Opinion
THE COURT.
Defendant Board of Education of the San Diego Unified School District (hereinafter “board”) and its secretary, Jack Hornback, appeal from a judgment granting a peremptory writ of mandate. The writ directs the board to set aside its administrative decision transferring Halvor Gerald Adcock (hereinafter “Adcock”) from Clairemont High School to another school, and further ordering the board to reinstate Adcock to his former position, that of a tenured teacher of social studies at Clairemont.
For the reasons explained below, we conclude that the trial court was correct not only in making an independent assessment of the record but also in determining that the reason for the transfer was the disapproval by the school administration of Adpock’s exercise of First Amendment rights and in concluding that the subsequent transfer was not justified by any compelling state interest.
Adcock taught social studies at Clairemont from 1958 until June 1969. [63]*63Clairemont is a senior high school located within the San Diego Unified School District, providing instruction for grades 10 through 12. In June 1969, the principal of the school submitted a written memorandum requesting Adcock’s transfer to another school because of his criticism of certain school policies and regulations and the effects of the criticism on school staff and parents. The criticisms related to the dress and grooming code, the outside speaker policy, and the administration’s refusal to permit publication of a second student newspaper.1 The request was granted, and Adcock was reassigned to Roosevelt Junior High School where he taught seventh grade classes during the 1969-1970 school year.
On Adcock’s appeal to the board, a hearing was conducted by a state hearing officer of the California Office of Administrative Procedure- substantially in accordance with the hearing procedures set forth in the Administrative Procedure Act, section 11500 et seq. of the Government Code. After seven days of hearing which included the testimony of some 30 witnesses, the hearing officer submitted a proposed decision finding the transfer discriminatory and a misuse of delegated authority, and ordering Adcock reinstated at Clairemont High School.2 The board unanimously declined [64]*64to adopt the proposed decision. Instead, acting pursuant to section 11517, subdivision (c), of the Government Code,3 it reviewed the record of the hearing without taking additional evidence and afforded each party the opportunity to submit additional written argument.4
[65]*65The board’s findings can be summarized as follows: Adcock’s open and persistent criticism of rules and policies tended to undermine the authority of teachers, the administration and parents. He spoke out against administrative directives. His attitudes alienated some of his fellow teachers, administrators, and many parents. This divisiveness became a matter of concern to the principal and his administrative staff because it affected faculty morale and community attitudes toward the school. Adcock was never told to desist nor told that if he persisted he would be transferred to another school. The board made no finding concerning the distribution of handbills.
The board concluded that Adcock’s transfer was not discriminatory and did not involve a misuse of delegated authority. It approved the transfer. However, the board ordered Adcock transferred to a position of equivalent rank and grade, found that the transfer to a junior high school was not such a transfer and transferred him to another high school within the district.
Adcock petitioned the superior court for a writ of mandamus. (Gov. Code, § 11523; Code Civ. Proc., § 1094.5; Griggs v. Board of Trustees, 61 Cal.2d 93, 96 [37 Cal.Rptr. 194, 389 P.2d. 722].) The case was submitted on the record before the hearing officer without additional evidence. The court issued the writ of mandamus concluding that the transfer was made as a means of, and with the effective result of, denying Adcock his First Amendment freedoms.
It is settled that a teacher’s right to speak is constitutionally protected as long as it does not result in any disruption, or impairment of discipline or materially interfere with school activities. (Tinker v. Des Moines School Dist., 393 U.S. 503 [21 L.Ed.2d 731, 89 S.Ct. 733]; Pickering v. Board of Education, 391 U.S. 563 [20 L.Ed.2d 811, 88 S.Ct. 1731]; Keyishian v. Board of Regents, 385 U.S. 589 [17 L.Ed.2d 629, 87 S.Ct. 675]; Bekiaris v. Board of Education, 6 Cal.3d 575 [100 Cal. Rptr. 16, 493 P.2d 480]; L. A. Teachers Union v. L. A. City Bd. of Ed., 71 Cal.2d 551 [78 Cal.Rptr. 723, 455 P.2d 827]; Board of Trustees v. Owens, 206 Cal.App.2d 147 [23 Cal.Rptr. 710]; see also Note, Developments in the Law—Academic Freedom (1968) 81 Harv.L.Rev. 1045, 1071-1075; Van Alstyne, Constitutional Rights of Teachers and Professors (1970) Duke L.J. 841.)
Although the “substantial evidence” rule has been held to be applicable to determinations of local administrative boards, it has been essential to adopt a special rule or standard to review administrative decisions [66]*66when constitutional rights are assertedly limited. (Bekiaris v. Board of Education, supra, 6 Cal.3d 575, 586-587; Bixby v. Pierno, 4 Cal.3d 130, 140-141 [93 Cal.Rptr. 234, 481 P.2d 242].) As no party to this action has challenged the continued vitality of the “substantial evidence” standard of review in most determinations of local administrative boards, we have no occasion herein to reexamine the same.
In order to retain the ultimate responsibility for insuring that constitutional rights not be abridged in the absence of a sufficient compelling public interest, the special rule referred to above requires that the trial court must make an independent assessment of the established factual elements to determine whether the true reason for the board’s action was the exercise of constitutional rights and, if so, whether the resulting limitation on the exercise of these rights can be justified by any compelling state interest. On appeal from the.decision of the trial court, the appellate court must uphold the trial court’s determination as to the basis of the administrative action if supported by substantial evidence. (Bekiaris v. Board of Education, supra, 6 Cal.3d 575, 590 et seq.; L. A. Teachers Union v. L. A. City Bd. of Ed., supra, 71 Cal.2d 551, 557.)
In Bekiaris we held that the special standard applies when it is claimed that the administrative action in dismissing an employee was based on official dissatisfaction with the exercise of constitutional rights.
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Opinion
THE COURT.
Defendant Board of Education of the San Diego Unified School District (hereinafter “board”) and its secretary, Jack Hornback, appeal from a judgment granting a peremptory writ of mandate. The writ directs the board to set aside its administrative decision transferring Halvor Gerald Adcock (hereinafter “Adcock”) from Clairemont High School to another school, and further ordering the board to reinstate Adcock to his former position, that of a tenured teacher of social studies at Clairemont.
For the reasons explained below, we conclude that the trial court was correct not only in making an independent assessment of the record but also in determining that the reason for the transfer was the disapproval by the school administration of Adpock’s exercise of First Amendment rights and in concluding that the subsequent transfer was not justified by any compelling state interest.
Adcock taught social studies at Clairemont from 1958 until June 1969. [63]*63Clairemont is a senior high school located within the San Diego Unified School District, providing instruction for grades 10 through 12. In June 1969, the principal of the school submitted a written memorandum requesting Adcock’s transfer to another school because of his criticism of certain school policies and regulations and the effects of the criticism on school staff and parents. The criticisms related to the dress and grooming code, the outside speaker policy, and the administration’s refusal to permit publication of a second student newspaper.1 The request was granted, and Adcock was reassigned to Roosevelt Junior High School where he taught seventh grade classes during the 1969-1970 school year.
On Adcock’s appeal to the board, a hearing was conducted by a state hearing officer of the California Office of Administrative Procedure- substantially in accordance with the hearing procedures set forth in the Administrative Procedure Act, section 11500 et seq. of the Government Code. After seven days of hearing which included the testimony of some 30 witnesses, the hearing officer submitted a proposed decision finding the transfer discriminatory and a misuse of delegated authority, and ordering Adcock reinstated at Clairemont High School.2 The board unanimously declined [64]*64to adopt the proposed decision. Instead, acting pursuant to section 11517, subdivision (c), of the Government Code,3 it reviewed the record of the hearing without taking additional evidence and afforded each party the opportunity to submit additional written argument.4
[65]*65The board’s findings can be summarized as follows: Adcock’s open and persistent criticism of rules and policies tended to undermine the authority of teachers, the administration and parents. He spoke out against administrative directives. His attitudes alienated some of his fellow teachers, administrators, and many parents. This divisiveness became a matter of concern to the principal and his administrative staff because it affected faculty morale and community attitudes toward the school. Adcock was never told to desist nor told that if he persisted he would be transferred to another school. The board made no finding concerning the distribution of handbills.
The board concluded that Adcock’s transfer was not discriminatory and did not involve a misuse of delegated authority. It approved the transfer. However, the board ordered Adcock transferred to a position of equivalent rank and grade, found that the transfer to a junior high school was not such a transfer and transferred him to another high school within the district.
Adcock petitioned the superior court for a writ of mandamus. (Gov. Code, § 11523; Code Civ. Proc., § 1094.5; Griggs v. Board of Trustees, 61 Cal.2d 93, 96 [37 Cal.Rptr. 194, 389 P.2d. 722].) The case was submitted on the record before the hearing officer without additional evidence. The court issued the writ of mandamus concluding that the transfer was made as a means of, and with the effective result of, denying Adcock his First Amendment freedoms.
It is settled that a teacher’s right to speak is constitutionally protected as long as it does not result in any disruption, or impairment of discipline or materially interfere with school activities. (Tinker v. Des Moines School Dist., 393 U.S. 503 [21 L.Ed.2d 731, 89 S.Ct. 733]; Pickering v. Board of Education, 391 U.S. 563 [20 L.Ed.2d 811, 88 S.Ct. 1731]; Keyishian v. Board of Regents, 385 U.S. 589 [17 L.Ed.2d 629, 87 S.Ct. 675]; Bekiaris v. Board of Education, 6 Cal.3d 575 [100 Cal. Rptr. 16, 493 P.2d 480]; L. A. Teachers Union v. L. A. City Bd. of Ed., 71 Cal.2d 551 [78 Cal.Rptr. 723, 455 P.2d 827]; Board of Trustees v. Owens, 206 Cal.App.2d 147 [23 Cal.Rptr. 710]; see also Note, Developments in the Law—Academic Freedom (1968) 81 Harv.L.Rev. 1045, 1071-1075; Van Alstyne, Constitutional Rights of Teachers and Professors (1970) Duke L.J. 841.)
Although the “substantial evidence” rule has been held to be applicable to determinations of local administrative boards, it has been essential to adopt a special rule or standard to review administrative decisions [66]*66when constitutional rights are assertedly limited. (Bekiaris v. Board of Education, supra, 6 Cal.3d 575, 586-587; Bixby v. Pierno, 4 Cal.3d 130, 140-141 [93 Cal.Rptr. 234, 481 P.2d 242].) As no party to this action has challenged the continued vitality of the “substantial evidence” standard of review in most determinations of local administrative boards, we have no occasion herein to reexamine the same.
In order to retain the ultimate responsibility for insuring that constitutional rights not be abridged in the absence of a sufficient compelling public interest, the special rule referred to above requires that the trial court must make an independent assessment of the established factual elements to determine whether the true reason for the board’s action was the exercise of constitutional rights and, if so, whether the resulting limitation on the exercise of these rights can be justified by any compelling state interest. On appeal from the.decision of the trial court, the appellate court must uphold the trial court’s determination as to the basis of the administrative action if supported by substantial evidence. (Bekiaris v. Board of Education, supra, 6 Cal.3d 575, 590 et seq.; L. A. Teachers Union v. L. A. City Bd. of Ed., supra, 71 Cal.2d 551, 557.)
In Bekiaris we held that the special standard applies when it is claimed that the administrative action in dismissing an employee was based on official dissatisfaction with the exercise of constitutional rights. This rule is not designed to protect the employee’s employment rights but is intended to protect the employee’s freedom to exercise First Amendment rights. Accordingly, it has been applied in cases where the employee had no tenure or civil service rights and where the employee could have been dismissed for no reason whatsoever. (Rosenfield v. Malcolm, 65 Cal.2d 559, 564 [55 Cal.Rptr. 505, 421 P.2d 697]; Bagley v. Washington Township Hospital Dist., 65 Cal.2d 499, 504 [55 Cal.Rptr. 401, 421 P.2d 409]; Stanton v. Dumke, 64 Cal.2d 199, 207 [49 Cal.Rptr. 380, 411 P.2d 108]; see also Hollon v. Pierce, 257 Cal.App.2d 468, 476-478 [64 Cal.Rptr. 808].) Because the rule was established in order to protect constitutional rights and not employment rights, it must apply not only to dismissals but also to all administrative sanctions based on conduct protected by the First Amendment.
Any sanction imposed for the exercise of protected First Amendment conduct must be viewed as having a chilling effect on speech and on the right of teachers to engage in those activities which are protected by the First Amendment. Lesser penalties than dismissal can effectively silence teachers and compel them to forego exercise of the rights guaranteed them by our Constitution.
[67]*67Thus in Finot v. Pasadena City Bd. of Education, 250 Cal.App.2d 189 [58 Cal.Rptr. 520], a transfer was invalidated because it had been based upon activity of a teacher related to exercise of First Amendment rights. There, a high school teacher was transferred from his classroom assignment to home teaching though his pay and rank remained the same. The court held that even though he could have been assigned to any teaching duty for which he was qualified and for which he was needed (Ed. Code, §§ 931, 939, subd. (c)), Ms right to engage in such activity was constitutionally protected, and that his transfer from one assignment to another because of the exercise of his constitutional rights violated those rights and constituted a legally remediable detriment.
We concede that the superintendent obviously has and must have very broad discretion in transferring teachers from one school to another, i.e., when it in fact “is in the best interest of the district” (Ed. Code, § 939, subd. (c)), and his discretion ordinarily will not be reviewed or interfered with by the trial court. It is only when it is asserted that the motivation for transfer is based on a teacher’s exercise of constitutionally protected rights that the trial court will conduct an independent review of the record to determine whether the assertion is true.
The Urnted States Supreme Court has emphasized that “The vigilant protection of constitutional freedoms is nowhere more vital than in the commimity of American schools” (Shelton v. Tucker, 364 U.S. 479, 487 [5 L.Ed.2d 231, 236, 81 S.Ct. 247]). It is the classroom and academic institutions which are the marketplace of ideas and where the exchange of ideas and arguments are to be fostered, not curtailed (Tinker v. Des Moines School Dist., supra, 393 U.S. 503, 512 [21 L.Ed.2d 731, 740-741]).
In Tinker the court also stated: “in our system, undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression. Any departure from absolute regimentation may cause trouble. Any variation from the majority’s opinion may inspire fear. Any word spoken, in class, in the lunchroom, or on the campus, that deviates from the views of another person may start an argument or cause a disturbance. But our Constitution says we must take this risk [citation]; and our history says that it is this sort of hazardous freedom—this kind of openness —that is the basis of our national strength and of the independence and vigor of Americans who grow up and live in this relatively permissive, often disputatious, society.
“In order for the State in the person of school officials to justify prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more than a mere desire to avoid the [68]*68discomfort and unpleasantness that always accompany an unpopular viewpoint.” (Tinker v. Des Moines Schol Dist., supra, 393 U.S. 503, 508-509 [21 L.Ed.2d 731, 739].)
It is true that the more serious and disturbing allegation against Adcock is the claim that his conduct resulted in disharmony among the faculty and resentment from parents. Yet as Tinker and L. A. Teachers clearly point out disharmony from speech is a natural by-product and any limitation or penalty imposed in the name of prevention of disharmony is an attack on speech. Furthermore, both decisions hold that disharmony is not a sufficient state interest to compel restrictions on First Amendment activity or to penalize a teacher for exercising First Amendment freedoms. Mere fear of disruption due to the expression of unpopular views will not justify interference with the free expression of opinion. (Tinker v. Des Moines School Dist., supra, 393 U.S. 503, 508-509.)
In the absence of actual disruption, any kind of administrative discipline for the content of speech is improper, where, as here, the unpopular views are uttered in forums designed for the airing of different views on controversial issues and where, as here, the views are uttered in a polite but forceful manner.
In balancing the important right of school authorities to administer the system efficiently, effectively and without internal antagonistic factors, the court must look carefully into both the dynamics of why the administrative action was taken and the inherent effect of taking it if that effect is also a part of the cause. Priorities place constitutional rights above unlimited administrative authority to act in their derogation. Disharmony and friction are the healthy but natural results of a society which cherishes the right to speak freely on a subject and these resultant by-products should never prevent an individual from speaking or cause that individual to be penalized for such speech. Any attempt to do so abrogates the protections that the First Amendment affords to all.
It should be pointed out that the penalty invoked against Adcock arose in part out of his speeches at the Open Forum at Clairemont. To help meet the growing unrest at Clairemont, school officials created an Open Forum as an outlet for expression of ideas of pressing interest which students, teachers, parents or the administration, felt needed resolution and which would be exposed to open discussion from all sides.
To create a forum for free and open discussion of the problems vitally affecting the institution and its members and then to penalize a participant who assumes the sincerity of purpose in its creation and therefore freely [69]*69participates, particularly in the absence of any objection to the nature of his participation at the time, is akin to entrapment. To invite teachers to openly discuss with parents, students and the administration the subjects logically before the forum and then to charge them with being uncooperative, obstructive and offensive to the administration, to other teachers and to parents because they argue their positions with vigor and at length is arbitrary and capricious administrative conduct, even in the absence of constitutional considerations. The dilemma is further exacerbated when no showing is made that such speeches disrupted classrooms, teaching efficiency, or in any way led to a potentially dangerous situation at the school.
Adcock’s speech did not pose a threat to interests of the school district which would justify a speech limitation. So far as appears from the record, all of his criticisms were made at a proper time and in an appropriate place and manner. His speech which resulted in friction was not speech that occurred in the classroom or that affected or interfered with his teaching. On the contrary, it is undisputed that Adcock was an unusually effective teacher. He obeyed the rules he was working to change, his criticism was directed toward accomplishing change, and he encouraged utilizing existing means for effecting change.
We conclude that the reason for the transfer in question was the exercise of protected First Amendment activity. That conclusion can be reached either by using traditional guidelines regarding judicial review of administrative decisions or by the application of independent review accorded those decisions which place an individual’s constitutional rights in jeopardy or which as in the instant case impose sanctions upon the individual for the exercise of those rights. The record clearly sustains the findings of the trial court.
The judgment is affirmed.