Carton, Seidman and Demos. The opinion of the court was delivered by Seidman, J.A.D.
The principal issue in this novel case is whether a male tenured teacher who underwent sex-reassignment surgery to change his external anatomy to that of a female can be dismissed from a public school system on the sole ground that his retention would result in potential emotional harm to the students.
Paul Monroe Grossman, now 54 years of age, married, and the father of three children, was engaged as a teacher by the Bernards Township Board of Education in 1957 and received tenure in 1960. He taught vocal music in one of the elementary schools, primarily to fourth, fifth and sixth-grade children between the ages of 10 and 12.
For many years Grossman had had a gender identity problem which worsened with the passage of time until, shortly after his fiftieth birthday, he sought medical advice, commenced a course of treatment, and, in March 1971, had sex-reassignment surgery performed. He had been diagnosed as a transsexual; that is, one who anatomically is born with the genitalia of one sex but who believes himself (or herself) to be a member of the other sex.
Although Grossman had notified his superiors of his impending absence for surgery, he did not disclose its nature until his return in late April or May of 1971, when he informed the township superintendent of schools and made known his intention of remaining in the school system as a female. After completing the academic year in male attire, he assumed the name of Paula Miriam Grossman and began to live openly as a woman.
During the summer of that year the matter was under active and continuous consideration by the board, looking toward
a satisfactory resolution of the problem. A series of meetings took place between it and Mrs. Grossman (it seems appropriate to use the female gender henceforth), arrangements were made for her to be examined by board selected psychiatrists, and finally a proposal was submitted by the board to engage her on a one-year contract at the same pay to teach the same courses, but only on an elective basis in the high school, provided she would resign, thus relinquishing her tenure, and obtain a new teaching certificate in her female name. The offer was rejected.
On August 19, 1971 the board filed written charges against Mrs. Grossman and suspended her without pay. The charges, in substance, were: (1) her presence as a teacher had created and would continue to create a degree of sensation and notoriety within the system and the community which would severely impair the board's ability to conduct an efficient and orderly school system; (2) under the circumstances of the case, including the failure to disclose the condition and anticipated surgery, Mrs. Grossman had exhibited conduct unbecoming a teacher; (3) as a result of the sex-reassignment surgery, Mrs. Grossman underwent a fundamental and complete change in her role and identification, thereby rendering herself incapable of continuing to function as Paul Monroe Grossman, the person who had been engaged as a teacher by the board; (4) Mrs. Grossman exhibited conduct and behavior deviant from the acceptable standards of the community, and (5) she exhibited abnormality. Each of these charges, it was asserted, constituted just cause for dismissing her from the school system.
Pursuant to N.J.S.A. 18A:6-10 et seq. the charges were forwarded to the State Commissioner of Education. After a lengthy hearing before Assistant Commissioner William A. Shine, the third charge, on Dr. Shine's own motion and without objection, was amended to reflect an issue tried and argued but not specified in the statement of charges, as follows:
Paul Monroe Grossman knowingly and voluntarily underwent a sex-reassignment from male to female. By doing so, he underwent a fundamental and complete change in his role and identification in society, thereby rendering himself incapable to teach children in Bernards Township because of the potential her (Grossman's) presence in the classroom presents for psychological harm to the students of Bernards Township. Therefore, Paula a/k/a Paul Monroe Grossman should be dismissed from the system by reason of just cause due to incapacity. [Emphasis supplied.]
The Commissioner found that the first charge was not supported by the evidence, noting, among other things, that despite evidence offered by the board of widespread newspaper and television publicity, threats of legal action by parents, and adverse reactions to Mrs. Grossman among the teachers and other personnel in the system, there was an absence of public protest at open board meetings during the summer of 1971, and, particularly, the board had offered to continue her employment on a limited basis in the high school. He deemed this inconsistent with the contention that disruption would occur if Mrs. Grossman should be retained in the school system.
He found that the charge of conduct unbecoming a teacher had also not been substantiated. Although, in his opinion, it would have been better had Mrs. Grossman taken the administration into her confidence, he concluded that the evidence did not support the charge that her behavior was a deliberate attempt to mislead her colleagues and the administration.
The Commissioner rejected as well the charges alleging deviant conduct and abnormality as not having been established by the weight of the evidence. He stressed the findings of three psychiatrists with unchallenged qualifications who had examined Mrs. Grossman at the requect of the board (which now attacks their reports for "gross insufficiency") and who concluded virtually unanimously that there was no evidence of physical or mental abnormality which would render Mrs. Grossman unable to pursue her profession as a teacher. As for the conduct allegedly "deviant from the accepted
standards of the community," the Commissioner, recognizing that "conventional standards are seriously affected in the instant matter," nevertheless refused to substitute his judgment for that of the experts who had examined Mrs. Grossman and found no abnormality serious enough to prevent her from teaching.
He concluded, however, that the amended thrid charge, which we shall discuss in more detail later, had been proved and that Mrs. Grossman was incapacitated to teach children because of potential psychological harm to the students. He directed that she be dismissed as a teacher in the Bernards Township school system "for reason of just cause due to incapacity."
Taking into account the unusual nature of the case and finding no moral turpitude, the Commissioner further directed the board to apply to the Teachers' Pension and Annuity Fund for a disability pension in behalf of Mrs. Grossman, pursuant to N.J.S.A. 18A:66-39 et seq. He also ordered the payment of her back pay based upon his interpretation of L. 1971, c. 435 (amending N.J.S.A. 18A:6-14).
Both sides appealed. The State Board of Education affirmed that portion of the decision ordering the dismissal of Mrs. Grossman (one member, however, being of the view that the evidence sustained the fourth and fifth charges) and also the direction for the application to the Teachers' Pension and Annuity Fund. With four members dissenting, the order to pay Mrs. Grossman's back salary was reversed.
Mrs. Grossman now appeals to this court from the order of dismissal and the denial of back pay. The local board cross-appeals from the rejection of the other four charges.
The scope of our review is clear with respect to the Commissioner's disposition of the five charges. The governing standard is, of course, whether the findings made could reasonably have been reached on sufficient credible evidence
present in the record, considering the proofs as a whole, with due regard to the opportunity of the one who heard the witnesses to judge of their credibility. Close v. Kordulak Bros., 44 N.J. 589, 598-599 (1965). If the factual findings are supported by competent evidence, they will be upheld. Atkinson v. Parsekian, 37 N.J. 143, 149 (1962); Clover Hill Swimming Club v. Goldsboro, 47 N.J. 25, 36 (1966); Szumski v. Dale Boat Yards, Inc., 48 N.J. 401, 410 (1967). It is not ordinarily our function to weigh the evidence, to determine the credibility of witnesses, to draw inferences and conclusions from the evidence, and to resolve conflicts therein. Mead Johnson and Co. v. South Plainfield, 95 N.J. Super. 455, 466 (App. Div. 1967). We have, though, the responsibility of determining whether pertinent principles of law were properly interpreted and applied to the facts as found by the trier thereof. See Jantausch v. Verona, 41 N.J. Super. 89, 96-97 (Law Div. 1956), aff'd 24 N.J. 326 (1957).
Mrs. Grossman argues that (1) it was error to hold that a tenured teacher may be dismissed for just cause due to incapacity solely upon evidence that the presence of the teacher in the classroom presented a possibility of emotional harm to some students, (2) the evidence adduced was insufficient to establish such emotional harm, and (3) hypothetical psychiatric testimony of such harm was not a sufficient ground for her removal. On its cross-appeal the board maintains that the other charges should have been sustained on the evidence presented.
Applying the above-mentioned standard of review to the board's contention that the first, second, fourth and fifth charges should not have been dismissed, we cannot say, after a thorough canvass of the record, that the Commissioner's findings as to them are so lacking in evidentiary support as to require modification or reversal. We are satisfied ...