee’s statements were ultimately determined to be
false. (Brewster v. Bd. of Ed. (9th Cir. 1998) 149 F.3d
971, 980-81.) Because Pickering requires the balanc
ing of these factors, which involves a fact-sensitive
App-89
inquiry based on the totality of the circumstances, no
factor is dispositive. {Gilbrook, 177 F.3d at p. 868.)
In Bauer, the Ninth Circuit applied these factors to
find that a public university’s interests as an em
ployer did not outweigh the plaintiff-professor ’s First
Amendment rights. In that case, a tenured professor
at Irvine Valley had prepared and circulated various
writings and illustrations in a campus newspaper {Id.
at p. 780.) The district, however, did not approve of
the professor’s speech. When analyzing the district’s
interests in prohibiting the speech as compared to the
professor’s interests in free speech, the court noted
first that while the professor’s speech created some
disharmony among his colleagues, it was unlikely that
the speech was the primary reason for disharmony on
the college campus because the school was going
through a contentious period. {Id. at p. 785.) Second,
the court reasoned that given the nature of academic
life, especially at the college level, it was not necessary
for the professor and the administration to enjoy a
close working relationship. {Ibid.) Third, the court de
termined that the College had not shown that the pro
fessor’s speech had any negative impact on his teach
ing or other professional responsibilities. {Ibid.)
Fourth, the court found that the speech had not been
directed to the media or a government colleague, but
exclusively to the college community. {Ibid.) And fifth,
the court found that the professor’s expression was an
opinion, and not factual assertions that could be
proven false. {Ibid.)
Here, it was not established that that respondent’s
speech caused disharmony among respondent and his
colleagues, and as the Ninth Circuit determined in
Bauer, a “close working relationship” is not necessary
App-90
at the university level. (Id. at p. 785.) However, the
district has presented convincing evidence that the
speech had a significant negative impact on respond
ent’s teaching responsibilities. Multiple students
dropped, or failed to continue attending, respondent’s
class. Multiple students have complained about re
spondent’s comments, and it was established that the
comments interfered with their ability to learn in the
class. The district’s interest in maintaining a hostilefree learning environment, particularly as it relates to
its requirements under federal and state law, is well
recognized. However, the interests of allowing persons
to speak freely in the college and university setting
are equally as well-established. Academic freedom is
“a special concern of the First Amendment, which does
not tolerate laws that cast a pall of orthodoxy over the
classroom.” (Keyishian v. Bd. of Regents (1967) 385
U.S. 589, 603.) Unlike in Bauer, the evidence estab
lished that respondent’s right to free speech was out
weighed by the district’s interest in regulating such
speech. Moreover, the restriction on respondent’s
speech is minimal. Of the offending conduct, none was
related to the substance of respondent’s lectures. The
only limitation was that he refrain from using unnec
essarily gratuitous language. As stated by the Sixth
Circuit Court of Appeals,
While a professor’s rights to academic freedom and
freedom of expression are paramount in the academic
setting, they are not absolute to the point of compro
mising a student’s right to learn in a hostile-free envi
ronment. To hold otherwise under these circum
stances would send a message that the First Amend
ment may be used as a shield by teachers who choose
to use their unique and superior position to sexually
App-91
harass students secure in the knowledge that what
ever they say or do will be protected. (Bonnell v. Lo
renzo (6th Cir. 2001) 241 F.3d 800, 823-24 (emphasis
in original).
Accordingly, respondent’s argument that the dis
trict unlawfully infringed on his First Amendment
rights is rejected.
Conclusion
27. Cause exists to dismiss respondent pursuant to
Section 87732, subdivisions (d) and (f). The district’s
decision to dismiss respondent from employment is
reasonable and supported by a preponderance of the
evidence.
ORDER
The South Orange County Community College Dis
trict’s decision to terminate respondent Howard Gensler’s employment is affirmed.
DATE: October 14, 2020
ADAM L. BERG
Administrative Law Judge
Office of Administrative Hearings
App-92
Appendix D
[Filed: Jan. 14, 2026]
Court of Appeal, Fourth Appellate District, Division
Three - No. G064067
S294180
IN THE SUPREME COURT OF CALIFORNIA
En Banc
HOWARD GENSLER, Plaintiff and Appellant,
v.
BOARD OF TRUSTEES OF THE SOUTH ORANGE
COUNTY COMMUNITY COLLEGE DISTRICT, et
al., Defendants and Respondents.
The petition for review is denied.
The request for an order directing publication of
opinion is denied.
GUERRERO
Chief Justice
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