Judge: James C. Chalfant, Case: 22STCP04432, Date: 2024-01-04 Tentative Ruling

Case Number: 22STCP04432    Hearing Date: January 4, 2024    Dept: 85

            b. Persistent Violation of Rules

            Pursuant to section 44932(a)(8), a permanent teacher is subject to dismissal for “[p]ersistent violation of or refusal to obey the school laws of the state or reasonable regulations prescribed for the government of the public schools by the State Board or by the governing board of the school district employing him or her.”  The violation must be persistent or “motivated by an attitude of continuous subordination.”  Governing Board of the Oakdale Union School District v. Seaman, (1972) 28 Cal.App.3d 77, 81-82.  Cause for discipline may be based on the violation of school rules, including those requiring the timely submission of lesson plans and policies against excessive absenteeism.  San Dieguito Union High School District v. Commission on Professional Competence, (“San Dieguito”) (1982) 135 Cal.App.3d 288, 287-88. 

            c. Unfit to Teach       

A finding of misconduct is not alone enough to dismiss; that misconduct also must render the teacher unfit to teach.  San Dieguito, supra, 135 Cal.App.3d at 284-85.  The conclusion of unfitness must be based upon an objective standard as articulated in Morrison.  Ibid.

            In Morrison, the California Supreme Court articulated factors to consider in whether a credentialed employee’s misconduct renders him unfit for service as a teacher.  Those factors are: (a) likelihood that the conduct at issue may have adversely affected students/fellow teachers; (b) degree of such adversity anticipated; (c) proximity or remoteness in time of the conduct; (d) type of teaching certificate held by the party involved; (e) extenuating or aggravating circumstances, if any, surrounding the conduct; (f) likelihood of recurrence of the questioned conduct; (g) praiseworthiness or blameworthiness of motives resulting in the conduct; (h) extent to which disciplinary action may inflict an adverse impact or chilling effect upon constitutional rights of the teacher involved or other teachers.  Id. at 229-30.  Not every Morrison factor must be considered; a trier of fact may consider all of the factors that are relevant to the respective case.  Ibid.; West Valley-Mission College v. Concepcion, (1993) 16 Cal.App.4th 1766.

d. Suspension

Upon the filing of written charges in proceedings initiated under section 44934, if they charge a permanent employee of the school district with, inter alia, willful refusal to perform regular assignments without reasonable cause, as prescribed by reasonable rules and regulations of the employing school district, the governing board of the school district may, if it deems that action necessary, immediately suspend the employee from his or her duties.  §§ 44939(a)-(b).  It shall then give notice to him or her of his or her suspension, and that 30 days after service of the notice of dismissal, he or she will be dismissed, unless he or she demands a hearing. §44939(b).

D. Statement of Facts

            1. Background

            Knopke possesses a clear subject teaching credential in music and an administrative services credential.  AR 628, 727.  Knopke began work as a music teacher at Peary in 2007.  AR 727.  He received a rating of “Meets Standard Performance” on every evaluation from 2007 to 2020.  AR 767-68, 773-74, 776-77, 779-80, 783-84, 801.

            Knopke taught his music class remotely while LAUSD was shut down during the COVID-19 pandemic from March 2020 through February or March 2021.  AR 727.  He then returned to in-person teaching from March through August 2021.  AR 727.

            2. The August 13, 2021 Memo

            On August 13, 2021, LAUSD issued the Memo to all its employees.  AR 522.  The Memo stated that, as part of efforts to provide the safest possible environment in which to learn and work, all LAUSD employees would be required to be fully vaccinated against COVID-19 by October 15, 2021.  AR 522.  The vaccination requirement was a condition of continued employment.  AR 522.

            The Memo outlined a process for an employee to seek accommodation of a medical disability or sincerely held religious belief.  AR 522, 526.  The Memo attached an application for reasonable accommodation from the District COVID-19 Vaccine Policy.  AR 528.  After an employee filed the application, LAUSD would determine if the employee could not be vaccinated due to disability or a sincerely held religious belief.  AR 526.  If so, it would determine whether it could provide an accommodation so that the unvaccinated employee would not pose a danger to the health and safety of others at the employee’s worksite.  AR 526.  The accommodation process would determine if the employee could still perform the essential functions of that position.   AR 526.  Because essential functions vary by job class, the process would be case-by-case and may result in different results for different employees.  AR 526. 

If workplace accommodations could not reduce the risk the employee posed to acceptable levels, LAUSD could exclude the employee from physically entering the workplace.  AR 526.  LAUSD and employee would then determine if there were any available benefit time or leave provisions.  AR 526.  An employee’s failure to comply with the vaccination requirement or provide the appropriate qualifying accommodation documentation could result in disciplinary action, placement on unpaid leave, or separation from service.  AR 526.

            On August 26 and 27, 2021, LAUSD sent all employees notice of the vaccination requirement through Blackboard Connect (“Blackboard”), which is its internal electronic message system.  AR 529-30.

            3. The Reminders

            On September 8, 2021, the District reminded, via Blackboard, those employees who had not yet provided proof of vaccination that they must receive the final vaccine by October 1 to be fully vaccinated by the deadline of October 15, 2021.  AR 531-32.  All employees and non-employee adults providing services at District facilities must be fully vaccinated by the deadline.  AR 532.  In a section entitled Reasonable Accommodations, the reminder identified full vaccination as an “essential job function” from which no one was exempt.  AR 532.  Failure to provide documentation of the vaccination by then could result in disciplinary action, placement on unpaid leave, and/or separation from service.  AR 533.

            The September 8 message reiterated that, where feasible, LAUSD would reasonably accommodate employees who wish to continue working without full vaccination due to a documented disability or sincerely held religious belief.  AR 532.  Such accommodations would not include working at the facility without full vaccination.  AR 532.  LAUSD would engage in the interactive process to determine if it could accommodate the employee.  AR 532. 

            LAUSD acknowledged that, although rare, some positions avail themselves of the ability to remote work as a reasonable accommodation.  AR 532.  The interactive process would consider the availability and feasibility of remote work, but LAUSD would not offer it if the position’s essential duties require physical presence at a facility.  AR 532.  If a workplace accommodation could not reduce the risk to health and safety to an acceptable level, the employee could be excluded from physically entering the workplace.  AR 532.

            On September 15, 2021, LAUSD sent employees another reminder of the vaccination requirement via Blackboard.  AR 533-35.  The reminder set a September 24, 2021 deadline to apply for an accommodation.  AR 534.  It stated that no one is exempt from the vaccination requirement, and while LAUSD would reasonably accommodate employees with a documented disability or sincerely held religious belief, that would not include permission to continue to work at a District facility without full vaccination.  AR 535.  The reminder outlined a remote work option with LAUSD’s online independent study program through City of Angels.  AR 535.  Even if a teacher who was not fully vaccinated by the deadline received a reasonable accommodation, the teacher would not be allowed to teach at any site other than City of Angels.  AR 535.

            The September 15 email reiterated that if an alternative accommodation was not available, LAUSD and the employee at issue would determine if there are any available benefit time/leave provisions, such as use of the employee’s personal necessity, vacation, or unpaid leave.  AR 535.  This would also include illness leave if the accommodation request was due to medical reasons.  AR 535.

            Between September and October 2021, LAUSD issued five more reminders with language identical to the September 15 message.  AR 541-42, 547, 551-52, 554-56, 558-60.

            4. Knopke’s Application

            In August 2021, Knopke applied for accommodation based on a sincerely held religious belief.  AR 606.  In an accompanying letter, Knopke argued that use of a vaccine that could damage his body more than COVID-19 itself was antithetical to his faith.  AR 607. 

            Knopke also noted his whole family contracted COVID-19 but has since fully recovered.  AR 608.  His natural immunity from the infection made him an asset to LAUSD because he was not afraid to come in to work like some of his colleagues.  AR 608.  Knopke included a note from his doctor confirming that Knopke had been infected but has since recovered.  AR 609.

            On August 28, 2021, Knopke emailed LAUSD a letter from his pastor stating that Knopke’s religious convictions were sincere.  AR 611-12.

            On September 19, 2021, Naomi Suenaka (“Suenaka”) emailed Knopke on behalf of the Sincerely Held Religious Belief Committee, approving his accommodation request pending an available position in City of Angels for the 2021-2022 school year.  AR 613.  Suenaka informed Knopke that Human Resources would contact him directly for a City of Angels assignment.  AR 613.  If no positions were available by October 15, Knopke could use any applicable benefit time to ensure his payment.  AR 613.

            On September 21, 2021, Knopke emailed LAUSD to ask for information on next steps.  AR 617.  He also asked LAUSD to confirm that the reasonable accommodation was a position with City of Angels and that he could not enter a “district facility.”  AR 617.  Three days later, Knopke emailed his school principal, Christina Green (“Green”), and asked her to meet about the next step in the accommodation process.  AR 618. 

            Knopke also emailed LAUSD Director of Arts Education Steven J. McCarthy (“McCarthy”) and noted that there was no guarantee that City of Angels would retain him as one of its teachers.  AR 620-21.  He asked if City of Angels planned to hire a Visual and Performing Arts (“VAPA”) Coordinator to oversee the various VAPA teachers it would receive.  AR 621.  McCarthy replied that City of Angels did not plan to hire a VAPA Coordinator, adding that all City of Angels teachers teach many subjects, and that Knopke should remember that this would be temporary due to the pandemic.  AR 620.

            On September 27 and 28, 2021, Knopke emailed LAUSD to again ask about the next step in the reasonable accommodation process.  AR 622-23.  On September 28, Michelle Palomares responded on behalf of Organizational Effectiveness Director Maria Sotomayor (“Sotomayor”).  AR 624.  She informed Knopke that a position at City of Angels was available for him from October 5, 2021.  AR 624.  If Knopke accepted the position, he should inform his principal and fill out the Google form linked in the email.  AR 624.  He would then receive additional information about his assignment which would be in effect for the remainder of the school year.  AR 624.  The email warned Knopke that he would have to fully vaccinate by October 15 if he refused the assignment and chose to stay at his current worksite.  AR 624.

            On October 11, 2021, Knopke notified his union representative Woodrow Curry (“Curry”) that he would not accept the accommodation.  AR 625.  Instead of working at City of Angels, he would exhaust his full sick days and half days of leave.  AR 625.

            4. The NOUA and Suspension

            On October 20, 2021, District Administrator Jose Posada (“Posada”) and District Field Director Jeanette Stevens (“Stevens”) met with Knopke and union representative Curry.  See AR 730.  Knopke received a Notice of Unsatisfactory Act (“NOUA”) for evident unfitness for service under section 44932(a)(6), unprofessional conduct under section 44932(a)(2), a physical or mental condition rendering him unfit to instruct or associate with children under section 44932(a)(7), willful refusal to perform regular assignments without reasonable cause under section 44939, and persistent violation of or refusal to obey the school laws of the state or reasonable regulations prescribed by the State Board or the Board under section 44932(a)(8).  AR 499-500.  The regulations at issue included the Employee Code of Ethics, the LAUSD Human Resources Class Description for a Secondary Teacher, and the August 13, 2021 Memo.  AR 500.

            Based on these violations, a LAUSD administrator recommended a 15-day suspension and dismissal from LAUSD service.  AR 499.  Posada and Stevens issued a Notice of Suspension (“NOS”) for 15 days based on the same allegations.  AR 505-06.

            Knopke later asserted that he believed this meeting was a part of an interactive process to identify a reasonable accommodation other than at City of Angels.  See AR 731.  He told Posada and Stevens during this meeting that he had recovered from COVID-19 and was willing to test twice a week if he could teach on campus.  See AR 731.  Posada responded “thank you but we are not doctors.”  See AR 731.

            Knopke also told Posada and Stevens that he would be teaching outside of his credentials if he accepted the position at City of Angels.  See AR 731.  City of Angels’ teachers teach multiple subjects, but Knopke only held a single subject credential in music.  See AR 731.  Knopke later testified this caught Stevens off-guard, but Stevens then reassured Knopke that his credential would allow him to teach at City of Angels.  See AR 731.  Curry advised Knopke to contact LAUSD Administrator Michael Thompson (“Thompson”) with questions about teaching outside of his credentials.  See AR 731. 

            After the meeting, Stevens sent Knopke copies of the NOUA and NOS and asked him to acknowledge receipt.  AR 491-92.  Knopke replied that he understood those documents to be LAUSD’s position and he was signing them without waiving his right to seek religious exemption and accommodation, or to seek legal redress for wrongful denial thereof.  AR 491.

            On October 21, 2021, Knopke emailed Stevens that he would not sign the NOS until the LAUSD removed “libelous errors” from the causes of action which were professionally and personally inaccurate.  AR 489.  LAUSD was “bearing false witness” against him in violation of “God’s 9th Commandment.”  AR 489.  In support of his suggestion that he stay at Peary and test for COVID-19 twice a week, Knopke argued there was no difference between vaccination and natural immunity from a previous infection.  AR 490.  He sent links to four of 15 studies Daniel Horrowitz cited in a Blaze.com article to show that natural immunity is more robust than immunity via vaccination.  AR 489.

            5. Post-Suspension Communications

            Also on October 21, 2021, Knopke attempted to email Thompson to ask what subject area he would teach if he accepted the City of Angels position.  AR 493-94.  He relayed assertions from City of Angels teachers that they must teach various subjects no matter what their credential area is.  AR 493-94.  Knopke never received a response after the email was forwarded to the correct Michael Thompson.  AR 493.

            On October 26, 2021, Knopke emailed Lisa Fassett (“Fassett”) of the California Department of Education (“DOE”) to ask three questions.  AR 626-627.  He first asked Fassett to confirm whether he needed to have credentials to teach specific subjects in a K-12 public school.  AR 627.  He then asked if the subject matter competence requirement prohibits him from teaching subjects like Math, English, Science, History, or P.E. until he receives supplementary subject area authorization.  AR 627.  Finally, he asked in what other scenario could he legally teach those subjects.  AR 627.

            In response, Fassett confirmed that the Every Student Succeeds Act requires teachers to be fully credentialed in the subject and grade level they are going to teach.  AR 626.  Fassett also confirmed Knopke’s understanding of supplemental authorizations requirements.  AR 626.  However, when there is a shortage of teachers in certain subject areas, the Local Education Agency may have a teacher with a special permit or temporary certificate teach those classes.  AR 626.  Fassett advised Knopke to contact LAUSD for more information.  AR 626.

            6. The Dismissal

            On November 2, 2021, LAUSD notified Knopke of a virtual meeting on November 9 to discuss his possible dismissal and immediate suspension.  AR 484.  This would be Knopke’s opportunity to explain why he should not be suspended immediately and dismissed 30 days later based on the charges in the NOUA.  AR 484.  Knopke could also submit a written response.  AR 484.

            After the meeting, an LAUSD administrator would recommend whether the Board should proceed with the recommended dismissal.  AR 484.  If it did, the dismissal would take effect after 30 days’ written notice unless Knopke exercised his rights under section 44939.  AR 484.  Knopke would also be suspended without pay until one of those two things occurred.  AR 484. 

            Knopke, Stevens, Knopke’s union representative Jill Marucut, and LAUSD administrator Carlen Powell (“Powell”) attended the meeting on November 9, 2021.  AR  734.  In an email to Powell later that day, Knopke acknowledged Stevens’ assertion at the meeting that Knopke would be credentialed for his teaching assignment at City of Angels if he accepted it.  AR 487.  Although Knopke believed her, Knopke believed that this statement contradicted readily available information on the CTC website.  AR 487.

            Knopke again asserted that the charges against him were “libelous.”  AR 487.  Because all currently available vaccines were still under Emergency Use Authorization, a mandate requiring the use of those vaccines was illegal.  AR 487.  Imposing disciplinary action based on an illegal mandate was unlawful.  AR 487.

            He argued that LAUSD does not have a right to treat students, faculty and employees differently based on vaccination status.  AR 487.  It discriminated against employees with sincerely held religious beliefs when it segregated them to City of Angels for the rest of the school year.  AR 487.   That assignment was not a reasonable accommodation.  AR 487.

            Finally, Knopke argued that a vaccination mandate violates H&S Code section 24172(j)’s prohibition on medical experimentation without consent free from force, fraud, deceit, duress, coercion, or undue influence.  AR 487.

            On November 15, 2021, Powell notified Knopke that he would recommend that the Board dismiss Knopke from District employment.  AR 495-96.  

            On November 23, 2021, LAUSD Chief of Employee Support and Labor Relations filed a Statement of Charges against Knopke.  AR 288, 296.  The Statement of Charges requested Knopke’s continued suspension without pay and dismissal based on evident unfitness for service under section 44932(a)(6), a physical or mental condition rendering him unfit to instruct or associate with children under section 44932(a)(7), persistent violation of or refusal to obey the school laws of the state or reasonable regulations prescribed by the State Board or the Board under section 44932(a)(8), and willful refusal to perform regular assignments without reasonable cause under section 44939.  AR 288.

            On December 7, 2021, the Board informed Knopke that it had decided at a closed meeting that day to terminate his employment.  AR 297.  The termination would take effect 30 days after service of the notice unless he demanded a hearing pursuant to sections 44930 through 44988.  AR 297.

            7. The Administrative Hearing

            On December 15, 2021, Knopke requested a hearing to contest the Statement of Charges.  AR 345. 

            On March 3, 2022, LAUSD filed and served the First Amended Accusation (“FAA”), which removed the cause of action based on a physical or mental condition rendering Knopke unfit to instruct or associate with children under section 44932(a)(7).  AR 438-39.

            The CPC heard the matter on June 1 and 2, 2022.  AR 719.  The pertinent testimony is from LAUSD Assistant Chief Human Resources Officer Gifty Beets (“Beets”).  AR 808-09.  Beets’ duties include managing all LAUSD discipline.  AR 810.  She has a staff of human resources representatives and field directors for this purpose.  AR 810.  She also provides contractual guidance to implement collective bargaining agreements, develop and create policy, and provide guidance, information, and support to senior leaders as they do the same.  AR 810-11.

            The vaccination policy came from Murphy, Chief Human Resources Officer Dávalos, and Personnel Commission Director Gould.  AR 815.  Its purpose was to inform employees of what they needed to do to comply with the vaccination policy or request accommodation.  AR 815.

            Beets testified that if Knopke had accepted the offered position at City of Angels, he would have been credentialed to teach it.  AR 825-26.  Teachers with valid teaching credentials can teach at City of Angels because they have teaching flexibility and LAUSD provides the professional development necessary to prepare those teachers for their assignment at City of Angels.  AR 826.  Beets disagreed with Knopke’s assertion that this contradicted the CTC website.  AR 826.  LAUSD can allow teachers to be the supporting teacher on record for City of Angels’ independent study program.  AR 826-27.

            Beets did not know if City of Angels offered music classes.  AR 831.  LAUSD did not consider allowing Knopke to virtually teach music as an accommodation.  AR 832-33.  Because students were no longer remote, all teacher assignments at physical schools were in-person.  AR 832.         

LAUSD has a reasonable accommodation appeal committee.  AR 852.  If LAUSD determines it cannot accommodate an employee, the employee may request appeal committee review.  AR 852.  The interactive process includes a chance to explain to the appeal committee why the employee’s disability or religious beliefs would prevent them from working at an LAUSD facility.  AR 852.  Although LAUSD approved an accommodation, Knopke could have discussed other options with the appeal committee after he rejected the offered accommodation, and they would have continued the interactive process.  AR 852-53.  Beets did not know if anyone told Knopke about this option.  AR 853.

            8. Decision

            On September 7, 2022, the CPC issued a decision upholding the termination of Knopke’s employment with LAUSD.  AR 719-62.

            a. Factual Findings

            On August 13, 2021, LAUSD issued the COVID-19 vaccination policy to all employees.  AR 722.  The vaccination policy stated that all employees must be fully vaccinated by October 15, 2021.  The policy allowed employees to seek a reasonable accommodation based on a disability or sincerely held religious belief.  AR 723.  It warned that failure to comply may result in disciplinary action, placement on leave, or termination.  AR 724.  LAUSD sent copies of the vaccination policy through Blackboard on August 26 and 27, 2021.  AR 724. 

            A September 8 message clarified that no one would be exempt from the vaccination requirement.  AR 724.  Every employee and non-employee adult providing services at LAUSD facilities must be fully vaccinated by the October 15 deadline.  AR 724.  Permissible accommodation would not include working at any LAUSD facility without full vaccination.  AR 724-25.  If a workplace accommodation could not reduce the risk to others’ health and safety to an acceptable level, the employee could be excluded from physically entering the workplace.  AR 725.  A September 15, 2021 Blackboard message added that teachers who requests accommodation may receive an assignment at City of Angels, the District’s online independent study program.  AR 725-26.

            By October 11, 2021, Knopke chose to decline the City of Angels assignment offered by the District as an accommodation.  AR 730.  Based on a conversation with Principal Green earlier that month, Knopke believed that he could use his sick days for leave.  AR 730.  However, the vaccination policy stated that LAUSD and the employee collectively would determine what benefit time/leave provisions were available, such as use of “the employee’s illness leave (if due to medical reasons)”.  AR 730.  The use of illness leave was only an option when the employee applied for a medical condition accommodation.  AR 730.  At a second meeting in October, Principal Green told Knopke that he could only use personal necessity days, not sick days, to cover any leave.  AR 730.

            By October 15, 2021, Knopke had refused the City of Angels assignment and was still unvaccinated.  AR 730.  The vaccination policy therefore prohibited him from working at a District facility.  AR 730.

            At the appeal hearing, Beets testified that LAUSD developed the vaccination policy based on guidance from physicians, the Centers for Disease Control and Prevention (“CDC”), California Department of Public Health (“CDPH”), and the Los Angeles County Department of Health (“LACDH”).  AR 735-36.  Its purpose was to maintain in-person schooling, ensure the safety of students and teachers, and minimize the circulation of the COVID-19 virus.  AR 736.  LAUSD did not expect those with sincerely held religious beliefs to vaccinate, but the vaccination policy did not allow any unvaccinated employees to work at a LAUSD facility.  AR 736.

            Beets also testified that any teacher with a valid credential may teach at City of Angels without violating the CTC’s credentialing rules.  AR 736.  City of Angels is LAUSD’s 100% online independent studies program.  AR 736.  LAUSD provides professional development so that teachers assigned to City of Angels can learn how to conduct the independent study program.  AR 736.  Employees who were not offered a City of Angels assignment were offered use of unpaid leave.  AR 736. 

            LAUSD did not consider allowing Knopke to teach his music class virtually.  AR 736-37.  Peary students had returned to campus to receive in-person instruction.  AR 737.  The reassignment to City of Angels was voluntary, but Knopke violated the vaccination policy when he rejected it and demanded to work at a LAUSD facility unvaccinated.  AR 737.

            Knopke testified that LAUSD’s interactive process for finding a reasonable accommodation felt more akin to a “my way or the highway” approach.  AR 738.  He would have been amenable to a City of Angels teaching position if he could have taught just music classes.  AR 738.  He believed that teaching multiple subjects would be unethical and cheat his students.  AR 738. 

            Knopke testified that he relied on Fassett’s email when he formed the belief that his credential would not allow him to teach multiple subjects at City of Angels.  AR 738.  When cross-examined, he admitted that the email did not reference any credentialing problems that would arise if he taught at City of Angels.  AR 738.  He also did not present any evidence to show he would have been teaching outside of his credentials if he accepted the City of Angels assignment.  AR 738.

            (1). Policy Violation

            Knopke was approved for a reasonable accommodation based on sincerely held religious beliefs.  AR 739.  When Sotomayor offered him the City of Angels assignment on September 28, 2021, she emphasized that Knopke must vaccinate by October 15 if he refused the accommodation.  AR 739.  Knopke testified that he understood unvaccinated employees could not work at Peary or other facilities after October 15.  AR 739.  He knew or should have known his offer to take COVID-19 tests twice a week violated the vaccination policy.  AR 739.

            Knopke sought an appointment as City of Angels’ VAPA Coordinator but learned no such opening existed.  AR 739.  He sought to use his sick time until he learned that he could not.  AR 739.  He knew or should have known that he could either accept the City of Angels reassignment or violate the vaccination policy by rejecting the reassignment while unvaccinated.  AR 739-40.

            Knopke rejected the assignment because he believed he could not teach multiple subjects due to his single subject credential.  AR 740.  This belief was unfounded and based on pure speculation.  AR 740.  When he sought Fassett’s advice, she did not suggest he could not teach at City of Angels with his credentials.  AR 740.  Knopke presented no evidence that the CTC prohibited him from teaching at City of Angels with his single-subject credential.  AR 740.  Stevens expressly told him he could teach at City of Angels without violating any credentialing rules and regulations.  AR 740.

            (2). Character Evidence

            Fellow teacher Kevin Walker (“Walker”) described Knopke as a firm but fair teacher beloved by his students.  AR 740.  Walker also applied for and received an accommodation.  AR 740-741.  Like Knopke, Green had misinformed Walker about the right to use medical leave until he learned from another source it was only available to those with medical issues.  AR 741.  Walker had a multiple subject credential and felt comfortable teaching multiple subjects at City of Angels.  AR 741. 

            A parent testified Knopke provided a very friendly, safe, and welcoming environment.  AR 741.  She was impressed with his students’ flawless performance during concerts after taking his class.  AR 741.

            Walker and the parent submitted character reference letters consistent with their testimony.  AR 741.

            b. Legal Conclusions

            (1). Evident Unfitness for Service

            LAUSD contended that Knopke’s refusal to accept the reassignment demonstrated unreasonableness.  AR 742.  This unreasonableness and his inability to adhere to the vaccination policy could not be remedied and rendered him unfit for service as a LAUSD teacher under section 44932(a)(6).  AR 742.

            The decision analyzed Knopke’s wrongful conduct under the Morrison factors.  AR 759.  For the likelihood that his conduct may adversely affect students or fellow teachers, his refusal to accept the City of Angels assignment kept him from working and affected his students.  AR 759-60.  The degree of harm was significant because his students were deprived of his presence as a teacher.  AR 760.  The conduct was recent, less than a year before the decision.  AR 760.  The likelihood of recurrence was high insofar as Knopke had not indicated that he is now willing to vaccinate or teach at City of Angels.  AR 760.

            Discipline would not have a chilling effect on the constitutional rights of Knopke or other teachers.  AR 760-61.  Knopke had a sincerely held religious belief against vaccination, but LAUSD recognized that belief when it offered the City of Angels assignment as a reasonable accommodation.  AR 760-61.  No evidence suggested this accommodation violated his religious beliefs, but he still refused it.  AR 761.  Walker held a similar belief but accepted reassignment and did not face discipline.  AR 761.  Knopke’s discipline did not penalize his beliefs; it penalized his refusal to comply with the vaccination policy.  AR 761.  The constitutional rights of Knopke and other teachers were not involved in this case.  AR 761.

            The relevant factors demonstrate that Knopke is unfit for service as an LAUSD teacher.  AR 761.  The question then becomes whether the unfitness is “evident.”  AR 743.  This issue concerns whether the offensive conduct is caused by a defect in temperament or fixed character trait.  AR 743.  Knopke was unreasonable when he refused the City of Angels reassignment and violated the vaccination policy.  AR 743.  However, he had no prior instance of similarly failing to comply with LAUSD policies.  AR 743.  The record also reflects he is a well-loved, effective teacher whose job performance met the LAUSD’s performance standards throughout his tenure. AR 743.  He still has the proper temperament to be a teacher.  AR 743. 

            Knopke’s refusal to comply with the vaccination policy does not arise to the level of a defect in temperament or a fixed character trait.  AR 743.  LAUSD failed to establish by a preponderance of the evidence that Knopke is evidently unfit for service.  AR 743.

            (2). Persistent Violation of School Laws

            Employees are subject to dismissal for persistent violations of, or refusal to obey, the school laws of the state or reasonable regulations prescribed for the government of the public schools by the State Board or the Board.  §44932(a)(8).  AR 743. 

            Knopke argued that LAUSD bears the burden of proving that the regulations at issue were reasonable.  AR 744.  The CPC rejected this argument.  AR 744.  Courts should give substantial deference to the decisions of local school districts and boards within the scope of their broad discretion, and should intervene only in clear cases of abuse of discretion.  AR 744.  Knopke bore the burden of showing the vaccination policy conflicted with, or was preempted, by any law or conflicted with the purposes for which school districts are established.  AR 744.

            Beets testified that LAUSD developed the vaccination policy in consultation with physicians, the CDC, the CDPH, and LACDH.  AR 744.  The purpose was to allow for in-person instruction while protecting the health and safety of students and LAUSD employees and while minimizing the transmission of the COVID-19 virus.  AR 744.  Knopke presented no evidence that the vaccination policy contravened any law or LAUSD’s purposes as a school district.  AR 745.

            Knopke asserted that LAUSD failed to engage in the interactive process as the vaccination policy describes.  AR 745.  Knopke misrepresents the interactive process, which is derived from employment discrimination laws.  AR 745.  Government Code section 12940 prohibits employers from failing to reasonably accommodate a person’s religious practices.  AR 745.  The employer cannot terminate or discriminate against an employee unless it demonstrates that it has explored any available and reasonable alternative means of accommodating the religious belief or observance.  AR 745.  The “interactive process” is simply the process in which employees and employers determine whether accommodation is possible.  AR 745.

            LAUSD accommodated Knopke when it offered the City of Angels reassignment.  AR 745.  Knopke thought it was not a reasonable accommodation because he would be required to teach outside of his credentials, but this concern was speculative.  AR 745.  Neither the CTC nor the DOE sent him any response prohibiting him from teaching at City of Angels.  AR 745.  Stevens’ advice at the October 20 and November 9, 2021 meetings suggests that Knopke could have taught at City of Angels with his single subject credential without any issues.  AR 745.  Walker and Beets’ testimony at the hearing confirmed as much.  AR 745.  There is also no evidence that teaching at City of Angels would have violated Knopke’s religious beliefs.  AR 745-46. 

            Knopke’s proposed accommodations included allowing him to teach at Peary with testing twice a week, using his sick time, being a VAPA coordinator, or teaching only music at City of Angels.  AR 746.  These options would have either violated the vaccination policy or required the District to create job positions which did not exist.  AR 746.  As a result, LAUSD properly engaged in the interactive process and its offered accommodation of an assignment at City of Angels was reasonable.  AR 746.

            Knopke argued that his refusal to vaccinate was a single violation and not “persistent”.  AR 746.  The CPC found this argument unpersuasive.  AR 746.  Cases like Oakdale Union School District v. Seaman (1972) 28 Cal.App.3d 77, 82, and Midway School District v. Griffeath, (1946) 29 Cal.2d 133, hold that a long period of school rule violation is indicative of continual insubordination unless the teacher is unaware of the rules due to lack of contact with the school district or other factors.  AR 747-48.

            Knopke knew about the vaccination policy because he admitted he received LAUSD’s messages about it throughout September and October 2021.  AR 748.  He remained in contact with LAUSD representatives throughout the interactive process.  AR 748.  McCarthy told him City of Angels was not hiring a VAPA coordinator.  AR 749.  Principal Green clarified that Knopke could not use sick time.  AR 749.  Sotomayor warned Knopke that he would need to be vaccinated to continue working at Peary if he rejected the City of Angels assignment.  AR 749.  Knopke could not reasonably assume that LAUSD found any of his proposed accommodations acceptable.  AR 749. 

            Knopke remained in violation of the vaccination policy after the October 15, 2021 vaccination deadline.  AR 749.  This reflected an attitude of insubordination and constitutes a persistent, continual course of conduct.  AR 749.  Because the vaccination policy sought to maintain in-person instruction and protect students and staff, Knopke’s actions also could seriously affect the discipline in a school, impair its efficiency, and teach children lessons they should not learn. AR 749.

            LAUSD demonstrated that Knopke persistently violated or refused to obey reasonable regulations prescribed for the government of public schools under section 44932(a)(8).  AR 749-50.

            (3). Willful Refusal to Perform Regular Assignment

            Section 44932 says a permanent employee “shall not be dismissed except for” one of the 11 causes of action listed thereunder.  AR 751.  That language means the list is exclusive.  AR 751. 

            LAUSD cited Knopke’s willful refusal to perform his regular assignment under section 44939(b) as an additional cause of action for dismissal.  AR 750.  Section 44939 authorizes a school district’s governing board to suspend an employee based on willful refusal to perform regular assignments without reasonable cause, but this provision only applies to suspension proceedings initiated pursuant to section 44934, which in turn applies to proceedings based on charges as specified in section 44932 or 44933.  AR 751.  Employees are subject to immediate suspension without pay under section 44939 only if charged with dismissal under section 44932.  AR 751-52.  Dismissal and immediate suspension also have different procedural requirements and these differences demonstrate that section 44939 does not create a separate category of causes for dismissal.  AR 753.

            LAUSD cited Fontana Unified School District v. Burman, (1988) 45 Cal. 3d 208, 215-16 to assert that section 44939 establishes a separate and independent ground for dismissal.  AR 753-54.  The quoted section from this case does not support the District’s argument.  AR 754.  It demonstrates that a school district can only choose between suspension and dismissal if the ground for dismissal under section 44932 also fits into the narrower list of grounds for immediate suspension under section 44939.  AR 754.

            LAUSD could seek suspension, but not dismissal, based on Knopke’s willful refusal to perform regular assignments.  AR 755.  Knopke asserted that he did not willfully refuse a “regular assignment” because his assignment to City of Angels was voluntary.  AR 758.  It was, but Sotomayor warned him that he must be vaccinated to work at Peary.   AR 758.  His regular assignment was either to teach students remotely at City of Angels or onsite at Peary.  AR 758.  He refused to teach at City of Angels or to vaccinate so that he could teach at Peary.  AR 758.  LAUSD established that Knopke willfully refused to perform regular assignments without reasonable cause and was properly suspended.  AR 758.

            (4). Conclusion

            The CPC concluded that the Morrison factors show that Knopke is unfit to teach, and he is terminated from employment with the District.  AR 761-62.

            E. Analysis

Petitioner Knopke contends that (a) the District’s vaccination policy was not created in compliance with section 35160 and is void, (b) the vaccination policy is equivalent to an illegal human experiment and is void, (c) LAUSD did not provide him a reasonable accommodation, and (d) his termination was wholly arbitrary and violated both Knopke’s due process rights and public policy.

Some of Knopke’s issues are made improperly without first exhausting his administrative remedies at the CPC hearing and others are waived because they are made for the first time in Knopke’s reply.  None is well taken.

1. Was the Vaccination Policy Adopted Pursuant to Law?

Knopke argues that the court’s task is to decide if LAUSD’s vaccine mandate met the statutory scheme for adopting a legally enforceable policy that allowed his lawful dismissal.[4]  The statute the District must follow is section 35160, which gives public school district boards the power to adopt policies and regulations necessary to operate schools for the purpose for which they are intended.[5]  Whether an agency has stayed within the boundaries set by the statutory scheme “present[s] questions of law for the court.” Poverty Resistance Center v. Hart, (“Poverty”) (1989) 213 Cal.App.3d 295, 305 (regulations must be consistent with authorizing statute and necessary to  effectuate its purpose).  Pet. Op. Br. at 2-3.

Knopke contends that the statutory scheme considered in Poverty required counties to set levels of general relief, but only by adopting regulations consistent with the State-prescribed statutory scheme and reasonably necessary to carry it out.  Id. at 304.  The statutory scheme in Poverty matches the scheme in section 35160, which authorizes local school district’s boards, acting as agents of the State, to set up local policies and regulations for each district, but only by adopting regulations and policies not in conflict with any law.  As in Poverty, if a governing board’s policies fail to comply with statutory mandates, then any resulting decision based on such failure must be set aside.  See id. at 299.  Pet. Op. Br. at 3.

Knopke queries: Did LAUSD comply with section 35160’s statutory limitations so as to adopt a valid vaccine policy, which it then used to dismiss Knopke?   He answers no.  The August 13 Memo was not adopted by the Board, a clear violation of section 35160.  The subsequent Board adoption by resolution of a vaccination policy also failed to comply with section 35160 because it was “in conflict with or inconsistent with, or preempted by,” multiple laws that require freely given and informed consent from participants in human medical experiments.  Pet. Op. Br. at 4.

Knopke notes that the CPC concluded that the District’s policy mandating that employees be vaccinated or be treated differently than vaccinated employees did not impact the employees’ constitutional rights: “[T]he constitutional rights of Respondent or other teachers are not invoked in this case.”   AR 761.  This conclusion, however, was based on the CPC’s erroneous conclusion that the Memo’s vaccination policy was a valid rule or regulation, and it was not.  Pet. Op. Br. at 7-8.

As a general rule, a court will not issue a writ of mandate unless a petitioner first exhausts its available administrative remedies.  See, e.g., Alta Loma School Dist. v. San Bernardino County Com. On School Dist. Reorganization, (1981) 124 Cal.App.3d 542, 554.  Under this rule, an administrative remedy is exhausted only upon termination of all available, non-duplicative administrative review procedures.  Coachella Valley Mosquito & Vector Control Dist. v. California Public Employment Relations Bd., (2005) 35 Cal.4th 1072, 1080.  The exhaustion doctrine has been described as “a jurisdictional prerequisite to resort to the courts.”  Abelleira v. District Court of Appeal, (1941) 17 Cal.2d 280, 291-93.

The exhaustion doctrine includes issue exhaustion as well as exhaustion of administrative remedies.  The agency must be given the opportunity to reach a reasoned and final conclusion on each and every issue upon which it has jurisdiction to act before it is raised in a judicial forum.  Hill RHF Housing Partners, L.P. v. City of Los Angeles, (2021), 12 Cal.5th 458, 479 (citation omitted).  “Exhaustion requires ‘a full presentation to the administrative agency upon all issues of the case and at all prescribed stages of the administrative proceedings.’”  City of San Jose v. Operating Engineers Local Union No. 3, (“City of San Jose”) (2010) 49 Cal.4^th 597, 609 (citations omitted).  “The exhaustion doctrine contemplates that the real issues in controversy be presented to the administrative body, which must be given the opportunity to apply its special expertise to correct any errors and reach a final decision, thereby saving the already overworked courts from intervening into an administrative dispute unless absolutely necessary.”  Farmers Ins. Exchange v. Superior Court, (1992) 2 Cal.4^th 377, 391.  The exact issue raised in the lawsuit must have been presented to the administrative agency.  Tahoe Vista Concerned Citizens v. County of Placer, (2000) 81 Cal.App.4^th 577, 594.  Otherwise, a litigant could present narrow arguments or even omit them before the final administrative authority in hopes of obtaining a more favorable decision from a trial court.  Id.

Knopke failed to exhaust his administrative remedies with respect to the District’s compliance with section 35160.  Knopke failed to raise this issue before the CPC and it need not be considered by the court. 

The argument also fails on its merits.  As the District points out, Knopke admits that the Board did adopt the vaccination policy (Pet. Op. Br. at 5, n. 6) and contends that the adoption was untimely.  Knopke fails to show when the Board adopted the vaccination policy or how the timing of the adoption affected him.  As he points out, the adopted policy is not in the record.  See Id.  Most probably the Board’s adoption of the policy is not in the record because he never contested the policy’s validity.  Thus, Knopke fails to show that the vaccination policy not properly adopted by the Board in violation of section 35160.[6]

Both sides also argue matters not at issue or irrelevant to the validity of the vaccination policy under section 35160.  The District argues that there can be no reasonable dispute that COVID-19 was a pandemic that has caused unprecedented measures worldwide.  Local governments have been given wide latitude to impose vaccination requirements to protect its community. See Jacobson v. Massachusetts, (“Jacobson”) (1905) 197 U.S. 11, 27 (“[A] community has the right to protect itself against an epidemic of disease which threatens the safety of its members.”) The California Supreme Court has added that “[v]accination, then, being the most effective method known of preventing the spread of the disease referred to, it was for the legislature to determine whether [it should be required], and we think it was justified in deeming it a necessary and salutary burden to impose upon that general class.”  Abeel v. Clark, (1890) 84 Cal. 226, 230.  Opp. at 14.

The District adds that the CPC decision acknowledged Beets’ testimony that the vaccination policy was based upon the guidance of various doctors and the Centers for Disease Control and Prevention, CDPH, and LACDPH.  AR 744.  Beets testified that the policy was adopted to protect students from the spread of COVID-19 and to allow the District to provide in-person instruction.  AR 744.  The CPC noted that Knopke “presented no evidence that the COVID-19 vaccination policy contravened any law or the District’s purposes as a school district.”  AR 745.  Opp. at 14-15.

Knopke describes the District’s point as an impassioned defense of mandating vaccination, but with no citations to applicable authority.  Saying that a pandemic caused "unprecented (sic.) measures worldwide" does not take the place of a precedential, constitutionally sound, legal basis for mandating intramuscular injections of mRNA, an entirely new and experimental way of allegedly inducing immunity to COVID-19.  The policy forced tenured employees to be injected with an entirely new compound that was not a traditional vaccine but instead contained mRNA, to induce immunity by causing the body to manufacture the spike protein, which is the infectious agent itself.  Calling this injection a vaccination did not mean that it was the same vaccination discussed in earlier vaccine cases.  Traditional vaccination involves subcutaneous, not intramuscular, introduction of the killed or weakened infectious agent, traditionally with no adjuvants to increase the level of inflammatory response.   In defense of the mandated COVID injection, District cites two ancient (from a scientific perspective) vaccination cases, Jacobson, supra, 197 U.S. at 27 and Abeel v. Clark, supra, 84 Cal. at 230, and both cases are unpersuasive.  Reply at 5.

The court agrees with Knopke that the District’s need for a vaccination policy to address the COVID pandemic is not at issue in deciding whether the vaccination policy was lawfully adopted.  The court also agrees that Jacobson is probably overly deferential to agency decisions with respect to COVID restrictions, a point which a member of the Supreme Court indicated in another COVID case.  However, Knopke’s reference to the COVID vaccination’s nature and origin, and purported distinction from traditional vaccines, is factually unsupported and irrelevant.[7]

Knopke fails to show that the District’s vaccination policy was invalid because not adopted pursuant to section 35160.

2. Was the Vaccination Requirement a Medical Experimentation?

Knopke argues that the District’s vaccination policy conflicts with (1) the Nuremberg Code as codified in H&S Code sections 24170 et seq., (2) Article 7 of the ICCPR, another iteration of the Nuremberg Code, (3) the U.S. Constitution’s Preamble and the Ninth, Tenth, and Fourteenth Amendments showing that the People never surrendered the unenumerated right to make personal health care decisions to the States or federal government; and (4) the Fourth Amendment right to be secure in one’s person, free from warrantless seizures.[8]

Article 7 of the ICCPR, as the “supreme law of the land,” overrides any conflicting provisions in other laws, such as California’s attempted adaption of a moderated version of the Nuremberg Code in its now outdated H&S Code chapter known as the Protection Act.  H&S Code §24170, added by Stats. 1978, Ch. 360.  The Protection Act, adopted before Congress ratified the ICCPR in 1992, is outdated when it states that “Neither the Nuremberg Code nor the Declaration of Helsinki are codified under law and are, therefore, unenforceable.”  H&S Code §24171(b).  The Protection Act then states that the Legislature’s intent is to provide citizens with “minimum statutory protection.”   Id.  In contrast, Article 7 unambiguously states that “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.”  (emphasis added).  Free consent means free from coercion, undue influence, fraud, misrepresentation, deceit, etc.  Pet. Op. Br. at 8-9.

While the Protection Act goes into detail about experimentation and consent, somewhat obscuring the basic protection being provided of the right to consent or refuse to consent, Article 7 is less restrictive.  It does not define what constitutes “human medical or scientific experimentation.”  Thus, it applies to any medical or scientific experimentation, including self-experimentation and experiments in which the sample set, the “N”, equals one human being.  So, under both the Protection  Act and the ICCPR, any demand that even one person be injected with anything, without freely given consent, is a human medical experiment and unlawful.  Pet. Op. Br. at 8-9.

Knopke suggests that he exhausted his administrative remedies on the medical experimentation issue.  He first notes that the CPC concluded, in addressing the Morrison factor whether discipline could adversely impact or chill constitution rights, that:  "the constitutional rights of Respondent or other teachers are not involved in this case." AR 761.  Knope argues that he clearly raised the legal and constitutional issues presented in the SAP through his written objections to LAUSD’s vaccine mandate and never abandoned them.  See AR 487-88 (emails from Knopke to District employees referencing consent under H&S Code section 24172 and the U.S. Constitution’s Preamble and the Ninth, Tenth and Fourteenth Amendments as the basis for his right to refuse to be vaccinated).  Knopke admits that his attorney failed to argue these issues at the CPC hearing but contends that the CPC nonetheless saw them in the record and rejected them.  This makes judicial review appropriate, particularly “when…the asserted error fundamentally affects the validity of the judgment…or issues of public policy are at issue….” County of Orange v. Ivansco, (1998) 67 Cal.App.4th 328, 331, n. 2.

As Knopke admits, the medical experimentation issue was not exhausted before the CPC.   It is inadequate to argue that the record before the CPC had issues previously raised to the District.  See City of San Jose, supra, 49 Cal.4^th at 609.  The exact issue raised in the lawsuit must have been presented to the administrative agency.  Tahoe Vista Concerned Citizens v. County of Placer, supra, 81 Cal.App.4^th at 594.  Otherwise, a litigant could present narrow arguments or even omit them before the final administrative authority in hopes of obtaining a more favorable decision from a trial court.  Id.[9]  Knopke failed to exhaust the medical experimentation issue.

Nor does Knopke fare better on the merits.  The court agrees with the District that Knopke is arguing that its vaccination policy is equivalent to a human medical experiment.  Yet, Knopke has not provided any evidence that the District’s policy is a medical experiment.  The court has declined to judicially notice the ICCPR, and the District’s vaccination policy does not fit in any of the Protection Act’s definitions of medical experiment.  See H&S Code §24174.  Opp. at 15.

Knopke replies that the restrictive meaning of "human experimentation" in H&S Code section 24171 was clearly intended to apply to formal studies using subjects, conducted by an investigator or research institute, which require written, informed consent and various disclosures.  Yet, human medical experiments can be conducted informally, and without any of these legal niceties.  The Nazis conducted human medical experiments in concentration camps.  The U.S. government also has conducted medical experiments over the years -- e.g., the USPHS Untreated Syphilis Study at Tuskegee.  Any time that anyone engages in any medical procedure, not knowing for certain what the outcome will be, a human medical experiment is being conducted.  This is a matter of common sense and logic.  Reply at 6.

Knopke’s definition is over-inclusive.  There are risks in any medical procedure.  It is up to a person’s physician to identify and explain the risks to his patient and obtain informed consent.  That risk does not make every vaccination a medical experiment.  Knopke fails to cite any evidence that the COVID vaccination meets any definition of human experimentation, whether in the Protection Act or any other law governing LAUSD.

Knopke also fails to show that the District’s vaccination requirement is a coerced consent.  Under the Protection Act (and ICCPR), a person has an inherent right to decide what will be done to his or her body.  H&S Code §24171.  However, no one has an inherent right to teach in a public school.  See Board of Education v. Swan, (1953) 41 Cal.2d 546, 554, overruled on other grounds, Bekiaris v. Board of Education, (1972) 6 Cal.3d 575.  The District’s vaccination policy placed a condition of employment on working at a school site in an in-person setting.  This is distinct from the notion that the District forced unwanted medical procedures on its employees.  Moreover, the policy provided reasonable accommodations that would have allowed Knopke to continue teaching unvaccinated at City of Angels, which he refused.  Opp. at 15-16.  This is not a coerced consent.

3. Knopke Was Offered a Reasonable Accommodation

It is undisputed that Knopke requested an accommodation to the vaccination policy based upon his sincerely held religious belief, the District accepted his application for a sincerely held religious belief accommodation and offered him an accommodation to teach at City of Angels, and he refused this accommodation. 

A “single subject instruction” means the practice of assignment of teachers and students to specified subject matter courses.  §44256(a)(1).  The CTC may establish and implement alternative requirements for additional authorizations to the single subject credential on the basis of specialized needs.  Id.  A special secondary teaching credential means one issued on the basis of at least a baccalaureate degree, a student teaching requirement, and 24 semester units of coursework in the subject specialty of the credential.  Id.

            A valid teaching credential issued by the State Board or the CTC, based on a bachelor’s degree, student teaching, and special fitness to perform, shall be deemed qualifying for assignment as a teacher in, inter alia, independent study.  §44865(d), (f), (k).  The assignment of a teacher to such a position shall be made only with the consent of the teacher.  §44865.

District’s Assistant Chief Human Resource Officer Beets testified that the District may allow teachers to be the supporting teacher on record for the City of Angels independent study program.  If Knopke had accepted the offered position at City of Angels, he would have been credentialed to teach it.  AR 825-26.  Teachers with valid teaching credentials can teach at City of Angels because they have teaching flexibility and LAUSD provides the professional development necessary to prepare those teachers for their assignments at City of Angels.  AR 826.  Beets disagreed with Knopke’s assertion that this position contradicted the CTC website.  AR 826.  LAUSD can allow teachers to be the supporting teacher on record for City of Angels’ independent study program.  AR 826-27.

Knopke argues that the accommodation he was given required him to violate the law and was per se unreasonable.  He relies on the fact that section 44256(a)(1) provides that, even in the case of specialized need, a special secondary teaching credential will only be issued on the basis of at least a baccalaureate degree, a student teaching requirement, and 24 semester units of coursework in the subject specialty of the credential.  There is no exception for independent study teachers.  School district governing boards are required to annually certify that independent study courses are substantially equivalent in rigor, educational quality, and intellectual challenge as in-person instruction and equivalent classroom-based courses.  Independent study program “[c]ourses are taught under the general supervision of certificated employees who hold the appropriate subject matter credential….”  §51749(a)(3).  Pet. Op. Br. at 9-11.

Knopke contends that District’s Assistant Chief Human Resource Officer Beets’ opinions that “teachers with a valid credential could teach at City of City of Angels because they had teaching flexibility” (AR 826) and that “the District is permitted to allow teachers to be the supporting teacher on record for our City of City of Angels independent study program” (AR 827) are mere conclusions without legal support.  As shown by her job description and employment, Beets had no expertise in laws related to what a credentialed teacher could legally accept as an accommodation.  This is especially true compared to the job of DOE employee Fassett.     Pet. Op. Br. at 9-10.

Beets’ testimony showed that the accommodation offered to Knopke was based on the District’s clear expectation that he would teach any subject the District wanted, regardless of his actual credential, because it was an “independent study program” and section 44256’s restrictions did not apply.  Knopke would have accepted the assignment at City of Angels if he could have taught only music classes -- i.e., subjects within his credential.  AR 738.   Beets testified that she didn’t even know if music was offered at City of Angels (AR 831), indicating that the District expected Knopke to teach outside his credential area.  Pet. Op. Br. at 11.

Knopke has not shown that the District is wrong in interpreting section 44865 to mean that Knopke could teach an independent study assignment at City of Angels.  The CPC’s finding to this effect is supported by Beets’ testimony and also by the fact that, at a November 9, 2021 meeting, District Field Director Stevens confirmed to Knopke that he would have been credentialed to teach at City of Angels.  AR 487; see AR 734. 

Knopke relies heavily on DOE employee Fassett, who did not testify but did respond to an email from Knope.  On October 26, 2021, Knopke emailed Fassett to ask three questions: (1) whether he needed to have credentials to teach specific subjects in a K-12 public school; (2) whether the subject matter competence requirement prohibits him from teaching subjects like Math, English, Science, History, or P.E. until he receives supplementary subject area authorization; and (3) in what other scenario could he legally teach those subjects?  AR 627.

In her response, Fassett confirmed that teachers must be fully credentialed in the subject and grade level they are going to teach.  AR 626.  Fassett also confirmed Knopke’s understanding of supplemental authorizations requirements.  AR 626.  She noted, however, when there is a shortage of teachers in certain subject areas, the Local Education Agency may have a teacher with a special permit or temporary certificate teach those classes.  AR 626.  Fassett advised Knopke to contact LAUSD for more information.  AR 626.

It is unclear, but suspicious, why Knopke did not specifically ask Fassett whether he could teach in an independent study program as an accommodation to the District’s vaccination requirement.  In any event, Fassett’s answer clearly indicated that there are circumstances when a district may have a teacher with a special permit or certificate teach outside their credential.  Her email, therefore, indirectly supports the District’s position that the City of Angels position would have been lawful.

Apart from the validity of the City of Angels position, Knopke’s moving papers fail to address the fact that no other accommodation was available.  The vaccination requirement was a condition of continued employment.  AR 522.  After an employee received approval of his or her application for accommodation, LAUSD would determine whether it could provide an accommodation in which the employee could still perform the essential functions of that position and not pose a danger to the health and safety of others at the employee’s worksite.  AR 526.  Because essential functions vary by job class, the determination would be case-by-case and may result in different results for different employees.  AR 526.  If workplace accommodations could not reduce the risk the employee posed to acceptable levels, LAUSD could exclude the employee from physically entering the workplace.  AR 526.  LAUSD and the employee would then determine if there were any available benefit time or leave provisions.  AR 526. 

            On September 8, 2021, LAUSD’s reminder identified full vaccination as an “essential job function” from which no one was exempt.  AR 532.  The reminder reiterated that, where feasible, LAUSD would reasonably accommodate employees who wish to continue working without full vaccination due to a documented disability or sincerely held religious belief.  AR 532.  Such accommodations would not include working at the facility without full vaccination.  AR 532.  LAUSD acknowledged that, although rare, some positions avail themselves of the ability to remote work as a reasonable accommodation.  AR 532.  The interactive process would consider the availability and feasibility of remote work, but LAUSD would not offer it if the position’s essential duties require physical presence at a facility.  AR 532. 

            On September 15, 2021, LAUSD’s reminder stated that no one is exempt from the vaccination requirement, and while LAUSD would reasonably accommodate employees with a documented disability or sincerely held religious belief, that would not include permission to continue to work at a District facility without full vaccination.  AR 535.  The reminder outlined a remote work option with LAUSD’s online independent study program through City of Angels.  AR 535.  Even if a teacher who was not fully vaccinated by the deadline received a reasonable accommodation, the teacher would not be allowed to teach at any site other than City of Angels.  AR 535.

            On September 28, Michelle Palomares informed Knopke that a position at City of Angels was available for him beginning October 5, 2021.  AR 624.  The email warned Knopke that he would have to fully vaccinate by October 15 if he refused the assignment and chose to stay at his current worksite.  AR 624.

In sum, the vaccination policy made clear that vaccination was a condition of employment, no one was exempt from it, and that Knopke could not be physically present on a school site unvaccinated.  The only accommodation available for him was a remote work option with the City of Angels independent study program.  Knopke refused that assignment.  Because Knopke refused the only possible reasonable accommodation, the District properly terminated him.

In reply, Knopke argues that a lawful accommodation apparently existed in which he would teach only music and band remotely and the District failed to discuss such accommodation with him.  All teachers have a legal right to refuse to consent to "Independent Study” assignments.  §88465.  Knopke obviously wanted to teach band and music and could have done so remotely; he had successfully taught band and music remotely for the previous school year.  Reply at 2.

During cross-examination, Beets was asked: “Was there any consideration given to allowing Mr. Knopke to teach music virtually?”  In response, she gave a clearly false explanation why music, of all the subjects taught via the City of Angels program, could not be taught remotely.  Beets claimed: “At this time, the District was in person.  So no longer, our students were no longer remote, so all of our teachers that were at schools were in person and there were only in-person assignments available at our school sites.”  Beets was questioned further: “Was there any consideration given to let him teach music virtually as an accommodation?”  Beets was forced to admit: “No, not through the process that Mr. Knopke went through.”   AR 831-33.  Reply at 1-3.

Knopke argues that Beet’s explanation was nonsense.  Not all District school sites offered only in person instruction; City of Angels itself was providing remote instruction.   Knopke’s ability to teach music and band remotely had already been demonstrated.  Beets admitted that she did not know what had happened to the music program at Knopke’s own school, Peary.  Given that he had been teaching music remotely there that school year, why couldn’t he simply have continued to teach music there remotely as an accommodation?  Reply at 3.

The short answer is that there is nothing wrong with Beets’ explanation.  While teachers (including Knopke) previously taught remotely during the COVID crisis, by October 2021 students were back to attending school physically and teachers were expected to do the same.  Knopke could not teach onsite unvaccinated.  Nor could he teach music remotely to students physically at school.  The only way he could continue teaching remotely was through the City of Angels independent study program.

Knopke also argues that there was a religious accommodation appeals committee to which he could have internally appealed the failure to provide him with a suitable accommodation – if the existence of such a committee had been made known to him.  AR 851-53.  Nothing in the record shows that he was told that he could internally appeal the accommodation decision.  Reply at 3.

Again, this is an issue not raised to the CPC and therefore not exhausted.  See City of San Jose, supra, 49 Cal.4^th at 609.  It also is raised for the first time in reply.  See Regency, supra, 31 Cal.App.4th at 1333.  The argument is waived.  Nor does Knopke point to any evidence that he was unaware of the accommodation appeals committee or what other accommodation should have been made available besides teaching music remotely to students physically as school.

The CPC correctly found that the District offered a reasonable accommodation to Knopke which he refused.  The District was not obligated to do more.

4. The CPC’s Decision Did Not Violate the Fourteenth Amendment

Knopke notes that tenured public school teachers have a property interest in their jobs, and therefore have a constitutional right to due process of law.  U.S. Const. Amend. XIV; Board of Regents v. Roth, (1972) 408 U.S. 564, 577.  As a result, tenured teachers cannot be deprived of their employment in the absence of notice of the dismissal and the charges against them, an explanation of the employers’ evidence, and an opportunity for a fair and meaningful hearing.  Cleveland Board of Education v. Loudermill, (“Loudermill”) (1985) 470 U. S. 532.  Pet. Op. Br. at 11-12.

While Loudermill did not hold that the decision in such cases must be based on facts and law, the nature of what is “fair” under due process must also mean that no one can be deprived of life, liberty or property in the absence of both evidence and law, which is exactly what happened to Knopke.  See, e.g., Schwarre v. Board of Bar Examiners, (“Schwarre”) (1960) 353 U.S. 232, 246-47 (evidence insufficient to rationally justify findings related to a litigant’s right to practice law violates due process).  Pet. Op. Br. at 12.

Knopke was deprived of his reputation, career and means of support despite both the absence of substantial evidence of unfitness or incompetence as a teacher, and the absence of applicable law due to a null and void policy.  His simple action of lawfully declining an unwanted medical procedure was turned into insulting assertions of statutorily worded accusations that bore little resemblance to what he had actually done; the exercise of his lawful rights was contorted into evident unfitness for service (§44932(a)(6)) and persistent violation of, or refusal to obey, school laws (§44932(a)(8)), while his rejection of the accommodation that required him to break the law became “willful refusal to perform regular assignments without reasonable cause, as described by reasonable rules and regulations of the employing district” (§44939).  Pet. Op. Br. at 12.

Knopke argues (Pet. Op. Br. at 12-13) that his experience is similar to the petitioner in Schwarre, supra, 353 U.S. at 246-47.  Schwarre had gone to law school and passed the New Mexico bar exam, but New Mexico refused to admit him to practice on the ground of bad moral character, based on events that had occurred 20 years earlier, when he used aliases and had been an erratic member of the Communist Party.  Even though the two most recent decades of his life showed good moral character, the New Mexico Board of Bar Examiners denied him the opportunity to take the bar to try to gain admission to the practice of law, finding he had bad moral character.  The New Mexico Supreme Court upheld the denial of his license.  Id. at 238.  Reversing, the high court concluded that this decision violated equal protection and due process because the evidence did not have a sufficient rational connection to Schwarre’s fitness or capacity to practice law.  Id. at 246-47.   

Knopke contends that the CPC’s decision was based its erroneous finding that the District adopted a valid vaccination policy (AR 712), an erroneous conclusion that no constitutional rights were involved, and considerations that offend the dictates of reason and due process -- to wit, that a tenured and competent teacher can be fired for refusing to break the law or for refusing to agree to be a human guinea pig.  Pet. Op. Br. at 13.           

Knopke’s due process argument is unfounded.  Again, the issue was never raised at his CPC hearing and he failed to exhaust the issue.  See City of San Jose, supra, 49 Cal.4^th at 609.  Moreover, Knopke was not fired for refusing to break the law or to be a human guinea pig.  He was terminated because LAUSD implemented a vaccination policy as a condition of employment, he was offered a reasonable accommodation to the policy, and he refused it.  Therefore, he could not remain a District employee.

The District is correct that it holds broad discretion to implement policies that serve its obligation to protect the health and safety of its students and employees.  Dawson v. East Side Union High School Dist., (1994) 28 Cal. App. 4th 998, 1017–18.  Knopke’s circumstance is distinct from Schwarre, where there was no rational connection to his current fitness to practice law, as the evidence and the CPC’s findings demonstrate that Knopke violated the District’s vaccination policy at the time of his dismissal.  Opp. at 17-18.

Knopke replies that the evidence, not the lapse of time, was the determinative issue in Schwarre.  When Schwarre applied to take the bar, the evidence did not establish that he was still a communist.  Here, the record shows that Knopke was an employee improperly accused and targeted for dismissal.  Reply at 8.

Communist Party cases such as Schwarre are somewhat sui generis and therefore distinguishable.  The point is that vaccination was a condition of employment which Knopke did not meet.  Rather, he refused a reasonable accommodation and could not work for the District in any other capacity.  As a result, he persistently refused to obey a school policy.  §44932(a)(8).  AR 749-50.  Knopke has failed to demonstrate a violation of due process.[10]

F. Conclusion

The SAP is denied.  The District’s counsel is ordered to prepare a proposed judgment, serve it on Knopke’s counsel for approval as to form, wait ten days after service for any objections, meet and confer if there are objections, and then submit the proposed judgment along with a declaration stating the existence/non-existence of any unresolved objections.  An OSC re: judgment is set for February 15, 2024 at 9:30 a.m.