(dissenting) — The appellant, Mr. Gaylord, had been a teacher at Wilson High School for over 12 years at the time of his discharge. In college, he had been an outstanding scholar; he graduated Phi Beta Kappa from the University of Washington and was selected "Outstanding Senior" in the political science department. He later received a masters degree in librarianship. As a teacher, the evaluations made of Mr. Gaylord were consistently favorable. The most recent evaluation of this teaching performance stated that "Mr. Gaylord continues his high standards and thorough teaching performance. He is both a teacher and student in his field."
Despite this outstanding record, the trial court found that Mr. Gaylord should be discharged for "immorality." To uphold this dismissal, we must find substantial evidence supporting the finding that Mr. Gaylord was discharged for "sufficient cause," as required by RCW 28A.58.100. "Sufficient cause" has been defined as "conduct which would affect the teacher's efficiency." Gaylord v. Tacoma School Dist. 10, 85 Wn.2d 348, 349, 535 P.2d 804 (1975). This must be proven by the school district by a preponderance of the evidence. RCW 28A.58.450. For all the scholarly research done by the majority here, the most basic point has been missed; the respondent school board did not meet its burden of proof.
The majority upheld the trial court's finding that an admission of a homosexual statps connotes illegal as well as immoral acts which are proscribed by RCW 9.79.100 (sodomy) and RCW 9.79.120 (lewdness). RCW 9.79.100 provides:
Every person who shall carnally know in any manner any animal or bird; or who shall carnally know any male or female person by the anus or with the mouth or tongue; or who shall voluntarily submit to such carnal knowledge; or who shall attempt sexual intercourse with a dead body, shall be guilty of sodomy and shall be punished as follows: . . .
*301RCW 9.79.120 provides:
Every person who shall lewdly and viciously cohabit with another not the husband or wife of such person, and every person who shall be guilty of open or gross lewdness, or make any open and indecent or obscene exposure of his person, or of the person of another, shall be guilty of a gross misdemeanor.
There is not a shred of evidence in the record that Mr. Gaylord participated in any of the acts stated above. While we have held in the past that "sufficient cause" requires certain conduct (Browne v. Gear, 21 Wash. 147, 57 P. 359 (1899); Denton v. South Kitsap School Dist. 402, 10 Wn. App. 69, 516 P.2d 1080 (1973)), we are presented here with a record showing no illegal or immoral conduct; we have only an admission of a homosexual status and Gaylord's testimony that he sought male companionship. See McConnell v. Anderson, 316 F. Supp. 809, 814 (D. Minn. 1970); compare Moser v. State Bd. of Educ., 22 Cal. App. 3d 988, 101 Cal. Rptr. 86 (1972), with Morrison v. State Bd. of Educ., 1 Cal. 3d 214, 461 P.2d 375, 82 Cal. Rptr. 175 (1969).
Undoubtedly there are individuals with a homosexual identity as there are individuals with a heterosexual identity, who are not sexually active. Mr. Gaylord, for all we know, may be one of these individuals. Certainly in this country we should be beyond drawing severe and far-reaching inferences from the admission of a status — a status which may be no more than a state of mind. Furthermore, there are homosexual activities involving a physical relationship which are not prohibited by statute. See Morrison v. State Bd. of Educ., supra; McConnell v. Anderson, supra.
The trial court made a most puzzling finding that, "From appellant's own testimony it is unquestioned that homosexual acts were participated in by him, although there was no evidence of any overt acts having been committed." The trial court essentially found thát, as an admitted homosexual, unless Mr. Gaylord denied doing a particular immoral *302or illegal act, he can be assumed to have done the act. The court has placed upon the appellant the burden to negate what it asserts are the implications that may be drawn from his testimony although he never was accused of participating in acts of sodomy or lewdness.
We must require here, as we have in the past, proof of conduct to justify a dismissal. The only conceivable testimony on conduct was the comment of the student that Gaylord and another male were "deeply involved" for about a month. This hardly qualifies as testimony either as to "immorality," sodomy, or lewdness. Finding no conduct, I am unwilling to take the leap in logic accepted by the majority that admission of a status or identity implies the commission of certain illegal or immoral acts.
In McConnell v. Anderson, supra at 814, the court said:
An homosexual is after all a human being, and a citizen of the United States despite the fact that he finds his sex gratification in what most consider to be an unconventional manner. He is as much entitled to the protection and benefits of the laws and due process fair treatment as are others, at least as to public employment in the absence of proof and not mere surmise that he has committed or will commit criminal acts or that his employment efficiency is impaired by his homosexuality. Further, the decided cases draw a distinction between homosexuality, i.e., sexual propensity for persons of one's own sex and the commission of homosexual criminal acts. Homosexuality is said to be a broad term involving all types of deviant sexual conduct with one of the same sex, but not necessarily criminal acts of sodomy.
Surely the majority has adopted a novel approach. Mr. Gaylord was never at any time accused of performing any "homosexual acts." Yet because of his declared status, he must assume the burden of proving he did not commit certain illegal or immoral acts which have at no time been referred to or mentioned, much less described, by the school board. Presumably under this reasoning, an unmarried male who declares himself to be heterosexual will be held to have engaged in "illegal or immoral acts." The *303opportunities for industrious school districts seem unlimited.
The majority goes to great lengths to differentiate between an overt and a latent homosexual. Authority is cited that overt homosexuality is "consciously experienced and expressed in actual homosexual behavior." Yet there is no evidence in the record of any actual behavior or acts, and the findings of the trial court specifically state "there was no evidence of any overt acts having been committed." The real problem faced by the majority is that the term "homosexual" is not mentioned once in the Revised Code of Washington. There is no law in this state against being a homosexual. All that is banned (prior to July 1, 1976) are certain acts, none of which Mr. Gaylord was alleged to have committed and none of which can it be either assumed or inferred he committed simply because of his status as a homosexual.
The second glaring error in this proceeding is the respondent's failure to establish that Mr. Gaylord's performance as a teacher was impaired by his homosexuality. As pointed out by the trial court in its findings, the evidence is quite clear that, having been a homosexual for the entire time he taught at Wilson High School, the fact of Mr. Gaylord's homosexuality did not impair his performance as a teacher. In other words, homosexuality per se does not preclude competence. Acanfora v. Board of Educ., 359 F. Supp. 843 (D. Md. 1973).
The evidence before the court is uncontroverted — Mr. Gaylord carefully kept his private life quite separate from the school. Compare Acanfora v. Board of Educ., supra. He made no sexual advances toward his professional contemporaries or his students. There is absolutely no evidence that Mr. Gaylord failed in any way to perform the duties listed in RCW 28A.67.110. In over 12 years of teaching at the same school, his best friends on the teaching staff were unaware of his homosexuality until the time of his discharge. Gaylord did not use his classroom as a forum for discussing homosexuality. Given the discretion with which *304Gaylord conducted his private life, it appears that public knowledge of Gaylord's homosexuality occurred, as the trial court found, at the time of his dismissal. Compare Pettit v. State Bd. of Educ., 10 Cal. 3d 29, 35, 513 P.2d 889, 109 Cal. Rptr. 665 (1973). Cf. McConnell v. Anderson, supra.
At the trial, a variety of witnesses speculated on the effect that Gaylord's homosexuality might have on his effectiveness in the classroom. The speculation varied considerably. Certainly there were witnesses who testified that Gaylord's effectiveness would, be damaged. There were also those who testified to the contrary. As a result, the trial court found that "the continued employment of appellant after he became known as a homosexual would result, had he not been discharged, in confusion, suspicion, fear, expressed parental concern and pressure upon the administration." The question this court must ask is whether a finding of detrimental effect can be made on the basis of conjecture alone.
The language of the court in Fisher v. Snyder, 346 F. Supp. 396, 401 (D. Neb. 1972), is helpful on this point. In that case, the teacher, Fisher, a single woman, had men "'not related'" stay in her apartment "'on several occasions ranging from one night to a period of at least one week.'" In holding that Mrs. Fisher's contract could not be terminated, the court said:
Similarly, to justify a dampening of the rights of assembly or association and privacy the state in the present case must show that the termination of the teacher's contract was caused by conduct which "materially and substantially" interfered with the school's work or rights of studénts, and "undifferentiated fear or apprehension" of such interference is not enough. In the present case the state has failed to show any actual interference by Mrs. Fisher's conduct with any interest of the state in its educational endeavors. Not as much as a single student or teacher or administrator — or even townsperson — came forward with evidence that Mrs. Fisher's associations had affected any relationship she had with any student, any teacher, or any administrator. *305Her effectiveness as a teacher, disciplinarian, or counsel-lor stands without factual challenge. It is the lack of any factual, as contrasted with imagined or theoretical, connection between Mrs. Fisher's association and a substantial weakening of the educational enterprise conducted by the board of education that must result in a finding that the termination of the contract was not constitutionally justified.
See also Acanfora v. Board of Educ., supra.
Historically, the private lives of teachers have been controlled by the school districts in many ways. There was a time when a teacher could be fired for a marriage, a divorce, or for the use of liquor or tobacco. See H. Beale, A History of Freedom of Teaching in American Schools (1966 ed.); F. Delon, Substantive Legal Aspects of Teacher Discipline (1972). Although the practice of firing teachers for these reasons has ceased, there are undoubtedly those who could speculate that any of these practices would have a detrimental effect on a teacher's classroom efficiency as well as cause adverse community reaction. I find such speculation to be an unacceptable method for justifying the dismissal of a teacher who has a flawless record of excellence in his classroom performance. See generally 82 Harv. L. Rev. 1738, 1742 (1969).
What if Mr. Gaylord's status was as a black, a Roman Catholic, or a young heterosexual single person, instead of a male homosexual? Would his dismissal be handled in such manner? Mere speculation coupled with status alone is not enough. Finding No. 10 of the trial court reads as follows:
A teacher's efficiency is determined by his relationship with students, their parents, fellow teachers and school administrators. In all of these areas the continued employment of appellant after he became known as a homosexual would result, had he not been discharged, in confusion, suspicion, fear, expressed parental concern and pressure upon the administration from students, parents and fellow teachers, all of which would impair appellant's efficiency as a teacher and injure the school.
*306In this finding, substitute the words "black" or "female" for "homosexual" and the defect of the majority approach is brought into sharp focus.
The basic unfairness of this situation was well expressed by Mr. Gaylord when he testified:
I quite frankly find it rather galling to have sat through the school board hearing and once again through this trial and hear administrators say that I'm a good teacher, I've been a very good teacher, and yet to be without a job, particularly when I see other people who still hold their jobs who haven't read a book or turned out a new lesson plan or come up with anything creative in years.
"'The right to practice one's profession is sufficiently precious to surround it with a panoply of legal protection.'" Morrison v. State Bd. of Educ., 1 Cal. 3d 214, 239, 461 P.2d 375, 82 Cal. Rptr. 175 (1969), quoting Yakov v. Board of Medical Examiners, 68 Cal. 2d 67, 75, 435 P.2d 553, 64 Cal. Rptr. 785 (1968). To base a dismissal on the proof of a status with no showing of conduct and no showing of an actual detrimental effect on teaching efficiency violates the constitutional due process rights to which Mr. Gaylord is entitled. See Mindel v. United States Civil Serv. Comm'n, 312 F. Supp. 485 (N.D. Cal. 1970).
I dissent.